BATHURST CJ: I have had the advantage of reading the judgment of McCallum J in draft. I agree with the orders proposed by her Honour and with her Honour's reasons.
HOEBEN CJ at CL: I agree with McCallum J.
McCALLUM J: Liam Cunningham seeks leave to appeal against the sentence imposed upon him in the District Court after he pleaded guilty to one count of supplying a prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW). The maximum penalty for the offence was imprisonment for fifteen years. The drug in question was 15.86g of psilocin mushrooms, also known as "magic mushrooms". Two further charges were taken into account on a Form 1 schedule, relating to 4.1 grams of cannabis and a bottle of morphine hydrochloride.
The applicant had pleaded guilty at the earliest opportunity and was allowed a discount of 25% to reflect the utilitarian value of the plea. He was sentenced to a period of 12 months imprisonment to be served by way of an intensive correction order.
The applicant raises two grounds of appeal as follows:
1. The learned sentencing judge erred in failing to impose a non-custodial sentence.
2. The sentence imposed was manifestly excessive.
The offences may be described briefly. The applicant came to the attention of police when it was reported that his car was parked close to the Gap at Vaucluse at 4:20am. Owing to the Gap's reputation as a place attended by people at risk of self-harm, police approached the car. They saw the applicant sitting in the driver's seat. He was shirtless, despite cold temperatures. The car was searched. The psilocin mushrooms were found in two separate bags in the glove box together with a small set of scales. The cannabis was found in the passenger side footwell. The bottle of morphine hydrochloride was found in the boot. It had been prescribed to the applicant's mother, who had died of lung cancer in May 2013.
The applicant was arrested and agreed to participate in a recorded interview. He gave police a version of events which, if accepted, would found a charge of possession rather than supply. He said the mushrooms belonged to an unnamed friend who had travelled to Europe and that he was minding them for this friend pending his return. He said when the friend returned they intended to use the mushrooms during a road trip to the outback. He also said he was aware the friend was selling the mushrooms. He said the set of scales also belonged to the friend and was used in his sale of the drug. The applicant said in his friend's absence he had been using the scales to weigh the drugs for his own use.
The applicant admitted possession of the cannabis stating that it was for his own personal use. As to the bottle of morphine, he told police it had been prescribed to his mother and that she had died of cancer. He said it was his intention to throw the bottle off a cliff for sentimental reasons.
The proceedings on sentence first came before Judge Berman on 10 March 2016. Noting this Court's criticism of judges who reject unchallenged statements of fact without giving an offender an opportunity to address any concerns, his Honour expressed a concern as to "whether there really was an unknown friend involved in this at all or whether the mushrooms were always your client's".
In response to those remarks, the applicant was called to give evidence. He gave an account substantially in accordance with what he had told police, except he denied any knowledge as to whether the unnamed friend was going to supply the drugs to any person other than the applicant. At that point, the judge stopped the evidence and called upon the applicant's counsel to say why the matter should not be listed for trial, since the applicant's evidence traversed the plea. After a short adjournment, the applicant went back into the witness box and said the mushrooms were his and that he was planning to share them with the unnamed friend when he returned from Europe.
After hearing that further version, the judge gave the applicant a stern warning, contending that he had lied in his earlier versions and noting that one possible conclusion was that the applicant had the mushrooms for the purpose of supplying them generally, not just to an unnamed friend (whom the applicant refused to name). The applicant acknowledged the warning and said nothing further.
The applicant presented a strong subjective case. He was aged 19 years at the time of the offence. He had smoked marijuana from the age of 16 but not heavily. His more substantial drug use began after the death of his mother, which was during the year he completed the HSC. He had strong support from his father and glowing references from family friends. There was also before the Court a report from a psychiatrist, Dr Christopher Cocks. Dr Cocks recorded that, following the applicant's first appearance in the Local Court for these charges, he had an altercation with family members during which he was irritable and erratic. The applicant called police following an altercation with his father and found himself taken for assessment under the Mental Health Act 2007 (NSW). He was admitted to a psychiatric ward with a diagnosis that he was having a manic episode. He was ultimately diagnosed with bipolar disorder. He spent five weeks in hospital at that stage.
By the time of the proceedings on sentence, the applicant had made significant steps towards rehabilitation. With the benefit of medication, his mood had stabilised. He said he had not used illicit drugs since the commission of these offences.
At the conclusion of the evidence, the judge determined to adjourn the proceedings under s 11 of the Crimes (Sentencing Procedure) Act 1999 (NSW) so as to afford the applicant an opportunity to demonstrate his rehabilitation. Specifically, the judge was interested to see whether the applicant would find work, as he said he intended, and whether he was telling the truth when he said he was no longer using drugs. The order contemplated that, for a period of eight months, the applicant would be supervised by the Probation and Parole Service who were to conduct regular and random urinalysis. In the event that Probation and Parole did not conduct urinalysis at least fortnightly, the applicant was to arrange urinalysis at his own expense. The judge made plain that urinalysis, whether conducted by Probation and Parole or privately, was to take place at least fortnightly.
When the proceedings came back before the Court on 11 November 2016, the applicant had only partly complied with that requirement. All of the tests that were conducted were clear of any drug. However, he had undergone only 11 tests over a period of 17 fortnights. Most of the tests were more than two weeks after the previous test and there were no tests at all during the month of September. An explanation was proffered. Having regard to the clear terms of his order, the judge commented that it was "a bit suspicious".
The judge gave a short judgment reciting the history of the different versions given by the offender as to whether he or the unnamed friend bought the mushrooms. His Honour said:
The offender has given no further evidence today so I am no better informed as to precisely what the offender was doing with the mushrooms. I have doubts as to whether I am being told the truth. I will sentence the offender on the basis that he had the drugs in his possession for the purposes of supplying them, beyond that I can say no more.
His Honour noted a submission put on behalf of the applicant that a suspended sentence under s 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW) would be appropriate and expressed his disagreement with that submission, saying:
Although a section 12 bond is in a real sense a punishment, in my view it is insufficient to reflect the objective gravity of what the offender did.
His Honour was satisfied that a sentence of two years or less was likely to be imposed and that, if the applicant was suitable for intensive correction order, that would be the form of sentence that should be imposed.
The applicant was assessed suitable for an intensive correction order. In a short further judgment given on 27 January 2017, the judge reiterated his view that a suspended sentence would be insufficient to reflect the objective gravity of the offending, repeating his earlier finding that the applicant stood to be sentenced on the basis that he had drugs in his possession for the purposes of supplying them but that, beyond that, no more could be said.
[2]
Ground 1 - alleged error in failing to impose a non-custodial sentence
Section 5(1) of the Crimes (Sentencing Procedure) Act forbids a court from sentencing an offender to imprisonment unless satisfied, having considered all possible alternatives, no penalty other than imprisonment is appropriate.
The judge addressed that question, both in his judgment given after the period of the s 11 adjournment on 11 November 2016 and in the final sentencing judgment on 27 January 2017. As already recorded, his Honour sentenced the applicant on the basis that he had "doubts" as to the applicant's version of events (that the drugs had been bought by him for use only by him and the unnamed friend) and could say no more than that the applicant had the drugs in his possession for the purposes of supplying them.
In those circumstances, the charge and the sentencing task rested critically on the deeming provision in s 29 of the Drug Misuse and Trafficking Act. That section provides that possession of an amount of a prohibited drug which is not less than the traffickable quantity is deemed to be for supply. The traffickable quantity for psilocin is 0.15 grams. The weight of the mushrooms possessed by the applicant was 15.86 grams.
It is important to understand that, when the deeming provision applies, the quantity of the drug in and of itself is taken to indicate a purpose of supply to another or others. The applicant's plea of guilty entailed acceptance of that proposition. The applicant endeavoured to establish an additional, qualifying fact which would have placed the matter at the lower end of the range of that kind of offending, but his Honour rejected that evidence and was accordingly left to sentence the applicant on the basis of a generic offence of supply.
To a degree, the applicant's submissions overlook those propositions. The submissions addressed the absence of any "indicia of supply" other than the presence of the scales; reiterated the applicant's explanation that the intended supply was to the unnamed friend and submitted in that context that the quantity of the drug was "of no real moment in the sentencing proceedings". In fact, in circumstances where the judge was not persuaded to accept the applicant's version of events, the quantity of the drug and the presence of the scales in the glove box was all the judge had to go on. His Honour had pointed out during the proceedings on sentence that, whereas the applicant told police he was aware that the unnamed friend was selling the mushrooms, he denied any knowledge of that fact in his evidence at the proceedings on sentence (transcript 10 March 2016, page 8.33). In those circumstances, in my respectful opinion, the submission that the quantity of the drug was of no real moment invites a wrong approach.
Otherwise, without derogating from the detailed submissions put on behalf of the applicant, the burden of the submission was that the judge's conclusion (that no penalty other than imprisonment was appropriate) was harsh. In particular, the applicant emphasised the absence of any basis for finding that there was trafficking or supply "to a substantial degree" and the applicant's very strong subjective case. The applicant submitted that he had successfully demonstrated, during the period of the adjournment from March to November 2016, that he could obtain employment, remain compliant with medication, continue to engage with mental health care services and remain drug-free. As already noted, however, although all urinalysis tests were negative to the presence of drugs during that period, the applicant did not fully comply with the regime ordered by the judge, a matter which plainly concerned his Honour in some measure.
In his second judgment dated 11 November 2016 the judge said:
The question becomes what sentence to impose upon him. The law is clear those trafficking to a substantial degree should go to gaol full-time unless there are exceptional circumstances. I am not satisfied that he was trafficking to a substantial degree. That does not mean full-time custody is not appropriate, it just means that exceptional circumstances need not be demonstrated before that form of sentence is imposed.
It is clear from those remarks that his Honour turned his attention to the question whether the applicant was trafficking to a substantial degree and was not satisfied in those terms. However, his Honour was plainly satisfied that a suspended sentence would be insufficient to reflect the objective gravity of the offending. In light of the matters explained above, I am not persuaded that error is demonstrated in the conclusion that no penalty other than imprisonment was appropriate. In my respectful opinion, to find error in failing to impose a non-custodial sentence for a generic offence of supply carrying a maximum penalty of fifteen years in circumstances where an explanation favourable to the accused was rejected would be curious. In my view, ground 1 should be rejected.
[3]
Ground 2 - the sentence was manifestly excessive
In my view, ground 2 must also fail. It was in part based upon the matters relied upon in support of ground 1 and the proposition that other options put to the sentencing judge "would have fulfilled the purposes of sentencing and better reflected the objective and subjective circumstances of the offending". The rejection of ground 1 necessarily rejects that submission.
Separately, the applicant submitted that, even if the threshold as to the imposition of a penalty of imprisonment was crossed, a sentence of 12 months to be served by way of an intensive correction order was manifestly excessive having regard to the excellent progress the applicant had made since his arrest. I do not accept that submission. Time and again this Court has emphasised that, in considering a ground of manifest excess, it is not to the point that a more lenient sentence might have been imposed, or even that the judges constituting the appellate court would have imposed a more lenient sentence. The onus is on the applicant to demonstrate that the sentence imposed was not within the permissible exercise of the sentencing judge's discretion. A shorter period might have been imposed but I am not persuaded there was error is fixing upon a period of 12 months.
For those reasons, I am of the view that the appeal must be dismissed.
The orders I propose are:
1. that leave to appeal be granted;
2. that the appeal be dismissed.
[4]
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Decision last updated: 06 April 2018