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Court of Criminal Appeal 17 May 2001

REGINA v. BUTCHER [2001] NSWCCA 188 revised - 31

[2001] NSWCCA 188

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE SUPPLY OF PROHIBITED DRUG WEIGHT OF PLEA OF GUILTY ESCALATING CULPABILITY WHETHER PROCURED BY POLICE

Citation: REGINA v. BUTCHER [2001] NSWCCA 188 revised - 31/05/2001
Court: NSW Court of Criminal Appeal
Date: 17 May 2001
Judge(s): Greg James J; Smart AJ

Background

The applicant was a 37-year-old man with no prior drug supply history who pleaded guilty to multiple offences under the Drugs Misuse & Trafficking Act 1985. The charges arose from a controlled police operation in Port Macquarie, during which an undercover operative made repeated contact with the applicant, purchased methylamphetamine from him on a number of occasions, and progressively negotiated for larger quantities. The applicant was ultimately arrested at his home after supplying 263.2 grams of methylamphetamine for $7,000.

The applicant's personal circumstances included a troubled domestic situation, a developing amphetamine dependency, and limited prior offending unrelated to drugs. He gave evidence of genuine contrition and a willingness to address his addiction through counselling.

At first instance, Judge Viney in the District Court sentenced the applicant to seven years imprisonment with a four-year non-parole period on the most serious count (supply of a commercial quantity), alongside concurrent sentences on the remaining counts. The applicant sought leave to appeal that sentence as excessive.

  • Whether the sentencing judge gave appropriate weight to the applicant's guilty plea
  • Whether the escalating quantities of drug supply, driven in part by police conduct, constituted a circumstance of aggravation or mitigation
  • Whether the role played by the undercover operative in escalating the transactions was properly evaluated
  • Whether the overall sentence was excessive in light of the applicant's role and personal circumstances
  • Whether special circumstances existed justifying a variation to the standard ratio between head sentence and non-parole period

Decision

The Court of Criminal Appeal found that the sentencing judge had not adequately evaluated the operative's role in escalating the quantities of drugs involved. The undercover operative had consistently encouraged larger transactions, and the applicant's willingness to supply greater amounts was shaped materially by that pressure. The Court held that this did not amount to entrapment in any strict legal sense, but it was relevant to the degree of the applicant's culpability.

On the question of escalating criminality, the Court concluded that the operative's conduct could not be treated as a substantial circumstance of aggravation requiring a more severe sentence than the applicant's own sustained enterprise would otherwise warrant. The original sentence on counts one and four was therefore found to exceed what the applicant's criminality properly called for.

The Court accepted that special circumstances existed, pointing to several factors: the need for a meaningful period of supervision following a lengthy sentence, the applicant's first time in custody, time already spent on remand, and strong prospects for rehabilitation including a commitment to addressing drug dependency.

Orders Made

  • Leave to appeal granted
  • Appeal allowed on counts one and four; sentences on those counts quashed
  • In lieu of the sentences on counts one and four, the applicant sentenced to five years imprisonment commencing 21 May 1999, with a non-parole period of three years commencing that day and ending 20 May 2002
  • Appeal on counts two and three dismissed
  • All sentences to be served concurrently from 21 May 1999

Key Takeaways

  • The Court of Criminal Appeal confirmed that where police conduct in a controlled operation actively escalates the quantity of drugs supplied, that conduct is relevant to assessing the offender's culpability, even where it falls short of entrapment.
  • A sentencing court is required to evaluate the specific role played by an undercover operative when determining whether escalating supply quantities represent a genuine aggravating circumstance attributable to the offender.
  • Where an offender's involvement is shaped materially by external inducement from an undercover operative, that involvement cannot straightforwardly be treated as a free-standing aggravating circumstance justifying a more severe sentence.
  • Special circumstances justifying a departure from the standard non-parole ratio can be established by a combination of factors, including a first custodial sentence, time served on remand, genuine rehabilitation prospects, and the need for post-release supervision.
  • Pleading guilty carries weight in sentencing, and its significance must be reflected properly in the sentence ultimately imposed.

Legislation and Cases Referenced

Legislation:
- Drugs Misuse & Trafficking Act 1985 (NSW), ss 25(1), 25(2), 25A(1)
- Law Enforcement (Controlled Operations) Act 1987 (NSW)

Cases:
- Pearce (1988) 194 CLR 610
- Thomson (2000) 49 NSWLR 383
- Taouk (1992) 65 A Crim R 387
- Anderson (1987) 32 A Crim R 146
- Leung (CCA, unreported, 21 July 1994)
- Rahme (1991) 53 A Crim R 8
- Olbrich (1999) 199 CLR 270
- Roach (CCA, unreported, 28 April 1997)
- Prior (CCA, unreported, 7 October 1997)