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Court of Criminal Appeal 3 May 2000

Regina v Watkins [2000] NSWCCA 151 revised - 11

[2000] NSWCCA 151

Drugs
APPEAL AGAINST INADEQUACY OF SENTENCE.

Citation: Regina v Watkins [2000] NSWCCA 151
Court: NSW Court of Criminal Appeal
Date: 3 May 2000
Judge(s): Foster AJA, Dunford J, Smart AJ

Background

The respondent pleaded guilty in the Sydney District Court to two offences: knowingly taking part in the manufacture of a large commercial quantity of methylamphetamine, and knowingly taking part in the supply of a commercial quantity of ecstasy. The charges arose from a police investigation that captured telephone intercepts and listening device recordings between late 1996 and late 1997.

The sentencing judge, Woods DCJ, imposed a three-year good behaviour bond on the manufacturing charge and an 18-month sentence (with a six-month minimum term) on the supply charge. The respondent had argued she played only a minor role and pointed to significant personal circumstances, including a long relationship with a substantially older husband described as a career criminal, and a history of domestic violence.

The Director of Public Prosecutions appealed on the ground that both sentences were manifestly inadequate.

  • Whether the sentence imposed for the manufacturing charge (a good behaviour bond) was manifestly inadequate given the nature and seriousness of the offence
  • Whether the sentence imposed for the supply charge was manifestly inadequate
  • What weight should be given to the respondent's mitigating circumstances and her level of involvement relative to co-offenders
  • How the principle of parity applied, given that the respondent's husband received a total minimum term of three years for the same offences

Decision

The Court of Criminal Appeal agreed with the Crown that the good behaviour bond imposed for the manufacturing offence was manifestly inadequate. Foster AJA acknowledged the sentencing judge had appropriately recognised the respondent's difficult personal circumstances and her position of vulnerability in relation to her husband. However, the Court held that those factors could not justify a non-custodial outcome for an offence carrying a maximum of life imprisonment.

On the supply charge, the Court was less critical of the original sentence. The sentencing judge had limited findings of fact to what the Crown established beyond reasonable doubt, and the Court declined to second-guess those findings given the judge's advantage of seeing the respondent give evidence. The Court noted it may have shared the sentencing judge's suspicions about the true scope of the offending, but respected the factual findings made.

On parity, the Court took into account that the respondent's husband had received a combined minimum term of three years for the same offences. While the respondent's criminality was reasonably viewed as less serious than her husband's, the Court concluded the gap between their sentences had been made too wide by the bond. Appropriate allowance was made for double jeopardy, the mitigating factors accepted below, and the finding of special circumstances.

Orders Made

  • Appeal allowed
  • Manufacturing charge (first offence): good behaviour bond set aside; replaced with imprisonment for two and a half years, comprising a minimum term of one year (commencing 5 November 1999, ending 4 November 2000) and an additional term of eighteen months (commencing 5 November 2000)
  • Supply charge (second offence): sentence varied to a fixed term of six months (commencing 5 November 1999, ending 4 May 2000), to be served concurrently
  • Respondent to be released on parole at the termination of the minimum term, subject to standard conditions

Key Takeaways

  • A good behaviour bond was held to be manifestly inadequate for a charge of knowingly taking part in the manufacture of a large commercial quantity of methylamphetamine, even where significant mitigating factors existed.
  • Vulnerability arising from a coercive domestic relationship may reduce a co-offender's relative culpability, but does not necessarily justify a non-custodial sentence for serious drug offences carrying a maximum of life imprisonment.
  • The Court of Criminal Appeal applied the parity principle by reference to the sentence imposed on the respondent's husband for the same offences, treating his three-year minimum term as a relevant benchmark.
  • Where a sentencing judge makes factual findings about the scope of an offender's involvement after hearing evidence, an appellate court will be slow to disturb those findings, even where it may harbour doubts about the true extent of the offending.
  • On resentencing following a Crown appeal, the Court recognised the principle of double jeopardy, reducing the sentence that might otherwise have been imposed to account for the respondent facing a harsher outcome on appeal.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 24(2) (manufacture of large commercial quantity of prohibited drug, maximum: life imprisonment) and s 25(2) (supply of commercial quantity of prohibited drug, maximum: 20 years imprisonment)
- Crimes Act 1900 (NSW), s 558 (deferral of sentence on recognisance)