Brent REDFERN v R

The applicant's subjective circumstances 19These were not in controversy in either Court and the following summary is taken from the learned sentencing Judge's reasons for sentence. The applicant was 22 years of age when he committed the offences and 23 years when sentenced. Relevant evidence called on sentence comprised not only his own but that of his parents' and a family friend and Dr Nielssen. This material showed that the applicant was raised in a caring and supportive environment and that this support continues, although his family were clearly disappointed in his criminal behaviour. He completed his Higher School Certificate and went on to qualify as an electrician, at the time of his arrest employed by Energy Australia. He hoped to be able to return to work with that organisation upon his release from custody. 20The applicant said he commenced using ecstasy sporadically at the age of 18 and by the time he was 20 or 21 he had started to use cocaine. Although he was not willing to admit he had a drug problem he conceded that the continued use of drugs led him to his criminal behaviour. His role was to source the drugs, collect the money, collect the drugs and give them to his peers who had requested them as well as keeping some for his own use. The Judge, expressing her view about the evidence of the amount the applicant received by contrast with what he had told Dr Nielssen, concluded (this not being in issue) that, whatever the amount might have been, he saw it as an opportunity to make some quick money. Her Honour accepted, however, that this was the first time he engaged in dealing at this level. 21The Judge concluded that the applicant now had insight into the impact of his offending behaviour on his family, himself and the wider community and that he did not consider the legal consequences of it until he was arrested. He had attempted to keep himself occupied whilst in custody, being a sweeper in his wing and applied to participate in various programs available to him. He has also requested textbooks to enable him to keep studying whilst he is in custody. When his family became aware that the applicant was using prohibited drugs, his parents arranged for him to attend drug and alcohol counselling but he did not benefit from that program. Shortly before his arrest they became aware that he had resumed his habit and required him to leave the family home. This was shortly before his arrest. Dr Nielssen found no evidence of any psychological or psychiatric illness and formed the opinion that the applicant had good prospects for rehabilitation. Her Honour referred to a previous offence of possession (an ecstasy tablet taken to a dance party) which was dismissed pursuant to s 10 Crimes (Sentencing Procedure) Act 1999. He has one offence of driving with alcohol in his system whilst he was a provisional licence holder. 22The Judge noted that the applicant pleaded guilty at the earliest opportunity and therefore was entitled to a 25% discount for his pleas. She concluded also that he demonstrated contrition and found that the applicant was truly remorseful and contrite with excellent prospects for rehabilitation. She found that he was highly unlikely to re-offend. Her Honour concluded "that the offender has a strong subjective case arising from his good character". Complaint is made about her Honour's following concluding comment - "But taking into account his level of involvement in these offences, his knowledge of the amount of drugs being supplied on each occasion, and the fact he was participating purely for profit, there is little mitigation in his subjective circumstances." 23It is submitted on behalf of the applicant that the Judge erred in finding that the applicant's subjective circumstances provided "little mitigation". Rather, they were such as should have been regarded as having a significant effect on the appropriate sentence. In R v Cheikh [2004] NSWCCA 448 Giles JA (with whom Levine and Hulme JJ agreed) set out a number of propositions relied on by the Crown as material to sentencing at [50] in a case of this kind in particular that "prior good character and lack of criminal record are of reduced significance in drug offences" citing R v Leroy (1984) 13 A Crim R 469 and R v Nemes (Court of Criminal Appeal, 28 August 1997, unreported). The passage in Leroy which was cited with approval in Nemes makes it clear that the reduced significance was (as indeed stated by Giles JA) limited to the lack of what Street CJ described as "a clear earlier record" since this factor might lead to the selection of an offender to play some part in the chain of drug trafficking "because their records, their past and their lifestyles are not such as to attract suspicion...[and therefore] the courts...take in the case of drug trafficking a view which does not involve the same degree of leniency being extended to first offenders [in other fields of crime]". 24Apart from there being no evidence that this consideration was relevant in Hutchinson's selection of the applicant as an accomplice (the evidence, such at it was, being that a school friend asked the applicant to help Hutchinson), the limitation does not affect the other very significant subjective circumstances. In my view, the learned sentencing Judge erred in applying the notion of limited mitigation generally to the applicant's subjective circumstances. Even if it were intended to limit the effect of his lack of prior criminal offences and otherwise good character, this was not a case in which such a consideration was relevant to his involvement. There is no special class of offence, including drug dealing, which requires a different rule to be applied to the significance of the particular subjective circumstances in an individual case. Each will necessarily depend upon the circumstances, both subjective and objective, to derive the ultimate sentence. 25With respect, it seems to me that this ground of appeal is made out.