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Court of Criminal Appeal 22 November 2000

R v GRAY [2000] NSWCCA 479 revised - 28

[2000] NSWCCA 479

Drugs

Citation: R v Gray [2000] NSWCCA 479
Court: NSW Court of Criminal Appeal
Date: 22 November 2000
Judge(s): Barr J; Carruthers AJ

Background

The applicant, a 71-year-old pensioner, was sentenced in the District Court following his committal on four drug charges arising from events on 2 and 3 June 1998. The charges related to supplying heroin, supplying cannabis, supplying amphetamine, and possessing amphetamine. Police had discovered drugs and drug-dealing equipment during a search, and the applicant had voluntarily contacted police the following day to surrender additional amphetamine he intended to sell.

Judge Twigg DCJ QC sentenced the applicant to a head sentence of four years (minimum two years, additional two years) for the heroin and cannabis supply offences, a fixed two-year term for supplying amphetamine, and a fixed one-year term for possessing amphetamine, all running concurrently from 3 December 1999.

The applicant sought leave to appeal those sentences. In the course of the appeal, a fundamental jurisdictional problem with the possession charge emerged.

  • Whether the District Court had jurisdiction to sentence the applicant for the possession of amphetamine offence, given the requirements of s 9 of the Drug Misuse and Trafficking Act 1985
  • Whether, if the possession sentence was invalid and had to be quashed, the sentences for the three supply offences were also affected and should be reconsidered
  • What sentences were appropriate on resentencing, having regard to the applicant's age, health, personal circumstances, early pleas of guilty, and conduct in custody

Decision

The Court found that the District Court had no jurisdiction to deal with the possession of amphetamine offence. Under s 9 of the Drug Misuse and Trafficking Act 1985, that offence was required to be dealt with by a magistrate. The alternative pathways that might have allowed a higher court to deal with such a charge (such as it being a backup offence after trial, or being taken into account under s 21 of the Criminal Procedure Act 1986) did not apply. Counsel at the sentencing proceeding had not drawn this to the sentencing judge's attention, and both parties on appeal agreed the possession sentence had to be quashed.

The Court rejected the Crown's submission that quashing the possession sentence left the supply sentences undisturbed. Barr J reasoned that because all four offences formed part of a single episode and the sentencing judge had expressly considered the totality of the applicant's criminality, the one-year possession sentence must have had some bearing on the other sentences imposed. The sentencing proceedings were therefore found to have miscarried across all four charges.

On resentencing, the Court took into account several mitigating factors: the applicant's advanced age and poor health (diabetes, impaired eyesight and hearing), the hardship of imprisonment for an elderly person, the accumulation of sentences upon existing terms, his early pleas of guilty, and his voluntary disclosure of the amphetamine charge. The Court also had regard to new evidence, submitted by affidavit, showing the applicant had engaged positively with rehabilitation in custody and had acknowledged his gambling problem, which the sentencing judge had previously noted he refused to recognise.

Orders Made

  • Leave to appeal granted and the appeal allowed
  • All four sentences quashed
  • For supplying heroin: imprisonment for three years commencing 3 December 1999, expiring 2 December 2002, with a non-parole period of one year and six months (eligible for parole from 2 June 2001)
  • For each of supplying amphetamine and supplying cannabis: imprisonment for one year and six months commencing 3 December 1999, expiring 2 June 2001 (no non-parole period fixed, as those terms fell wholly within the non-parole period of the heroin sentence)
  • No sentence imposed for the possession of amphetamine offence

Key Takeaways

  • Under s 9 of the Drug Misuse and Trafficking Act 1985, simple possession of a prohibited drug is a summary offence that must be dealt with by a magistrate; the District Court has no jurisdiction to sentence for that offence absent specific statutory circumstances permitting it.
  • Where a sentencing judge expressly considers the totality of an offender's criminality across multiple charges, an error affecting one charge can infect the sentences imposed for the remaining charges, requiring the Court of Criminal Appeal to intervene across all of them.
  • A voluntary disclosure by an offender of an offence that would otherwise have remained unknown can carry particular utilitarian value warranting a degree of leniency in sentencing.
  • Advanced age, serious health conditions, and the prospect of imprisonment being especially burdensome are factors a sentencing court may weigh in favour of a reduced head sentence and an extended parole period beyond the standard ratio.
  • Fresh evidence of rehabilitation and acknowledgment of underlying problems (such as gambling) presented on appeal can support a further reduction in sentence on resentencing.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 9
- Criminal Procedure Act 1986 (NSW), s 21

Cases: No specific cases were cited in the text of the judgment.