D'Ambrosio v R

R v El Hani [2004] NSWCCA 162 The Queen v Hoar (1981) 148 CLR 32 CASES CITED : R v Borkowski [2009] NSWCCA 102 R v Sukkar [2007] NSWCCA 298 Markarian v R [2005] HCA 25; (2005) 228 CLR 357

PARTIES: James Pasqual D'AMBROSIO v Regina

COUNSEL: In person (Applicant) J. Dwyer (Crown)

SOLICITORS: Solicitor for Public Prosecutions (Crown)

IN THE COURT OF CRIMINAL APPEAL 2008/8547

HANDLEY AJA GROVE J HISLOP J

Tuesday 8 June 2010 JAMES PASQUAL D'AMBROSIO v REGINA Judgment 1 HANDLEY AJA: I agree with Hislop J. 2 GROVE J: I agree with Hislop J. 3 HISLOP J: The applicant pleaded guilty on indictment to the following counts: Count 1: Between 1 December 2006 and 17 May 2007 at Sydney and elsewhere in the State of New South Wales [he] did supply a prohibited drug, namely 3,4 methylenedioxymethylamphetamine [ecstasy] being an amount not less than the commercial quantity applicable for that prohibited drug [contrary to s 25(2) Drug Misuse and Trafficking Act 1985]. The maximum penalty for this offence was imprisonment for 20 years. A standard non parole period of 10 years imprisonment was prescribed. Count 2: Between 7 December 2006 and 23 December 2006 at Sydney and elsewhere in the State of New South Wales [he] did knowingly take part in the supply of a prohibited drug, namely cocaine [contrary to s 25(1) Drug Misuse and Trafficking Act 1985]. The maximum penalty for this offence was 15 years imprisonment. No standard non parole period was prescribed for this offence. 4 The applicant also pleaded guilty in the Local Court to a charge that he supplied a prohibited drug, namely methylamphetamine [ice] contrary to s 25(1) Drug Misuse and Trafficking Act 1985. He was committed to the District Court for sentence on this charge. 5 On 13 February 2009 the applicant was sentenced in the District Court as follows in respect of those matters: Count 1: Imprisonment for a non parole period of 3 years to date from 9 October 2008 and expire on 8 October 2011 with a balance of term of 2 years to expire on 7 October 2013.

In respect of this count his Honour took into account on a Form 1 a charge of supply indictable quantity of prohibited drug, namely cannabis pursuant to s 25(1) of the Drug Misuse and Trafficking Act 1985. His Honour said in respect of this matter "…that against the background of the more serious drugs, consideration of this matter of cannabis has not resulted in any material increase in the sentence to be imposed on [Count 1]." Count 2: Imprisonment for a non parole period of 2 years 6 months to date from 9 October 2008 and expire on 8 April 2011 with a balance of term of 1 year 8 months to expire on 8 December 2012. In respect of the committal matter: Imprisonment for a non parole period of 2 years to date from 9 October 2008 and expire on 8 October 2010 with a balance of term of 1 year 9 months to expire on 8 July 2012.

All sentences were to be served concurrently. 6 His Honour summarised the facts in the remarks on sentence, drawing upon undisputed information contained in a document headed "Draft Statement of Facts" and a statement by the applicant. 7 The facts were, in short, that the applicant was the subject of a police operation in relation to the distribution of prohibited drugs. His mobile telephone service was intercepted pursuant to a warrant, and he was also the subject of physical surveillance. The resulting evidence revealed that over a period of about six months he regularly sourced various prohibited drugs, including cocaine, cannabis, ecstasy and ice, and supplied, or agreed to supply it, on a fairly regular basis.

On 16 May 2007 police executed a search warrant on his residential premises at Darlinghurst. They located a plastic resealable bag containing 276 pink tablets and residue powder and other small amounts, mainly tablet form, in other parts of the house. The tablets were 3,4- methylenedioxymethylamphetamine and the total weight of tablets and residue powder was just over 71 grams. Police also found two sets of scales, electronic money counter, two mobile phones and a laptop computer.

When the applicant was first interviewed he denied ownership of the tablets and the scales. In a later interview he admitted the tablets were the residue of 800 tablets that he had obtained from a man named "Phil". He also admitted that he had supplied about 550 tablets at $11.50 each. Police estimate the value of 800 ecstasy or MDMA tablets at between $16 and $17 each, with a total value of $13,600.

In his recorded interview and in a later statement, the applicant made admissions in respect of a number of dealings in various drugs, including cocaine, ice and cannabis, and explained the references to those in the recorded phone calls. 8 His Honour found the applicant was born in 1964 in Scotland. He has been resident in Australia since 1991. He had no prior criminal history. Prior to his involvement in these crimes, he was making a positive contribution to society as a well regarded employee with an engaging personality and a commitment to his friends. He married and fathered a son but the marriage ended in divorce and he no longer sees his son. There is a litany of friends and relatives who died, many at their own hands, during a period of the applicant's visit to Scotland in 2005 and shortly thereafter. These multiple losses had a significant impact on the applicant who became depressed. He declined the use of prescribed antidepressants but opted, unfortunately, to self medicate with ice. He quickly became seriously addicted. Thereafter his dealing was for the purpose of sustaining his own habit. He detoxed whilst in custody following his arrest on 16 May 2007 and has remained abstinent of drugs since. In custody he is making as much use of the facilities as possible and is well behaved and well regarded. In terms of his rehabilitation a sense of quiet confidence is warranted. 9 His Honour allowed the applicant a 25 percent discount for the plea in the Local Court committal matter and a discount of one-sixth for the pleas in respect of the other matters. 10 His Honour allowed a further discount of 40 percent for assistance. Mathematically this discount, coupled with the discount for the plea, produced an overall discount of 50 percent on the sentence in respect of count 1. The calculation of the overall discount adopted by his Honour was in accordance with authority - R v El Hani [2004] NSWCCA 162 at [70]. 11 His Honour found special circumstances justifying a departure from the statutory proportions of his sentences. Those special circumstances were that this is and will be the applicant's first time in custody, that he has good prospects of rehabilitation, that the circumstances of his imprisonment are more onerous than are the norm and he has a clear need to receive continuing assistance and support following his release. 12 The applicant has sought leave to appeal against sentence. He represented himself at the hearing of the application. The grounds of appeal are stated and considered hereunder.

Ground 1 His Honour erred in assessing the objective criminality of the offence by taking into account circumstances which would have warranted a conviction for a more serious offence and/or carrying a more serious penalty. That is, his Honour took into account matters of conspiracy to supply rather than actual supply as charged to exaggerate the objective criminality of the actual offence being sentenced.

Ground 3. His Honour erred in failing to find facts at a standard of beyond reasonable doubt in assessing the adjective [sic] criminality at the middle range. That is his Honour relied upon the presumption that the offender 'would have' supplied large amounts and 'would not have retained customers if he had not supplied large amounts' to find a higher standard of the objective criminality even though those assumptions contradict his Honour's findings that 'there is no evidence for example of finance betterment flowing his trafficking'. 13 His Honour noted in his remarks on sentence that "In March the [applicant] was recorded in conversations which related to the attempt by him to obtain 500 tablets of MDMA…On 15 March 2007 SMS messages were exchanged in which the applicant agreed to try and source 10,000 ecstasy tablets, and in May he inquired by SMS about the provision of 5000 such tablets…Whilst the [applicant] says that the very large supplies did not in fact take place and that some element of bravado or puffing was involved, there is no doubt that he was actively sourcing and selling ecstasy tablets." 14 However, in considering the objective seriousness of the offence in count 1, his Honour in respect of the amount of drug involved expressly left out of account "[the applicant's] references to very large numbers of tablets and consequently very large amounts of the drug". He stated: "[The applicant] admits having been in possession of 1000 tablets of which only 276 remained when the search warrant was executed. This quantity alone would represent some three times the commercial amount and put him, on this basis, in the middle range of such dealings." 15 His Honour had regard to the fact that the activity of supplying went on for at least six months or so. He also considered the applicant's role. As to the latter, he observed: "Finally, his role is clearly not just that of the simple retailer, and Ms Phelps [counsel for the applicant at the sentencing hearing] concedes as much in her written submissions. He was prepared to source and, if successful, presumably sell very significant quantities, and agreement to supply or offer to supply is not substantially less culpable than actual supply. Whilst I accept that some of the prisoner's conversation upon which the Crown relies did contain some element of bravado as he says, nonetheless it could not have been all empty boasting otherwise he would not have retained any of his customers nor actually dealt in the quantities proven to be in his possession at the time of arrest." 16 It is apparent that his Honour's finding as to the applicant's role was based on the agreed facts before him, the admissions made by the applicant and the concession made by his counsel. His Honour's finding was open on the evidence, even without the concession made by counsel. It was also open to his Honour to conclude the offence in count 1 was in the middle range of objective seriousness. 17 Generally speaking, a "conspiracy" to supply is a less serious offence than that to which the applicant pleaded guilty, given that it does not encompass an "actual" supply, but merely an agreement between the parties evidenced by some overt acts, not involving a completed offence. However, "in exceptional cases the element of concert may justify a more severe penalty for conspiracy than for the substantive offence which the conspirators commit" - The Queen v Hoar (1981) 148 CLR 32 at 38. In my opinion, this was not an exceptional case nor did his Honour sentence the applicant on that basis. 18 These grounds are not established.

Ground 2. His Honour failed to take into account the circumstances of duress (by threat of violence from the Tongan criminal syndicate) in accessing [sic] the role of the offender and hence the objective criminality involved. 19 His Honour specifically referred to this matter in his remarks on sentence. He accepted the applicant took the threat seriously and that the applicant as a result "redoubled his efforts to move those tablets". It has not been demonstrated that his Honour erred in this regard.

Ground 4. New evidence indicates that the condition of 'Manic depression' is a modern diagnosis, Bi-polar disorder which better explains and reduces the overwhelming significance placed by the sentencing judge on the exaggerated language used in the telephone interceptions such that these conversation[s] are consistent and symptomatic of a mental illness not only reduces the objective criminality but should instead have mitigated the sentence 20 It is not apparent that his Honour placed overwhelming significance on any exaggerated language used in telephone interceptions. There is no evidence that the language used was symptomatic of a mental illness. The pre-sentence report dated 19 December 2008 records that the applicant became very depressed following an accumulation of adverse events. It also records that "There is no evidence of mental illness and he is assessed as exhibiting good insight and judgment." 21 The psychologist's report (Dr Seidler) dated 8 November 2008 stated the applicant did not demonstrate any overt evidence of significant psychopathology. The applicant's profile was consistent with a reasonably well adjusted individual psychologically, who does not appear to be experiencing clinically significant symptoms of psychopathology. There was no diagnosis of manic depression or bi-polar disorder. 22 This ground is not established.

Ground 5. His Honour failed to give weight to discount applicable to protective custody 23 His Honour, in his remarks on sentence, referred to the fact that the applicant was on limited association whilst in custody because of legitimate concerns held by the prison authorities in respect of his well being. His Honour found special circumstances. One of the special circumstances was "that the circumstances of his imprisonment are more onerous than are the norm." As a result of the special circumstances, the non parole period was reduced, in the case of count 1, by nine months. This ground is not established.

Ground 6. His Honour failed to appreciate the extent of assistance by the offender in setting the discount such that offender is properly entitled to the maximum discount for assistance of a kind that breaks organised criminal syndicates 24 The applicant submitted the highest possible discount should be applied as his assistance led to the apprehension of organisers of criminal activity or the breaking up of a network of organised criminal activity. He also submitted that an "Ellis discount" should have been applied. 25 There are two sentencing discounts that have been identified: a discount for the plea of guilty and a discount for assistance. Where both these discounts apply, they should be combined: R v Borkowski [2009] NSWCCA 102. The use of the term "Ellis discount" is a misnomer. There is no such discount. The so-called Ellis discount, where applicable, is taken into account in the general synthesis to determine what is the appropriate sentence before the application of a discount. An "Ellis discount" applies where it is unlikely that guilt would be discovered and established were it not for the disclosure by the person coming forward for sentence. It is a result of the voluntary disclosure of guilt by the person concerned. That is not this case. 26 The sentencing judge described the applicant's assistance as "exceptional". He allowed a discount of a further 40 percent which on count 1 produced an overall discount, with the discount for the plea, of 50 percent. In R v Sukkar [2007] NSWCCA 298 Latham J, with whom McClellan CJ at CL and Howie J agreed, said: "Generally speaking however, a [composite] discount of 50 percent is regarded as appropriate to assistance of a very high order." 27 The applicant's assistance is of a very high order. His Honour the sentencing judge recognised this in describing it as "exceptional". His Honour applied the appropriate discount for assistance of that order. 28 I have considered the evidence relied upon in respect of assistance. It does not appear to me the assistance in fact afforded or to be afforded goes beyond that which was broadly within the contemplation of the sentencing judge at the time of sentence. In my opinion, there is no basis to interfere with his Honour's determination of the weight to be accorded the evidence of assistance.

Miscellaneous 29 The applicant submitted that the sentences were manifestly excessive. He made reference to statistics and other cases. However, sentences depend upon the facts of each case and bare statistics tell the court little which is useful. Sentencing involves a discretionary judgment and there is no single correct sentence: Markarian v R [2005] HCA 25; (2005) 228 CLR 357. 30 In his remarks on sentence his Honour said: "In summary, the offences committed by the [applicant] are objectively very serious. He was actively trafficking over a period of about six months in significant quantities of four different prohibited drugs." 31 His Honour found, correctly in my opinion, that in relation to the first count the offence was in the middle range of objective seriousness, this being an offence where the maximum sentence was 20 years imprisonment with a standard non parole period of 10 years. His Honour said that he would have imposed a sentence of 10 years but for the discounts which, after they were applied, reduced the head sentence to five years. The non parole period of three years reflected the finding of special circumstances. I detect no error. 32 Additionally, the sentences in respect of count 2 and the committal matter are to be served concurrently with the sentence under count 1. This was favourable to the applicant. No error is apparent in regard to those sentences. 33 In my opinion error has not been established, nor has it been established that some sentence, less severe, was warranted in law and should have been passed. Accordingly, whilst I would grant leave to appeal, I would dismiss the appeal.

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