Batty v R

Court of Criminal Appeal (NSW)|2016-06-08|Before: Beazley P, Garling J, Fagan J

Judgment

BEAZLEY P: I have had the advantage of reading in draft the reasons of Garling J. I agree with his Honour's reasons and proposed order.
GARLING J: This is an application for leave to appeal in respect of a sentence imposed in the District Court of NSW by his Honour Judge Woods QC on 10 June 2015.
The applicant, Steven James Batty, pleaded guilty in the Local Court to an offence contrary to s 25(1) of the Drugs (Misuse and Trafficking) Act 1985 ("the DMT Act") of supplying a prohibited drug on 18 June 2014. He was committed for sentence to the District Court. In the District Court he adhered to his plea of guilty.
The maximum penalty for the offence is imprisonment for 10 years. No standard non-parole period applies.
On 10 June 2015, the sentencing Judge imposed a sentence of 4 years imprisonment with a non-parole period of 2 years. The sentences were to take effect from 9 September 2015, being the date of the expiration of a term of imprisonment which the applicant was then serving.
On 19 June 2015, the matter was relisted before the sentencing Judge because of a need to correct the date upon which the sentence was fixed to commence. On that date the sentencing Judge imposed the same sentence, consisting of a 2 year non-parole period and a balance of term of 2 years, but ordered that the sentence commence on 19 March 2015.

Proceedings on Sentence

Sentence proceedings were held on 5 June 2015 before Wood DCJ.
A pre-sentence report had been ordered, but was not available at the time the proceedings on sentence commenced. Mr Singh-Panwar, the applicant's solicitor, informed the Court that his client wished to proceed notwithstanding the absence of a pre-sentence report.
The Crown tendered the Agreed Facts, a Crown sentence summary, the criminal record of the applicant and his custodial history.
Mr Sing-Panwar, on behalf of the applicant, tendered a report of Dr Susan Pulman, a Specialist Clinical and Forensic Neuropsychologist, dated 18 August 2009. The applicant also tendered a report of Mr Lee Knight, a Clinical Nurse Consultant in Forensic Mental Health, dated 2 June 2015. A number of authorities were provided to the Court. Thereafter, submissions were made.
Nor oral evidence was called.

Remarks on Sentence

On 10 June 2015, Woods DCJ sentenced the applicant. His Honour identified the offence to which the applicant had pleaded guilty as well as the maximum penalty. He noted that the quantity of cannabis the subject of the charge was 5.47kg. His Honour noted that the drugs were found in the possession of the applicant but, by reason of the quantity of drugs in his possession, he was charged with the offence of deemed supply. His Honour noted that the indictable quantity for cannabis was 1kg, and that the quantity of cannabis in the applicant's possession was "significantly below" the commercial quantity of 25kg.
His Honour noted that the offence for which he was sentencing the applicant was committed whilst the applicant was on parole for a previous offence. His Honour recorded that the applicant's parole had been revoked and that the balance of his sentence with respect to that offence was to expire on 9 September 2015.
His Honour adequately recounted the facts, before moving to consider the subjective circumstances of the applicant. His Honour referred in particular to the report prepared by Dr Susan Pulman. His Honour recorded that the most significant aspect of this report was that it indicated that the applicant had an overall IQ of 78, indicating that the applicant was a person with "… some cognitive difficulties".
His Honour recorded Dr Pulman's conclusion, which he accepted, that the applicant's history of head injuries and substance abuse had resulted in some cognitive deficiencies. His Honour accepted Dr Pulman's opinion that the applicant demonstrated considerable difficulty in grasping the concept inherent in a task which Dr Pulman requested of him. His Honour accepted the following expression of opinion by Dr Pulman: "[The Applicant] continued to perseverate despite being provided with feedback that his response was incorrect."
His Honour concluded that the applicant was not mentally ill, nor was he "so mentally retarded that he does not know what he was doing". His Honour concluded that the presence of the cryovac packages indicated that the applicant intended to supply the drugs, and noted that the plea of guilty was made on that basis.
His Honour recorded the plea of guilty, and noted that it indicated some measure of contrition and provided some assistance in the administration of justice.
His Honour then dealt with a question of parity advanced by reference to another offender, Mr Bailey, who had been arrested in the course of the same police operation and sentenced by his Honour a few weeks earlier. His Honour noted that Mr Bailey had been charged with supplying cannabis in a quantity of 1.84kg, for which he had been sentenced to a 2 year non-parole period with a balance of term of a further 2 years.
His Honour rejected the proposition that principles of parity were to be applied between Mr Bailey and the applicant. His Honour took the view that Mr Bailey and the applicant were not strictly co-offenders His Honour said that there was insufficient similarity in their offending to warrant consideration of parity.
His Honour went on to say this: "The simple fact is that Mr Batty was found with a substantial quantity of cannabis in his premises, under his control, plainly intended for supply. Nothing other than a substantial and significant sentence of imprisonment is appropriate, notwithstanding the fact that he is not to be regarded as a criminal mastermind. I accept that he is not."
His Honour allowed a discount of 25% for the plea of guilty and then imposed a sentence of 4 years imprisonment with a non-parole period of 2 years.
His Honour found special circumstances, being the applicant's mental condition, particular difficulties with cognition and the need for an extended period of supervision. His Honour ordered that the drugs found at the applicant's premises be destroyed.
His Honour fixed the sentence to commence on 9 September 2015, which was the expiration date of the sentence which the applicant was already serving.
As has earlier been recorded, about a week later the commencement date of the sentence was amended to 19 March 2015.

Grounds of Appeal

On 10 February 2016, the applicant lodged a Notice of Application for Leave to Appeal.
The applicant nominated one ground, namely: "His Honour's discretion miscarried in his consideration of the commencement date of the sentence, resulting in the double punishment of the applicant for the fact that the offences were committed whilst on parole." (sic)

Applicant's Submissions

The applicant's primary submission was that the length of the sentence imposed, combined with the commencement date, indicated that the sentencing Judge imposed a double punishment upon the applicant by (i) taking into account as an aggravating factor the fact that the offence was committed whilst on parole; and (ii) partially accumulating the sentence upon the balance of the parole period. The applicant reasoned that while the sentence was not manifestly excessive, it was at the higher end of the range for offences of this kind. Accordingly, the Court ought to infer that the sentencing Judge treated as an aggravating factor the applicant's commission of the offence whilst on parole although this was not specifically stated by the sentencing Judge.
The applicant conceded that he was to be sentenced on the basis that the drugs found in his possession were for the purpose of supply. He conceded that his motivation for engaging in drug supply was financial gain, as his small business was not thriving.
The applicant noted that his Honour made no specific finding as to the objective seriousness of the offence. The applicant also noted that in the course of the Remarks on Sentence, the sentencing Judge correctly found that the applicant was not a criminal mastermind. The applicant submits that because the quantity of drugs involved was considerably below the commercial quantity, the offence was not at the higher end of the range of objective seriousness.
The applicant accepts that the degree of severity of his mental condition is modest, but nevertheless argues that the sentencing Judge failed to apply the principles set out in DPP (Cth) v De La Rosa [2010] NSWCCA 194, with the result that his Honour imposed a sentence that was at the upper end of the range.
The applicant accepted that a sentencing court has a broad discretion in sentencing offenders for offences committed while on parole. Nevertheless, the applicant submits that in exercising that discretion, a court must take care not to engage in double counting or double punishment if it considers the applicant's commission of the offence while on parole to be an aggravating factor.
In respect of double punishment, the applicant drew attention to several decisions of this Court, in particular the judgment of Basten JA in R v DW [2012] NSWCCA 66, where his Honour considered the question of the appropriate commencement date for a sentence to be imposed for an offence committed whilst on parole. Basten JA said at [35]: "In circumstances where the offences constitute the reason for the revocation of parole, it is important not to double count the fact that the offences were committed whilst serving an incomplete sentence for an earlier offence, and whilst on parole for that offence. It is also necessary to consider whether there should be a degree of concurrency, to allow for the possibility that the respondent could have been re-paroled during the course of the balance of term on the earlier offence: Callaghan v R [2006] NSWCCA 58; 160 A Crim R 145 at [21]-[23] (Simpson J, James and Hall JJ agreeing)."
In light of these authorities, the applicant submitted that there were a number of matters which the sentencing Judge ought to have considered in setting an appropriate commencement date for the sentence, including: 1. the significant period that the applicant was on parole prior to the offending, being over 20 months from 9 October 2012 until 18 June 2014; 2. the applicant was not in breach of his parole for reasons other than the commission of the subject offence; 3. the lengthy balance of the sentence after the revocation of parole, being 1 year 2 months 23 days; and 4. the sentencing proceedings occurred on 10 June 2015, when the applicant had already served 12 months of the balance of his sentence.
Based on those considerations, the applicant submitted that the sentencing Judge's discretion had miscarried.

The Crown Submissions

The Crown's first submission was that the sentencing Judge did not make a specific finding that the applicant's commission of the offence while on parole was an aggravating factor. The Crown noted that the applicant's solicitor had conceded before the sentencing Judge that the offence for which the applicant was being sentenced was "… otherwise aggravated by his being on conditional liberty".
The Crown submitted that the sentencing Judge relevantly took into account a range of matters which were open for discretionary evaluation and assessment, and that no error is apparent on the face of the Remarks on Sentence.
Insofar as the Crown dealt with the question of the overall length of the sentence, the Crown pointed to the following factors as indicating that the sentence was well within an appropriate range, and that no lesser sentence is warranted in law: s 6(3) Criminal Appeal Act 1912. Those factors were that: 1. the maximum penalty for the offence is 10 years; 2. the amount of cannabis involved, being 5.47kg, was more than five times the indictable quantity of 1kg; 3. the applicant had a record of serious offending in relation to drugs; and 4. the applicant was on parole at the time of his offending.
The Crown submitted that leave ought be refused.

Applicant's Subjective Circumstances

The applicant was born in 1966 and was 49 at the time of his sentencing. His criminal history commenced when he was about 18 years old, whilst he was living in Queensland. His first recorded offence in NSW was in 1995 for an offence of stealing from a dwelling.
Thereafter the applicant committed a series of offences for larceny which were dealt with either by recognisance or a community service order. He failed to comply with the recognisance and the community service order and was dealt with by a further community service order.
In 2008, the applicant was arrested in south-western NSW, where he was charged with an offence of supplying a large commercial quantity of prohibited drugs. For that offence he was sentenced to imprisonment for 7 years and 6 months commencing on 10 March 2008 and concluding on 9 September 2015. His non-parole period was fixed at 4 years and 7 months. It therefore expired on 9 October 2012.
The applicant was released from custody on 9 October 2012 pursuant to a parole order. On 10 July 2014, shortly after he was arrested for the present offence, the State Parole Authority met and revoked the parole order. Consequently, the applicant was required to serve the balance of his parole, commencing on 18 June 2014, the date of his arrest, and expiring on 9 September 2015.
It is convenient to note the expert material that was before the sentencing Judge concerning the applicant's subjective circumstances. The earlier report of Dr Susan Pulman noted that the applicant's parents separated when he was about 5 years old. He apparently did not have a close relationship with his father. He and his two siblings were raised by his mother, with whom he has a close relationship.
The applicant, prior to 2009, had been in a relationship for 5½ years. He and his partner had 3 children from that relationship.
Dr Pulman concluded: "Whereas Mr Batty's full scale IQ falls within the borderline range, his performance on measures of auditory and visual memory fell predominantly within the extremely low range. … Mr Batty's general memory index score is considered the best overall measure of the types of abilities that are critical to effective memory and day to day tasks. Less than 2% of the normal population demonstrates a disparity between obtained and predicted scores on this index, the magnitude evident and the present case. … In summary, the cognitive deficits demonstrated by Mr Batty including poor working memory and processing speed, impaired auditory and visual memory and difficulty in higher order reasoning are consistent with the neuropsychological sequelae often observed following a history of traumatic brain injury."
A report prepared for the sentencing proceedings by Mr Lee Knight indicated that at the time of his arrest, the applicant was experiencing financial distress and significant relationship issues.
The applicant informed Mr Knight that he was a social drinker who used cannabis between the ages of 13 and 16, and other drugs including amphetamines, cocaine and ecstasy at various times between the ages of 18 and 40. He told Mr Knight that, by 2015, he was not engaged in any illicit substance abuse or dependence and that he was free of drug use.
Mr Knight concluded: "Mr Batty has previous diagnoses of personality vulnerabilities (possibly complex post-traumatic stress disorder), anxiety and cognitive impairment. He is currently treated with an oral anti-depressant medication that is assisting him, to some degree, with his anxiety symptoms. He continues to suffer from residual symptoms of his anxiety disorder, namely avoidance of social situations and regular feelings of panic. … Mr Batty's level of cognitive impairment reduces his working memory and processing speed. He has impairment in auditory and visual memory. His higher order reasoning is also impaired, which would affect his ability to make reasoned judgments and cause him to have difficulties with problem solving. Mr Batty appears to avoid social situations as they almost always make him feel anxious. He is aware of how his cognitive impairment affects his interaction with others so avoids circumstances where he has to converse with others."
Mr Knight made certain recommendations with respect to the applicant.

Discernment

An appropriate starting point in considering the submissions of the applicant is the notional sentences that were imposed prior to the discount applied for the applicant's plea of guilty.
The notional sentences were 5 years and 4 months, being the total sentence, with a non-parole period of 2 years and 6 months. The maximum penalty for the offence is 10 years imprisonment. No standard non-parole period applies. The maximum sentence was one of the legislative guideposts to which the sentencing Judge was obliged to have regard.
The next factor to be considered is that the applicant accepts that the sentence was not manifestly excessive and, therefore, that there is no latent error in the sentencing Judge's reasoning.
The applicant then submitted that it is apparent from the Agreed Facts, that although the sentencing Judge did not make a finding about the objective seriousness of the offence, and no complaint of error is made in this respect, this Court ought to regard the applicant's offence as being towards the lower end of the range of objective seriousness for offences of this kind.
Against those background facts, the applicant submits that by reference to the total sentence as being towards the top of the range of sentences which had in the past been imposed, this Court ought to conclude that the sentencing Judge erroneously double counted the fact that the offence was committed whilst on parole, by taking it into account as an aggravating factor on the one hand and by partially accumulating the sentence on the balance of the parole period on the other.
The applicant accepts, as is necessary, that the sentencing process, which is an evaluative one, comprises two principal evaluative and discretionary elements relevant here, namely the extent to which the sentence can or ought be backdated, and the weight to be given to the applicant's commission of the offence whilst on conditional liberty.
I have concluded that it is impossible to reason in the way applicant contends to demonstrate an erroneous conclusion on the part of the sentencing Judge.
In the particular circumstances here, the sentencing Judge was entitled to accumulate the sentence which he imposed on the parole period. It was a matter for him to determine the extent of accumulation. As well, it was a matter for the sentencing Judge to determine the extent to which the applicant's commission of the offence while on conditional liberty was an aggravating factor.
Sentencing is a process of instinctive synthesis. The process was described by McHugh J in Markarian v R [2005] HCA 25; (2006) 228 CLR 357 at [51] in these terms: "By instinctive synthesis, I mean the method of sentencing by which the judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case. Only at the end of the process does the judge determine the sentence."
Here, that is the approach which the sentencing Judge followed. It is not possible to reason from the sentence imposed by his Honour that one or other factor was given such weight in the process as to demonstrate error.
I am unpersuaded that the ground of appeal succeeds. I am unpersuaded that the appeal has any merit. The sentence imposed was well within the discretionary range open to the sentencing Judge. No lesser sentence is warranted.
No basis has been demonstrated for a grant of leave to appeal.

Orders

I propose the following orders: 1. Leave to appeal refused.
FAGAN J: I agree with Garling J.

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