BASSOS v R

Judgment 1BATHURST CJ: I agree with the judgment of Hoeben J. 2JAMES J: I agree with Hoeben J. 3HOEBEN J: Offences and sentence The applicant was committed for sentence in the District Court for the supply of a prohibited drug namely gamma-butyrolactone, in an amount not less than the commercial quantity for that drug, being 2,118 grams, contrary to s25(2) of the Drug Misuse and Trafficking Act 1985. The maximum prescribed penalty for that offence is imprisonment for 20 years with a standard non-parole period of 10 years. 4Two additional offences were dealt with on a Form 1. (i) Possess a prohibited drug (2.71 methylamphetamine) contrary to s10(1) Drug Misuse and Trafficking Act 1985. (ii) Supply prohibited drug (3.99g of1-benzylpiperazine) contrary to s25(1) Drug Misuse and Trafficking Act 1985. 5Having entered a plea of guilty in the Local Court on 7 July 2010, the applicant came before Flannery DCJ for sentence on 4 March 2011. Her Honour sentenced the applicant to imprisonment with a non-parole period of 2 years and 3 months, commencing 4 February 2010 and expiring 3 May 2012 with a balance of term of 1 year and 9 months, expiring 3 February 2014. 6The applicant seeks leave to appeal against that sentence on the following grounds: Ground 1 - The learned sentencing judge erred in failing to consider whether the applicant had been substantially involved in the supply of drugs. Ground 2 - The learned sentencing judge erred in failing to have regard to s5 of the Crimes (Sentencing Procedure) Act 1999. Factual background 7On 3 February 2010 Detectives attended the applicant's unit at Mascot. A search warrant was executed with the assistance of a drug dog. Police found numerous drug paraphernalia including a glass water pipe, a diary page depicting names of people and next to the names, sums of money. 8In the kitchen police located two small resealable bags containing a crystal substance and one medium sized resealable bag containing a crystal substance. In the vicinity of the bags was a plastic container housing numerous plastic fish shaped soy-sauce containers. Also in the container were the screw tops for those containers. To the right of these items was a clear plastic water bottle containing clear liquid. Within reach of these items was a set of digital scales. 9When the applicant was asked about these items he made full admissions about being the owner of the crystal substance. He told the police that this was crystal amphetamine for personal use to assist with his addiction. He told the police that the clear liquid observed in the plastic water bottle was the substance GHL. This is the street name used to describe the prohibited drug named on the indictment. 10The applicant directed the police to another bottle of the same substance in the refrigerator. The applicant was then arrested. Subsequent analysis of the substance confirmed that it was 2,118 grams of gama-butyrolactone. This substance had an estimated street value of $5,000. 11The applicant was interviewed and he admitted that the drugs belonged to him. He admitted being the user of a mobile telephone service. When the police made inquiries concerning this service, it was discovered that there were 1,840 calls in and out, including SMSs, between 27 January and the morning of 3 February 2010. When asked about the number of calls, the applicant did not provide any reasonable response. 12In relation to the second matter on the Form 1, on 8 June 2009 in the early hours of the morning, the applicant was seen by police throwing something away as he was walking along George Street. Police later found that what he threw away was a bag containing purple tablets which were analysed and found to be 3.99 grams of 1-benzylpiperazine. 13The applicant has been in custody since 3 February 2010. Remarks on sentence 14It was accepted by the Crown that the plea of guilty was entered at the first available opportunity and consequently her Honour reduced the sentence which she would otherwise have imposed by 25 percent to reflect the utilitarian value of the plea. 15Her Honour noted that the standard non-parole period of 10 years was intended to apply to an offence in the middle range of objective seriousness where the offender was convicted after a trial. Even though the applicant had pleaded guilty, her Honour noted that the standard non-parole period remained relevant as a reference point. 16Because the standard non-parole period remained relevant, it was necessary for her Honour to consider where the offence lay on the range of objective seriousness. Her Honour concluded that the offence was "appreciably below the mid-range for offences of this kind". 17Her Honour reached this conclusion for the following reasons: (i) In the absence of telephone records, she was not prepared to find that the 1,840 calls were evidence of drug supply. (ii) Although the notebook with the written notes listing names and amounts looked like a list of names of people who owed money for drugs, her Honour was not prepared to find beyond a reasonable doubt that such was the case. (iii) The applicant was to be sentenced on the basis that he had a large quantity of the substance in his possession, that he had or would give some to friends, that he was a big user of the substance himself and that at most, the substance was worth $5000. 18In relation to the applicant's subjective case, her Honour noted that he did have something of a criminal record in that there were two dishonesty offences committed in the 1990's, an assault occasioning actual bodily harm in 2005 and the possession of a prohibited drug and goods in custody offence in late 2009. Her Honour considered that this was the sort of record which would still enable the applicant to some leniency. 19The applicant was born in March 1977 and was almost 34 at the time of sentence. Testimonials and a presentence report showed that the applicant had a close family and friends who continued to support him. 20The applicant tested positive to HIV in 2000 and had been receiving HIV treatment since 2001. Since then he had had episodes of incomplete adherence to treatment, complicated by his drug abuse. He was referred to a psychiatrist in 2005 and in January 2008, he had a drug overdose. 21In relation to his drug use, Dr Quan said: "The offender has a long history of drug abuse. He has also been depressed. He has treatment adherence issues and had been inconsistent with treatment for HIV, depression and drug abuse. Complicating the matter are side effects associated with HIV treatment, symptoms of depression and CMA withdrawal which are often similar. He has given a history of using CMA to fight lethargy of his HIV treatment but this could also be caused by CMA withdrawal too. A diagnosis of depression and drug use disorder was made in 2005 and he continues to battle both these mental health issues." 22The presentence report pointed out that by being placed in custody, the applicant had been forced to detoxify and had gained insight, with the assistance of alcohol and other drug counsellors. He had been given the opportunity to address his use of illicit substances. The author of the report, a psychologist, was impressed that the applicant understood that upon release he would require further drug rehabilitation to protect him from relapse and to ensure his successful transition back into the community. 23Her Honour was satisfied, on the basis of that material, that the applicant was usefully spending his time in prison and that he had reasonable prospects of rehabilitation upon his release. 24Her Honour went on to say (ROS 7.8) "It is obvious that a sentence of imprisonment must be imposed. As I have found that the offence is appreciably below the midrange for offences of this kind, as there was a plea of guilty and as I have made positive findings about the offender's future, I do not propose to impose the standard non-parole period, however, it does remain as a guidepost. ... I propose to find special circumstances as this is the first time the offender has been to gaol and as I consider it necessary that upon his release he have an extended period of supervision from the Probation Service to assist him to continue the rehabilitation that I find is well and truly taking place. I indicate that I have had regard to the relevant statutory framework that relates to the sentencing of offenders and to the principles established in the authorities which bear upon the issue and I have had regard to the purposes of sentencing, which are set out in s3A of the Crimes (Sentencing Procedure) Act." 25It should be noted that the submissions made to her Honour on behalf of the applicant conceded that a custodial sentence was appropriate. A sentence suggested to her Honour was one of 5 years with a non-parole period of 2 years. Appeal 26It is convenient to deal with both grounds of appeal together since the submissions in support were interrelated. Section 5(1) of the Crimes (Sentencing Procedure) Act , prohibits the imposition of a sentence of imprisonment unless the Court, having considered all possible alternatives, is satisfied that no other penalty is appropriate. 27The applicant submitted that the conclusion reached by the sentencing judge was that the applicant was not substantially involved in the supply of drugs. The applicant submitted that, having made that finding, her Honour failed to give proper consideration to that fact before concluding that a custodial sentence had to be imposed. The applicant relied upon the decision in this Court of Scott v R [2010] NSWCCA 103 (Hislop J with whom Allsop P and Grove J agreed). The applicant submitted that the effect of that case was that the failure of the sentencing judge to make the necessary anterior finding of "trafficking in drugs to a substantial degree" vitiated the sentence. The applicant submitted that since there was no finding of trafficking in drugs "to a substantial degree" here, the same result should occur. 28The applicant submitted that in drug supply cases the offender's role and the level of criminality involved is more important in determining the sentence than the quantity of drugs involved. In this case he submitted that her Honour never turned her mind to that question and never turned her mind to the question of whether there was "substantial trafficking". If she had, he submitted, she would have concluded that there was no such "substantial trafficking" and that it was therefore necessary for her to consider, in accordance with s5, whether a non-custodial sentence was appropriate. 29The applicant submitted that this was a significant error and had it not occurred, a different sentence ought to have been passed and that a different sentence is warranted at law (s6(3) Criminal Appeal Act 1912). The Court was invited to re-sentence the applicant. Consideration 30With due respect to the applicant, his statement of principle in relation to sentencing for drug trafficking, is not entirely correct. The correct approach was set out by Simpson J (with whom RA Hulme J and I agreed) in Zahrooni v R ; Director of Public of Public Prosecutions (NSW) v Zahrooni [2010] NSWCCA 252 at [29]: "29 The cases to which I have referred focus largely upon the meaning of the word "trafficking". Whether consideration is given to that word, or to the words "to a substantial degree", the issue is the extent of involvement in supply. Where the supply is on a single, isolated occasion, the circumstances might (or might not) permit a non-custodial sentence. But the authorities are clear that where the dealing involves "trafficking to a substantial degree" it is only in exceptional circumstances that a non-custodial sentence will be imposed. The converse of that proposition, on Mr Zahrooni's argument, is that, if the trafficking is not "to a substantial degree", a custodial sentence is not necessarily inevitable. It would be more accurate to say that the cases cited do not, in those circumstances, require a custodial penalty." 31That last observation by her Honour is important. In such circumstances, it is open to a court to impose a custodial penalty but in accordance with the authorities, it is not obliged to do so. 32In Zahrooni her Honour went on to say: "30 Here, as in Scott , the judge did not make an express finding as to whether Mr Zahrooni's offence involved "trafficking to a substantial degree". But he did, with justification, find that Mr Zahrooni was "a user/dealer". 31 It is incorrect to suggest that the judge failed to take account of the extent of Mr Zahrooni's involvement. On two occasions he referred to the quantity of the drug (69 grams - more than double the traffickable quantity); the individual packaging (48 sachets); the relatively large sum of money in his possession (having regard to his financial circumstances); and the text message; to this may be added the possession of two mobile telephones." 33Similarly, it is not correct to say that in this case her Honour failed to take account of the extent of the applicant's involvement in drug dealing. Her Honour specifically found that "the offender had a large quantity of the substance in his possession, that he had or would give some to friends, that he was a big user of the substance himself and that at most, the substance was worth $5,000". Those findings refer to the quantity of drug involved and that there was some (albeit modest supply on her Honour's findings) to friends. 34Accordingly, it was open to her Honour to impose a custodial penalty but she was not obliged to do so. When, however, one takes into account the standard non-parole period of 10 years, which continued to operate as a guidepost, the maximum sentence of imprisonment for 20 years, which also operated as a guidepost, and the effect of the Form 1 offences, it is difficult to see how a lesser sentence could have been imposed. 35It is true that her Honour in terms did not consider or refer to s5 of the Crimes (Sentencing Procedure) Act 1999. She did, however, in the course of her reasons (ROS 7.8) say: "It is obvious that a sentence of imprisonment must be imposed." From this I infer that her Honour considered the alternative to a custodial sentence but rejected it. That her Honour was justified in so doing is clear from the above analysis and because the applicant's legal advisors accepted that a custodial sentence was appropriate and made submissions accordingly. 36It is also not without significance that s5(4) of the Crimes (Sentencing Procedure) Act 1999 provides: "5(4) A sentence of imprisonment is not invalidated by a failure to comply with this section." 37It follows that I am not satisfied that her Honour fell into the kind of error identified by the applicant. Even if her Honour had, I would not as a matter of discretion interfere in that I am not persuaded that any lesser sentence than that passed by her Honour would be appropriate in the circumstances of this case. 38The orders which I propose are as follows: (1) Leave to appeal be granted. (2) The appeal be dismissed.