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Court of Criminal Appeal 15 August 2001

R v Handley [2001] NSWCCA 311 revised - 13

[2001] NSWCCA 311

Drugs
CRIMINAL LAW APPEALS APPEAL AGAINST SENTENCE WHETHER SENTENCE MANIFESTLY EXCESSIVE EARLIER ADMISSIONS OF DEALING NO BASIS TO SUBMISSION

Citation: R v Handley [2001] NSWCCA 311 revised - 13/09/2001
Court: NSW Court of Criminal Appeal
Date: 15 August 2001
Judge(s): Wood CJ at CL; Sperling J

Background

The appellant pleaded guilty in the District Court to one count of supplying a prohibited drug (amphetamine) on an ongoing basis. Police executed a search warrant at his home and found amphetamines, resealable bags, electronic scales, syringes, and records of sales and outstanding debts. The appellant had freely admitted in a recorded interview that he had been selling amphetamine in the Blacktown area for approximately eighteen months, earning between $200 and $400 per week net of his own personal use.

At the time of sentencing, the appellant was unemployed, living in a de facto relationship with a partner and her two children (one of whom had cerebral palsy, epilepsy and asthma, the other an attention deficit disorder). The sentencing judge, Bellear DCJ, imposed a sentence of three years and one month imprisonment with a non-parole period of eighteen months.

The appellant appeared in person before the Court of Criminal Appeal, contending that the sentence was manifestly excessive on two grounds.

  • Whether the sentence was manifestly excessive on the basis that the drugs were held for personal use rather than supply
  • Whether the sentence should have been reduced to account for the hardship imposed on the appellant's de facto partner and her children

Decision

On the personal use argument, the Court found there was no foundation whatsoever for the submission. The appellant's own comprehensive admissions in the electronically recorded interview, combined with the diary recording sales and amounts owed, established clearly that he had been dealing drugs. The Court accepted that the appellant was supplying partly to fund his own habit and partly for profit, and noted that the personal use element was a proper mitigating factor but found no reason to conclude the sentencing judge had overlooked it.

On the family hardship argument, the Court acknowledged the difficult circumstances of the appellant's household, particularly the needs of the partner's child with serious medical conditions. However, Wood CJ at CL applied the established principle from Regina v T (1990) 47 A Crim R 29, which requires hardship to be exceptional and extreme before it can operate as a mitigating factor in sentencing. Ordinary hardship flowing from the imprisonment of a household member does not meet that threshold. The Court found the present circumstances did not reach that level.

The Court noted several positive matters in the appellant's favour, including his rehabilitation efforts, his cessation of drug use before sentence, his supportive partner, a relatively minor prior record, and a bravery award from the Australian Humane Society for attempting to save a child from a house fire. These matters, together with the family circumstances and the need for ongoing drug counselling, were found to have been appropriately recognised by the sentencing judge in setting a non-parole period of just under fifty per cent of the head sentence.

The Court concluded that any lesser sentence would have been manifestly lenient, given the punitive and deterrent considerations that necessarily attend an offence of ongoing drug supply.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that a personal use claim carries no weight where the accused has made detailed admissions of dealing and contemporaneous records of sales exist.
  • Under the principle established in Regina v T, family hardship will only operate as a mitigating factor in sentencing where it is exceptional and extreme, going well beyond the ordinary hardship that arises whenever a household member is imprisoned.
  • In dismissing the appeal, the Court held that circumstances including a de facto partner's need for support and the care requirements of seriously ill children did not, on the facts here, reach the threshold of exceptional hardship.
  • Positive factors such as rehabilitation, cessation of drug use, and personal acts of bravery are relevant to sentencing but do not automatically reduce an otherwise proportionate sentence for a serious offence.
  • The maximum penalty for supply of a prohibited drug on an ongoing basis under s 25A of the Drug Misuse and Trafficking Act 1985 is twenty years imprisonment, reflecting the legislature's view of the offence's seriousness.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25A (supply prohibited drug on an ongoing basis)
- Crimes Act 1900 (NSW), ss 117, 154A
- Crime (Sentencing Procedure) Act 1999 (NSW), s 44(2)

Cases
- Regina v T (1990) 47 A Crim R 29