AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 29 November 2019

Hooker v R

[2019] NSWCCA 283

Drugs
CRIMINAL LAW SENTENCE APPEAL TWO COUNTS OF DRUG SUPPLY PAROLE PERIOD OF 2 YEARS WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Hooker v R [2019] NSWCCA 283
Court: NSW Court of Criminal Appeal
Date: 29 November 2019
Judge(s): Hoeben CJ at CL (principal judgment); Leeming JA and Lonergan J agreeing

Background

The appellant was found in possession of methylamphetamine on two separate occasions, approximately eight months apart. The first occasion arose in April 2018 when police searched her vehicle in a suburb known for drug activity and found 8.61 grams of methylamphetamine along with cash and paraphernalia consistent with supply. She was charged, granted bail, and then committed the second offence while on that bail.

The second occasion arose in December 2018 when police searched her vehicle in Cessnock and found 6.77 grams of methylamphetamine concealed in a hidden dashboard compartment, together with cash, scales, and resealable bags. Both offences involved supply of a prohibited drug under s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW), each carrying a maximum of 15 years imprisonment.

The appellant pleaded guilty to both counts. The sentencing judge in the District Court at Parramatta also took into account six additional offences on a Form 1 (a procedural mechanism by which related offences are considered in mitigation or aggravation without separate conviction). She received an aggregate sentence of 3 years and 4 months imprisonment with a non-parole period of 2 years. She sought leave to appeal on the ground that the sentence was manifestly excessive.

  • Whether the aggregate sentence of 3 years and 4 months imprisonment was manifestly excessive having regard to the quantities of drug involved, the appellant's subjective circumstances, and available sentencing statistics.
  • Whether the indicative sentences for each individual offence were themselves too high, thereby infecting the aggregate sentence.
  • Whether the sentencing judge gave appropriate weight to the relatively low objective gravity of each offence.

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal, finding the sentence was well within the range open to the sentencing judge.

Hoeben CJ at CL accepted that the drug quantities in each offence sat at the lower end of the non-commercial supply range, only just exceeding the threshold for an indictable quantity. However, his Honour concluded that the indicative sentences were not unreasonable when viewed in their full context, noting that objective gravity is not the only relevant consideration.

Several aggravating factors weighed heavily in the analysis. The second offence was committed while the appellant was on bail for the first, which directly informed the weight given to specific deterrence. The use of a hidden dashboard compartment in the second offence demonstrated a degree of premeditation. The appellant's extensive criminal history, including a prior custodial sentence for drug supply and related offending, further justified emphasis on specific deterrence. Six Form 1 offences also warranted an increase on the sentence that would otherwise have applied.

The Court noted that while sentencing statistics can be of some assistance, they cannot displace a holistic assessment of the individual offender's circumstances. The comparison with comparable decided cases, including Price v R [2016] NSWCCA 29, supported the conclusion that the aggregate sentence was appropriate. The adjustment to the non-parole period on account of special circumstances (reflecting the appellant's need for supervision on release) was characterised as favourable to her.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Reoffending while on bail does not increase the objective gravity of the later offence but is a significant factor in assessing the weight to be given to specific deterrence.
  • Sentencing statistics provide a useful reference point but cannot override a holistic sentencing exercise that accounts for an individual offender's full criminal history and circumstances.
  • Under the Drug Misuse and Trafficking Act 1985 (NSW), a supply offence involving a relatively small drug quantity does not, of itself, mandate a lenient outcome where other aggravating factors are present, including prior custodial sentences for similar offending.
  • In dismissing the appeal, the Court confirmed that a degree of accumulation in an aggregate sentence is appropriate where two offences were committed at different times and locations, particularly where one was committed on bail.
  • No error was established in the sentencing judge's approach to Form 1 offences, criminal history, or the weight attributed to specific deterrence and rehabilitation prospects.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 527C(1)(a)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10(1), 25(1)

Cases:
- AB v The Queen (1999) 198 CLR 111
- Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58
- Director of Public Prosecution v Dalgliesh (a pseudonym) (2017) 262 CLR 428
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1
- Donaghey v R [2015] NSWCCA 119
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520
- Hughes v R [2018] NSWCCA 2
- Markarian v The Queen (2005) 228 CLR 357
- Pham v R [2014] NSWCCA 115
- Price v R [2016] NSWCCA 29
- Remington v R [2018] NSWCCA 98
- Vandeventer v R [2013] NSWCCA 33
- Wong v The Queen; Leung v The Queen (2001) 207 CLR 584