Anjoul v R

Court of Criminal Appeal (NSW)|2014-10-17|Before: Hoeben CJ, Hidden J, Davies J

Judgment 1HOEBEN CJ AT CL: I agree with Davies J. 2HIDDEN J: Undoubtedly, the extent of Raymond Anjoul's dependence on the applicant was a troubling, indeed distressing, issue in this case. However, as is apparent from the judgment of Davies J, the sentencing judge gave it careful consideration and afforded it the weight it deserved. Error has not been shown in his Honour's approach. 3I agree with the orders proposed by Davies J and with his Honour's reasons. 4DAVIES J: The Applicant pleaded guilty to the following five offences committed on 11 October 2013: (a) Sequence 2: Possession of a prohibited weapon, being a can of pepper spray. The maximum penalty is 14 years imprisonment. There is a standard non-parole period of three years; (b) Sequences 5 and 6: Possession of identification information to facilitate the commission of an indictable offence. The maximum penalty is 7 years imprisonment. (c) Sequence 7: Deal with the proceeds of crime being $950.00 knowing it was the proceeds of crime. The maximum penalty is 15 years imprisonment (d) Sequence 8: Supplying 168.4g of cocaine being the indictable quantity. The maximum penalty is 15 years imprisonment. 5The Applicant also pleaded guilty to two further summary offences committed on the same day. Those offences, which were before the District Court pursuant to s 166 of the Criminal Procedure Act 1986 (NSW), were as follows: (e) Sequence 1: Drive while suspended. The maximum penalty is 18 months imprisonment and/or a fine of $3,300 with an automatic period of disqualification of 12 months cumulative upon any period of disqualification or suspension existing at the time of conviction; (f) Sequence 4: Possession of a false licence. The maximum penalty is 20 penalty units being $2,200. 6On 11 September 2014 the Applicant was sentenced by Judge Sides in the District Court: (a) Sequence 2: A fixed term of four months to commence 27 July 2014; (b) Sequences 5 and 6: A fixed term of five months to commence on 27 July 2014; (c) Sequence 7: A non-parole period of six months with an additional term of six months to commence on 27 July 2014; (d) Sequence 8: A non-parole period of ten months commencing on 27 July 2014 and expiring 26 May 2015 with an additional term of 20 months. 7In respect of the two offences on the s 166 certificate the Court did not impose any penalty pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW). However, the Applicant was disqualified from holding or obtaining a licence for a period of 12 months commencing 23 October 2014. 8The Applicant seeks leave to appeal on two grounds as follows: (1) The learned Sentencing Judge erred in holding that there was no alternative to a sentence of full time custody of 30 months imprisonment. (2) The learned Sentencing Judge erred in failing to consider a sentence of full time custody wholly suspended pursuant to s 12 or the imposition of an Intensive Corrections Order.

The offences 9As a result of information obtained from the use of a telephone interception warrant, the police stopped the Applicant's vehicle on 11 October 2013. The Applicant was in the driver's seat. Investigations showed that the Applicant's licence was suspended. Present in the car was a child aged about three years old, unrestrained and occupying the passenger seat of the vehicle. 10By reason of intelligence the police had relating to the Applicant and the motor vehicle being involved in outlaw motorcycle gangs and firearm offences the police told the Applicant they proposed to search his vehicle. They asked if he had anything in the vehicle he wanted to disclose and he said that there was pepper spray in the glove box. When the police searched the glove box they found the pepper spray with the word "Police" on the front of the can. That gave rise to the possession of the prohibited weapon (sequence 2). 11The police also located a plastic box in the side step on the driver's side of the vehicle. Inside that box the police located a driver's licence number 15125050 in the name of Gerald Gray. The photograph on the licence bore a striking resemblance to the Applicant, including neck tattoos identical to those of the Applicant. The possession of the licence gave rise to the second matter on the s 166 certificate (sequence 4). 12Inside the box there was also a Medicare card and a Commonwealth Bankcard. His possession of those gave rise to the offences in sequences 5 and 6. 13The police also found $1,950 in cash which the Applicant said was from work. His possession of the cash gave rise to the offence in sequence 7. 14The police removed the glove box and located a clear, vacuum sealed bag inside which were six clear plastic bags. One of the six bags had a red seal. The bags contained white powder which the police at the time believed was cocaine. The white powder was sent to the Department of Analytical Laboratories and the white powder, which weighed 168.4g was found to be cocaine or a mixture of cocaine. That gave rise to the offence of supply being sequence 8.

Subjective matters 15The Sentencing Judge made the following findings concerning the Applicant's background. The Applicant was born on 21 July 1985. He was therefore aged 29 at the date of sentence. He was the third of five children of his parents and the Sentencing Judge noted that he had had the advantage of a supportive upbringing within a close family. He married in February 2008 and had two daughters, one born in April 2011 and the other in December 2012. 16The Applicant left school during year 10 without obtaining his school certificate to take up an apprenticeship as a plumber. He completed the apprenticeship and worked as a plumber in a family owned business until he became his brother Raymond's full time carer in circumstances that will be referred to. 17The Applicant started using cannabis during his teenage years and later progressed to what he described as recreational use of cocaine. 18He did not have the benefit of prior good character. In September 2004 he had been placed on a supervised bond for 12 months for assault occasioning actual bodily harm. In March 2008 he was placed on a bond for two years and fined for assault occasioning actual bodily harm. In April 2013 he was fined for possession of drugs. In addition, he had a long and unsatisfactory driving record. 19The significant matter in the evidence before the Sentencing Judge concerned the Applicant's older brother Raymond who has muscular dystrophy. Although lengthy, it is necessary to set out the Sentencing Judge's findings in this regard: One of the Offender's older brothers, Raymond has muscular dystrophy. This condition was diagnosed when Raymond was about 15 years old. That diagnosis occurred in the context of Raymond breaking his leg and it not healing over an extended period of time. This disease causes severe deterioration of muscle tissues and is highly degenerative. By the time Raymond was 21 he could not stand without help. For a long time after the diagnosis he was resistant to using a wheelchair and became quite dependent on the Offender to assist with mobility. Raymond sustained severe spinal and hip injuries in a motor vehicle accident in 2006. He has received a lump sum compensation payment in relation to those injuries. Obviously they added additional complications to those arising from his muscular dystrophy. Raymond was again injured in a motor vehicle accident in 2012, this time to his shoulder. Obviously this further aggravated his overall physical disability. He has sought compensation, but to date not received any compensation and there has been no admission of liability. Raymond's condition is such that he now has no movement at all on his left side of his body and has limited ability to contract muscles on the right-hand side of his body. He cannot grasp a cup and bring it to his mouth for the purposes of drinking or an implement to eat and he is entirely dependent upon others for sustenance. The Offender has been acting as his carer. Raymond lives in his own house and currently the Offender lives some distance away in Winston Hills. He arrives at Raymond's place at around 7.30am and gets Raymond out of bed. He remains caring for his brother until about 9.30pm when he goes home after putting Raymond to bed. It appears that there is no one with Raymond from then until the Offender's return at about 7.30 the next morning. Raymond's disabilities, including his shoulder injuries and his weight, means that his carer has to have considerable strength to lift him in a way that does not cause pain or aggravate the shoulder injury. The Court notes that the Offender receives a carers' pension. The Offender's mother, wife and sister do not have the capacity to provide all the care Raymond requires because of their inability to lift him. The Court notes that his sister and wife each have two very young children. According to Raymond's affidavit, his mother began to suffer medical problems about three years ago and, as a result was no longer able to do his washing, ironing or shopping. The evidence does not disclose the nature of his mother's health problems. The Offender's father cannot work because of a back injury and is not able to lift heavy objects such as his son Raymond. Jerry, the Offender's other older brother, works in a family business and is due to start work interstate in the near future which would take him away from home six days a week. It is expected that he will be working interstate for about two years. Elle, the Offender's younger brother, suffers from significant injuries that prevent him from working as a plumber. He currently works in Gerry's business doing accounts. According to his affidavit he suffers from memory loss and constantly forgets things and is unable to stick to a routine or timetables. Further, he is not able to stand for long times and cannot lift weights. He will also be working interstate for six days a week in the near future. Clearly his physical disability and memory problems mean that his capacity to care for or assisting caring for Raymond is very limited. The only independent assistance the Offender currently gets in caring for Raymond is via Anglicare that is funded by the Commonwealth Government. They attend twice a day for brief periods to shower and assist in toileting Raymond. Following the motor vehicle accident in September 2012, Raymond was diagnosed with major depressive disorder. As a result of the depression he became withdrawn and suffers from social phobia. He is extremely self-conscious in public and feels intense anxiety if he perceives people are staring at him. He also suffers from chronic unresolved pain that affects his left shoulder and radiates down his back. It disturbs his sleep and he has misused alcohol as a means of managing the pain. Further, his marriage broke down because of his social withdrawal. Since November 2013 Raymond has been undergoing cognitive behaviour therapy on a weekly or fortnightly basis. However, this treatment has been disrupted from time-to-time because his low mood affects his motivation to attend therapy. The Offender's involvement in treatment has secured his regular attendance and assisted with Raymond's gradual exposure to public situations that he so fears. Obviously, in order to be successful this is a very gradual process. The Offender has also assisted Raymond to avoid situations that lead to heavy consumption of liquor. Although the Offender has been involved in caring for Raymond before and after the motor vehicle accident in November 2012, Raymond's wife attended to many tasks but she and Raymond have now separated. Since their separation the Offender has undertaken the tasks previously performed by Raymond's wife. The Offender is familiar with Raymond's medical and psychological conditions and Raymond does not trust others, particularly in connection with carrying him, as he fears an aggravation of his chronic pain. The Court notes that, whilst the Offender was in custody bail refused in connection with these matter, Raymond fell out of his wheelchair and remained on the floor for about 45 minutes until Jerry arrived and discovered his plight. An ambulance was called and the Court understands it conveyed Raymond to hospital. Because of his psychological condition Raymond is vulnerable to exploitation. He is dependent on others for all activities, including feeding, grooming, as well as household chores, shopping and mobility. It is clear he has become dependent on the Offender and there is a risk that Raymond's psychological condition would suffer if the Offender were imprisoned and therefore no longer able to provide the support he currently provides. Currently the Offender is vital to undertaking the task requiring heavy lifting in connection with his brother Raymond and also plays a very important part in addressing his mental health and psychological issues. However, there is no reason why family members apart from the Offender cannot do other tasks, such as cooking, feeding and grooming. Further, there is no credible evidence that some other members of the Offender's family cannot undertake household tasks such as shopping and spending time with Raymond and taking him to appointments, as well as cleaning the house. There is no reason why those less physically demanding tasks could not be shared amongst other members of his family rather than falling exclusively on one of them. This would permit them to attend to other demands in their lives, such as children. In this context the Offender's wife, sister and sister-in-law could provide assistance to his parents to carry out the less demanding physical tasks. Further, there is no evidence about the availability of resources within the community to assist Raymond beyond what is done currently by Anglicare. It may well be the case that if the Offender is not available then such resources would be available to undertake tasks in connection with Raymond, including the heavier tasks associated with lifting him. 20The Applicant's evidence during the sentencing hearing was that he only became Raymond's fulltime carer after he was released on bail in respect of these offences in November 2013.

Assessment by the Sentencing Judge 21The Sentencing Judge said that he was satisfied beyond a reasonable doubt that each offence was premeditated and, in connection with the offence involving the drugs, the Applicant appreciated that he was enmeshing himself in organised criminal activity. Although his Honour found that no one suffered any harm from the cocaine or pepper spray because the police seized them, his Honour was satisfied beyond a reasonable doubt that the possession of the pepper spray was connected to the drugs. He thought the seriousness of the offence of possessing a prohibited weapon was well below the middle of the range of seriousness. 22In relation to the possession of the Medicare card and the Bankcard, the Sentencing Judge found that each was in the name of Gerald Gray which was the same name as on the false licence. His Honour found that the Applicant had two cards with the intention of committing fraud and was also satisfied that he had the fake licence to facilitate that activity. His Honour thought the possession of the false cards and licence was a serious example of the offence. 23The Sentencing Judge found that in the light of the nature of the other things in the Applicant's vehicle the $1,950 must have been related to illicit drugs or had been fraudulently obtained using the cards found during the search of the vehicle. His Honour said that the offence, while serious, was in the lower range. 24The Sentencing Judge said that the offence of supplying a prohibited drug was the most serious matter before the Court. The Sentencing Judge said that the evidence established that 28.5% of the contents of the bag with the red seal was pure cocaine. The purity of the cocaine in one of the other five bags was 17%. His Honour found that the quantity of substance containing cocaine was vastly greater than both trafficable quantity (3g) and the indictable quantity (5g), and was 67% of the commercial quantity (250g). 25Although it was contended on the Applicant's behalf that his role in the drug supply was that of a courier, the Sentencing Judge said that in the light of the money that was the subject of the proceeds of crime offence the Court was not satisfied beyond a reasonable doubt that the Applicant could exclude all inferences that would establish that his role was limited to being a courier. The Sentencing Judge was satisfied beyond a reasonable doubt that the Applicant was involved in drug trafficking at a wholesale level but was not satisfied that the Applicant's activities placed him in the upper echelons of the drug trafficking hierarchy. His Honour noted that it was an aggravating feature that he came into possession of the drug in the presence of a child. His Honour said that the Applicant was involved in drug trafficking to a substantial degree and it was a serious example of an offence under the provision.

Submissions on appeal 26It is convenient to deal with the two grounds of appeal together. 27In his written submissions the Applicant submitted that there were exceptional circumstances present by reason of the Applicant's care of his brother, and those exceptional circumstances could and should have been used by the Sentencing Judge to consider a sentence of other than full time custody. The Applicant submitted that that was particularly so when, in the course of sentencing proceedings, the Crown conceded that a suspended sentence was within range. 28Secondly, the Applicant submitted that the Sentencing Judge erred in concluding that the significant mitigating factors that justified a significant reduction in the custodial sentence were not such as to permit him properly to arrive at a custodial sentence of 24 months or less. 29These submissions were developed in argument by the Applicant asserting that his Honour had fettered his discretion by not first having regard to the non-parole period. The Applicant submitted that if his Honour had carried out the sentencing exercise properly he would have reached the view that a fixed term of two years or less was appropriate which would then have given him the option of considering whether the sentence should be suspended or could be served by a means of an Intensive Corrections Order. In first deciding what the overall sentence would be and by failing to make reference to s 45 of the Crimes (Sentencing Procedure) Act his Honour's discretion was thereby fettered. This was particularly so when a suspended sentence or an ICO was raised in submissions by the Applicant's counsel. 30The Applicant's counsel suggested that this Court, if it came to re-sentence the Applicant, might consider that a longer period was appropriate for the Applicant to be subject to some form of custody such as an ICO. 31The Crown submitted that, once his Honour had determined that the circumstances were "sufficiently exceptional to justify leniency" it was a matter for the Sentencing Judge's discretion to determine how and the extent to which the sentence should be ameliorated on account of those matters. In those circumstances the Applicant would need to demonstrate an error in the nature of those specified in House v The King (1936) 55 CLR 499. The Crown submitted that no such error was demonstrated. The Crown also submitted that his Honour took the course of reducing substantially the non-parole period after having considered what the appropriate sentence should be.

Consideration 32His Honour considered first whether there were exceptional circumstances based on the need for the Applicant to care for his brother. His Honour then, following R v Hinton [2002] NSWCCA 405 went on to consider what the appropriate sentence ought to be notwithstanding that finding. 33His Honour said this: The Court is of the view that whilst there is evidence of hardship to Raymond if the Offender is imprisoned it is not as compelling as in the cases of R v Puskas [2001] NSWCCA 43 or R v Hinton [2002] NSWCCA 405. The authorities make clear that leniency on the discrete basis of hardship to a third party can only be extended in highly exceptional cases. The Court is satisfied that in the circumstances of this case they are sufficiently exceptional to justify leniency on that discrete basis. However, such a finding does not mean that the appropriate sentence in a given case will not involve full-time imprisonment. Notwithstanding such a finding the sentence must reflect the objective criminality of the offending behaviour and general deterrence: Hinton [op cit] paras 34 to 35 and R v Togias (2001) 127 A Crim R 235. 34His Honour then discussed two cases involving an assertion of exceptional circumstances. He said that the Applicant's anxiety about his brother and his inability to care for him if incarcerated would make his time in custody more burdensome. His Honour said that the Applicant's prospect of rehabilitation and not re-offending were good. He said he took into account all of the purposes of sentencing and considered that a custodial sentence was a sentence of last resort. 35The Sentencing Judge then went on to say: Absent the drug offence the Court would [not] have imposed full-time sentences. The authorities make clear that, absent exceptional circumstances, a full-time custodial sentence must be imposed in connection with the drug offence. Whilst the hardship to his brother is a significant mitigating factor justifying a significant reduction in the custodial sentence, the Court is not persuaded that a custodial sentence of less than 30 months imprisonment is appropriate to reflect all the circumstances of that matter including the objective criminality. There is no alternative to full-time imprisonment in connection with a sentence of that length. The Court is satisfied in connection with the offences other than the supply that were the subject of the committal for sentence that custodial sentences are called for but, because they would not have been full-time sentences if he did not face the charge of supply, totality is appropriately reflected if they are served concurrently with the sentence imposed for the supply. 36This Court made clear in R v Zamagias [2002] NSWCCA 17 at [28] the process to be followed in determining the appropriate sentence. Howie J (with whom Hodgson JA and Levine J agreed) said: [26] Having determined that there is no other penalty appropriate other than a sentence of imprisonment, the court is next to determine what the term of that sentence should be; R v Foster [2001] NSWCCA 215 at [30]. This has been regarded as the first step of a two-step approach in the imposition of a sentence of imprisonment, see R v Blackman and Walters [2001] NSWCCA 121 at [50] to [52]; JCE at [17]. The determination of the term is to be made without regard to whether the sentence will be immediately served or the manner in which it is to be served. This is because any of the alternatives available in respect of a sentence of imprisonment can only be considered once the sentence has been imposed, see s 6 (periodic detention order), s 7 (home detention order) and s 12. It follows that the term of the sentence cannot be influenced by what order might be made after the sentence has been imposed. For example it cannot be increased because it is to be served by way of periodic detention: R v Wegener [1999] NSWCCA 405, or by home detention: R v Jurisic (1998) 45 NSWLR 209 at 249. Nor can the term be reduced because an otherwise appropriate alternative is unavailable: R v T (NSWCCA, 19 June 1995). ... [28] Once the term of the sentence has been determined the court is then to consider whether any alternative to full-time imprisonment is available in respect of that term and whether any available alternative should be utilised. The availability of an alternative to full-time custody will generally be governed by the length of the term that has been determined subject to the restrictions or pre-conditions imposed by the legislature on a particular sentencing alternative, see for example s 77 of the Act with respect to home detention. ... (Emphasis added) 37In Dipangkear v Regina [2010] NSWCCA 156 Whealy J (with whom Hodgson JA and Buddin J agreed) said at [34]: [34] The present situation of the law, relevant to the present appeal, may be briefly stated as follows: - (a) Where all the features of the particular case point to the need to impose a custodial sentence but there is evidence of extreme hardship, a court may take into account the extraordinary features of the case in any one of three ways. It may suspend the sentence of imprisonment. Alternatively, the sentence may be shortened, or the non-parole period decreased. (b) Each case will, to a very great degree, depend upon its own facts involving an evaluation of the seriousness of the objective circumstances of the offence committed, the extent of the requirement for general and, perhaps, specific deterrence, and the nature and degree of the impact of the sentence upon the third person. 38Nothing in s 44(1) of the Sentencing Procedure Act suggests that a different course should be followed. What is provided in s 44 is a procedural provision directed specifically to the establishment of a ratio between the non-parole period and the balance of the term. It does not direct the Sentencing Judge, as part of the process of instinctive synthesis, to identify the non-parole period before considering what the overall term will be. Such an approach would be inconsistent with provisions in the Sentencing Procedure Act such as s 6 (home detention), s 7 (intensive correction orders) and s 12 (suspended sentences). 39The issue of an ICO was raised in passing during sentencing submissions. Counsel for the Applicant submitted that the Sentencing Judge could consider a suspended sentence "or even an ICO". During the Crown submissions the Sentencing Judge raised the matter of an ICO but said that he doubted if the Applicant would be assessed as suitable. The Sentencing Judge also raised with the Applicant's counsel about the benefit of an ICO for the purpose of enabling the Applicant to look after his brother Raymond when the Applicant would be subject to a 12 months disqualification from driving and there was a 20 minute drive from the Applicant's home to his brother's home. 40Although his Honour fixed a non-parole period of ten months he did so after having assessed that an overall term of 30 months was the appropriate period of imprisonment. That assessment necessarily resulted in a suspended sentence or an ICO being further excluded from further consideration. It cannot be inferred that his Honour overlooked the sentencing alternatives particularly given the exchange referred to above. 41Having determined that nothing less than a term of 30 months was appropriate his Honour then adopted one of the courses open to him on the basis of his finding of exceptional circumstances, that is, a significant reduction in the non-parole period. Since his Honour proceeded in an entirely orthodox manner it cannot be said that he fettered his discretion. 42Contrary to the Applicant's submissions the Crown did not accept that a suspended sentence was within range. The following exchange occurred: HIS HONOUR: So the thrust of your submission, Mr Crown, is that a suspended sentence would not reflect the overall gravity of the offending behaviour? MODDER: That's correct, your Honour. 43In my opinion, no error is demonstrated in the approach taken by the Sentencing Judge. He correctly said that the authorities make clear that in the absence of exceptional circumstances a full time custodial sentence must be imposed in connection with the drug offence. He noted that the hardship to the Applicant's brother was a significant mitigating factor which justified a significant reduction in the custodial sentence but said he was not persuaded that a custodial sentence of less than 30 months was appropriate to reflect all the circumstances of the matter including the objective criminality. The Sentencing Judge's additional observation that there was no alternative to full time imprisonment in connection with a sentence of that length indicates that his Honour gave consideration to the alternatives that had been put to him during submissions, namely, a suspended sentence and an ICO. 44His Honour was under no obligation first to consider a fixed term under s 45. The fact that his Honour ultimately imposed a non-parole period of ten months does not give rise to any inference that his Honour erred in not referring to s 45 or to sentences that did not involve full time custody. Moreover, it is not necessary for the sentencing court expressly to state that it has applied the two staged approach (in Zamagias at [28]) in arriving at the sentence imposed: Douar v R [2005] NSWCCA 455 at [62]. 45Although not raised by either party on the appeal, it should be observed that his Honour appears to have imposed a fixed term of imprisonment in respect of the offence of possessing a prohibited weapon (sequence 2). This offence carries a standard non-parole period. A fixed term is not therefore available as a sentencing option: s 45(1) Sentencing Procedure Act. Since the term for that offence has now expired it is not necessary for the error in relation to that sentence to be corrected. 46In my opinion, the following orders should be made:

Leave to appeal granted.
Appeal dismissed.

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