Aitchison v R

DECISION 1HIS HONOUR: The applicant, AZ, has applied for an inquiry into his sentence pursuant to s78(1) Crimes (Appeal and Review) Act 2001 (the Act). The application seeks the referral of the sentence to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912. 2The applicant maintains that there is a doubt or question as to a mitigating circumstance in the case, namely that the applicant's sentencing was infected by Muldrock error in that the standard non-parole period was given undue emphasis in the sentencing process, contrary to the decision of the High Court in Muldrock v The Queen [2011] HCA 39; 244 CLR 120. 3The applicant, following entry of pleas of guilty in the Local Court, was sentenced on 30 August 2010 at Campbelltown District Court by Neilson DCJ for the following offences: (i) Count 1: Supplying a large commercial quantity of a prohibited drug (1082 grams of 3, 4 - MDMA) contrary to s25(2) of the Drug Misuse and Trafficking Act 1985; and (ii) Count 2: Possessing a prohibited firearm (.25 calibre keyring pistol) contrary to s7(1) of the Firearms Act 1996. 4The offences had maximum penalties of life imprisonment and 14 years imprisonment respectively and each attracted a standard non-parole period of 15 years and 3 years respectively. There were also two deemed supply and one deal with the proceeds of crime offences on a Form 1. 5Neilson DCJ imposed the following sentences: Count 1: A non-parole period of 2 years 9 months commencing 26 November 2008. The sentence was to expire on 25 August 2011 with a balance of term of 2 years 9 months to commence 26 August 2011 and expire 25 May 2014. Count 2: A non-parole period of 1 year commencing on 26 November 2008. The sentence was to have expired on 25 November 2009 with a balance of term of 1 year to have commenced on 26 November 2009 and expire on 25 November 2010. 6A Crown appeal against the inadequacy of the sentences was filed in the Court of Criminal Appeal on 7 October 2010. On 22 March the Court of Criminal Appeal upheld the appeal (R v AZ [2011] NSWCCA 43) and the applicant was re-sentenced to serve an overall term of 8 years with a non-parole period of 5 years and 10 months. 7The individual sentences imposed by the Court of Criminal Appeal were as follows: Count 1: A non-parole period of 5 years 2 months commencing 26 November 2008. This was sentence was to expire on 25 January 2014, with a balance of term of two years and 10 months commencing on 26 January 2014 and expire 25 November 2016; Count 2: A non-parole period of 1 year 1 month 2 weeks commencing 12 August 2013. This sentence was to expire on 25 September 2014 with a balance of term of 7 months 2 weeks to commence 26 September 2014 and expire 9 May 2015. 8The facts of the case can be summarised as follows: On 26 November 2008, police applied for and were granted a search warrant for the applicant's home in western Sydney. Detectives attended the address at 4.40pm that day and entered the unlocked premises. The applicant was located in the bedroom of the house. He resided at the premises alone. 9The police commenced to search the applicant's house. Located on the top of a bookshelf in the lounge room were two large plastic resealable bags that contained a number of small green-coloured tablets with a kangaroo imprint stamped into each tablet. These tablets were subsequently tested by the Division of Analytical Laboratories (DAL) and found to contain 44.9 grams of 3-4 methylenedioxymethylamphetamine (MDMA), commonly known as ecstasy, with a purity of 23 percent. 10The police then continued searching the residence. Located in a small green environmental bag on the floor of the wardrobe in the applicant's bedroom was a package wrapped in red gaffer tape. When the red gaffer tape was removed, a yellow/brown coloured wet powder substance was found. Also contained in the package were four whole tablets and one broken heart-shaped tablet. These items were subsequently tested by DAL and the package was found to contain 989.8 grams of MDMA with a purity of 76.5 percent. The tablets were found to contain 0.8 grams of MDMA. 11While the police were continuing their search, the applicant approached them and said that he would show them where all the other items were in the house that he believed to be illegal. He then led them to the garage of his residence and pointed to a large safe. 12Inside the safe, police observed a large amount of money and prohibited drugs. The money was counted and totalled $23,500. The applicant stated that some of the money was not his (he was minding it for a friend) but admitted ownership of the balance totalling approximately $18,000. He said that the money was from a business he used to run. Police subsequently discovered a $50 note amongst the $23,500 that had the same serial number as a $50 note handed to an undercover police officer in November 2008 during an operation where police purchased prohibited drugs from a named person (the proceeds of crime offence on the Form 1). 13Also located inside the safe was a small resealable plastic bag containing a white powder substance. This powder was subsequently tested by DAL and was found to contain 29.2 grams of cocaine with a purity of 31 percent (the deemed supply cocaine offence on the Form 1). 14The safe contained a clear plastic vacuum-sealed bag containing cannabis leaf. This item was subsequently tested by DAL and was found to contain 429.4 grams of cannabis leaf. Three other bags of cannabis were also located in the premises (one on a shelf in the appliant's bedroom, one in the safe and another in the ensuite of the applicant's bedroom). The total amount of cannabis leaf located at the premises was 480.9 grams (the deemed supply cannabis offence on the Form 1). 15A further plastic resealable bag containing a number of pink coloured tablets was also located inside the safe. These tablets were subsequently tested by DAL and found to contain 45.5 grams of MDMA with a purity of 23 percent. 16The total amount of MDMA was 1,081 grams, more than double the large commercial quantity for that drug (500 grams). 17The police continued searching the safe and located .25 calibre ammunition and a small .25 calibre keyring pistol in working order. That item is a prohibited firearm under the Firearms Act 1996 . The .25 calibre ammunition was suitable for use in the keyring pistol. Whilst the applicant had an AB class firearms licence and an ammunition permit, the keyring pistol is prohibited. 18During the search, police located a set of scales on a shelf in the garage, an Avita food preserver and sealer, and a number of empty vacuum-sealed plastic bags in the dining room. The police also seized two resealable bags containing magnesium sulphate (Epsom salts) and a rectangular plastic container containing glucose. The police located a substantial quantity of "spray dried lactose" and a box containing three large bags labelled "palm stearic acid" with a white powder substance inside. There was evidence to the effect that these chemicals are items used in the manufacture or cutting of ecstacy tablets. 19Police located in the garage a padlocked black metal trunk. This trunk which was found by the sentencing judge to have belonged to the applicant, contained the following: (a) two pairs of overalls; (b) two safety facemasks; (c) a pair of protective goggles; (d) a large-scale three-kilogram set of electronic scales; (e) a white mixer with silver mixing bowl; (f) three brass sieves that contained residue of a green powder; (g) nine barbeque sauce type bottles that were filled with different coloured chalk powder; (h) a brief case containing several tools including ratchets, mixing spoons and Allen keys; and (i) resealable storage bags. 20In view of the fact that the Crown appeal to the Court of Criminal Appeal was successful and the applicant was re-sentenced, the remarks of the sentencing judge are not pertinent to this application except insofar as they provided a basis for the intervention of the Court of Criminal Appeal. If, as the applicant submits, the sentence imposed on him was infected by Muldrock error, the sentence under scrutiny must be that imposed by the Court of Criminal Appeal. 21The estimated value of the ecstacy as a finished product was $400,000. 22The applicant provided considerable assistance to authorities as a result of which another person was charged with the offence of murder. Neilson DCJ allowed, in favour of the applicant, a combined a discount of 50 percent, having regard to his early plea of guilty and his assistance to authorities. 23The following grounds of appeal were relied upon by the Crown: (a) Ground 1 - his Honour erred in failing to determine at all where the offence of possess prohibited firearm lay in the range of objective seriousness. (b) Ground 2 - his Honour erred in failing to adequately determine where the offence of supply prohibited drug (large commercial quantity) lay in the range of objective seriousness for offences of that type. (c) Ground 3 - his Honour failed to have adequate regard to the standard non-parole period for the supply prohibited drug (large commercial quantity) offence. (d) Ground 4 - his Honour failed to have adequate regard to the standard non-parole period for the possess prohibited firearm offence. (e) Ground 5 - his Honour erred by not accumulating the sentence for the possess prohibited firearm offence. (f) Ground 6 - both the individual sentences and the total effective sentence are manifestly inadequate. 24In relation to Grounds 2 and 3 (the large commercial quantity drug supply count), Johnson J (with whom McClellan CJ at CL and McCallum J agreed) said: "54 The offence of supplying a large commercial quantity of a prohibited drug attracts a maximum penalty of life imprisonment and a standard non-parole period of 15 years. Although the standard non-parole period operated as a benchmark or guidepost only, given the Respondent's plea of guilty, it remained a most significant factor to be taken into account on sentence for a very serious crime." 25Johnson J determined that the sentencing judge had erred in failing to properly assess the objective seriousness of the supply offence: "57 In my view, a fair reading of the sentencing Judge's remarks on sentence in this case does not reveal an explanation of the basis of the finding that the drug supply offence lay "somewhat below the mid range" . That conclusion was not to be reached by the bare acceptance of a Crown submission to that effect. Nor was an assessment of the objective seriousness of the Respondent's offence to be made by reference to comparing and contrasting the facts and sentence in Wang v R : R v Morgan at 371; R v George at 47; R v Araya [2005] NSWCCA 283; 155 A Crim R 555 at 566 - 568 [67] - [72]. 58 The sentencing Judge accepted the Crown submission that this offence was somewhat below the mid-range. A fundamental problem with this finding is the absence of reasons for the finding. In this Court, the Crown did not urge a different finding, although it was submitted that the offence, at its lowest, was just below the mid-range." 26Johnson J observed that an assessment of the objective seriousness of a large commercial drug supply involved the consideration of a number of factors, none of which were referred to by the sentencing judge: the quantity of MDMA (twice the large commercial quantity), its purity, the location of the money in the safe supporting an irrisistable inference of a substantial drug supply for profit, the location of scales, plastic bags etc and the presence in the applicant's house of other items used in ecstasy tablet cutting, manufacture and distribution. Johnson J determined that this evidence pointed clearly to a substantial involvement by the applicant in drug supply so as to place his offence at its lowest at just below the mid-range of objective seriousness. 27In relation to these grounds of appeal, Johnson J said: "63 It is impossible to reconcile a notional starting point of 11 years by way of head sentence for the drug supply offence with the finding that the offence lay somewhat below mid-range. This conclusion supports the view that no real regard was had to the standard non-parole period of 15 years as a benchmark or guidepost on sentence. The fact that his Honour did not refer to the standard non-parole period again after his introductory reference to the maximum penalty and the standard non-parole period fortifies a conclusion that no proper regard was had to it in the imposition of sentence." 28Under Grounds 1 and 4, Johnson J made a similar analysis of his Honour's assessment of the objective seriousness of the firearm offence. His Honour observed that the location of the firearm with drugs and money gave rise to an inference, damaging to the applicant, which bore upon the objective seriousness of the offence. His Honour also had regard to how seriously the legislature regarded the offence, as was indicated by its maximum penalty. Johnson J considered that the observation by the sentencing judge "in the grand scheme of things the firearm offence is small" was inapt and erroneous. In that regard, the sentencing judge had wrongly assessed the objective seriousness of the firearm offence in a significant way. 29Johnson J found grounds 5 and 6 also made out. The manifest inadequacy flowed from the failure to accumulate and from the incorrect assessment of the objective seriousness of the offending. Johnson J said: "83 The sentencing Judge expressed the view, without elaboration, that the sentence for the firearm offence should be entirely concurrent with the sentence for the large commercial drug supply offence. For reasons already given, I am satisfied that error has been demonstrated concerning his Honour's characterisation of the firearm offence. 84 Error is also demonstrated through his Honour's failure to articulate the principles concerning concurrency, accumulation and totality, and to apply them to the case at hand. ..." 30Having determined that error had occurred in the sentencing process, it was necessary for the Court of Criminal Appeal to re-sentence the applicant. Johnson J dealt with this matter as follows: "96 I approach the determination of sentence on the large commercial quantity drug supply charge upon the basis that the Respondent's offence lay just below the middle of the range of objective seriousness for such an offence. The standard non-parole period of 15 years should be taken into account as a benchmark or guidepost, together with other relevant factors on sentence, with this assessment in mind. The reasons for this assessment of objective seriousness appear sufficiently at [59]-[62] above. The Respondent has no prior convictions. His prospects of rehabilitation are good. 97 Having regard to the objective seriousness of the drug supply offence and the Respondent's subjective factors, but before applying the total 50% discount for his plea and assistance, a non-parole period of 12 years with a balance of term of four years (applying the statutory formula) is the appropriate starting point. 98 The Form 1 offences, which are themselves relatively serious, are to be taken into account in the determination of sentence on the first count, and I have done so. 99 I approach the determination of sentence on the firearm offence upon the basis that the offence lay at the middle of the range of objective seriousness for such an offence. The standard non-parole period of three years should be taken into account as a benchmark or guidepost, together with other relevant factors on sentence, with this assessment in mind. The reasons for this assessment of objective seriousness appear sufficiently at [72]-[77] above. Having regard to the objective seriousness of the offence and the Respondent's subjective factors, but before applying the total 50% discount for his plea and assistance, a non-parole period of two years and eight months with a balance of term of 10 months and two weeks (applying the statutory formula) is the appropriate starting point. 100 I turn to the issues of accumulation, concurrency and totality. It is necessary for the Court to ensure that aggregation of sentences leads to a just and appropriate measure of the total criminality involved: R v MAK [2006] NSWCCA 381; 167 A Crim R 159 at 164-165 [18]. I am satisfied that a partly cumulative sentence is required in the circumstances of the case so that the Respondent should effectively serve an additional eight months by reference solely to the firearm offence. 101 I accept that a finding of special circumstances is appropriate, in particular by reference to the Respondent's own health issues. The accumulation of sentences also contributes to a finding of special circumstances. Of course, there should be no double counting of factors which will otherwise be taken into account in the Respondent's favour on sentence. In my view, a variation of the statutory ratio to non-parole periods of 50% of the head sentence is not warranted in this case. A variation of the statutory ratio to 65% is appropriate. ..." 31The applicant submits that the Court of Criminal Appeal gave excessive weight to the standard non-parole period in respect of each of the offences. The applicant contends that the standard non-parole period had a primary or determinative significance. It is submitted that if the applicant had been been "sentenced correctly in accordance with Muldrock his sentence would have been appreciably less than it currently is". 32The applicant submitted that the mitigating circumstance in this application is the possibility that had proper sentencing principles been applied by the CCA on the hearing of the Crown appeal, the outcome of the appeal may well have been different; the appeal may have been dismissed as Neilson DCJ's approach on sentence may no longer have been regarded as erroneous. Alternatively, the CCA may have been more inclined to exercise the Court's residual discretion not to intervene. Lastly, had the Crown appeal still be upheld the resulting sentence might have been less than that actually imposed. 33In my opinion, the applicant's submissions mistate the effect of the decision in Muldrock. There the plurality said: "27 Section 54B(2) and s 54B(3) oblige the court to take into account the full range of factors in determining the appropriate sentence for the offence. In so doing, the court is mindful of two legislative guideposts: the maximum sentence and the standard non-parole period. The latter requires that content be given to its specification as "the non-parole period for an offence in the middle of the range of objective seriousness". Meaningful content cannot be given to the concept by taking into account characteristics of the offender. The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending. 28 Nothing in the amendments introduced by the Amending Act requires or permits the court to engage in a two-stage approach to the sentencing of offenders for Div 1A offences, commencing with an assessment of whether the offence falls within the middle range of objective seriousness by comparison with an hypothesised offence answering that description and, in the event that it does, by inquiring if there are matters justifying a longer or shorter period. 29 A central purpose of Div 1A is to require sentencing judges to state fully the reasons for arriving at the sentence imposed. The reference in s 54B(4) to "mak[ing] a record of its reasons for increasing or reducing the standard non-parole period" is not to be understood as suggesting either the need to attribute particular mathematical values to matters regarded as significant to the formation of a sentence that differs from the standard non-parole period, or the need to classify the objective seriousness of the offending. It does require the judge to identify fully the facts, matters and circumstances which the judge concludes bear upon the judgment that is reached about the appropriate sentence to be imposed. The obligation applies in sentencing for all Div 1A offences regardless of whether the offender has been convicted after trial or whether the offence might be characterised as falling in the low, middle or high range of objective seriousness for such offences." 34It cannot be suggested that Johnson J engaged in a two step process. To the extent that any criticism can be levelled at his Honour's approach, it might be that he gave too much weight to the standard non-parole period. To make such a criticism, however, is to misunderstand the errors which his Honour identified in the sentencing judge's approach and the process which his Honour followed. The error, on the part of the sentencing judge, was a failure to adequately assess the objective seriousness of the offences. Because of that error, it was necessary for Johnson J to carry out that process. In doing so, he complied with the guidance of the High Court in Muldrock. When formulating the sentence, Johnson J followed the process required in Markarian v The Queen [2005] HCA 25; 228 CLR 357 in that his Honour took into account all the factors which were relevant to sentence, discussed their significance and then made a value judgment as to the appropriate sentence. 35It is significant that when referring to the standard non-parole period, his Honour referred to it as a persuasive benchmark or guidepost. He did not give it primary or determinative importance. It was merely one of the matters which he took into account when identifiying error on the part of the sentencing judge and when re-sentencing the applicant. This Court has noted on many occasions that an assessment of the objective gravity of an offence has always been an integral part of the sentencing process (Aitchison v R [2012] NSWCCA 82 at [11]). 36I am not persuaded that "Muldrock error" has occurred in the sentencing of the applicant. Accordingly, I do not entertain any doubt or question as to the mitigating circumstances in the applicant's case. 37The application is refused.