BRAITHWAITE, Jarrett v. Regina [2005] NSWCCA 451

Friday 16 December 2005 Jarrett BRAITHWAITE V. Regina Judgment 1 HODGSON JA: On 8 March 2005, the applicant pleaded guilty in the Downing Centre Local Court to two charges under s.25(1) of the Drugs Misuse & Trafficking Act 1985, in the following terms: (1) On the 20th day of August 2004 at Kings Cross in the State of New South Wales did supply a prohibited drug, to wit, amphetamine. (2) On the 20th day of August 2004 at Kings Cross in the State of New South Wales did supply a prohibited drug, to wit, 3,4-methylenedioxymethylamphetamine. 2 The maximum penalty for each offence was a fine of 2000 penalty units or 15 years' imprisonment or both. 3 The applicant came before English DCJ for sentencing in May 2005, and adhered to his pleas of guilty. The sentencing judge was also asked to take into account two matters contained on a Form 1 Schedule, one count of possession of cannabis leaf contrary to s.10(1) of the Drugs Misuse & Trafficking Act 1985, the maximum penalty being a fine of 20 penalty units or two years' imprisonment or both, and one count of goods in custody contrary to s.527C(1) of the Crimes Act 1900, the maximum penalty being a fine of 5 penalty units or 6 weeks' imprisonment or both. Both these Form 1 offences are summary offences. 4 On 12 May 2005, the sentencing judge sentenced the applicant as follows: (1) on the first count (taking into account the Form 1 matters) for a non-parole period of 9 months to commence on 12 May 2005 and expire on 11 February 2006, and an overall term of imprisonment of 2 years 7 months commencing on 12 May 2005 and expiring on 11 December 2007; (2) on the second count, for a non-parole period of 12 months to commence on 12 May 2005 and expire on 11 May 2006, and an overall term of imprisonment of 3 years commencing on 12 May 2005 and expiring on 11 May 2008. 5 The applicant seeks leave to appeal against the severity of these sentences. 6 The circumstances in which the applicant was arrested are uncontroversial. During the evening of 20 August 2004 he was detected by a police sniffer dog, at Kings Cross railway station, and when his backpack was searched by the police, police located a set of electronic scales, a lockable box, and an open bag of Glucodin glucose powder. The drugs the subject of the charges were found in the box, and there was also found in his possession $540.00, which was the subject of the goods in custody charge. At the time of his apprehension, the applicant stated that the box belonged to another person and that he did not know what was in it. 7 Although the first charge specified the drug amphetamine, the analyst's certificate identified the substance as methylamphetamine, and no point has been taken concerning this. The indictable quantity for both amphetamine and methylamphetamine specified in Schedule 1 to the Drugs Misuse & Trafficking Act is 5 grams. The methylamphetamine was mixed in a powder separated into 24 small re-sealable plastic bags in various weights, the total weight of the powder being 20.89 grams. 8 The drug the subject of the second charge, commonly known as MDMA or ecstasy, was in the form of 47 tablets contained in varying numbers in 10 re-sealable plastic bags. Their total weight was 17.78 grams. The indictable quantity specified in Schedule 1 for this drug is 1.25 grams. 9 At the time of the sentencing, the applicant was aged 21. He did not give evidence at the sentence proceedings, but his mother gave evidence on his behalf. 10 Her evidence was that in about April or May of 2004, the applicant left the family home, which, until that time, had been a stable environment for him. He was arrested on 20 August 2004, and he returned home on 25 October 2004. At that time, he and his girlfriend moved into his parents' home, and the mother's evidence was that they were abiding by strict house rules. It appears it took about a month for the effects of the drugs he had been taking to dissipate, and thereafter he progressed to employment, and the sale of his motor vehicle for funds to commit to the repayment of debts. The applicant has gained a traineeship with an electrical wholesaling firm, and his employer is aware of the subject matters and remains supportive of him. 11 The applicant had been employed in the hospitality industry at the time he moved out from home. According to a report from the probation service which was before the sentencing judge, the applicant disclosed to the probation service that an associate introduced him to selling drugs; and the applicant said that getting caught was the best thing that had happened to him, and that he had now turned his life around. The sentencing judge noted that a number of testimonials had been prepared in support of the applicant, and she also noted two minor matters on his criminal record which she considered to be of no moment. 12 In her remarks on sentence, the sentencing judge noted that the offences were serious, and noted a submission that the applicant should be extended the provisions of s.12 of the Crimes (Sentencing Procedure) Act. However, she said that to do so should would need to find that these offences fall towards the lower end of the scale for like offences, and that she could not so find. She said that only in exceptional cases would a non-custodial sentence be appropriate for drug traffickers. She allowed a 25% discount for the pleas of guilty. She found the applicant had previously led a crime-free life, and that his age and immaturity contributed to him finding himself dealing in illegal substances. Then she said: However, the prevalence of this type of offence is of grave concern. Not only must this offender be deterred, but so too must like-minded people who are influenced by suppliers to deal for them, whether it is for financial reward or to ensure the steady supply of drugs for their own use. Young people with limited or no criminal record are often targeted by suppliers for the very reason that there is a tendency not to draw attention to themselves because of the lack of criminal antecedents. It is not a matter that can be given significant weight in the sentencing exercise in the circumstances of this case. 13 She noted that she had not heard from the offender, so that it was difficult to find he was remorseful and contrite. As an aggravating factor, she referred to the offence involving a degree of planning. As mitigating factors, she referred to the fact that there were only minor matters on his criminal record, that he was otherwise of good character, that he was unlikely to re-offend and had good prospects for rehabilitation. 14 The sentencing judge then said: Whilst this offender does have powerful subjective circumstances, having regard to the objective seriousness of the offences committed, coupled with the matters contained on the Form 1, only sentences of full-time imprisonment will satisfy the Crown of the requirements to which I have referred. 15 The sentencing judge again referred to the objective seriousness of the offences, referring particularly to the quantity of drugs involved and the purity of those drugs; and she found special circumstances so as to vary the prima facie ratios to allow for a lengthy period of supervised rehabilitation. She said she found the second offence the more serious, having regard to the quantity of drugs. 16 The grounds of appeal as originally filed were as follows: 1. The learned sentencing Judge erred in her assessment of the objective seriousness of the offence and her reliance on the objective seriousness of the offence to discount other matters equally relevant to the sentencing process. 2. The approach adopted by the learned sentencing Judge in determining whether an order suspending the sentence under s.12 Crimes (Sentencing Procedure) Act 1999 was appropriate was erroneous. At the hearing, the applicant sought and was granted leave to rely on a third ground, namely that the sentences were manifestly excessive. 17 In relation to the first ground, Ms. Bashir for the applicant submitted that the sentencing judge erred in counting planning as an aggravating factor, when the carrying of the scales did not justify a finding beyond reasonable doubt of planned criminal activity, and in any event the circumstances did not indicate any degree of planning beyond that inherent in the offence itself; and also erred in saying that she could not give the youth and immaturity of the applicant significant weight in the sentencing exercise in the circumstances of this case. The sentencing judge had found the applicant's youth and immaturity led him to offend, and youth is also relevant to culpability, deterrence and rehabilitation: R v. GDP (1991) 53 A Crim R 112; Hearne [2001] NSWCCA 37, 124 A Crim R 451 at [23]; Kaina [2000] NSWCCA 23, 110 A Crim R 47 at [114]. Ms. Bashir submitted the sentencing judge erred also in her approach to the seriousness of the offences, in that the drugs were of low purity, and in finding that the second offence was more serious because of the quantity of drugs involved. 18 In relation to the second ground, Ms. Bashir submitted that the sentencing judge did not properly consider whether to suspend the sentence under s.12 of the Crimes (Sentencing Procedure) Act 1999. The judge erroneously considered the application of s.12 before determining that a sentence of imprisonment was appropriate, and characterised a suspended sentence as a non-custodial sentence, whereas an order made under s.12 can only be made following the imposition of a custodial order of a term of imprisonment: R v. Foster [2001] NSWCCA 215 at [30] and [35]. Further, it was not the case that the offences had to fall towards the lower end of the scale for like offences, or that exceptional circumstances needed to be established, before the sentence could be suspended. 19 In relation to the third ground, Ms. Bashir referred to statistics of sentences for s.25 offences in the higher courts. For offences of supply of prohibited drug (including deemed supply) in the case of MDMA of less than commercial quantities, between April 1998 and March 2005, the percentage of offenders sentenced to full-time prison sentences (that is, excluding home detention, periodic detention and suspended sentences) was 27% for all offences (sample of 206), 16% for those with no prior convictions (sample of 111), 13% for those with no prior convictions and pleading guilty (sample of 99) and 4% for those with no prior convictions, pleading guilty and aged 18-20 (sample of 25). For supply of prohibited drug (including deemed supply) of amphetamine of less than commercial quantities between April 2002 and March 2005, the percentage of offenders given full-time prison sentences was 10% in the case of offenders with no prior convictions, who pleaded guilty, and were aged 18-20 (sample of 21). 20 Ms. Bashir also referred to R. v. Knapp [2004] NSWCCA 419, in which the appellant had been convicted, following a plea of not guilty, on one charge under s.25(1) of the Drugs Misuse & Trafficking Act, relating to 145 grams of methylamphetamine. The Court of Criminal Appeal found a sentence of 18 months non-parole and 18 months additional term to be excessive, and substituted a sentence for a total term of 21 months, with a non-parole period of 9 months. 21 In the event that the Court came to re-sentence the applicant, Ms. Bashir relied on a number of affidavits, including an affidavit by the applicant, tending to support continuing rehabilitation, and also referred to a policy of the Department of Corrective Services that pending any appeal (even if there were no Crown appeal) an inmate cannot be considered for external leave programs because it is possible that the Court could increase the sentence. 22 In relation to the first ground, in my opinion the sentencing judge did not err in finding planning as an aggravating factor. In my opinion, the circumstances justified a finding that there was planning; and the offences can be committed on the spur of the moment, and also supply may be deemed in circumstances of mere possession of quantities of drugs smaller than those found on the applicant. Accordingly, factors indicating that what the applicant was involved in was planned criminal activity could properly be seen as an aggravating factor. 23 In my opinion also, there was no error in the sentencing judge's comments about the purity and quantity of the drugs. It was relevant that the quantity of methylamphetamine was about four times the indictable quantity, and that the quantity of MDMA was about fourteen times the indictable quantity. Quantity alone does not determine the seriousness of an offence, but in respect of offences that are otherwise similar, a greater quantity of drugs relative to the amount selected by the legislature as an indictable quantity can justify treating an offence as more serious. 24 However, in my opinion the sentencing judge was in error in indicating that she would not give significant weight to the applicant's youth and immaturity. It is a possible interpretation of what the sentencing judge said, in relation to not giving a matter significant weight, that she was referring not to the youth and immaturity of the applicant, but rather to the circumstance of his lack of criminal antecedents, that being a particular circumstance that causes persons like the applicant to be targeted by suppliers. However, on the whole I think the context in which the statement was made does indicate that the judge was referring as well to the applicant's youth and immaturity. In my opinion, the authorities referred to by Ms. Bashir indicate that youth and immaturity should be given significant weight, and that considerations of general deterrence, while they may also be significant, do not justify disregarding or discounting the offender's youth and immaturity. In circumstances where, for reasons I will give, the sentence was in my opinion excessive, I consider this was a material error justifying appellate intervention. 25 Turning to the second ground, in my opinion there was error in the way the sentencing judge approached the question of suspending the sentence under s.12 of the Crimes (Sentencing Procedure) Act 1999. As pointed out in Foster at [30], the first step is to decide whether the case is appropriate to be dealt with by imprisonment; then it is necessary to decide the term of the imprisonment, this involving the determination of a non-parole period and the determination of an additional term or overall term; and then the judge may consider various alternatives to full-time imprisonment. In this case, consideration of whether imprisonment was appropriate appears to have been combined with consideration of whether s.12 could be applied, whereas the two questions should be considered separately. Further, I do not think it was correct to say that, in all cases of s.25(1) offences, it is a pre-condition to suspending the sentence that the offences fall towards the lower end of the scale, or that there be exceptional circumstances. 26 However, unless this Court finds some other error and re-sentences so that no overall term exceeds two years, suspension of the sentence is not available, so this ground could not succeed. 27 Turning to the third ground, in my opinion there is force in the submission that, having regard to all the circumstances, including objective features of the offences, the limited duration of the applicant's criminal behaviour, the early plea of guilty, and the great strides the applicant has made towards rehabilitation, the sentences were manifestly excessive. The objective circumstances are not dissimilar from those in Knapp. In that case, there was only one offence; but in this case there are two offences because there are two types of drugs, and the overall quantity of drugs in this case is less than that involved in Knapp. In this case, there was a plea of guilty justifying a 25% utilitarian discount, whereas in Knapp, the charge was defended. If anything, the subjective features in this case are more favourable than those in Knapp. 28 For those reasons, in my opinion this Court should undertake re-sentencing of the applicant. In my opinion, there are plainly special circumstances justifying departure from the statutory ratio between the non-parole period and the full term of imprisonment. In my opinion, the appropriate sentence on count 1 is a non-parole period of 6 months and an additional term of 12 months, making 18 months in all; and the appropriate sentence on count 2 is a non-parole period of 8 months and an additional term of 16 months, making up an overall term of 2 years, these sentences to be served concurrently. 29 It is then necessary for this Court to consider whether the sentences should be suspended under s.12. Although, as I have said, I do not accept that the sentences cannot be suspended unless the offences fall towards the lower end of the scale or unless there are exceptional circumstances, I do consider that, in cases such as this of supply of drugs, a strong case needs to be made out to justify suspending the sentence. 30 In the present case, there are substantial matters in the applicant's favour, although, as noted by the sentencing judge, the circumstance that the applicant did not give evidence before her made it difficult for her to find that he was both truly remorseful and contrite. Although the applicant has put on an affidavit before us, it is difficult for this Court to come to a view as to the applicant's remorse and contrition merely on the basis of an affidavit. On the whole, I do not think it would be appropriate to suspend these sentences for serious drug offences. 31 Accordingly, I propose the following orders: 1. Leave to appeal granted. 2. Appeal allowed, and sentences given below quashed. 3. On count 1, the applicant is sentenced to a non-parole period of 6 months to commence on 12 May 2005 and to expire on 11 November 2005, and an additional term of 12 months to commence on 12 November 2005 and expire on 11 November 2006. 4. On count 2, the applicant is sentenced to a non-parole period of 8 months to commence on 12 May 2005 and to expire on 11 January 2006, and an additional term of 16 months to commence on 12 January 2006 and to expire on 11 May 2007. 5. Order that the applicant be released to parole on 12 January 2006. 32 McCLELLAN CJ at CL: I agree with Hodgson JA. 33 HALL J: I agree with Hodgson JA. **********

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