Connell v R

Court of Criminal Appeal (NSW)|2020-11-20|Before: Hoeben CJ, Davies J, Fagan J

Solicitors: Randall Legal - Applicant Solicitor for Public Prosecutions - Respondent File Number(s): 2019/52493 Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Citation: [2019] NSWDC 756 Date of Decision: 16 December 2019 Before: Priestley SC DCJ File Number(s): 2019/52493

Offence and sentences The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed by his Honour Judge Priestley SC at the Lismore District Court on 16 December 2019. His Honour sentenced the applicant and co-offender in the same proceedings (R v Andrew John Black; R v Rowan Alastair Connell [2019] NSWDC 756).

On 25 September 2019, the applicant pleaded guilty in the Local Court to three charges and asked that a further four charges be taken into account on a Form 1.
The three charges were:

supply a large commercial quantity of MDA (6.5245kg) contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (DMTA). The maximum penalty for this offence is life imprisonment and there is a standard non-parole period of imprisonment for 15 years;
possession of a shortened firearm, contrary to s 62(1)(b) of the Firearms Act 1996 (NSW). The maximum penalty for this offence is 14 years imprisonment; and

Ground 1 - his Honour erred in applying the discount for the applicant's plea of guilty to the aggregate sentence rather than to each indicative sentence

Ground 1A - In the alternative to Appeal Ground 1, his Honour's remarks do not adequately address the discount for the plea of guilty and give rise to the real possibility that his Honour failed to apply correct legal principle

Ground 2 - The applicant has a justifiable sense of grievance in the final result when considered against the sentence imposed on the co-offender

FACTUAL BACKGROUND

Strike Force Deveril was set up to investigate the large scale supply of prohibited drugs by the applicant and the co-offender. The investigation utilised covert electronic surveillance. On 15 February 2019, at about 8:20pm electronic evidence identified the applicant and the co-offender inside the applicant's address at Bundara Park Drive, Tuckombil handling a sawn-off, single shot 12 gauge shotgun. Both the applicant and the co-offender engaged in a conversation about the characteristics of the firearm. The applicant gave the gun to Mr Black so that Mr Black could look at it. Mr Black held the gun for about a minute. Later that evening, at about 9:12pm, the applicant told Mr Black that he would keep the firearms at his residence for defence against other criminal elements, hiding them loaded in the wall cavity near the front door.
On 16 February 2019, at about 3:48pm, electronic evidence identified the applicant and Mr Black inside the Bundara Park Drive premises. At the time, Mr Black's juvenile son was also present. Mr Black asked the applicant "Where are the Monaro keys?" and he replied, "Maybe in the centre console of the ute". Mr Black left the house and returned with the sawn off, single shot 12 gauge shotgun and a .22 calibre pistol. Mr Black instructed his son to place gloves on his hands and said, "You can't tell mum, you can't tell anyone". When showing his son the shotgun he said, "This is rusty but we are going to fix it up. We are going to make it all smick again". Mr Black's son picked up and handled both the shotgun and the pistol. Both the applicant and Mr Black provided instructions on the operation of the pistol before Mr Black took both firearms outside.
On 16 February 2019, at about 6:30pm, electronic evidence identified the applicant and Mr Black inside the Bundara Park Drive premises. The applicant produced a large black plastic bag containing several heat sealed bags containing brown coloured pills. The applicant and Mr Black placed disposable gloves on their hands and set up a heat sealing machine on the kitchen bench.
The applicant and Mr Black then used electronic scales to weigh out quantities of drug in lots of 1000 and 5000 pills. The 1000 and 5000 lots were placed into Tupperware containers and then into plastic bags which were then sealed by the cryovac machine. They also prepared several smaller packages of 10 pills which they referred to as "sample packs". The sealed packages were then all placed inside a large white plastic drum with a screw top lid. The entire process took several hours to complete. The applicant and Mr Black were taking cocaine and cannabis during the process. Once the packaging was complete, the applicant wiped down the workspace. During the drug packaging process, the two men discussed methods to avoid getting caught and discussed the prices for which they had purchased the drugs.
At about 9:50pm, police attended the property and executed a search warrant. Mr Black and the applicant were arrested inside and later conveyed to Lismore Police Station. A large white coloured drum, containing a large amount of brown coloured pills, was located on the kitchen island bench. Inside the drum were:

2 x heat sealed packages each containing 1575g of MDA pills;
1 x heat sealed package marked "400" containing 140g of MDA pills; and
6 x heat sealed packages each containing 10g of MDA pills.

The total weight of all the MDA pills was 6.5245kg (13 times the large commercial quantity of 0.5kg). The purity of the drug was between 5.5 per cent and 6.5 per cent.
When searching the kitchen and living area, police seized 2.17g of cocaine, a Samsung mobile phone, a vial containing 46 white Diazepam tablets, a heat sealing machine, one heat sealed package containing 10 grams of brown MDA pills, one heat sealed package containing 15g of brown MDA pills, a plastic bag with brown coloured powder/residue, digital scales, a box of disposable gloves and a rubbish bag containing all the items the applicant used to clean up after packaging the pills. This rubbish bag contained opened heat-sealed bags with a brown powder residue, pills totalling 10g of MDA and used disposable gloves.
During a search of the lounge room, numerous mobile phones were seized along with digital computer tablets. A red Tupperware container was located near the television which contained 28g of cannabis. During a search of the applicant's bedroom, police located $1,150 in cash concealed inside a jacket within the wardrobe and $60 in cash on a shelf.
The search moved outside the property where the applicant's Holden Monaro was parked under the car port. On the back seat police located a yellow coloured, hard case containing a .22 calibre automatic pistol and three boxes of .22 ammunition. Police also located a rolled up towel on the back seat which contained a sawn off 12-gauge single shot shotgun. A search was also conducted of the applicant's Holden Commodore during which a further $1,200 in cash was seized. Police searched a Holden Commodore SS sedan owned by Mr Black and located and seized $215 in cash and an Apple mobile phone.
On 18 February 2019, a further search warrant was executed by police at Shearman Drive, Goonellabah. During a search of the bedroom occupied by Mr Black police seized two vials of steroids, Diazepam tablets, numerous disused mobile phones and a heat sealing machine.

Subjective features of the applicant

A psychological report, dated 3 December 2019, of forensic psychologist Kim Dilati was tendered. The psychologist noted there was no evidence of formal thought disorder or psychotic features. The applicant displayed limited insight and judgment into his mental health and offending behaviour. His mother passed away in 2018. His upbringing was free of significant deprivation, although he gave a history of a tumultuous relationship with his father who was often drunk and verbally abusive to his mother. He worked as a butcher from 1998. Since 2013, he had been unemployed due to a back injury.
The report stated that the applicant was a single parent who until his incarceration was the fulltime carer for his seven year old daughter.
In early high school the applicant performed well, however, in years 8 and 9 he started to use drugs and became disruptive leading to suspension. He had a significant substance use history, starting with cannabis at 14 and binge drinking from 16. From 18 he began to use drugs daily, then weekend ecstasy use and recreational use of LSD and magic mushrooms during his 20's and daily amphetamine use and regular cocaine use from about the age of 29. From age 34 he started using heroin. He disclosed a history of selling drugs. He also became addicted to prescription pain killers for his back injury. The applicant sought assistance from a counsellor in 2012 and attended six to eight sessions. He was abstinent for approximately four months. On the night of his arrest, he used cocaine and had approximately 12 beers. He indicated that he was willing to seek help and remain abstinent.
In terms of risk assessment, the psychologist assessed the applicant as being at moderate risk of re-offending. Counselling could be effective in reducing this risk. The diagnosis proffered by the psychologist was that of stimulant use disorder and a cannabis use disorder. The psychologist noted the history of drug use, which had rapidly spiralled out of control, leading to overall poor decision making. To avoid this continuing, there needed to be long term treatment, including counselling, psychotropic medication and relapse prevention planning.
The psychologist stated that the applicant demonstrated appropriate remorse for his offending. He appreciated the impact of his behaviour on his daughter. The psychologist expressed the view that the applicant would remain compliant with conditions imposed and spoke optimistically of rehabilitation if the proposed treatment plan was adhered to.
The applicant's criminal history included drink driving offences, possess prohibited drug, assault and possess knife. They were all dealt with by non-custodial sentences.

Findings of sentencing judge

His Honour found that both offenders had "significant" roles in the drug distribution hierarchy. The finding was: "12 ... Without necessarily finding they are only one step above the street dealer, something which I frankly doubt but do not expressly find, the degree of packaging and the degree of involvement therein to pass these drugs down to the next level to enable the ultimate distribution is a significant fact that I take into account in reaching the conclusion that their role is a significant one." (Reasons [12])
His Honour found that both offenders were "well aware of just how large the quantity of drugs is" (Reasons [14]). His Honour assessed the objective seriousness of the supply offence at the mid range (Reasons [15]).
His Honour assessed the objective seriousness of the firearm offences as varying between the offenders. His specific finding was: (i) "I consider the objective seriousness of [the firearm] offences varies between the offenders because of their different roles in the possession of them. It is plainly Connell who is intending to use these weapons for a criminal purpose as he said it was for defence from criminal elements. Connell also appears responsible for introducing the firearms to the situation, given that they were ultimately found in his car. Consistent with this view, the nature of Black's possession of these weapons is of a lesser degree of seriousness than Connell's." (Reasons [20]) (ii) "I would assess the objective seriousness of the firearms offence relating to the sawn-off shot gun as being well below the mid-range in respect of Black and also below the mid-range for Connell, though I assess Connell's offending as slightly more serious ... I reach almost the same conclusions in respect of the possession of the pistol offence, which for each offender I consider just marginally of less seriousness as that weapon was handled only once in contrast to the shot gun which was handled twice" (Reasons [23-24]).
His Honour accepted that the applicant had insight and was "motivated to cease his offending behaviour for the benefit of his daughter" (Reasons [49]-[50]). The sentencing judge found remorse and that "the prospects of rehabilitation are reasonable though will take time" (Reasons [53]).
His Honour found that the applicant's criminal history was "one that is sufficient to deprive [him] of leniency that might be shown to somebody without any criminal history". His Honour noted that the fact that the applicant had never been sentenced to a term of imprisonment "reflected the low level of criminality involved" and that the "current offence reflects a degree of criminality very far removed from his earlier behaviour" (Reasons [57]).
His Honour found no aggravating features and accepted the applicant's submission that the "low level of the criminal history, the guilty plea and remorse ... the prospects of rehabilitation" were mitigating features (Reasons [58]-[59]).
The sentencing judge found special circumstances on the basis of rehabilitation requirements and the fact that it was the applicant's first time in custody (Reasons [64]).
In the same judgment, his Honour sentenced the co-offender, Mr Black, for the same three offences (Mr Black's matters on the Form 1 were different in that there were only two of them).
Matters of significance in the sentencing of Mr Black were: 1. Mr Black's offending occurred while on parole; 2. Mr Black admitted to being entrenched in a drug dealing lifestyle. He asserted that he was motivated to commit the offence in order to pay a large historical drug debt relating to a prior offence. His family had been threatened by the creditor/s and if he had not committed the offence, the matter would have ended in violence. Mr Black accepted that he would also benefit financially in addition to getting out of debt quickly. He was anxious prior to the arrest but felt it was too late to stop. He had insight into the impact of the offending and had expressed regret for having let his family down; 3. Mr Black was assessed as a person at medium risk of re-offending; 4. his earlier offending involved supplying 166g of methylamphetamine with a purity of 80 per cent. Except for that earlier offending, his Honour observed that Mr Black's record was similar to that of the applicant; 5. an older brother had committed suicide, but his upbringing was not deprived. In terms of substance abuse, he drank alcohol from his teenage years and first had cannabis at age 12. He took amphetamines as a teenager and smoked methamphetamine from about the age of 20. He was unemployed at the time of the offending but had previously worked as a panel beater and mechanic; 6. based on a psychiatric report from 2016, Mr Black had "good prospects of rehabilitation". His Honour found that "the evidence now is to the contrary and in a substantial way" (Reasons [84]); 7. Mr Black's Form 1 matters were found to be slightly less serious than the applicant, with the real point of difference being the absence of the deal with the proceeds of crime charge. (During the proceedings his Honour was told that the sentence summary was wrong and there were only two charges on Mr Black's Form 1.)

Ground 1 - his Honour erred in applying the discount for the applicant's plea of guilty to the aggregate sentence rather than to each indicative sentence

The applicant submitted that this ground of appeal is made out when one has regard to the way in which his Honour expressed himself when setting out the aggregate sentence and the indicative sentences: "62 In arriving at these indicative sentences and ultimately the aggregate sentence which I will set below I have been much guided by the discussion as to the comparable cases above. The result that I come to is that the indicative sentences, prior to applying the 25% discount, should be as follows: Supply large commercial quantity of MDA: 9 years: Possess shortened firearm: 2½ years: Possess pistol: 1½ years. 63 Allowing for the discount for the early guilty plea and allowing for a reasonable degree of concurrency for the firearms offences, I set an aggregate term of imprisonment pursuant to section 53A of 8½ years. 64 The Crown argued against special circumstances on the basis that due to the length of the sentence the statutory ratio would result in a lengthy period on parole to facilitate any rehabilitation. Based on the evidence of a psychologist this offender is facing a long period of rehabilitation and treatment and the certainty with which that might be provided in custody is far from certain. For that reason I consider rehabilitation requirements to justify a finding of special circumstances as does the fact that this will be the offenders first time in custody. For those reasons I find that there will be a non-parole period of 5½ years."
The applicant submitted that the effect of his Honour expressing himself in that way was that it was clear that the discount was applied to his Honour's determination of the aggregate sentence, not the indicative sentences. The applicant submitted that such an approach was erroneous in that it was well settled that the effect of s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act) is that the discount for a plea of guilty should be applied to and expressed when setting out the indicative sentence for each offence which makes up an aggregate sentence (R v Cahill [2015] NSWCCA 53, Elsaj v R [2017] NSWCCA 124 at [56], PG v R [2017] NSWCCA 179 at [77] and Berryman v R [2017] NSWCCA 297 at [31]). The applicant submitted that consistency in following this approach is more than pedantry (for the reason explained by Leeming JA in Ibbotson (a pseudonym) v R [2020] NSWCCA 92 at [9]-[17]). This was because applying the discount to the indicative sentences results in improving the transparency of the aggregate term and provides an insight as to the final application of important sentencing principles - particularly those relating to accumulation and concurrency. The applicant submitted that the weight of authority was to the effect that a failure to comply with s 53A(2)(b) of the Sentencing Act will ordinarily result in error which requires a re-exercise of the sentencing discretion.
The Crown agreed with the analysis of the applicable law given by the applicant but disagreed with the applicant's submission that the sentencing judge had applied the plea of guilty discount to the aggregate sentence rather than the indicative sentences. It was the Crown's position that if one correctly read what the sentencing judge said it was clear that his Honour had applied the discount to the indicative sentences.

Consideration

Both the applicant and the Crown put forward compelling arguments based on context and grammar to support their respective propositions. The most powerful submission on behalf of the Crown was that if his Honour had in fact applied the discount to the aggregate sentence, it would produce a figure of 11 years and 4 months as the starting point before application of the discount. The Crown submitted that this was an odd point from which to start.
On the other hand, his Honour's consistent references to the indicative sentences prior to the application of the discount tend strongly to support the submission of the applicant.
The end result is that I am unable to determine with any certainty what exactly it was that his Honour did in relation to the discount, i.e. did he apply it to the indicative sentences or to the aggregate sentence?
I have concluded that if the parties find themselves in a position where they are left to speculate about what matters a sentencing judge did or did not take into account, such circumstances will point to a failure on the part of the sentencing judge to sufficiently expose his or her reasons for sentence. In those circumstances, I also accept that such ambiguity in the sentencing reasons has the capacity to support a conclusion that the sentencing discretion has miscarried (Sanchet v Director of Public Prosecutions (Cth) [2006] NSWCCA 291 at [39]).
There Howie J (with whom Whealy J agreed) said: "39 However that might be, when the parties and an appeal court are left to speculate about what matters the judge did, or did not, take into account when determining the starting sentence or the discount applied to that sentence in order to arrive at the sentence imposed, it seems to me that the judge has failed sufficiently to expose his reasons for sentence such that the discretion must be taken to have miscarried. ..."
Regrettably, that circumstance appears to have arisen in this case. That being so, it is necessary that the sentencing discretion be re-exercised and that the applicant be re-sentenced. In doing so, it will be necessary to have regard to the sentence imposed on the co-offender, thereby raising for consideration the issue of parity. It is not therefore necessary to consider further Ground of Appeal 2.
In the case of re-sentence, the applicant relied upon the affidavit of his solicitor, Tracey Randall, of 19 November 2020. That affidavit provides information about the applicant's time in prison. His classification has been lowered to C2. He is currently working as a Clerk to the Manager of Industries in the Cessnock Correctional Centre. Generally speaking, he appears to be using his best efforts while in prison to rehabilitate himself.
His Honour's assessment of the objective seriousness of the applicant's participation in the supply offence at mid-range was not challenged in the appeal. It was accepted that his Honour in making that assessment took into account factors which were relevant and that the final assessment was open to him.
Similarly, no challenge was made to his Honour's assessment of the objective seriousness of the firearm offences in that both fell below the mid-range of objective seriousness with that involving the pistol being less serious than that involving the shotgun.
Similarly, there was no challenge to his Honour's assessment of the applicant's subjective case and his finding that although the applicant had had previous contact with the criminal justice system, that contact had been at a relatively low level. In that regard, his Honour found: "It is notable that the entirety of his offending with the possible exception of the assault charge and the knife charge is related to his substance abuse, be it alcohol or drugs. It has never resulted in a term of imprisonment reflecting the low level of criminality involved. The current offence reflects a degree of criminality far removed from his earlier behaviour." (Reasons at [57])
There was no issue that the past offending of the co-offender was significantly more serious than that of the applicant.
On the parity issue, as between the applicant and the co-offender, in addition to their criminal records, his Honour also noted that the co-offender was on conditional liberty at the time of the offending and that the subjective case of the applicant was considerably stronger than that of the co-offender. His Honour did not make any specific reference to the fact that the applicant had four matters on a Form 1, whereas the co-offender had two. That having been said, the level of offending set out on the Form 1 schedules, having regard to the three principal offences, was of a relatively low level.
When considering the matters to be taken into account on re-sentence, it is clear that the quantity of the drug increased the seriousness of the offending. However, the weight of the drug needs to be balanced against the fact that it was of low purity (i.e. between 5.5 percent and 6.5 percent). Consistent with his Honour's findings the supply offence stood substantially in isolation and did not take place over an extended duration. Moreover, and also consistent with his Honour's findings, it could not be concluded that the applicant played a high role in the distribution of the drug although the circumstances set out by his Honour precluded the applicant being treated as a lower end participant in the supply chain.
Taking those matters into account and in the independent re-exercise of the sentencing discretion, I assess the aggregate sentence to be imposed on the applicant to be 8 years, commencing 16 February 2019 and expiring 15 February 2027, with a non-parole period of 5 years and 2 months expiring 15 April 2024.
The indicative sentences after application of the 25 per cent discount for the early plea of guilty are as follows: 1. Supply a large commercial quantity - 6 years and 6 months; 2. Possess shortened firearm - 2 years and 3 months; and 3. Possess pistol - 1 year and 2 months.
It follows that the orders which I propose are: 1. Appeal allowed. 2. The sentence imposed on the applicant by Priestley SC DCJ on 16 December 2019 is quashed. 3. In lieu thereof, the applicant is sentenced to imprisonment for 8 years, commencing 16 February 2019 and expiring 15 February 2027 with a non-parole period of 5 years and 2 months expiring 15 April 2024.
DAVIES J: I agree with Hoeben CJ at CL.
FAGAN J: I agree with Hoeben CJ at CL.

Amendments 10 February 2021 - Typographical error in relation to indicative sentence - now reads "6 years and 6 months" in par 52(1). 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: 10 February 2021

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Judgment (11 paragraphs)

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