Robertson v R [2017] NSWCCA 205
Robertson v R [2017] NSWCCA 205 · Read the judgment on AustLII
Catchwords: 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.
The offender appealed on the basis that the sentencing judge had misapplied the principles relevant to sentencing for drug supply. The Crown conceded error – though not in the application of the ‘usual principle’. Rather, the Crown pointed out that the Form 1 offence alleging possession of Doxylamine was bad at law because that wasn’t actually a restricted substance.
But in resentencing the offender, the CCA (Simpson JA, Harrison and Davies JJ agreeing) here nevertheless revised the ‘usual’ or ‘general’ or ‘longstanding’ principle that drug trafficking to a substantial degree, absent exceptional circumstances, leads to fulltime custody. In this regard, Simpson JA pushed pretty hard at the door she had helped open in EF v R [2015] NSWCCA 36. In EF, the court determined that, since the ‘usual principle’ had been espoused, there was now the sentencing option of an Intensive Correction Order, which needed to be considered before determining that nothing other than fulltime custody was appropriate. Following Robertson, if that door is not completely open, then it is at least thoroughly ajar.
The core of the court’s reasoning is this: the ‘usual principle’ is a judicially-created gloss on the words of the legislation. Given the words of the statute, that gloss is unwarranted (at [104]). Section 5 of the Crimes (Sentencing Procedure) Act requires a judicial officer to consider all non-custodial options before sending a person into custody. That provision is in mandatory in its terms, and yet the ‘principle’ at hand dictates non-compliance with that mandate (at [97]-[98]). Simpson JA points out that she is not saying that the ‘longstanding principle’ is no longer good law – rather, her Honour is saying that it was never good law, so that the terms of Clark and its heirs and successors as case law are incompatible with the proper exercise of judicial discretion, as well as with decisions of the High Court (at [101]). In essence, this requires that all sentencing options need to be considered in all cases (at [100]).
There are three important qualifications to the use of this decision. The first is that there might be a question about whether the comments undermining the ‘usual principle’ were obiter or not. The judgment at [39] does suggest that the reasoning was key to the outcome – but arguably the concession made by the Crown in relation to the Form 1 was all that was necessary to determine the primary issue – and the revision of the authorities falls under the heading of ‘Additional remarks’. The second (and more important) qualification is that it is unusual, for a decision which purports to revisit 27 years of authority, that this matter was not heard by a five judge bench – Simpson JA even makes that observation herself (at [101]). Whatever may be the compelling reasons in this decision for departing from that the Clark line of reasoning, this decision still needs somehow to be judged against countless earlier decisions applying and affirming the rule. And, as her Honour also points out, the practical consequences of undermining this line of authority should not be overestimated: Judges sentencing in drug matters must nevertheless give full and proper consideration to the guidance they will receive from past decisions, and in practice this will probably usually result in a sentence of imprisonment (at [105]).