AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 18 August 2023

Allan v R

[2023] NSWCCA 199

Drugs
CRIME APPEALS APPEAL AGAINST SENTENCE MANIFEST EXCESS LOW LEVEL STREET DEALER

Citation: Allan v R [2023] NSWCCA 199
Court: NSW Court of Criminal Appeal
Date: 18 August 2023
Judges: Beech-Jones CJ at CL; Fagan J; Dhanji J

Background

The applicant, a 36-year-old man, pleaded guilty in the Local Court to two charges of supplying methylamphetamine on an ongoing basis under s 25A(1) of the Drug Misuse and Trafficking Act 1985 (NSW). His conduct involved small-scale street dealing conducted by text message, with drugs collected from his home. A third s 25A(1) charge and several minor drug and weapons offences were taken into account on a Form 1 (a procedural mechanism by which additional charges are acknowledged at sentencing without being formally convicted).

The total quantity of methylamphetamine across the two principal offences and the Form 1 charge was 24.35 grams, sold over approximately 11 weeks. The applicant dealt to fund his own consumption rather than for commercial profit. Individual sales ranged from 0.1 grams for $50 to 3.5 grams for $450.

The applicant had a criminal record dating from 2015, consisting mainly of property and dishonesty offences, and had served three prior terms of imprisonment totalling two years and five months. At the time of the offending, he was on parole and subject to a community correction order. His subjective case was strong: he had been sexually abused as a child by a teacher, had not disclosed that abuse for over 20 years, and carried diagnoses of major depressive disorder and substance use disorder, both attributed to that trauma.

  • Whether the aggregate sentence of four years and nine months imprisonment, with a non-parole period of two years and ten months, was manifestly excessive in the circumstances.

Decision

The Court of Criminal Appeal granted leave to appeal and allowed the appeal on the sole ground that the sentence was manifestly excessive. The Court found that, while the sentencing judge made positive findings about the applicant's strong subjective case, those findings were not adequately reflected in the aggregate sentence ultimately imposed.

The Court also found that the degree of notional accumulation applied, a full year, was unwarranted. The two principal offences were homogenous in character, involving the same conduct, the same method, and the same drug, all occurring within a single relatively short episode of 11 weeks. Given that context, the level of accumulation between the indicative sentences was not justified.

The Court resentenced the applicant to an aggregate term of three years and six months imprisonment, with a non-parole period of two years and one month, retaining the 60% ratio adopted by the sentencing judge. That ratio had been warranted by the finding of special circumstances, and the Court considered ongoing parole supervision desirable to support the applicant's rehabilitation and reintegration.

Orders Made

  • The aggregate sentence ordered on 21 September 2022 was quashed.
  • In lieu, the applicant was sentenced to an aggregate term of three years and six months imprisonment, commencing 8 July 2021 and expiring 1 January 2025.
  • A non-parole period of two years and one month was set, expiring 7 August 2023.
  • The applicant became eligible for release to parole from 7 August 2023.
  • Indicative sentences nominated: three years for the first offence (incorporating Form 1 matters); two years and ten months for the second offence.

Key Takeaways

  • A sentencing court must carry through into the aggregate sentence the mitigating weight it expressly assigns to a strong subjective case. Finding in favour of an offender on subjective matters and then imposing an aggregate that does not reflect those findings is an error correctable on appeal.
  • Notional accumulation between sentences for homogenous offending occurring within a single, short episode must be calibrated to reflect the nature of that offending. A full year of accumulation was found to be unwarranted where both charges involved the same conduct, drug, and method over 11 weeks.
  • The Court of Criminal Appeal confirmed that low-level, unsophisticated street dealing for the purpose of funding personal use is a materially less serious form of ongoing supply than commercial distribution, and sentencing must reflect that distinction.
  • Comparable cases involving significantly larger quantities under s 25A(1) attracted sentences not substantially greater than the original sentence imposed here, which the Court treated as a persuasive indicator of manifest excess.
  • Under s 25A(1) of the Drug Misuse and Trafficking Act 1985, the maximum penalty is 20 years imprisonment. The scale of the sentence relative to the maximum is a relevant consideration in assessing whether an aggregate sentence is proportionate to the actual conduct.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10(1), 25(1), 25A(1)
- Weapons Prohibition Act 1998 (NSW), s 7(1)

Cases
- El Masri v R [2022] NSWCCA 27
- Newman v R [2022] NSWCCA 218
- R v Wong [2018] NSWCCA 20