AMZ v R

Court of Criminal Appeal (NSW)|2012-12-10|Before: McClellan CJ, Latham J, Adamson J, Clellan CJ

Judgment 1McCLELLAN CJ at CL: I agree with Adamson J. 2LATHAM J: I agree with Adamson J. 3ADAMSON J: The applicant seeks leave to appeal against the sentence imposed on him in the District Court by Berman DCJ on 2 December 2011. 4In August 2010, the applicant became involved in an organised criminal syndicate. Initially, he arranged for money to be transported from Perth to Sydney. By November 2010, the applicant was involved in supplying large commercial quantities of prohibited drugs. This involvement continued until his arrest on 15 February 2011. 5Upon arrest the applicant made admissions and assisted police by providing valuable information about the syndicate in which he had participated. 6The applicant pleaded guilty in the Local Court and appeared in the District Court for sentence. The offences for which the applicant pleaded guilty, and the sentences imposed by the Sentencing Judge are summarised below: Period of offending Offence Max penalty SNPP Sentence, taking into account 55% discount and special circumstances 1 Oct 2010 - Participate in a criminal group: Crimes Act 1900 s 93T 5 years None 2 years fixed term, starting 15 Feb 2011 15 Feb 2011 9 Nov 2010 - 13 Nov 2010 Supply large commercial quantity of prohibited drug, 6kg methylamphetamine: Drug Misuse and Trafficking Act 1985 (DMTA) s 25 Life 15 years 9 years imprisonment with a non-parole period of 6 years, starting 15 Feb 2011 26 Nov 2010 - 1 Dec 2010 Supply large commercial quantity of prohibited drug, 6kg methylamphetamine: DMTA s 25 Life 15 years 14 Dec 2010 - 20 Dec 2010 Supply large commercial quantity of prohibited drug, 1.05kg heroin: DMTA s 25 Life 15 years 6 years imprisonment with a non-parole period of 4 years, starting 15 Feb 2012 14 Dec 2010 - 20 Dec 2010 Supply large commercial quantity of prohibited drug, 6kg methylamphetamine: DMTA s 25 Life 15 years 9 years imprisonment with a non-parole period of 6 years, starting 15 Feb 2012 12 Feb 2011 - 15 Feb 2011 Supply large commercial quantity of prohibited drug, 10kg methylamphetamine: DMTA s 25 Life 15 years Taking into account the Form 1 offences (listed below) 11 years imprisonment with a non-parole period of 7 years, starting 15 Feb 2013

7The applicant asked the Sentencing Judge to take into account the following offences on a Form 1 when sentencing on the final drug offence listed above: (1)Possess prescribed restricted substance, namely anabolic steroids, contrary to s 16 of the Poisons and Therapeutic Goods Act 1966; and (2)Deal with the proceeds of crime, namely $16,500, contrary to s 193C of the Crimes Act. 8The total sentence was thirteen years commencing on 15 February 2011 and expiring on 14 February 2024, with a non-parole period of 9 years expiring on 14 February 2020. 9But for the reduction of 55%, the total sentence would have been for a period of 29 years, with a non-parole period of 20 years. 10The Sentencing Judge imposed individual non-parole periods of between 63% and 65% and an overall non-parole period of 69% of the total sentence.

Grounds of appeal 11The grounds of appeal are: (1)The Sentencing Judge erred in unduly constraining his discretion to discount the sentence on the basis of the applicant's plea and the assistance offered. (2)The Sentencing Judge failed to record the reasons for finding special circumstances, contrary to s 44(2) Crimes (Sentencing Procedure) Act. (3)The Sentencing Judge failed to take into account, adequately, the limited nature of the role performed by the applicant. (4)The sentence imposed was manifestly excessive.

The first ground: the discount for plea and assistance 12Section 22 of the Crimes (Sentencing Procedure) Act requires a Court to take into account when passing sentence on an offender who has pleaded guilty, the fact of, and circumstances surrounding, the plea. Section 23 of the Crimes (Sentencing Procedure) Act confers a power on the Sentencing Judge to reduce the penalty that he or she would otherwise impose on an offender having regard to the degree of assistance provided, or to be provided, by the offender. Section 23(2) provides that such lesser penalty must not be: "unreasonably disproportionate to the nature and circumstances of the offence." 13From the time of his arrest on 15 February 2011, the applicant provided police with details of his involvement, and that of others, in the syndicate. He furnished police with information that they might not otherwise have been able to obtain, which assisted them to intercept communications. He offered to give evidence against members of the syndicate. The Sentencing Judge said, in the Remarks on Sentence (ROS): "This is high level assistance. I will not say it is unknown, but assistance at this level is uncommon. It was immediate, comprehensive and useful. It has led to there being genuine risks to the offender's safety whilst he is in custody and upon his eventual release." 14The Sentencing Judge also referred in the ROS to the "enormous assistance" that the applicant has provided to authorities and his promise to do "even more". The Sentencing Judge referred to the need to ensure that the discount for plea and assistance was not so great that the ultimate sentence does not bear a reasonable relationship to the criminality of the offender's conduct. 15The applicant contended, before the Sentencing Judge, that the appropriate discount was 60%. The Crown did not make submissions against this figure on the basis that the selection of the percentage discount was ultimately a discretionary matter for the Sentencing Judge. The reasons for his Honour's selection of the figure of 55% largely appear from the following passage from the ROS: "I confess to being unable to see how, if a person is required to serve only 40% of the sentence that they would otherwise have to serve absent plea and assistance, how that sentence can ever not be unreasonably disproportionate to the circumstances of the offence. I note that, on occasions, the Court of Criminal Appeal itself has discounted sentences by 60 % and I have to recognise that they are superior to me. I have decided that the sentence that I will impose will be 55 % less than it would otherwise have been." 16The basis for the applicant's submission that the Sentencing Judge unduly constrained his discretion appears to be that his Honour refused to countenance the discount of 60% for which the applicant contended. 17It may be accepted that there are some restrictions on discounts for assistance and pleas. As Howie J, with whom Simpson J agreed, said in SZ v R [2007] NSWCCA 19; 168 A Crim R 249 at [4]: "There...[is] a bottom line beneath which a sentence cannot legitimately be set. If that bottom line is not respected, the sentence will fail to carry out the purposes of punishment." 18However, the "bottom line" did not need to be explored in the instant case. It is, in my view, apparent from the passage set out above, that his Honour accepted that it was within the range of his discretion that a discount of 60% be applied, since he specifically referred to the authority of this Court and the circumstance that at times such a discount has been applied by this Court. The Sentencing Judge's decision to select 55% rather than 60% as contended for, was, in my view, an unremarkable exercise of discretion.

Further ground: evidence of further assistance 19At the hearing of the leave application, the applicant sought to make out a further ground in support of a greater discount for plea and assistance than 55%. He contended that the material before the Sentencing Judge as to the way in which the applicant assisted police had not been as expansive as is presently available to this Court. In support of this submission, the applicant relied on Springer v R [2007] NSWCCA 289; 177 A Crim R 13 (Springer). 20The applicant in Springer had, upon arrest, co-operated with police and made full admissions as to his involvement and to the involvement of others engaged in drug importation. At the time of sentence, the police assessed the worth of Springer's assistance as only of "intelligence value" rather than as potentially assisting in the apprehension and prosecution of other suspects. He was, accordingly, sentenced on that basis. However, Spring continued to assist after the imposition of the sentence. His assistance result in further investigations, the arrest of a suspect and the possible arrest of others. On his application for leave to appeal, Springer sought to introduce the post-sentence events as "fresh evidence". As a result, this Court decided that Springer's assistance had been, with the benefit of hindsight, underestimated. Consequently, Springer was re-sentenced and an overall discount of 50% was allowed for all assistance, past and present. 21In support of his application before this Court, the applicant tendered, through the Crown, material which was before the Sentencing Judge as to the assistance which had been offered and provided by him and an undertaking to provide assistance, including to give evidence as a Crown witness in future court proceedings against the persons named in the document. The material before the Sentencing Judge listed the persons who had been arrested and charged as a result of the assistance given by the applicant and those in respect of whom he had undertaken to give evidence. 22The material relied upon before this Court as to the assistance provided and promised by the applicant was substantially the same as that before the Sentencing Judge, apart from the addition of a further name of a person said to be a person of interest, against whom the applicant had undertaken to give evidence as a Crown witness. 23I do not consider this so-called "fresh" material to be of the calibre adverted to by this Court in Springer. Unlike in Springer, the Sentencing Judge correctly assessed, even with the benefit of hindsight, the value of the assistance provided, and to be provided, by the applicant. His Honour assessed it on the footing that it had led to the arrest and charging of suspects and could lead to the successful prosecution of such persons. I do not consider this new ground to establish any proper basis for this Court to re-sentence the applicant by altering the overall discount for plea and assistance.

The second ground: alleged failure to give reasons for finding special circumstances 24The applicant submitted that, although it could be assumed from the rate between the non-parole period and the head sentence that the Sentencing Judge had found special circumstances, his Honour fell into error by not explaining the basis of such a finding. He contended that this Court ought re-exercise the discretion to diminish the ratio between the non-parole period and the head sentence even further. 25A judge is not required to make express findings about every matter germane to the decision absent a statutory provision which requires it. It will be sufficient if a finding is appropriately clear by inference: Selvanayagam v University of West Indies [1983] 1 WLR 585 at 587-588. 26Section 44(2) of the Crimes (Sentencing Procedure) Act relevantly provides: "The balance of the term of the sentence must not exceed one-third of the non-parole period for the sentence, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of reasons for its decision)." 27The statutory requirement is that the Sentencing Judge give reasons for any finding of special circumstances. 28The ROS were delivered on the same day as the sentence hearing following a short adjournment after the conclusion of the evidence. The applicant contended in written submissions that several factors warranted a finding of special circumstances: conditions in custody, accumulation, youth and good prospects of rehabilitation. The Sentencing Judge made specific findings about the factors relied upon by the applicant. 29That the Sentencing Judge fixed a ratio between the non-parole period and the total term for each offence and for the offences in aggregate which was less than 75% gives rise to an implicit finding of special circumstances. I would not readily conclude that his Honour's application of a percentage lower than 75% was unwitting, as distinct from a proper exercise of discretion following the Sentencing Judge being satisfied that there were special circumstances. In this context, the fact that the Sentencing Judge did not make an express finding of special circumstances, does not undermine the conclusion that his Honour considered the question of special circumstances and was satisfied that special circumstances had been established. Furthermore, in my view his Honour gave reasons for the implicit finding of special circumstances because he made findings about the facts put forward as warranting such a finding. 30I consider his Honour's reasons to be sufficient to indicate to the parties and to this Court the basis of his finding of special circumstances: Housing Commission of NSW v Tatmar Pastoral Co (1983) 3 NSWLR 378 at 386F, per Mahoney JA. I consider that in all the circumstances the Sentencing Judge complied with the obligation imposed by s 44(2) of the Crimes (Sentencing Procedure) Act. 31In any event, Parliament specifically contemplated that reasons might not be given for a finding of special circumstances and provided that the non-compliance with s 44(2) did not have the effect of vitiating the sentence: s 44(3). 32For these reasons, this ground fails.

Additional ground: application of discount to non-parole period 33At the hearing of the application, the applicant raised a further ground, namely that it was not clear from the reasons the extent to which the 55% discount had been applied and, in particular, whether it had been taken into account only in respect of the head sentence, or whether it had also affected the length of the non-parole period. 34I do not consider there to be any substance in this ground. The discount was required to be applied to the total length of the sentence. Once the length of the sentence had been determined having regard to the discount, the effect of the discount was spent. The Sentencing Judge was then required to consider whether there were special circumstances and if so, whether the non-parole period should be reduced to a period less than 75% of the total discount. His Honour did so and set the non-parole period accordingly.

Third ground: the Sentencing Judge failed to take account of the limited role played by the applicant 35The Sentencing Judge's findings about the applicant's role, which were not challenged, appear in the following passage in the ROS: "Some attention has been made in submissions to the offender's role. Perhaps the best description is one adopted by the Crown. He acted as the personal assistant to the principal. It goes without saying that he was not a principal, but his role was much higher in the hierarchy than a mere courier. On the other hand, as Mr Lange points out, it appears that what the offender did was at the direction of others. I cannot recall anything in the statement of facts which suggests that the offender has exercised any independent or innovative thought about this drug supply business. He did what others told him to do. But he did those things enthusiastically and he did them well." 36The applicant was not addicted to drugs, and became involved purely for financial gain. He was 24 years old when the offences were committed. 37As the Sentencing Judge said: "The authorities suggest that this is the most serious form of drug supplier, a person who did this for financial reward." 38Nonetheless, the applicant's rewards were not substantial compared with others higher up in the syndicate. 39There is no challenge to the Sentencing Judge's findings of fact about the applicant's role. No error has been shown in his Honour's assessment. I do not consider there to be any merit in the suggestion that his Honour did not adequately take into account the applicant's role.

Fourth ground: the sentence imposed was manifestly excessive 40As can be seen from the table at the commencement of these reasons, the five drug offences each carry a maximum life sentence and a standard non-parole period of 15 years. These legislative guideposts provide an indication of the seriousness with which Parliament views such offences: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [27]. 41Each offence involved not less than a "large commercial quantity". The prescribed quantity for "large commercial quantity" for each relevant drug, methylamphetamine and heroin, was 1 kg. The quantity of heroin supplied was, at 1.05 kg, slightly in excess of a large commercial quantity but the quantities of methylamphetamine were substantially in excess of the threshold. The value of the drugs was substantial. All of the supply offences took place within a three-month period. 42There can be no doubt as to the objective seriousness of the offences to which the applicant pleaded guilty. As can be seen from the table, the first three sentences ran concurrently. The fourth sentence is subsumed in the first. There was limited accumulation of two years in total. 43The Sentencing Judge considered the applicant's subjective circumstances in a manner which was not said to involve error. I do not consider any of the individual sentences or the total sentence imposed to be other than within the range of an appropriate exercise of discretion. 44I propose the following orders: (1)Grant leave to appeal. (2)Dismiss the appeal.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 February 2013

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