McAndrew v Regina

Court of Criminal Appeal (NSW)|2006-02-02|Before: Grove J, Rothman J

CITATION: McAndrew v Regina [2006] NSWCCA 12

JUDGMENT OF: Grove J at 1; Rothman J at 20

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - SENTENCE - SUPPLY (DEEMED) COMMERCIAL QUANTITY OF PROHIBITED DRUG (KETAMINE) - PRIOR RECORD NOT A MATTER OF AGGRAVATION - OBJECTIVE OFFENCE SERIOUS - NO LESSER SENTENCE WARRANTED - CRIMINAL APPEAL ACT s 6(3) APPLIED

R v Thompson & Houlton (2000) 49 NSWLR 383 CASES CITED: R. v Walker [2005] NSWCCA 109 R v Wickham [2004] NSWCCA 193 Veen v The Queen (No 2) 1998 164 CLR 465

PARTIES: Jamie Charles McAndrew v Regina

COUNSEL: C. Smith (Applicant) J. Girdham (Respondent/Crown)

SOLICITORS: S. O'Connor (Legal Aid) S. Kavanagh (DPP)

IN THE COURT OF CRIMINAL APPEAL 2005/2022

2 February 2006 JAMIE CHARLES McANDREW v REGINA Judgment 1 GROVE J: This is an application for leave to appeal against severity of sentence imposed by Hosking DCJ at Sydney District Court. 2 On 4 March 2005 the applicant was sentenced on a charge of supplying not less than the commercial quantity of a prohibited drug (ketamine) to imprisonment consisting of a non-parole of four and a half years commencing on 21 July 2004 and expiring on 20 January 2009 and a total term of seven and a half years commencing on the first mentioned date. 3 Taken into account pursuant to the Form 1 procedure was an offence of possessing another prohibited drug, methylamphetamine. 4 On 21 July 2004 police obtained a search warrant for residential premises occupied by the applicant. Upon arrival the applicant declined to open the door and it was forced by use of a sledgehammer. Thereafter police commenced their search and the applicant indicated that he would point out to police where the material, which he apprehended they were searching for, was located. Accordingly, the drugs were seized and the applicant arrested and taken to the police station where he declined to be electronically interviewed. He indicated his plea of guilty at the Local Court. 5 The applicant had a prior record, significant items being convictions in relation to cultivating cannabis in 1992, 1993 and 1999 and also for supplying cannabis in 1999 in respect of which offence he was sentenced to imprisonment for a minimum term of nine months with an additional term of six months. 6 The applicant is a disabled pensioner aged thirty-seven years. His disability relates to renal failure and there was evidence before his Honour that whilst in custody prior to sentence the applicant had been taken three times a week for dialysis. It is clear that his custody will be rendered more than usually onerous by the requirements of treatment for this condition. His Honour was aware of these circumstances and expressly took them into account. 7 It is to be noted that for the offence there is a prescribed standard non-parole period of ten years directly applicable where there is conviction after trial. Nevertheless the parliamentary prescription offers some relevant guidance and as I have observed, the non-parole period set by his Honour is less than half the standard non-parole period. 8 The first ground of appeal is focussed upon an observation in his Honour's remarks on sentence: "….in terms of S21A factors there are not many aggravating factors. The factors that I have mentioned that he has got a record of previous convictions including for this kind of offence is an aggravating factor…."

9 This Court has often been required previously to comment upon the unfortunate inclusion of prior record in the statutory provision which must be read subject to the qualifications of the law including the circumstance that, in general, the existence of a prior record is a factor which deprives leniency that might otherwise be sought rather than aggravating the circumstances of the offence: R v Wickham [2004] NSWCCA 193 and R v Walker [2005] NSWCCA 109. 10 As observed, the applicant had numerous prior convictions related to drugs and the need for personal deterrence arising therefrom in accordance in the principles discussed in Veen v Queen (No 2) 164 CLR 465 are applicable and do not require repetition. 11 His Honour's choice of language may not be ideal to the circumstances. I am unpersuaded that analysis gives rise to a call for intervention by this Court. Mr Smith of counsel has pointed out that his Honour twice made reference to the existence of prior convictions, but I cannot see, in the context of his Honour's remarks, that this is a matter of any consequence. 12 The second ground of appeal complains that the sentence is manifestly excessive. It is true that the learned sentencing judge was unable to make a finding as to the applicant's role or relationship to the Ketamine but the objective circumstance was that he was in possession of a commercial quantity of this drug. In fact the quantity exceeded the commercial level by a factor of more than twice. 13 However, Mr Smith has drawn our attention specifically to some remarks made by his Honour concerning the approach which he took. His Honour said: "Ketamine is a drug which has not been a prohibited drug at least under the terms of the Drug Misuse and Trafficking Act for very long. I think it was first included in the schedule to the Drug Misuse and Trafficking Act some time in 2003. Therefore there are few statistics available or comparable cases for me to get any sentencing guidance from. I do have, as I say, of course the maximum penalty. I do have the standard minimum non-parole period both of which, as I have said, are indicators.

Ketamine appears to me to be a drug of the order of seriousness of drugs such as amphetamine and some assistance is gained by looking at statistics in relation to commercial supplies or supplies in the commercial quantity of drugs of that kind." 14 It has been pointed out by counsel that the prescribed commercial quantities of amphetamines and ketamine are in fact different. It seems to me that it was inappropriate for his Honour to look at statistics regarding amphetamine for guidance in this case. 15 Our attention is also drawn to some remarks of Howie J in R v Dang [2005] NSWCCA 430 where his Honour said: "This Court no longer approached the evaluation of the seriousness of a particular supply offence by distinguishing between different types of drugs according to the perceived dangerousness of the drug being supplied. Rather the Court has stressed that the appropriate consideration is the relevant statutory regime and the maximum penalty prescribed for the offence, R v Nai Poon 2003 56 NSWLR 284, R v Neale 2004 138 A Crim R 493. The Drug Misuse and Trafficking Act does not distinguish in any way between cocaine and methylamphetamine the maximum penalty for offences involving the two drugs is the same, as are the prescribed quantities." 16 As has been mentioned, the prescribed quantities for amphetamine and ketamine are in fact not the same. It seems to me that it would have been inappropriate to look at statistics for the purpose of guidance concerning this matter at offences that involved amphetamines. Nevertheless in the end what must be examined is whether or not the sentence ultimately imposed is such that a different sentence should be imposed. 17 The applicant also complains that his Honour did not specify the discount which he granted to the applicant on account of his plea of guilty. He was not obliged so to do. Reconstruction of his sentence would suggest that he had in mind a total sentence of 10 years which, as I have previously stated, happens to be the prescribed standard non-parole period, rather than total sentence if such is applicable, and this has been reduced to seven and a half years indicating a discount of 25 per cent, being the maximum of the suggested range in The Queen v Thompson and Houlton (2000) 49 NSWLR 383. 18 His Honour's remarks on sentence demonstrate that he overlooked no relevant matter, and although the applicant's plight attracts sympathy I am unable to perceive that his Honour has not given to the applicant as full a measure of mitigation as was reasonable to the circumstances. It was submitted that by reason of the applicant's illness he had found himself and his family financially struggling but as the Crown Prosecutor has observed, many families struggle on government benefits without resorting to criminal behaviour. 19 In the end the question for this Court is not whether or not in any way his Honour may have had reference to an incorrect analogy, but whether or not, in the view of this Court, some other sentence should be imposed. I am of opinion that the sentence imposed was entirely appropriate to the facts and circumstances. I would grant leave to appeal against sentence but dismiss the appeal 20 ROTHMAN J: During the course of argument counsel for the applicant referred the Court to a judgment of mine in DBN [2005] NSWCCA 435. I reiterate the comments made at paragraphs 28 and 29, and I consider that this case, like that, is one where the errors, if any, in the application of s 21A of the Crimes Sentencing Procedure Act seem to have had little or no effect on the sentence ultimately passed. With that additional remark I would agree with the reasons of his Honour Grove J and the orders that he proposes 21 GROVE J: The orders of the Court therefore will be as I proposed.

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Judgment (14 paragraphs)

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