BIERMANN v R

Court of Criminal Appeal (NSW)|2009-06-04|Before: Campbell JA, Latham J, Harrison J, Stephen J

The Applicant's Subjective Case 12 The applicant was 26 years of age at the time of sentence. He was brought up in a conventional and loving family environment in western Sydney, obtained his HSC and completed a Diploma in Superannuation and Financial Services before obtaining employment with a superannuation fund. He remained in that employment for 7 years, resigning two weeks before his arrest. He left the family home in 2006 following an argument with his parents concerning his drug use. The applicant described a period during his adolescence when he struggled with the realisation that he was homosexual. 13 In 2006, the applicant's drug use escalated to the point where he was spending $250 daily on methamphetamines. The applicant had also embarked upon an episode of heavy expenditure on luxury items and travel, necessitating a loan of $120,000 which was guaranteed by his parents. It was in these circumstances that the applicant undertook the supply of drugs to the gay community from his rented accommodation. Thus, he was utilising the proceeds of sale of various drugs towards his living expenses, the cost of his own drug use and repayments under the loan arrangement. 14 A large volume of testimonials and other reference materials attested to the applicant's prior good character. The applicant expressed his remorse through a letter to the court. There were also positive reports of his progress since his arrest, including his attendance at drug counselling sessions and his employment within the prison system. In short, a compelling subjective case was mounted on the applicant's behalf.

The Applicant's Submissions 18 The gravamen of the applicant's complaint in respect of the individual sentences imposed is that they each appear inconsistent with other sentences imposed for like offences involving greater quantities of the relevant prohibited drug. The applicant relies upon an observation by Blanch J in Mitchell v R [2008] NSWCCA 192 at [12], namely that this Court should strive to achieve some consistency in sentencing, notwithstanding that it is not an exact science. Of the measures available to promote consistency, Blanch J referred to the statistics kept by the Judicial Commission and to the practice of referring to sentences imposed for like offences in other cases. 19 In particular, the applicant complains that the Judge failed to refer to two decisions, namely R v MacDonnell [2002] NSWCCA 34 and R v Hejazi [2003] NSWCCA 383 in the course of his remarks on sentence, where those decisions featured in the course of submissions. As I understand the applicant's submissions, some comfort is sought to be obtained from the fact that aggregate sentences in the order of 11 years and 9 years, with non parole periods of 7 and 6 years respectively, were imposed for offences involving much greater quantities of various drugs than the applicant's case. The failure by the Judge to specifically refer to these cases is said to disclose error in his approach to the individual and aggregate sentences. 20 In much the same vein, the applicant referred this Court to a number of decisions relating to supply cocaine and supply amphetamine offences in order to demonstrate that the applicant's sentences are outside the appropriate range. It is submitted that this conclusion is reinforced when consideration is given to the failure of the Judge to expressly find that the applicant had good prospects of rehabilitation, that the applicant was addicted to drugs, that he was under emotional stress at the time of the offences and that there had been delay in sentencing. 21 The applicant acknowledges that the accumulation of sentences is an exercise of discretion, subject to the principle of totality and to the need to ensure public confidence in the administration of justice : R v Wheeler [2000] NSWCCA 34. It is nonetheless submitted that the Judge failed to take account of the fact that the offences were part of "a singular enterprise", by which I take the applicant to mean that the offences arose out of his arrest on 8 June 2007 for the possession of the various drugs for the purposes of supply. 22 Lastly, it is submitted that, although a finding of special circumstances was made, the proportion between the aggregate non parole period and the aggregate sentence did not sufficiently reflect the applicant's need for supervised release into the community in order to further his rehabilitation prospects.

Resolution of the Appeal 23 There is no substance to the contention that the individual sentences or the aggregate sentence are manifestly excessive. The applicant's reliance on MacDonnell and Hejazi are misplaced, in so far as both decisions related to sentences imposed before the enactment of a standard non parole period for the supply commercial quantity offence, a factor which this Court has held will result in an upward adjustment to sentences for such offences. MacDonnell was a Crown appeal and Hejazi concerned an argument as to disparity with a co-offender, so that very little, if any, assistance can be gained from either case. In these circumstances, it is not surprising that the Judge did not include any reference to them in the remarks on sentence. 24 Of the four decisions of this Court relating to supply cocaine offences cited in the applicant's written submissions, one (R v Jordan [2002] NSWCCA 228) may be put to one side on the basis that it concerned an argument as to the accumulation of sentences for two offences, one of which was the ongoing supply of cocaine and the other, supply cocaine. No argument was advanced on that appeal that a sentence of 3 years for the supply of 62gms of cocaine, in the sense of possession for supply, was excessive. R v Harmouche 158 A Crim R 357 ; [2005] NSWCCA 398 was a Crown appeal against the inadequacy of a sentence imposed for the supply of 200gms of cocaine where the sentence of 2 years and 4 months imposed by the Court was appreciably less than it should have been. R v Dang [2005] NSWCCA 430 was also a Crown appeal against the inadequacy of a sentence of 6 years 6 months for an offence of supply commercial quantity of cocaine (just under 1kg), where Howie J (Studdert and Whealy JJ agreeing) remarked that the least sentence the Judge could have imposed at first instance was a sentence of 9 years with a non parole period of 5 years 6 months. Stevens v Regina [2007] NSWCCA 252 related to an offence of supplying a large commercial quantity of cocaine (just under 2 kgs). This Court did not regard a sentence of 11 years with a non parole period of 7 years as manifestly excessive. All of these decisions have little relevance to the applicant's case. 25 In relation to sentences for supply methylamphetamine, the decisions of R v Franklin NSWCCA 11 April 1997 and R v Thompson & Falconer [1999] NSWCCA 50 were a bench of two Judges and contain no matter of principle. In the former, a sentence of 4 years imprisonment was considered unexceptional for the supply of 134gms of amphetamine. In the latter, the Court was concerned with charges relating to the manufacture of commercial quantities of methylamphetamine and tetrahydrocannabinol. R v Loh [2002] NSWCCA 23 was a successful Crown appeal against the inadequacy of sentences imposed for four offences, including two offences of supply commercial quantity that pre-dated the introduction of the relevant standard non parole period. R v Shi [2004] NSWCCA 135 was also a successful Crown appeal against an inadequate sentence of 4 years, comprising a non parole period of 2 years, for an offence of supply commercial quantity of methylamphetamine (just under 1 kg). R v Emanuel [2004] NSWCCA 267 was a successful Crown appeal against the inadequacy of a sentence imposed for an offence of supplying a large commercial quantity of the drug. R v Attard [2004] NSWCCA 376 was a severity appeal in relation to an offence of supply commercial quantity of methylamphetamine which pre-dated the introduction of the standard non parole period. None of these decisions allow any meaningful comparison to be drawn with the applicant's offences.

26 Of some passing relevance is the decision of Hutton v R [2008] NSWCCA 99, although it does not assist the applicant. In Hutton, the applicant had supplied 478 gms of MDMA, just below the large commercial quantity threshold. His role was that of a "bald courier" and he received a sentence of 6 years with a 3 year non parole period after a plea of guilty. Given the applicant's central involvement in a commercial enterprise, Hutton would seem to suggest that the applicant's sentence on the equivalent offence is well within the appropriate range. 27 R v Stankovic [2006] NSWCCA 229, another successful Crown appeal, concerned a sentence for the supply of a large commercial quantity of MDMA and does not therefore provide any basis for comparison. Similarly, R v Sciberras (2006) 165 A Crim R 532 ; [2006] NSWCCA 268 was a successful Crown appeal against the inadequacy of sentences imposed for various offences, including two of supply commercial quantity of methylamphetamine. The Court held that sentences of 6 years and 6 months, comprising non parole periods of 4 years were manifestly inadequate on these counts, particularly where the offences could not be said to be below the mid range of objective gravity. Hulme J observed in passing at [44], with the concurrence of Beazley JA and Hislop J, that penalties are not proportionate to the quantities of drug supplied. 28 True it is that there is nothing in the Judge's remarks that refers to the applicant's good prospects of rehabilitation, although the Judge spent a considerable portion of the remarks addressing the applicant's "psychological anguish and pain" as a factor in his offending. The Judge also referred extensively to the opinions expressed by the applicant's family members and friends, to the effect that the applicant's behaviour appeared to them to be inconsistent with the person they knew. The Judge accepted that the applicant was very remorseful and contrite. Implicit in these remarks and the finding of special circumstances is a recognition of the applicant's good prospects of rehabilitation. 29 The fact that the applicant was addicted to drugs, and was under emotional stress at the time of the offences do not entitle him to any leniency. This Court observed in R v Henry (1999) 46 NSWLR 346 that the motivation of feeding addictions is entitled to, at most, limited weight. There was no relevant delay in sentencing. The applicant remained in custody from the date of his arrest, 8 June 2007. Accordingly, the sentences imposed were to date from that day. The passage of 11 months from the date of arrest to the date of sentence is far from excessive and, given the applicant's pleas of guilty in the Local Court in November 2007, it could not seriously be maintained that he was left in any uncertainty as to his ultimate fate. 30 The applicant has failed to demonstrate that the sentences imposed on individual counts are manifestly excessive by comparison with other decisions of this Court, and that the aggregate sentence and aggregate non parole period are manifestly excessive. The correct application of the principle of totality should result in an aggregate non parole period that reflects the criminality inherent in a number of offences. Here, the Judge was confronted with a deliberate, commercial course of dealing in a variety of drugs. It is not to the point that the applicant's offences all arose out of the execution of a search warrant. It was never contested that the Judge's description of the applicant's conduct was accurate. In these circumstances, I regard a non parole period of 5 years and a balance of term of 4 years as entirely appropriate to the applicant's offending. 31 It was perhaps unfortunate that the method of accumulation drove the Judge to reduce the non parole period for the only offence carrying a standard non parole period to as little as one year, but there can be no complaint about the final result. 32 The extent to which the aggregate non parole period departed from the statutory ratio was also a matter within the discretion of the Judge. The applicant's complaint on this ground is not that an error of the House v The King [1936] HCA 40 ; (1936) 55 CLR 499 variety was committed, but that he would have preferred the discretion to have been exercised differently. 33 For the above reasons, I would grant leave to appeal but dismiss the appeals against sentence. 34 HARRISON J: I agree with Latham J. **********

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Mitchell v R [2008] NSWCCA 192 at [12] R v MacDonnell [2002] NSWCCA 34 R v Hejazi [2003] NSWCCA 383 R v Wheeler [2000] NSWCCA 34 R v Jordan [2002] NSWCCA 228 R v Harmouche 158 A Crim R 357 ; [2005] NSWCCA 398 R v Dang [2005] NSWCCA 430 Stevens v Regina [2007] NSWCCA 252 R v Franklin NSWCCA 11 April 1997 CASES CITED : R v Thompson & Falconer [1999] NSWCCA 50 R v Loh [2002] NSWCCA 23 R v Shi [2004] NSWCCA 135 R v Emanuel [2004] NSWCCA 267 R v Attard [2004] NSWCCA 376 Hutton v R [2008] NSWCCA 99 R v Stankovic [2006] NSWCCA 229 R v Sciberras (2006) 165 A Crim R 532 ; [2006] NSWCCA 268 R v Henry (1999) 46 NSWLR 346 House v The King [1936] HCA 40 ; (1936) 55 CLR 499

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Cases Cited (19)