Simpson v Regina

9 His Honour approached the sentencing task in a conventional manner. He made a number of findings as to the applicant's subjective case. In particular he noted in his remarks on sentence: a) The applicant had no previous convictions; b) He had shown remorse by his pleas and entering into the MERIT programme; c) His successful involvement in that programme; d) That in the past he had shown he was capable of, and did, contribute significantly to the welfare of the community and there were real prospects he could contribute to the community in the future; e) A former mayor and community relations officer gave evidence highly commendatory of the applicant, expressed optimism for his future and that he may contribute to the community once again; f) He was unlikely to re-offend; g) He has and continues to have good prospects of rehabilitation; h) He displayed courage in giving evidence at the sentencing hearing; i) He pleaded guilty at the earliest opportunity. 10 The applicant has submitted that his Honour erred in that he did not refer in his remarks on sentence to the fact that the applicant was not cross examined on his evidence, had obtained employment and had set up his own small business, was ashamed of his actions, that he had initiated his attendance in the MERIT program and that his Honour had not referred to the report of the psychiatrist or to the opinion of the psychiatrist and Mr Moore that a non custodial sentence was called for. 11 It is not necessary that every matter considered by a sentencing Judge be referred to in the remarks on sentence. As his Honour sentenced the applicant upon completion of the evidence and submissions he would undoubtedly have had the matters referred to in the preceding paragraph in mind at that time and, of course, the determination of the appropriate sentence is a matter for the sentencing Judge, not the witnesses. 12 His Honour gave the applicant credit for the subjective matters, but, as he said in his remarks on sentence, he had to also bear in mind "the other side of the coin". 13 On "the other side of the coin" was the fact that the applicant had pleaded guilty to the supply of prohibited drugs. Although there was no evidence of actual supply, supply was deemed pursuant to the operation of s 29 of the Act. The cannabis found was more than twice the trafficable quantity, the methylamphetamine was almost 50% more than the trafficable quantity and the methylenedioxymethylamphetamine was more than 14 times the trafficable quantity. 14 There was evidence the applicant had a significant drug problem at the time but, as his Honour observed, there had been no attempt to claim that the drugs were all in relation to some personal use or need or to otherwise attempt to reduce the severity of the offences. 15 As the applicant had pleaded guilty to a deemed supply of prohibited drugs it was not open to his Honour to deal with the matter on any basis other than that the applicant had the drugs in his possession for the purpose of supply. In this context it was observed by his Honour that the offences to which the applicant had pleaded guilty impact upon the very people in the community that the applicant had done so much to help in the past. 16 In the case of offences of supplying prohibited drugs the need for general deterrence is high. There is an established rule that for such offences a full time custodial sentence must follow unless exceptional circumstances can be shown - see Regina v Yerkovic [2000] NSWCCA 281 at [13], Regina v Ha [2004] NSWCCA 386 at [20] and the cases discussed therein. Periodic detention is not usually considered an appropriate sentence with prohibited drug supply offences. 17 His Honour referred to that principle. In doing so he referred to "particular circumstances" rather than "exceptional circumstances". This was presumably but a slip of the tongue. If it was not, it would appear to connote a lesser test than that required by "exceptional circumstances".

18 His Honour discounted the sentence by 25% for the plea of guilty. He found special circumstances by reason particularly that it would be the applicant's first sentence of imprisonment, and that he had exceptional prospects of continuing to contribute to the community. The finding of special circumstances was reflected in a significant variation of the statutory non-parole ratio. 19 It is apparent from the sentence imposed by his Honour that he concluded the applicant's subjective case was not such as to overcome the need for general deterrence by way of a custodial sentence. In my opinion it was open to his Honour to so conclude.

20 As the High Court observed in Markarian v R [2005] 215 ALR 213 at 221: … a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion.

21 An appellate Court interferes only if it be shown that the sentencing judge was in error - R v Tait (1979) 46 FLR 386 at 388, and then only if it forms the positive opinion that some other and more lenient sentence is warranted in law and should have been passed - R v Simpson (2001) 53 NSWLR 704 at [79]. 22 In the present case the decision that a custodial sentence was appropriate and the length of the sentence imposed represent the conclusion of an experienced District Court Judge who had the benefit, which this Court does not have, of hearing the applicant and his witness give evidence. In my opinion the sentence represents an exercise of the sentencing discretion which was open to his Honour and one with which this Court should not interfere. Accordingly, whilst I would grant leave to appeal, I would dismiss the appeal.

Orders 23 I propose the following orders: 1. Leave to appeal granted. 2. Appeal dismissed.

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