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Court of Criminal Appeal 25 March 2003

R v Connell [2003] NSWCCA 90 revised - 02

[2003] NSWCCA 90

Drugs

Citation: R v Connell [2003] NSWCCA 90
Court: NSW Court of Criminal Appeal
Date: 25 March 2003
Judge(s): Studdert J; Smart AJ

Background

The applicant, a 50-year-old man, pleaded guilty in the Local Court at Gosford to supplying a prohibited drug on an ongoing basis between 16 and 20 July 2001. The offending involved four separate transactions with an undercover police operative, supplying amphetamine on three occasions in 3.5-gram lots and, on a fourth occasion, supplying 55 grams of amphetamine for $1,600. He was arrested immediately after the final transaction.

Upon arrest and during a subsequent search of his home, police also found additional amphetamine, cannabis, cannabis plants growing in his garage, a police-style extendable baton, and a police scanner tuned to the local police channel. These additional items gave rise to further offences dealt with on a Form 1 (a mechanism allowing related charges to be taken into account at sentencing without a separate conviction).

In the Gosford District Court, her Honour Judge English sentenced the applicant to four years' imprisonment with a non-parole period of two years and six months. The applicant sought leave to appeal to the Court of Criminal Appeal, contending the sentence was manifestly excessive.

  • Whether the head sentence of four years was manifestly excessive, particularly given the early plea of guilty
  • Whether the sentencing judge gave adequate weight to subjective factors, including the guilty plea, remorse, and the nature of amphetamine as the relevant drug
  • Whether the starting point implied by the sentence (before discount for the plea) was too high

Decision

The Court granted leave to appeal but dismissed the appeal. Studdert J examined both the objective gravity of the offending and the subjective circumstances of the applicant. On the objective side, the transactions were calculated, conducted under a false name, motivated by greed, and involved quantities thirteen times the indictable threshold for amphetamine. The recorded conversations also indicated the applicant had a significant customer base.

The applicant's counsel argued that courts have historically treated amphetamine supply with greater flexibility than heroin supply, pointing to sentencing statistics and a prior Court of Criminal Appeal decision. Studdert J acknowledged the statistics showed the sentence sat toward the upper end of the range, but found the base of the Crown's refined statistics too narrow to be particularly useful. The comparison case raised by the applicant was distinguished on its facts, as the circumstances differed substantially from the present matter.

Studdert J found no identifiable error in the sentencing judge's reasoning. Her Honour had correctly accounted for the early plea, accepted the applicant's remorse, found special circumstances to adjust the non-parole period, and structured the sentence to allow for supervised rehabilitation. Although the sentence was characterised as stern, it fell within the permissible range of a sound exercise of sentencing discretion. Smart AJ agreed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentence assessed as sitting toward the upper end of the sentencing range does not, on that basis alone, constitute manifest excess, provided it remains within the range of a sound discretionary judgment.
  • Sentencing statistics have limited utility when the comparison base is too narrow to draw reliable inferences, particularly where aggravating features such as Form 1 offences and prior criminal history are factored in.
  • Under the Drug Misuse and Trafficking Act, the indictable quantity of amphetamine is five grams; a supply of 55 grams in a single transaction represents thirteen times that threshold, bearing directly on objective seriousness.
  • Where offences are placed on a Form 1, the sentencing court is required to give added weight to personal deterrence and retribution for those matters, consistent with the principle confirmed in the Attorney General's application under s 37 of the Crimes (Sentencing Procedure) Act.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that motivation by greed, use of a false identity, demonstrated capacity to supply in substantial quantities, and a broad customer base are all features capable of supporting a sentence toward the higher end of the available range.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act (NSW), s 25A(1) and Schedule 1
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 32 and s 37

Cases:
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2000 [2002] NSWCCA 518
- R v McArthur [2000] NSWCCA 390