Buttrose v R

Judgment 1HIS HONOUR: Decision Application The applicant, Richard William Buttrose, has applied for an inquiry into his sentence pursuant to s78(1) Crimes (Appeal and Review) Act 2001 (the Act). The application seeks a referral of the sentence to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912. 2The applicant maintains that there is a doubt or question as to a mitigating circumstance in the case, namely that the applicant's sentencing was infected by Muldrock error in that the standard non-parole period was given undue emphasis in the sentencing process, contrary to the decision of the High Court in Muldrock v The Queen [2011] HCA 39; 244 CLR 120. 3The applicant following entries of pleas of guilty in the Local Court, was sentenced on 18 March 2010 in the District Court by Sorby DCJ for the following offences: (1) Two counts of supplying a prohibited drug, contrary to s25(1) of the Drug Misuse and Trafficking Act 1985 (NSW). The maximum penalty for this offence is imprisonment for 15 years. (2) One count of supplying a large commercial quantity of a prohibited drug, contrary to s25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The maximum penalty for this offence is imprisonment for life. This offence carries a standard non-parole period of 15 years. (3) Two charges of supplying a prohibited drug and two of possessing unlawfully obtained goods were taken into account on a Form 1. An offence of possessing $1,313,700, being the proceeds of crime, was dealt with under s167 of the Criminal Procedure Act 1986. 4Sorby DCJ sentenced the applicant as follows: (1) For the first charge of supplying a prohibited drug - fixed term of imprisonment of 12 months to commence 26 February 2009. (2) For the second charge of supplying a prohibited drug - a fixed term of imprisonment for 2 years and 6 months to commence 26 August 2009. (3) For the charge of supplying a large commercial quantity of a prohibited drug (Count 3) - imprisonment for 14 years with a non-parole period of 10 years and 6 months to commence 26 February 2011. (4) The matters on the Form 1 were taken into account under Count 3. A fixed term of 18 months imprisonment was imposed for the s167 offence dating from 16 February 2009. 5The overall term of imprisonment was 16 years with a non-parole period of 12 years and 6 months. The sentencing judge allowed a 45 percent reduction on sentence for the applicant's early plea of guilty and assistance to authorities. 6The applicant sought leave to appeal to the Court of Criminal Appeal with respect to sentence and that appeal was upheld (Buttrose v R [2011] NSWCCA 35). The Court of Criminal Appeal re-sentenced the applicant as follows: Count 1: imprisonment of 12 months to date from 26 February 2009. Count 2: imprisonment of 2 years to date from 26 August 2009. Count 3: having regard to the offences on the Form 1 imprisonment comprising a non-parole period of 9 years commencing 26 August 2009 and concluding on 25 August 2018 with a balance of term of 3 years concluding 25 August 2021. There was no change to the order made pursuant to s167 of the Criminal Procedure Act 1986. The total term of imprisonment ordered by the Court of Criminal Appeal was imprisonment with a non-parole period of 9 years and 6 months with a balance of term of 3 years. Factual Background 7In August 2008 Rose Bay detectives commenced investigations into the supply of prohibited drugs by the applicant in the eastern suburbs of Sydney. On 23 September 2008 a control operation was undertaken. 8Count 1 relates to an undercover operation on 24 December 2008 when 8.02 grams of cocaine was handed over in exchange for $2,500. The cocaine was contained in 13 small resealable plastic bags. The first offence on the Form 1 concerns similar events, which occurred on 30 December 2008, with the total weight of cocaine being 8.10 grams. 9The facts in relation to the second offence on the Form 1 involve a supply on 25 February 2009. The amount of cocaine involved was 1.44 grams. 10The facts in relation to count 2 and the facts in relation to offence number 3 on the Form 1 were as follows. On this occasion the applicant's motor vehicle was stopped by the police. When searched, 46 resealable plastic bags containing a quantity of cocaine were found. The amount of cocaine was 34 grams. There was also an amount of $3,740 found on the applicant. When the applicant's residence in Sutherland Street, Paddington was searched, a backpack was found containing $50,000 in cash. An amount of 51.15 grams of cocaine was also found in the backpack. 11The facts relating to count 3 were that on 26 February 2009 the police received information that the applicant owned premises in Sutherland Crescent, Darling Point and that he kept drugs in that residence. When the premises were searched, a total of $1,313,00,700 in cash was found and 5.9573 kilograms of cocaine. 12The applicant relied upon the following grounds of appeal in the Court of Criminal Appeal: Ground of Appeal 1: The sentencing judge erred in assessing the objective seriousness of count 3 at "well above the midrange". Ground of Appeal 2: The degree of accumulation between counts 2 and 3 was erroneous. Ground of Appeal 3: Insufficient weight was given to the applicant's subjective circumstances. Ground of Appeal 4: The finding that the offence was part of a planned or organised criminal activity was erroneous. Ground of Appeal 5: The sentence imposed for the offence dealt with under s167 must have had a starting point above the maximum penalty. 13In the Court of Criminal Appeal the principal judgment was delivered by McClellan CJ at CL (with whom Hall and Garling JJ agreed). The judgment makes clear that Ground 1 was upheld, with Grounds 2 and 3 conceded. McClellan CJ at CL found that the primary judge's finding that the objective seriousness of Count 3 "falls significantly above the midrange of objective seriousness" was erroneous and that the correct finding should have been that the objective seriousness of Count 3 was "modestly above the midrange". 14The Court also considered the starting point of the sentence imposed for Count 3 being 25 years and 6 months and for the overall sentence being 30 years when one allowed for the 45 percent discount as manifestly excessive. The Court considered that the evidence indicated that the applicant had significant prospects of rehabilitation. 15At first instance the only reference which Sorby DCJ made to the standard non-parole period was to observe that because of the applicant's plea of guilty "the standard non-parole period was a reference point". In the Court of Criminal Appeal, other than a recounting of that finding by Sorby DCJ, the Court of Criminal Appeal made no mention of the standard non-parole period. This is despite the fact that McClellan CJ at CL reviewed a number of other Court of Criminal Appeal judgments involving sentences imposed upon offenders for supplying a large commercial quantity of a prohibited drug. 16The applicant accepted that the test to be applied in determining this application was whether it appeared that there was a doubt or question "as to any mitigating circumstances in the case" in accordance with s79(2) of the Act. The applicant submitted that this question should be answered in the affirmative because of the real possibility that had proper sentencing principles been applied, either at first instance or on appeal, the applicant's sentence would have been less than that imposed. 17That submission is only partially correct. Since the Court of Criminal Appeal found error in the exercise of his sentencing discretion by the primary judge and that a lesser sentence was warranted in law, it re-exercised that sentencing discretion. Accordingly, for this application to be successful it has to be shown that proper sentencing principles were not applied by the Court of Criminal Appeal. 18A major difficulty in this case is that the Court of Criminal Appeal did not refer to the standard non-parole period at all in its reasoning towards the identification of error, or in its reasoning leading up to re-sentencing the applicant. The basis for the applicant's challenge seems to be an assertion that "Muldrock error" must have occurred because of the length of the sentence imposed for Count 3. Other than inviting such an inference to be drawn, the applicant was not able to identify any "Muldrock error" in the approach of the Court of Criminal Appeal. 19The applicant put the submission as follows: "52 In short the "mitigating circumstance" is that this applicant was sentenced to a very lengthy sentence of imprisonment at first instance at a time when Sorby DCJ was bound to apply the approach mandated in Way and subsequent CCA decisions to the relevant standard non-parole period. Thereafter, the applicant successfully appealed the severity of the sentence. On re-sentence it is apparent that the Court of Criminal Appeal only reduced the sentence to a limited extent, again relying on the important role to be played by the standard non-parole period referable to Count 3. 53 As set out below, at [58] - [70] there exists a powerful argument that if the applicant had been sentenced correctly in accordance with Muldrock, his sentence would have been appreciably less than it currently is. This is a mitigating circumstance for the purposes of Part 7. 54 Had this applicant not appealed his sentence in a timely fashion, he would now be able to approach the CCA directly and seek leave to appeal out of time. He would have been in a position to argue that the standard non-parole period had had primary or determinative significance in the way that Sorby DCJ determined the appropriate sentence, the applicant could have argued that for this reason there was error and a lesser sentence was warranted in law. This course is not open to him." Consideration 20Those submissions are misconceived. The "powerful argument" said to be set out in [58] - [70] of the applicant's submissions does no more than to review the High Court decision in Muldrock and its effect on the decision in R v Way [2004] NSWCCA 131. It is expressed in general terms and has no direct application to any of the matters considered by the Court of Criminal Appeal in this matter. 21The assertion that "the Court of Criminal Appeal only reduced the sentence to a limited extent, again relying upon the important role to be played by the standard non-parole period referable to Count 3" is unsubstantiated. This is because the Court of Criminal Appeal made no reference to the standard non-parole period. There was no assertion, either implicitly or expressly, by the Court of Criminal Appeal that the standard non-parole period was determinative, nor did the Court of Criminal Appeal engage in a two stage sentencing process. 22What the Court of Criminal Appeal focused upon were errors in fact finding by the primary judge, which in turn resulted in an erroneous assessment of the objective seriousness of the offence in Count 3. There is nothing in Muldrock to suggest that the assessment of the objective seriousness of an offence is impermissible in a sentencing judgment. On the contrary, the High Court endorsed the importance of properly assessing the objective seriousness of an offence: "27 Section 54B(2) and s 54B(3) oblige the court to take into account the full range of factors in determining the appropriate sentence for the offence. In so doing, the court is mindful of two legislative guideposts: the maximum sentence and the standard non-parole period. The latter requires that content be given to its specification as "the non-parole period for an offence in the middle of the range of objective seriousness". Meaningful content cannot be given to the concept by taking into account characteristics of the offender. The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending." 23It follows from the above that "Muldrock error" has not occurred in the re-sentencing of the applicant by the Court of Criminal Appeal. Accordingly, I do not entertain any doubt or question as to the mitigating circumstances in the applicant's case. 24The application is refused.