BARNES v R

COUNSEL: Crown: W Dawe QC Applicant: A Francis SC

SOLICITORS: Crown: S Kavanagh Applicant: S O'Connor

• 8 - IN THE COURT OF CRIMINAL APPEAL 2007/6

McCLELLAN CJ AT CL HULME J HISLOP J

Wednesday 14 March 2007 Martin Stuart BARNES v R Judgment 1 HULME J: In these proceedings the Applicant seeks leave to appeal against sentences imposed on him by Judge McLoughlin on 2 June 2006 following pleas of guilty to two charges. The charges were that the Applicant had supplied 55.1 grams of methylamphetamine and, secondly that he had supplied 4.6 grams of methelenedioxy-methylamphetamine (hereinafter referred to as ecstasy or MDMA). 2 The offences arose under the Drug (Misuse and Trafficking) Act which provides a maximum penalty for offences involving less than 250 grams of methylamphetamine and 125 grams of MDMA of 15 years. In the case of quantities that are "small" - less than 1 gram in the case of methylamphetamine and less than ¼ gram in the case of MDMA, and the offences are prosecuted summarily as they inevitably would be, the maximum penalty of imprisonment provided is 2 years. 3 Adopting starting points of, respectively, 3 years and 4 months and 2 years imprisonment and reducing these periods by 25% because the Applicant had pleaded guilty, his Honour imposed for the first offence a sentence of imprisonment involving a non-parole period of 15 months commencing on 2 June 2006 and a further term of another 15 months and, for the second offence, a sentence of imprisonment involving a non-parole period of 10 months commencing on 2 June 2006 and a further period of 8 months. Two further matters were dealt with pursuant to Section 166 of the Criminal Procedure Act but for present purposes these can be ignored. 4 His Honour found special circumstances in the needs of the Applicant's children, aged about 10 and 11 and for whom the Applicant was the primary carer, and in the Applicant's prospects of rehabilitation. The Crown does not challenge these matters and it is accordingly unnecessary to further consider them except in so far as they clearly have a bearing on the appropriateness of the sentences imposed. 5 In the case of each offence, the "supply" was a deemed supply pursuant to the expanded definition in Section 3 and Section 29 of the Drug Misuse and Trafficking Act. The drugs were found in a vehicle stopped by the police on its way from Sydney to the Central Coast. The Applicant and other people were in the vehicle at the time but the Applicant admitted that the drugs were his. He was an addict and his Honour accepted that at least one half of the drugs were for the Applicant's own use, some would have gone to the Applicant's then partner but the destination of the balance his Honour felt unable to determine. His Honour observed:- "The offender had in his possession a large quantity of methylamphetamine, some ten times greater than the minimum amount that constitutes the offence of deemed supply and a little over three times the minimum amount that constitutes the offence of deemed supply of MDMA. … I regard the offences as being little less than the middle of any scale constructed for such offences. …" 6 The Applicant's subjective circumstances were not generally such as to inspire leniency. He was born in 1963. He had a long record of offending from 1975 until about January 2005, a record which included something over 20 occasions when he had been sentenced by courts for one or more offences. The record included offences of dishonesty, illegal use of a motor vehicle and four offences of driving with an excess concentration of alcohol in his blood or under the influence of that drug. He had been sentenced to full time custody on three occasions prior to the commission the subject offences and, in January 2005, again for a period of 3 months. The longest individual sentence had been imposed in 1987 and was of 3½ years including a non-parole period of 2 years. At the time of the commission of the offences with which this Court is concerned, the Applicant was on a s9 bond imposed in September 2003 for driving with a middle range PCA. 7 When apprehended by the police, the Applicant gave one explanation as to his possession of the drugs and then to a psychologist and his Honour another explanation. For reasons which are apparent on a reading of the transcript of the Applicant's evidence, his Honour did not believe much of what the Applicant had to say. 8 There was evidence, which his Honour appears to have accepted that the Applicant had had a difficult, perhaps very difficult, childhood, and in consequence suffered from dysthymic disorder, that his adult life had also involved many trials and tribulations, that the Applicant had some work history and, since the commission of the subject offences, had taken significant steps to improve. Judge McLoughlin found that the Applicant was a committed father to his two children and concluded that "the offender was remorseful for what he has put his children through and (had) made a determined effort to change". His Honour accepted that during the period when the matter first came before his Honour in February 2006, and at the time of sentencing at the beginning of June, the Applicant had been subjected to urinalysis which had tested negative to illegal substances. 9 As part of the written submissions advanced by counsel for the applicant she has listed a very substantial number of features which are referred to by his Honour or in the psychological report which was before his Honour and there can be no doubt that they argued in his favour down below, as they do here. 10 Nevertheless his Honour concluded that only a sentence of imprisonment would satisfy the requirements for general and specific deterrence. 11 The grounds of appeal are:-

1. The sentencing Judge erred in assessing the objective gravity of the offences as being "in the middle of any scale constructed for such offences". 2. The overall sentence is manifestly excessive.

Ground 1 12 This ground is made out. Fifty-five grams is only marginally above 20% of the 250 grams quantity which is at the top of the relevant range under the Drug (Misuse and Trafficking) Act for methylamphetamine and 4.6 grams is but about 4% of the top of the relevant range for MDMA. There were no other particular features arguing for the Applicant's offending being towards the top of the scale for the offences with which he was charged.

Ground 2 13 In support of this ground, counsel for the Applicant drew attention to statements in the authorities to the effect that regard should be paid to "the existence of a general pattern of sentencing by criminal courts for offences such as those under consideration" - see R v Oliver (1980) 7 A Crim R 174 at 177; R v Visconti (1982) 2 NSWLR 104 at 107 - and submitted that the Judicial Commission Statistics for the supply of a non-commercial supply of amphetamines showed that the sentence imposed on the Applicant was in the upper 25% of all sentences imposed by higher courts following a plea of guilty for such offences and that only 17% of "all offenders" who pleaded guilty received a higher sentence than the Applicant in a pool of 117 cases". 14 That is to misread the statistics which reflect the sentences imposed, not starting points prior to discounts for pleas etc. Statistics to August 2006 - somewhat later than those relied on by counsel - indicate that the sentence imposed on the Applicant is further down the scale than the submissions suggest. Of 98 offenders in the "Non-consecutive terms only, plea guilty" category 51 received sentences of under 2½ years, 17 received sentences of that length and 30 received longer sentences, though none received a sentence longer than 6 years. Of 116 cases involving "Consecutive and non-consecutive terms, plea guilty", 47% of sentences were under 2½ years, 20% were of 2½ years and 33% were above 2½ years. Again none exceeded 6 years. The 116 cases were those sentenced to full time custody out of a total of 330 offenders. 15 The statistics do not show the quantities or the circumstances of the offences, the results of which are reflected in them and accordingly this analysis does not, of itself, indicate that the sentences imposed were outside an appropriate range. Nor does a comparison of sentence and quantities. The judge's starting point of 3 years and 4 months for the first offence was approximately one-quarter of the maximum penalty provided, while the quantity was, as has been said, marginally above 20% of the 250 grams quantity which is at the top of the relevant range under the Drug (Misuse and Trafficking) Act for methylamphetamine. 16 That is not, of course to suggest that quantity is the only relevant factor. Numerous decisions, including some in the High Court and some in which I have participated recognise that it is not. But given the harm done by drugs, and the profits to be derived by those who deal in them, are to a very large degree dependent on quantity, and also that Parliament has provided increased penalties for increased amounts, quantity is clearly an important factor. 17 On the Applicant's behalf, reliance was also placed on this Court's decision in R v Payne [2005] NSWCCA 84 where in a Crown appeal, this Court set aside the sentence imposed at first instance and substituted imprisonment for a term of 20 months including a non-parole period of 12 months, the sentence to be served by way of periodic detention. The Court's starting off point prior to allowing a 15% discount for a plea was 2 years. 18 The element of periodic detention is a matter which can be put to one side. That had been the form of the sentence imposed at first instance, the Respondent had not been in custody and there had been substantial delays not the fault of the Respondent between his commission of the offence in February 2002 and his being sentenced on 11 November 2004. During the hearing of the appeal in Payne the Crown indicated that it was not seeking the imposition of a full time custodial sentence. 19 The drug involved was methylamphetamine and the quantity 34.7 grams although it was accepted this was to be shared between the Respondent and his partner. As is the case here, the offence was committed in breach of a bond imposed some 9 months earlier, although in that case as an incident of the suspension of a sentence imposed for the supply of 10.8 grams of methylamphetamine. Bell J, with whose decision Hall J substantially agreed, recorded that a sentence of 12 months imprisonment for the offence of supply methylamphetamine, notwithstanding that it was for a gratuitous supply (of part of the quantity) to an associate was manifestly inadequate. Furthermore, in selecting the starting point of 2 years, her Honour recognised that it was necessary to exercise restraint because of the proceedings being a Crown appeal. 20 To my mind, R v Payne does not support the Applicant's case. Although there is the obvious difference between the starting points of 3 years and 4 months here and the 2 years used in that case, this is not a Crown appeal, the offence involved a greater - indeed in percentage terms appreciably greater - quantity of drug and Judge McLoughlin was not satisfied that all of the drug was to be used by the Applicant or in gratuitous supply to his partner. One must also bear in mind that sentencing is a discretionary exercise and the mere fact that the Court of Criminal Appeal in one case selected 2 years as a starting point is no indication that a higher starting point is not appropriate particularly in the absence of those considerations that apply to a Crown appeal. 21 (Before I leave R v Payne, I should acknowledge that in that case Adams J, who dissented, took the view that the sentencing should be approached on the basis that, since about half the 34 or so grams was for the offender's own use, sentencing should proceed upon the basis that the quantity the subject of deemed supply was only about 17 grams. I am by no means persuaded that that reflects the terms of s29 of the Act, paragraph (a) of that section referring to "the prohibited drug", not merely part of it. In any event, the decision of the majority was as I have indicated.)

22 When, during the course of argument, I raised the question of Adams J's approach, counsel for the applicant here sought time in which to produce authority in favour of Adams J's view. Had that issue become relevant to the determination of this appeal, obviously that time would have been provided. However, I do not find it necessary to have that topic canvassed. I am content to dispose of these proceedings upon the basis that the amount of drug which is relevant to the applicant's sentence is that which remains after, as his Honour found, at least one half of the drug was for the offender's own use and part of the balance would have gone to his then partner. It is clear that what remained was by no means de minimis. 23 Returning to the facts of the case, the Applicant's record indicates that he is a recidivist and someone who pays scant regard to those laws that do not suit him. He is not to be further punished for past offending but Judge McLoughlin was well entitled to take the view that the Applicant's deliberate breach of the drug laws at a time when the Applicant was on conditional liberty deserved a relatively severe penalty. Breach of conditional liberty is regarded as a serious aggravating circumstance and this, whether the conditional liberty arises in consequence of the commission of a similar offence previously, the commission of some different offence or that an offender may be on bail. I am not persuaded that the sentence imposed was beyond the legitimate exercise of his Honour's sentencing discretion. 24 In so concluding I am not unconscious of the difficulties that have been imposed on the Applicant during his lifetime and his recent achievements towards reform. However, as the Applicant should know, drugs damage and destroy many lives. They have certainly damaged his. The Courts must impose penalties heavy enough to amount to real discouragement to others and the Applicant has had many chances since his offending commenced, or indeed since his children were born, to take the steps he now relies on in mitigation. 25 It must also be borne in mind that the sentence imposed on the second of the Applicant's offences was made entirely concurrent with the first. That second offence, involving a different type of drug, meant that the Applicant's criminality was greater than if he had been in possession of only methylamphetamine. Authority indicates that the sentences on him should have been made partly cumulative and if I was otherwise disposed to interfere with the sentence imposed on the first charge I would have accumulated at least part of the sentence on the second charge.

26 For the reasons I have indicated, I would take the view that the orders which this Court should make are:

Leave to appeal should be granted but the appeal should be dismissed.

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