Bobbin v R

Court of Criminal Appeal (NSW)|2016-02-08|Before: Johnson J, Schmidt J, Wilson J

Judgment

JOHNSON J: I agree with Wilson J.
SCHMIDT J: I agree with Wilson J.
WILSON J: Brendon Charles Bobbin (the applicant) seeks leave to appeal against the sentences imposed upon him by his Honour Judge McLoughlin SC, sitting in the District Court at Sydney, on 26 September 2014. Sentences were imposed for two offences, being one count of knowingly take part in the supply of not less than the commercial quantity of a prohibited drug (amphetamine), and one count of ongoing supply of a prohibited drug (amphetamine). The former is an offence contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) and carries a maximum penalty of 20 years imprisonment; a standard non parole period ("SNPP") of 10 years attaches to that offence. The latter offence is contrary to s 25A(1) of the same Act and carries a maximum penalty of 20 years imprisonment.

The Facts of the Offences

The following account of the facts of the applicant's crimes has been drawn from the remarks of the sentencing judge.
In July 2013 a strike force was established by police to investigate the supply of prohibited drugs in the areas of Pambula and Eden in southern New South Wales. As part of the investigation a telephone service used by the applicant was lawfully intercepted, and his communications were monitored. The applicant was also the subject of physical surveillance by police officers.
Some 35 telephone calls and 113 text messages between the applicant and his co-offender, Paul Matthew Howard, were intercepted and recorded between mid-July and mid-August 2013. The communications concerned the supply of prohibited drugs.
Some of the intercepted communications related to travel between New South Wales and Victoria by the wife of the applicant's co-offender, with transport and accommodation for her facilitated or paid for by the applicant. Other communications concerned the processing of amphetamine for supply, which took place in a motel room the applicant booked and paid for.
In late July 2013, the applicant and his co-offender met at two locations in southern New South Wales. The meetings were arranged to discuss plans to obtain a quantity of prohibited drugs in Sydney which it was intended would be sold both in the Pambula area and interstate in Victoria. Subsequently, and in furtherance of these plans, the applicant arranged for transport for the co-offender's wife from Sydney to Victoria and back by a truck operated by the applicant's trucking business, and for the payment of money to an impecunious Paul Howard in Sydney, to assist him to cover his expenses when obtaining amphetamine there. He also paid for motel accommodation for the applicant's wife.
On 11 August 2013, Paul Howard advised the applicant that the job was "done", and that he was "leaving [Sydney] today". That communication signified that Howard was in possession of an amount of amphetamine, and was returning to the south coast. Numerous communications were exchanged (and intercepted) on this subject.
Early on the morning of the following day, 12 August 2013, police stopped a vehicle travelling south on the Princes Highway at Bega. The car was occupied by Paul Howard and his wife. When informed that the officers planned to search the car for drugs, Howard told them there was a large quantity of "speed" in the vehicle. A quantity of white powder was subsequently found. This powder was later analysed and determined to be 428 grams of amphetamine with a purity of 10.5%. The estimated value of the drug if sold was $40,000.
The applicant was arrested on 22 August 2013. He refused to be interviewed.
It was the applicant's involvement in the acquisition of 428 grams of amphetamine which gave rise to the first charge of being knowingly concerned in the supply of a prohibited drug.
The second charge against the applicant,that of ongoing supply of a prohibited drug, arose from analysis of some of the telephone communications the applicant had with other persons during the period when his telephone was intercepted.
On 13 July 2013, the applicant spoke to and exchanged text messages with a male person, arranging to supply the male with an "eight ball", or 3.5 grams of amphetamine.
On the same day the applicant was in telephone communication with another male, making arrangements to leave an identical quantity of amphetamine at a particular location on the Princes Highway. The male later advised the applicant that he had collected the drug without difficulty.
On 15 July 2013 the applicant was recorded in communication with another male person, arranging to supply that individual with 3.5 grams of amphetamine.
On 19 July 2013 the applicant made a similar arrangement for the supply of 3.5 grams of amphetamine to another male. The drugs were delivered by the applicant to the male at business premises in Pambula.
On 25 July 2013 the applicant communicated with another male person, discussing the supply of and payment for 3.5 grams of amphetamine.
The applicant received a financial reward for each of these supplies.
The applicant's criminal antecedents were of no real relevance on sentence. He had a conviction for offensive language dating to 1992. There were two alcohol related driving offences, one of which (from 2000) did not attract a conviction, with the other (from 2013) dealt with by way of fine and disqualification. There was additionally a conviction for damaging property from 2003, an offence also dealt with by way of fine.

The Applicant's Case on Sentence

The applicant did not give evidence on sentence, although he tendered an affidavit sworn by him on 28 April 2014. He additionally tendered and relied upon a report from Terry Smith, psychologist, of 14 April 2014, together with a number of affidavits attesting to his good character and charitable works.
The applicant is a married man with three children, all in their late teens or early twenties. At the time of the commission of the drug offences he was aged about 40 years; he was aged 41 years when sentenced.
The applicant had a loving and supportive childhood, and enjoys a stable and happy marriage. He has been consistently employed throughout his adult life.
The applicant worked in a managerial role for a family owned trucking business. Although the applicant had a lengthy history of sporadic drug and alcohol use, he attributed the stress of his work to his relapse into the use of cannabis and amphetamine in 2012. The applicant asserted that his supply activities were directed at financing his own habit, and that he bought in bulk to sell part of his purchase to others, thus covering the costs of his own use.
Mr Smith regarded the applicant as having a "Substance Related and Addictive Disorder", as referred to in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Edition 5 ("the DSM - 5").
The applicant was well thought of by others, with a number of friends and associates deposing to his courteous and hard working nature, his efforts in aid of local and interstate charities, and his remorse for his crimes.
In the applicant's affidavit of 28 April 2014 he asserted the truth of the history he had given to Mr Smith, and set out the background to his use of prohibited drugs. He gave an account of obtaining amphetamine via his co-offender, with the intention only of supplying part of the quantity he received to friends, thereby covering the cost of what he used himself. The applicant maintained in his affidavit that he had never profited from supplying drugs to others.
Under a heading "I am sorry for what I have done" the applicant spoke of the "devastation" he felt at seeing the pain his crimes and arrest had caused to his family, and the adverse impact of his arrest on his family business.
The applicant said that it was his intention to remain drug free in the future.

The Remarks of the Sentencing Judge

In his remarks on sentence ("ROS") the sentencing judge set out the facts of the applicant's crimes consistent with the statement of facts tendered by the Crown. His Honour concluded that the applicant's crimes were of a serious nature involving "a large amount of criminality", with the enterprise being "well planned and organised over some time" (ROS 14). As to the first count, he concluded that it fell below the mid-range of any notional scale of gravity for such offences, although the applicant's role was more significant than that of a "street dealer in the hierarchy of drug dealing" (ROS 15). As to the count of ongoing supply, the sentencing judge assessed it as "a little closer to the middle of the range of scale constructed for such an offence" (ROS 16). His Honour determined that no sentence other than one of full time imprisonment was appropriate to reflect the seriousness of the crimes.
Referring to the applicant's criminal history, the sentencing judge found that it was such as to allow the Court to extend him some leniency.
His Honour set out in some detail the applicant's personal history and his history of substance abuse, referring at length to the contents of the psychological report. He noted the evidence before the sentencing court that attested to the applicant's years of hard work in his family's business, and to the positive impression he had made on others in the community.
The sentencing judge accepted Mr Smith's opinion that the applicant had a substance abuse disorder as defined in the DSM-5, and also accepted that the applicant was focused upon, and motivated, to change his previous pattern of drug use.
His Honour had regard to principles of parity and totality (ROS 21). He allowed the applicant a 25% discount on the sentences that would have otherwise been imposed in relation to both offences, despite the late plea in relation to the first count, to recognise the utilitarian value of the pleas. A finding of special circumstances was made, with his Honour referring to the fact that the applicant had no previous experience of prison, and to his strong family support and good prospects of rehabilitation.
The structure of sentence adopted by his Honour was to commence the sentence for the second count at the expiration of the NPP for the first count, and to significantly reduce the NPP imposed for the second count, such that it comprised one third of the total sentence for that charge.

The Question of an Extension of Time in which to Seek Leave to Appeal

As noted above, the applicant filed an application for an extension of time in which to seek leave to appeal.
The explanation advanced to explain the delay in prosecuting the appeal was that the applicant had been unable to obtain the transcript of the proceedings on sentence, as the sentencing judge had not settled the transcript owing to illness. There was some further delay thereafter in obtaining counsel to formulate the grounds of appeal.
Although the matters advanced in explanation for the failure to file the application within time do not account for the whole of the delay, the delay is in the order of months rather than, as is not infrequently the case, years. The Crown does not assert any prejudice to it in responding to an appeal out of time, and does not object to an extension of time being granted to the applicant.
In those circumstances, I would grant an extension of time to the applicant in which to seek leave to appeal.

Ground 1: "The learned sentencing judge erred in not properly giving effect to the principle of totality."

The applicant's contention in support of this proposed ground is that the sentencing judge failed to properly apply the principle of totality in commencing the sentence imposed to reflect count 2 at the end of the NPP for count 1. It is argued that there should have been at least a degree of concurrency between the non-parole periods imposed for each offence, because both crimes were committed as part of a single course of conduct.
It was argued that a number of features in the evidence dictated at least partial concurrency of sentence, being that, 1. The offences were committed in the same period of time; 2. The same drug was involved in both offences; and 3. Both offences were committed in the context of addiction, with the proceeds of the sale of drugs used by the applicant to pay for drugs he used himself.
It should be recognised at the outset that the level of concurrency or accumulation between two or more sentences imposed upon an offender is a matter which falls within the broad discretion of the sentencing judge: R v Hammoud [2000] NSWCCA 540; (2000) 118 A Crim R 66; LG v R [2012] NSWCCA 249 at [24] - [26]; Franklin v R [2013] NSWCCA 122 at [42] - [44]; Mato v R; Rusu v R [2015] NSWCCA 328 at [115] - [117].
The exercise of the discretion is circumscribed by the application of principle, most relevantly that of totality: R v Pearce [1998] HCA 57; (1998) 194 CLR 610; MMK v R [2006] NSWCCA 272; (2006) 164 A Crim R 481 at [13].
When imposing sentence for two or more offences, a sentencing judge is required to consider each offence separately and determine the appropriate sentence for each. The question of accumulation or concurrency of the individual sentences follows, with that question articulated by Howie J in Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41, at [27] as, "[…] can the sentence for one offence comprehend and reflect the criminality for the other offence?"
Howie J continued, at [27], "If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality."
There is no general rule or formula that determines whether sentences ought to be imposed concurrently or cumulatively. The assessment to be made by the sentencing judge in that regard is very much a matter for judgment and, although minds might reasonably differ on the extent of any concurrency or accumulation of sentence, establishing error in the exercise of the discretion requires more than a difference of opinion. It must be demonstrated that an error of the type enunciated in House v The King [1936] HCA 40; (1936) 55 CLR 499 has occurred.
There is no complaint by the applicant that the sentencing judge applied an incorrect principle, took into account some extraneous or irrelevant matters or failed to consider a material factor, or that he mistook the facts; the applicant asserts error only by reference to the sentences imposed and the structure of those sentences. His task in demonstrating error in those circumstances is a difficult one.
Where sentences are imposed, as here, for drug offences, there will be a number of features that may be relevant to the assessment of the criminality involved: any commonality in the elements of each of the individual offences; the nature of the drug involved; the nature of the enterprise and how it was enacted; the question of any profit from the offences; and the period of time in which the crimes occurred, are some considerations that may arise.
Here, the two offences both related to the prohibited drug amphetamine, they occurred in the context of the applicant's addiction, and there was some very minor overlap in time (of about four days), but those features did not, of themselves, dictate any particular level of concurrency. There were, conversely, other features of the matter that militated in favour of a degree of accumulation.
The first count, that of being knowingly concerned in the supply of not less than the commercial quantity of amphetamine, was averred to have taken place between 28 July 2013 and 12 August 2013. It encompassed the applicant's enterprise with the co-offender of obtaining a commercial quantity of amphetamine from a supplier in Sydney, and moving the drug to the south coast, to be supplied to others in that location and also in Victoria. The profit the enterprise would have made to the two offenders, had it been completed, was substantial.
The second count, the offence of ongoing supply of amphetamine, encompassed criminality largely separate to that of the first count, being the applicant's activities, independent of the co-offender, in cultivating a client base and selling discrete amounts of amphetamine to various individuals on five separate occasions between 10 July 2013 and 1 August 2013, for financial reward. The applicant conducted that business via telephone and also in person, and the benefit was to him.
The sentencing exercise required the imposition of sentences that reflected the criminality of each offence, consistent with the principle of totality.
Whilst some small degree of commonality existed in the circumstances of the offending, the sentencing judge took that into account in the overall structure of the sentences imposed. In particular, the much reduced NPP imposed in relation to the ongoing supply, a term of 12 months imprisonment, being only 33.3% of the sentence imposed for that offence, was clearly intended by his Honour to give effect to the principle of totality.
Whilst individual judicial officers might have approached the structuring of sentence differently, that does not bespeak error in the approach taken by his Honour.
I do not regard error as having been made out. I would not grant leave to advance this ground.

Ground 2: "The overall sentence imposed is manifestly excessive."

The applicant's principal contention in relation to this ground is that the asserted failure of the sentencing judge to properly apply the principal of totality resulted in a sentence which was manifestly excessive. It is not contended that the individual sentences are excessive, but rather that the degree of accumulation has led to an overall sentence which is unjust.
As the applicant conceded in his written submissions (at [27]), the success of this ground is dependent upon the success of the first ground.
Since I have concluded that the first ground has not been made out, this ground too must fail.
The applicant highlighted the applicant's subjective case as providing some support for this ground beyond the issue of sentence structure, but did not point to any error in the way in which the sentencing judge dealt with that evidence. The points made by the applicant can be quickly dealt with.
The high degree of family and community support for the applicant was referred to, but it is acknowledged by the applicant that the sentencing judge was fully aware of these features of the evidence, and gave them full weight in making a finding of special circumstances in the applicant's favour, with a generous reduction in the overall NPP.
The applicant also pointed to the acceptance by the sentencing judge that the applicant had a substance abuse disorder as a feature that should have ameliorated the penalty imposed. Having regard to the finding of special circumstances, which was based in part on his Honour's cognisance of the applicant's history of drug and alcohol misuse and the efforts he had made and continued to make to rehabilitate himself, it could not be seriously argued that more was called for by way of amelioration of penalty. To further reduce the sentences imposed by reference to the applicant's drug addiction would be to fall into the error of double counting.
As the applicant acknowledged in his written submissions and during the course of the hearing before this Court, to establish a complaint of manifest excess he must demonstrate that the sentences imposed upon him were unreasonable or unjust: R v Dinsdale [2000] HCA 54; (2000) 202 CLR 321 at 325.
The question for this Court is whether the length of the sentences is demonstrated to be outside the exercise of sound sentencing discretion, in the context of the maximum prescribed penalty, the standard NPP where applicable, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.
Here, the sentencing judge concluded that the applicant's crimes were serious, although falling below the mid-range in terms of objective gravity. The applicant takes no issue with that assessment. Indeed, nothing advanced by the applicant is capable of demonstrating that the sentences imposed by his Honour falls outside the range of sound sentencing discretion.
His Honour carefully considered the objective gravity of the applicant's crimes, and took into account all relevant subjective considerations. With a discount on sentence of 25% for the early plea and a finding of special circumstances - both, arguably, very generous - the sentencing judge arrived at the sentences imposed upon the applicant. There was no error in their determination.
The applicant has failed to make out this ground. Having regard to its dependence upon ground 1, I would not grant leave to argue this ground.

ORDERS

The orders of the Court are: 1. The time for filing an application for leave to appeal against sentence is extended; and 2. Leave to appeal is refused.

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: 11 March 2016

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