New South Wales Court of Criminal Appeal CITATION : R v Crombie [1999] NSWCCA 297 FILE NUMBER(S) : CCA 60851/98 HEARING DATE(S) : 15/9/99 JUDGMENT DATE : 15 September 1999 PARTIES : Regina (NSW) John William Crombie JUDGMENT OF : Wood CJ at CL; Simpson J at 24 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/51/0194 LOWER COURT JUDICIAL OFFICER : Ducker DCJ COUNSEL : Crown: R. Ellis Applicant: C.Craigie SOLICITORS : S.E. O'Connor T.A. Murphy CATCHWORDS : CRIMINAL LAW - sentencing - appeal against sentence for drug offences - whether manifestly escessive - whether sufficient allowance made for fact that case could have been prosecuted in Local Court DECISION : Leave to appeal granted. Appeal allowed, and in lieu of sentence imposed, the applicant be sentenced, to take into account the matters on the Form 1, to a minimum term of penal servitude for one and a half years from 15 September 1998 and to expire on 15 March 2000, and to an additional term of one year to commence on 15 March 2000 and expire on 14 March 20101. In those circumstances, it is necessary in addition to make an order that he should be rleased on parole at the expiry of the minimum term. IN THE COURT OF CRIMINAL APPEAL 60851/98 WOOD CJ AT CL SIMPSON J WEDNESDAY 15 SEPTEMBER 1999 REGINA v JOHN WILLIAM CROMBIE JUDGMENT 1 WOOD CJ AT CL: The applicant was originally committed for trial in respect of an offence charged under s 25A of the Drug Misuse and Trafficking Act, that being an offence of supplying drugs on an on-going basis, in this instance on three or more separate occasions between 8 September 1998 and 15 September 1998. 2 On arrest he was also charged, presumably in the alternative, with an offence of supply under s 25 (1) of the Act between those dates, and with three separate offences of supply, presumably as back up charges for individual acts of supply on 12 September 1998, 14 September 1998 and 15 September 1998. It was these acts of supply that provided the basis for the on-going supply charge as well as for the alternative supply charge. 3 The applicant was arrested in the course of a police operation using an undercover officer. That officer approached the applicant, initially on 12 September 1998, in Allsop Park Nimbin, a known venue for drug supply. On that occasion he purchased a single $50 street deal. When the applicant was asked whether he was normally in this location he replied, "Mate, I am here everyday, rain, hail or shine." The undercover operative returned on 14 September 1998 when a further purchase of one $50 deal was made, and on 15 September when two $50 street deals were effected. 4 The undercover operative noticed, at the time of the second of these deals, that the applicant had in his possession seven or so packages of what appeared to be heroin. At the time of his arrest he was found to be in possession of four packets of white powder. In his ERISP when asked how often he sold heroin, the applicant replied, "Not very often, only when I needed some money for myself, mainly for food." 5 When the applicant appeared for arraignment at the District Court, at Lismore, the Crown Prosecutor presented an indictment based not upon s 25A of the Act, but one containing a single charge of supply contrary to s 25 (1), being that related to the street deal effected on 15 September 1998. The other two single instances of supply were included on the Form 1. 6 In taking this course the Crown Prosecutor explained that he had taken the view, upon the facts of the case, that it was not "an appropriate vehicle to test the parameters" of s 25A, and that prosecution of the applicant upon that basis "didn't appeal" to him. The logic behind that conclusion entirely escapes me, since it is precisely to deal with this kind of conduct that s 25A of the Drug Misuse and Trafficking Act was enacted. However, an indictment was presented, and a plea was accepted on the basis mentioned, and the applicant was entitled to be sentenced accordingly. 7 The consequences of the decision to proceed under s 25 (1), rather than s 25A, and the election to proceed upon indictment in the District Court, rather than to proceed summarily in the Local Court, were matters of some practical significance. 8 The maximum penalty for an offence under s 25A is penal servitude for 20 years, or 2,500 penalty units, or both. An offence under this section can only be prosecuted on indictment. The maximum penalty for an offence under s 25 (1), if dealt with in the District Court upon indictment, is penal servitude for 15 years, or a fine of 2,000 penalty units, or both. However, if dealt with summarily in the Local Court, as is permissible if the quantity of drugs involved is not more than a "small quantity", (1 gram in the case of heroin), then the maximum available penalty is imprisonment for 2 years, or a fine of 50 penalty units, or both pursuant to s 30 (1) of the Drug Misuse and Trafficking Act. 9 In the result, the applicant was sentenced to a minimum term of two years, to date from the time that he was taken into custody for the offence, and to an additional term of one and a half years. 10 In relation to the proportion between the minimum and additional terms, his Honour found that there were special circumstances, relating to the fact that this was the first sentence imposed upon the prisoner who was then aged thirty-nine years, to the assessment that he had above average prospects of rehabilitation, and to the conclusion that he needed extensive supervision post release because of his history of drug abuse. 11 His Honour found, as a matter of fact, that the applicant was an active street dealer, albeit an addict dealer. He had a prior record for offences for dishonesty and for drug related matters, as well as possession of house breaking implements but had not been sentenced to imprisonment for any of those matters. He was subject to a recognizance to be of good behaviour for the last mentioned offence, as well as for two counts of using false instrument, at the time of the supply offence. 12 The appeal was pursued on the basis that the sentence was manifestly excessive, having regard to the circumstance that offences of supply, of the kind here involved, are prima facie to be dealt with in the Local Court, that is in the absence of an affirmative election by the prosecuting authority to proceed in the District Court: s 33A Criminal Procedure Act 1986. 13 Although not questioning that an election had been made, or that his Honour had jurisdiction to deal with the matter upon indictment, it was submitted that the case was one which, being suitable for summary disposition, resulted in a sentence which failed to take into account that circumstance. As the sentencing order was framed, the sentence imposed was close to double the maximum available in the Local Court, while the minimum term equated to the maximum fixed term that could be imposed in that court. 14 It was common ground, as the sentencing statistics bear out, that, had the matter been dealt with in the Local Court, then it is likely that it would have attracted a significantly lesser sentence than that which was imposed by his Honour. 15 This Court has acknowledged that the fact that a matter could have been dealt with in the Local Court, had the prosecuting authority not elected otherwise, remains a relevant consideration in the exercise of the discretion reserved to the sentencing judge, see Dalton-Morgan, Court of Criminal Appeal 14 December 1989, Jason Clyde Smith, Court of Criminal Appeal 11 September 1991, and Shepherd (1991) New South Wales Court of Criminal Appeal 162. 16 None of those decisions go so far as to require the sentencing judge to proceed upon the basis that the maximum available sentence is that which could have been imposed in the Local Court. At most they establish that the circumstance identified is to be taken into account. Depending upon the objective and subjective criminality of the offender, it may properly be regarded as calling for some mitigation of the sentence that would otherwise be imposed in the District Court for an offence prosecuted upon indictment. Moreover, where it appears that in the circumstance has been entirely overlooked by the sentencing judge, it may properly justify the granting of leave to appeal. 17 In this case, the relevant circumstance was not overlooked by his Honour, as appears from the fact that, in the course of the reasons for sentence, he noted the submission that had been advanced, but observed in effect, that the sale of drugs to strangers involved a more serious form of criminality than that which existed in the case of supply by an addict to a friend or associate. In other words, his Honour was making the point, correctly in my view, that a commercial supply was a more serious form of criminality. 18 As I have observed, the applicant was sentenced upon the basis that he was an active street dealer, and upon the basis that the offence of supplying heroin was a serious crime. Neither finding could be open to question. 19 The applicant's objective criminality was also entitled to be regarded as increased by the circumstance that he had been subject to a recognizance, at the time of his arrest, and by the fact that the three occasions of supply occurred within a short period of time. His Honour noted the prevalence of the offence, particularly in the Nimbin area, and the need to discourage the trade in hard drugs within that area. 20 Although not referred to, the classic statement of Wells J, in Le Cerf (1975) 8 ALR 349, at 359, concerning the significance of the role of middlemen and underlings in the perpetuation of the drug trade, was apposite to the present case. Absent the existence of street dealers the trade would not exist to the extent that it does. This is not to suggest that the applicant should have been sentenced for offences other than that before the court. It serves merely to underline that an offence of supply of heroin by a person who, on his own admission, was a regular, albeit not a big, dealer cannot be dismissed as trivial. 21 His Honour did not overlook any of the relevant subjective circumstances, each of which was expressly referred to. On that account, no error in principle was identified. Moreover, his Honour found that there were special circumstances justifying a departure from the usual ratio between the minimum and additional terms. Again in that regard, no error of sentencing principle has been identified. 22 The appeal comes down to a single point, in my view, as to whether sufficient allowance was made for the circumstance identified, namely, that the case could properly have been prosecuted in the Local Court, and also, the circumstance that the Crown Prosecutor conceded that to be so, but in the exercise of his discretion had decided to proceed with a lesser charge of supply in the District Court. If that circumstance is properly to be given weight in this case, particularly against the circumstance that the applicant, who had reached the age of thirty-nine, and was making some attempt to rehabilitate himself, was facing a first term of imprisonment, then it appears to me that the sentence has been shown to be manifestly excessive. 23 I would propose that the application for leave to appeal be granted, that the appeal be allowed and that, in lieu of the sentence imposed, the applicant be sentenced, to take into account the matters on the Form 1, to a minimum term of penal servitude for one and a half years to commence from 15 September 1998 and to expire on 15 March 2000 and to an additional term of one year to commence on 15 March 2000 and to expire on 14 March 2001. In those circumstances, it will be necessary in addition to make an order that he should be released on parole at the expiry of the minimum term. 24 SIMPSON J: I agree. 25 WOOD CJ AT CL: The orders of the Court will be as I proposed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.