Christie-Gilbert v R

Court of Criminal Appeal (NSW)|2019-01-30|Before: Hoeben CJ, Wright J, Fagan J

Solicitors: Matouk Joyner Lawyers - Applicant Solicitor for Public Prosecutions - Respondent Crown File Number(s): 2016/128235 Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 16 October 2017 Before: King SC DCJ File Number(s): 2016/128235

Factual background

On 26 April 2016, the applicant was driving a vehicle belonging to a co-offender, Joel Matzanke, northwards on the Sturt Highway at Buronga New South Wales. The co-offender occupied the front passenger seat. Police signalled the vehicle to pull over for a random breath test. When the applicant handed over his provisional driver's licence, police noticed that his hands were trembling uncontrollably. Police smelled cannabis coming from inside the car and conducted a search, finding 10.4994kg of cannabis in 22 individual vacuum sealed plastic packets wrapped in a swag. After he was arrested, the applicant admitted possessing 32 diazepam tablets for which he did not have a prescription. A subsequent search of the vehicle located 218.5g of MDMA in the form of pink pills with a purity of 5 per cent in two resealable plastic bags.
In order to understand the grounds of appeal, it is necessary to set out the sentence imposed on the co-offender. He was sentenced by his Honour Judge Lakatos SC on 16 March 2017 at Broken Hill following an early plea of guilty for which he received a 25 per cent discount on sentence. The transcript of the remarks on sentence of Judge Lakatos was before the sentencing judge in the applicant's matter.
The co-offender was sentenced for the following charges: 1. Supply of a prohibited drug being not less than a commercial quantity of cannabis (i.e. 10.4994kgs) contrary to s 25(1) of the Drug Misuse and Trafficking Act; and 2. Supply of a prohibited drug being not less than a commercial quantity of MDMA (394.14g).
For the supply cannabis offence, the co-offender was sentenced to a total term of 3 years dating from 27 April 2016, with a non-parole period of 2 years and 3 months, expiring 26 April 2018. For the supply ecstasy offence, the co-offender was sentenced to a total term of 5 years and 6 months, commencing 27 April 2017, with a non-parole period of 3 years and 6 months expiring 26 October 2020. The latter sentence was accumulated on the earlier sentence by 1 year so that the effective total term of imprisonment was 6 years and 6 months with an effective non-parole period of 4 years and 6 months. The ratio of the non-parole period to the head sentence was 69.2 per cent.
The co-offender was also sentenced for four related offences on a s 166 Certificate under the Criminal Procedure Act 1986 (NSW). These charges concerned drugs and money found in his car the day before, i.e. 25 April 2016. They comprised goods in custody ($5,270 which was seized from the glovebox), dealing with property suspected of being the proceeds of crime, possession of methylamphetamine (being a small amount found in his shirt) and possession of cannabis (35 cigarettes found in a cigarette packet). The sentencing judge recorded a conviction for those offences but imposed no further penalty given "the lengthy prison terms".

Ground 1 - The disparity between the sentence imposed on the applicant and the sentence imposed on his co-offender is inadequate to reflect the differences in their respective roles and culpability.

Ground 2 - In all of the circumstances the sentence is manifestly excessive.

THE SENTENCE PROCEEDINGS

When recording the facts, the sentencing judge noted that police found the co-offender's DNA on a couple of packages which contained the cannabis leaf and the MDMA. The applicant's DNA was not located on any packaging. Testing of the applicant revealed that he was under the influence of cannabis while driving the motor vehicle which belonged to the co-offender. The agreed facts before the court accepted that the applicant's role in the offending was less than that of the co-offender but the basis upon which that agreement was arrived at was not set out.
The applicant provided an additional statement to police. The effect of that statement was that he was not initially aware of the presence of drugs in the vehicle. He only became aware of that fact when he saw a number of vacuum sealed plastic bags which contained cannabis leaf and bags containing pink tablets. The applicant said that the co-offender was his drug dealer who supplied him with cannabis and ecstasy. The effect of the applicant's evidence was that he had set out on a camping trip to the Blue Mountains but when they arrived he was directed to continue driving to Canberra and eventually to Adelaide where he learned about the presence of the drugs the following morning. The applicant claimed to have been "kicked out" of the car for a period of time after its arrival in Adelaide.
The applicant said that he had no knowledge of the purpose of the trip to Adelaide until such time as the co-offender returned with the drugs and directed him to put them in the car.
The sentencing judge found that this was an organised and significant criminal enterprise involving travelling from Newcastle to Adelaide in order to acquire substantial quantities of prohibited drugs, approximately 10.5kgs of cannabis, and at least in relation to the applicant, 218.5g of MDMA. His Honour rejected the applicant's evidence as to when he first learned of the presence of drugs in the car. His Honour regarded the applicant's version of events as highly improbable. His Honour found that the applicant had lied to police and continued to attempt to mitigate any sentence that might be imposed on him by trying to deceive them in the statements which he made. His Honour regarded the applicant as a "most unimpressive" witness.
His Honour found that it was entirely implausible that the co-offender would co-opt the assistance of the applicant in relation to such a serious criminal offence in the expectation that he would be able to scare him into complying with his desires and in the expectation that the applicant would not report the matter to the police or give evidence against him. His Honour found that the applicant's version of events was so grossly implausible as to be totally unbelievable.
The applicant said that at no time was he ever offered payment or supply of drugs for participating in the offending conduct. In that regard, his Honour accepted that there was no evidence that the applicant was to receive money or that he was to receive any portion of the drugs. Even so, his Honour found that it was impossible to accept that in circumstances of such a significant participation over the course of days, with a person who was his drug dealer, in relation to the movement of substantial quantities of drugs, the applicant did not have an expectation of a financial benefit or at the least a significant reward by way of the provision of prohibited drugs.
The sentencing judge found that the applicant's version of events was so unbelievable as to significantly affect what reliance his Honour could place on any other statement made by him. His Honour found beyond reasonable doubt that the applicant was knowingly participating in the acquisition and transportation of the drugs from the time he left Newcastle and that in doing so, he was engaged in a serious course of criminal conduct.
The sentencing judge had regard to the applicant's subjective case. The applicant had apparently been working as a concrete pump hand on a casual basis since 20 October 2016. The applicant's partner described him as a charming, caring person. She said that both she and her son were devastated when they found out that the applicant had been charged.
There was evidence before the court of the applicant having been depressed for a period of time as a result of a knee injury caused at work. Dr Gillian Maddock, who had seen him on four occasions between 17 February and 20 April 2016, assessed his level of psychological distress as moderate. There were no consultations after 20 April 2016.
In relation to the applicant's subjective case generally, his Honour concluded that none of the medical reports, the psychological reports or the references before the court provided material of assistance to the court. His Honour also had reservations about the presentence report, since it was based entirely on self-reporting by the applicant. The applicant described what he said was a "neglected upbringing" in that his parents separated when he was a baby and he resided predominantly with his mother who relocated numerous times. The applicant said that he was a victim of physical, sexual and mental abuse inflicted by his mother and unknown males.
The applicant reported a history of binge drinking and commencing to use cannabis at age 16 and methamphetamines at age 20. The applicant said that over time he had increased his cannabis and methamphetamines use to "as much as possible". Although the pre-sentence officer reported the applicant as showing some insight into his substance abuse and its effect on his life, the applicant had not attended any rehabilitation to deal with any outstanding drug or alcohol issues. His Honour noted that there was no objective evidence that the applicant had ceased to use drugs, other than his claim that he had done so. The applicant had not engaged in any regular urine analysis so as to be able to objectively establish that he had ceased the use of drugs. The applicant was assessed in the presentence report as being at medium risk of re-offending.
His Honour also took into account the findings of Lakatos DCJ in relation to the co-offender. The co-offender was sentenced for a total of six offences. In relation to four of those offences, Lakatos DCJ gave the co-offender the benefit of applying s 10A under the Crimes (Sentencing Procedure) Act 1999 (NSW), the effect of which was to find a conviction with no other penalty. His Honour noted that the two significant offences dealt with by Lakatos DCJ were similar to, but not the same as, those the applicant faced.
His Honour accepted that there was a parity issue in relation to the applicant and the co-offender and that he would have to take that into account when imposing sentence on the applicant.
His Honour accepted there was a joint criminal enterprise to travel to Adelaide, to acquire prohibited drugs and to return them to New South Wales (most probably the Newcastle area) for further distribution. His Honour accepted that there were at least two separate prohibited drugs and that each was in a substantial quantity. Accordingly, even allowing for the lesser quantity relevant to the applicant, it had to be accepted that this was a serious example of such offending and that a significant penalty must be imposed, both to ensure specific deterrence and general deterrence. His Honour observed that the drug trade could only continue to flourish while individuals were prepared to conduct themselves in the way that this applicant had.
As a result of the applicant's evidence and what he had said to police, his Honour inferred that in order to drive to Adelaide so rapidly it would have been necessary for the driving duties to be shared. His Honour concluded that in doing so the applicant had made a significant contribution to the criminal enterprise.
His Honour noted that the applicant had no criminal record for offences in New South Wales. He had, however, committed a number of offences in Queensland. These included committing a public nuisance, possession of a knife in a public place, assault or obstruct a police officer and possessing dangerous drugs. His Honour found that the applicant had had a drug problem for some years. Even so, his Honour did not regard the applicant's past record of offending in Queensland as of real significance in relation to this offence. Accordingly, his Honour was prepared to deal with the applicant as a person of otherwise good character.
His Honour was unable to determine on the evidence and the agreed facts whether the applicant had any more significant role to play than being the driver for a significant course of criminal conduct and his Honour accepted that it was at least reasonably possible that he had engaged in the conduct at the request of the co-offender.
Despite considerable reservations and taking into account the poor quality of the applicant's evidence, his Honour was prepared to find that he was genuinely remorseful.
His Honour found that the applicant's ability to rehabilitate himself would be entirely dependent on whether he had ceased using prohibited drugs. His Honour noted that should the applicant continue to use prohibited drugs or return to their use in the future, there was a high risk that he would not only be offending by using prohibited drugs, but that he would find himself in similar circumstances, where in order to feed his own addiction he might well undertake conduct that made him liable for significant offences such as this. It was for that reason that his Honour was unable to find that there were low prospects of re-offending or that there was a good prospect of rehabilitation.
His Honour observed that the distribution of prohibited drugs in the community was a serious and real problem, both as to the effect that the drugs had on their users and the effect they had on the community who had to suffer the depredations of users who frequently commit other offences in order to feed their addiction, or because the particular drugs they consume cause them to become violent. His Honour noted that offenders who are charged with supply, even where that supply is based on the deeming provision, are to be regarded as suppliers. His Honour regarded this offending as involving organised criminal conduct of a significant nature and as part of a commercial endeavour.

Ground 2 - In all of the circumstances the sentence is manifestly excessive.

A ground of appeal based on a parity argument assumes that the sentence is otherwise free of error: Wat v R [2017] NSWCCA 62 at [66]. Accordingly, it is appropriate to deal first with the applicant's second ground of appeal.
The applicant submitted that in all the circumstances the sentence was manifestly excessive and that some reduction was appropriate in the exercise of the Court's power to re-sentence.
The applicant submitted that his role and culpability was significantly less than that of the co-offender, who was involved in a criminal enterprise having a much broader scope. This was against a background where the applicant engaged in the criminal conduct at the request of the co-offender who was his drug supplier. The applicant submitted that he was a relatively young man with a history of drug use and all he stood to gain from his participation in the offence was the provision of some drugs.
The applicant noted that his background was characterised by disruption and neglect, despite the fact that he had attempted to disassociate himself from his negative peers by relocating from Queensland to the Newcastle region. The applicant noted that during the relevant period he had been suffering from severe levels of psychological distress as a result of a work injury incurred in August 2015. Nevertheless, in the year before sentence the applicant had maintained casual employment as a concrete pump line hand.
The applicant submitted that Judicial Commission statistics for the offence of supplying a commercial quantity of MDMA (including deemed supply) indicate that only the top 27 per cent of all offenders received a sentence in excess of 5 years and only the top 10 ten per cent received a sentence in excess of 6 years. The applicant submitted that those statistics supported the proposition that the sentence imposed on him was very much towards the higher end of the range. However, in making that submission the applicant accepted that because the cannabis offence was taken into account on the Form 1, such a straightforward comparison with statistics was complicated.

Consideration

As this Court has frequently said, manifest excess is "a conclusion": Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at [6]. Nevertheless, it is a conclusion that can only be reached after giving due weight to all the circumstances including the maximum penalty and in this case, the standard non-parole period, as legislative guideposts (Muldrock v The Queen (2011) 244 CLR 120 at [27]). In addition, where there are further offences on a Form 1 (as here) this would generally lead to the imposition of a sentence longer and in some cases significantly longer than would otherwise be required if the Form 1 offence were not taken into account (Bathurst CJ in Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115 at [23]; 231 A Crim R 413).
In order to succeed on this ground it must be shown that the sentence was unreasonable or plainly unjust. To succeed it must be concluded that the length of the sentence is such that there was some misapplication of principle even though where and how is not apparent from the remarks on sentence (Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 at [58]-[59], [75]-[76]). There is no single correct sentence. Sentencing is not a mathematical exercise but sentencing judges are required to reach a sentence for each offence by balancing many different factors. It is for this reason that sentencing judges are to be allowed as much flexibility as is consonant with consistency of approach and applicable sentencing principle and this Court may not interfere with a sentence only because it would have exercised its discretion differently.
The relevant principles were recently summarised in Hughes v R [2018] NSWCCA 2 at [86] where the Court (Payne JA, R A Hulme and Garling JJ) said: "86 … (1) appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases; (2) 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; (3) it is not to the point that this Court might have exercised the sentencing discretion differently; (4) 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; and (5) it is for the applicant to establish that the sentence was unreasonable or plainly unjust. …"
When one applies the above statements of principle to the facts of this case, it is clear that Ground 2 has not been made out.
The applicant relied upon three particulars of alleged error in support of Ground 2: 1. The applicant's role and culpability were significantly less than that of the co-offender. 2. The applicant's personal background was characterised by disruption and neglect. 3. Judicial Commission sentencing statistics indicated that the applicant's sentence was "towards the higher end of the range".
It was an agreed fact in the sentence proceedings that the applicant's role in the offending was less than that of the co-offender. That, however, is not the end of the matter. His Honour comprehensively rejected the applicant's evidence as to his limited knowledge of the presence of the drugs and his unwilling participation in the offence. In doing so, his Honour had the advantage of seeing and hearing the applicant give evidence. His Honour also emphasised the inherent implausibility of the applicant's evidence.
His Honour found that although the applicant's role was less than that of the co-offender, the level of criminality which it involved was substantial. In relation to the applicant's role, his Honour found that the trip to Adelaide and the return with drugs, constituted a serious course of criminal conduct and was a "serious example of such offending". His Honour noted the commercial nature of the endeavour and the level of organisation which it involved. His Honour made a specific finding that the applicant knowingly participated in what was a significant drug supply operation from the time he left Newcastle until he was stopped by police. He found that the offending occurred against a background where the drug trade could only flourish because individuals such as the applicant were prepared to willingly engage in the transportation and supply of such substances.
Significantly, none of his Honour's findings as to the seriousness of the offending were challenged by the applicant except the finding that the applicant had an expectation of at least "a significant reward". Contrary to that challenge, it was well open to his Honour to make such a finding on the evidence before him given his Honour's adverse finding as to the applicant's credit. This is particularly so when there was no issue that the applicant's participation had taken place over a number of days and that the criminal enterprise was conducted in the company of the applicant's drug dealer and involved a significant quantity of drugs.
Accordingly, although the applicant's role was less than that of the co-offender, it was clearly a significant one.
The evidence as to the applicant's personal background came only from him and was not otherwise objectively established. In any event, no submission was made in the sentence proceedings that the applicant's background was such as to attract Bugmy-type considerations (Bugmy v The Queen [2013] HCA 37; 249 CLR 571). There was no evidence that the applicant had ceased using drugs at the time of the hearing and there was certainly evidence that allowed an inference to the contrary. Most particularly, his Honour was not persuaded that the prospects of the applicant re-offending were low, nor was he satisfied that there were good prospects of rehabilitation. Other than the somewhat qualified finding as to the applicant's remorse, the applicant's background did not significantly ameliorate the seriousness of the offending.
As this Court has said on many occasions the value of the Judicial Commission statistics is limited. This is particularly so when as here the sentence is affected by a serious offence (the cannabis offence) to be taken into account on a Form 1. In any event, as the updated statistics annexed to the Crown's submissions in the appeal make clear, there are a number of other cases in which the head sentence and non-parole periods are of approximately the same length or longer than that imposed on the applicant.
In relation to manifest excess generally, none of the particulars of alleged error relied upon by the applicant demonstrate that the sentence is manifestly excessive. Additionally, there are other considerations which support the sentence. The legislative guideposts show the maximum penalty for the MDMA offence to be 20 years imprisonment with a standard non-parole period of 10 years. Those guideposts show the seriousness with which the community views these type of offences. It is also not without significance that the supply in this case involved two types of prohibited drug.
It is for those reasons that Ground 2 fails.

Ground 1 - The disparity between the sentence imposed on the applicant and the sentence imposed on his co-offender is inadequate to reflect the differences in their respective roles and culpability.

Notwithstanding the differences in charges brought against the applicant and the co-offender, the applicant submitted that it was possible to make a relatively straightforward comparison between the sentences imposed on each of them. The applicant submitted that his culpability was to be differentiated from that of the co-offender in the following four ways: 1. his role in the offence was significantly less than that of the co-offender; 2. no planning or organisation could be attributed to him; 3. no commercial motivation could be attributed to him. 4. the quantity of drug for which the co-offender was sentenced was substantially greater than the applicant's MDMA offence.
The applicant submitted that there was no evidence that he was involved in any aspect of planning the criminal activity and that the likely inference was that the planning and organisation was carried out by the co-offender. Unlike the co-offender, the applicant's DNA was not found on any of the drug packages. It was the co-offender who had in his possession a large sum of money, not the applicant.
The applicant submitted that there was no evidence that he stood to gain financially from his participation in the offending or that his motivation was in any sense commercial. The applicant submitted that the inference drawn by his Honour to the opposite effect was not open to him on the evidence and was "entirely speculative". The applicant submitted that there was nothing in the evidence to support a conclusion that the commerciality or potential financial gain for him from the offence exceeded that which was inherent in any offence of supplying a commercial quantity of drugs.
The applicant submitted that the relevant quantity of MDMA for the applicant's offence was 218.5g whereas that involved in the co-offender's offence was 394.14g, i.e. a significantly larger amount.
The applicant submitted that in all the circumstances, although his Honour described his role in the offending as necessary and significant, his role and culpability were still to be assessed as being significantly less than that of the co-offender. In that regard, greater differentiation in sentence was required and the applicant had a justifiable sense of grievance.

Consideration

The principles relevant to parity are well established. While like should be treated as like, due allowance should be made for difference. As was observed in Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 at [28]: "28 … the parity principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances". In circumstances where offenders are party to the same criminal enterprise but different charges have been laid, and one or more charges are on a Form 1 for one offender but not another, the Court has held that "a straightforward comparison is not possible" (Nguyen, Kathy v R [2015] NSWCCA 209 at [64]-[68] per Hall J, with whom Hoeben CJ at CL and McCallum J agreed). Mere disparity between the sentences imposed on an offender and co-offenders is not in itself grounds for intervention (Burrows v R [2017] NSWCCA 45).
It is clear that the charges faced by the applicant and the co-offender were differently structured. It follows that there is a practical difficulty in attempting to compare their sentences. As was accepted by the applicant, a straightforward comparison between the charges is not possible because the Form 1 offences were taken into account in the applicant's sentence.
His Honour was clearly aware of the parity issue and referred to it expressly in his sentence judgment where his Honour said: "Clearly, there is an issue of parity in relation to the two offenders that is for my consideration in achieving a sentence for this offender which is appropriate, but taking account of parity with the sentence imposed on Mr Matzanke." (Sentence judgment at 16.5)
Moreover, his Honour took parity considerations into account implicitly throughout the sentence judgment when he referred to and took into account the co-offender's "more significant criminal history than this offender". Similarly, his Honour gave direct consideration to the joint criminal enterprise engaged in by the applicant and the co-offender and their respective roles.
The applicant's sentence was less than that of the co-offender which was itself a recognition of the differences between them on the parity issue. Furthermore, the applicant received the same sentence as the co-offender for the MDMA offence. This was appropriate because the applicant's sentence for the MDMA offence also took into account the Form 1 offence of knowingly take part in the supply of cannabis. By imposing the same sentence for the MDMA offence his Honour made due allowance for the competing sentencing considerations of the applicant's lesser role and the different weight of MDMA as against the need for some proportion of the applicant's sentence to take into account the offences on the Form 1.
In terms of the applicant's and the co-offender's subjective circumstances, there were no other significant differences between them which would have justified a lesser sentence for the applicant. In any event, his Honour made a slightly greater allowance for special circumstances for the applicant than that which had been made for the co-offender.
It can be accepted that in the absence of any evidence to the contrary, it is unlikely that the applicant played any part in the planning of the criminal undertaking. Nevertheless, for the reasons already given the applicant's role was an essential one and the objective criminality of his offending was high. Accordingly, that and the applicant's moral culpability had to be appropriately reflected in the sentence imposed on him.
As is clear from his Honour's reasoning, he recognised the importance of the application of the parity principle as between the applicant and the co-offender. This is why his Honour set out in detail the reasons why he regarded the conduct of the applicant as involving serious criminality. While minds might differ as to the extent of the differentiation in sentences between the applicant and the co-offender, this was a fundamental issue for his Honour to decide and involved the exercise of his Honour's sentencing discretion. In the absence of any specific error having been identified, for this Court to reduce the sentence imposed on the applicant would involve a direct interference with the exercise of that sentencing discretion.
As was said in relation to Ground 2, there is no single correct sentence. Sentencing is not a mathematical exercise but sentencing judges are required to reach a sentence for each offence by balancing many different factors. This his Honour did and the sentence ultimately arrived at was open to him. This ground of appeal has not been made out.
Accordingly, the orders which I propose are: 1. Leave to appeal against sentence is granted. 2. The appeal is dismissed.
WRIGHT J: I agree with the proposed orders and reasons of Hoeben CJ at CL.
FAGAN J: I agree with Hoeben CJ at CL.

Amendments 01 March 2019 - In [38] members of the bench inaccurately named. 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: 01 March 2019

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