Regina v Davidson [2000] NSWCCA 393

New South Wales Court of Criminal Appeal

CITATION : Regina v Davidson [2000] NSWCCA 393 FILE NUMBER(S) : CCA 60087/00 HEARING DATE(S) : Wednesday, 21 June 2000 JUDGMENT DATE : 21 June 2000

PARTIES : The Crown Peter John Davidson (Appl) JUDGMENT OF : Grove J at 15; Newman J at 1

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/41/0177 LOWER COURT JUDICIAL Howie DCJ OFFICER :

COUNSEL : L M B Lamprati (Crown) In person (Appl) SOLICITORS : S E O'Connor (Crown)

LEGISLATION CITED : Drug Misuse and Trafficking Act 1985 Crime Sentencing Procedure Act 1999 DECISION : See para 14

IN THE COURT OF

CRIMINAL APPEAL

60087/00 GROVE J NEWMAN J

WEDNESDAY, 21 JUNE 2000

REGINA v Peter John DAVIDSON

JUDGMENT

1 NEWMAN J: This is an application to appeal against a sentence passed by Howie DCJ on 10 February 2000 at the Moruya District Court. Before his Honour the applicant pleaded guilty to a breach of s 25(1) of the Drug Misuse and Trafficking Act 1985 in that he supplied a prohibited drug, namely amphetamine. The amount of amphetamine supplied was some 6.6 grams. The maximum penalty available is imprisonment for fifteen years and/or a fine of 10,000 penalty units. 2 In addition to the two counts in the indictment the applicant asked his Honour to take into account some matters on a form 1 of possessing cannabis, not keeping a firearm safe and possessing a firearm while unlicensed, which his Honour did. In the event his Honour sentenced the applicant to a head sentence of twenty-seven months consisting of a minimum term of nine months commencing on 10 February 2000 and expiring on 9 November 2000 together with an additional term of eighteen months. 3 The objective facts of the matter are that a police operation took place on the south coast using undercover operatives in order to apprehend drug dealers. The short and the long of it was that one such undercover officer, by the name of Trevor, came in contact with the applicant. The actual supply did occur and the undercover operative Trevor paid the applicant some $400. The agreement to supply, which was the matter contained in the second count of the indictment, was the subject of a number of conversations between the undercover agent Trevor and the applicant but in due course the supply did not happen. 4 However, there would seem, despite some criticisms made in the submissions put forward on behalf of the applicant, to be a sound foundation for the charge and indeed a sound foundation for the plea of guilty. 5 Before his Honour a number of subjective circumstances relating to the applicant were brought to light. The applicant had not been to gaol before. His previous experience with the law involved a charge entirely irrelevant to this matter, but nevertheless serious, of aggravated dangerous driving and a failure to appear on a bail undertaking. The latter had some relevance to the matter before his Honour because it was adverted to in a pre-sentence report which was prepared by the Probation & Parole Service and was tendered before his Honour without challenge by the legal representative of the applicant. 6 It is that pre-sentence report which causes me some concern. Before this Court the applicant has put on an affidavit which has been admitted without challenge by the Crown, in which certain of the matters which were raised in the pre-sentence report were challenged by the applicant. For instance, there was a reference to "he and his present partner are apparently closely associated with members of the Comanchero Bike Club and their activities." 7 The applicant in his affidavit hotly contested that that was the fact. There being no challenge to the matter this Court could safely assume that the reference made in the pre-sentence report was one of error. There were also references in the report which would suggest that the applicant was unreliable. Again, matters which were challenged. 8 As far as the remarks on sentence of his Honour were concerned it must be said that his Honour did not seem to place much stress upon the pre-sentence report. He did take into account the fact that the applicant did not have a relevant criminal record and, indeed, found special circumstances. The applicant suffers from a back condition and medical evidence relating to that condition was properly before his Honour. 9 Matters have been raised before this Court as to whether or not orders of a non-full time custodial sentence should have been made, either by way of periodic detention or by way of community service orders. In view of the conclusion I have ultimately reached I do not believe it would be fruitful to explore those matters any further. His Honour, I might add, did not err in law in applying the tests to a case such as this when he observed: "The Court of Criminal Appeal made it clear that this Court is to do its duty in respect of the sentencing of people for this type of offence and that in any but the truly exceptional case a full time custodial sentence ought to be imposed in order, firstly to denounce this type of activity and secondly in an attempt to deter others in the community from being involved in the dissemination of drugs." 10 I do not believe his Honour erred in imposing a sentence of full time custody. Indeed, it may be that having regard to the amount involved that a question could arise as to whether or not the actual term imposed was manifestly excessive. The learned Crown rightly conceded that if a fixed term of six months had been imposed no complaint would have been made by the Crown. 11 What troubles me is the fact that material of a most prejudicial type was introduced incorrectly before his Honour. It seems to me that the consequence of the admission of that material in the form it came up, constituted procedural unfairness to the applicant. In so saying, let me make it quite plain that I am not criticising his Honour in any way. His Honour had the material tendered before him without objection and he did what he had to do. 12 Having said that I am of the view that the procedural unfairness which did result was of a type which should cause this Court to interfere because it may well be, and I know not, that had this reference to an association with the Comancheros motor cycle organisation not been raised the applicant may well have been dealt with in a summary manner rather than before the District Court. However, that is speculation and I put it to one side. 13 I am of the view that this Court should interfere and that justice demands that this Court should quash the sentence. My view is that while, as I think I have indicated, his Honour did not err in sentencing the applicant to a term of full time custody, that having taken that custody into account an appropriate substitution would be for this Court to place the applicant under a bond, subject to s 95 of the Crimes Sentencing Procedure Act 1999. 14 Accordingly I am of the view that the applicant should enter into a good behaviour bond for three years from today. The orders I would propose as these: