R v Smith [2002] NSWCCA 378

New South Wales Court of Criminal Appeal

CITATION : R v Smith [2002] NSWCCA 378 FILE NUMBER(S) : CCA 60287/02 HEARING DATE(S) : 10/9/02 JUDGMENT DATE : 10 September 2002

PARTIES : Regina Neil Smith JUDGMENT OF : Wood CJ at CL at 1; Howie J at 45

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/31/0302 LOWER COURT JUDICIAL English DCJ OFFICER :

COUNSEL : L Lamprati SOLICITORS : S E O'Connor E Conditsis CATCHWORDS : CRIMINAL LAW -Appeal against severity of sentence - plea of guilty - supply of prohibited drug - methylamphetamine - cannabis leaf - objective criminality - subjective criminality. LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985 De Simoni v The Queen (1981) 147 CLR 383 Olbrich v The Queen (1999) 73 ALJR 1550 R v Barton (2001) 121 A Crim R 185 R v Carter [2000] NSWCCA 490 CASES CITED: R v Harris [2001] NSWCCA 322 R v Huang and Lin [2002] NSWCCA 76 R v Kalpaxis [2001] NSWCCA 119 R v Khaled [2001] NSWCCA 169 R v Simpson [2001] NSWCCA 534 R v Smiroldo [2000] NSWCCA 120 DECISION : Leave to appeal granted. Appeal dismissed.

- 4 -IN THE COURT OF CRIMINAL APPEAL 60287/02

WOOD CJ at CL HOWIE J

Regina v Neil Smith The applicant appeals against severity of sentence imposed after pleading guilty to one count of supplying a prohibited drug on an ongoing basis, and one count of supplying a prohibited drug. For the first count he was sentenced to imprisonment for four years with a non parole period of three years, and for the second count he was sentenced to imprisonment for a fixed term of three years, to be served concurrently. The crown case depended upon intercepted telephone calls which showed that the applicant agreed to supply at least 42.5 grams of methylamphetamine and at least 70.4 grams of cannabis leaf. When the police executed a search warrant at the offender's home, they located 1,314 grams of cannabis leaf and 124.27 grams of methylamphetamine along with scales, re-sealable plastic bags and $1,030 in cash. Grounds of Appeal in Relation to Objective Criminality : Ground 1 - Whether error in giving undue weight to quantity of drug found at the applicant's premises: The sentencing judge was mindful of the constraints imposed by The Queen v. De Simoni . Reference to the finding of the drugs and accoutrements was relevant for assessing whether the offences were isolated incidents out of character for the applicant, and whether he had the means of satisfying the orders he took. A sentencing judge may have regard to matters which throw light upon the offence, so long as that is not done in a way which would treat the circumstances of aggravation as constituting a more serious offence which has not been charged. The Queen v. De Simoni (1981) 147 CLR 383, R v. Smiroldo [2000] NSWCCA 120 cited. Ground 2 – Whether error in giving insufficient weight to circumstance that there was no evidence of actual supply: There is no reason why a genuine agreement to supply drugs should be regarded as less serious than a proven act of supply. The tenor of the intercepts shows that the applicant was transacting genuine drug deals. R v. Kalpaxis [2001] NSWCCA 119 distinguished. Ground 7 – Whether error because no evidence to support the finding that the applicant was at the upper end of the scale of middlemen: The assessment of the applicant's criminal conduct was properly made by reference to the tenor of the intercepts and the number and nature of the deals that were negotiated. Olbrich v. R (1999) 73 ALJR 1550 cited. Ground 8 – Whether error in giving insufficient weight to the type of drug involved: The objective seriousness of the applicant's offences rests upon the systematic and repeated nature of his criminality. Grounds of Appeal in Relation to Subjective Criminality : Ground 4 – Whether misdirection in relation to the manner in which the applicant's antecedents were treated: There is nothing in the reasons for sentence which suggest that the sentencing judge imposed a heavier sentence than appropriate to adjust for "leniency in the past". Ground 5 – Whether misdirection as to the manner in which character evidence was used: The appellant had been able to continue a normal working life while using and dealing drugs. The submission that the sentencing judge regarded the good work record and community ties as "adverse to the applicant" and by inference, deserving of additional punishment is not supported by the reasons for sentence. Ground 3 – Whether error in failure to find special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999: While the applicant had voluntarily ceased taking drugs, that was not sufficient for a finding of special circumstances. R v. Simpson [2001] NSWCCA 534 cited. Ground 9: Sentence excessive by reference to the Judicial Commission Sentencing Statistics: These statistics have limited value, and none of the cases cited provide a helpful benchmark for sentencing for the present case, or any reason to suppose that the sentences were excessive, particularly bearing in mind that a form 1 offence was taken into account. R v. Carter [2000] NSWCCA 490, R v. Khaled [2001] NSWCCA 169, R v. Huang and Lin [2002] NSWCCA 76, R v. Barton (2001) 121 A Crim R 185, R v. Harris [2001] NSWCCA 322 cited Orders: (1) Leave to appeal against severity of sentence granted. (2) Appeal dismissed IN THE COURT OF CRIMINAL APPEAL 60287/02