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Court of Criminal Appeal 21 November 2001

REGINA v SHAW [2001] NSWCCA 498 revised - 30

[2001] NSWCCA 498

Drugs
SENTENCE DRUG DEALING RELEVANCE OF LEGISLATIVE SCHEME

Citation: Regina v Shaw [2001] NSWCCA 498
Court: NSW Court of Criminal Appeal
Date: 21 November 2001
Judge(s): Barr J, Adams J

Background

The applicant was convicted in the District Court on one count of supplying amphetamine, specifically 0.41 of a gram sold for $50. He had originally been charged alongside six other drug supply counts under the Drug Misuse and Trafficking Act 1985, but the jury acquitted him on all but the single minor supply count.

The applicant's presence in the District Court arose not from any election by the Crown to elevate the minor charge, but because it was bundled together with the more serious offences. Had the count stood alone, it would inevitably have been dealt with in the Local Court, which carries a two-year jurisdictional ceiling for imprisonment.

The District Court judge sentenced the applicant to 30 months imprisonment with a non-parole period of 22.5 months. The applicant sought leave to appeal that sentence to the Court of Criminal Appeal.

  • Whether the sentencing judge erred by effectively sentencing the applicant as though he had committed additional offences of which he had not been convicted.
  • Whether the sentencing judge gave adequate weight to the fact that the offence was one that would, by itself, have been dealt with in the Local Court.
  • Whether the sentence imposed was manifestly excessive in all the circumstances, including the applicant's significant medical condition.

Decision

The Court found that the sentencing judge had, in substance, sentenced the applicant as a continuing dealer rather than as a person convicted of a single supply occasion. The reference to s 25A of the Drug Misuse and Trafficking Act (which addresses repeat supply over 30 days) was, in the circumstances, entirely irrelevant and suggested the judge was treating the offence as representative of broader dealing conduct. The Crown had not charged the applicant in relation to other material found on his person, and it was not open to sentence on the basis that he had committed those further offences.

The Court reaffirmed the principle, drawn from Regina v Crombie and Regina v Lennan, that a sentencing court must take into account that an offence could have been dealt with in the Local Court, though this factor need not always carry determinative weight. Here, however, the offence was not merely one that could have been handled in the Local Court. It was one that would inevitably have been heard there had it not been procedurally combined with more serious charges. The Court characterised this as a "most significant consideration" that the sentencing judge had understated.

The Court concluded that the 30-month sentence was manifestly excessive. The legislature's decision to cap Local Court jurisdiction at two years for offences of this kind was part of a coherent sentencing scheme that must be reflected in the exercise of the sentencing discretion, even when the matter ends up in a higher court by accident of procedural consolidation. The applicant's serious cardiac condition, including a heart attack while in custody and a need for a heart transplant, was accepted as constituting special circumstances under the Crimes (Sentencing Procedure) Act 1999, warranting a longer parole period relative to the non-parole term.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal allowed.
  • The District Court sentence quashed.
  • Sentence substituted: two years imprisonment commencing 28 November 2000, with a non-parole period of 12 months (release on parole from 27 November 2001).
  • Condition of parole: supervision by the Probation and Parole Service.

Key Takeaways

  • A sentencing court must not treat an offender as though guilty of charges on which they were acquitted or never charged, and any inference that a judge did so constitutes a legal error in the sentencing process.
  • Where an offence arrives in the District Court only because it was procedurally joined with more serious charges (rather than through any Crown election to elevate it), the legislature's Local Court jurisdictional limit carries particular weight as part of the overall drug sentencing scheme.
  • The Court of Criminal Appeal confirmed that the principle in Regina v Crombie does not compel a sentencing judge to treat the Local Court limit as a ceiling, but does require genuine engagement with it as a relevant factor in the exercise of sentencing discretion.
  • Distinguishing between an offender who has shown a general propensity to deal in drugs (permissible to consider) and sentencing on the basis that the charged offence is merely representative of ongoing dealing (not permissible without conviction) is a distinction sentencing courts must maintain carefully.
  • Serious medical conditions, including cardiac illness requiring a transplant, can constitute special circumstances under the Crimes (Sentencing Procedure) Act 1999, affecting the ratio between the non-parole and overall sentence terms.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), including s 25A
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Regina v Crombie [1999] NSWCCA 297
- Regina v Lennan [2001] NSWCCA 17