Carrion v Regina

Court of Criminal Appeal (NSW)|2007-05-22|Before: McClellan CJ, Hislop J, Smart AJ, Clellan CJ

CITATION: Carrion v Regina [2007] NSWCCA 174

JUDGMENT OF: McClellan CJ at CL at 1; Hislop J at 2; Smart AJ at 25

DECISION: (1) Leave to appeal granted; (2) Appeal dismissed.

CATCHWORDS: Criminal law - Sentencing - Supplying prohibited drug (ecstasy) - Mental capacity - General deterrence - Sentence not manifestly excessive.

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985 - s 25(1)

Dinsdale v The Queen (2000) 202 CLR 321 Markarian v R (2005) 215 ALR 213 R v Bloomfield (1998) 44 NSWLR 734 CASES CITED: R v Bus (NSWCCA unreported 3 November 1995) R v Chong [2003] NSWCCA 274 R v Elchami (NSWCCA unreported 15 December 1995) R v Henry (1999) 46 NSWLR 346 R v Scognamiglio (1991) 56 A Crim R 81

PARTIES: Applicant - Jeffrey Carrion Respondent - Regina

COUNSEL: Applicant - Mr M. Thangaraj Respondent - Ms V. Lydiard

SOLICITORS: Applicant - Legal Aid Commission of New South Wales Respondent - Director of Public Prosecutions (New South Wales)

1 - IN THE COURT OF CRIMINAL APPEAL 2007/799

McCLELLAN CJ at CL HISLOP J SMART AJ

1 McCLELLAN CJ at CL: I agree with Hislop J. 2 HISLOP J: The applicant pleaded guilty to the offence of supplying not less than the indictable quantity of the prohibited drug 3, 4 - methylenedioxyamphetamine (ecstasy) contrary to the Drug Misuse and Trafficking Act 1985 s 25(1) ("the Act"). The maximum penalty for such an offence is 15 years imprisonment and/or 2,000 penalty units. 3 On 29 September 2006 the applicant was sentenced for that offence in the District Court to imprisonment by way of a non parole period of 12 months commencing on 29 September 2006 and expiring on 28 September 2007 and a parole period of 1 year 3 months commencing on 29 September 2007 and expiring on 28 December 2008. 4 The applicant has sought leave to appeal against sentence on the grounds that: (1) His Honour erred in finding that the applicant's mental capacity was of no relevance;

(2) The sentence was manifestly excessive. 5 The facts may be summarised as follows. On 28 April 2006 police conducted a drug dog operation at the Beverly Hills Hotel. Intelligence which had been received by the police stated that a male bearing the applicant's description was involved in drug supply at the hotel. Police arrived at the hotel prior to the execution of the drug dog operation and there spoke to the applicant. He told them he had walked to the hotel. Police noticed the applicant's car nearby. A drug detection dog searched the interior of the vehicle and indicated the presence of drugs. Police searched the vehicle by hand and found a packet of Tic Tacs secreted inside it. The packet contained 62 small white coloured ecstasy tablets. The tablets weighed 12.7 grams and had a purity of 38%. While police were searching the car the applicant received a message on his mobile phone "If at pub, fuck off, cops." The applicant was arrested and conveyed to Hurstville Police Station. Whilst there another message was received on his mobile phone which read "Can you get it now, need six." Police were of the opinion that the sender was placing an order for six tablets of ecstasy. 6 The applicant, in a record of interview, told the police that he had been given money by a group of 20 - 30 friends which he had used to purchase the tablets (at $30 each) with the intention they be used at a birthday party which was to be held in the following week. The applicant was not called to give evidence and requested the sentencing Judge accept as accurate his self serving statements to the police, probation officer and psychologist.

7 His Honour did not accept the applicant's account of how he came to be in possession of the drugs, how they were financed or how they were to be distributed. He believed the applicant lied to police in this regard and also that the second mobile phone message was placing an order for 6 tablets of ecstasy. 8 His Honour, in sentencing the applicant referred to the following subjective factors: (a) the applicant was born on 6 March 1961. He was the sole carer of his 21 year old daughter and two sons aged 13 and 14 and had been so for some 10 years. His Honour accepted the applicant was a caring parent who had endeavoured to ensure his children had a good upbringing. His Honour was acutely aware that incarceration would impact upon the children; (b) the applicant had engaged in various forms of paid employment including work as a storeman, trades assistant, labourer, courier and, after an apprenticeship, panel beater, before retiring from the workforce to care for his children. In mid 2006 he returned to the workforce obtaining part time employment as a welder;

(c) the applicant had exerted considerable efforts and sacrificed his own time to coach and encourage children in sporting pursuits; (d) the applicant had a criminal history involving minor offences with regards to drugs in 1985 and 1987. His Honour did not regard that history as being of significance for present purposes. Imprisonment for this offence would represent his first time in custody; (f) the psychologist, Mr Taylor, reported that the applicant had a low likelihood of recidivism and that he had an IQ of 75; (g) the applicant had entered a plea of guilty at the earliest opportunity and was entitled to a discount of 25 percent for the utilitarian value of the plea. 9 His Honour found special circumstances by reason of the applicant's prospects of rehabilitation and the fact it would be his first time in custody. 10 His Honour also had regard to the objective facts of the offence, that the applicant had approximately 10 times the indictable quantity of ecstasy, that the use of drugs had devastating consequences for many users, that the community had a rightful expectation that a person supplying drugs would be subjected to an appropriate penalty to reflect the community's disapprobation of such conduct and that, though the applicant could not be regarded as a major drug supplier, nevertheless any conduct involving the supply of drugs reflects really serious criminal conduct and must be deterred. His Honour concluded that a full time custodial sentence was the only appropriate penalty in this matter. Ground One - His Honour erred in finding that the applicant's mental capacity was of no relevance. 11 His Honour in his Remarks on Sentence said: Mr Taylor refers to his I.Q. when he has stated "His full scale I.Q. of seventy five is better than that for only approximately five percent of the people of his age. Mr Carrion's assessed current level of intellectual functioning is at the upper end of the mildly intellectually handicapped range".

I do not regard this assessment as being of relevance when considering the question of deterrence. This man had ample intellectual capacity to know exactly what he was doing and to realise the criminality of it. 12 The applicant submitted that his Honour erred: (a) in finding that the applicant's impaired level of intellectual functioning was not relevant when considering the question of general deterrence; and

(b) in affording no moderation at all in the consideration of general deterrence. 13 It is well accepted that in some cases of an offender suffering from a mental disorder or disability general deterrence is a consideration to which less weight should be given - R v Henry (1999) 46 NSWLR 346 at [253] - [254]. The rationale for this conclusion is that such an offender may not be an appropriate medium for making an example to others - R v Scognamiglio (1991) 56 A Crim R 81 at 86. However the significance of the offender's mental incapacity is to be weighed and evaluated in the light of the particular facts and circumstances of the individual case - R v Bus (NSWCCA unreported 3 November 1995). There is no general principle that a reduced intellectual capacity requires that less weight be given to considerations of general deterrence - R v Elchami (NSWCCA unreported 15 December 1995). 14 In this case there was no evidence that the applicant was suffering from a mental illness or disorder. He had engaged in employment in the community, was in the process of bringing up his 3 children and had involved himself in coaching and assisting local sporting teams. His Honour concluded the applicant had ample intellectual capacity to know exactly what he was doing and to realise the criminality of it. He was fully aware of the gravity of supplying prohibited drugs. As in Elchami "the relevance of the IQ to the mental capacity of the applicant so far as relevant to the commission of the present crime" was not accepted. 15 In my opinion his Honour's findings were open to him and justified him affording no moderation in the consideration of general deterrence. I reject this ground of appeal.

Ground Two - The sentence was manifestly excessive 16 The applicant submitted that given the nature of the offence, the applicant's mental condition, the situation regarding the applicant's family, the applicable sentencing statistics and the applicant's antecedents, the sentence was manifestly excessive and, as such, some lesser sentence was warranted at law. 17 The applicant referred to Judicial Commission of NSW statistics which revealed that 75 percent of offenders under s 25(1) of the Act who had supplied less than the commercial quantity of ecstasy were not sentenced to full time imprisonment. It was submitted that as the applicant had 12.7 grams of ecstasy and s 25(1) included a supply of up to 125 grams the applicant was not within the worst 25 percent of cases. It was further submitted that 83 percent of offenders who were charged with only one count to which they pleaded guilty did not receive a full time custodial sentence. 18 In evaluating a sentence the Court may have regard to statistics such as those provided by the Judicial Commission of New South Wales. However, as the sentence to be imposed depends on the facts of each case, bald statistics are of limited use - R v Bloomfield (1998) 44 NSWLR 734 at 739. Greater assistance may be afforded by reference to decided cases, which enable some regard to be had to the details of the specific circumstances. 19 Thus, in the present case, the Crown referred the Court below to R v Chong [2003] NSWCCA 274. In that case this Court reduced a sentence to 3 years with a non parole period of 18 months in circumstances where the offender had 92 ecstasy tablets weighing 27.8 grams, where he was aged 55 years had pleaded guilty promptly and gave full assistance to the authorities, had a history of drug use, a good employment history, was of prior good character, this was his first time in custody and there was a need for supervision and rehabilitation. The offender told police he had purchased the tablets from funds supplied by friends who were to use the drugs at a party. He did not give evidence at the sentence hearing and the sentencing Judge did not accept the accuracy of his explanation to the police. 20 In Markarian v R (2005) 215 ALR 213 at [27] the High Court said: [27] The judgment is a discretionary judgment and, as the bases for appellate review reveal, what is required is that the sentencer must take into account all relevant considerations (and only relevant considerations) in forming the conclusion reached. As has now been pointed out more than once, there is no single correct sentence. And Judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies.

[28] It [is] necessary for [the applicant] to show error in the sentence passed below - either specific error or manifest [excessiveness] … a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. 21 In this case the applicant asserts that the sentence was manifestly excessive. He must establish upon the facts that the sentence was "unreasonable or plainly unjust" - Dinsdale v The Queen (2000) 202 CLR 321 at 325. 22 In my opinion his Honour took into account all relevant considerations in reaching his conclusion as to the appropriate sentence. That conclusion, in my opinion, was open to him in the proper exercise of his sentencing discretion. It properly reflected the objective and subjective features of the case. It was consistent with the factually similar case of Chong. The sentence was neither unreasonable nor plainly unjust. 23 In my opinion the applicant has not demonstrated error on the part of the sentencing Judge or that the sentence was manifestly excessive and such that some other sentence, less severe, was warranted in law and should have been passed. 24 I propose the following orders: (1) Leave to appeal granted;

25 SMART AJ: The facts are summarised in the judgment of Hislop J. The applicant's account in his record of interview as to how he came to have 62 ecstasy tablets in his possession defies belief. It could be safely inferred that the offence was not an isolated one and that the applicant was running a small ecstasy tablet supply business from a local hotel and elsewhere to supplement his limited income from the Centrelink Parenting Payment. 26 The applicant was the sole carer for his 21 year old daughter and his two sons who were aged 14 and 13 in September 2006. It is unlikely that the parenting payment would continue while the applicant was in custody and reasonably obvious that these children would have to try and survive on the daughter's income and any limited payments received for her two younger brothers from the Government. 27 Notwithstanding the number of tablets, they weighed 12.7 grams in total. 28 The first ground of appeal challenges this passage in the sentencing judge's remarks: "Mr Taylor (the psychologist) refers to his IQ when he has stated 'His full scale IQ of seventy five is better than that for only approximately five per cent of the people of his age. Mr Carrion's assessed current level of intellectual functioning is at the upper end of the mildly intellectually handicapped range.' I do not regard this assessment as being of relevance when considering the question of deterrence. This man had ample intellectual capacity to know exactly what he was doing and to realise the criminality of it." 29 The applicant submits that the judge erred when he held that this assessment was not of relevance when considering the question of deterrence. The judge explained that he took this view because, in his opinion the applicant had ample intellectual capacity to know exactly what he was doing and to realise the criminality of it. 30 In Bus & AS (CCA unrep 3/11/95) Hunt CJ at CL with whom Grove and Allen JJ agreed, held that when sentencing an offenders it was relevant to take into account limited intellectual capacity, little insight into the offending behaviour and little judgment or impulse control. The offender's shortcomings need not amount to a mental disorder or abnormality. The significance of the offender's mental incapacity is to be weighed and evaluated in the light of the particular facts and circumstances of the individual case. Hunt CJ at CL said: "The full understanding of the authority and requirements of the law which is attributed to the ordinary individual of adult intellectual capacities cannot be expected of a person whose intellectual functioning is insufficient to have that understanding. The means by which the courts give effect to that principle (as an instrument of social administration) is to moderate the consideration of general deterrence to the circumstances of the particular case. But, if the offender acts with knowledge of what he is doing and with knowledge of the gravity of his actions, the moderation need not be great." 31 There was evidence from which the judge could infer that the applicant knew that selling or supplying ecstasy tablets was wrong. This is a case where the moderation of the sentence should be small because of the applicant's limited intellectual capacity, namely "at the upper end of the mildly intellectually handicapped range." However, in my opinion, it was incorrect for the judge to hold that the applicant's intellectual handicap was not of relevance when considering the question of deterrence. Such a handicap is likely to affect the offender's assessment of his conduct. 32 I would also uphold the second ground of appeal on which the sentence is challenged, namely, that it was manifestly excessive. In my opinion, the sentence imposed was unreasonable. 33 The offence was a reasonably serious one but the sentence imposed does not give effect to the strong subjective features of the applicant and is out of line with the general pattern of sentencing in this State for like offences. The NSW Judicial Commission Statistics reveal that 75 per cent of offenders under s 25(1) of the Drug Misuse and Trafficking Act 1985 (the Act) who had supplied less than the commercial quantity of ecstasy (125 grams) were not sentenced to full time imprisonment. As the applicant had 12.7 grams of ecstasy it is unlikely that he was within the worst 25 per cent of cases. Further, 83 per cent of offenders who were charged with but one count to which they pleaded guilty did not receive a full time custodial sentence. While the Court does not have the facts of the particular cases and these are of major importance, the sentence imposed in the present case involves a departure from the pattern and level of sentencing in cases for offences under s 25(1) of the Act. 34 The subjective features include: (a) The applicant pleaded guilty at the earliest opportunity. The judge held that he was entitled to the full discount of 25 per cent. (b) The applicant had never been to prison before. (c) He had no relevant prior convictions. The applicant had one recent conviction and that was for a driving offence (PCA - low level). Correctly, the judge did not take into account some old convictions and the driving offence. (d) The applicant had over the previous ten years devoted himself to bring up his three children as their sole carer. The two boys were of an age where they needed their father. (e) The applicant had assisted with the sports training of his and other children. 35 In my opinion the sentence imposed was manifestly excessive. 36 This is not a case where no other sentence was warranted in law. 37 I agree with the judge that there were special circumstances. There are at least reasonable prospects of rehabilitation and with the applicant's limited intellectual capacity he will benefit from extended supervision. 38 The applicant should be re-sentenced. I take into account the affidavit of 11 May 2007 of the applicant and that of 15 May 2007 of his daughter. The applicant works in the kitchen of the gaol where he is being held. He has completed some life management courses and is in courses teaching job skills. His personal development has been assessed as very good and his industry performance as good. He needs and accepts direction and works well under supervision; he takes pride in his work. He works well as part of a team. While he found work as a cook hard, he did not quit. He requested to return to the plating room. The applicant's need of supervision is probably a reflection of his limited intellectual capacity. 39 The applicant's daughter has been the sole carer for her two younger brothers since the applicant's gaoling. She has a full time her starting hours ranging from 8am to noon and her latest shift finishing at 8pm. She has not been able to obtain help from any of the many welfare agencies she has approached. She says that being the "new" parent has taken its toll on her. She suffers from depression and is sick from stress to the point where she cannot work or is in bed for days at a time. She suffers insomnia. Dr H Basta has referred her to a psychologist for counselling, noting that she "is suffering from insomnia and has been stressed out looking after 2 younger brothers" 40 The daughter has had to defer some studies. No details were supplied. While there must be sympathy for the daughter's plight the matters mentioned while amounting to hardship probably do not amount to exceptional hardship. 41 Having regard to the objective seriousness of the offence and the applicant's subjective features he should be re-sentenced. I propose the following orders: 1. Leave to appeal against sentence granted. 2. Appeal against sentence allowed. Sentence quashed. 3. In lieu of the sentence imposed the applicant is sentenced to a non-parole period of 9 months commencing on 29 September 2006 and ending on 28 June 2007 and a balance of term of 9 months commencing on 29 June 2007 and ending on 28 March 2008. Direct that the applicant be released on parole on 29 June 2007. The conditions of parole should provide for the applicant's supervision by the Probation and Parole Service and for the applicant to comply with the reasonable directions of that Service. **********

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