R v Handley [2001] NSWCCA 311

New South Wales Court of Criminal Appeal

CITATION : R v Handley [2001] NSWCCA 311 revised - 13/09/2001 FILE NUMBER(S) : CCA 60018/01 HEARING DATE(S) : 15 August 2001 JUDGMENT DATE : 15 August 2001

PARTIES : Regina Brendan Handley JUDGMENT OF : Wood CJ at CL at 1; Sperling J at 19

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/21/1147 LOWER COURT JUDICIAL Bellear DCJ OFFICER :

COUNSEL : In Person W G Dawe QC SOLICITORS : S E O'Connor CATCHWORDS : CRIMINAL LAW - appeals - appeal against sentence - one count supply prohibited drug on an ongoing basis - whether sentence manifestly excessive - appellant submitted drugs were for personal use only - earlier admissions of dealing - no basis to submission - whether sentence was one occasioning undue hardship to appellant's family - it is only in circumstances of exceptional hardship to an appellant's family that the court will take into account hardship in mitigatio of sentence - submission not made good CASES CITED: Crimes Act 1900 ss 117, 154A Crime (Sentencing procedure) Act 1999 s44(2) DECISION : Leave to appeal granted; Appeal dismissed

- 4 - IN THE COURT OF CRIMINAL APPEAL

No. 60018/01 WOOD CJ AT CL SPERLING J

WEDNESDAY 15 AUGUST 2001 REGINA v BRENDAN MICHAEL HANDLEY

JUDGMENT

1 WOOD CJ at CL: This is an application for leave to appeal against a sentence of imprisonment of three years and one month, with a non parole period of eighteen months, imposed by Bellear DCJ in the District Court following the applicant's plea of guilty to one count of supply a prohibited drug on an ongoing basis. 2 The maximum available sentence for such an offence, which is regarded as a particularly serious offence, is imprisonment for twenty years (see s25A Drug Misuse and Trafficking Act 1985). 3 The applicant was arrested following execution of a search warrant at his home on 29 April 1999. During the search, which was made that day, two bags containing amphetamines were found along with various accoutrements of the drug trade, including a number of resealable plastic bags, a set of electronic scales, a number of syringes, a diary containing names and details of amounts paid or payable and some "tick" list. By that latter expression I understand the documents to refer to drugs supplied "on tick" for which payment was to be supplied at some later date. 4 When interviewed, the applicant freely admitted that he had been selling amphetamine from the home and around the Blacktown area for approximately eighteen months, earning somewhere between $200 and $400 per week, after subtracting from his sales such amphetamines as he needed for his own use. He agreed that $100 in bank notes found in the premises represented the proceeds of a sale of three half weights made earlier that day. 5 The amphetamine which he sold, he acknowledged, had been purchased by him in two gram lots and cut with glucose. He also acknowledged that he had ten to twelve regular customers. His own use of amphetamines was accepted as having been significant and that he was in the habit of injecting speed three to four times per day. 6 Additionally, found in the search, was a pair of knuckle dusters, which he said had been given to him by a friend and which he had decided to keep. 7 At the time of the sentence, his Honour took into account in a Form 1 offences of supply prohibited drug, possession of prohibited drug, self administer prohibited drug, goods in custody and possession of prohibited article, that is the knuckle dusters. Each of those charges, it may be noted, was intrinsically bound up either with the items found in the premises or in relation to admissions made as to the recent sale and/or self use of drugs. 8 The applicant, who appeared in person, raised two grounds of appeal in support of the submission that the sentence was excessive. First, it was submitted that the drugs found were for his personal use and that he was not in fact dealing drugs. The comprehensive admissions in the ERISP and the records kept in relation to the sales made and the moneys owing for drugs supplied established that there is no basis whatever for the submission that he was not dealing in drugs. 9 The situation is that he was dealing in drugs, partly to support his own habit and partly for profit. The former factor is a matter which was proper to be taken into account, but I see no reason to assume that his Honour overlooked that consideration. 10 Secondly, it was submitted that the sentence was one occasioning his spouse and her children both emotional and mental hardship. It was a fact that at the time of the offence the applicant was living in a de facto relationship with a partner and her two children, one of whom tragically had cerebral palsy, epilepsy and asthma and who clearly needed a great deal of attention. The other child has an attention deficit disorder. 11 it was also the case the applicant was unemployed and in receipt of social security benefits. He had previously been married and had two children of his own, but it seems that he was not in any contact of a regular kind with them. He was a user of both cannabis and amphetamine but by the time he appeared for sentence it was accepted that he had given up that drug habit. 12 His partner was supportive of him and strongly opposed to his drug use. He had a prior record of no great moment and he had demonstrated considerable bravery less than a month after his arrest, when attempting to save a child who was trapped in a house fire, earning for himself a bronze medal from the Australian Humane Society. 13 Whilst his record is most unfortunate and while there is considerable room for optimism that he has learned his lesson and can give valuable support to his de facto partner and children if drug free and law abiding, I am not persuaded that any of these considerations was overlooked, or that they gave rise to a concern that the sentence imposed was excessive 14 It is the fact that inevitably hardship is occasioned where a member of a household is sentenced to imprisonment. The relevant principle was expressed by this Court in Regina v T (1990) 47 A Crim R 29 at 40, in the following terms: "It is only in circumstances of exceptional hardship to the applicant's family that the Court will take into account that hardship in mitigation of sentence. The hardship must be so 'extreme' - going so far beyond the sort of hardship which inevitably results to a family when the breadwinner is imprisoned, that 'a sense of mercy or of affronted common sense imperatively demands that they (the sentencing judges) should draw back'." 15 The present is not such a case. Otherwise, his Honour took into account the extent to which the applicant had taken steps to rehabilitate himself, as well as the better side of him that was disclosed by his bravery award. 16 These matters, including his family relationship and his need for continued drug counselling and supervision, were appropriately recognised as special circumstances which justified the setting of a non-parole period, which was just under fifty per cent of the head sentence. 17 Any lesser sentence would, in my view, have been manifestly lenient having regard to the punitive and deterrent elements which must apply to the offence of supply narcotics on a continuing basis. 18 I would grant leave to appeal but I would dismiss the appeal. 19 SPERLING J: I agree. 20 WOOD CJ at CL: The order of the Court will be as I proposed. **********