Regina v Payne [2005] NSWCCA 84

New South Wales Court of Criminal Appeal

CITATION: Regina v Payne [2005] NSWCCA 84

HEARING DATE(S): 14/3/05

JUDGMENT DATE: 5 April 2005

JUDGMENT OF: Adams J at 1; Bell J at 10; Hall J at 42

DECISION: Allow the appeal and quash the sentence on count two imposed in the District Court. In lieu thereof the respondent is sentenced to a term of twenty months' imprisonment. The sentence is to be served by way of periodic detention and will commence on Friday 20 May 2005. Specify a non-parole period of twelve months, which will expire on 19 May 2006. Direct the respondent's release on parole at the expiration of the non-parole period.

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999

Dinsdale v R (2000) 202 CLR 321 CASES CITED: R v Allpass (1993) 72 A Crim R 561 R v Wright (1997) 93 A Crim R 48

Regina (Appellant) PARTIES: Jason Craig Payne (Respondent)

FILE NUMBER(S): CCA 2004/3094

J Girdham (Crown) COUNSEL: P Byrne SC (Respondent)

S Kavanagh SOLICITORS:

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 00/51/0100

LOWER COURT JUDICIAL OFFICER: Hosking DCJ

IN THE COURT OF CRIMINAL APPEAL 2004/3094

ADAMS J BELL J HALL J

Tuesday 5 April 2005 Regina v Jason Craig Payne Judgment 1 ADAMS J: I have had the advantage of reading the judgment in draft of Bell J and gratefully adopt her Honour's summary of the facts. 2 The respondent pleaded guilty to having methylamphetamine in his possession for supply and the particularised quantity was 34.7 grams. Despite the formal content of the charge, his evidence was to the effect that about a half was for his personal use. This was either a repudiation of the plea as to this quantity or – as the case seems to have proceeded – the particularised quantity was not regarded as essential to the charge and was not ultimately the quantity for which he was being punished. Having regard to the findings of Hosking DCJ, the respondent was to be sentenced for the supply of approximately half of the methylamphetamine found in his possession, since the effect of those findings was that he proposed to share the drug with his then partner and – having regard to the evidence – their drug use was about the same. 3 Except that it is clear that the quantity the respondent supplied, in the statutory sense that he had it in his possession for that purpose, was about 17 grams or so, and not almost 35 grams, the formalities do not matter. He was not charged with and could not be punished for the possession of the quantity of prohibited drug that was in his possession for personal use. The form of the particulars should not deflect attention from the actual quantity, the supply, or proposed supply of which, called for punishment. The quantity of drug involved in any supply is a key indicator of the seriousness of the offence. Seventeen grams could not be regarded as a trivial quantity, but it is to my mind a relatively small amount. 4 The second important feature of the learned sentencing judge's findings is that the (contemplated) supply had no commercial element. It was to the respondent's partner who was a significant user. It was gratuitous. It was no part of the drug trade, except in the sense that the respondent had purchased it. It is obvious that the gratuitous supply of drugs is very much at the bottom of the scale of objective seriousness for offences of this kind. 5 There can be no question but that the respondent deliberately committed a criminal act and that this was his second such offence. Moreover, he committed it when on bond to be of good behaviour. The respondent, however, is an addict, as was his partner. He was not, as the facts have been proved, motivated by greed but by need, a need which to my mind is akin to an illness. I do not doubt that the respondent is responsible, both legally and morally, for his offence. But, in dealing with the extent to which it is necessary to punish him for so doing, it would be both wrong and less than the law itself requires to disregard the situation in which he found himself. The fact is that, as a matter of reality, any drug that he purchased to satisfy his own addiction would, of necessity, be shared with his partner. 6 The criminal law cannot be broken with impunity. The drug trade, dependent as it is upon a criminal black market that instigates and encourages dangerous and anti-social conduct of massive proportions, is a grave social problem. The upper scale of punishment for supplying prohibited drugs demonstrates the seriousness with which the Parliament regards the issue. Quite apart from the considerable criminality engendered by the drug trade, no society can permit persons to profit from breaking the law. By participating in this trade, even as an end-user, the respondent deserves some punishment. 7 In the end, of course, the measure of punishment is a matter of fact and degree, a matter of judgment. It is not controversial to say that punishment ought not to exceed the moral culpability of the crime. But it is self evident that reasonable minds may quite reasonably differ upon the application of this principle in particular cases. 8 I have already mentioned the four critical elements in this case: the small quantity of the drug; the gratuitous character of the supply; its inextricable link with the respondent's addiction; and that it was a second offence committed whilst on a bond. With unfeigned respect, I am unable to agree that a sentence of two years' imprisonment – a sentence reflecting the consideration that it reflects the restraint appropriate where a sentence is to be increased on a Crown appeal – appropriately measures the true seriousness of the respondent's crime. In my view, Hosking J's assessment of the appropriate punishment was correct or, at least, not shown to be in error. Having regard to the objective and subjective features of the case, I would not agree that this sentence is a lenient one, considered in isolation. On the other hand, I agree with the appellant that the offences committed by the respondent were separate and distinct, so that the sentence imposed for the latter should have been accumulated on that imposed for the former. 9 Accordingly, I would propose that the appeal be allowed to the extent that the (overall) sentence of twelve months to be served by way of periodic detention commence on 20 May 2005, namely on the expiration of the non-parole period of six months imposed in respect of the offence of which the respondent was convicted on 5 April 2001. Having regard to the accumulation, I consider that there are special circumstances warranting the departure from the statutory ratio. It is also desirable to provide a somewhat longer period of supervision than that ratio would permit, having regard to the material in Mr McCobie's report, to which Bell J has referred. Thus, I would propose a non-parole period of six months, expiring on 19 November 2005. 10 BELL J: This is a Crown appeal against inadequacy of sentence.