Chiarlini v R

Court of Criminal Appeal (NSW)|2023-08-31|Before: Ward P, Harrison J, Dhanji J

JUDGMENT

WARD P: I agree with Dhanji J.
HARRISON J: I agree with Dhanji J.
DHANJI J: The applicant, Carlos Matias Chiarlini, seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed on him by Turner DCJ in the District Court at Sydney on 15 December 2022.
The applicant pleaded guilty in the Local Court to a single offence of knowingly take part in the supply of not less than a large commercial quantity of methylamphetamine, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The maximum penalty for the offence is life imprisonment and the standard non-parole period is 15 years.

Factual background

The factual background was summarised by Turner DCJ in her Honour's sentencing remarks: "On 19 August 2021 at 10.30 am the offender rented a silver Honda Jazz from the Car Next Door vehicle hire in Bondi Beach. The vehicle was hired using the offender's name, residence, mobile number, date of birth and his Buenos Aires drivers licence. At 12.19pm CCTV footage captured the offender driving into the Rhodes shopping centre car park and then entering the shopping centre holding a large Australia Post cardboard parcel box. At 12.30pm CCTV captured the offender withdrawing cash from an ATM whilst still holding that box. He was wearing a black T-shirt with a white motif, black sports shorts, white Nike shoes with a black tick, white long length socks with red stripes and a cream bag with a single red Frequent Flyer strap. At 12.33pm the offender purchased sticky tape using a $50 note from a newsagency within the shopping centre. He borrowed scissors and spent about five minutes taping up the Australia Post parcel box. About ten minutes later at 12.48pm the offender attended the Australia Post shop within the shopping centre and handed the parcel box to a staff member. He was captured on CCTV waiting in the line at the post shop and the tattoos on each of his arms were visible. The offender paid $15.75 for the postage to Barry Clapham of 15 Deague Court, North Perth, Western Australia, 6066. At 12.57pm the offender returned to the shopping centre car park. He drove out of the car park in the rented silver Honda Jazz and at 4.09pm the offender returned the hire vehicle back to Bondi. DELIVERY OF THE PARCEL TO WESTERN AUSTRALIA On 24 August 2021 Australia Post delivered the parcel box to the post office in Malaga, Western Australia. The parcel was intercepted and examined by detectives from the Western Australia police force. The parcel contained two smaller boxes, each small box contained red foam and two cryovac bag packages and each cryovac bag contained three plastic bags. A total of 1.978 kilograms of methylamphetamine was found in the three plastic bags. The purity of the parcels ranged between 74 to 76%. The street value of the drugs was $360,000. SEARCH WARRANT AT THE OFFENDER'S ADDRESS On 6 October 2021, New South Wales Police executed a search warrant upon the offender's residence at unit ... The offender was cautioned and arrested. The offender was shown a still image from the CCTV footage at Rhodes newsagency. The offender said he recognised himself in the still image due to his tattoo. During the search warrant the police seized [inter alia, $10,850 Australian dollars in two piles tied with elastic bands, an I-phone, and an encrypted Samsung mobile telephone]. The offender told police that he owned the iPhone. He told police he did not know who owned the encrypted Samsung phone and stated it was in the apartment when he moved in, and that it could not be turned on and that he did not know what the device's password was. The device was turned on when police picked it up and the password to the device was recorded in the note section of his iPhone as "The password is Samsung1234$." ARREST The offender was then taken to Waverley Police Station. He spoke with a legal representative before agreeing to participate in an electronically recorded interview. During the interview the offender: declined to comment on who owned the encrypted Samsung mobile phone, declined to acknowledge who the male was when shown the CCTV from the Rhodes newsagency, denied remembering he had post the parcel, stated that he had never used hire or rental cars for himself and stated that he had saved $20,000 in cash over the past three years and that cash was not in his bank account."
In the context of her Honour's reference to the weight of the drug it is relevant to note the threshold for a large commercial quantity of methylamphetamine is (and was) 500g.

Proceedings on sentence

The proceedings on sentence were conducted on 15 December 2022.
The Crown bundle contained the notice of committal, the charge certificate, a Form 1 signed by the offender dated 13 October 2022, two court attendance notices, a statement of agreed facts, the applicant's criminal and custodial history, and a sentencing assessment report dated 27 October 2022.
Tendered on behalf of the applicant was a report of psychologist, Mr Sam Albassit, a letter to the Court from the applicant, four character reference letters, a schedule of the dates on which the applicant was subject to a "lock-in" at the MRRC from October 2021 to August 2022, together with various letters, reports, case notes, and certificates establishing the applicant's exemplary conduct in custody.
The applicant and the Crown also provided written submissions.
The applicant's material on sentence, in particular the report of Mr Albassit, established that the applicant had a childhood that was "abusive, displaced, and traumatic". Mr Albassit reported that the applicant witnessed family violence perpetrated by his father on his mother, and experienced psychological and physical abuse by his father, including an occasion where his father pointed a gun at the applicant and his mother and sister, before firing the gun at the floor and yelling "I don't give a shit about you". Mr Albassit reported that the applicant suffered further trauma when he was carjacked at knifepoint and robbed whilst a gun was pointed in his face and again, about a year later, when he was again robbed at gunpoint.
The applicant finished high school and attended university, where he studied accounting and law, before commencing work in various accounts departments and as a law clerk. Mr Albassit reported that, following the further trauma suffered by the applicant, referred to above, he moved to Barcelona, then Sweden for a short period of time, before moving to Australia on a student visa.
Mr Albassit stated that, while in Australia and in the lead up to the offending, the applicant became unemployed as a result of the COVID-19 pandemic and was isolated in Australia as he did not have family and friends to support him in the country. The applicant told Mr Albassit that he became involved with anti-social people around that time who helped him with rent and bills where necessary and, as a result, he felt like he "owed" them, leading to his criminal offending.
Mr Albassit reported that the applicant's symptomatology was consistent with a dual diagnosis of Post-Traumatic Stress Disorder and Generalised Anxiety Disorder and opined that "there is a direct and significant correlation between the applicant's offending behaviour and his ongoing and chronic psychiatric/psychological conditions".
In his letter to the Court, the applicant stated that he is "truly sorry and ashamed of [his] careless and selfish actions", explained that he had "cleaned himself up" while in custody, and expressed a desire to "be a better role model for others and [himself]".

Remarks on sentence

In relation to the objective seriousness of the offence, the sentencing judge considered the quantity of methylamphetamine, noting the amount involved was "just under four times the large commercial quantity prescribed by the legislature" which, as noted above, is 500g. Her Honour made reference to the purity of the drugs, the considerable monetary value, and the potential for the drugs to have "deleterious effects within the community". With respect to the applicant's role, her Honour noted that the offending involved a degree of planning and organisation and found the offence was not the result of a "momentary lapse of judgment". Her Honour considered that the applicant's role in the enterprise was "of fundamental importance", and that, in coming to this view, it was "significant that he was entrusted with such a large and pure quantity of drugs worth a considerable amount of money unsupervised". Against this, her Honour noted that there was no evidence that the applicant was involved in any further planning or organisation beyond posting the parcel. Her Honour considered that the applicant knew prohibited drugs were in the package and while there was no evidence that the applicant positively knew the weight of the drug, her Honour found that he had some understanding of the quantity. Her Honour also found that the applicant assisted "voluntarily and willingly" for financial reward, although she could not be satisfied beyond reasonable doubt what that reward was. The sentencing judge ultimately found that the offence was an isolated event and found the offence to fall "below midrange, but more serious than the lowest end of the range".
In respect of the applicant's subjective case, her Honour considered that the applicant had no prior convictions, that he was a person of good character, and that he had positive prospects of rehabilitation on account of his willingness to engage in mental health support and his "high level of insight" into the consequences of his actions. Her Honour also found that the applicant had demonstrated remorse and was "genuinely sorry for what he has done."
The sentencing judge accepted that the applicant's background was "characterised by violence and psychological abuse in the home by his father towards his mother and his sister and himself". Her Honour noted that this background, combined with the further trauma experienced by the applicant as a young man, led the applicant to suffer mental health and substance abuse issues. As a result of this background, the sentencing judge found that, despite the planning involved in the offending, the principles espoused in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 were applicable and entitled the applicant to "some reduction in moral culpability".
Her Honour was also satisfied that the applicant suffered Post-Traumatic Stress Disorder and Generalised Anxiety Disorder, and that there was a correlation between these conditions, the applicant's substance abuse, and the commission of the offence as a result of impaired judgment. Her Honour found that the applicant was not an appropriate vehicle for the full expression of general deterrence and reduced the weight to be given to specific deterrence. However, her Honour noted that given the level of planning involved in the offending, the reduction in moral culpability on account of his mental health was not significant, and that there was no evidence the applicant's mental health would mean a custodial sentence would weigh more heavily on him.
In respect of the Form 1 offence, her Honour found it to fall "below the mid-range" and did not substantially increase the sentence to be imposed for the supply offence.
The sentencing judge applied a discount of 25% for the utilitarian value of the applicant's plea and took into account the impact of the COVID-19 pandemic on persons in custody. Her Honour made a finding of special circumstances on the basis that this was the applicant's first time in custody and that he requires a "careful and sustained approach to rehabilitation" that was more likely to be achieved in the community. Her Honour backdated the applicant's sentence and then imposed the sentence noted above.

The proper approach to the applicant's complaint of manifest excess

A summary of the principles to be applied in a complaint of manifest excess was set out in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443] as follows: "When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]. • Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases. • Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error. • It is not to the point that this Court might have exercised the sentencing discretion differently. • There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle. • It is for the applicant to establish that the sentence was unreasonable or plainly unjust."
The applicant stressed a number of features of the offending, as found by the sentencing judge, which he submitted, in combination, compel the conclusion that the sentence is manifestly excessive. That is, it was submitted that when regard is had to those features, in the context of all relevant matters, it must be concluded that the sentence is infected by error, albeit that such error is not visible (or, as it is commonly put, the error is latent rather than patent).

The plea of guilty

Included in the applicant's list of factors was the applicant's entitlement to a discount of 25% for his plea of guilty. This factor did not form part of the instinctive synthesis. Further, there is no suggestion that the discount was not applied. Having regard to the figures involved, it is clear that her Honour started the sentence at 7 years which was then reduced by 25% to produce the head sentence of 5 years and 3 months. Given there is no hint of error with respect to the plea of guilty, the appropriate course is to consider the various other factors relied upon by the applicant to determine whether the starting point of 7 years reveals error in the sentencing judge's application of the instinctive synthesis.

The matters relied on by the applicant

Reordering matters to take out the plea of guilty, the various considerations relied upon by the applicant were as follows: 1. his participation in the supply of the drug was an isolated event; 2. his relatively lowly role in the offence, that role being limited to posting the parcel containing the drug to Western Australia; 3. he did not know the precise weight or even the type of drug he was posting, or its value; 4. the applicant stresses that, while the commission of the offence was undoubtably for financial gain, it was unlikely to have been substantial; 5. the applicant's moral culpability was reduced to some degree as a result of his background which attracted the principles in Bugmy v The Queen; 6. there was a causal link between the applicant's diagnosis of Post-Traumatic Stress Disorder and Generalised Anxiety Disorder and his offending behaviour, again impacting on his moral culpability and the weight to be given to general and specific deterrence; 7. he had the benefit of prior good character; and 8. he was found to have good prospects of rehabilitation (with a concomitant low risk of reoffending).

Manifestly excessive?

There is some force in the applicant's submissions in that there were significant factors, most of which are set about above, which pointed to an amelioration of the sentence to be imposed. Of course, what makes sentencing so difficult is that those matters, which operated in the applicant's favour, were required to be considered in the context of all relevant matters, including the seriousness of the offending.
The seriousness of the offending was inevitably informed by the legislative guideposts provided by the maximum penalty and the standard non-parole period, together with the circumstances of the particular offence. The applicant's offending was far removed from the most serious offending involving the supply of a large commercial quantity of a prohibited drug, thereby significantly diminishing the relevance of the maximum penalty. The guidance provided by the standard non-parole period was also reduced, albeit to a lesser degree.
As noted by the sentencing judge, the quantity of the drug involved was a relevant factor. In Wong v The Queen, Leung v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [67], Gaudron, Gummow and Hayne JJ accepted, in an analogous context, "the particular amount of narcotic involved can have significance in fixing the sentence that is to be imposed on an offender". However, as their Honours went on to observe (at [69]), "there will be many cases in which a sentencing judge will be more concerned to identify the level of the offender's criminality by looking to the state of the offender's knowledge" of the crime in which they are involved. This was such a case. The quantity of the drug was a factor but was not the primary consideration.
It is to be borne in mind that the maximum penalty and the standard non-parole period in this case, applied by virtue of the weight of the drug. This is a significant part of the logical underpinning of the point made earlier with respect to the relevance of the maximum penalty and the standard non-parole period.
Further to the above, care should be taken, in cases of this type, in marking the seriousness of the offending by measuring the quantity of the drug in multiples of the statutory threshold. In Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, Gleeson CJ, Gummow, Hayne and Callinan JJ said (at [33]): "A serious fallacy in his Honour's reasoning is that it assumes that any case involving more than 250 g of heroin is likely to be a worse case than any case involving only 250 g or less. That cannot be so in the virtually absolute terms in which his Honour puts it. Little imagination is required to envisage a case involving a relatively small quantity of heroin, as being of very great seriousness, for example, supply to create an addiction in an infant."
A similar logic applies to assistance to be gained by marking the seriousness of an offence by way of multiples of the threshold quantity. There is no sense in which an offence involving twice the large commercial quantity can be regarded as twice as serious as an offence involving an amount equal to the large commercial quantity. Marking an offence in this way risks giving excessive weight to the quantity of the drug in circumstances where the particular case warrants greater emphasis be given to other considerations.
In the circumstances of the present case, there is no suggestion that the applicant had any control over the quantity of the drug. Nor was there evidence that his reward was linked, at least directly, with the quantity of the drug. The circumstances of the offending, including the applicant's use of his own name in the hire of the vehicle, and his exposure, without any attempt at disguise, to closed-circuit television cameras in the post office demonstrate that, whatever might be said about the enterprise more generally, the applicant's offending was far from sophisticated. The present is a matter where it can fairly be said that the applicant's role was more significant than the weight of the drug: Wong v The Queen; Leung v The Queen at [69]; Decision Restricted [2019] NSWCCA 102 at [50]-[53]; Melikan v R [2008] NSWCCA 156 at [42]; R v McDonald (2002) 128 A Crim R 44; [2002] NSWCCA 34 at [33].
I additionally have concerns with the weight to be given to any so called "trust" placed in the applicant by those who engaged him to commit the offence. Certainly, in some drug supply offences, it will be relevant to have regard to a trusted role played by an offender. This will more typically be the case where the facts reveal that the offender played an ongoing role as member of an organisation leading to some trust, in a real sense, being placed in them. That was not this case. While it was true that custody of the drugs, which were of significant value, was entrusted to him, it is highly unlikely that this reflected trust in the applicant in any real sense. Those who provided the drugs to the applicant were clearly serious criminals. The liberty of the applicant to do anything with the drugs other than what he was told, without serious repercussions, is highly doubtful.
The applicant additionally had a strong subjective case. As has been pointed out, he had no prior criminal history and relatedly good prospects of rehabilitation. Her Honour accepted that the applicant's background was characterised by violence and psychological abuse within his home environment. This experience and later traumatic events led to mental illness and substance abuse. The sentencing judge, in turn, found that the applicant's mental health and substance abuse led to an impairment in his judgment which impacted on his offending. While considering them separately and regarding each as impacting on his moral culpability, her Honour was astute to note that the applicant's mental health and substance abuse were intertwined with his background. That there was significant overlap between various factors in the applicant's subjective case did not diminish that case, though care was required in assimilating those factors. The various factors were each entitled to weight, however, the relationship between them bore on the role they could play in combination in the instinctive synthesis, a matter which her Honour clearly appreciated.
Returning to the gravity of the offending, against what has been said above, whatever might be said about the applicant's role, no doubt he agreed to participate in what he must have appreciated was significant criminality. That raised, at least, the possibility that he would be engaged in an enterprise involving the present quantity. While I accept that, having committed to the enterprise, it may have been difficult for him to withdraw, in the course of packaging the drug the quantity involved must have been readily apparent to him.
Whilst I have made reference to the significance of the maximum penalty and the standard non-parole period in the circumstances of the present case above, they remain relevant. While general deterrence was, to an extent, reduced in the present case, it remained an important factor, along with the other purposes of punishment in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW).
There was also an additional matter taken into account on a Form 1. The applicant was not to be punished for this offence, as the submissions for the respondent were at times apt to suggest. The offence was to be taken into account in the weight to be given to personal deterrence and retribution when sentencing the applicant for the principal offence: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146; [2002] NSWCCA 518 at [42]; Abbas, Bodiotis, Taleb and Amoun v R (2013) 231 A Crim R; [2013] NSWCCA 115. In the circumstances of the present matter, the Form 1 matter did little to inform the need for specific deterrence. Retribution was entitled to greater weight, as explained in the guideline judgment (at [42]), on the basis of the community's entitlement to extract retribution (for the primary offence), where there are serious offences admitted by the offender and in relation to which no punishment has or will be imposed. Having regard to the relativities of the offences (noting the maximum penalty of 3 years for the Form 1 offence was dwarfed by the maximum penalty for the principal offence), the Form 1 offence did not have any real prominence in the sentencing exercise. The sentencing judge was correct to find the Form 1 offence "would not substantially increase the sentence for the main offence".
The question posed then is, having regard to all relevant circumstances, has the applicant established that a starting point of 7 years is so high as to lead to an inference that the sentencing judge, despite having carefully set out in detail all relevant considerations, in a manner in which the applicant does not find fault, nonetheless can be inferred to have fallen into error? I remind myself that it is not to the point that I would have arrived at a different result. Ultimately, having regard to all relevant considerations, I am not satisfied that any error can be inferred. It follows that the applicant's complaint that the sentence is manifestly excessive must be dismissed. I would order as follows: 1. Grant leave to appeal. 2. Dismiss the appeal.

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: 08 September 2023

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