R v Smith

Case [2006] NSWCCA 129

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:      REGINA v. SMITH [2006]  NSWCCA 129

FILE NUMBER(S):
No. 2005/1954

HEARING DATE(S):               Tuesday 21 February 2006

DECISION DATE:     27/04/2006

PARTIES:
REGINA v. KEVIN SMITH

JUDGMENT OF:       James J Simpson J Hall J   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          05/110202

LOWER COURT JUDICIAL OFFICER:     Woods, DCJ.

COUNSEL:
Crown:  Ms. V. Lydiard
Resp:  Ms. A. Francis

SOLICITORS:
Crown:  S. Kavanagh
Resp:  S.E. O'Connor

CATCHWORDS:
Criminal law - Crown appeal - whether sentence manifestly inadequate - supply of a commercial quantity of ecstasy - principles in relation to the determination of a Crown appeal against sentence in the case of young offender (18 years of age)

LEGISLATION CITED:
Criminal Appeal Act 1912
Drug Misuse & Trafficking Act 1985

DECISION:
Appeal dismissed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2005/1954

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

THURSDAY 27 APRIL 2006

REGINA v. KEVIN SMITH

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 filed a notice of appeal pursuant to s.5D of the Criminal Appeal Act 1912 in respect of a sentence imposed by the District Court of New South Wales at Sydney on 8 September 2005.  On that date, the respondent, Kevin Smith, appeared for sentence on a charge of supplying a commercial quantity of a prohibited drug, methylenedioxymethylamphetamine (“ecstasy”) on 26 October 2004 to which charge he had pleaded guilty.

  4. The respondent was sentenced to imprisonment for a term of two years, with a non-parole period of one year, to date from 26 January 2005.  The stated ground relied upon was that the sentence is manifestly inadequate.

    Factual circumstances

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

  6. The respondent had been committed for sentence to the District Court on 7 March 2005 from the Burwood Local Court.

  7. On 20 May 2005, an application was made to join the respondent’s proceedings with his co-offender Fang Li He.  The proceedings were accordingly stood over until 21 July 2005 to be heard with the proceedings against He.

  8. The proceedings were subsequently again stood over on 21 July 2005 to 5 August 2005 and subsequently again until 26 August 2005.

  9. On 26 August 2005, evidence was tendered at the sentencing hearing.   The respondent did not give evidence.  The proceedings were adjourned until 8 September 2005 for sentence to be delivered on that date.

    The sentence

  10. On 8 September 2005, the respondent was sentenced to a non-parole period of 12 months to date from 26 January 2005 and to expire on 25 January 2006 with a parole period to expire on 25 January 2007.  The respondent was accordingly sentenced to a total period of two years.

    Prior sentences

  11. The respondent had been previously sentenced…

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R v Smith [2006] NSWCCA 129
Case
[2006] NSWCCA 129
Decision Date

CaseChat Overview and Summary

In the case of R v Smith, the Crown sought an appeal against the sentence imposed on the respondent, who was convicted of supplying a commercial quantity of ecstasy. The Crown argued that the sentence was manifestly inadequate and contended that undue weight was given to the respondent's subjective features. The Crown cited the decision in Regina v. Harmouche, where the court considered similar factors, including the quantity of drugs supplied, the offender's role, and the deliberate nature of the offending. The Crown argued that these factors justified a more severe sentence.

The legal issues before the court involved determining whether the sentence imposed was manifestly inadequate and whether the primary judge had given undue weight to the respondent's subjective features. The court needed to consider the principles that apply in Crown appeals against sentence, particularly in the context of a young offender. This included evaluating the degree to which the offence offended against the legislative objective of suppressing illicit drug trafficking and the offender's role in the criminal activity.

The court considered the arguments presented by the Crown and reviewed the sentencing principles relevant to Crown appeals. It examined the quantity of drugs involved, the offender's role, the deliberate nature of the offending, and the offender's background. The court concluded that while the respondent's subjective features were relevant, they were not the only considerations in determining an appropriate sentence. The primary judge had balanced these factors appropriately, and the sentence imposed was not manifestly inadequate.

The court dismissed the Crown's appeal and upheld the sentence imposed by the primary judge. The decision underscored the importance of considering both the objective and subjective factors in sentencing, particularly in cases involving young offenders.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Crown further contended that undue weight was given to the respondent’s subjective features.The decision in Regina v. Harmouche In oral submissions the Crown cited this Court’s decision in Regina v. Harmouche [2005] NSWCCA 398. The facts in that case may be shortly stated. The respondent was charged pursuant to s.25(1) of the Drug (Misuse and Trafficking) Act 1985. Between 17 January 2002 and 13 February 2002, he either offered or agreed to supply a total quantity of cocaine in the region of 200 grams. He was on bail at the time of the offence. This is one point of distinction to the present case. The estimated street value of the 200 grams of cocaine was $66,666. The respondent was 19 years of age at the date of the offence, having been born on 14 September 1982. The bail that had been granted on 31 October 2001 related to charges of two offences of supply or knowingly taking part in supply of cocaine. The offence charged under s.25(1) rendered the respondent liable to imprisonment for 15 years and a fine equivalent to 2,000 penalty units. There were some factual circumstances that were similar to the present case. These included:-•The respondent’s role as a re-seller, rather than that of a principal or organiser of others or a financier. He was above the level of a street dealer, but, given the fact that the case had proceeded on the basis of a particular amount being supplied, Hulme, J. (with whom Sully and Latham, JJ. agreed) at [34] stated that these facts did not matter much.•The respondent’s role included the fact that he (or others who were willing to do the same), was an essential cog in the distribution of cocaine to those whose lives it was likely to damage and to the reaping of profits by those who put such profits ahead of the welfare of others and the requirements of the law.•The offending was not the result of some momentary weakness or temptation. The agreed facts and the transcripts made it clear that the offending involved considered, deliberate criminality, day after day for some time. Again, there is a similarity in this respect to the facts of the present matter.•There was evidence from forensic psychologists that the respondent had been raised in a fairly dysfunctional home. In this respect, there is again some similarity to the present case.•The respondent was aged 19 years at the date of the offence and had commenced using cocaine when he was 18 or 19. The respondent was accordingly approximately 18 months older than the respondent in the present case. In Harmouche (supra), Hulme, J. at [37] referred to Regina v. Peel (1971) 1 NSWLR 247 at 268 in which it was said that “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”. Hulme, J. went on to state:-“… where does the respondent’s offending lie in the scale of criminality envisaged by the statutory provision here relevant? Clearly it does not lie at the top. But when regard is had to activity, quantity, knowledge, deliberateness and role, his offending is a long, long way from the bottom of that scale. And this is so even without the aggravating feature of his offending having occurred while he was on bail.”

Ratio Decidendi

Legal Principle Established

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