Cullen v R

Court of Criminal Appeal (NSW)|2014-08-11|Before: Adamson J, Bellew J, MacFarlan JA

Judgment 1MACFARLAN JA: I agree with Adamson J. 2ADAMSON J: The applicant seeks leave to appeal against the sentence imposed by Blackmore DCJ on 21 June 2013 of twelve years with an eight year non-parole period commencing 26 February 2013, after the applicant's plea of guilty to five offences. 3The offences for which the applicant was sentenced are as follows: Offence Facts Maximum penalty/ SNPP Count 1 Supply a large commercial quantity (more than 4 kg) of prohibited drug (gamma-Butyrolactone) 11,389.1 g of gamma-Butyrolactone Life/ SNPP of 15 years (Drug Misuse and Trafficking Act 1985 (DMTA) s 25(2)) Count 2 Supply a large commercial quantity (more than 0.5 kg) of prohibited drug (3,4-methylenen-dioxymethyl-amphetamine) 991.35 g of 3,4-methylene-dioxymethyl-amphetamine Life/ SNPP of 15 years (DMTA, s 25(2)) Count 3 (DMTA, s 25(1)) Supply prohibited drugs 30.52 g of methylamphetamine Maximum penalty 15 years/ no SNPP Count 4 (DMTA, s 25(1)) Supply prohibited drugs 9.29 g cocaine Maximum penalty 15 years/ no SNPP Count 5 (DMTA, s 25(1)) Supply prohibited drugs 181.84 g ketamine Maximum penalty 15 years/ no SNPP

4There were further offences on a certificate pursuant to s 166 of the Criminal Procedure Act 1986 (NSW): goods in personal custody ($8,765 and $4,550); possess prohibited weapon (taser); possess prohibited drug (.94 g of 4-methoxymethylamphetamine); and possess prohibited drug (9.29 g cocaine). The last-mentioned charge was dismissed because it was a back-up charge to the offence of supply to which the applicant pleaded guilty. The applicant pleaded guilty to the matters on the s 166 certificate except the two goods in personal custody offences. 5There are two grounds of appeal: first, that the sentencing judge failed to state the commencement date with respect to each of the sentences imposed; and secondly, that the sentence was manifestly excessive.

The facts 6The narrative of facts set out below derives from the agreed facts, which were recounted in the remarks on sentence. 7In the course of investigation through a Strike Force police investigators identified the applicant to be the supplier of methylamphetamine (also known as ice). They ascertained that he lived in Brumby Street, Surry Hills. 8At about 9.25 pm on Thursday 12 July 2012 police saw a black Honda motor cycle enter the Campbell Street entrance of a car park in Castlereagh Street, Sydney. The rider, who was the applicant, was wearing a black helmet, white motorcycle jacket with black markings, dark coloured pants and black motorcycle boots. Police observed the rider travel to P1 of the car park and meet with a man. A few minutes later the rider left the car park. Police noticed that "AGV" was written in white on the back of the rider's black helmet. When police stopped the rider, he was found to be in possession of a clear resealable bag which contained a number of small resealable bags that contained a clear crystalline substance thought to be ice. 9At about 3 am on 13 July 2012 police, pursuant to a lawful search warrant, gained entry to the foyer of the unit complex where the applicant lived in Surry Hills. At this time, the applicant came out of the lift wearing the same motorcycle helmet and jacket in which he had been observed previously. Police searched the applicant and found: a brown paper bag inside a bum-bag which contained $8,765 in Australian currency in two separate bundles; a blue pencil case in the rear pocket of his motor cycle jacket that contained a resealable bag that contained two separate resealable bags of clear crystal substance, a glass vial with an attached eyedropper containing a clear liquid substance and a glass pipe. They also found three keys: a front door key to the applicant's apartment, a key to a toolbox and safe in his bedroom and a key to a motor vehicle. The applicant told police that he lived by himself. 10The applicant was taken into custody and remained at the Surry Hills Police Station while the police executed the search warrant on his unit. Police found syringes, plastic containers, scales and "drug ledgers". There were numerous resealable bags in the bathroom cabinet. In the kitchen there was a "Cornwell's Vinegar" bottle that contained a clear liquid which was confirmed on analysis to be 502 g of gamma-Butyrolactone. Two further such bottles were found, which contained a total of 990 g of the same drug. On the top shelf of the fridge, police found a Glad container with paste inside which was confirmed on analysis to be 4.12 g of methylamphetamine. 11The toolbox in the bedroom was opened with the key that had been taken from the applicant. It contained various drugs in various drugs in separate resealable bags. The drugs were methylamphetamine, cocaine, ketamine and 3,4-methylene-dioxymethyl-amphetamine. The locked safe in the applicant's bedroom contained $4,550 in Australian currency together with further quantities of drugs. Additional quantities of drugs were found in the bedroom. 12A search of the motor vehicle that the applicant leased revealed a Taser, an electronic stun device in the driver's side door compartment, on which DNA closely matching the applicant's was found. 13The applicant's mobile phone revealed information relating to the supply of prohibited drugs, including what appeared to be the cost price for each one. The total amounts of the prohibited drugs found in the applicant's apartment are the amounts set out in the table of offences above.

The remarks on sentence 14After recounting the facts which are summarised above, his Honour recorded that the applicant did not assert (nor could he, having regard to the quantities involved) that the drugs found in his unit were for personal use. His Honour noted that the two offences of supplying a large commercial quantity were neither at the bottom of the range, nor in the middle of the range for objective seriousness. The sentencing judge found that the applicant was "plainly a large scale drug dealer". 15The sentencing judge accepted that the applicant was an end-supplier, in that he supplied to individuals rather than on-selling to other drug dealers, who would in turn supply to users. 16His Honour noted the applicant's lack of criminal record and the early plea of guilty for which a discount of 25% was allowed. The sentencing judge summarised the subjective circumstances and noted that the applicant was thirty years old and had had a difficult upbringing as his mother suffered from manic depression. He was apprenticed as a baker and was adjudged the best apprentice in his year. His strong work drive led him to manage a large restaurant in Perisher Valley. 17The sentencing judge referred to the opinion of Dr Hampshire, psychiatrist, who formed the view that the applicant might also be suffering from a form of manic depression and that his desire to work long hours through manic periods when he had almost limitless energy was indicative of that condition. At times he would take drugs to help him stay awake but at other times he would abstain completely. 18The sentencing judge noted that the applicant was running a successful personal training business and was struggling with a decision regarding a personal relationship. He returned to drug-taking as a result. His Honour addressed the effect of the applicant's mental illness (manic depression) on the offending in the following terms: "It is submitted that his personality, which is influenced by his condition, is such that he is predisposed to drug taking. That is a view that Dr Hampshire expressed. Again I note that that is not challenged by the Crown. Despite this, there is a vast difference between taking drugs and dealing in those drugs to the extent that you are involved in possessing large commercial quantities of those drugs. Undoubtedly, the drug taking can be seen as a lead-in to the offence but the offence itself is so serious that it is only available as an explanation for conduct. It does not excuse it. It is possible that his manic depression should moderate the need for the sentence to reflect general deterrence. Persons who suffer that condition are known to take risks that others would avoid. They also have a predisposition to drug taking. In my view, the fact that he likely suffers this condition is a factor that does reduce the need for the sentence to reflect general deterrence to some extent." 19His Honour found the applicant to have good prospects of rehabilitation and accepted his expression of contrition as genuine. His Honour addressed the seriousness of the offending in the following terms: "Given the seriousness of the offending, had these matters gone to trial and the offender been convicted, then a very lengthy head sentence would have been applied. Even allowing for the finding that his mental condition would ameliorate the need for the sentence to reflect general detention [sic deterrence], given the maximum penalties that apply together with the standard non-parole period, a sentence of less than sixteen years would have been extremely unlikely." 20The sentencing judge found special circumstances on the basis of the applicant's prospects of rehabilitation and his mental condition which will need to be treated and monitored in the future. 21As the first ground of appeal turns on an alleged inconsistency between the remarks on sentence and the sentence imposed, I shall set out the relevant passages: "I will fix an aggregate sentence in relation to the offences of supplying a large commercial quantity of gamma-Butyrolactone and 3,4-methylene-dioxymethylamphetamine. In each case there will be a penalty of nine years imprisonment with a non-parole period of six years. In the case of supplying ketamine there will be a sentence of two years and six months imprisonment. In each of the other two offences of supply there will be a sentence of two years imprisonment. The sentences will be partially accumulated. ... Would you stand, sir. You are convicted of each of the two offences of supplying a large commercial quantity of drugs and the three offences of supplying drugs as indicated. I sentence you to a non-parole period of eight years imprisonment commencing on 26 February 2013. That is a date which takes into account your pre-sentence custody. The non-parole period will end on 25 February 2021. I recommend your release to parole at that time. There will be a further period of four years on parole."

Relevant statutory provisions 22The Crimes (Sentencing Procedure) Act 1999 (NSW) relevantly provides: 44 Court to set non-parole period (1) Unless imposing an aggregate sentence of imprisonment, when sentencing an offender to imprisonment for an offence, the court is first required to set a non-parole period for the sentence (that is, the minimum period for which the offender must be kept in detention in relation to the offence). . . . (2A) Without affecting the requirement to set a non-parole period for a sentence, a court imposing an aggregate sentence of imprisonment in respect of 2 or more offences on an offender may set one non-parole period for all the offences to which the sentence relates after setting the term of the sentence. . . . (2C) The court need not indicate the non-parole period that would have been imposed for each offence had separate sentences been imposed instead of an aggregate sentence unless it is required to do so by section 54B. 53 Multiple sentences of imprisonment (1) When a court imposes a sentence of imprisonment on an offender in relation to more than one offence, the court must (unless imposing an aggregate sentence of imprisonment in accordance with section 53A) comply with the requirements of this Division by imposing a separate sentence in relation to each offence. (2) The term, and any non-parole period, set under this Division in relation to a sentence of imprisonment is not revoked or varied by a later sentence of imprisonment that the same or some other court subsequently imposes in relation to another offence. 53A Aggregate sentences of imprisonment (1) A court may, in sentencing an offender for more than one offence, impose an aggregate sentence of imprisonment with respect to all or any 2 or more of those offences instead of imposing a separate sentence of imprisonment for each. (2) A court that imposes an aggregate sentence of imprisonment under this section on an offender must indicate to the offender, and make a record of, the following: (a) the fact that an aggregate sentence is being imposed, (b) the sentence that would have been imposed for each offence (after taking into account such matters as are relevant under Part 3 or any other provision of this Act) had separate sentences been imposed instead of an aggregate sentence. (3) Subsection (2) does not limit any requirement that a court has, apart from that subsection, to record the reasons for its decisions. . . . 54B Consideration of standard non-parole period in sentencing (1) This section applies when a court imposes a sentence of imprisonment for an offence, or an aggregate sentence of imprisonment with respect to one or more offences, set out in the Table to this Division. . . . (4) When determining an aggregate sentence of imprisonment for one or more offences, the court is to indicate, for those offences to which a standard non-parole period applies, the non-parole period that it would have set for each such offence to which the aggregate sentence relates had it set a separate sentence of imprisonment for that offence. 23Item 19 of the Table to Division 1A of Part 4 of the Act stipulates that there is a standard non-parole period of 15 years for offences of supplying a large commercial quantity of a prohibited drug contrary to s 25(2) of the DMTA in the present case. 24Rule 12 of the District Court Rules 1973, Part 53 relevantly provides: Entry and recording of judgments, orders, sentences, directions or recommendations Any judgment, order, sentence, direction or recommendation given or made by a Judge in any proceedings shall be entered on: (a) the indictment in the proceedings, (b) the appropriate court file, or (c) the appropriate computer record, and that entry shall, when signed by the Judge or entered on the appropriate computer record, be the record of the judgment, order, sentence, direction or recommendation.

Ground 1: alleged failure to state the commencement date with respect to each of the sentences imposed 25There are two methods which may be adopted by a sentencing judge when sentencing an offender for multiple offences. The first method is to impose a sentence for each offence: s 53 of the Act. When this occurs, it is necessary for the sentencing judge to specify the commencement of the term, the non-parole period and the first day on which the offender will be eligible for parole. The degree of concurrence and accumulation between individual sentences will be apparent from the commencement dates for each sentence imposed. The second method is for an aggregate sentence to be imposed under s 53A of the Act. In that event the sentencing judge imposes an aggregate sentence for all the offences. However, the judge is obliged, by reason of s 53A(2) to stipulate indicative sentences for each offence, although such stipulation is not necessary for the validity of the aggregate sentence: s 53A(5) of the Act. 26Where a sentencing judge adopts the second method, and imposes an aggregate sentence, only the commencement date for the aggregate sentence and the non-parole period need be stipulated. The degree of concurrence and accumulation is implicit, since the indicative sentences are not actually imposed. They merely indicate the sentences the judge would have imposed had separate sentences been imposed for each offence. 27It is also open to a sentencing judge to adopt both methods. This will be appropriate where some of the offences are in a similar category and it is adjudged that an aggregate sentence is suitable in respect of them and others warrant the imposition of individual sentences. 28In the present case it is, on a first reading of the remarks on sentence, not immediately clear which method the sentencing judge applied. The applicant contended that his Honour purported to impose an aggregate sentence for the first two counts of supplying large commercial quantities of prohibited drugs. The applicant relied on his Honour's use of the language of imposition of sentence, rather than the language of an indicative sentence when he said: "In each case there will be a penalty of nine years imprisonment with a non-parole period of six years." 29The applicant also contended that, when his Honour came to deal with the offences of supply, his Honour purported to impose a sentence of two years and six months for the offence of supplying ketamine and sentences of two years each in respect of the other two supply offences. His Honour then said: "The sentences will be partially accumulated." 30The reference to the sentences being "partially accumulated" begs the question as to when each sentence was due to commence and when it was due to expire so that the accumulation would be evident, as it is required to be when the first method (individual sentences for individual offences) is selected. The applicant contended that his Honour intended to sentence him by reference to s 53 for the supply offences and had failed to specify a commencement date for any of the offences. The applicant submitted that the sentences imposed were erroneous and ought be set aside. 31There is an important distinction between the sentence imposed and the remarks on sentence. There is a right of appeal to this Court, by leave, from a sentence: s 5(1)(c) of the Criminal Appeal Act 1912 (NSW). The remarks are the reasons for the order, in this case, a sentence, and are given at the time the sentence is imposed. The remarks do not constitute the orders of the Court or the sentence imposed. In the course of delivering remarks on sentence it is not unusual for judges to foreshadow what the sentence is going to be, although some choose to refrain from disclosing it until the sentence is actually imposed. The only sentence actually imposed is the one pronounced at the conclusion of the remarks on sentence. 32Since sentences for individual offences must be indicated (but not imposed) where aggregate sentences are imposed, they are to be found in the remarks on sentence. Although the applicant contended that his Honour was effectively imposing separate sentences for separate offences, such a reading would fail to give weight to the fact that no commencement date for sentence terms was given, which of itself is a powerful indication that they were all intended to be indicative sentences. Of greater importance, no orders were made imposing those sentences at the conclusion of the remarks. Further, the stipulation of non-parole periods for the two offences of supplying a large commercial quantity was unnecessary for practical purposes since an aggregate sentence was imposed, but required as a matter of law by s 54B(4) of the Act, with which his Honour complied. 33In the present case the only sentence imposed was a sentence of twelve years with a non-parole period of eight years that commenced on 26 February 2013. This appears from the record of what his Honour said and is confirmed in the following extract of the formal order of the Court that recorded as follows: "Indication of sentences *2x Supply large commercial quantity (Seq 4 & 12) - 9 years imprisonment (non-parole period 6 years) *Supply ketamine (Seq 13) - 2 years 6 months imprisonment *2x Supply (Seq 6 & 7) - 2 years imprisonment Aggregate sentence *Sentenced to a non-parole period of 8 years imprisonment to date from 26/2/13 with an additional parole period of 4 years to expire 25/2/25 *Eligible for release to parole 25/2/21 *Whilst on parole Offender is subject to supervision by NSW Probation & Parole Service, in particular with regard to supervised treatment of mental condition" 34The official record of the sentence imposed is no mere formality. The importance of the record lies behind the general rule as to finality of orders, applicable to civil and criminal orders, which was expressed by Barwick CJ in Bailey v Marinoff [1971] HCA 49; 125 CLR 529 at 530: "Once an order disposing of a proceeding has been perfected by being drawn up as the record of a court, that proceeding apart from any specific and relevant statutory provision is at an end in that court and is in its substance, in my opinion, beyond recall by that court." 35The importance of the court's record was reiterated in the criminal context in Burrell v The Queen [2008] HCA 34; 238 CLR 218, per Gummow A-CJ, Hayne, Heydon, Crennan and Kiefel JJ in the following passages: [17] . . . The premise for the arguments of both the appellant and the respondent was that the formal recording of the orders of the Court of Criminal Appeal was a significant step. Why is that so? . . . [18] The formal recording of the orders of a superior court of record is often referred to as the "perfecting" of that order. Whether a court may reopen a proceeding and reconsider the order that has been pronounced is often described as hinging about whether the order has been "perfected". . . . [20] Identifying the formal recording of the order of a superior court of record as the point at which that court's power to reconsider the matter is at an end provides a readily ascertainable and easily applied criterion. But more than that, identifying the formal recording of the order as the watershed both marks the end of the litigation in that court, and provides conclusive certainty about what was the end result in that court. [Emphasis added.] (See also Achurch v The Queen [2014] HCA 10; 306 ALR 566 at [14]-[18]) 36The relevant part of the record of the District Court set out above was entered on the appropriate court record (JusticeLink)and accordingly is the record of the sentence by reason of rule 12 of Part 53 of the District Court Rules 1973 (see also Erceg v The District Court of New South Wales [2003] NSWCA 379; 143 A Crim R 455 at [22], [23] per Sheller JA and [115]-[116] per McColl JA). 37The court record of the sentence imposed is consistent with the sentencing judge's obligations under s 53A and s 54B(4) of the Act. It fortifies the conclusion that the sentences referred to in the remarks, which were not actually imposed by the judge at the conclusion of the hearing, are indicative sentences, stipulated to comply with s 53A(2)(b) of the Act. 38This Court should be slow to infer that a sentencing judge has not approached the sentencing task in accordance with the applicable law, where the sentence imposed and the accompanying remarks are capable of being construed in such a way that shows that the judge applied the law correctly. This approach is neither to forgive or conceal error, but rather to give appropriate allowance to some occasional infelicity of expression that may arise in the course of ex tempore judgments. Shorthand expressions, which may appear erroneous to those unfamiliar with sentencing practices, may simply be efficient abbreviations adopted by judges who are required to sentence immediately following a hearing and give their remarks ex tempore. 39It was open to his Honour, consistently with the Act, to impose an aggregate sentence of twelve years with a non-parole period of eight years, having regard to the finding of special circumstances. In that event his Honour was required to specify indicative sentences for each of the five offences, in respect of which there was no need to specify the commencement or expiry date. In my view, that is not only what his Honour ought reasonably be taken to have done, but also what his Honour actually did. 40Accordingly, the first ground has not been made out.

Ground 2: manifest excess 41The starting point of the sentence was sixteen years, before the allowance of 25% was made for the plea of guilty. The discounted total term of twelve years would have given rise to a non-parole period of nine years, but for his Honour's finding of special circumstances, which permitted his Honour to adjust the statutory ratio provided for in s 44(2) of the Act. The adjusted ratio between the non-parole period and the balance of the term was 2:1. 42The standard non-parole period for the offences under s 25(2) of the DMTA is 15 years. His Honour found that the applicant was "plainly a large scale drug dealer". 43The applicant contended that his Honour had failed to take into account sufficiently the applicant's mental condition, his contrition or his prospects of rehabilitation and relied on the passage in the remarks which is set out above in which his Honour said that if the matter had gone to trial a sentence of less than sixteen years "would have been extremely unlikely". The applicant submitted that what his Honour in fact did was to adopt sixteen years as the starting point and apply the discount for the plea. The applicant contended that his Honour did not further "discount" the sentence to take into account the applicant's mental condition, his genuine contrition or his good prospects of rehabilitation, all of which were mitigating factors. 44It is inapposite to talk of a "discount" for contrition, rehabilitation or mental condition. The only true "discounts" are those for which specific statutory provision is made, such as the discount for a plea (s 22 of the Act) and the discount for assistance to authorities (s 23 of the Act). Good prospects of rehabilitation are to be taken into account as a mitigating circumstance (s 21A(3)(h) of the Act), as is contrition, or remorse (s 21A(3)(i) of the Act). A mental condition cannot be regarded as either mitigating or aggravating since it depends on the circumstances: it may, for example, diminish moral culpability and lessen the requirement for general deterrence but may increase the risk of future offending: R v Engert (1995) 84 A Crim R 67 per Gleeson CJ. 45The applicant's argument is based on the practice of adopting a mathematical approach to particular factors germane to sentencing which was disparaged in Wong v The Queen [2001] HCA 64; 207 CLR 584 at [76]-[78]. As the High Court said in Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [39]: "Following the decision of this Court in Wong it cannot now be doubted that sentencing courts may not add and subtract item by item from some apparently subliminally derived figure, passages of time in order to fix the time which an offender must serve in prison." 46The second matter is that the reference by the sentencing judge to the circumstance that it would be extremely unlikely that, if the matter had gone to trial, a total sentence of less than sixteen years would have been imposed ought not, in my view, be elevated beyond its terms. I do not consider that it ought fairly be read as amounting to a statement that the applicant would have been sentenced to a term of sixteen years if he had gone to trial and been convicted. The applicant's submission that the 16 years should be discounted by 25% (for the plea) and then further "discounted" for contrition, prospects of rehabilitation and mental condition rests on the incorrect premise that the sentencing judge's remark ought be read in that way. In my view, that observation made by the sentencing judge ought be taken to be no more than the type of hypothetical setting of limits that can occur in the course of delivery of ex tempore remarks on sentence. 47Manifest excess is a conclusion: Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at [6]. As can be seen from the table at the commencement of these reasons, the drug offences of supplying a large commercial quantity of drugs each carry a maximum life sentence and a standard non-parole period of 15 years. The other supply offences carry a maximum term of 15 years. These legislative guideposts provide an indication of the seriousness with which Parliament views such offences: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [27]. The difficulties of detecting drug offences and the great social consequences that follow from their commission are relevant features of such offences: Wong v The Queen at [64] per Gaudron, Gummow and Hayne JJ. 48His Honour's finding that the applicant was a "large scale drug dealer" was not challenged and was amply open on the evidence. Although the sentencing judge found that the applicant was manic depressive, his Honour found him to he "capable of controlling its effects in the future". Whilst the sentencing judge considered the need for general deterrence to be modified in the present case, the fact that the applicant was found to be able to control himself in the future indicates that a susbtantial sentence was called for. 49I do not regard the second ground of manifest excess as having been made out.

Proposed orders 50Accordingly, I propose the following orders: (1)Grant leave to appeal. (2)Order that the appeal be dismissed. 51Bellew J: I agree with Adamson J.

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: 19 August 2014

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