Allan v R

Court of Criminal Appeal (NSW)|2023-08-02|Before: Beech-Jones CJ, Fagan J, Dhanji J, Dhanji JJ

HEADNOTE [This headnote is not to be read as part of the judgment] On 21 September 2022 the applicant was sentenced for two offences of supplying methylamphetamine on an ongoing basis contrary to s 25A(1) of the Drug Misuse and Trafficking Act 1985 (NSW). One more charge under s 25A(1) plus other minor drug offences and one count of possession of a prohibited weapon (an extendable baton) were taken into account on a Form 1 in sentencing for the first s 25A(1) matter. The applicant was sentenced after pleading guilty in the Local Court. The offences constituted low-level street dealing, conducted by text from the applicant's home. The combined total of methylamphetamine concerned in the transactions was 24.35 grams over 11 weeks. The applicant dealt in the drug to fund his own consumption. The applicant was a 36-year-old man with a record of mainly property offences commencing from age 30. He had served three terms of imprisonment totalling 2 years and 5 months over the preceding 4½ years and was both on parole and subject to a community correction order when the drug supply offences were committed. The applicant was diagnosed with major depressive disorder and substance use disorder, both attributed to traumatic sexual abuse by a teacher when he was 9. After allowance of a 25% discount for his early pleas, the applicant was sentenced to an aggregate term of 4 years and 9 months' imprisonment with a non-parole period of 2 years and 10 months. Special circumstances were found to warrant the 60% ratio. The sole ground of appeal was that the sentence was manifestly excessive. The Court held (Beech-Jones CJ at CL, Fagan and Dhanji JJ), granting leave to appeal and allowing the appeal: The sentence was manifestly excessive. Although the sentencing judge made positive findings concerning the applicant's strong subjective case, the mitigation of penalty that those findings indicated with respect to an episode of small-scale drug supply was not carried through into the aggregate sentence. An aggregate term of 3 years' imprisonment with a non-parole period of 2 years and 1 month was ordered in lieu: at [15]-[17].

JUDGMENT

THE COURT: The applicant seeks leave to appeal against an aggregate sentence fixed by his Honour Judge Arnott SC in the District Court at Goulburn on 21 September 2022. The applicant pleaded guilty in the Local Court to two offences of supplying drugs on ongoing basis, contrary to s 25A(1) of the Drugs Misuse and Trafficking Act 1985 (NSW). The maximum penalty is 20 years.
The first offence was committed between 16 April and 14 May 2021. It involved 13 sales of methylamphetamine and 10 further events in which the applicant either agreed to supply or offered to supply the drug. The quantities ranged from 0.1g for $50 to 3.5g for $450. A total of 12g was involved in the sales and other events, combined.
The second offence was committed between 18 May 2021 and 14 June 2021. There were 9 actual sales and 9 agreements to sell or offers. The range of the individual quantities was the same as for the first count. The total quantity involved in all sales and other events was 10.95g.
In sentencing for the first offence the learned judge took into account several other matters on a Form 1. One of those was a third s 25A(1) offence committed between 18 June and 8 July 2021, involving seven transactions for a total quantity of about 1.4g of methylamphetamine. The other Form 1 offences were supply of 0.5g of cocaine (s 25(1) of the Drug Misuse and Trafficking Act); supply of 11g of cannabis leaf (s 25(1)); possession of 0.42g of meth-amphetamine (s 10(1)); possession of a prohibited weapon, namely, an extendable baton (s 7(1) of the Weapons Prohibition Act 1998 (NSW)).
His Honour nominated an indicative sentence for the first offence of 3 years and 9 months and for the second matter 3 years after allowing a 25% discount. The aggregate sentence imposed was 4 years and 9 months with a non-parole period of 2 years and 10 months, being a ratio of 60%. The applicant had been arrested on 8 July 2021 and the sentence dated from then. The sole ground of appeal is that the sentence is manifestly excessive.
As revealed by the nature and particulars of the three charges under s 25A(1), the applicant was a street level dealer. He conducted his transactions by text messages and the drugs were picked up from his home. There was no sophistication in his activities. The total amount of drugs involved in the two offences plus the additional charge under s 25A(1) that was taken into account on the Form 1 was 24.35g, over a period of 11 weeks.
The applicant was aged 36 years at the time of the offending. He has a criminal record dating from 2015, when he was 30 years old. He has served a total of 2 years and 5 months in prison for his past offences, in three separate terms over 4½ years. The principal events on the applicant's record are as follows:

2 June 2015: assault occasioning actual bodily harm; use of a carriage service to menace, harass or offend. Total effective sentence 12 months imprisonment commencing 19 April 2016 with a non-parole period of 9 months. The applicant was released to parole on 18 January 2017.
8 January 2016: dishonestly obtain property by deception. Sentenced to 10 months imprisonment with a non-parole period of 7 months. Served concurrently with the sentence for the offences of 2 June 2015.
4 March 2016: three counts of larceny. Concurrent sentences of 10 months with a non-parole period of 7 months. Served concurrently with the sentence for the offences of 2 June 2015.
27-29 April 2018: larceny; destroy or damage property; goods in custody. Sentence comprised in the aggregate imposed on 18 December 2018.
2 May 2018: steal from vessel in port at Port Kembla. Sentence comprised in the aggregate.
16 May 2018: goods in custody. Sentence comprised in the aggregate.
4 September 2018: shoplifting. Sentence comprised in the aggregate.
20 September 2018: possess housebreaking implements. On 18 December 2018 an aggregate sentence of 2 years was fixed, commencing 29 August 2018 with a non-parole period of 1 year concluding on 19 September 2019. Released to parole on that date.
24 December 2019: dispose of stolen property. Sentenced to 1 year and 4 months imprisonment commencing 14 January 2020 with a non-parole period of 8 months expiring 12 September 2020.
1 January 2021: possess or use a prohibited weapon. Community correction order made on 16 February 2021 with a duration of 18 months.

Interspersed with the above property and dishonesty offences there have been convictions for driving with an illicit drug present in the applicant's blood and driving whilst disqualified. At the time of commission of the first of the offences for which he was sentenced by Judge Arnott SC the applicant was on parole under the sentence imposed for the offence of disposing of stolen property committed on 24 December 2019. That sentence did not expire until 12 May 2021. He was also under the community correction order made on 16 February 2021.

Subjective case

Detail of the applicant's early background was tendered to the sentencing judge by way of a history that he had given to a forensic psychologist, Mr North. The applicant gave evidence before his Honour and adopted the factual matters in Mr North's report. The applicant was not challenged about that history. He had a stable upbringing but was psychologically damaged at the age of nine by the traumatic experience of sexual abuse, in a severe form and on multiple occasions, by a teacher at his public school. The applicant had not disclosed that experience to anyone until about a year before he was sentenced, whilst he was in custody on remand. Since then he had instructed solicitors to commence proceedings to recover damages for personal injury arising from the abuse. Based on the history given, the psychologist assessed that the applicant had suffered, for over 20 years since about the age of 13, lowered mood, social withdrawal, loss of motivation and lowered sense of self-worth.
The applicant commenced using drugs from the age of 13. Over the years since then he has used cannabis, heroin, benzodiazepines and, from the age of 21, methylamphetamine. He described having resorted to these drugs to numb thoughts and emotions relating to the sexual abuse. The applicant left school after Year 10 and has held various unskilled jobs. He has not worked since about 2019, at age 34. He gave evidence that his drug selling was for the purpose of supporting his own use. Despite his record of other types of offences, the applicant has not previously come before the courts for drug distribution.
In more recent years the applicant has experienced social anxiety, particularly after release from the terms of imprisonment that he has served, which have left him feeling stigmatised. Mr North found that he met the diagnostic criteria for recurrent episodic Major Depressive Disorder and substance use disorders.
The learned judge accepted the applicant's history and the conclusions and diagnoses drawn from it by the psychologist. His Honour made a number of further findings with respect to the applicant's subjective circumstances that were highly favourable to mitigation of sentence, including the following: I accept the opinion of Mr North that the offender's unresolved childhood trauma issues have led directly to his mental health issues and substance use issues. I further accept the offender's evidence that he sold drugs to his friends and associates to predominantly fund his own drug use. I find the offender's experience of childhood sexual abuse engaged the principles in the High Court case of Bugmy v The Queen (2013) 249 CLR 571 and reduce his moral culpability for his offences. [Because] the offender started using cannabis at 13 years old which coincided with the symptoms of his mental health issues when he began to understand the nature of his traumatic experiences, his initial engagement in the drug was not his personal choice. I accept that submission. Adding to serving [scil making] his present sentence more difficult … has been the impact of the Covid-19 crosses on the conditions of imprisonment and the difficulties of contact with friends and family. He gave evidence of four periods of lockdown in the past, each two months at a time. [He] has demonstrated remorse and contrition. I find his prospects of rehabilitation and not reoffending are guarded and clearly dependent on remaining illicit-drug free and addressing the underlying mental health issues which led to his use of drugs. On the positive side, he is presently motivated towards engaging in both psychological and substance abuse treatment, he is hoping to find a job when his release from custody and he has the support of his father. He has been working at the light engineering unit for the past 13 months in custody … with records indicating a good attitude.
The evidence before the learned judge established that the applicant's mother died in 2009 and that his remaining parent is in fragile health. The applicant's father has suffered from chronic renal impairment for over 20 years. He has heart disease and has recently suffered complications arising from the use of blood thinning medication. This has contributed to the development of a duodenal ulcer. Mr Allan senior is now 74 years old and in July 2022, when the applicant had been in remand on these charges for one year, he collapsed and required a blood transfusion at a hospital Emergency Department. The learned judge accepted the applicant's evidence concerning his regret at having caused disappointment to his father. It may be expected that such regret is all the more acutely felt in the circumstances of his father's health crises.
The applicant's criminal conduct from the age of 30 years receives a measure of explanation from his personal history and from Mr North's report, which together expose the disabling trauma from childhood that has undermined the applicant. With that explanation and noting the late commencement of offending and the absence of previous drug supply offences, the applicant's record is not as decisively disentitling of lenience as it might at first appear. Viewed in the light of all contextual circumstances, his record is not inconsistent with the learned judge's expectations for the applicant's rehabilitation. It remains the case, however, that the episode of offending now under consideration commenced while the applicant was on parole and continued during the currency of a community correction order.

Conclusion and orders

Quantity of drugs is not the only criterion of objective seriousness of offences against s 25A(1). However, it is significant that the quantity involved here was, relatively, very small at 24.35g over 11 weeks. This was minor street dealing, which his Honour accepted had been conducted to fund the applicant's own usage rather than to make large profits by exploiting others' consumption of the drug. The applicant's counsel has pointed out, persuasively, that significantly more serious offending against s 25A(1) has been considered in several cases in this Court where collateral circumstances were otherwise comparable, yet the sentences imposed or upheld in those cases were not much greater than the aggregate imposed on the applicant. The applicant cites R v Wong [2018] NSWCCA 20; El Masri v R [2022] NSWCCA 27; Newman v R [2022] NSWCCA 218.
We are of the view that the aggregate sentence imposed was manifestly excessive. With respect, his Honour did not carry through, into the sentence imposed, the effect of his findings in mitigation with respect to this small-scale street dealing. We consider that the indicative sentences nominated by his Honour are unduly long and, more significantly, that the degree of notional accumulation, being a full year, is unwarranted having regard to the homogenous nature of the offending in the two principal matters, all of which occurred within a single, relatively short episode.
The aggregate sentence should be quashed and the applicant should be resentenced to 3 years and 6 months imprisonment with a non-parole period of 2 years and 1 month. The ratio of 60% adopted by the learned judge is appropriate in light of his Honour's finding of special circumstances. A period of supervision on parole would be desirable to facilitate the applicant's reintegration into the community and his rehabilitation. We nominate the following indicative sentences: For the first offence, being sequence 57 on charge sheet H1217236, taking into account all matters on the Form 1 as were taken into account in the District Court proceedings: 3 years imprisonment. For the second offence, being sequence 61 on charge sheet H1217236: 2 years and 10 months imprisonment.
The orders of the Court are as follows: 1. Quash the aggregate sentence ordered on 21 September 2022 in respect of sequences 57 and 61 on charge sheet H1217236. 2. In lieu thereof the applicant is sentenced to imprisonment for an aggregate term of 3 years and 6 months commencing on 8 July 2021 and expiring on 1 January 2025 with a non-parole period of 2 years and 1 month expiring on 7 August 2023. 3. The applicant has been eligible for release to parole from 7 August 2023.

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Drugs Misuse and Trafficking Act 1985(NSW)

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