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Court of Criminal Appeal 4 April 2003

R v Ramaz [2003] NSWCCA 91 revised - 15

[2003] NSWCCA 91

Drugs
CRIMINAL LAW SENTENCING CROWN APPEAL SUPPLY PROHIBITED DRUG (CANNABIS)

Citation: R v Ramaz [2003] NSWCCA 91
Court: NSW Court of Criminal Appeal
Date: 4 April 2003
Judge(s): Giles JA, Dunford J, Smart AJ

Background

The respondent pleaded guilty in the District Court at Campbelltown to eleven counts of supplying cannabis and two counts of deemed supply (possession for the purpose of supply), all contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985. The offending involved a sophisticated street-level dealing operation centred on mobile phone arrangements. Between August and November 2001, police intercepted nearly 13,000 activations on one of the respondent's mobile numbers, with the respondent meeting approximately 80 customers per day to sell cannabis.

The most serious charge (count 13) arose from 813 intercepted telephone conversations in which weights or amounts were discussed, producing a total supply of 1.723 kilograms of cannabis with a street value of approximately $30,000. Counts 1 to 9 and 11 related to direct sales to undercover police operatives, each observed and recorded by surveillance teams at a Revesby car park.

The Crown appealed under s 5D of the Criminal Appeal Act 1912, contending that the sentences imposed by Judge Sorby DCJ were inadequate, particularly in relation to count 13, where the non-parole period had been set to expire on the very day sentence was pronounced.

  • Whether the sentencing judge inadequately assessed the objective seriousness of the offending, given its scale and systematic nature
  • Whether the sentencing judge made a finding of fact not open on the evidence, namely that without the guilty plea the Crown may not have been able to prove the telephone intercept dealings
  • Whether the sentences imposed, including the non-parole period on count 13, were manifestly disproportionate to the gravity of the offences

Decision

The Court of Criminal Appeal found that the sentencing judge had erred in relation to count 13. The non-parole period set for that count expired on the same day the sentence was handed down, which effectively meant the respondent was eligible for immediate release on the most serious charge. The Court found this was manifestly inadequate given the scale and sustained nature of the offending.

On the question of the telephone intercept evidence, the Court rejected the finding that the Crown may not have been able to prove the intercept-based dealings without the guilty plea. The evidence was characterised as strong, with recorded conversations, surveillance footage, and undercover operative purchases all corroborating the intercepted calls.

In resentencing, the Court acknowledged mitigating factors including the respondent's comparative youth, his first-time custodial experience, a stabbing he suffered while in custody, progress made during imprisonment, and genuine prospects of rehabilitation. The Court applied a 25 per cent discount for the guilty plea and expressed contrition. It found that "special circumstances" existed under s 44 of the Crimes (Sentencing Procedure) Act 1999, justifying a non-parole period shorter than the standard statutory proportion, in order to allow a meaningful period of supervised parole to support rehabilitation.

The sentences on counts 1 to 12 were confirmed. On count 13, the Court quashed the original sentence and substituted a new cumulative term of 18 months with a non-parole period of 6 months, running from 15 April 2003.

Orders Made

  • Crown appeal allowed
  • Sentences on counts 1 to 12 confirmed
  • Sentence on count 13 quashed
  • Respondent resentenced on count 13 to 18 months imprisonment, cumulative on counts 1 to 12, commencing 15 April 2003, with a non-parole period of 6 months
  • Earliest parole eligibility date fixed at 14 October 2003, subject to supervision by the Probation and Parole Service and compliance with all reasonable directions of that service
  • Order made under s 39P of the Drug Misuse and Trafficking Act 1985 for destruction of the cannabis leaf the subject of the charges

Key Takeaways

  • A non-parole period set to expire on the very day of sentencing is liable to be found manifestly inadequate on Crown appeal, particularly where the underlying offending is serious and sustained.
  • Under s 44 of the Crimes (Sentencing Procedure) Act 1999, a finding of "special circumstances" can justify a non-parole period shorter than the standard proportion where rehabilitation prospects are genuine and a meaningful supervisory parole period would assist the offender's reintegration.
  • The Court of Criminal Appeal confirmed that a 25 per cent sentencing discount for a guilty plea and expressed contrition was appropriate in the circumstances, consistent with the principles in R v Thomson & Houlton.
  • Large-scale, systematic street-level cannabis supply involving thousands of transactions and close to two kilograms of drug over a sustained period carries significant objective criminality, even where individual transactions involve small quantities.
  • In Crown appeals, principles of restraint in resentencing operate alongside the court's obligation to correct manifestly inadequate sentences; both considerations were applied in the Court's approach to count 13.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 319
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 44
- Criminal Appeal Act 1912 (NSW), s 5D
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 32(1), 39P
- Justices Act 1902 (NSW), s 51A

Cases:
- R v Allpass (1993) 72 A Crim R 561
- R v Thomson & Houlton [2000] NSWCCA 383; 49 NSWLR 383