Bingul v Regina

Court of Criminal Appeal (NSW)|2009-06-10|Before: Allsop P, Price J, Harrison J

CITATION: Bingul v Regina [2009] NSWCCA 239

JUDGMENT OF: Allsop P at 1; Price J at 80; Harrison J at 81

Appeal against conviction dismissed. DECISION: 2. Leave to appeal against sentence granted. 3. Appeal against sentence dismissed.

Crimes (Sentencing Procedure) Act 1999 (NSW) LEGISLATION CITED: Criminal Appeal Act 1912 (NSW) Evidence Act 1995 (NSW)

B v The Queen [1992] HCA 68; 175 CLR 599 BRS v The Queen [1977] HCA 47; 191 CLR 275 Bull v The Queen [2000] HCA 24; 201 CLR 443 Donnini v The Queen [1972] HCA 71; 128 CLR 114 Hutton v R [2008] NSWCCA 99 R v AMT [2005] NSWCCA 151 CASES CITED : R v Boney (unreported 22 July 1991 NSW Court of Criminal Appeal) R v Chin [2003] NSWCCA 267 R v Hamzy (1994) 74 A Crim R 341 R v Hutchins (1958) 75 WN (NSW) 75 R v Kennedy (unreported 29 May 1990 NSW Court of Criminal Appeal) R v MAK and MSK [2006] NSWCA 381; 167 A Crim R 159 R v RN [2005] NSWCCA 413

PARTIES: Haci Ali Bingul The Crown

COUNSEL: C T Loukas (Appellant) N Noman (Respondent)

SOLICITORS: Legal Aid Commission (Appellant) Solicitor for Public Prosecutions (Respondent)

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 13527/2007

ALLSOP P PRICE J HARRISON J

Friday 18 September 2009 HACI ALI BINGUL v R Headnote

The appellant was indicted and faced trial before a jury on 11 counts, 10 of which concerned the supply of drugs. The events giving rise to the charges spanned the period between 13 March 2006 and 19 May 2006.

At the trial the Crown gave notice under s 101 of the Evidence Act 1995 (NSW) in order to lead, as tendency evidence, a series of taped conversations of the appellant which occurred on dates other than on the dates on which the charged offences occurred. The trial judge heard argument about the admissibility of these recordings. Defence counsel submitted a global objection to particular conversations in the notice based on potential prejudice if the jury gave unnecessary emphasis to events not the subject of the charge. The trial judge admitted the evidence.

The trial judge gave directions about the use of the tendency evidence both before the evidence was seen by the jury and again at the conclusion of the trial. There was no objection from defence counsel at the trial as to the form of the directions.

The jury found the appellant guilty of five counts on his indictment of supplying a prohibited drug and one count of supplying an amount of a prohibited drug not being an amount less than a commercial quantity of the drug (accumulated over two separate supplies). The appellant was sentenced to an overall head sentence of nine years with a non-parole period of five and a half years.

The appellant appealed against the conviction and if unsuccessful sought leave to appeal against his sentence.

The appeal grounds against conviction were: i) the trial miscarried because of the admission into evidence of the tendency evidence; and ii) the trial miscarried because the learned trial judge did not give the jury adequate directions about what use could be made of the tendency evidence.

The appeal grounds against sentence were: iii) the trial judge erred in failing to consider s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999 (NSW) with respect to the first count of conviction; iv) the trial judge erred in failing to consider that the commercial quantity was reached by accumulating amounts individually supplied on two different occasions; and v) the sentence imposed was manifestly excessive.

Held dismissing the appeal on conviction, allowing leave to appeal on sentence and dismissing the appeal against sentence:

Allsop P (Price and Harrison JJ agreeing) 1) The trial did not miscarry due to the admission of the tendency evidence: a) The objection to the tendency evidence made by the defence at trial only covered the particular identified conversations in the notice to which objection was raised and not all of the evidence: [31]. b) At trial defence counsel argued prejudice in the identified conversations on a "global" basis and the trial judge dealt with the objection in a way that reflected the manner in which the objection was argued: [35] -[36]. c) The "global approach" and the nature of the expressed prejudice meant that what was put on appeal as prejudice was never articulated before the trial judge so there was no error: [36]. d) The Evidence Act 1995 (NSW) ss 97 and 101 did not require the trial judge to examine each conversation in the evidence separately or to deal with the objections in a way differently to the overall global approach taken by counsel in argument: [37]. 2) The trial did not miscarry due to the directions given to the jury in relation to the tendency evidence: a) The jury needed to be given clear directions about how the tendency evidence should not be used: [41]. b) In this case the clarity of the directions can be seen from the terms of the words used and the lack of objection by counsel in the context of discussion that took place in the absence of the jury: [54]. c) The directions given were adequate to deal with bad character. The jury were plainly told not to reason that the appellant was guilty of the offences charged because he had committed other offences: [58].

Allsop P (Price and Harrison JJ agreeing): 3) The trial judge did not fail to consider s 21A(3)(e) of Crimes (Sentencing Procedure) Act 1999 (NSW): a) Offences committed after the date of commission of the offence for which the offender stands for sentence may not be taken into account for the purpose of imposing a heavier sentence, but may be considered for deciding whether the offender is deserving of leniency: [69]. b) The trial judge's remarks on sentencing reflect a view that the later offences could and should be taken into account when denying leniency and though the trial judge did not refer directly to s 21A3(e) the trail judge directed her remarks to it: [70] 4) The trial judge did not fail to consider the circumstances in which the count for commercial supply had been made out: a) The fact that the commercial quantity had been reached only by accumulating amounts individually supplied on different occasions to different persons is a matter which may, when appropriate be taken into account when imposing sentence for the single offence charged: [72] b) The remarks on sentence show no error in the way that the trial judge dealt with the two acts of supply and it was clear that the judge was aware of the relevant circumstances establishing the offence: [72] - [73]. 5) The sentence imposed was not manifestly excessive. The sentencing judge assessed the objective seriousness as below the midrange and the non parole period determined reflected that assessment: [77].

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 13527/2007

ALLSOP P PRICE J HARRISON J

Friday 18 September 2009 HACI ALI BINGUL v REGINA Judgment 1 ALLSOP P: The appellant appeals against conviction and seeks leave to appeal against sentence in relation to six counts of supplying a prohibited drug. For the reasons that appear below the conviction appeal should be dismissed, leave should be granted on the sentence appeal and the sentence appeal should be dismissed.

The indictment and convictions 2 On 11 September 2007 the appellant was arraigned before a judge of the District Court and a jury of 12 at Parramatta. On the appellant's indictment there were 11 counts, 10 of which concerned the supply of drugs and one concerned the sale of a prohibited firearm. The events giving rise to the charges spanned the period between 13 March 2006 and 19 May 2006. 3 Count 1 was that between 13 March 2006 and 16 March 2006 at Auburn the appellant supplied an amount of a prohibited drug namely 150 grams of MDMA (Ecstasy), being an amount not less than the commercial quantity for that drug. The appellant was convicted of this count. 4 Counts 2 and 3 were in the alternative to count 1 and dealt with the alleged supply on 14 March 2006 and 16 March 2006 at Auburn of MDMA (Ecstasy) in an amount of 25 grams and 125 grams, respectively. These two alleged supplies constituted the supply in Count 1. 5 Counts 4, 5 and 6 concerned events on 26 March 2006. Count 4 was that on 26 March 2006 at Auburn the appellant sold a prohibited firearm, namely an imitation of a Beretta self-loading pistol, to one Adam Jackson, who was not authorised to possess the prohibited firearm by licence or permit. The appellant was found not guilty of this charge. 6 Count 5 was that on 26 March 2006 at Auburn the appellant supplied a prohibited drug, namely cannabis, in an amount of 2.5 grams. The appellant was found not guilty of this charge by direction of the trial judge. 7 Count 6 was that on 26 March 2006 at Auburn the appellant supplied a prohibited drug namely methylamphetamine in an amount of 2.57 grams. The appellant was found not guilty of this charge. 8 Count 7 was that on 5 May 2006 at Auburn the appellant supplied a prohibited drug namely methylamphetamine in an amount of 1 gram. The appellant was found guilty of this charge. 9 Count 8 was that on 6 May 2006 at Auburn the appellant supplied a prohibited drug namely MDMA (Ecstasy) in an amount of 12 grams. The appellant was found guilty of this charge. 10 Count 9 was that on 18 May 2006 at Auburn the appellant supplied a prohibited drug namely methylamphetamine in an amount of about 0.3 grams. The appellant was found guilty of this charge. 11 Count 10 was that on 19 May 2006 at Auburn the appellant supplied a prohibited drug namely methylamphetamine in an amount of about 1 gram. The appellant was convicted of this charge. 12 Count 11 was that on 19 May 2006 at Auburn the appellant supplied a prohibited drug namely MDMA (Ecstasy) in an amount of about 0.5 grams. The appellant was convicted of this charge. 13 The Crown case relied principally upon telephone intercepts and an informer's evidence. There was evidence as to language and the code used in language which was not disputed. Nor was it in dispute that the appellant during his many telephone discussions was talking about drugs. The appellant's case at the trial as recounted in submissions in this Court, was based on the evidence he gave at the trial upon which he was cross-examined. He gave evidence that "I was talking about it but I've never done it" and "I had no intention of doing it at all". The appellant's evidence as summarised by the trial judge in the summing up was that "he did not intend to make a genuine offer to supply drugs and never had drugs in his possession for the purposes of supply." The case for the appellant was that during the time covered by the charges he was a heavy user of methylamphetamine or ice and other drugs and he was "off his head" through the influence of these drugs. The trial judge in her summing up put the appellant's case that: "The drugs made him lie and big note himself." Further, as her Honour said, his case was: "He never had access to drugs to supply, nor did he ever intend to supply drugs." 14 The evidence underlying the various counts was as follows. On 14 March 2006, the appellant had a telephone conversation with a man referred to as "Junior". During that conversation, the appellant offered to supply 100 tablets of MDMA (Ecstasy) using code words. (This conversation was part of the evidence for Count 1 and the evidence for the alternative Count 2.) On 15 March 2006 the appellant had a telephone conversation with a man referred to as "Ronnie". The Crown case was that in this conversation the appellant indicated that he had 500 MDMA (Ecstasy) tablets in his possession for the purpose of supply. (This conversation was also part of the evidence for Count 1 and the evidence for the alternative Count 3.) 15 Counts 4, 5 and 6 of which the appellant was found not guilty (as to count 5 by direction) concerned a number of telephone conversations with Mr Jackson. During these telephone conversations there were discussions between the appellant and Mr Jackson about the appellant supplying Mr Jackson with a gun and prohibited drugs. Mr Jackson gave evidence that on 26 March 2006 he met with the appellant in a car and purchased a gun and prohibited drugs. Police had the car under surveillance and subsequently arrested Mr Jackson. 16 On 5 May 2006, the appellant had a telephone conversation with "Junior" in which he agreed to supply "Junior" with one gram of "ice" (methylamphetamine) for $280. This was the evidence in relation to Count 7. 17 On 6 May 2006, the appellant had a telephone conversation with a man referred as "Nathan" and during the call he said that he had 48 tablets in his possession that he was delivering to "Junior". This was the evidence for Count 8. 18 On 18 May 2006, the appellant had a telephone conversation with someone called "Brad". In that call, the appellant agreed to supply Brad with three points of "ice cream" (methylamphetamine) for $100. This was the evidence for Count 9. 19 On 19 May 2006, the appellant had a telephone conversation with "Junior". Junior agreed to sell a gram of "ice cream". There was a subsequent offer by telephone conversation to reward "Junior" with two ecstasy tablets for selling the drugs. This was the evidence for Counts 10 and 11.

The trial miscarried because of the admission into evidence of inadmissible tendency evidence 20 At the trial, after the empanelling of the jury there was discussion regarding tendency evidence. The Crown Prosecutor provided a notice pursuant to the Evidence Act 1995 (NSW), s 97 entitled "Notice: Tendency Evidence". The notice stated that the tendency sought to be proved was the appellant's "tendency to act in a particular way, namely to supply prohibited drugs." The notice identified 19 pieces of evidence, including 16 telephone and text message intercepts. The transcript of the trial reveals that counsel for the appellant objected only to items 6 to 14 and items 16 and 17 of paragraph 3 of the notice, being calls 5 to 12 and 14 and 15 of exhibit B. 21 During the argument as to the admissibility of the evidence counsel for the appellant accepted that "there is strong probative value in that particular evidence" when referring to the tendency evidence. Counsel continued: "[But] your Honour, as he's not charged with events between those dates there is a danger I would respectfully submit of unfair prejudice and it may lead the jury to give undue weight to the other material that will be before your Honour." 22 The trial judge in the debate as to admissibility came back shortly thereafter to the question of unfair prejudice. Counsel said: "Well specifically your Honour the Crown's indictments are date specific." 23 Counsel later said: "It talks again in the main about agreeing to supply prohibited drugs, your Honour we would say that because it's outside of the period of time in the indictment it's obviously got strong probative value but the jury would give respectfully undue weight to it and it would therefore be unfairly prejudicial and that material ought to be excluded." 24 The objections to the evidence were made by counsel appearing for the appellant on two bases. The first is identified above, that of prejudice because the evidence was said to be outside the specific dates in the indictment. The second basis was that calls relating to his arrest on 14 April 2006 were not admissible as he had been dealt with in relation to what occurred on that day only for possession of drugs. These were the prejudicial effects identified in discussion with the trial judge. In that discussion with the trial judge counsel clearly accepted that there was substantial probative value. He also accepted the following which came from her Honour in debate: "and your global argument is that in any event notwithstanding that all of the evidence has - the prejudicial outweighs that substantial probative value." 25 Defence counsel then explained various matters as to what his client would say about how he wanted to explain his conduct to the jury. In that context, the trial judge said that if character were put in issue the Crown would be entitled to cross-examine on the tendency material in any event. To this counsel said: "Yes, I suppose I hadn't viewed it [like] that but I suppose your Honour is right in that."

Later, the Court was informed that the defence would not be running good character. 26 Then, the trial judge asked to hear the Crown Prosecutor on prejudice, on the assumption that it was conceded that there was significant probative value in the evidence. To this the Crown Prosecutor, amongst other things, said the following: "Your Honour, with a number of the counts of the indictment the Crown will be relying on an agreement to supply which is what is in the telephone intercepts. For those counts the jury has to be satisfied that the accused intended to make a genuine offer and for the person he's talking to believes it's a genuine offer, the jury doesn't have to be satisfied that he actually had the capacity to supply the drugs …" 27 Defence counsel expressed agreement to this. 28 In a brief judgment on 11 September 2007 the trial judge stated the following:

"HER HONOUR: It having been conceded and there can be no doubt that the evidence which the Crown seeks to call by way of tendency evidence has significant probative value. I am satisfied that the tendency evidence is relevant to proof of facts in issue in the trial. Just dealing, in particular, with calls six and seven I am satisfied that they are relevant to a fact in issue in relation to counts three and eight. There can be no doubt that tendency evidence has a prejudicial effect. In this case however I am satisfied that the probative value is substantial and outweighs any prejudicial effect which the evidence may cause taking into account of course the clear and careful directions that a trial judge must give a jury in relation to how to deal with this sort of evidence. I propose to admit it." 29 A number of matters need to be noted before dealing with the arguments put on behalf of the appellant. First, there was only a limited degree of particular treatment of the evidence covered by the tendency notice. Counsel dealt with the evidence as to intercepts dealing with conversations about supply as outside the relevant range of dates (which was incorrect) and upon the likely over emphasis by the jury of evidence beyond the precise dates. Separate submissions were put in relation to the conviction on the possession count arising from the appellant's arrest on 14 April. The arguments were put globally to the trial judge. The trial judge was not asked to deal with each telephone intercept individually. She did not have submissions put to her about each telephone intercept individually. The trial judge's short two paragraph judgment is to be understood in the context of the debate that took place before her before delivery of the judgment.

30 The submissions of the appellant first complain about call 3 in Exhibit B being a call made on 16 March 2006 in which the appellant made sexist and disparaging remarks about a woman. This was not one of the calls to which objection was taken. It was item 4 of paragraph 3 of the tendency notice. No objection having been taken below, it ought not be allowed to be argued on appeal. 31 The submissions of the appellant sought to construe the reference to a "global" objection as extending the objection to all parts of the tendency notice. This is not what was plainly meant by counsel and by the judge. The "global objection" was to the identified parts of the tendency notice. It was a reference to how counsel was approaching the question of prejudice. All aspects of prejudice were dealt with globally by what he said. He did not deal with each intercepted call individually; he did not ask the judge to do so; her Honour did not do so. No error therefore arose from not having done so.

32 The second complaint relates to intercepted items 8, 14 and 16 in para 3 of the tendency notice, and being calls 7, 12 and 14 of Exhibit B. Item 8 (call 7 in exhibit B) contained the appellant saying: "We want to go to something Flemington and they won't let me go because I want to kidnap this guy that bashed …. (unintelligible)" 33 Item 14 (call 12 of the exhibit B) contained the appellant discussing burning two cars. Item 16 (call 14 of exhibit B) contained the appellant saying that he was going to "pop someone". Later in the same tape, the appellant said "I am going to say to him 'one person who could be bashed is your nephew, break his fuckin' legs and let him sit at home for six months and recover'". 34 The appellant complained that the trial judge had not dealt with the particular prejudice of these statements individually. 35 It is clear that the trial judge did not deal with these matters. That is explained, however, by the way the objection was argued. No objection was taken to the tendency material on these grounds or by reference to this content. The judge asked counsel what the prejudice was and received the responses to which I have referred. The essential prejudice asserted was the risk of unnecessary emphasis by the jury on other events not the subject of charges (all of which went to the question of whether or not the conversations related to the charges were to be understood as agreements to supply). 36 The "global" approach and the nature of the expressed prejudice meant that what was put on appeal as prejudice was never articulated before the trial judge. That is why her Honour did not deal with these matters. No error is therefore shown in this respect. 37 Finally, complaint was made based on cases such as R v RN [2005] NSWCCA 413 that the judge should in her reasons have examined each call individually in the assessment of prejudice. Once again, this is not how the matter was argued. The Evidence Act, ss 97 and 101 do not require the trial judge to deal with the objections in her reasons in a way differently to the overall global approach taken by counsel. 38 Ground 1 is not made out.

The trial miscarried because the trial judge did not give the duly adequate directions about what use could be made of the tendency evidence 39 The appellant submitted that the trial judge's directions were confusing as to the use that could be made by the jury of the tendency evidence. Further, it was submitted that the trial judge did not warn the jury against using the dangerous form of reasoning that because the appellant had committed other crimes and because he was a person of apparently bad character he must have, or was more likely to have, committed the charged offences. 40 It was submitted that the tendency evidence that was admitted went not just to tendency to deal in drugs but it tended to establish that the appellant was a person who had a tendency to commit crimes generally and that he was a person of bad character. 41 In these submissions it was submitted that the jury should have been given clear directions about how the tendency evidence should not be used. In this respect the appellant referred to B v The Queen [1992] HCA 68; 175 CLR 599 at 619; Donnini v The Queen [1972] HCA 71; 128 CLR 114 at 123; BRS v The Queen [1977] HCA 47; 191 CLR 275; and Bull v The Queen [2000] HCA 24; 201 CLR 443. 42 This submission requires comprehensive reference to what the trial judge told the jury. It is necessary to begin with what the trial judge said to the jury prior to the tendency telephone intercepts (exhibit B) being played to the jury. The following was stated on 12 September 2007: "HER HONOUR: Ladies and gentlemen you're about to be played a second lot of tapes of conversations which took place between the accused and other people and the conversations that you're about to hear don't relate to any of the charges on the indictment. You remember in relation to the first lot of conversations that you heard the Crown indicated against each transcript the particular charge that the conversation is said to respond to. These conversations don't relate to any of the charges but they occur in the timeframe of the dates of the charges on the indictment and the Crown says that these conversations show the accused offering to supply drugs and having drugs in his possession. Now the accused is only charged with the crimes on the indictment and ordinarily it is not permissible to bring evidence of other alleged wrong acts against an accused that don't relate to the charges against him. That's because there's a danger that a jury such as yourself may use it unfairly in this way. It would be unfair to say, well we think he committed crimes on some other occasion, therefore he must have committed the crimes on the indictment. And that's why - you can see why ordinarily this evidence is not allowed to be brought. In this case it's being brought for a very limited purpose and it's this. You can consider it in determining whether in that time the accused referred to himself as a drug supplier and offered to supply drugs and had drugs in his possession and you may use as part of the evidence in determining whether the Crown has proved its case on the charges beyond reasonable doubt. And I'm going to give you much more detailed directions about this at the end of the trial but I just want to say to you - now it's important to understand that this evidence is not being brought, if you like, as substitute evidence so you can, well look we think he's committed the crimes charged. It's before you for a very limited purpose and you must only use that for that limited purpose and not unfairly reason in the way that I've discussed with you." 43 Whilst not a direction, the above planted in the jury's mind the notion of the limited purpose for which the evidence was being led. 44 During the course of the trial the judge sought and obtained assistance from counsel as to the appropriate direction to the jury regarding tendency evidence. Discussion took place in particular between the trial judge and the Crown Prosecutor on this subject matter. The discussions did however also involve defence counsel. The Crown Prosecutor handed up at least two drafts of the proposed direction. This detailed discussion was the background for the terms of the direction and the lack of objection to any part of it by defence counsel including the lack of any request by defence counsel for further direction. 45 The trial judge directed the jury in relation to tendency as follows: "I want to talk to you about some of the evidence that was led in the trial and I gave you a special direction about it at the time. It concerns the evidence in exhibit B, the conversations in exhibit B and the circumstances of the arrest and charging of the accused on 14 April 2006. That evidence as a whole, does not directly relate to any of the charges on the indictment. In closing arguments, that evidence was referred to as tendency evidence. It is called that because if you accepted it beyond reasonable doubt, it can be used to show that a person has a tendency to act in a particular way in certain circumstances. That is why it is called tendency evidence. As I said to you at the time the evidence was admitted, the accused is charged only with the counts on the indictment and ordinarily, a jury would not hear evidence of alleged misconduct unrelated to the charges in the indictment. That is because it might lead a jury to reason that if a person has committed an illegal act on some other occasion, then he must have committed an illegal act on some other occasion, then he must have committed the acts charged on the indictment, which is an unfair way of reasoning. That is why that evidence is ordinarily not given. In this case, you may consider the conversations in exhibit B and the evidence and circumstances of the accused's arrest and charging on 14 April. The Crown says that you would find based on that evidence that during the period covered by the indictment, which is 13 March to 19 May 2006, the accused was acting as a supplier of drugs and had access to drugs for supply. Before you can consider this tendency evidence as part of the proof in the Crown case, you must be satisfied beyond reasonable doubt that this finding, that is that the accused was acting as a drug supplier and had access to drugs in this period, you must be satisfied of that beyond reasonable doubt. If you are not satisfied of that finding beyond reasonable doubt, then you cannot use all of that evidence in proof of the Crown case and you would put it to one side. If you were satisfied beyond reasonable doubt that this evidence shows that during the period of the indictment the accused tended to act as a drug supplier and had access to drugs, then you may use it in the following limited ways. In considering the evidence in the Crown case and in particular the conversation in exhibit A and in the light of the finding, whether it makes it more likely that in those conversations when the accused offered to supply drugs, he intended the other person to believe that the offer was genuine and whether he had the capacity to get drugs. To have drugs in his possession. You can use it in assessing the credibility of the evidence that Mr Jackson gave. That he and the accused agreed that the accused would sell him a gun and drugs and in assessing the accused's evidence, that he did not intend to make a genuine offer to supply drugs and never had drugs in his possession for the purposes of supply. They are the limited ways in which you may use the evidence. You may not use it to reason in this way. If the accused was acting as a drug dealer in that period and had the capacity to get drugs, then he must have committed the crimes. But you may not use it in that way. Nor may you use it to substitute for proof of any of the elements in any of the charges. So for example you may not say, 'Well we are not satisfied beyond reasonable doubt, on the evidence in the trial that the Crown has proved this charge, but we will use that finding to substitute for proof beyond reasonable doubt. So it you are satisfied beyond reasonable doubt that the tendency evidence shows that the accused had a tendency to act as a drug dealer and had the capacity to get drugs in that period, then you may use it as proof of the Crown charges but not in substitution for the evidence in the Crown case. I hope I have made that clear.' 46 The trial judge then referred the jury as to how not to use the evidence of other criminal activity: "… In relation to both sets of tapes, exhibit A and B, if while listening to them, you form the view that the accused may have been involved in some criminal activities which are unrelated to the charges and which are outside the tendency evidence and the way in which I have told you, you may lawfully use that evidence. Or, if you thought that some of the people to whom he spoke in those conversations, may be engaged in or have engaged in illegal activities, you must then not reason, 'Well if the accused has committed an offence before or his friends have committed offences, then he must have committed the offences charged on the indictment. That would not be a fair or proper use of the evidence that you have heard in the tapes. It is really important that you keep firmly in your mind that what you must do is determine whether the Crown has proved the charges on the indictment beyond reasonable doubt and use the evidence only in the way that I have said that you should. It is that tendency evidence". 47 In addressing count 1 the trial judge directed in relation to the evidence in Exhibit B: "… If you have found the tendency evidence proved beyond reasonable doubt, you may consider the conversations in exhibit B which the Crown says shows that the accused and Junior have a relationship in which the accused supplies drugs to Junior. It was argued to you by the defence that you would not draw that conclusion. It was said to you that the accused was heavily using drugs, Ice and other drugs and that he was, in his words, 'off his head' a lot of the time. He lied. He bragged. He big noted himself and that you would not draw that conclusion about is intention." 48 The trial judge interrupted other parts of the summing up to return to the tendency direction in the following way: "To prove that the accused had the drugs actually with him - there is something that I forgot to say so I am going to stop myself. I will go back a little bit. I told you about the tendency evidence. The conversations in exhibit B as a whole and also the evidence of the arrest. There are also some conversations in exhibit B which relate directly to the charges and which you may use in the way that you would use all of the other evidence in the Crown case. So they are outside that limited use and I am going to tell you what they are as we go along. Although they can be looked at as a whole, some of those conversations are actually directly related to the charges and you may use them in an unrestricted way. I am sorry, I just realised that I did not say that. Let me go back two steps. Having in possession for supply. To prove that the accused actually had the possession of the drugs for the purpose of supply in the second conversation of the 15 th , the Crown relies on what the accused actually said to Ronnie in that conversation on the 15 th . The Crown also relies on a conversation between the accused and Nathan, which is tape 2 in exhibit B, which took place about 40 minutes before the accused spoke to Ronnie." 49 There was then a break in the summing up and the judge asked both counsel if there was anything arising. She was informed by both that there was not. In relation to count 8 the trial judge then said: "… In proving this charge, the Crown relies on what the accused said in the conversation and it relies on the tendency evidence to prove that in this time, the accused was acting as a drug dealer and had the capacity to get drugs for the purposes of supply." 50 Regarding count 10 the trial judge said: "'The Crown relies on the tendency evidence which the Crown argues shows that the accused and Junior had a relationship, in which the accused would supply drugs to Junior to sell on his [behalf], in proof of this charge. Just to remind you, you cannot use the tendency evidence as I have said to you, to reason, that if it had happened in the past, then it must have happened at this time. That is an improper way of using it but you can use it as part of the way you look at the evidence on the charge, to determine whether the Crown has proved the charge in the indictment. You cannot use it as a substitution for the evidence in the Crown case". 51 Regarding count 11 she said: "The Crown case is that if you accept the tendency evidence, you would find that the accused had the capacity to have accessed the drugs and was acting as a drug dealer during the time frame and you can use that evidence on the Crown case as part of the proof of the charges against the accused. In the light of the tendency evidence, it is the Crown case that you would be satisfied beyond reasonable doubt that the conversations in exhibit A, on which the charges are based, that the accused intended to make a genuine offer for supply of drugs and he actually had the drugs in his possession when he said so in the calls." 52 At the conclusion of summing up no further direction was sought.

53 It can be seen from the summing up that the trial judge sought to make clear to the jury the use that could be made of the evidence. 54 In my view there was nothing confusing about what was said. The clarity with which the direction was given can be seen not only from the terms of the words used but the lack of objection by counsel in the context of the clear discussion as to relevant matters that took place in the absence of the jury. 55 The trial judge made clear for what purposes the evidence could be used and for what it could not be used. In particular, the trial judge made clear that the evidence could not be used against the appellant merely because it might show that he had engaged in some criminal activities unrelated to the charges. 56 The relationship of the evidence to the appellant's tendency to act as a supplier of drugs and to assess the validity of his evidence that he had not meant what he had said because of his consumption of drugs was made clear. 57 In my view the summing up was not unclear and not confusing and did adequately identify what the evidence could be used for and what it could not be used for. 58 It was also submitted that the directions as to tendency above were inadequate to deal with bad character. It was submitted that it was not clear that the trial judge was talking about offences beyond drug dealing. In my view the directions were adequate and would not have been understood as so restricted. The directions concerned the tapes in exhibits A and B. The phrases "illegal activities" and "criminal activities" used were not restricted to drugs and the jury were plainly told that they were not to reason that the accused was guilty of the offences charged merely because he may have committed other offences. 59 The Crown submitted that even if there were error or confusion in the direction there was no substantial miscarriage of justice: Criminal Appeal Act 1912 (NSW), s 6. I agree with the Crown's submissions on s 6. The appellant was involved in about 5000 calls on his mobile phone within a two month period. The calls tended to demonstrate that he frequently arranged to meet people to supply drugs or direct others to supply on his behalf. He had repeated conversations with some people. His defence was that he was addled by drugs and not genuine in his discussions with people. In those circumstances it is, as the Crown submits incredible that those he spoke with continued to deal with him in the circumstances. I agree with the Crown submissions that it would be remarkable for a jury to accept that he sustained this deluded state for about two months without anyone confronting him about his non-performance of the apparent agreements he was undertaking. He had scales in his possession. In all the circumstances, there has been no substantial miscarriage of justice even if it be the case that there was an inadequacy in the direction.

The sentence appeal 60 The appellant seeks to rely upon three grounds in support of the application to appeal on sentence. The sentences imposed were as follows:

Counts 7, 9, 10 and 11: 18 months fixed term to date from 31 January 2007, up to 30 July 2008.

Count 8: two years fixed term to date from 31 January 2007, up to 30 January 2009.

Count 1: four and a half years non parole period to date from 31 January 2008, up to 30 July 2012, with three and a half years additional term expiring on 30 January 2016.

Matters in a s 166 certificate: two months fixed term to date from 31 January 2007, up to 30 March 2007. 61 The overall effective sentence was five and a half years non-parole period with an additional term of three and a half years making an overall term of nine years. 62 The grounds of appeal concern only the sentence imposed on Count 1. The sentences for count 7, 9, 10 and 11 were subsumed entirely within the sentence for Count 8, as was the sentence for a related offence on the s 166 certificate. 63 The sentence for Count 1 was partially accumulated by one year on the sentences for Counts 7, 8, 9, 10 and 11. The non-parole period referable only to Count 1 was an effective three and a half years not four and a half years. 64 Counts 7, 8, 9, 10 and 11 were committed whilst the appellant was on bail for a drug offence committed on 14 April 2006. 65 Count 1 concerned the supply of 100 ecstasy tablets on 14 March 2006 and 500 ecstasy tablets on 15 March 2006. The weight of these two supplies of 600 tablets was about 150 grams.

The sentence Appeal - Ground 3 The sentencing judge failed to consider the Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(3)(e) with respect to Count 1

66 Section 21A(3)(e) of the Crimes (Sentencing Procedure) Act 1999 (NSW) is in the following terms: "The mitigating factors to be taken into account in determining the appropriate sentence are as follows: … (e) the defendant does not have any record (or any significant) record of previous convictions …" 67 In her Honour's remarks on sentence the following was stated: "[The appellant] has two convictions for possession of drugs in September 2006 for which he was fined and again in April 2007 which related to the offence for which he was arrested on 14 April 2006 and for which he was again fined. Although the convictions relate to drugs, they do not concern trafficking and I propose to take this criminal record into account as denying the offender the leniency normally given to a first offender."

68 The date of the offences charged under Count 1 were between 13 and 16 March 2006, before the date of the offences for which the appellant had already been sentenced. 69 As the appellant submitted there is authority for the proposition that offences committed after the date of the commission of the offence for which the offender stands for sentence may not be taken into account for the purpose of imposing a heavier sentence, but may be considered for the purpose of deciding whether the offender is deserving of leniency: R v Hutchins (1958) 75 WN (NSW) 75; R v Kennedy (unreported 29 May 1990 NSW Court of Criminal Appeal); R v Boney (unreported 22 July 1991 NSW Court of Criminal Appeal); and see generally R v MAK and MSK [2006] NSWCA 381; 167 A Crim R 159 at [58] 173. 70 It was submitted that her Honour was in error because although she was entitled to take the later offences into account in an analysis of whether the appellant was deserving of leniency, she was in error in failing to consider s 21A(3)(e). It was also submitted that the offences were dealt with by the sentencing judge so automatically as to deny leniency. I disagree. I would read her Honour's remarks as reflecting a view that the later offences could and should be taken into account by her in denying leniency. Though her Honour did not expressly refer to s 21A(3)(e), her Honour was referred to that provision and was, in my view, clearly directing her remarks to it. I do not consider that the remarks on sentence reveal that the sentencing judge did not recognise that there was a discretion in this aspect of the sentencing task. The appellant in my view is placing too much emphasis on the expression used by the sentencing judge "as denying the offender the leniency normally given". Her Honour recognised, and was applying, a discretionary consideration. 71 I see no error in her Honour's approach.

The trial judge erred in failing to consider that the commercial quantity was reached by accumulating amounts supplied individually on two different occasions. 72 In R v Hamzy (1994) 74 A Crim R 341 it was held at 351-352 that the fact that the commercial quantity had been reached only by accumulating amounts individually supplied on different occasions to different persons was a matter which may when appropriate be taken into account when imposing sentence for the single offence charged. A commercial quantity of MDMA (Ecstasy) was 125 grams. The amount supplied in relation to Count 1 was 150 grams (adding 125 grams to 25 grams). It was submitted that this was a matter her Honour was obliged to advert to in light of the fact that the addition of the two weights led to a total sum just over the commercial quantity. The remarks on sentence in relation to this were as follows: "Count 1: that the offender supplied not less than the commercial quantity of ecstasy. The amount supplied was 150 grams. The Crown relied on two acts of supply to make up this charge and which relate to two telephone conversations of the offender. In the first, on 14 March 2006 with a person referred to in the evidence as Junior and the other on 15 March 2006 with a person referred to as Ronnie. In the conversation of 14 March, the offender offered to supply one hundred ecstasy tablets to Junior. What he said was that he would supply Junior with a 'hunge' of 'lollies'. Evidence in the trial from a police officer who had expertise in drug terminology was that 'lollies' was a common reference to ecstasy and he said that a 'hunge' was reference to a hundred tablets. The Crown further relied on evidence of a drug analyst that the average weight of a tablet of ecstasy is .3 grams. A police officer with expertise in drug matters gave evidence that his experience is that the average weight of an ecstasy tablet is .25 grams. In this charge the Crown adopted the lower weight for the tablets. In the conversation of 15 March, the offender told Ronnie that he had five hundred eccies which he was going out to deliver to someone who was waiting for him in Clyde Street. About forty minutes before the conversation between the offender and Ronnie the offender spoke to another of his associates and told him that he had five hundred and twenty-eight pills which he was counting and said that there should only have been five hundred. The combination of these two supplies amount to 150 grams of ecstasy. The amount of ecstasy which comprises a commercial quantity for this drug is 125 grams" 73 It is clear that the judge was aware of the relevant circumstances establishing the offence. I see no error in the way her Honour dealt with the two acts of supply.

The sentence was manifestly excessive. 74 Judicial Commission statistics were referred to which demonstrated that for offenders dealt with in the District Court for more than the commercial quantity 90 per cent of all offenders received a sentence of imprisonment, the 80 per cent range included sentences up to seven years and the 80 per cent range of non-parole periods included sentences up to three and a half years. 75 The point being made was that the eight years imprisonment was outside the 80 per cent range and four and a half years non-parole was outside the 80 per cent. 76 The appellant drew the Court's attention to a number of what were said to be comparable cases: R v Chin [2003] NSWCCA 267; R v AMT [2005] NSWCCA 151; and Hutton v R [2008] NSWCCA 99. 77 In my view, the sentence was not manifestly excessive. The maximum penalty applicable was 20 years with a standard non-parole period of 10 years. The sentencing judge assessed the objective seriousness as below the mid-range and the non-parole period determined reflected that, in particular having regard to the accumulation with an effective non-parole period of three and a half years. I do not find the cases relied upon truly comparable. In Chin the offender was much younger than the applicant; in AMT and Hutton the offenders were apparently couriers. Here, though the offence was found to fall below the mid range of objective seriousness, the appellant was as found by the sentencing judge "at the centre of a significant drug supply activity". 78 In my view, the sentence was not manifestly excessive and no lesser sentence is warranted in law. 79 For the above reasons, the conviction appeal should be dismissed, leave to appeal against sentence be allowed and the appeal against sentence dismissed. 80 PRICE J: I agree with Allsop P. 81 HARRISON J: I agree with Allsop P.

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Crime (Sentencing Procedure) Act 1999(NSW)

h" and the nature of the expressed prejudice meant that what was put on appeal as prejudice was never articulated before the trial judge so there was no error: [36]. d) The Evidence Act 1995(NSW)ss 97

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