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Court of Criminal Appeal 27 March 2015

Pak v R

[2015] NSWCCA 45

Drugs
CRIMINAL LAW SENTENCING SUPPLY OF PROHIBITED DRUGS TWO OFFENCES WHETHER SENTENCE MANIFESTLY EXCESSIVE SENTENCES ENTIRELY CONCURRENT

Citation: Pak v R [2015] NSWCCA 45
Court: NSW Court of Criminal Appeal
Date: 27 March 2015
Judge(s): R A Hulme J, Davies J, Bellew J

Background

The applicant pleaded guilty in the District Court to two counts of supplying a prohibited drug: 6.17 grams of N,N-dimethylamphetamine and 6.48 grams of amphetamine. Police had initially stopped him after observing erratic driving. A subsequent search of his home uncovered the drugs, along with drug scales, a glass pipe, a portable gas burner, numerous empty resealable plastic bags, a blank prescription, and an exercise book recording multiple doctors' contact details alongside quantities of tablets.

Judge Lerve sentenced him in the District Court to a non-parole period of 12 months with an additional term of 9 months on each supply count, with all drug sentences running concurrently. The applicant sought leave to appeal, arguing that the sentencing judge had wrongly found him involved in trafficking to a substantial degree, and that the sentences were manifestly excessive.

  • Whether the sentencing judge erred in finding, beyond reasonable doubt, that the applicant was involved in drug trafficking to a substantial degree, given the drug quantities were only slightly above indictable quantity
  • Whether the sentences imposed were manifestly excessive

Decision

On the first ground, the Court of Criminal Appeal upheld the sentencing judge's finding. Davies J, with whom Hulme J and Bellew J agreed, acknowledged that the drug quantities alone would not have established substantial trafficking. However, the sentencing judge had correctly looked beyond quantity to the surrounding circumstances: the scales, numerous empty resealable bags, blank prescription, and the multi-bag packaging of the drugs collectively supported the inference that the applicant was involved in an enterprise contemplating supply on more than one occasion.

The applicant sought to draw an analogy with Youssef v R [2014] NSWCCA 285, where a trafficking-to-a-substantial-degree finding had not been made. The Court distinguished that case on its facts, finding the additional paraphernalia in the present matter provided a sufficient basis for the sentencing judge's conclusion. The exercise book was largely disregarded by the sentencing judge as relating to prescription drug sourcing, and the Court found no error in that approach.

On the second ground, the Court rejected the manifest excess argument. The starting point adopted by the sentencing judge reflected a relatively low level of objective seriousness. The finding of substantial trafficking meant that, absent exceptional circumstances, full-time custody was ordinarily required under established authority. With all drug sentences running concurrently and a substantially reduced non-parole period representing approximately 57% of the total sentence, the Court found the sentences consistent with comparable ranges and disclosed no error of the type described in House v The King.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A finding that an offender was involved in drug trafficking "to a substantial degree" does not rest solely on the quantity of drugs; surrounding circumstances such as scales, resealable bags, and multi-bag packaging can collectively support such a finding even where quantities are only marginally above indictable thresholds.
  • The Court of Criminal Appeal confirmed that where a substantial trafficking finding is made, full-time custody is ordinarily required absent exceptional circumstances, following R v Gu [2006] NSWCCA 104.
  • In dismissing the manifest excess ground, the Court applied the principle from House v The King that an appellate court cannot substitute its own view merely because it might have exercised the sentencing discretion differently.
  • Concurrent sentences across multiple drug counts, combined with a significantly reduced non-parole period, are relevant factors weighing against a finding of manifest excess.
  • The absence of subjective material beyond the guilty plea, including no evidence of remorse, rehabilitation prospects, or reduced reoffending risk, limits the scope for leniency in the sentencing exercise.

Legislation and Cases Referenced

Cases:
- House v The King (1936) 55 CLR 499
- Kendall v R [2015] NSWCCA 13
- R v Gu [2006] NSWCCA 104
- Youssef v R [2014] NSWCCA 285

Legislation:
- Section 166 Certificate (Crimes (Sentencing Procedure) Act 1999 (NSW)) — procedural mechanism for taking additional offences into account at sentencing