R v BCC

Case [2006] NSWCCA 130

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:      REGINA v. BCC [2006]  NSWCCA 130

FILE NUMBER(S):
No. 2005/2041

HEARING DATE(S):               Thursday 23 February 2006

DECISION DATE:     27/04/2006

PARTIES:
REGINA v. BCC

JUDGMENT OF:       James J Simpson J Hall J   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          05/11/0470

LOWER COURT JUDICIAL OFFICER:     Woods, DCJ.

COUNSEL:
Crown:  Ms. V. Lydiard
Resp:  Mr. S. Wilkinson

SOLICITORS:
Crown:  S. Kavanagh
Resp: Lloyd Truman Sadiq

CATCHWORDS:
Criminal law - Crown appeal - supply of commercial quantity of ecstasy - whether sentence manifestly inadequate - assistance to law enforcement authorities - prior good character - remorse - good prospects of rehabilitation

LEGISLATION CITED:
Criminal Appeal Act 1912
Drug Misuse & Trafficking Act 1985
Crimes (Sentencing Procedure) Act 1999

DECISION:
Appeal dismissed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2005/2041

JAMES, J.
SIMPSON, J.
HALL, J.

THURSDAY 27 APRIL 2006

REGINA v. BCC

Judgment

  1. JAMES, J:  I agree with Hall, J.

  2. SIMPSON, J:  I agree with Hall, J.

  3. HALL, J: On 6 October 2005, the Director of Public Prosecutions, pursuant to s.5D of the Criminal Appeal Act 1912 appealed the sentences pronounced by the District Court of New South Wales, Sydney District, with respect to the respondent on 9 September 2005.

  4. The respondent pleaded guilty to a charge of supplying a commercial quantity of a prohibited drug, namely, a commercial quantity of ecstasy, the offence having been committed on 26 October 2004.

  5. The charge pursuant to s.25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) carried a maximum penalty for the offence of imprisonment for 20 years and/or a fine of 3,500 penalty units ($385,000).

  6. The history of the proceedings is set out in the Crown’s written submissions which are reproduced below.

  7. The respondent was committed for sentence to the District Court on 18 May 2005 from the Burwood Local Court.

  8. On 3 June 2005, the respondent’s matter was mentioned before the Chief Judge, and the matter was fixed for sentence on 22 July 2005.

  9. On 22 July 2005, evidence was given in closed court of assistance given by the respondent to police (an affidavit of assistance was tendered and marked as Exhibit SC).  The respondent also gave evidence and submissions were made by the Crown and the defence and the matter was then stood over to 26 August 2005.

  10. On 26 August 2005, the sentencing judge adjourned the sentencing hearing to 9 September 2005.

  11. On 9 September 2005, the respondent was sentenced to a term of imprisonment for two years with a non-parole period of 18 months. However, the sentence was suspended pursuant to s.12 of the Crimes (Sentencing Procedure) Act 1999 (NSW) conditionally upon the respondent entering into a bond on the following terms:-

    “•To appear before the Court if called upon to do so at any time during the term of the bond;

    •to be of good behaviour;

    •to reside at a specified address and to advise the Clerk of the Court by pre-paid registered post of any…

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Details
AGLC
R v BCC [2006] NSWCCA 130
Case
[2006] NSWCCA 130
Decision Date

CaseChat Overview and Summary

The appeal before the court involved the respondent who was convicted of supplying a commercial quantity of ecstasy. The Crown, dissatisfied with the sentence imposed, appealed on the grounds that it was manifestly inadequate. The matter was heard by the court which was tasked with determining whether the sentence was sufficiently reflective of the objective seriousness of the offence. The court also needed to consider whether the sentencing judge had appropriately weighed the mitigating factors presented by the respondent, including his assistance to law enforcement, prior good character, remorse, and prospects of rehabilitation.

The court examined the severity of the offence, noting that the penalty for such a crime could reach up to 20 years in prison, given the substantial amount of the drug involved. The court found that the sentencing judge had correctly identified the statutory maximum penalty as a guide for determining the appropriate sentence. However, the Crown argued that the sentence did not adequately reflect the seriousness of the offence, considering the quantity of drugs and the potential impact on public health and safety. The court acknowledged the relevance of these factors but also recognised the mitigating aspects presented by the respondent.

In weighing the mitigating factors, the court noted the respondent's cooperation with law enforcement, his previously good character, and his remorse. The court also considered the prospects of the respondent’s rehabilitation. Despite these factors, the court found that the sentencing judge had appropriately balanced these considerations against the seriousness of the offence. The court concluded that the sentence was not manifestly inadequate as it sufficiently reflected the legislative objectives of punishing the offence and deterring future similar conduct.

The court dismissed the Crown's appeal, affirming the sentence imposed by the primary judge. The decision underscored the importance of considering both the statutory maximum penalty and the mitigating factors in sentencing, ensuring a just outcome that balances the needs of deterrence, punishment, and rehabilitation.

Orders

Orders of the court

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Background

Background to the litigation

The respondent had been arrested on the date of the offence, 26 October 2004, and was held in custody for approximately four months before he was released to bail on 7 March 2005. Statement of facts The statement of facts as found by the sentencing judge in respect of the respondent are set out in the Crown’s written submissions and are as follows:-(a)A taskforce in 2004 focused on drug supply, of which the respondent was not a target.(b)On 26 October 2004, the respondent was parked in a motor vehicle at the McDonald’s Restaurant, Enfield carpark.(c)The targets of police were the co-offenders Smith and He who were also parked in a motor vehicle at the McDonald’s Restaurant.(d)The respondent approached Smith’s parked car, leaned into the car and carried back a plastic bag to his own vehicle.(e)The respondent was seated with his girlfriend in his own vehicle.(f)As police approached the car, the girl dropped the bag onto the ground.(g)Police saw the respondent try to kick the bag underneath the car.(h)The bag was recovered and contained five bundles of pink tablets that totalled 500 tablets (later analysed and found to contain ecstasy).(i)The respondent was then arrested. There is only one ground of appeal in the notice of appeal, namely, that the sentence was manifestly inadequate. It has been submitted on behalf of the Crown that the objective seriousness of the offence was so great that the sentence handed down did not reflect that objective seriousness. The Crown pointed to the fact that the offence carries a penalty of 20 years, the amount involved being not less than the commercial quantity, which is 0.125 kilograms, and the amount involved being 160 grams. Whilst the Crown has observed that this Court has on occasions treated the drug, the subject of the charges in this appeal, as a mid-range drug (see Regina v. Bimahendali [1999] NSWCCA 409 at [14]), reliance was placed upon the observations of Wood CJ. at CL. in that case at [17]:-“Ultimately, the best guide is that given by the legislature as to the available penalty, dependent upon whether the drug in question is more or less than the traffickable or commercial quantity prescribed …” The Crown also referred to observations in Regina v. Peel (1971) 1 NSWLR 247 at 252 wherein it was stated:-“In determining the proper penalty … the fundamental consideration is rather the degree by which, having regard to the maximum penalties provided by the Act in question, the respondent’s conduct would offend against the legislative objective of suppressing the illicit traffic in the prohibited drug.” Similarly, in Regina v. Dang [2005] NSWCCA 430, Howie, J., with whom Studdert, and Whealy, JJ. agreed, stated:-“… this Court no longer approaches 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: Regina v. Nai Poon (2003) 56 NSWLR 284; Regina v. Neale (2004) 138 A. Crim. R. 493.”

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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