Criminal law: October 2017

Robertson v R [2017] NSWCCA 205

Sentencing for drug supply – revisiting the ‘usual principle’ – all options to be considered

The Court of Criminal Appeal (‘CCA’) has revisited longstanding principles in sentencing drug offenders. Subject to some qualifications, it appears that all sentencing options need to be considered in all cases, rather than applying a judicially-created rule – however longstanding it might be.

The applicant pleaded guilty to a range of drug offences: primarily, deemed supply of two prohibited substances, and two counts of ‘actual’ supply arising from agreements he had made by text message (police seized his phone and found the evidence). There were some minor possession offences to be taken into account on a Form 1 – one of them for an ostensibly-restricted substance called ‘Doxylamine’. At sentence, the Crown had submitted, consistently with a long line of authority often attributed to R v Clark (Court of Criminal Appeal (NSW), 15 March 1990, unreported), that the offender had engaged in trafficking prohibited drugs to a substantial degree and that, therefore, unless there were exceptional circumstances he should be sentenced to a term of fulltime imprisonment. This is often referred to as the ‘usual principle’, the ‘general principle’ or ‘longstanding principle’ for sentencing drug offenders.

Although it was submitted on the offender’s behalf that the evidence did not establish trafficking to a substantial degree, the sentencing judge found against the offender. Having made that finding and the associated finding that there were no exceptional circumstances, his Honour considered himself bound by the line of authority mentioned above and (somewhat regretfully) sentenced the offender to fulltime imprisonment: 20 months with a non-parole period of 10 months.