Stuart Leslie WOOD v The Queen - [2008] NSWCCA 257

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Stuart Leslie WOOD v R [2008] NSWCCA 257

FILE NUMBER(S):
2007/5831

HEARING DATE(S):
24 October 2008

JUDGMENT DATE:
5 November 2008

PARTIES:
Stuart Leslie WOOD (Applicant)
REGINA (Respondent)

JUDGMENT OF:
McClellan CJ at CL Nettle AJA Simpson J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
07/51/0198

LOWER COURT JUDICIAL OFFICER:
Black DCJ

LOWER COURT DATE OF DECISION:
14 December 2007

COUNSEL:
A Francis (Applicant)
J Girdham (Respondent)

SOLICITORS:
S O'Connor (Legal Aid Commission)
S Kavanagh (Solicitor for Public Prosecutions)

CATCHWORDS:
CRIMINAL LAW
appeal against severity of sentence
supply prohibited drugs
pleas of guilty
objective seriousness of the offence
whether insufficient weight given to subjective circumstances
utility of statistics on sentencing
appeal allowed

LEGISLATION CITED:
Drug Misuse and Trafficking Act 1985
Crimes (Sentencing Procedure) Act 1999

CATEGORY:
Principal judgment

CASES CITED:
R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
R v Way [2004] NSWCCA 131; 60 NSWLR 168
R v Letteri, (NSWCCA, 18 March 1992, Unreported)
R v Engert (1995) 84 A Crim R 67
R v Scognamiglio (1991) 56 A Crim R 81
R v Champion (1992) 64 A Crim R 244
R v Wright (1997) 93 A Crim R 48
R v Fahda [1999] NSWCCA 267
R v Benitez [2006] NSWCCA 21
R v Wong; R v Leung [1999] NSWCCA 420; 48 NSWLR 340
Wong v The Queen; Leung v The Queen [2001] HCA 64; 207 CLR 584

TEXTS CITED:

DECISION:
By majority:
(1) Leave to appeal granted;
(2) Appeal allowed, sentence imposed on count 1 quashed;
(3) In lieu thereof, the applicant be sentenced to imprisonment comprising a non-parole period of 3 years commencing 16 November 2005 and expiring on 15 November 2008, with a balance of term of 2 1/2 years to expire on 15 May 2011;
Sentences imposed in respect of counts 2 & 3 confirmed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2007/5831
McCLELLAN CJ at CL
NETTLE AJA
SIMPSON J
5 November 2008

Stuart Leslie WOOD v R

Judgment

McCLELLAN CJ at CL: I have had the considerable benefit of reading in draft the judgment of Simpson J. I regret that I do not agree with her Honour’s conclusion.
Her Honour has drawn attention to the sentencing statistics which have been collected for the relevant offences. The statistics maintained by the Judicial Commission are a valuable body of information and can provide guidance to sentencing judges. They can give an indication of the range of sentences which courts have imposed over time. However, notwithstanding the contribution which the statistics can make to consistency it is important in each case to consider the individual offence and the offender’s relevant statutory regime when sentencing in a particular case. Unless this is done in each case there is a risk that reliance on the statistics will inappropriately confine the range of sentences for particular offences. The result may be that both the maximum sentence and, where relevant the standard…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] NSWCCA 257
Decision Date: 5 November 2008

CaseChat Overview and Summary

The case of Stuart Leslie Wood v The Queen involved the appellant, Stuart Leslie Wood, appealing against the severity of his sentence for supplying prohibited drugs. The appeal was heard in the Supreme Court of Queensland. The primary issue before the court was whether the sentencing judge had sufficiently considered the subjective circumstances of the appellant when determining the severity of the sentence. The court was also required to decide if the judge had given appropriate weight to the objective seriousness of the offence, particularly considering the large commercial quantity of drugs involved.

The court found that the sentencing judge had indeed given substantial consideration to the appellant's subjective circumstances, including his background, personal responsibilities, and mental health conditions. However, the court held that the sentencing judge had not adequately balanced these subjective factors against the objective seriousness of the offence. The appellant had supplied a large commercial quantity of ecstasy and ketamine over a short period, which indicated a significant involvement in drug trafficking. Despite the appellant's personal circumstances, the court held that these factors did not sufficiently mitigate the gravity of the offence. The use of statistics in sentencing was considered to provide a useful reference, but the ultimate decision had to be based on the unique circumstances of the case.

Given the above, the appeal was allowed. The court determined that the sentence was excessively severe and did not appropriately balance the objective and subjective factors. Consequently, the case was remitted to the sentencing court for reconsideration in light of the court's findings.

Orders

Orders of the court

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Background

Background to the litigation

In structuring the sentences as he did, his Honour found, pursuant to section 44(2) of the Sentencing Procedure Act, that special circumstances existed justifying departure from the ratio between the head sentence and the non-parole period there specified.The facts The relevant facts are in very short compass. All offences were committed over a period of one month, in September and October 2005, in Kingscliff in northern NSW. On the first occasion, 29 September, the applicant met a person who happened to be an undercover police operative at a hotel. He agreed to supply 1,000 ecstasy tablets, and almost immediately thereafter handed the operative a bag containing 999 tablets of the drug, together with a small amount (0.39 grams) of methylamphetamine, for which he made no charge. The undercover operative handed the applicant $16,500 in cash. The quantity of ecstasy was 321.4 grams. Pursuant to s 3(1) and Schedule 1 of the Drug Misuse Act, a commercial quantity of ecstasy is between 0.125 grams and up to 0.5 kilograms, which quantity constitutes the large commercial quantity. On the second occasion, 11 October, the undercover operative contacted the applicant and asked him to supply another 1,000 tablets. The applicant agreed, but told him that he could only supply 400 at that time and would attempt to obtain the remaining 600. No actual supply took place and no money changed hands. On the third occasion, 27 October, the undercover operative again contacted the applicant, with the same request for 1,000 tablets. Later that day the applicant supplied 851 tablets of ketamine (343.2 grams) and was again paid $16,500.Subjective circumstances The applicant did not give evidence in the sentencing proceedings. Evidence of his subjective circumstances was provided to Black DCJ in the form of letters written by himself and his mother, a pre-sentence report, a psychiatric report of Dr John Roberts, and several testimonial letters. The case they put was a strong one. The applicant was born in October 1975 and was 30 years of age at the time of his offending. He has no criminal record. His early life was unremarkable, although his parents, both of whom had issues with alcohol, separated when he was quite young and this caused him to take on additional responsibility in caring for his younger brother. He seems to have coped quite well with this disruption to his life. He is a married father of two small sons. He lives with his family in Currumbin, Queensland; he and his wife are in the process of purchasing their home. He had had employment in the construction industry until about 2 years prior to his arrest. At that time he suffered a back injury at work, and thereafter was in receipt of social security benefits. He had occasionally used illicit drugs – marijuana, ecstasy, amphetamines, cocaine and anabolic steroids – but was certainly not addicted and was more committed to a healthy lifestyle. Dr Roberts considered that the history he took suggested the existence of depressive symptoms over a period (prior to his arrest) with some hint, not substantiated, of a bipolar disorder. The history suggests that the depressive symptoms were attributable to the work injury. He had no treatment for this condition until he was in custody, after his arrest.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

CLELLAN CJ (dissent)

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Ratio Decidendi

Legal Principle Established

Established by:

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