Byrne v R

Court of Criminal Appeal (NSW)|2015-05-25|Before: Hoeben CJ, Hidden J, Adams J

Solicitors: SE O'Connor - Legal Aid NSW (applicant) C Hyland - Solicitor for Public Prosecutions (respondent Crown) File Number(s): 2013/45039 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 12 May 2014 Before: Maiden DCJ File Number(s): 2013/45039

Judgment

HOEBEN CJ at CL: I agree with Hidden J.
HIDDEN J: The applicant, Christopher Anthony Byrne, pleaded guilty in the District Court to a charge of supplying an indictable quantity of heroin and another of supplying an indictable quantity of methamphetamine. Each is an offence under s 25(1) of the Drug Misuse and Trafficking Act 1985, carrying a maximum sentence of imprisonment for 15 years. In addition, there were taken into account on a Form 1 offences of dealing with the proceeds of crime (s 193C(1) of the Crimes Act 1900) and conducting drug premises (s 36Z(1)(a) of the Drug Misuse and Trafficking Act).
On each count the applicant was sentenced to imprisonment for a fixed term of 9 months, dating from the date sentence was imposed, 12 May 2014. He sought leave to appeal against those sentences. On 25 May 2015, this Court granted leave to appeal, allowed the appeal and, taking into account the Form 1 matters, sentenced him on each count to imprisonment for a fixed term of 7 months, commencing on 25 October 2014 and expiring on 24 May 2015. Accordingly, the sentence expired on the day before the application was heard. These are my reasons for joining in those orders.

Facts

The facts can be summarised briefly. The applicant and his partner, Lindsie Grice, were subjects of a police investigation into the supply of prohibited drugs in the Newcastle area. Investigations revealed that they were obtaining large quantities of prohibited drugs through associates in Sydney, whom they would meet in secluded bushland area on the Central Coast. They would then sell the drugs to customers in Newcastle, making arrangements for the transactions by coded mobile telephone calls.
On 30 January 2013, police executed a search warrant at their Mayfield home and seized a quantity of methylamphetamine, heroin and cash, together with drug paraphernalia and numerous mobile phones. Police also observed exceptional security measures added to the doors and windows of the house to prevent forced access. It was the finding of the drugs and the other items, together with the security measures, which led to the charge of conducting drug premises on the Form 1. The charge of dealing with proceeds of crime on the Form arose from the finding of $650 cash in the applicant's jeans pocket, for which he could give no satisfactory account.
In due course, the applicant and Ms Grice each pleaded guilty in the Local Court to the charges of supplying heroin and methylamphetamine, which were representative of dealing in those drugs over a period between September 2012 and January 2013 in respect of the heroin, and October 2012 and January 2013 in respect of the methylamphetamine.
During the search on 30 January 2013, Ms Grice surrendered to police a pistol and ammunition, which she admitted having purchased for her protection. That led to her also being charged with possessing an unauthorised pistol, contrary to s 7(1) of the Firearms Act 1996, carrying a maximum sentence of 14 years imprisonment and a 3 year non-parole period. She also had charges of conducting drug premises and dealing with the proceeds of crime taken into account on a Form 1, together with two further offences under the Firearms Act, possessing ammunition without a licence and not keeping a firearm safely.
The applicant and Ms Grice were dealt with together in the District Court. Ms Grice was sentenced to an intensive corrections order for 18 months.

Subjective case

Given the facts of this matter, the sentence passed upon the applicant in the District Court, and in this Court, may seem surprisingly lenient. However, the applicant made out a strong subjective case, which also need only be sketched briefly.
He was 37 years old at the time of the offences, and is now 40. He had a criminal history in Queensland, comprising mainly offences of dishonesty and some drug offences, committed between 1991 and 2004. He had a very disturbed background, which I need not recount, and commenced using illicit drugs at the age of 16.
In 2004, in Queensland, he commenced his relationship with Ms Grice. He continued using drugs, but otherwise his pattern of offending ceased. They had two children, and moved to New South Wales. The Department of Community Services removed the children because of his drug use and that of Ms Grice. Put shortly, the circumstances of the present offences arose from their being unable to secure the restoration of the children to them despite his abstaining from drugs for a period and undergoing drug counselling. He and Ms Grice became heavily involved in drug abuse, and committed the offences primarily to support their habit.
After being in custody for 4 months as a result of his arrest for these offences, the applicant was released on bail to enter the rehabilitation program at Bennelong's Haven Family Rehabilitation Centre. By the time he was sentenced in the District Court, he had spent 11 months in that program and had made excellent progress. He was described in a report from that centre as having a very positive attitude to rehabilitation, as being well regarded by staff and others at the centre, and as being helpful to new residents. Ms Grice also undertook the course, and both of them attended a parenting program. At the time of sentence she was pregnant with their third child.
In his remarks on sentence the sentencing judge clearly saw the applicant's progress to rehabilitation as a central issue in the case. His Honour had imposed an intensive corrections order upon Ms Grice immediately before dealing with the applicant but, taking the view that the applicant was "effectively the controller" of the drug supply operation, he concluded that considerations of deterrence called for a full time custodial sentence in his case.
After serving 3 months of his sentence (in round figures), the applicant was granted bail pending the hearing of his application for leave to appeal. Accordingly, at the time the application was heard he was at liberty, having served 7 months of the 9 month term imposed upon him.

The application

Counsel for the applicant, Ms Cox, challenged the sentence on several grounds. Among these was a ground that, notwithstanding the seriousness of the offending which would normally justify a full time custodial sentence, his Honour failed to consider the option of an intensive corrections order in his case. Reliance was placed upon the decision of this court in EF v R [2015] NSWCCA 36, handed down after the applicant had been sentenced. Another ground challenged the disparity of the sentences passed upon the applicant and Ms Grice. These grounds raised matters of substance, which were the subject of written submissions by Ms Cox and the Crown prosecutor in this court.
However, there was another ground which the Court was satisfied must succeed and which enabled the application to be dealt with in a fair and practical manner. The ground was that, in directing the sentence to commence on the day it was passed, his Honour failed to have regard to the 4 month period of pre-sentence custody.
There is no doubt that his Honour was made aware of that period of custody in the proceedings on sentence, which were conducted on 13 March 2014. Sentence was not passed until 2 months later because, in the meantime, a report on the availability of an intensive corrections order for Ms Grice was required. In his remarks, which were brief, his Honour made no reference to the pre-sentence custody.
In Kaminic v R [2014] NSWCCA 116, Fullerton J, with whom Ward JA and Hamill J agreed, said at [32]: "Section 24 of the Crimes (Sentencing Procedure) Act 1999 (NSW) provides that in sentencing an offender the Court must take into account pre-sentence custody. This Court has held that the preferable or desirable approach, and one that is regularly adopted, is to backdate the sentence imposed by a period equivalent to the pre-sentence custody. In Wiggins v R [2010] NSWCCA 30, Howie J (with whom McClellan CJ at CL and Harrison J agreed) citing R v English [2000] NSWCCA 245, said that the desirability of that approach did not translate into a mandatory requirement that it be adopted in every case although where that approach was not taken the reason for not doing so should be clearly stated."
The Crown prosecutor in this Court fairly acknowledged that there was nothing "clearly stated" by his Honour in the present case to demonstrate that the period of pre-sentence custody had been taken into account. Nor was it open to infer that in some unspecified way it was. It appeared that his Honour had simply overlooked the matter.
For this reason the Court reduced the sentence to 7 months, in recognition of the period the applicant had already served, backdating it so as to expire on the day before the hearing of the application and ensure that he did not have to return to custody.
ADAMS J: I agree with Hidden J.

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