Bidgood v R

Facts of the offending

1. Her Honour found the following facts from a Statement of Agreed Facts tendered at the sentence hearing.
2. In August 2013, investigators attached to North West Metropolitan Region Enforcement Squad, Penrith commenced a geographical Controlled Operation (CO 13/114) within the Katoomba Central Business District (CBD) with the intention of obtaining intelligence and evidence regarding the current street level drug trade within the area.
3. During the operation the Applicant was identified as being actively involved in the supply of the various prohibited drugs within the Katoomba LAC. During each controlled purchase of prohibited drugs a man named Hemi Atkinson (aka Hemi Watene) was monitored through physical and electronic surveillance.

Sequence 6 - Ongoing Supply of Prohibited Drug

1. Between 14 January 2014 and 14 February 2014 being a 30 day period, the Applicant supplied prohibited drugs on 4 separate occasions for a financial reward as follows:

1/ Supply Prohibited Drug (Sequence 2)

1. On 15 January 2014, a woman contacted Atkinson and arranged to meet him at the Cecil Guest House. The woman later attended the Cecil Guest House and spoke with Atkinson. A female associate of Atkinson, Stephanie Davis, left the location attended the Applicant's residence where he supplied Davis with 1.2 grams of MDMA powder and ten empty capsules. A short time later, Davis returned to the Cecil Guest House where the MDMA powder and capsules were handed to Atkinson. Atkinson supplied the female with the 1.2 grams of MDMA powder and ten empty capsules for $500.
2. The drug was taken to the Forensic Analytical Science Service and was confirmed as 0.99 grams of MDMA with a purity of 37.0 per cent.

2/Supply Prohibited Drug (Sequence 3)

1. On 22 January 2014, a man contacted Atkinson and arranged to meet him at the Cecil Guest House. The man later attended the Cecil Guest House and spoke with Atkinson and negotiated to purchase MDMA and Cocaine. Atkinson then contacted the Applicant who supplied Atkinson with four clear capsules containing MDMA powder weighing 1.1 grams. They were then supplied by Atkinson to the man for $150. The drug was taken to the Forensic Analytical Science Service and was confirmed as 0.6 grams of MDMA with a purity of 9.0 per cent.

3/Supply Prohibited Drug > Indictable Qty (Sequence 4)

1. On 28 January 2014, a man attended the Cecil Guest House spoke with Atkinson and negotiated to purchase MDMA. Atkinson contacted the Applicant to arrange for 20 MDMA capsules to be delivered to the Cecil Guest House. The Applicant handed the MDMA capsules to an associate, John Smith, who travelled from the Applicant's residence to the Cecil Guest House. Smith spoke with Atkinson after which he walked to the Carrington Hotel beer garden where he met with the man.
2. The man and Smith walked to the man's vehicle in the Carrington Hotel car park where Smith supplied the man with 20 MDMA capsules weighing 5.1 grams for $700.

4/Supply of Prohibited Drug > Indictable Qty (Sequence 5)

1. On 4 February 2014, a man and woman attended Katoomba Street, Katoomba, where they spoke to John Smith. Smith agree to supply 50 MDMA capsules and 2 ounces of cannabis to them. Smith then drove to an address in Hill View Road, Katoomba where the Applicant supplied him the 50 MDMA tablets, which weighed 13.9 grams and 2 bags of cannabis leaf which weighed 60.7 grams The man handed Smith $2,200.00 in cash. Smith was then seen to travel directly back to the Hill View Road address where he paid the cash to the Applicant.

Sequence 1 - Supply Prohibited Drug -1

1. This offence involved two women negotiating to purchase drugs from Atkinson and Davis at a hotel in Katoomba. Atkinson and Davis went to the Applicant's home where the Applicant supplied them with 10 MDMA tablets weighing 2.6 grams. Atkinson and Davis then supplied it to the two women for $450. The drug was taken to the Forensic Analytical Science Service and was confirmed as 1.57 grams of MDMA with a purity of 11.0 per cent.

Form 1 matters

1. On 5 February 2014, Police attended at the Hill View Road address where a search warrant was executed. The Applicant was present at the location and was placed under arrest and cautioned.
2. Prior to being taken to Katoomba Police Station, the Applicant indicated the presence of prohibited drugs at the premises. The following prohibited drugs were located during the search warrant by police: a. large amount of Cannabis within his locked walk in wardrobe and within the pantry, being 3.2kg ; b. 18 grams of MDMA powder and 56 MDMA tablets (which was analysed and identified to be 6.5 grams of MDMA) within his Diesel brand bag on the kitchen bench c. 5 LSD tabs d. 15 grams cannabis seeds; and e. $5,630 in Australian currency.

Sequence 12 - Cultivate prohibited plant > commercial qty

1. During the course of the search warrant it was observed that the entire rear yard was being utilised for the cultivation of Cannabis Sativa plants. The area consisted of black plastic sheeting, polystyrene tubs, plastic irrigation and plastic roof sheeting. The plants were removed and a total of 303 Cannabis Sativa Plants were identified and seized, being greater than the commercial quantity.
2. The Applicant participated in an electronically recorded interview, during which he made full admissions to all of the offences described above. He admitted ownership of all the items located and said that he supplied drugs to close friends to supplement his income as a labourer.

Subjective matters

1. The Applicant was aged 44 years at the time of the sentence. The only matter on his criminal record was a conviction for a common assault in 2004 for which he was placed on a section 9 bond for 12 months. The Sentencing Judge regarded him as a person of otherwise good character.
2. The Applicant purchased the premises where he conducted his drug-related activities. The property was the subject of a mortgage. The Applicant was a self-employed landscape gardener who manufactured timber products and did transport-related work.
3. The Applicant was assessed by Dr Bruce Westmore, a psychiatrist. Dr Westmore took a history from the Applicant that the Applicant's father was a violent alcoholic, and the Applicant witnessed episodes of domestic violence towards his mother prior to his parents separating when he was about 12 years of age. The Applicant had not seen his parents for many years. He had one brother who also had substance abuse problems, and the Applicant had had no contact with him for many years.
4. The Applicant told Dr Westmore that he commenced smoking cannabis at a very young age. When aged 24 he tried LSD for the first time and also amphetamines. He then began to abuse ecstasy and cocaine which he did for 10 to 15 years. He was smoking cannabis on a daily basis.
5. Following the birth of a son about ten years before he saw Dr Westmore, the Applicant attended a counsellor in an attempt to reduce his drug intake because his drug addiction was impacting upon his relationship with the child's mother. However, he did not stop using drugs completely and he relapsed.
6. Since he was arrested on the present charges he completed a 28 day rehabilitation program at South Pacific Private Hospital. He thereafter attended AA and NA meetings and had obtained counselling through the Katoomba Community Mental Health Clinic. He told Dr Westmore that he had occasionally used cannabis up to the time of his admission to South Pacific Private Hospital but had not used it since. He had substantially reduced his alcohol consumption from up to 40 standard drinks every night to an occasional drink with dinner and an occasional beer.
7. Dr Westmore diagnosed him with a substance use disorder (in remission) and an alcohol use disorder (in remission). Dr Westmore thought it was probable during his formative years that he experienced periods of depression and anxiety.
8. Dr Westmore said that, having assessed and treated many substance and alcohol dependent people over the years, he thought the Applicant's motivation and participation in recovery to date was somewhat remarkable and in many ways it set him apart from many other patients Dr Westmore had seen. Dr Westmore thought the major motivator was the Applicant's son and his separation from the son when he was incarcerated before being admitted to bail.
9. The Applicant was also interviewed for a pre-sentence report. The Community Corrections Officer said that the Applicant explained and maintained the view that he had only involved his friends in the supply of illicit substances. The Community Corrections Officer considered that the Applicant may have minimised the severity of the offences and the regret expressed by him did not factor the significant negative impact of illicit substances on the community. The Applicant acknowledged that his actions were financially motivated.
10. The Applicant did not give evidence at the sentence hearing.

Remarks on sentence

1. In her Remarks on Sentence the sentencing judge noted the consistent line of authority in this Court to the effect that unless there are exceptional circumstances a full-time custodial sentence must be imposed on offenders who have been substantially engaged in the supply of prohibited drugs to others. Her Honour noted that engaging in that type of crime purely for financial reward was a factor of aggravation.
2. Her Honour found that the Applicant was engaged in the supply of prohibited drugs to others, not just one type but both MDMA and cannabis. Further, he grew in excess of the commercial quantity of cannabis plants. Her Honour found that the Applicant had attempted to minimise his efforts in that regard: … just as he has done in maintaining he supplied only to known associates by attempting to downplay the quality and the quantity of the plants. Her Honour found that he was supplementing his income as a landscape gardener from the sale of the drugs. Her Honour found that this aggravated the offences. Her Honour held that he was not a street level dealer but someone actively and willingly involved in supplying prohibited drugs to others. He was actively engaged in this criminal activity from at least mid-December 2013 until his arrest in early February 2014.
3. Her Honour noted his immediate admissions to police and his cooperation together with his early pleas of guilty in the Local Court. Her Honour found that although the matters were serious they fell towards the lower end of the scale in respect of each matter. The quantities supplied were small, the cannabis planation was not elaborate such as a hydroponic set-up, the activities were not particularly sophisticated, and the drugs and the sum of cash found in his possession were relatively small.
4. Her Honour found special circumstances because it was the Applicant's first time in custody and he had suffered from anxiety and depression which were likely to return when he was returned to custody. Her Honour said that he would need a longer of time on supervised parole to ensure he did not relapse when he was eventually released.
5. Her Honour accorded him a 25% discount for each plea but, noting that the matters on the Form 1 were themselves serious offences, she said that she had increased the sentence to be imposed to reflect the seriousness of those offences.
6. Her Honour also said this: I have sentenced his co-offenders, Hemi Atkinson and Stephanie Davis. Stephanie Davis was sentenced in respect of two counts of supply prohibited drugs -1.7 grams of MDMA and 0.99 grams of MDMA. She was a young woman with no prior criminal antecedents and she was placed on two section 9 bonds - one for two years duration and one for one year. Hemi Watene, also known as Atkinson, was sentenced for one count of ongoing supply. He had three related matters on a Form 1, one further count of supply, one count of possess prohibited drug and one count of knowingly take part in supply. He was 34 years of age. He was on conditional liberty at the time he committed those offences. He was serving an Intensive Corrections Order and he was on a section 9 bond. He had prior criminal antecedents, including drug-related convictions. He was sentenced to a total term of three years and three months and a non-parole period of one year and three months. This offender is, of course, facing more charges. This offender was Mr Watene's up-line supplier. Issues of true parity do not arise. This offender is entitled to have time spent in custody following his arrest taken into account - a total of 86 days.

Submissions

1. The first three grounds of appeal were dealt with together in the Applicant's submissions.
2. He submitted that an unduly harsh penalty was imposed on him as a result of the finding that he engaged in some form of "higher level" supply of drugs which was not in accordance with the agreed facts. It was submitted that, as the Crown accepted, the persons referred to by the sentencing judge as the "co-offenders" were not true co-offenders. In that way her Honour should not have made findings in relation to the relative criminality of those persons and the differing subjective features of each of them. Doing so worked to the detriment of the Applicant who was as a result found to be an "upstream supplier".
3. The Applicant submitted that although a sentencing court is not bound to accept agreed facts in imposing a sentence, where a court proposes to sentence upon a different basis from the agreed facts the court should inform the parties so that they have an opportunity to make submissions on the matter. The Applicant submitted that the sentencing judge failed to do this.
4. The Applicant submitted that there was no evidence that he knew of the on-supply of drugs by his buyers. Further, the Applicant had said in his ERISP (noted in the agreed facts) that he simply supplied drugs to close friends. In those circumstances the lack of a warning from the sentencing judge meant that the Applicant was unable to call evidence or make submissions on the issue, and in that way was denied procedural fairness.
5. The Applicant submitted that, although the Sentencing Judge made reference to the sentencing of the "co-offenders" neither the details of their offending nor the judge's remarks concerning the sentences imposed on them was available to the parties. In those circumstances it could not be understood whether, and to what extent, their offending and the sentences imposed on them had affected the sentence imposed on the Applicant.

Consideration

1. The Applicant's submissions proceed on the incorrect assumption that the facts contained an agreement that he supplied drugs only to close friends. What the facts disclosed was that the Applicant supplied drugs to Atkinson and Davis on a number of occasions and that he claimed that he supplied drugs to close friends to supplement his income as a labourer. The facts did not even say that he claimed that he "only" supplied drugs to close friends.
2. The Sentencing Judge noted that the author of the pre-sentence report considered that the Applicant may have minimised the severity of the offences in the context of telling the author of the report that he only involved his friends in the supply of the drugs. The Sentencing Judge also noted the quantities of the drugs involved, particularly that sequence 12 involved the cultivation of a commercial quantity of cannabis. In addition, sequence 15 involved the supply of 3.2kgs of cannabis, that amount being found in a wardrobe in a pantry at the Applicant's premises.
3. Her Honour was not bound to accept what the Applicant had said in his ERISP and it was open to her to reject those claims made by him particularly in circumstances when he did not give evidence at the sentence hearing where he might have been cross-examined on those assertions. In those circumstances the finding that the Applicant was an upline supplier was open to her.
4. Nor was there procedural unfairness involved in the finding as ground 3 asserts. Senior Counsel for the Applicant had submitted that the Applicant was supplying only to people he looked upon as his friends and the fact that those friends supplied to others including members of the public was unknown to him. It may be noted that, in the absence of the Applicant having given evidence to that effect, there was in fact no evidence to support the submission.
5. In response the Crown said this: It has been urged upon your Honour that ongoing supply was only to friends and that was somehow lesser serious (sic) than another case. The Crown again simply draws your Honour to the facts and particularly to para 18 which relates to the fourth supply on 4 February where the purchase from Smith of the cannabis and MDMA tablets returned immediately after he received the $2,200 in cash and gave that money directly to Mr Bidgood. So the issue for your Honour the Crown would say is that in the context of the other offences and certainly not in breach of the de Simoni principle that it's quite clear that this offender was at an upper level, not on the street level, at an upper level of a drug supply network and that's the finding that the Crown would urge on your Honour in relation to that offence, that's the ongoing supply. And again, just to give context, the third matter before your Honour is that a deemed supply of the amount of cannabis. And again viewed in context of the cultivation of the, what the Crown says, is the level above street level role of the offender, he has this other amount of cannabis which makes out the third offence, the deemed supply.
6. Senior Counsel for the Applicant made two points in reply but neither of them responded to the Crown's submission that it was open to her Honour to make a finding, and that she should do so, that the Applicant was above a street level dealer. In those circumstances, where the Crown had squarely raised the issue, it cannot be said that there was any procedural unfairness when the sentencing judge acceded to the Crown's submission in that regard.
7. In relation to ground 2 specifically, it may be accepted, however, that if the Sentencing Judge was influenced by the sentences she imposed on the other offenders referred to, information concerning their offending and her reasons for the sentences imposed should have been available to the parties. It is clear from the transcript of the sentence proceedings that both parties agreed that Mr Atkinson, Mr Smith and Ms Davis could not be regarded as co-offenders and that parity issues did not arise. Her Honour appeared to accept that position.
8. However, her Honour's detailing of the sentences they received leads to an inference that they may have been a factor in the sentencing process of the Applicant. That is strengthened by the fact that her Honour refers to Mr Atkinson and Ms Davis as "co-offenders". Although her Honour said that "issues of true parity do not arise" that appears from the context to be because she considered the Applicant was higher up the supply chain than the others.
9. Because error has been established in relation to grounds 4, 5 and 6 it will be necessary for this Court to re-sentence the Applicant. It is not, therefore, necessary to reach a final view on ground 2.

Ground 4

1. Her Honour noted that the Applicant told the police that he supplied drugs to close friends "to supplement his income as a labourer". She noted that in the year leading up to his detection his income had dropped and that was consistent with the admission to police that he was supplementing his income by his illegal activities. Her Honour found that that aggravated the crimes. Elsewhere she noted that he involved himself in serious criminal activity for financial reward.
2. The Applicant submitted that the offence of ongoing supply contained as an element of that offence the making of financial or material reward. In those circumstances, at least for that offence, there was in effect a double counting by her Honour taking into account the making of money from the sale of the drugs as an aggravating factor.
3. The Crown did not dispute that offending in relation to the count relating to ongoing supply could not be aggravated by a finding that the supply was for reasons of financial gain.
4. In my opinion, in relation to the offence of ongoing supply, committing the offence for personal gain cannot be regarded as an aggravating factor because that factor is an element of the offence under s 25A of the Drugs Misuse and Trafficking Act 1985 (NSW). It was, however, rightly regarded as an aggravating factor in respect of the remainder of the offending. Error is established.
5. I would uphold this ground of appeal.

Ground 5

1. Her Honour found that the Applicant was actively engaged in this criminal activity from at least mid December 2013 until his arrest in early February 2014. Her Honour, then having noted the Applicant's immediate admissions to police and cooperation with them together with his early guilty pleas and the steps he had taken to rehabilitate himself since his arrest, went on to say: … at the end of the day he involved himself in serious criminal activity for financial reward. Whilst normally his otherwise good character would entitle him to leniency, I find the extent of his criminal conduct such that he has disentitled himself in that regard. This was not a one-off aberration on his part but rather a course of ongoing serious criminal conduct.
2. The Applicant submitted that, in accordance with what was said in Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267, the Sentencing Judge should not have held that the Applicant had disentitled himself in that regard. The Crown pointed to the fact that the offending had continued over at least the two to three month period and submitted that any good character on which the Applicant might have relied upon at the beginning of the period had dissipated by his continuing offending.
3. In Ryan, the appellant had committed more than 50 offences against young boys over a 20 year period. He pleaded guilty to 14 counts and asked that 39 additional offences of a similar kind be taken into account. The sentencing judge found that, apart from the offending charged, the appellant was a man of unblemished character and reputation. Nevertheless, he held that the appellant was not entitled thereby to any leniency whatsoever. The Court of Criminal Appeal upheld that approach.
4. In the High Court McHugh J said: In considering a prisoner's good character when sentencing, the court must distinguish two logically distinct stages. First, it must determine whether the prisoner is of otherwise good character. In making this assessment, the sentencing judge must not consider the offences for which the prisoner is being sentenced. Second, if a prisoner is of otherwise good character, the sentencing judge must take that fact into account. However, the weight that must be given to the prisoner's otherwise good character will vary according to all of the circumstances of the case. See also Kirby J at [112] and Callinan J at [178].
5. The Sentencing Judge found that the Applicant was otherwise of good character. However, she fell into error by holding that he was disentitled to the benefit of that good character by reference to the offending for which her Honour was sentencing him. The Crown's submission concerning the dissipation of that good character is not correct as providing a basis for disentitling the Applicant to the benefit of that good character. It is correct only as supporting a view that limited weight should be given to that good character. The present case is not distinguishable from Ryan in the sense that there was continued offending over time in both cases. If the offending over 20 years in Ryan did not have the effect of negativing good character as a mitigating factor, offending in the present case of no more than three months, a fortiori, did not have that effect.
6. I would uphold this ground.

Ground 6

1. The maximum penalty for supplying 3.2kg of cannabis leaf is 10 years imprisonment and/or 2000 penalty units: ss 25(1) and 32(1)(c) and (h) Drug Misuse and Trafficking Act 1985 (NSW). The Sentencing Judge said in her reasons that the maximum penalty was 15 years imprisonment and/or a fine of up to $220,000 (2200 penalty units). Her Honour was led into error by the Crown in that regard.
2. Although an appeal against an aggregate sentence is not directly concerned with the indicative sentences, such sentences can be relevant in determining error in the aggregate sentence. The indicative sentence for supplying 3.2kg of cannabis was 1 year, a sentence which was certainly open to the Sentencing Judge even if she had been aware that the maximum sentence was 10 rather than 15 years. Nevertheless, the Applicant is entitled to be sentenced with the judge having the correct maximum penalties in mind. Since grounds 4 and 5 are to be upheld in any event, it will be necessary for this Court to re-sentence generally: Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601.

Re-sentence

1. The findings concerning the subjective matters associated with the Applicant made by the trial judge (at [22]-[30] above) should be accepted. So too should her Honour's finding that the Applicant was more than a street level dealer but was in fact supplying to such dealers for the reasons her Honour gave.
2. The Applicant pleaded guilty at the earliest opportunity and should be accorded a 25% discount for his pleas. He was, however, substantially engaged in the supply of prohibited drugs to others. There are no exceptional circumstances which would justify a non-custodial sentence.
3. The Applicant was a person of good character until the present offending. The continued attempts to minimise his offending in what he asserted to the Community Corrections Officer who prepared the pre-sentencing report and in the submissions made by his Senior Counsel at the sentencing hearing justify a finding that he is not truly remorseful. His behaviour subsequent to his arrest together with what is contained in Dr Westmore's report means that his prospects for rehabilitation are good. A finding of special circumstances should be made because it is his first time in custody and he has suffered from anxiety and depression. In addition, although he has already taken steps to deal with his drug use he will need a longer time on supervised parole to ensure that he does not relapse when released.
4. In respect to sequences 12 and 15, the fact that the offending was done for financial gain to supplement his lawfully acquired income is an aggravating factor.
5. It is appropriate that an aggregate sentence be imposed.
6. Notwithstanding the errors made in relation to financial gain being held to be an aggravating factor for the offence of ongoing supply, the failure to take into account that he was a person of otherwise good character and the fact that her Honour mistakenly believed that the maximum penalty for the offence of supplying 3.2kg of cannabis was 15 years, I consider that the aggregate sentence imposed by her Honour including the non-parole period which contained a generous reduction from the statutory ratio was a lenient sentence. In my opinion no lesser sentence than that imposed by her Honour should be imposed. I would provide the same indicative sentences as those indicated by her Honour.
7. I propose the following orders: (1) Leave to appeal granted. (2) Appeal dismissed.
8. R S HULME AJ: I agree with the orders proposed by Davies J and substantially with his Honour's reasons.
9. However, I would not infer from English DCJ's reasons that she was influenced by the sentences imposed on Hemi Atkinson and Stephanie Davis. The topic of the sentences imposed on those offenders was raised during the course of address. Both counsel agreed that they could not be regarded as co-offenders in any useful sense and her Honour intimated that she only raised the topic because "it was in the sort of the back of my mind". The dismissive way in which her Honour referred to the topic in her remarks on sentence reinforce my conclusion.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 July 2016