Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)
File Number(s): 2012/265272
Decision under appeal Court or tribunal: District Court of New South Wales
Jurisdiction: Criminal
Date of Decision: 18 September 2015
Before: Townsden DCJ
File Number(s): 2012/265272
[2]
Judgment
Hoeben CJ at CL: I agree with Button J and the orders he proposes.
Campbell J: I agree with Button J.
Button J:
Background
The background to this application for leave to appeal against sentence is as follows.
In September 2014, the applicant was arraigned at the commencement of a trial by judge alone in the District Court of New South Wales before Judge Townsden. He was called upon to plead to three counts.
The first count resulted in a verdict of not guilty, and need not be discussed further.
The second count, which was in the alternative to the first, alleged that the applicant had knowingly taken part in the manufacture of methylamphetamine. The maximum penalty for the offence was imprisonment for 15 years, with no standard non-parole period provided by Parliament. The applicant pleaded guilty to that alternative count on arraignment, and indeed had offered to do so for many months beforehand. He was duly found guilty of that offence.
The third count alleged that the applicant had supplied a large commercial quantity of methylamphetamine; namely 1,094.5 grams. The maximum penalty was imprisonment for life, and a standard non-parole period of 15 years applied. Although the applicant entered a plea of not guilty to that offence, his Honour returned a verdict of guilty at the end of the trial.
Separately, the applicant pleaded guilty in the Local Court to two further serious drug offences.
The first (sequence 13) was that he supplied a large commercial quantity of heroin; namely 1,049.98 grams. The maximum penalty was imprisonment for life, with a standard non-parole period of 15 years.
The second matter committed for sentence (sequence 15) was that the applicant supplied a commercial quantity of heroin; namely, 613.89 grams. The maximum penalty was imprisonment for 20 years, and a standard non-parole period of 10 years was applicable.
Sequence 15 also had "attached" to it a number of less serious offences, placed on a Form 1 pursuant to the Criminal Procedure Act 1986 (NSW). I shall detail those offences shortly.
Objective features
His Honour summarised the facts pertaining to the methylamphetamine offences as follows:
…the offending activity relates to a relatively short period of time in March 2012, which included the offender having gone to Queensland to make arrangements for the stainless steel keg which was to be the reaction vessel; collecting the person Jacobs (the cook) from the airport and driving him around; liaising with the person Singh as to the use of premises; facilitating and/or arranging the lab and items required for the cook; assisting Jacobs in shopping for items; bring [sic: being] present during the cook; purchasing ice from a 7-Eleven during the cook; playing some role in sourcing or obtaining the sample, or what was believed to be precursor, to be used for the cook; and playing some role in sourcing 1094.5 grams of methylamphetamine, which was sent with the lab to Queensland, albeit believing it to be a precursor.
Turning to the two offences of suppling heroin, it suffices to say that, on many occasions, the applicant supplied that drug to a police source, in return for hundreds of thousands of dollars.
As for the count of supplying that drug in a commercial quantity (over 613 grams), it was made up of a number of actual supplies.
The first supply was 56.1 grams of heroin (of 44% purity), in return for $17,000 cash.
The second supply was 111.28 grams of heroin, made up of 111.1 grams (of 44% purity) and 0.18 grams (of 28% purity), in return for $34,000 cash.
The third supply was 112.2 grams of heroin (of 40.5% purity), in return for $34,000 cash.
The fourth supply was 27.67 grams of heroin (of 35.7% purity), in return for $8,500 cash.
The fifth supply was 55.387 grams of heroin (of 31.5% purity), in return for $17,000 cash.
The sixth supply was 83.132 grams of heroin (of 32.8% purity), in return for $25,500 cash.
The seventh supply was 168.1 grams of heroin (of 40.5% purity), in return for $51,000 cash.
In other words, over 613 grams of heroin were supplied, in return for $187,000.
As for the supply of the large commercial quantity of heroin, the applicant agreed with the source that the applicant would supply three 350 gram blocks of that drug, in return for $295,000.
Later the same day, shortly before his arrest, the applicant showed the source a block of heroin secreted in a motor vehicle, which weighed over 1,049 grams, and was of 40% purity.
Finally, as for the Form 1 offences (which were taken into account on the charge of supplying a commercial quantity of heroin), they had arisen during the course of the interactions of the applicant with the police source. In a nutshell, the applicant spoke of being able to supply a very large quantity of ephedrine, a well-known precursor. He actually supplied two samples of that prohibited drug in the amount of 1.4 grams and 9.612 grams to the police source. He also offered to supply him with the same prohibited drug in the amount of 1 kilogram.
Patently, the applicant, whilst not found to be at the apex of the criminal hierarchy, was far beyond a street dealer, or factotum, or other pawn.
Subjective features
The applicant was 58 years of age when he stood for sentence before Judge Townsden. He had grown up in a small village in Romania during its communist regime. Although one can infer that that was not a privileged upbringing, the applicant did not point to any emotional disadvantage in his childhood; quite the contrary.
He immigrated to Australia at the age of 30, and, through contact with sex workers, became exposed to the drug milieu. Significantly, he was incarcerated between October 1989 and January 1996 as a result of a number of convictions for supplying prohibited drugs, at least some of which were heroin.
Since his release (now 20 years ago) he had worked in various unskilled positions. A psychologist who prepared a report that was tendered on sentence described the applicant as having achieved a "prosocial lifestyle".
His Honour noted that the report recorded the applicant as giving the following reason for the commission of the offences. The applicant lent Mr Jacobs (the son-in-law of one of his friends) $170,000 in order to fund the building of a house. That house was subsequently confiscated by the authorities (presumably as proceeds of crime). The confiscation left the debtor impecunious. Desperate to have the loan repaid, the applicant commenced to assist the asserted debtor in his drug dealing business. When Mr Jacobs was arrested, the applicant continued to assist his replacement in the criminal enterprise.
Separately, the wife of the applicant gave evidence before his Honour. She spoke of his shame at what he had done; her commitment to their marriage; her ongoing support of him; and their shared plan to start again, away from Sydney, once the applicant is eventually released.
Aspects of sentence
His Honour noted that the applicant was being held in protective custody for reasons that do not require elaboration, except to say that they resulted in a discount for assistance of 10% (60% of which related to the future), which was applied to all sentences.
Separately, a discount of 25% was applied to count 2 (to which the applicant had pleaded guilty), and the two heroin offences (which had been committals for sentence). A utilitarian discount of 20% was applied to count 3, because of the highly focused way in which the trial by judge alone had been run with regard to that count.
On 18 September 2015, his Honour decided to impose an aggregate sentence, and provided the following indicative sentences.
On count 2 (knowingly taking part in the manufacture of methylamphetamine), a fixed term of imprisonment for 1 year and 7 months.
On count 3 (supplying a large commercial quantity of methylamphetamine), a head sentence of imprisonment for 5 years and 11 months, with a non-parole period of 4 years.
On sequence 13 (supplying a large commercial quantity of heroin), a head sentence of imprisonment for 5 year and 6 months, with a non-parole period of 3 years and 9 months.
On sequence 15 (supplying a commercial quantity of heroin), a head sentence of imprisonment for 5 years and 10 months, with a non-parole period of 4 years.
The aggregate sentence ultimately imposed was a head sentence of imprisonment for 11 years, with a non-parole period of 7 years and 6 months, each to commence on 24 August 2012.
Ground 1
The sentencing judge, in assessing the objective seriousness of the offence of supply large commercial quantity of methylamphetamine, erred in failing to indicate the extent to which the offence was below the mid-range of objective seriousness.
This ground was based on the following portions of the remarks on sentence.
First, the assessment of objective features with regard to the two offences to do with methylamphetamine that I have extracted above at [13].
Secondly, the following remarks of his Honour:
In respect of the offences involving methamphetamine, again I accept the offender was not a principal but assisted the person Jacobs. The offence of manufacture was more towards the lower end of the scale of objective seriousness, while the offence of supply was below the mid-range of objective seriousness, noting that the amount was just above the large commercial quantity. The offences, as with all the offences, involved an outstanding debt owed to the offender, were nevertheless for financial gain and part of a planned criminal activity.
[emphasis added]
It was said by senior counsel for the applicant that it was incumbent upon the sentencing judge to "make transparent where on the range of objective seriousness the offence fell." It was also said that the assessment of his Honour that "the offence of supplying the methylamphetamine was below the mid-range of objective seriousness", lacked sufficient specificity.
It was also submitted that in truth the offence "was closer to the lower end of the scale than the middle of the range."
Turning to my determination of this straightforward point, I do not accept that it was incumbent upon his Honour to be more specific than he was. Since Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39, sentencing judges have not been required to assess objective seriousness with the precision called for by R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131.
Here, the sentencing judge provided details of the objective features of the offending that were perfectly adequate; indeed with regard to the heroin offences, they were extensive. The assessment of the objective seriousness of the supplying of the large commercial quantity of methylamphetamine was quite adequate as well.
As well as that, I think that the contrast drawn by his Honour between the assessment with respect to the supply offence and the lesser assessment (in the first part of the highlighted sentence) with respect to the manufacture offence provides a context that illuminates the assessment of the objective seriousness of the supply.
Finally, the indicative sentence provided - 5 years and 11 months with a 4 year non-parole period, after a 30% discount, with respect to a kilogram of methylamphetamine, and in the context of a maximum penalty of imprisonment for life - strongly supports the inference that the sentencing judge approached the objective offending of the applicant generously.
I would reject this ground.
Ground 2
The sentencing judge, in assessing the seriousness of the offence of supply large commercial quantity of methylamphetamine, erred in failing properly to take into account that the applicant believed he was supplying a precursor to methylamphetamine.
It was succinctly submitted by senior counsel that the belief of the applicant that he was supplying a precursor (rather than methylamphetamine itself), was relevant to the assessment of the seriousness of the offence of supplying a large commercial quantity of methylamphetamine. It was said that the sentencing judge had erred in failing to take that consideration into account when assessing the seriousness of the offence.
At the hearing of the appeal, there was some exploration of the question of whether a mistaken belief about the criminal activity in which one is actually engaged is an objective feature (attaching to the offence), or a subjective feature (attaching to the offender).
Turning to my determination, I tend to the latter view, whilst accepting that there are some factors on sentence that are on the borderline, and could comfortably fit under either characterisation.
But any controversy about that does not require a resolution in the context of this appeal. That is because, as the last line of the extract from the remarks on sentence that appears at [13] of my judgment shows, his Honour specifically adverted to the fact that the applicant believed he was supplying a precursor, and not the prohibited drug itself. As well as that, the use of the word "albeit" by his Honour shows that he regarded that state of belief as a countervailing consideration in favour of the applicant.
Because the remarks on sentence show that the mitigatory belief of the applicant was taken into account by the sentencing judge, I do not consider that this ground should be upheld.
Ground 3
The sentencing judge erred in failing to state the penalty that would otherwise have been imposed but for assistance provided by the applicant to the authorities.
Senior counsel accepted that the sentencing judge divided the overall discount between the discount for the value of the plea of guilty (or in one case, the way in which the trial was run) and the discount for assistance. He also accepted that the discount for assistance was in turn divided between that for past assistance and that for future assistance.
It was said, however, that because his Honour had not explicitly set out the actual starting points of the indicative head sentences, one could not be sure how the discounts had in fact been applied. In truth, it was said, the literal mathematical starting points are so fractional that it is possible that some sort of mathematical or other error was committed by his Honour.
Whist accepting that s 23(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW) stands in the way of the omission founding a ground of appeal in itself, senior counsel submitted that the combination of the omission with the oddity of the starting points would lead this Court to find error established.
I do not accept that submission.
It can be seen (by working backwards; that is, by removing the discounts of 35% and, in one case, 30%) that the literal mathematical starting point of count 2 was 2 years and 5.2 months; of count 3 it was 8 years and 5.4 months; of sequence 13 it was 8 years and 5.5 months; and of sequence 15 it was 8 years and 11.7 months.
But the irresistible inference is that the starting points adopted by his Honour were in truth 2 years and 6 months; 8 years and 6 months; 8 years and 6 months; and 9 years.
The further irresistible inference is that Judge Townsden very slightly rounded down the indicative head sentences derived from those starting points, in accordance with authority of this Court that sentences ultimately imposed should not feature head sentences or non-parole periods that are measured in weeks or days: see Ruano v R [2011] NSWCCA 149 at [20] and [43], and Rios v R [2012] NSWCCA 8.
In other words, his Honour declined to provide indicative head sentences of 1 year and 7.5 months, 5 years and 11.4 months, 5 years and 6.3 months, and 5 years and 10.2 months. Instead, his Honour rounded down in favour of the applicant to provide indicative head sentences of 1 year and 7 months, 5 years and 11 months, 5 years and 6 months, and 5 years and 10 months.
Because I very comfortably draw the inference that that is what his Honour did, thereby giving rise to no concern about the mathematical starting points, I would reject this ground.
Proposed orders
I propose the following orders:
1. Leave to appeal granted.
2. Appeal dismissed.
[3]
Amendments
01 December 2016 - Counsel correction in cover sheet.
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Decision last updated: 01 December 2016