Brodie Jeet SINGH v R

CATCHWORDS: Criminal Law - sentence appeal - ongoing supply of MDMA - whether sentence excessive - supply cannabis - statement of wrong maximum penalty - Parity.

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985 - ss 25(1), 25A,

COUNSEL: P A Leask - Crown E Ozen - Applicant

SOLICITORS: S Kavanagh - Crown Brett William Galloway - Applicant

IN THE COURT OF CRIMINAL APPEAL 2007/5920

GROVE J HOWIE J R A HULME J

WEDNESDAY 29 APRIL 2009 Brodie Jeet SINGH v R Judgment 1 GROVE J: I agree with Howie J. 2 HOWIE J: The applicant was sentenced in the District Court for offences in relation to the supply of prohibited drugs over a period from 22 September 2005 to 16 November 2005. He pleaded guilty in the Local Court to two offences. The first was an offence of ongoing supply of MDMA, also known as ecstasy, contrary to s 25A of the Drug Misuse and Trafficking Act 1986. That is an offence for which a maximum penalty of 20 years imprisonment is prescribed. The second offence was the supply of cannabis contrary to s 25(1) of that Act. The maximum penalty for that offence is imprisonment for 10 years, although the Judge erroneously stated that it was 15 years. 3 The applicant was committed for sentence to the District Court where he maintained his pleas of guilty. He also asked the Judge, Black DCJ, to take into account on a Form 1 an offence of supply MDMA, an offence of goods in custody in respect of a sum of money, and the possession of a prohibited drug. On 14 December 2007 he was sentenced to an overall sentence of 7 years 6 months with a non-parole period of 5 years. The applicant is eligible to be released to parole on 15 November 2010. 4 There are two grounds of appeal relied upon:

1. That the applicant has a justifiable sense of grievance in light of the sentence imposed upon his co-offender.

2. The sentences imposed were separately and taken together, manifestly excessive, and some lesser sentence was warranted at law. 5 There was an agreed statement of facts tendered and it can be summarised very briefly. The police commenced an operation in the Tweed Heads area to investigate the supply of drugs by a number of persons, including the applicant and his co-offender. The first count of ongoing supply related to the supply of MDMA to an undercover police officer on three dates in 2005; 22 September, 24 September, 4 October. On the first occasion the applicant supplied 100 tablets, being 31.81gms, that he had obtained from a co-offender, Curry, for $2.000. On the second occasion he and Curry supplied 1,000 tablets, being 319.8gms, for $17,500, and on the third occasion they supplied 700 tablets, being 205.4gms, for $12,250. The second count was a supply by the applicant of about 2.25kg of cannabis for $16,500 on 16 November 2005. 6 The matters on the Form 1 involved a supply by the applicant and Curry of 1,000 tablets, 241.92gms, for $17,500 on 27 October, the possession by the applicant of $5,400 when he was arrested, and 86gms of cannabis found in the applicant's home. 7 The applicant was born on 8 September 1977 and hence was 30 at the time of sentencing. He had a record of chiefly driving matters and some minor drug-related offences for which he had been fined. There was a Pre-sentence Report in evidence. The applicant gave an account of his childhood with a father who was violent toward his mother until he left home when the applicant was aged 4 years. He said that his mother used drugs and he had been introduced to cannabis when aged 7. The applicant commenced full-time work at the age of 16 years when he left school. He was involved in a smash-repair business until his arrest. He also commenced a sports store but it was not viable. The applicant admitted having been involved in the supply of drugs since the age of 15 and made "a large amount of money" from his recent drug dealing. 8 The applicant was a heavy consumer of alcohol and had a significant history of drug usage. He usually used ecstasy and was taking up to 10 tablets a day before his arrest. He also had a history of cocaine use. He admitted that financial gain was the motivation for his offending. The officer preparing the report thought that the applicant minimized his role in the offences by saying that the police "made things appear much worst than they actually were". She was of the opinion that he had been involved in the use and sale of drugs for so long that he had "normalised" the behaviour. 9 There was a psychiatric report in evidence. The applicant had been suffering from depression since his incarceration and was concerned with his relationship with his wife. The psychiatrist believed that the applicant had suffered a drug induced paranoid psychosis at some time prior to his incarceration. He thought that the applicant had gained some insight into his problems since being in custody. 10 There were a number of testimonials in evidence many in connection with the applicant's smash-repair business. The applicant also wrote a letter to the court indicating his regret for his offending and an intention to address his drug usage. 11 The Judge treated the applicant as having little relevant record. He found special circumstances and took into account that the applicant was remorseful and hence had better prospects for rehabilitation than otherwise might have been the case. He determined that the sentence for the cannabis offence should be served totally concurrently with the on-going supply offence. He indicated that had it not been for the pleas of guilty "the overall sentence would be one of 10 years" and that the sentence was reduced by 25 per cent. 12 It is appropriate to deal with the second count first as the question of parity is only considered if the sentence imposed is otherwise unimpeachable. It should be observed that his Honour imposed the same sentence on both counts notwithstanding that the offence relating to the supply of the cannabis was clearly less serious than the offence on the first count, particularly as it took into account the matters on the Form 1. Yet his Honour said:

Now as far as [the applicant] is concerned, the maximum sentence for his count 2 is one of fifteen years. This involved an actual supply as I have said of a significant quantity of drugs.

Now then the case of Pearce enters into what I am meant to formulate and discuss, that on the face of it and in practice, requires separate sentences to be assessed for each offence and then decisions to be made as to whether the sentences should be cumulative, partially cumulative or concurrent. 13 With respect I do not understand how having stated that approach, the Judge could then impose the sentences that he did, by imposing the same sentence on both counts and by making the supply of the cannabis, a quite separate and serious act of supply, concurrent with the sentence for the first count. The criminality in the second count could not, in my opinion, be reflected in the criminality in the first count notwithstanding the seriousness of that offence and the matters on the Form 1. 14 The applicant complains by reference to statistics that the sentence imposed upon the first count was manifestly excessive. He also refers to a number of other decisions of this Court that, he maintains, proves the excessiveness of the sentence. I do not believe that they give any assistance to the applicant. 15 One of the matters of very great significance in the ongoing supply offence committed by the applicant is that two of the supplies, the second and third, were for amounts of a commercial quantity of the drug. The maximum penalty for each of those offences, had they been separately charged, would have been imprisonment for 20 years. They would have warranted cumulative sentences. 16 I doubt that s 25A was intended to cover this serious type of criminality. The section was designed to punish the persistent supplier of relatively small amounts where no particular instance of supply represented the full extent of the offender's involvement in the distribution of drugs. In Mirza v R [2007] NSWCCA 248, it was held:

[11] The offence was enacted to target dealers who were involved in the ongoing supply of drugs for profit where the amounts supplied on any particular occasion were small and any one instance of supply did not fairly represent the involvement of the supplier in the distribution of drugs: see R v Smiroldo (2000) 112 A Crim R 47. Although the amount of the drug is not the only relevant factor in sentencing for this offence, or any offence of supplying drugs for that matter, it remains a significant factor: Smith v R [2007] NSWCCA 138 at [53]. It may well be the case that the seriousness of this type of offence will not be diminished simply because the overall amount of drug supplied is small. But it does not follow that the amount of drug supplied is an irrelevant matter in determining the seriousness of the particular offence.

[12] I have cautioned before about placing too much reliance on what was said about the relevance of the amount of the drug in Wong v The Queen (2001) 207 CLR 584 in relation to a State offence where the seriousness of the offence is not based upon the purity of the drug: see Truong v R [2006] NSWCCA 318. See also R v Sciberras (2006) 165 A Crim R 532 at [41]. There will clearly be cases where the amount of the drug supplied is determinate of the sentence. 17 The applicant was very fortunate to have been charged under s 25A and then to have another supply of a commercial quantity taken into account on a Form 1. He could have been, and in my view should have been, charged with a supply of not less than a large commercial quantity of the drug taking into account all the supplies. The large commercial quantity is 0.5kg. The applicant supplied about 0.75kg. Such a charge would have exposed him to life imprisonment and a standard non-parole period of 15 years. But in any event the criminality of the offender as revealed by the two offences and those on the Form 1 was substantial. As the applicant forthrightly told the officer from the Probation Service, he was supplying drugs for the very substantial financial gain he derived from that enterprise. 18 Counsel for the applicant accepted that the statistical information was of little assistance. It reveals how far the sentences for ongoing supply of drugs fall short of the statutory maximum: the longest sentence was 7 years. What it does not reveal is the amount of drugs supplied. Many cases, I would suspect, involve the supply of no more than street amounts, that is amounts less than the indictable quantity for the drug. From my experience that is the type of case usually prosecuted under this section. 19 The written submissions filed on behalf of the applicant refer in summary to a number of decisions of this Court concerned with sentences for drug supplies including s 25A offences. There were only six cases referred to and they differ significantly between themselves and with the present case. I do not believe they provide any sound guide for suggesting a particular range for an offence of the nature of that for which the applicant was charged. 20 A starting sentence of 10 years for the s 25A offence and the Form 1 matter, including as they do a supply of six times the commercial quantity, is not in my view excessive. The applicant, as I have already indicated, was fortunate to receive a totally concurrent sentence for the cannabis offence. However the sentence for the cannabis offence is excessive having regard to the amount supplied and the maximum penalty. Even though that sentence was made concurrent, it should be reduced. 21 The applicant's co-offender faced the same s 25A offence as the applicant. He had a further offence of supply of a large commercial quantity of MDMA being a supply to an undercover police officer of 2.4kg of the drug. That as I have already indicated is an offence carrying a maximum penalty of life imprisonment. Quite extraordinarily the Judge imposed a sentence of 10 years imprisonment for that offence and made it totally concurrent with the s 25A offence. His Honour apart from stating that it carried a standard non-parole period of 15 years thereafter ignored the effect of the standard non-parole period. His Honour's finding that the s 25A offence was the more serious and therefore, by implication, could reflect the whole of the criminality, was seriously in error. 22 In my opinion the Judge's discretion completely miscarried in respect of the co-offender. The sentence was manifestly inadequate so far as the sentence for the second count was concerned, both in its length and in the fact that it was made concurrent with the s 25A offence. There has apparently been no Crown appeal. 23 It has been held on numerous occasions that this Court will not exercise its discretion to reduce a sentence of an offender because of disparity with a sentence on a co-offender that is manifestly inadequate. That is because in such a situation the offender cannot have a justifiable sense of grievance based upon a sentence that is so erroneously lenient. That principle should be applied here. As I have indicated, the applicant was extremely fortunate in the way he was charged and sentenced. He should accept that he is doing the least sentence that he could possibly have hoped for to reflect his criminality as a serious drug trafficker. The fact that his co-offender was even more fortunate by receiving a sentence that, in my view, is almost an affront to the community avails him nothing. 24 There will be a fixed term for the offence of supply cannabis having regard to the sentence imposed for the offence under s 25A. 25 I would propose the following orders. Leave to appeal is granted. The sentence in respect of the supply of cannabis is quashed and in lieu the applicant is sentenced to a fixed term of 2 years from 16 November 2006 and expired on 15 November 2008. The sentence for the s 25A matter is confirmed. 26 R A HULME J: I agree with Howie J.

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