REGINA v SHAW [2001] NSWCCA 498 | Case summary

1 BARR J: The Court is in a position to give judgment now. I will ask Justice Adams to give the first judgment. 2 ADAMS J: The applicant was sentenced on one count of supplying amphetamine, being .41 of a gram for $50. He was sentenced to a term of imprisonment for 30 months with a non-parole period of twenty-two and a half months. 3 This was an offence which would, if it stood by itself, have inevitably been determined in the Local Court which has an applicable jurisdictional limit of two years' imprisonment. However, the applicant found himself in the District Court charged with the offence on indictment because he was also charged with six other counts involving the supply of drugs under the Drugs Misuse and Trafficking Act 1985. One of those counts alleged a supply of cannabis leaf. The second count alleged supplies on three or more separate occasions over a 30-day consecutive period of the drug methylamphetamine under s 25A of the Act. Counts 3, 4 and 5 alleged a supply of a deal of methylamphetamine. Count 6 was that upon which, as I have mentioned, the applicant was convicted. Counts 3, 4, 5 and 6 were alternatives to count 2. 4 On the occasion to which count 6 referred, the applicant was, as the jury must have accepted, wearing a waist bag in which there were other packets of what appeared to be white powder and also some green material in small plastic bags. It appears that his Honour concluded that the white powder was amphetamine and the green material was cannabis, although his Honour's judgment is susceptible of some ambiguity in this respect. 5 His Honour sentenced the applicant upon the basis that he was "a small time dealer in amphetamines and it would appear in the past he has dealt in cannabis." 6 The sentencing process is always complicated where offences other than that for which an offender is being sentenced are shown to have been committed. Conventionally this is dealt with by sentencing the applicant for the offence in question without assumptions as to it being an isolated event. The line between that and sentencing upon the basis that he has actually committed further offences in respect of which he has not been convicted is a thin one and sometimes difficult to clearly discern. 7 Having regard to the way in which his Honour dealt with this problem I have regrettably come to the conclusion that his Honour did sentence the applicant upon the basis that he was guilty of other offences or another offence in relation to the material on his person at the time he committed the offence of which he was convicted. In this regard, I take into account the following observation by his Honour - "I have dealt recently with people who have been convicted in relation to counts under s 25A and the sentence that I give him is less than the one that I would have given if he had been convicted under the 25A count.." 8 Section 25A was completely irrelevant in the circumstances of this case and I consider that it is likely that his Honour in fact was sentencing this man as a dealer instead of as a person who had supplied on one occasion, though he appeared to be in possession of other possibly prohibited drugs. 9 The matter may be tested in this way. Suppose the Crown had submitted to his Honour that he should sentence the applicant not only in respect of the deal supplied to the undercover police operative but also in respect of the material in his possession. Such a submission must plainly have been rejected, the Crown not having charged the applicant in respect of that material. 10 There was other material, however, which indicated that this single offence was not an isolated one and this is that the applicant had previously been convicted of supply of prohibited drugs and that this particular offence occurred but five weeks or so after his release from a term of imprisonment served for precisely such a crime. However, there is a fundamental distinction between dealing with an offender upon the basis that he has shown himself ready to deal in drugs from time to time and another for sentencing on the basis that the offence for which he has been convicted is but representative of continuing to deal. 11 Having regard to the sentence which his Honour imposed, I consider that his Honour sentenced the applicant upon the latter rather than upon the former basis. 12 The significance of the fact that the offence could have been dealt with in the Local Court has been the subject of authority in this Court: Regina v Crombie [1999] NSWCCA 297 and Regina v Lennan [2001] NSWCCA 17. In the judgment of James J with whom Whealy J agreed, his Honour said (par 16) - "... The principle stated by the Chief Judge in Crombie and by judges of this Court in other cases goes no further than to require a sentencing judge in the exercise of his sentencing discretion to take into account that the prisoner could have been dealt with in the Local Court, if the prosecuting authority had not elected otherwise. If a sentencing judge takes this factor into account, the sentencing judge is not necessarily required to give it much or any weight. In the present case the sentencing judge gave his reasons for not giving the factor any weight and I would not hold that he was in error in his reasoning process or in his conclusion." 13 In this case his Honour adverted to the circumstance that the applicant "could have" been dealt with in the Local Court and said that he took this matter into consideration, although he was not bound by the jurisdictional limit which affected the Local Court. In fact, with respect, this somewhat understated the case. He would have been dealt with in the Local Court had this matter stood by itself. There was no election by the Crown in relation to this particular offence. It simply happened to be bundled together with other offences which made it necessary that they be determined in the District Court. In the result, as I have mentioned, the applicant was acquitted of those other offences, leaving the present offence. 14 In the circumstances, this seems to me to be a most significant consideration. The sentencing scheme involving the Drugs Misuse and Trafficking Act 1985 and the differentiating jurisdictions specified by the legislature as appropriate to deal with the range of crimes involving drugs must be reflected in sentencing decisions, although of course the extent to which these considerations affect the sentence will depend upon each individual case. In this case it may fairly be said, however, that the legislature considered that it was appropriate that a jurisdictional limit of two years should apply to a person who committed it as distinct from a maximum sentence of fifteen years which would otherwise apply if the matter was dealt with in the District Court. 15 Recognising the jurisdictional limit in the Local Court as part of the legislative sentencing scheme is, to my mind, a significant element in the sentencing process where, by accident as it were, a particular offence otherwise appropriate to be dealt with and which inevitably would have been dealt with in the Local Court comes to be considered in the District Court. 16 The sentence here, as I read the statistics, although they must be dealt with carefully, implies that his Honour considered this to be in the middle of the range for supplying methylamphetamine but it is obvious from what I have said that it was very much towards the bottom of the range and it seems to me, with respect, that the only inference that can be drawn from the language of his Honour's judgment is that either his Honour started from a very high number indeed or else did not really give any sufficient weight to the circumstance that this was a matter, first of all, which was a single offence and, secondly, that it would in the normal course have been dealt with in the Local Court . This conclusion is reinforced by the observations by his Honour about s 25A of the Act. 17 I am persuaded, therefore, that his Honour erred. I am also persuaded that the sentence imposed by his Honour was manifestly excessive in all the circumstances. 18 We have been supplied with information concerning, in particular, the applicant's medical condition which shows that he suffers from recurrent symptoms associated with his heart condition including angina attacks, breathlessness, fainting and nausea, that he suffers from constant headaches as a side effect of his medication, that he had a serious heart attack whilst in custody and, as appears to have been accepted by his Honour at the sentencing hearing, needs a heart transplant. I am satisfied that these matters are special circumstances within the meaning of the Crimes (Sentencing Procedure) Act 1998. 19 I would propose that leave to appeal from the sentence below be granted, that the appeal be granted, that the sentence imposed in the District Court be quashed and there be substituted therefore a sentence of two years' imprisonment to commence on 28 November 2000 and that the applicant be released on parole on 27 November 2001, namely, a non parole period of 12 months. I would direct as a condition of parole that he be under the supervision of the Probation and Parole Service in relation to his period of parole. 20 BARR J: I agree. The orders of the court, therefore, are that leave to appeal against the sentence is granted. The appeal is allowed. The sentence appealed from is quashed and there is substituted a sentence in the manner and the form specified by Justice Adams.

REGINA v SHAW

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