R v Smith [2002] NSWCCA 378

R v Smith [2002] NSWCCA 378

The sentencing judge did not commit error in assessing the applicant's objective or subjective criminality. The drugs, accoutrements and cash found at the applicant's premises were properly considered as contextual evidence without infringing De Simoni; the intercepted calls showed genuine, systematic drug dealing; the finding that the applicant was at the upper end of middlemen dealers was open; the nature of the drugs did not reduce the seriousness of the repeated ongoing supply; the treatment of antecedents and character evidence was not erroneous; special circumstances were not established; and the Judicial Commission statistics and cited cases did not show that the sentences were...

Jurisdiction
Australia
Judgment Date
10 September 2002
Procedural Posture
Criminal Appeal Against Severity of Sentence / Application for Leave to Appeal Against Sentences Imposed After Guilty Pleas in the District Court; Leave Granted and Appeal Dismissed
Outcome
Leave to appeal granted. Appeal dismissed.
Legal Topics
['supply of Prohibited Drug on an Ongoing Basis' 'supply of Prohibited Drug' 'methylamphetamine' 'cannabis Leaf' 'objective Criminality' 'subjective Criminality' 'de Simoni Principle' 'special Circumstances' 'judicial Commission Sentencing Statistics']
['criminal Law' 'sentencing' 'drug Offences'] ['supply of Prohibited Drug on an Ongoing Basis' 'supply of Prohibited Drug' 'methylamphetamine' 'cannabis Leaf' 'objective Criminality' 'subjective Criminality' 'de Simoni Principle' 'special Circumstances' 'judicial Commission Sentencing Statistics']

Case Brief

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Procedural Posture

Criminal Appeal Against Severity of Sentence / Application for Leave to Appeal Against Sentences Imposed After Guilty Pleas in the District Court; Leave Granted and Appeal Dismissed

Legal Issues

  1. 1 ["Whether the sentencing judge erred by giving any or undue weight to the quantity of methylamphetamine and cannabis leaf found at the applicant's premises, contrary to De Simoni v The Queen (1981) 147 CLR 383." 'Whether the sentencing judge erred by giving insufficient weight to the circumstance that there was no evidence of actual supply.' 'Whether there was evidence to support the finding that the applicant was at the upper end of the scale of dealers who were middlemen disseminating drugs into the community.' 'Whether the sentencing judge erred by giving no or insufficient weight to the type and quality of the prohibited drugs involved compared with ecstasy, cocaine and heroin.' "Whether the sentencing judge misdirected herself in relation to the applicant's antecedents." 'Whether the sentencing judge misdirected herself as to the use of character evidence.' 'Whether the sentencing judge erred by failing to find special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999.' 'Whether the sentences were excessive by reference to the Judicial Commission Sentencing Statistics and comparable cases.']

Ratio Decidendi

The sentencing judge did not commit error in assessing the applicant's objective or subjective criminality. The drugs, accoutrements and cash found at the applicant's premises were properly considered as contextual evidence without infringing De Simoni; the intercepted calls showed genuine, systematic drug dealing; the finding that the applicant was at the upper end of middlemen dealers was open; the nature of the drugs did not reduce the seriousness of the repeated ongoing supply; the treatment of antecedents and character evidence was not erroneous; special circumstances were not established; and the Judicial Commission statistics and cited cases did not show that the sentences were...

Court Disposition

Leave to appeal granted. Appeal dismissed.

Orders

  • ['Leave to appeal against severity of sentence granted.' 'Appeal dismissed.']