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Court of Criminal Appeal 10 July 2000

Regina v Davis [2000] NSWCCA 244 revised - 11

[2000] NSWCCA 244

Drugs
SUPPLY OF PROHIBITED DRUG APPEAL AGAINST SENTENCE POSSESSION IN PART FOR OWN USE NO FINDINGS AS TO AMOUNTS SUPPLIED SENTENCING MISCARRIED RESENTENCING

Citation: Regina v Davis [2000] NSWCCA 244 revised - 11/07/2000
Court: NSW Court of Criminal Appeal
Date: 10 July 2000
Judge(s): Giles JA; Adams J

Background

The appellant pleaded guilty in the District Court to four counts of supplying a prohibited drug (heroin) under the Drug Misuse and Trafficking Act 1985 (NSW). The offences involved two incidents: one in November 1998, when police found 5.36 grams of heroin on the appellant and at a police station, and a second in May 1999, when a search of his home uncovered 5.43 grams of heroin along with scales, a police scanner, and $1,012.50 in cash the appellant admitted was proceeds of drug sales.

The appellant admitted in a record of interview that he had purchased heroin partly to supply others and partly for his own use, stating that he intended to use most of the drugs himself and sell some to fund further purchases. He was using between $200 and $300 worth of heroin per day at the time. Eight additional offences were taken into account on a Form 1 schedule at sentencing.

At first instance, Coolahan DCJ imposed minimum terms of 2 years, 18 months, 3 years, and 3 years respectively on the four counts, all commencing on 13 May 1999. The appellant sought leave to appeal, contending the total sentence and minimum terms were manifestly excessive.

  • Whether the sentencing judge erred by failing to make findings about what portion of the possessed heroin was for the appellant's own use versus for supply, given the statutory deeming provision that treats possession as possession for supply unless proved otherwise
  • Whether the original sentences were manifestly excessive in all the circumstances
  • Whether this Court could re-sentence rather than remit to the District Court
  • The relevance to sentencing of an offender committing drug supply offences to finance their own drug habit, particularly after the Court of Criminal Appeal's decision in R v Henry (1999) 46 NSWLR 346

Decision

The Court identified a sentencing error that had not been raised in the appellant's written submissions. Under the relevant statutory deeming provision, possession of heroin above a certain quantity is deemed to be possession for supply unless the offender proves otherwise. Where an offender admits that some of the possessed drugs were for personal use, the sentencing court must make findings about what quantity was actually for supply and what was for personal use. The sentencing judge had not made those findings, which meant the sentencing had miscarried.

On the question of whether drug-motivated offending (that is, committing supply offences to fund one's own habit) operates as a mitigating factor, the Court expressed doubt about earlier cases such as R v Selim, R v Markarian, and R v Mason, to the extent those cases suggested it did. Following R v Henry, the personal drug dependence of an offender does not of itself reduce the objective criminality of supply offences, though it may remain relevant to the assessment of rehabilitation prospects and the structuring of the non-parole period.

The Court found that the appellant's contrition, while genuine, had to be assessed in light of the fact that he committed further offences while on a recognisance and while on bail. Nevertheless, his co-operation with police and his efforts toward rehabilitation were accepted as genuine mitigating factors. The Court also noted that the Judicial Commission's statistics indicated that minimum terms exceeding three years for supply of less than a commercial quantity, upon a plea of guilty, were out of the ordinary.

The Court proceeded to re-sentence the appellant rather than remit the matter. Concurrent sentences were imposed, with the longest term designed to reflect the totality of the criminality across all counts. Special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 were found to exist, justifying a variation to the standard ratio between the sentence term and the non-parole period, on account of the appellant's rehabilitation efforts and the desirability of adequate supervision on release.

Orders Made

  • Sentences imposed below were quashed
  • Count 1 (sale of 1.6 grams of heroin): 2 years' imprisonment
  • Count 2 (possession for supply of 3 grams of heroin, committed while on bail, Form 1 matters taken into account): 4 years' imprisonment with a non-parole period of 2 years; earliest parole eligibility date 12 May 2001
  • Count 3 (single sale of 0.2 grams of heroin): 6 months' imprisonment
  • Count 4 (possession for supply of 3 grams of heroin): 2 years' imprisonment
  • All sentences to commence on 13 May 1999, to be served concurrently

Key Takeaways

  • Where an offender admits that possessed drugs were intended partly for personal use and partly for supply, the sentencing court must make specific findings about what quantity was for supply. Failure to do so constitutes a sentencing error requiring correction on appeal.
  • A statutory deeming provision treating possession as possession for supply does not absolve the sentencing court of the obligation to resolve factual disputes about the extent of supply where those disputes are squarely raised by the evidence.
  • Following R v Henry, the Court of Criminal Appeal cast doubt on earlier decisions suggesting that committing drug supply offences to fund a personal habit operates as a general mitigating factor going to objective criminality. That personal addiction may, however, remain relevant to rehabilitation and the structure of the non-parole period.
  • Special circumstances justifying departure from the standard non-parole period formula can be found where an offender demonstrates genuine rehabilitative efforts and where adequate post-release supervision is desirable.
  • Judicial Commission statistics on sentencing ranges for supply of less than a commercial quantity serve as a reference point, with minimum terms above three years on a plea of guilty sitting outside the ordinary range for offences of this type.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44

Cases
- R v Wong (1999) 108 A Crim R 531
- R v Crombie [1999] NSWCCA 297
- R v Mason [2000] NSWCCA 82
- R v Selim (NSWCCA, 19 May 1998, unreported)
- R v Markarian (NSWCCA, 1 October 1998, unreported)
- R v Henry (1999) 46 NSWLR 346