Bayssari v Regina

Appeal

1. The applicant advances one ground for his appeal, namely, that the sentence imposed was manifestly excessive.

Proceedings on Sentence

1. The proceedings on sentence took place over two days, namely 7 August 2020 and 2 December 2020. At the commencement of the proceedings, the Judge noted that the applicant had pleaded guilty on an earlier occasion to the two offences and then followed the appropriate formalities with respect to the admission of guilt for the offences which had been placed on a Form 1.
2. The Crown tendered a bundle which comprised the appropriate formal documents, a set of Agreed Facts which were very short, the criminal and custodial history of the applicant and two Sentencing Assessment Reports dated respectively 28 February 2020 and 2 June 2020. The Crown provided written submissions.
3. No oral evidence was called for the applicant on the sentence proceedings, but a considerable volume of material was tendered. This material included expert reports from a psychiatrist, Dr Tanveer Ahmed, a number of counsellors and psychologists and material from other individuals both in the community and whose paths the applicant had crossed whilst in custody.
4. Of particular significance was a letter from the applicant's current partner attesting to the improvements which he had made whilst undergoing various drug and alcohol counselling sessions.
5. As well, the applicant's counsel provided written submissions.

Agreed Facts

1. As earlier indicated, the Agreed Facts were quite short. They disclosed that the applicant resided intermittently in a granny flat in Wentworthville.
2. On 24 May 2018, the police attended at the applicant's address in order to undertake a search of the property for firearms, because the applicant was the subject of a Firearms Prohibition Order.
3. No firearm was located in the course of that search. However, when the applicant was searched, the sum of $2,175 was found in his pocket. This was the subject of one of the charges on the Form 1.
4. As the search progressed, the police located the presence of illicit drugs. They suspended the Firearms Prohibition search and obtained a warrant to permit them to resume their search.
5. The police located drugs in the following circumstances: 1. 11.59g of methylamphetamine which was found in a small locked box in five resealable bags. These drugs were attributed to the applicant to consume and share with others; 2. 75.1g of GBL inside a glass "V" drink bottle which was open. This drug was also attributed to the applicant to consume and share with others; 3. 21 strips of Suboxone Buprenorphine inside a safe. These drugs led to a charge of possession which was placed on the Form 1; and 4. 5.5g GBL in a clear bottle inside a wardrobe. This drug also led to a possession charge placed on the Form 1.
6. In addition, in the course of the search the police seized glass pipes in various locations, two sets of digital scales and various tools relating to construction.
7. Although there were others in the granny flat at the time, the applicant was arrested and charged.

Crown Submissions on Sentence

1. The Crown noted that the drugs, the subject of the offences, were in the applicant's possession so that they could be used by him and shared with others.
2. The Crown drew attention to relevant principles on sentencing from Parente v R [2017] NSWCCA 284; 2017) 96 NSWLR 633 and R v Wong [2018] NSWCCA 20 at [47]. The Crown submitted that both offences were towards, but not at the bottom of, the range of objective seriousness. The Crown drew attention to the fact that on Count 1 the quantity of methylamphetamine was just over double the indictable quantity and close to four times the trafficable quantity. With respect to the GBL, the Crown noted that it was more than double the trafficable quantity and above the indictable quantity. The Crown noted the need for the Court to address the principle of totality. It submitted that the appropriate discount pursuant to the early appropriate guilty plea legislation, was 5%.
3. The Crown did not challenge, in any substance, the subjective case advanced by the applicant.
4. The Crown submitted that no penalty other than one of imprisonment was appropriate, because general deterrence and the protection of the community was of vital importance in the sentence to be imposed.

Submissions for the Applicant on Sentence

1. Having reviewed the offences, the facts and various features of the offending and objective criminality, counsel for the applicant submitted that both Counts to which pleas of guilty have been entered, fell below the notional mid-range of objective seriousness, and closer to the lower range. The submissions dealt with the applicant's previous criminal record and, consistently with those of the Crown, contended that a 5% discount for the plea of guilty ought be allowed.
2. The offences which the applicant asked the Court to take into account on the Form 1 were addressed and it was submitted that there ought be only a small elevation in the penalty which would otherwise be imposed.
3. The submissions dealt at length with the subjective features of the applicant.
4. At the time of sentencing, the applicant was 52 years old and was 50 at the time of the offending.
5. The submissions drew attention to the lengthy history of use of illicit substances commencing with the use of cannabis at the age of 15, cocaine at the age of 22 and then methylamphetamine at the age of 43.
6. The submissions noted that whilst in custody in 2017, the applicant had been the victim of a sexual assault for which he received trauma counselling from a specialist counsellor. The submissions noted that the applicant was regarded by the trauma counsellor as presenting with symptoms consistent with Post‑Traumatic Stress Disorder ("PTSD").
7. It was submitted that the applicant was an offender who was more susceptible to drug addiction as a means of self-medication. It was also submitted that there was an underlying link between the applicant's drug use and with his offending, together with his mental health state.
8. The submissions drew attention to a letter which had been written to the Court by the applicant proffering an apology together with his plea. The applicant did not give sworn evidence.
9. With respect to the submissions on an appropriate sentence, the applicant's counsel submitted that there were alternatives to full-time custody available for the applicant. The submissions put that "… if the Court arrives at a sentence of 3 years or less, consideration ought to be given to a sentence served by way of an Intensive Correction Order with suitable conditions".
10. The submissions noted that appropriate weight ought be given to the rehabilitation of the applicant, and invited the Court's attention to whether a further full-time custodial term may impact upon the gains which the applicant had made towards drug and alcohol rehabilitation.
11. Ultimately, the submissions were put this way: "It is submitted that having regard to the instinctive synthesis of factors relevant to the sentencing exercise in this case, an Intensive Correction Order is not outside of the appropriate range."
12. Other matters were addressed such as special circumstances and the need to backdate the sentence to take into account the custody which the applicant had served in the pre-trial period.
13. In oral submissions, counsel for the applicant noted the Crown's submission that the threshold in s 5 of the Crimes (Sentencing Procedure) Act 1999 had been crossed. He told the Court that he did not cavil with that. I take that submission to be that counsel for the applicant did not contest that, in the circumstances, the threshold had been crossed.
14. In oral submissions, the Judge was also informed that the applicant's pre-trial custody constituted 155 days. The Crown agreed with this and pointed out to the Judge that that would mean the sentence would commence on 30 June 2020. However, the applicant was serving other sentences at that time.

Remarks on Sentence

1. The remarks on sentence were delivered orally in the week following the final day of the proceedings on sentence. The remarks were of some length including a full review of all of the material going to the applicant's subjective case.
2. In the remarks on sentence the Judge noted that the reason why the proceedings on sentence had taken place over two days separated by some months was that the adjournment was allowed to accommodate an application to obtain a psychiatric report to provide to the Court.
3. The applicant had been charged with various offences during that adjournment. In his Remarks, the Judge noted that fact but then indicated that they would have no relevance in his consideration of the sentence which was to be imposed because at that time those charges had not been resolved.
4. The Judge noted the applicant's attempts at residential rehabilitation and the fact that they had been interrupted by the onset of the COVID 19 pandemic.
5. The Judge allowed 5% in accordance with the statute for the plea of guilty. He noted the agreed Statement of Facts and accepted that, as they recorded, the drugs were for the applicant's personal use and to share with his friends.
6. The Judge reviewed at length, as I have indicated, the various subjective circumstances and history of the applicant.
7. The Judge noted that the various histories given to experts and various accounts contained in the documents of the applicant's personal background were not supported by any sworn evidence by the applicant. However, the Judge regarded the matters of personal history to be uncontroversial and was prepared to take them into account which he did.
8. The Judge in particular noted and was satisfied that the applicant had a diagnosis of Attention Deficit Hyperactivity Disorder which was combined with some findings that suggested that the applicant's level of cognitive function was in the extremely low range. The Judge noted that the expert reports recorded that the applicant was a person who was in a moderate range of overall risk of offending. The Judge was satisfied that the applicant was suffering a continuing trauma as a result of his assault in custody and that he required ongoing trauma counselling. He noted the applicant's attempts at drug and alcohol rehabilitation.
9. The Judge summarised the applicant's subjective case in this way: "I am satisfied that the offender is a person who has suffered a measure of disadvantage in his background, some of which continues to impact him today. Over and above that, he has more recently suffered the undoubted impact as the victim of a quite vile crime committed upon him in custody. It cannot be too strongly stated that imprisonment is an approach still adopted as necessary where people are to be denied their liberty as punishment but not sent to prison for punishment in some extrajudicial form. The offender I find also upon all of the evidence is quite intellectually challenged. That said, he has however maintained himself in the community for significant periods without offending …"
10. The Judge noted specifically that returning the applicant to a custodial environment against the background of his PTSD "… has implications of added hardship which I must take into account".
11. The Judge noted the applicant's past "fairly significant criminal record" but noted that this was not taken into account as an aggravating factor, but, rather, simply meant that he had no legitimate entitlement to leniency.
12. The Judge indicated that he was satisfied that the relevant statutory threshold, where no sentence other than one of imprisonment should be imposed, had been passed.
13. The Judge noted that there was a further question as to whether some or all of that sentence should be served in the community, and noted that that was a matter which "requires very careful consideration, particularly in determining the real effect of a further period of imprisonment, and also directing my mind to the question which is paramount in the obvious of non-custodial outcomes, and that is the safety of the community".
14. The Judge noted the need for general and specific deterrence. He concluded that these matters and taking into account all of the objects of sentencing to be found in s 3A of the Crimes (Sentencing Procedure) Act would not be satisfied by an order that any term of imprisonment be served in the community.
15. The Judge found special circumstances.
16. The Judge then imposed the sentences to which I have made reference at [5] above. The sentences commenced on 4 April 2020.

Was the Sentence Manifestly Excessive?

1. The principles upon which this Court acts in considering such a ground of appeal are well-known and do not need to be constantly repeated.
2. In short, it is only where in considering the aggregate sentence which was imposed the Court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing Judge, or else where the sentence imposed is so far outside the range of sentences available that there must have been some error: see Hughes v R [2018] NSWCCA 2 at [86].
3. Whilst an appeal alleging manifest excess in an aggregate sentence involves an appeal against that sentence, it is open to the Court to consider the indicative sentences as a part of its consideration of the ground of appeal.
4. The applicant submits that although there was no specific finding made by the Judge as to the objective seriousness of each of the two offences to which the applicant pleaded guilty, having regard to the submissions at trial by both counsel for the applicant and the Crown, and the absence of any oral discussion of those submissions, it is appropriate to consider this appeal on the basis that the Judge was satisfied that the offences were towards the lower end of the range of objective seriousness.
5. The applicant submits that such a conclusion is readily open to him having regard to the fact that the supply of drugs was a deemed supply having regard to the quantities found, that there was no suggestion that the applicant was engaged in the supply of drugs for financial gain, that the Agreed Facts were that the supply of the drugs was attributable to the applicant consuming them and sharing them with his friends, and that the quantities of both drugs, whilst over the indictable quantity, were significantly below the commercial quantity.
6. The applicant submits with respect to both offences that, having regard to the fact that the objective seriousness of the offending fell towards the lower end of the range of objective seriousness, and that the applicant presented a powerful subjective case, there "… was an inexplicable inconsistency between the findings and the sentence, to the point where the former was not reflected in the latter".
7. In particular, the submissions drew attention to the fact that the quantities of the drug were not high and that there was no element of financial gain in the supply.
8. The submissions went on to review a number of cases which the applicant submitted provided a general indication of a kind which pointed towards a conclusion of manifest excess.
9. The applicant drew attention to three previous decisions of this Court as indicating that the indicative sentences, and hence the aggregate sentence, were manifestly excessive. The first case the applicant drew attention to was Remington v R [2018] NSWCCA 98, which involved the offender pleading guilty to an offence of supplying 12.94g of methylamphetamine, whilst also pleading to a number of other offences. The applicant drew attention to the fact that this Court sentenced the applicant, having allowed the appeal, to a term of imprisonment of 6 months non-parole and an additional term of 6 months.
10. However, I am not satisfied that this is an analogue case. In the first place, the offender in that case was only 24 years old. She did not have a criminal record of the kind which the applicant here has. Her subjective case revealed a childhood characterised by violence, alcohol abuse, emotional neglect and sexual abuse. She suffered from borderline personality disorder and complex trauma. As well, she did not have an extensive criminal history and received a full 25% discount having regard to her early plea.
11. The second case relied upon was Regina v Payne [2005] NSWCCA 84. In that case, this Court allowed a Crown appeal and imposed a custodial sentence of 1 year and 8 months with a 12-month non-parole period. The quantity of drug was 17g of methylamphetamine for personal use and for the use of her partner. The offending had occurred in breach of a s 12 bond imposed for an earlier offence of supplying methylamphetamine. The offender was a drug addict, as was his partner. He received a 15% discount on account of his plea.
12. The offence had been ordered to be served by periodic detention. Although the matter before the Court of Criminal Appeal was a Crown appeal, the Crown did not contend (having regard to delays which had occurred) that the sentence should be served by way of full-time custody. That sentence for periodic detention had commenced on 20 November 2004.
13. It is also relevant to note that, in accordance with authority at the time, the Court approached the task of re-sentencing, exercising the principle of restraint having regard to the fact that it was a Crown appeal. It is also to be noted that the sentence imposed in the Court of Criminal Appeal commenced on 20 May 2005, about six months after the sentence which had been imposed by the sentencing Judge.
14. There were significant differences in the offender's subjective case when compared with this applicant. The offender was younger and had a history of deep addiction to the methylamphetamine which was found in his possession. The Court found that the methylamphetamine in his possession was only to satisfy his drug addiction and that of his partner, and that in reality only half of the quantity with which he was charged was actually for the purpose of being given to his partner.
15. Particularly because the Court, after a Crown appeal, was engaged in exercising the then appropriate principle of restraint, I do not regard this case as having any relevance to the determination of the issues in this appeal.
16. The final case drawn to the Court's attention was Stavropoulos v R [2018] NSWCCA 12. In that matter, the offender (who was in his late 40s) had pleaded guilty to the supply of almost 43g of methylamphetamine. It was accepted that the drugs were for personal use and to be shared with his friends. The Court of Criminal Appeal dismissed an appeal against a 2-year indicative sentence for that offence. That indicative sentence took into account a 25% discount.
17. The supply of the prohibited drug was one of three charges to which the offender in that case pleaded guilty. The other charges involved the unauthorised possession of a pistol and the possession of a prohibited weapon. Various of those offences were taken into account on a Form 1.
18. The indicative sentence with respect to the supply of the prohibited drug was 2 years. The applicant had no previous criminal convictions. He pleaded guilty at the earliest time and was entitled to a discount of 25% on the indicative sentences announced by the sentencing Judge. The offender was under considerable emotional and financial stress at the time because of a business dealing with an individual who had defrauded him and had physically attacked his property. He had only recently commenced using methylamphetamine.
19. The Court was persuaded that error was established and that it was necessary to re-sentence the offender. Upon considering that re-sentence, Hoeben CJ at CL (with whom Price and Fullerton JJ agreed) found that he was not satisfied that a lesser sentence than that which his Honour imposed was warranted in law. Put differently, any sentence which the Court imposed on re-sentencing would have been longer than that imposed by the sentencing Judge. This decision does not establish that the indicative sentence imposed for the supply of drugs offence was a term with which the Court agreed. On the contrary, it announced its disagreement and on the basis that the sentence was inadequate. It is not an analogue in this case.
20. Undoubtedly there are sentences for the supply of drugs of the quantity and in circumstances similar to those which exist here, imposed by sentencing Judges and upheld in this Court, which are shorter than those imposed on the applicant. That, however, is the nature of sentencing. The mere fact that the applicant received a sentence which was longer than some others in similar circumstances does not of itself and without more demonstrate manifest excess.
21. The question is whether, having regard to the fact that there are obviously individual differences on sentences, this sentence imposed by the Judge fell outside the range of a sentence which is reasonably available as a matter of discretion.
22. I am not persuaded that this is so. The applicant has a poor criminal history. Whilst the offences can be regarded as low range, general deterrence and specific deterrence nevertheless formed appropriate considerations to which the Judge had regard.
23. Equally, the Judge was entitled to reject, as he did, the submission that the sentence ought be served in the community. It is not contended that this constituted an error.
24. In all of the circumstances, whilst the sentences may be regarded as being towards the upper end of the range of those available to be imposed, I am not satisfied they exceeded that reasonable discretionary range.

Conclusion

1. I would grant leave to appeal but would dismiss the appeal.

Orders

1. I propose the following orders: 1. Leave to appeal granted. 2. Appeal dismissed.
2. BELLEW J: I agree with Garling J.

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