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Court of Criminal Appeal 25 October 2004

R v So [2004] NSWCCA 362 revised - 25

[2004] NSWCCA 362

Drugs

Citation: R v So [2004] NSWCCA 362
Court: NSW Court of Criminal Appeal
Date: 25 October 2004
Judge(s): McClellan AJA, Studdert J, James J

Background

The appellant had pleaded guilty in the District Court to two counts of supplying not less than a commercial quantity of a prohibited drug: heroin and cocaine respectively. The offences occurred over a five-month period in 2000 and arose from a single, ongoing organised drug syndicate operating across the Kings Cross, Darlinghurst, Surry Hills and Redfern areas.

The sentencing judge found the appellant to have been the principal of a sophisticated distribution operation, which used multiple runners and relied heavily on telephone communications. A co-offender, who played a less significant managerial role, was sentenced separately and more leniently.

District Court Judge Woods QC imposed concurrent head sentences of thirteen years on each count, backdated to August 2002, with a non-parole period of ten years and six months. The appellant sought leave to appeal against the sentences on four grounds.

  • Whether the sentencing judge erred in fixing the relationship between the head sentence and the non-parole period, and in particular whether counsel should have been invited to make submissions before a non-parole period exceeding 75% of the head sentence was set
  • Whether the discount applied for the guilty pleas was too small
  • Whether the sentences were manifestly excessive
  • Whether the sentencing judge erred in declining to find special circumstances under the Crimes (Sentencing Procedure) Act

Decision

Non-parole period (Ground 1): The Court rejected the argument that the sentencing judge was required to cap the non-parole period at three-quarters of the head sentence. Section 44 of the Crimes (Sentencing Procedure) Act imposes a floor, not a ceiling: it requires the non-parole period to be at least 75% of the head sentence unless special circumstances exist, but it does not prohibit a higher ratio. The judge had expressly identified ten years and six months as the appropriate minimum period to be served, and that conclusion was within his discretion.

Guilty plea discount (Ground 2): A discount of approximately 13.3% was applied, reflecting a notional reduction from fifteen years to thirteen years. The pleas were entered only days before trial, after an earlier adjournment sought by the appellant due to a change in legal representation, and there was no reason why earlier pleas could not have been made. The Court found the discount was appropriate in the circumstances, applying the principles in R v Thomson and Houlton and R v Simpson.

Manifest excess (Ground 3): The Court considered the seriousness of the offending, the appellant's role as principal of the syndicate, and the relevant subjective factors, including his prior good character and prospects of rehabilitation. Those factors had been weighed by the sentencing judge. The Court was not persuaded the sentences fell outside the range available in the sound exercise of sentencing discretion.

Special circumstances (Ground 4): The sentencing judge had expressly turned his mind to the question of special circumstances and declined to find them. The judge considered that the two-and-a-half-year parole period was adequate for supervision purposes, particularly given his finding that re-offending was unlikely. The Court found no error in that conclusion, noting that whether special circumstances exist in a given case involves a discretionary judgment.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Section 44 of the Crimes (Sentencing Procedure) Act (in its then-applicable form) imposed a minimum ratio between a non-parole period and the head sentence, not a maximum: a non-parole period exceeding 75% of the head sentence was lawfully available without any procedural obligation to invite further submissions.
  • A guilty plea discount of approximately 13% was upheld where the plea was entered shortly before trial, no earlier plea had been prevented by indictment amendments or other impediments, and the plea nonetheless avoided a lengthy and complex hearing.
  • In dismissing the manifest excess ground, the Court of Criminal Appeal confirmed that the appellant's role as the principal of an organised commercial drug distribution network was a significant factor warranting a substantial sentence, notwithstanding positive subjective features.
  • No error was established in refusing to find special circumstances where the sentencing judge had expressly considered and rejected the issue, and where the residual parole period was assessed as adequate to meet rehabilitation needs.
  • Whether prior good character, relative youth, and prospects of rehabilitation collectively amount to special circumstances is a discretionary question to be resolved in the context of the particular case, not a rule of law.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 33

Cases:
- R v Fakhreddine [2004] NSWCCA 354
- R v Morgan (1993) 70 A Crim R 368
- R v Simpson (2001) 53 NSWLR 704
- R v Thomson & Houlton (2000) 49 NSWLR 383