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[2012] NSWCCA 178
Court of Criminal Appeal (NSW)
2012-08-23
McClellan CJ, Adams J, Hoeben J, Hoeben JA, Clellan CJ
Original judgment source is linked above.
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.
Manifest excess 26In light of the fact that a specific error has been identified, this Court's jurisdiction to resentence is enlivened and it is therefore unnecessary to consider whether the sentence imposed was otherwise such as to reveal a latent error in the exercise of the sentencing discretion. The question therefore is whether a less severe sentence is warranted in law and should have been passed: s 6(3) Criminal Appeal Act 1912. 27It was not submitted that the characterisation of the objective circumstances by the sentencing Judge was in error (except as to the extent of profits made from other drug dealing) and, if I may respectfully say so, it seems to me that this Court should proceed upon the basis of her Honour's other findings. Firstly, her Honour noted that this was a case in which a custodial sentence was appropriate and that offences of ongoing supply are considered to be more serious than a single transaction. Her Honour concluded that the applicant was not a user selling to support his habit and was not onselling small quantities from his own supply but was providing significant quantities at the request of a customer for significant sums of money. The high purity of the drugs supplied enabled this quantity to be easily cut and therefore widening the market of users. On the other hand, her Honour found that there was no evidence suggesting that the applicant was making significant financial gains from his drug dealing activities. He did not appear to have any of the trappings of wealth; he had no assets other than his motor vehicle and was living at home with his parents until they asked him to leave. Her Honour found that the offences fell within the "mid range of objective seriousness", noting that it was unusual to find an offence under s 25A involving such a large quantity of drugs in each individual supply and that the applicant must have known he was suppling a significant quantity on each occasion having regard to the sums of money being paid. Her Honour qualified this finding by noting that the applicant was not the person who was instrumental to the supply of these drugs rather it was Mr Hutchinson although, it was always open to him to refuse to do so. Her Honour said that - "This offender may not have been at the top of the organisational tree in this business of supplying prohibited drugs but he was certainly not in the position of a mere courier or drug runner or street level dealer. He was clearly supplying on behalf of a wholesaler. From the amount sold and the frequency of the sales it must have dawned on this offender that he was moving into the big league over and above simply supplying to his friends on an occasional basis." 28Although, in a case which does not involve a standard non-parole period, little is to be gained in my respectful view by determining whether the objective facts place a case in the mid range, I would with respect otherwise adopt the sentencing Judge's characterisation of the objective facts. 29Since this Court must resentence, it is necessary to take into account the evidence tendered on the appeal as to the applicant's subjective situation since sentencing. That evidence, in substance, confirms his remorse, his contrition, his intention to rehabilitate himself and that he has taken appropriate steps within the prison system to better his employment prospects upon release. There appears to have been changes for the better in respect of his attitude both to his offences and to the future. In short, this evidence confirms the favourable findings of the sentencing Judge. 30Of considerable significance, as it seems to me, is that this was the applicant's first, though far from reluctant, foray into serious crime, which was fortunately nipped in the bud as the result of an investigation instigated because of the criminal activities of his accomplice, who first approached him. I think it is appropriate to deal with the applicant on the basis that this has been for him a decisive turning point and that one of the major purposes of sentencing, certainly in respect of a relatively young offender, namely that of rehabilitation, is well on the way in the applicant's case. Indeed, the Crown prosecutor on sentence fairly submitted that the subjective evidence could support a view that he is at the 'crossroads' with respect to his rehabilitation (vide R v Henry [1999] NSWCCA 111 at [273]). This is of course not to say that the other purposes of sentencing, in particular retribution and general deterrence, do not have a significant role to play. However, the applicant is still young and it is important in the public interest, aside from his own personal interest, to acknowledge in the sentence to be imposed both his ability to reform and his evident decision to do so. 31The sentencing Judge, as is evident from the sentence, gave significant weight to special circumstances, identified by her Honour as the need for a lengthier than normal period of supervised parole to ensure that the applicant attends drug and alcohol relapse prevention programs to minimise his risk of relapse and therefore reoffending, that he no longer mixes with negative peers and that he makes the most of the assistance to him of the Probation Service in securing employment upon his release. 32For reasons already given, although the matter contained on the Form 1 must be taken into account, I do not consider that it adds to the totality of his criminality and therefore have not increased the sentence which is otherwise appropriate on the first charge. 33Tendered on behalf of the applicant was a summary of a number of cases of multiple supply of cocaine in which offenders were sentenced under s 25A. These cases were: R v Luong [2002] NSWCCA 238; R v Zarei [2002] NSWCCA 350; R v Kostecoglou [2002] NSWCCA 514; R v Sakkar [2003] NSWCCA 26; R v Hide [2003] NSWCCA 371; R v Collins [2004] NSWCCA 30; R v Vu [2005] NSWCCA 266; R v Esquilant [2007] NSWCCA 248; R v Mirza [2007] NSWCCA 248; R v Hanson (District Court of NSW, Berman SC DCJ, 23 March 2007, unreported); R v Malavetas (District Court of NSW, Nicholson SC DCJ, 22 January 2009, unreported). To which should be added R v Smiroldo [2000] NSWCCA 120; 112 A Crim R 47; R v Hoon and Pouoa [2000] NSWCCA 137; R v Khaled [2001] NSWCCA 169; R v Kairouz [2005] NSWCCA 247; SZ v R [2007] NSWCCA 19; (2007) 168 A Crim R 249; and Gore and Hunter v R [2010] NSWCCA 330. 34With the exception of the District Court cases, I have looked at all these judgments. For present purposes it is not necessary to detail each one of them. It is sufficient to say that, bearing in mind different facts and subjective circumstances, I have found them to be helpful in deriving the sentence which I propose in respect of this applicant. I have also considered (with a degree of caution) the Judicial Commission statistics for non-consecutive terms and non-parole periods for the s 25A offence (some thirty cases) and the s 25 offence (some fifty cases). Although not a very large sample, nevertheless the number is not without some significance, and the range of sentencing imposed is somewhat informative. 35The applicant has been in custody since 10 June 2010 and, accordingly, his imprisonment must date from that time. Conclusion 36As will be seen, the proposed sentences differ significantly from those under appeal and it is therefore necessary to substitute new sentences. Accordingly, leave to appeal should be granted, the appeal allowed and the sentences appealed from quashed. I should mention, in the interests of transparency, that I had initially proposed somewhat shorter sentences than those set out below but my brethren were both of the view that, in light especially of the objective seriousness of the offences, somewhat longer sentences should be imposed. It hardly needs to be said that the determination of an appropriate sentence is a difficult task upon which reasonable minds might well reasonably differ. I have decided, in the result, that I would not press my own conclusions to the point of dissent and therefore propose that leave to appeal be granted, that the sentences be quashed and that the following sentences should be substituted - (i)As to the first charge (supply prohibited drug, namely cocaine on 10 June 2010 contrary to s 25(1) Drug Misuse and Trafficking Act 1985) a fixed term of imprisonment of 1 year and 6 months, commencing 10 June 2010. (ii)As to the second charge (supplying prohibited drugs on an ongoing basis, namely cocaine, between 7 May 2010 and 26 May 2010 contrary to s 25A(1) Drug Misuse and Trafficking Act 1985) taking into account the matter on the Form 1, imprisonment with a non-parole period of 2 years and 6 months, commencing 10 December 2010 and expiring 9 June 2013, with a balance of term of 2 ½ years expiring 9 December 2015. 37HOEBEN J (appointed a Judge of Appeal after this hearing): I agree with the conclusion of Adams J and with his reasons that her Honour erred in how she used the offence on the Form 1 and in the way in which she departed from the agreed facts placed before her. 38I also agree with Adams J that the applicant's subjective case was a strong one and on the facts of this case, had an important part to play in the sentencing process. That having been said, it was still necessary to balance that consideration against the objective seriousness of the offending which in this case was substantial. 39The applicant admitted to police that he had before the charged transactions, supplied cocaine to friends and that he had a few months earlier obtained a second mobile phone to take drug-related calls. As her Honour appreciated, the quantities of drugs involved in this transaction made it clear that the applicant was not an "innocent" dabbling in the supply of drugs for the first time. His ability to obtain the substantial quantity of drugs involved is illustrative of his familiarity with the drug scene. 40For the reasons set out by Adams J (with the exception of his use of statistics in relation to which I prefer not to express a view) it is clear that the offence under s 25A(1) Drug Misuse and Trafficking Act 1985 was a serious example of offences of that kind and this is reflected in the sentence proposed by Adams J. Accordingly, I agree with the orders proposed by his Honour.
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: 23 August 2012
Brent REDFERN
R
Findings as to the Form 1 offence 10 In dealing with this offence the sentencing Judge said - "I am asked to take into account the matter contained on the Form 1. It is, of itself, a serious matter and I have increased the penalty to be imposed for the sentence of ongoing supply to reflect that matter." 11There was no discussion by her Honour as to the significance of the circumstance that this was the money which had been used to purchase the drugs to which the other charges referred. It was accepted on the appeal that the Judge had acted on the basis that the money was the proceeds of other drug transactions than those charged. The Judge concluded that "the evidence would appear to be that he made, in fact, much, much more" [emphasis added] than the $400 to $500 stated by the applicant to Dr Nielssen (whose report was tendered) to have been his profit from earlier transactions. However, this claim had not been put in issue by the Crown. Furthermore, to act on the basis of such an adverse finding requires a finding beyond reasonable doubt. 12I have already mentioned that the agreed facts set out the applicant's explanation for the source of the funds in the safe without any suggestion that this was not the case. Since all the cash handed to the applicant was pre-recorded, the police were in a position to know whether or not the applicant's claim was correct. It is inescapable that the money recovered was checked against the recorded numbers. To Dr Nielssen, the applicant stated that the money found in the applicant's possession had been that which had been given to him by the police to obtain the drugs. Furthermore, the applicant gave evidence during the proceedings, amongst other things verifying the history given to Dr Nielssen. He also stated that he had not previously made money from drugs before and only obtained the drugs for Hutchinson because Hutchinson was a friend who had asked the applicant "to help him out". In cross-examination he said that he made $300 an ounce and that the $15,600 for the two ounces he was in the process of selling when arrested would have returned a net to him of $600. He explained that for lesser quantities the margins were similar but in absolute terms small. He was not cross-examined by the Crown to suggest that this evidence was untrue or that the money found in the safe was other than the cash supplied to him by police. The written submissions tendered on sentence by the Crown prosecutor stated that the "search revealed $7,700 cash which the offender acknowledged was his from his earlier sales of cocaine to the UCO". Those submissions also set out, without suggesting that it was in issue, the applicant's description of his activities as contained in Dr Nielssen's report, his police interview and the Pre-Sentence Report prepared by the Probation and Parole Service, in particular that his pattern of drug use prior to the commission of these offences comprised purchasing for himself and his friends an "eight ball" (one-eighth of an ounce) from a known associate and using it in the context of socialising over a weekend; he did not have a drug supply business and had responded to the request to supply drugs from a friend whom he knew to be a drug user and supplier who had been unable to meet the request from the undercover officer and asked him if he could supply the drug; he did not have any links with or knowledge of organized drug supply and his contacts were people he knew from his various social networks in Penrith where he grew up; stimulant drug use was common in his social circle and age group and he had not considered the legal consequences of his behaviour until after his arrest; he on-sold the drugs with which he was supplied and, after taking his portion (about $400 or $500) he would return the remainder to his supplier; as to the present transactions, he saw the opportunity to make some quick money and this was the first time he acted in this way. 13Plainly enough, the lack of cross-examination of the applicant on these statements was not an oversight, but occurred because the Crown accepted their essential truth which as to the money in the safe, was easily and almost certainly was, verified. Furthermore, it is not surprising these matters was not raised by the counsel for the applicant as they were not controversial. 14In this Court, however, the Crown sought to argue, from general statements made by the applicant to police as to his modus operandi that the amount in the safe indicated that there was criminality involved beyond the supplies to the undercover operative. Indeed, the applicant had admitted to police that he had, prior to the charged transactions, supplied cocaine to friends and that he had a few months earlier obtained a second mobile phone to take drug related calls. It was submitted that it should be inferred that a significant part of the money in the safe represented profits from other drug supplies. In my view this inference was not open to the sentencing Judge, in light of the way the matter was dealt with before her. 15The submission of the Crown prosecutor in this Court that it should be inferred that the significant part of the money in the safe represented profits from other drug supplies since "[such] a finding was clearly open on the evidence tendered despite what the Crown had outlined in their written submissions" ignores the highly significant consideration that the weight of the evidence tendered was to the contrary and, even more importantly, that the evidence took the form it did because the applicant was not asked to testify about the matter as it was plainly not regarded as controversial. Accordingly, the sentencing Judge should have proceeded, and this Court must proceed, upon the basis that the money in the safe was indeed that which had been obtained from the police in respect of the supplies with which the applicant was charged. 16The Crown further submitted that, even if the cash "was directly linked to the particular transactions with the undercover operative this would have warranted a more serious charge of dealing with proceeds of crime knowing that it is the proceeds of crime, contrary to s 193B(2) of the Crimes Act 1900". This might be so, but it would leave the question as to whether, in light of the primary charges, it would be appropriate to further punish for receiving the money which was part and parcel of the sales for which the applicant was being punished. At all events, this offence was not charged. In my view, moreover, it was unnecessary and, indeed, inappropriate to have identified this particular aspect of the applicant's supply of the drugs and put it into a Form 1, quite apart from imposing an additional sentence in respect of it. 17It is self evident, as it seems to me, that the totality of the applicant's criminality in the charged offences is not increased by the fact that he had in his possession the money paid to him for the supply of the drugs. It would be as sensible to have charged and punished him additionally with possession of the drugs for the purpose of supplying the undercover police officer because he had the drugs in his possession. Both the possession of the drug itself and the proceeds of sale are part and parcel of the primary offence. It needs hardly to be said that it is immaterial that he had the cash in his possession at the point of sale as distinct from in the safe in his home. To punish him additionally for either one of those aspects of his conduct is to double count: see Re Attorney General's Application under s 37 of the Crimes (Sentencing Procedure Act) 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146 at [42] ff; Thorn v R [2009] NSWCCA 294; (2008) 198 A Crim R 135 at [27]; Nahlous v R [2010] NSWCCA 58; (2010) 77 NSWLR 463 at [13]-[15]; Schembri v R [2010] NSWCCA 149 at [11]-[16]; Maglis v R [2010] NSWCCA 247 at [9]; cf Hinchcliffe v R [2010] NSWCCA 306. 18It follows that this ground of appeal is made out.
(2010) 77 NSWLR 463
(2002) 56 NSWLR 146