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Court of Criminal Appeal 26 February 2016

Valenti v R

[2016] NSWCCA 17

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE SUPPLY OF PROHIBITED DRUG SUPPLY OF COCAINE IN NIGHTCLUB INTENSIVE CORRECTION ORDERS WHETHER ICO MANIFESTLY EXCESSIVE.

Citation: Valenti v R [2016] NSWCCA 17
Court: Court of Criminal Appeal, New South Wales
Date: 26 February 2016
Judges: Hoeben CJ at CL, Davies J, Beech-Jones J

Background

The appellant was convicted by a jury of supplying a prohibited drug, namely cocaine, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985. Police attended a bar in Pitt Street, Sydney, where a drug detection dog identified the appellant. He was found in possession of 7.68 grams of cocaine divided into twelve small resealable bags, each with an average retail value of approximately $250.

The appellant maintained at trial that the drugs were solely for his personal use, but the jury rejected this. The sentencing judge found that the cocaine had been divided partly for personal use and partly for sale, a finding the Court of Criminal Appeal held was clearly open on the evidence.

On 2 April 2015, the sentencing judge imposed a term of 20 months imprisonment, to be served by way of an Intensive Correction Order (ICO) under s 7(1) of the Crimes (Sentencing Procedure) Act 1999. The appellant sought leave to appeal, arguing primarily that full-time imprisonment was not warranted and that the sentence was manifestly excessive.

  • Whether the sentencing judge erred in finding that no penalty other than imprisonment was appropriate under s 5(1) of the Crimes (Sentencing Procedure) Act 1999
  • Whether the sentence of 20 months imprisonment served by way of ICO was manifestly excessive
  • Whether the sentencing judge impermissibly inflated the length of the sentence to compensate for the perceived leniency of an ICO
  • Whether the correct three-stage sentencing process (as established in R v Zamagias and Douar v R) was followed, particularly the requirement to fix the length of the sentence before considering the manner of its service

Decision

The Court of Criminal Appeal unanimously dismissed the appeal, granting leave but rejecting all grounds. Beech-Jones J (with whom Hoeben CJ at CL agreed) held that the sentencing judge's finding that imprisonment was the only appropriate sentence was well open, given the commercial nature of the supply, the setting of a licensed premises, and the appellant's prior drug-related history.

The court also rejected the contention that the sentence was manifestly excessive. A 20-month ICO for this category of offending was within the range available to the sentencing judge, and no error in the exercise of the sentencing discretion was demonstrated.

Davies J, while agreeing in the outcome, raised a separate concern about the sentencing process. Under the approach confirmed in Zamagias and Douar, the sentencing court must determine the length of a sentence as a distinct step, before considering how that sentence is to be served. Davies J observed that the sequence of events at the sentence hearing created doubt as to whether the judge had actually fixed the sentence length before deciding to refer the matter for ICO assessment. The impression that the length was calibrated with the ICO in mind could, his Honour noted, have been avoided had the three-stage process been applied more transparently.

However, Davies J was not satisfied that the appellant had established actual error, describing his concern as no more than a doubt about the course followed. Because the appellant bore the burden of demonstrating error on appeal, this doubt was insufficient to disturb the sentence.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that a finding of no available alternative to imprisonment under s 5(1) of the Crimes (Sentencing Procedure) Act 1999 was open where an offender was found to have supplied cocaine commercially in a licensed premises and had a prior drug-related matter.
  • Under the three-stage process established in R v Zamagias and affirmed in Douar v R, a sentencing court must determine the length of a sentence independently, and before considering whether an ICO or other alternative to full-time custody is appropriate.
  • Where the sentencing record creates ambiguity about whether the sentence length was fixed before the manner of service was considered, this may raise a concern about process, but that concern alone does not establish appellable error if the appellant cannot demonstrate the sentence was actually inflated.
  • In dismissing the appeal, the Court noted that a conclusion that a sentencing judge impermissibly lengthened a term to compensate for the leniency of an ICO is not to be drawn lightly.
  • Regarding ICO compliance, the Court observed that the Commissioner of Corrective Services has a discretion, not an obligation, under s 86 of the Crimes (Administration of Sentences) Act 1999 to require an offender to make up community service work avoided under a permission granted under s 85(1), and that this discretion may allow for flexible arrangements.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1), s 29(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 5(1), s 7(1), s 10
- Crimes (Administration of Sentences) Act 1999 (NSW), s 81(2), s 85, s 86

Cases
- R v Zamagias [2002] NSWCCA 17
- Douar v R [2005] NSWCCA 455
- Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
- R v Pogson; R v Lapham; R v Martin [2012] NSWCCA 225
- R v Tannous; R v Fahda; R v Dibb [2012] NSWCCA 243
- Martin v R [2013] NSWCCA 24
- Turkmani v R [2014] NSWCCA 186
- Knight v R [2015] NSWCCA 222
- R v Chidiac [2015] NSWCCA 241