R v Sewell

[2002] NSWCCA 453

CITATION:	R v Sewell [2002] NSWCCA 453
FILE NUMBER(S):	CCA 603204/02
HEARING DATE(S):	11/11/02
JUDGMENT DATE:	11 November 2002
PARTIES :	Regina Bradford Demainbray Sewell
JUDGMENT OF:	Wood CJ at CL at 1; Dowd J at 14; Bell J at 15

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	01/21/0329
LOWER COURT JUDICIAL OFFICER :	Balla DCJ

COUNSEL :	W G Dawe QC (Crown) P Byrne SC
SOLICITORS:	S E O'Connor D J Humphreys
CATCHWORDS:	CRIMINAL LAW - appeal against severity of sentence - Supply - methylamphetamine - cannabis - appeal dismissed
LEGISLATION CITED:	Drug Misuse and Trafficking Act 1985
CASES CITED:	Regina v Bernath 1997 1 VR 271 Regina v Crombie [1999] NSWCCA 297 Regina v Kirikian [2002] NSWCCA 422 Regina v Selim NSWCCA 19 May 1998 Regina v Simpson (2001) 53 NSWLR 704 Regina v Ziggy Hauser, NSWCCA 11 December 1997
DECISION:	Leave to appeal granted. Appeal dismissed.

- 2 -IN THE COURT OF

60324/02

WOOD CJ at CL
DOWD J
BELL J

Monday 11 November 2002

Regina v Bradford Demainbray Sewell

Judgment

1 WOOD CJ at CL: The applicant seeks leave to appeal from the sentences which were imposed by her Honour Balla DCJ in the District Court, on 27 May 2002, in relation to three offences of supplying a prohibited drug pursuant to s 25 of the Drug Misuse and Trafficking Act 1985.

2 The applicant was convicted of two of those offences, which related respectively to the deemed supply of 3.68 grams of methylamphetamine, and 42.5 ecstasy tablets, having a value of between $1260 and $1680 following trial. He pleaded guilty to the remaining charge involving 42.6 grams of cannabis leaf. He was sentenced to a fixed term of two years in relation to the methylamphetamine offence, to four years with a non-parole period of two years for the ecstasy offence, and to a fixed term of eighteen months for the cannabis offence.

3 The facts giving rise to the offences, as well as the subjective circumstances of the applicant, are sufficiently set out in the reasons for sentence in which her Honour comprehensively and correctly, in my view, took into account all relevant matters, including the applicant’s remorse, his cooperation with police, and the fact which was pressed in support of this application, that he had been making positive efforts since his arrest to change his lifestyle.

4 In substance, the applicant submits that error occurred in her Honour’s assessment of the relative seriousness of the offences, given the limited quantity of drugs involved; in not making sufficient allowance for the circumstance that the applicant was a user of both ecstasy and amphetamine; in assuming that, as a dealer, exceptional circumstances needed to be established before a non-custodial sentence could be imposed; and in imposing a sentence that was manifestly excessive for an offence involving cannabis leaf.

5 In support of the first of these propositions, comparison was invited with cases involving the importation of large quantities of ecstasy tablets, such as Regina v Ziggy Hauser, NSWCCA 11 December 1997, which it was appropriately submitted were in a totally different league. That is clearly correct but so far as I can see, little follows from it. The sentencing judge did not seek to equate the applicant’s criminality with that of those involved in such cases.

6 It was also submitted, having regard to the limited quantity of the drugs involved, that each matter could have been dealt with in the Local Court. While that is correct, and while that was a matter properly to be taken into account both by her Honour and by us on appeal, it is not the law that the maximum sentences available were those that could have been imposed in the Local Court. Regina v Crombie [1999] NSWCCA 297. The sentencing exercise in this case needed to be approached by reference to the fact that the applicant had three separate prohibited substances in his possession, and that such possession was either found by the jury, or admitted by the plea, to have been for the purposes of supply.

7 In relation to the position of the applicant as a user, that was a factual issue left to the jury and rejected by it, so far as it had been asserted that he had the drugs in his possession solely for personal use. It is obvious that the sentencing judge approached the case upon the basis that the drugs were in his possession for supply.

8 This Court is a court of error, not a factual review, and I see no justification for coming to any different conclusion. Indeed, that invited, namely that by and large the ecstasy was for the applicant’s own use, would amount to pure speculation. Particularly is that so, when attention is paid to the evidence concerning the drugs, which were contained in a carry bag which the applicant had with him when stopped by police, and concerning the discovery of resealable plastic bags and a set of scales in his premises.

9 So far as it was submitted that the applicant’s criminality was mitigated by the circumstance that he had been dealing to feed an addiction, a matter which can be taken into account in appropriate circumstances, as noted in Regina v Bernath 1997 1 VR 271, and Regina v Selim NSWCCA 19 May 1998, he faces the problem that this was the very opposite of the evidence which he gave, to the effect that all of the drugs were for his own use and that he was not selling. Moreover, there was nothing in the evidence to suggest that he had an addiction as distinct from a habit, albeit a longstanding one, of using recreationally on weekends.

10 Having regard to the nature of the drugs involved and the fact that there were three offences, I am unpersuaded that the case was one which would have been appropriate for a non-custodial sentence.

11 In order to succeed, the applicant must show that some sentence other than that imposed was warranted in law and should have been passed. Regina v Simpson (2001) 53 NSWLR 704 at 722-721 and Regina v Kirikian [2002] NSWCCA 422, at para 24.

12 Although the sentences were at the top of the range, particularly for the cannabis offence, I am not persuaded that this threshold has been passed, or that the applicant’s subjective circumstances were not properly catered for by a particularly favourable non-parole period.

13 I would grant leave to appeal but I would dismiss the appeal.

14 DOWD J: I agree.

15 BELL J: I also agree.

16 WOOD CJ at CL: The order of the Court will therefore be as I have proposed.

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