Caristo v R

Court of Criminal Appeal (NSW)|2010-12-17|Before: Giles JA, Adams J, Hulme J, Mr J

Judgment 1GILES JA: I agree with R A Hulme J. 2ADAMS J: I agree with the judgment of R A Hulme J and with his Honour's proposed orders except for the refusal of leave to appeal. 3A person who has been convicted is required to obtain leave before being able to appeal against his or her sentence, as provided by s5(1)(c) of the Criminal Appeal Act 1912. Since applications for leave to appeal are always determined after full argument on the merits of an appeal, there are (rightly) no practical legal or other consequences following from a refusal of leave except, possibly, that the Court may retain its jurisdiction to hear and determine a subsequent appeal against the same sentence. If an appeal were unarguable or frivolous, it may be that leave should be refused but, in my respectful view, it is preferable to state such a view of the merits rather than make an empty order. Moreover, in this matter, the Crown did not seek that leave to appeal should be refused and, not surprisingly, no submissions on the point were made by Odgers SC for the applicant. With respect, I do not agree that such an order should be made on the Court's own motion. 4R A HULME J: On 23 October 2009 the applicant was sentenced in District Court by her Honour Judge Tupman for two offences of knowingly taking part in the manufacture of not less than the large commercial quantity of a prohibited drug. One charge related to the drug known as ecstasy and the other related to cocaine. 5The offences are contrary to s 24(2) Drugs Misuse and Trafficking Act 1985. The maximum penalty is imprisonment for life and/or a fine of $550,000. There is also prescribed under the Crimes (Sentencing Procedure) Act 1999 a standard non-parole period of 15 years. 6The applicant asked that the judge take into account his guilt in respect of a further offence listed on a Form 1 document, the offence being there described as "participate in criminal group". It was taken into account in relation to the ecstasy offence but her Honour indicated that it did not warrant any increase in the sentence. 7The sentence imposed for the ecstasy offence was one of eight years six months, with a non-parole period of six years, with effect from 20 April 2007. A concurrent sentence of six years six months, with a non-parole period of four years four months, was imposed for the cocaine offence. Accordingly the overall sentence was one of eight and a half years with a non-parole period of six years. 8The applicant seeks leave to appeal but on a single ground which is confined to the length of the non-parole period imposed in respect of the ecstasy offence.

Facts 9Given the limited scope of the appeal it is unnecessary to set out much in relation to the detail of the two offences. They both involved activities carried out by the applicant in conjunction with others, and at the behest of others, in the course of preparing ecstasy and cocaine for distribution. In her remarks on sentence, after reciting the facts in detail, the judge expressed these conclusions about the ecstasy offence: "From these facts I accept that the offender on 19 April went with others to collect a quantity of ecstasy from the unit at Balmain which he put into the red bag and took to the factory premises at Kingsgrove. Whilst the facts are silent as to detail, I accept that the [ecstasy] he took to Kingsgrove was in powder form. I accept that he undertook some activity overnight to mix some of that powder so that it could be pressed into ecstasy tablets, but that was to be done by another. In any event I accept that it was his overall intention and role in this manufacturing business to mix the ecstasy powder with bulking agents and other substances so that another person in the enterprise could then press them into tablet form. That it would appear from the agreed facts was also his intention in relation to the 12.910 kilograms of ecstasy which remained at Rozelle and was located in the containers there". 10Her Honour then remarked that the applicant was stopped by police before he had completely fulfilled his intended role. She noted that it was common ground that the role played by the applicant was as a "mixer and employee within this organisation". 11In relation to the cocaine offence the judge noted that it related to six kilograms of cocaine that had been found at a unit in Balmain. There was no indication in the statement of agreed facts of the applicant having done anything in relation to it prior to his arrest. However it was common ground that it was intended that he would mix the cocaine with other substances in order to "bulk it up and subsequently have it available for supply". 12The judge accepted that the applicant's role was "very much towards the bottom of the scale". She accepted the concession by the prosecutor that the applicant should be viewed as "an employee of those much higher up in this organisation". She was satisfied that he was not a principal and that his involvement was limited to activity on two days, 19 and 20 April 2007. Whilst there was nothing in the agreed facts on the subject, the judge said that she was prepared to infer that the applicant would have expected to be paid for undertaking his task.

Subjective features 13The judge noted that the applicant was aged 41 at the time of sentence, having been 39 at the time of the offence. She described him as having a very lengthy criminal history, although she noted that there was only one drug supply matter in the past. The applicant had received punishments in various forms including full-time imprisonment. 14The applicant had what was described as a difficult and dysfunctional upbringing. He left school at the age of 14. It was at that age that conflict between his parents apparently reached a point where his mother shot at his father and she was charged with conspiracy to murder him. She was eventually acquitted in respect of that charge. That fact, however, contributed to a number of difficulties experienced by the applicant in his teenage years including being bullied at school. His parents divorced following that event and the applicant remained with his mother. 15He obtained employment with a relative after leaving school and although he had worked in number of different industries he had what the judge described as a "good work record" and she noted that he was capable of hard work. 16The applicant had a very long standing substance addiction dating back to his early teens. It appears that he was consuming alcohol from an early age and then commenced to use cannabis from about the age of 16. He was smoking cannabis on a daily basis until his mid 20's. The report of Mr Tim Watson-Munro, psychologist, which was before her Honour set out the history of substance abuse. The applicant had used cannabis, ecstasy, cocaine and other stimulants such as LSD. Mr Watson-Munro noted that the applicant had not received much, if any, treatment over the years in respect of his substance abuse issues. 17In addition to the negative impacts of substance abuse there were signs of cognitive and psychological impairment. The applicant had experienced head trauma on a number of occasions from events such as assaults and motor vehicle accidents. An MRI scan carried out in 2004 by a neurologist revealed signs of early frontal atrophy, the significance of which was uncertain. The scan was otherwise normal. Nonetheless there was a medical report from 2004 that was considered by Mr Watson-Munro, and which was before her Honour, that indicated that cognitive impairment was likely. 18The following statement extracted from the opinions expressed at the conclusion of Mr Watson-Munro's report succinctly sets out the most salient matter for consideration: "It would hence appear that in many ways a " perfect storm " of clinical issues have converged with this man, inclusive of underlying psychogenic problems, possible brain damage and the aggravating impact of protracted substance abuse over the years which in turn have had a dramatic impact upon his judgement, impulse control and decision making". 19In the final paragraph of this report the applicant was described as presenting "as a difficult treatment proposition", although Mr Watson-Munro identified some positive aspects such as a stable employment history and the strong support he enjoyed from his fianc who had confirmed her strong commitment to him.

Ground - The sentencing judge erred in the determination of the ratio between the non-parole period and the head sentence in respect of count 1. 20The learned sentencing judge made a finding of special circumstances pursuant to s 44(2) Crimes (Sentencing Procedure) Act which justified the imposition of a non-parole period for the ecstasy offence which was less than 75 per cent of the total sentence for that count. 21Mr Odgers SC on behalf of the applicant submitted that the degree by which the non-parole period was reduced "failed properly to reflect the finding of special circumstances". It was contended that the finding was based upon a number of considerations, including:

the applicant's dysfunctional upbringing;
physical and emotional abuse by his mother;
longstanding substance addiction emanating from early teens;
serious psychological difficulties and symptoms of organic brain injury;
cessation of drug use since going into custody following arrest in April 2007; and
persistent high level anxiety, depression, despair and low self esteem. 22The judge accepted that the applicant would need supervision in the community following release. This was: "to ensure that his complex psychological makeup does not lead to a relapse into drug use and therefore increase the possibility of committing offences. This supervision should be for a relatively lengthy time because of the long term nature of his psychological problems and their complexity". 23Her Honour found that the applicant's prospects of rehabilitation were "reasonably good" but noted that this was to a large extent dependent upon his ability to avoid relapsing into the use of prohibited drugs. She considered that supervision in the community for "a relatively lengthy period" would assist in that regard. 24Her Honour first determined that a sentence in respect of the ecstasy offence of 8 years 6 months was appropriate. This was the result of a reduction of 35 per cent from the sentence of 13 years that she would have regarded as appropriate if not for the applicant's plea of guilty and some assistance he had provided. 25Her Honour then announced: I find special circumstances, mainly the fact that his psychological condition requires supervision outside the gaol for a longer than normal period to ensure his rehabilitation, however for not much more than the statutory parole period would be. I propose a non-parole period of six years with a parole of two and a half years. 26Principles applicable to the setting of the non-parole period of a sentence under s 44 Crimes (Sentencing Procedure) Act are well settled and only brief reference is required. The following is not intended to be exhaustive. 27The non-parole period is the minimum period of actual incarceration that the offender must spend in custody having regard to all the elements of punishment, including rehabilitation, the objective seriousness of the offence and the offender's subjective circumstances: Power v The Queen [1974] HCA 26; 131 CLR 623 at 627-629; R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59]; R v Cramp [2004] NSWCCA 264 at [34]. 28A finding of special circumstances is a discretionary finding of fact in respect of which this Court will be slow to intervene: Jiang v R [2010] NSWCCA 277 at [83]. 29"As a practical matter there are unlikely to be many cases in which this Court will interfere unless the non-parole period is found to be manifestly inadequate or manifestly excessive": R v Fidow [2004] NSWCCA 172 at [19]; R v Cramp at [36]. 30Simply because there are circumstances which are capable of constituting special circumstances, the court is not required to make such a finding and reduce the non-parole period: R v Fidow , above, at [22]. 31The degree or extent of any adjustment of the "statutory ratio" is a matter for the discretion of the sentencing judge: R v Cramp , above, at [31]; Trad v R [2009] NSWCCA 56 at [33]. 32Written submissions on behalf of the applicant include references to cases which discuss the relevance of concepts of mercy and rehabilitation to the question of setting the minimum term of a sentence: for example, Morgan & Morgan v R (1980) 7 A Crim R 146; and Bugmy v R [1990] HCA 181; 169 CLR 525. The passages relied upon in those judgments do not relate to appellate consideration of the discretionary decision made at first instance. 33There have been many cases in which a finding of special circumstances has been made but this Court has concluded that the effective sentence imposed does not, either at all, or sufficiently, reflect that finding in the alteration of the statutory ratio. A number of cases in which this has occurred are cited in the judgment of McClellan CJ at CL in Fina'i v R [2006] NSWCCA 134 at [31] to [40]. 34One case of this type relied upon by the applicant is R v Sutton [2004] NSWCCA 225. In that case the total term was 6 years 6 months and the non-parole period was 4 years 6 months. Howie J referred to the non-parole period as being about 70 per cent of the total term which, on his calculation, meant a reduction of 3 months from what would otherwise have been the non-parole period absent the finding of special circumstances. This, he said (at [30]), "rather makes a mockery of a finding of special circumstances in response to the need his Honour found for extended supervision and counselling". 35In the present case the non-parole period is 70.6 per cent of the total sentence. The reduction from a non-parole period that would be 75 per cent of the total term amounts to 4.5 months. The important distinction, however, is that it is not apparent in Sutton that the sentencing judge said anything to indicate that he realised that the extent by which the non-parole period represented a departure from the statutory norm was as short as it was. In other words, it may well have been inadvertence or miscalculation that led to a non-parole period that was more than was intended by the finding of special circumstances. In the present case, the length of the non-parole period was precisely what the judge intended. 36Where this Court has intervened, it has usually been the case that the sentencing judge has not given effect to a finding of special circumstances through inadvertence or miscalculation. Often this has occurred where sentences have been accumulated but it has occurred in single sentencing exercises as well. 37There was no inadvertence or miscalculation in the present case. The sentence judge explicitly stated that she was satisfied that there should be some increase in the parole period on the sentence for the ecstasy offence because a longer period of supervision following release from custody was required. However, she also specifically stated that the increase she proposed would not be "much". 38Mr Odgers referred in written submissions to what he termed the "norm" for non-parole periods in respect of Commonwealth offences being about 60 to 66 and 2/3 per cent of the total term: R v Bernier (1998) 102 A Crim R 44 at 49; Murphy v R [2007] NSWCCA 18 at [16] - [25]. He submitted that for State offences, where there are special circumstances justifying an increase in the proportion of the sentence represented by the parole period, "it would usually be appropriate to impose a parole period which reflected the norm for Commonwealth sentences". 39This submission lost some of its force with the recent decision of the High Court of Australia in Hili v The Queen; Jones v The Queen [2010] HCA 45 where it was held (at [44]) that (in respect of Commonwealth offences) there should be no "norm" and that "a sentencing judge should determine the length of the sentence to be served before a recognizance release order takes effect by reference to, and application of, the principles identified by this Court in Power [above], Deakin [[1984] HCA 31; (1984) 58 ALJR 367] and Bugmy [above]." 40Acknowledging this recent authority, Mr Odgers put in oral submissions that if a sentencing judge determines that it is appropriate to make a finding of special circumstances, although from that point the judge should be guided by general sentencing principles, nevertheless, regard should be had to the approach adopted by judges generally upon making such a finding. This would entail a recognition that often in such a case the non-parole period will be in the proportions that have been spoken of in the past in relation to Commonwealth sentences. 41It is trite that sentencing judges must be guided by general sentencing principles but beyond that, I do not believe anything more needs to be said on the subject. The factual situations confronting a judge who has made a finding of special circumstances are so variable that no generalised proposition would suit every situation. To offer an obvious example, a non-parole period that is 50 per cent of the total term might be considered appropriate in a case where the total term is 2 years when it is felt necessary to allow for a 12 month period of parole. But it is almost impossible to imagine 50 per cent being appropriate where the total term is 20 years so as to allow for a 10 year parole period. Further, the total term of the sentence is but one of almost infinite considerations that may potentially be relevant. 42This brings me to the point that the focus should not be solely upon the percentage proportions that the non-parole and parole periods bear to the total term. The actual periods involved are equally, and probably more, important. In the present case the judge's sentencing order allows for a potential period on parole of 2 years 6 months. There was no evidence before the judge that required a conclusion that this was insufficient to meet the purposes for which the judge found special circumstances. 43Towards the conclusion of his oral submissions Mr Odgers put it that in the present case there was a "powerful justification" for a parole period of 3 years and that such a period would have been appropriate. Intervention by this Court to give effect to such a submission would entail a disregard of the sentencing discretion reposing in the judge at first instance. Moreover, a 6 month adjustment to the non-parole and parole periods, where the sentence is one of 8 years 6 months, would simply amount to tinkering. 44The sentencing judge did not act upon wrong principles, fail to take into account any relevant matter, mistake the facts or arrive at a result that was unreasonable or plainly unjust. In my view there was no error in the manner in which she exercised her discretion. 45I am of the view that there is no merit in the application.

Amendments 07 April 2011 - Omissions. Amended paragraphs: Coversheet, [2], insert new paragraph after [2] 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: 07 April 2011

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