Cunningham v R

App: In person COUNSEL: Crown: J. Bennett SC

App: In person SOLICITORS: Crown: S. Kavanagh

IN THE COURT OF CRIMINAL APPEAL 2005/389

STUDDERT J WHEALY J HOWIE J

Wednesday 30 November 2005 BRENTON CUNNINGHAM v REGINA Judgment 1 STUDDERT J: The applicant, Brenton Paul Cunningham, seeks leave to appeal against sentences imposed by his Honour Judge Patten in the District Court at Gosford on 23 April 2004. The offences for which sentences were imposed were two counts of supplying a prohibited drug, namely cannabis leaf, selling a prohibited pistol to a person not authorised to purchase it, and possessing a prohibited weapon without authority. The judge was also asked to take account of additional charges listed pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999. Those offences were the following:

(a) unauthorised sale of a box of Winchester .22 ammunition;

(b) goods in custody, being motor vehicle registration plates;

(c) sale of a prohibited weapon, namely a silencer. 2 The sentences imposed were as follows:

(a) for the earlier offence of supplying cannabis leaf, a term of imprisonment of twelve months to date from 10 October 2003;

(b) for the later offence of supplying cannabis leaf, a term of imprisonment of twelve months to date from 10 October 2004;

(c) for the offence of sale of the prohibited weapon, taking into account the offences included in the Form 1, imprisonment for a non parole period of two years and a total term of four years to date from 10 October 2005;

(d) for the fourth offence of possession of prohibited weapon, a term of imprisonment of twelve months from 10 October 2005. 3 In summary then, the judge accumulated the sentences for the supply of cannabis leaf and the offence concerning the sale of the pistol, but made the sentence in respect of the silencer wholly concurrent with the sentence for the sale of the pistol. 4 Hence, the effective total term was six years with a non parole period of four years. This followed a finding of special circumstances. 5 The sentences were imposed following pleas of guilty first entered in the Local Court and adhered to when the applicant came before the District Court. 6 Each of the offences of supplying cannabis was in a category for which s 25(1) of the Drug Misuse and Trafficking Act provided a maximum penalty of ten years imprisonment. The offence of selling the prohibited pistol was in a category for which s 51(2A) of the Firearms Act 1996 provided a maximum penalty of imprisonment for twenty years. The offence of possession of a prohibited weapon (the silencer) was an offence contrary to the Weapons Prohibition Act 1998, and the statutory maximum penalty for this offence was imprisonment for fourteen years. 7 The relevant facts are set out in the remarks on sentence of the sentencing judge, upon which I now draw. The offences were detected during an undercover police operation targeting the applicant's activities. An undercover police officer codenamed "Jim" was involved. 8 The judge stated the facts which had been tendered in the sentencing proceedings in documentary form as follows: "On Monday 22 July 2002, Jim telephoned the accused on his mobile telephone and left a message for the prisoner to call him by sending an SMS message. This was done, and about 12.53 am on Tuesday 23 July, the prisoner telephoned Jim and during the conversation, the two of them negotiated the supply of one pound of cannabis leaf and a Jennings semi automatic pistol. About 11.37 am on 25 July, Jim telephoned the prisoner again and spoke with him. Further negotiations took place regarding the supply of one pound of cannabis leaf, and a Jennings semi automatic pistol. An agreed purchase price of $3,500 was agreed on for the purchase of the cannabis leaf, and $2,000 was agreed on for the purchase of the firearm. They agreed to meet at 6 pm in a car park at the Wyong Leagues Club. At 2.45 pm on that day, the prisoner telephoned Jim and advised the purchase price for the cannabis had been increased to $3,600. Subsequently, there were telephone calls regarding an alteration to the time of the meeting and then to confirm it. About 5.10 pm, Jim parked his vehicle in the car park of the Wyong Leagues Club. He telephoned the prisoner and spoke with him and the prisoner said that he would be there in 15 to 20 minutes. A short time later, the prisoner approached Jim in his car carrying a Mensland shopping bag. The prisoner got into the front passenger seat, conversation took place and the controlled purchase by Jim of one pound of cannabis leaf at a cost of $3,600 took place. The prisoner did not have the firearm in his possession and that sale did not then occur. On 28 July 2002, Jim telephoned the prisoner and spoke to him. A meeting was arranged for 5 pm on 1 August at the car park of the Wyong Leagues Club for the purchase of the Jennings pistol with silencer and ammunition. Thereafter there were exchanges between Jim and the prisoner regarding postponement and alterations of the time and place of the meeting, but ultimately at 6.55 pm on 5 August 2002, Jim parked his car in the car park of the Wyong Leagues Club. He then telephoned the prisoner who arrived a short time later. The prisoner got into the front passenger seat of Jim's vehicle where the controlled purchase of a Jennings brand .22 calibre semi automatic pistol silencer magazine and ammunition for the cost of $2,000 took place. During the meeting, the prisoner and Jim discussed the supply of other types of illegal firearms including a 9 millimetre Berreta semi automatic hand gun for the price of $5,000. Nothing ultimately came of these negotiations. On 11 August, Jim telephoned the prisoner and during the conversation, the prisoner stated that he was not willing to supply firearms any longer, but remained willing to supply cannabis. On Monday 2 September 2002, Jim telephoned the prisoner and in the ensuing conversation the purchase of one pound of cannabis leaf was arranged, and the transaction was agreed to take place at 6 pm on 3 September 2002 at the car park of the Wyong Leagues Club. Ultimately, at 6.21 pm, on 3 September 2002, Jim parked his vehicle in the car park of the Wyong Leagues Club. He telephoned the prisoner who a short time later entered the car park in a vehicle driven by a female. The prisoner entered the front passenger seat of Jim's vehicle and following a conversation, there was the controlled purchase by Jim of one pound of cannabis leaf for the sum of $3,600. During this transaction, larger future purchases of cannabis were discussed and there was a proposal for a discount for substantial quantities. The evidence reveals nothing further untoward however until 22 January 2003 when the prisoner was observed by police travelling in a Holden Commodore. The vehicle was followed to a shopping centre where the prisoner was arrested. He then declined to participate in an interview with the police and was charged." 9 The applicant was born on 1 October 1967. A report from the psychologist Ms Robilliard was before the judge after Ms Robilliard had interviewed the applicant in January 2004. In that report the psychologist recorded details of the applicant's early life. Significantly, he had a violent and alcoholic father and the appellant suffered a serious back injury as a young adult. The applicant told Ms Robilliard he looked to drugs for pain relief following that injury and the judge recorded that this perhaps contributed to the applicant's long term involvement with drugs. 10 The applicant has accumulated a formidable criminal history involving a variety of offences including drug matters, serious traffic matters and offences involving dishonesty. Recently, prior to sentence by the judge, the applicant had been sentenced to imprisonment for eighteen months, dating from 24 October 2000 with a non parole period of twelve months for a break and enter offence. Then, on 22 May 2002, traffic offences for which he was sentenced at Wyong Local Court attracted a term of imprisonment of ten months which was suspended upon the applicant entering a bond for a period of eighteen months. It follows that the subject offences were committed at a time when that bond was current. 11 The applicant gave evidence before the sentencing judge. He offered as an explanation for his involvement in the offences his association with a man he met in prison named Tony Caesar. According to the applicant, Caesar contacted him shortly after his discharge from prison and put him in touch with the undercover operative "Jim". The applicant claimed Caesar threatened him with violence if he did not look after "Jim". 12 It is to be observed that the judge did not form a favourable impression of the applicant when he was in the witness box. He said he did not regard the applicant's evidence as reliable, and he did not accept his explanation to the effect that he committed the crimes whilst his will was overborne by fear of Caesar (ROS 6). 13 However, the judge remarked that the applicant was under surveillance for months between the time of the commission of the first offence and the date of his arrest in January 2003 and there was no evidence or suggestion that he dealt illegally with anyone other than "Jim" during that period. The judge accepted that the applicant gained little from the subject transactions, and he accepted that he was low down in the chain of drug supply. 14 The judge took into account the utilitarian value of the applicant's pleas. The judge considered that the pleas may indicate some contrition, although the Crown case was a very strong one. The judge allowed a twenty percent discount for the pleas. 15 His Honour referred to the concluding paragraphs of Ms Robilliard's report: "Failure compounds negative feelings of self worth and adequacy and Brenton is struggling to deal with this aspect of his offences. His partner is continuing to support him so far and he is hoping to try and re-establish himself again on release from custody possibly interstate, as he still feels threatened. Brenton is currently withdrawing from methadone and is keen to be free of it. He wants to serve his sentence quietly and get back to his partner. His post release needs would be best assessed when he is approaching his release date as the situation may have changed. If he felt it was safe to stay on the Central Coast he would have contact and support from his mother and her partner there. He may also benefit from a period of monitoring and support through the Probation and Parole Service." 16 The judge made it plain from his remarks on sentence that he was influenced by what Ms Robilliard wrote in finding special circumstances. The judge considered it desirable that the applicant's rehabilitation be monitored for an extended period after release from custody. 17 I now turn to consider the grounds of appeal.

Grounds of appeal 18 The applicant makes this application without the benefit of legal representation. He has, however, prepared comprehensive written submissions which the Court has had the opportunity of considering. These submissions are undated, but the first set of submissions is a two page document and the later document, accompanied by a letter from the applicant's chaplain, is a six page document. That later set of submissions is accompanied by a declaration made by the applicant on 11 April 2005. 19 There is some repetition of grounds in the second and more detailed document. I shall endeavour to address the various matters which the applicant has raised for this Court's consideration.

The judge erred in failing to find that the offences were committed whilst the applicant was overcome by fear of Mr Caesar 20 As previously recorded, the applicant gave evidence before the judge and in the course of doing so referred to the role he attributed to Mr Caesar concerning the commission of the offences by the applicant. The applicant was examined and cross examined at some length before the judge, who had the opportunity of making his assessment of the applicant. The judge did not accept the applicant's evidence. He found it unreliable and the judge did not accept that the applicant committed the crimes whilst his will was overborne by fear of Mr Caesar. The specific findings of the judge to that effect are findings of fact which were available to his Honour and cannot be disturbed in this Court. Accordingly, this ground fails.

The judge misdirected himself as to the objective seriousness of the firearms offences 21 The applicant has referred to the weapon as being a small calibre weapon and to the silencer not fitting that weapon. 22 What his Honour said about the weapons offences was this (ROS 7): "The use of illegal firearms in society, an all too regular occurrence, is rightly regarded with absolute abhorrence by decent members of the community. That community expects, in my view, that judges will impose stern sentences for firearms offences, to operate particularly as a deterrent to this prisoner and to other like-minded persons." 23 Those observations by the sentencing judge were appropriate. This is so particularly having regard to the penalties provided by the legislature to which I made earlier reference. 24 I add that the transcript of the intercepted conversation between "Jim" and the applicant on 5 August 2002 records that the applicant asserted that the silencer could be fitted readily to the weapon he was selling to "Jim", and, although the applicant gave evidence contrary to that assertion, the judge was not obliged to accept that evidence. In any event, the judge made no error in the observation quoted.

That the judge erred in not allowing the appropriate discount for the plea of guilty 25 In R v Thomson (2000) 49 NSWLR 383 the Court of Criminal Appeal gave consideration to the appropriate discount range to serve the public interest in encouraging early pleas of guilty. In the course of his judgment in that case, Spigelman CJ said (at p 418 [152]-[153]): "In my opinion the appropriate range for a discount is from ten to twenty-five percent. The determination of where, within such a range, the discount should fall in a particular case is a matter for the discretion of the sentencing judge." 26 The applicant was arrested on 22 January 2003. He was granted bail on the following day but was taken back into custody on 10 October 2003 for breach of his bail conditions. He pleaded guilty to the charges when he came before the Local Court on 22 October 2003. 27 The judge considered that a discount of twenty percent was appropriate for reasons which he expressed. His Honour correctly recognised the utilitarian value of the pleas and I am not persuaded that there was any error by his Honour in arriving at a discount of twenty percent.

The judge erred in not making all sentences concurrent 28 The task of the judge in sentencing the applicant was to fix an appropriate sentence for each offence and then to consider the question of cumulation or concurrence as well as questions of totality: see Pearce v The Queen (1998) 194 CLR 610 and in particular the joint judgment of McHugh, Hayne and Callinan JJ at 624 [45]. 29 Each of the supply offences was a discrete offence. The first offence was committed on 25 July 2002 and the later offence was on 3 September 2002. Each offence involved the same quantity of cannabis and I consider that it was appropriate that the sentences be for the terms stated and that they be accumulated. Moreover, it was proper in the circumstances that his Honour decided to accumulate the sentence for the sale of the prohibited pistol. In fixing that sentence the judge took into account the matters on the Form 1. Nor does there seem to be any error in the judge giving the applicant the benefit of a concurrent sentence for the possession offence. 30 No departure from the principles stated in Pearce has been demonstrated, and this ground also fails.

The judge erred in failing to take into account assistance given by the applicant 31 The issue of assistance was the subject of evidence in the sentencing proceedings. 32 There was evidence from the applicant and there was evidence from Det. Snr Constable Biasi on this issue. I do not propose to summarise the evidence that was given but, at the conclusion of cross examination of Constable Biasi, his Honour asked this question and the police officer gave this response (T 15, 20 April 2004): "Q. The outcome of your evidence, as I understand it, is that for whatever reason Mr Cunningham did not ultimately provide any useful assistance to the police, is that so. A. Yeah, that's so. We just felt he was playing both sides. First he was telling us something. We would deploy a lot of resources to the area and then weren't able to contact him for instance, or whatever he was telling us wouldn't eventuate, so we were losing a lot of time and resources…" 33 In his sentencing remarks the judge adverted to what occurred on the question of assistance after the applicant was granted bail in January 2003. At ROS 6-7, his Honour said: "There is no doubt that the police were anxious to enlist his support, and that for a time he purported to cooperate. However, in the result he proved unreliable, possibly because he feared for his safety. I accept the evidence of Senior Constable Biasi that he provided no useful assistance. The only relevance of what happened after his arrest in my opinion is that he did not establish an entitlement to any discount for assistance to authorities…" 34 That finding was a finding which his Honour was entitled to make. It was a finding of fact which is not really open to challenge in this Court.

The sentence was manifestly excessive 35 The judge was charged with the task of imposing sentences that properly reflected the seriousness of the offences that were charged, and I regard the sentences that were imposed as within the range of the judge's sentencing discretion. The submission that the sentences were manifestly excessive has not been established.

Consideration of the health of the applicant 36 The applicant has written that when he was sentenced he believed he was suffering from depression and that he had physical symptoms. He said he suffered from hepatitis C and that his health is getting worse. 37 The applicant gave evidence before the judge of concern about weight loss and fear that there were cancer antibodies in his blood. Medical records were tendered but there was no comprehensive medical report, and those records that were tendered the judge may well have found to be of no real assistance in his sentencing task. It is understandable that his Honour did not attempt a detailed analysis of the content of those records in the remarks on sentence. For my part, I do not find anything in the records indicative of error in the sentencing approach exposed by his Honour's remarks on sentence. 38 The applicant has placed before the Court a letter from the Reverend Des Cox, who has been seeing the applicant in his capacity as chaplain of the Kempsey gaol. The applicant has, in his submissions, adverted to the steps towards his rehabilitation he has taken whilst in custody. The applicant has added to what he has written in what he has said this afternoon without the benefit of notes that he had prepared. He informed the Court that he had done courses since he has been in custody. He has had an active involvement with the church with the assistance of the Reverend Mr Cox, there has been no dirty urine and the applicant is to be encouraged to continue with those measures he has been taking to date to prepare himself for his release from custody in due course. However, the events that have occurred whilst the applicant has been in custody serving his sentences do not allow this Court to intervene in the absence of error being demonstrated in the approach adopted by the sentencing judge. 39 In my opinion, error has not been demonstrated by the applicant, and I would therefore propose that leave to appeal be granted but that the appeal be dismissed. 40 WHEALY J: I agree. 41 HOWIE J: Yes. I also agree. 42 STUDDERT J: The orders of the Court will be those I have proposed. **********

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