Darcy v R

Judgment

1. LEEMING JA: I agree with R A Hulme J.
2. R A HULME J: Mr Benjamin Darcy (the applicant) seeks leave to appeal against a sentence imposed by his Honour Judge Robison in the District Court at Sydney on 1 November 2018.
3. His Honour imposed an aggregate sentence of imprisonment for 3 years and 9 months with a non-parole period of 2 years, dating from 28 October 2018, for the following offences: ● Supply prohibited drug (cocaine) on an ongoing basis contrary to s 25A(1) of the Drug Misuse and Trafficking Act 1985 (NSW) (the Act). The maximum penalty is imprisonment for 20 years and/or a fine of 3,500 penalty units. ● Supply prohibited drug (cocaine) contrary to s 25(1) of the Act. The maximum penalty is imprisonment for 15 years and/or a fine of 2,000 penalty units. ● Knowingly deal with proceeds of crime ($34,840 in cash) contrary to s 193B(2) of the Crimes Act 1900 (NSW). The maximum penalty is imprisonment for 15 years.
4. At the applicant's request, in assessing the sentence for the ongoing supply offence, his Honour took into account offences listed on a Form 1 document of possess prohibited drug (Alprazolam), possess prescribed restricted substance (Diazepam), and possess prescribed restricted substance (Clonazepam). The first of those offences is contrary to s 10 of the Act and the second and third are contrary to s 16(1) of the Poisons and Therapeutic Goods Act 1966 (NSW).
5. His Honour indicated that if he had not imposed an aggregate sentence he would have imposed the following individual sentences (which were the product of a 25% reduction on account of the applicant's early pleas of guilty): ● Ongoing supply cocaine: 2 years and 7 months. ● Supply cocaine: 1 year and 8 months. ● Deal with proceeds of crime: 1 year and 6 months.
6. The applicant seeks leave to appeal on the following grounds: 1. The judge erred by failing to give any weight to the applicant's remorse. 2. The aggregate sentence is manifestly excessive.

Facts

1. The applicant sold bags of cocaine to a police agent on four days within a 10 day period, namely 16, 22, 24, and 25 November 2017. On each occasion, following a prior arrangement for the purchase of two grams of cocaine for $600, the applicant met the police agent on a street in the eastern suburbs of Sydney. On each occasion, the agent gave the applicant $600 and received two bags of cocaine. The gross weight varied from 1.23 grams to 1.27 grams. The total quantity supplied was just over 5 grams and the purity varied from 72 to 85.5 per cent.
2. The applicant was arrested shortly after the final transaction. A search warrant was then executed at his home where the following items were found in his bedroom: ● digital scales; ● a quantity of freezer bags; ● a plastic spoon on top of the freezer bags; ● a bag containing 15.95g of cocaine; ● various blister packs containing tablets which included the drugs or restricted substances the subject of the Form 1 offences; and ● $34,840 in cash.
3. The cash included bank notes which had been provided by the police agent in the second and third of the four transactions.

Personal circumstances of the applicant

1. The applicant was born in 1989 and was aged 28 at the time of the offences.
2. He had a criminal history which included a conviction for possessing a prohibited drug in 2013 for which he was fined, and convictions in 2018 for offences committed on 8 November 2017 of possessing a prohibited drug, assault occasioning actual bodily harm, and failing to leave licensed premises when required. The latter offences were the subject of an arrest on 8 November 2017; thus the applicant was on bail at the time of the index offences. This was a matter that the sentencing judge (correctly) regarded as an aggravating factor.
3. The applicant was described by his counsel to the sentencing judge as a "very promising junior Rugby League player … who was on the cusp of entering into first grade". He submitted that "he had a fairly horrendous break to his ankle, it was more a shattering on his ankle, and that effectively ended what had been … a pretty stellar trajectory as far as his sporting career was concerned". [1]
4. A Sentencing Assessment Report prepared by a Community Corrections officer included that the applicant had torn shoulder ligaments in 2016 which caused him significant pain. These rendered him unable to train and therefore maintain his prospects of a football career. He had reconstructive surgery in 2017, but remained unable to exercise or train, resulting in lost muscle and weight gain. The report also included that this injury negatively affected the applicant's mental health as he had lost his potential career, was "functionally" unemployed, and could no longer maintain his mental health through exercise. Just prior to the surgery, he had undergone a difficult relationship breakup.
5. The applicant told the Community Corrections officer that following the surgery, he began partying more and his substance use became problematic. He was consuming alcohol five nights a week and using an average of two grams of cocaine per day. He was also gambling $2000 on average per week, and the money obtained from his drug supply helped him to support his substance and gambling addictions.
6. A report by a consultant psychiatrist, Dr Tanveer Ahmed, noted that the surgery in relation to the applicant's shoulder occurred in May 2017. The initial injury had been sustained at some stage in 2016 and the applicant reported using painkillers heavily and becoming rapidly dependent upon both prescription and non-prescription drugs. The history also included that this was the period when the applicant was using cocaine heavily as a form of self-medication. Prior to his physical injuries, he had only used drugs recreationally. The initial injury that limited his career as a professional sports player occurred at the age of 23 (which would have been in 2012-2013). Following that, he worked in labouring and various other odd jobs.
7. Dr Ahmed was of the opinion that the applicant had "attention deficit hyperactivity disorder, an adjustment disorder with mixed anxiety and depressed mood and associated cocaine dependence which is now in remission".
8. The applicant was seen by Dr Ahmed on multiple occasions since January 2018. He was prescribed anti-depressant medication as well as medication for attention deficit hyperactivity disorder and had "responded particularly well".
9. The Community Corrections officer reported that the applicant had been seeing a counsellor since December 2017 and that the counsellor had reported that he had made significant progress in his maturity and stability and had been working to address his addiction and its underlying causes.
10. The officer assessed the applicant as having a "medium-low risk of reoffending". The report of Dr Ahmed included that the applicant's prognosis was positive "if he is able to remain on treatment".
11. A letter by the applicant's counsellor from the Waverly Drug and Alcohol Centre confirmed the positive progress the applicant had made since commencing counselling in December 2017. She considered that he was insightful about his drug use and that, if he continued with his current lifestyle and accessing his professional supports, there should be no reason for him to reoffend. She also said that "he is aware of the damage his drug use has caused him and his family".
12. There was also a letter by Captain Louanne Mitchell which confirmed that the applicant had been volunteering at the Salvation Army Manly New Life Community Centre since March 2018. A letter from a lawyer, Ms Maritsa Eftimiou, who had known the applicant for in excess of 10 years, described him in a positive light, particularly in relation to the assistance he had provided to a child with a learning disability.
13. The applicant had been working for a labour hire company involved with traffic management in the period between his arrest and sentencing, and there was a letter from Mr Angus Scott, an Assistant Regional Supervisor of his employer, describing the applicant's work ethic in positive terms. Another testimonial from a personal friend, Ms Wendy Henderson, referred to the applicant as "showing a deep remorse and regret in relation to these charges".
14. Finally in relation to the evidence in the applicant's case, there were a number of pathology reports which confirmed his claim to having been abstinent from illicit substances since his arrest.

Ground 1 - error in failing to give any weight to remorse

1. The list of mitigating factors to be taken into account in determining the appropriate sentence for an offence in s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 (NSW) includes "remorse shown by the offender for the offence". The preconditions for a court to be able to take this into account are: (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both),
2. The applicant did not give evidence in the sentence proceedings (not that he was required to), but it was submitted in this Court that there was evidence that he had accepted responsibility for his actions and that he was contrite and remorseful. It was submitted that his Honour erred by not taking this into account. The submissions referred to the following evidence: The testimonial by Ms Henderson included: "I have spoken to Ben and he is showing deep remorse and regret in relation to these charges". The testimonial by Mr Angus Scott included: "The mental burden of his actions lays heavily on him and I have no doubt he fully appreciates the adverse effect they caused within society".
3. In an oral address that was quite comprehensive, the applicant's experienced counsel made no submission was made to the sentencing judge that he should. Proof of the matters in s 21A(3)(i) is not self-evident in the foregoing material. There is no disclosure by Ms Henderson of what the applicant said that caused her to think he was remorseful and Mr Scott's opinion does not appear to be based on anything the applicant had said. In these circumstances, no error can be attributed to the learned sentencing judge of failing to give any weight to the claim of remorse now advanced by the applicant.
4. Generally speaking, this Court is concerned with intervention in appropriate cases where some error of principle, fact, or law has occurred, or the sentencing discretion has miscarried in a way that has resulted in a sentence that is unreasonable or unjust. It is not the function of this Court to hear a reformulated case for an offender on sentence: Zreika v R [2012] NSWCCA 44; 223 A Crim R 460 at [79]-[81] (Johnson J).
5. Ground 1 must be rejected.

Ground 2 - manifest excess

1. The essence of this ground is captured in the last of four "sub-grounds": "The aggregate sentence was disproportionate having regard to the total criminality involved and the applicant's subjective case".
2. The first two of the "sub-grounds" assert patent errors that could have been the subject of grounds of appeal in themselves: Hurmz v R [2017] NSWCCA 235 at [20] (Beech-Jones J). If either were pleaded as grounds of appeal in their own right and were made good, the Court would be required to re-exercise the sentencing discretion afresh in accordance with Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42].
3. The applicant's approach of relying upon the asserted errors as "sub-grounds" to a ground asserting manifest excess has the potential effect that, whilst the assertion might be made good, it does not necessarily mean that the applicant will succeed on the ground and it does not require the Court to make its own assessment of the appropriate sentence. This highlights the need for more careful formulation of grounds of appeal in sentence matters. In the circumstances of this case, however, no disadvantage flows to the applicant for having adopted this approach because the sub-grounds asserting patent error do not have any merit.

Sub-Grounds 1 and 2: failure to properly assess the objective seriousness of the ongoing supply offence and the supply offence

1. The written submissions for the applicant referred to a number of features of the offending that were or were not present and argued that, having regard to their presence or absence, it was not open to the sentencing judge to find that the two drug supply offences were "towards the upper end of the mid-range of objective seriousness".
2. This finding by the sentencing judge came about in the following way.
3. The Crown provided written submissions in which it referred to various features of the offences. For the ongoing supply offence, it referred to four matters. (a) The offence may be committed where there are three supplies within a 30 day period but in this case there were four supplies in one-third of that time frame, 10 days. [2] (b) Each supply involved two bags of cocaine in exchange for $600. (c) The purity of the cocaine in each supply was "high", ranging from 72% to 85.5%. (d) The fact that there were differing purities was significant because it indicated that the cocaine did not come from a single source.
4. For the supply offence, the Crown referred to three matters. (a) The offence was constituted by a single seizure of 15.95g of cocaine at the applicant's residential address. (b) The indictable quantity prescribed for cocaine in the Schedule to the Act was 5g; thus the offender was in possession of three times the indictable quantity. (c) The police also found digital scales and freezer bags with spoons (presumably indicating that the offender was engaged in supply activity beyond the supplies to the police agent).
5. In oral submissions, the Crown submitted that the ongoing supply was a "serious example" of an offence of its type. It was emphasised that there were four supplies in a 10 day period and the differing purities indicated the drug came from "different batches" so the supplies were not isolated examples of ongoing supply. Emphasising that it involved three times the indictable quantity, the Crown also characterised the supply offence as a "serious example" of its type. [3]
6. Counsel who was then appearing for the applicant did not take any issue with the written submissions for the Crown. He conceded that "the s 5 has been crossed in relation to this matter. It is extremely serious." [4] In the course of his ensuing submissions, he repeatedly referred to it being a "very serious matter" and to "these serious offences". [5] Counsel's submissions were otherwise directed towards the subjective case advanced on behalf of his client.
7. Those submissions provided the context for his Honour's discussion of the objective seriousness of the drug offences. First, his Honour recounted the facts as set out in the "Agreed Facts" document that had been tendered by the Crown without objection. (He did so in far more detail than appears above (at [7]-[9]).) After then referring to various aspects of the applicant's subjective case, he turned to the objective seriousness of the offences: [6] "The Crown has indicated that the first offence involves four separate supplies committed within that ten day period and I note the written submissions when it comes to what is set forth in para 4 relating to the objective seriousness. Further, the Crown refers to the purity of the drug supply and that it was not a single substance which was divided and sold to the authorised participant. The second offence, as the Crown submits, involves the seizure of 15.95 grams of cocaine at his residential address. The indictable quantity of that drug is 5 grams, so he was in possession of three times the indictable quantity. Finally, the third offence relates to the very large sum of money seized from the premises. I have taken that into account and I agree with the Crown that this is a significant quantity of cash and it is indicative of the supplies in the first offence which were clearly not isolated incidents. I make that finding as well; I think it is axiomatic when one considers the quantity of cash that the Crown is right in that submission. The indicia which was revealed in the execution of the search warrant, the Crown submits that these offences are towards the upper mid-range in objective seriousness, and certainly, there is no issue that the s 5 threshold has been crossed. I am required to assess the objective seriousness of each of the offences, and I am inclined to agree with the Crown that it approaches towards the upper end of the mid-range of objective seriousness, given those specific matters to which I have referred."
8. The assessment of the objective seriousness of offences is an evaluative task which is classically within the discretion of a sentencing judge. This Court is very slow to intervene and determine such matters for itself: Mulato v R [2006] NSWCCA 282 at [37] (Spigelman CJ); [46] (Simpson J, as her Honour then was).
9. The applicant was in a position to supply the police agent with cocaine on four occasions within a period of 10 days; each occasion occurring on the same day as the order was placed by telephone. The applicant was supplying cocaine derived from "different batches". He was engaged in this activity for financial reward. Submissions were made in this Court about the relatively small quantities that were supplied, but the scale of the financial reward was evident from the finding of almost $35,000 in cash in the applicant's bedroom. By the applicant's plea of guilty to the third offence, he acknowledged that this money was the proceeds of his drug supply activities. The finding of a further quantity of about 16 grams of cocaine, together with indicia of supply activity, [7] further confirmed his entrenchment in drug supply activity, even if he were to be characterised as a "user/dealer" who was engaged in a relatively unsophisticated enterprise, as his present counsel submitted in this Court (a submission not made in the Court below). The applicant sold the cocaine to the police agent for about $480/g, so $35,000 would indicate quite substantial supply activity. The ongoing supply and supply offences could not be regarded as isolated aberrations.
10. Much of the applicant's submissions in relation to these "sub-grounds" raised matters that were not raised in the court below; [8] in fact, nothing was raised in an attempt to dissuade the judge from accepting the assessment of objective seriousness that had been advanced by the Crown.
11. Minds may legitimately differ about the sentencing judge's assessment of the level of objective seriousness of the applicant's drug supply offences. But even if it could be said that the judge's findings were not open to be made, it is not apparent that such an error led to the imposition of a manifestly excessive sentence. The starting points for the assessment of the individual sentences (3 years, 6 months and 2 years, 3 months) are exceedingly modest for "upper end of the mid-range" offences, when viewed against the high maximum penalties prescribed by Parliament (20 years and 15 years).

Sub-ground 3: the disparity in indicative sentences for the two drug supply offences is indicative of error

1. The submissions for the applicant in relation to this ground referred to the quantities of cocaine involved in the ongoing supply and the supply offences, namely 5.03g and 15.95g respectively. It was argued that the features of the offending were "no different". It was submitted that the higher maximum penalty of 20 years for the ongoing supply offence (as opposed to 15 years for the supply offence) did not justify the higher indicative sentence of 2 years, 7 months for the ongoing supply offence as opposed to 1 year, 8 months for the supply offence where the quantity for the latter was three times that for the former.
2. These submissions are, with respect, misconceived. They ignore the elements of the ongoing supply offence; that is, the repeated dissemination of drugs for financial or material reward. It was observed in R v Smiroldo [2000] NSWCCA 120; 112 A Crim R 47 at [11]-[15] that the offence in s 25A of the Act was introduced to target dealing in only small quantities at a time. It was held that quantity was relevant in the assessment of the seriousness of such an offence, but it was not the only relevant consideration.
3. In any event, the appeal is against the aggregate sentence. No appeal lies in respect of indicative sentences, their relevance only being as to whether some error is evident which may explain manifest excess (or inadequacy) in the aggregate sentence: JM v R [2014] NSWCCA 297; 246 A Crim R 528 at 40.

Sub-ground 4: the aggregate sentence was disproportionate having regard to the total criminality involved and the Applicant's subjective case

1. As was observed earlier, this is the true issue in relation to the ground asserting that the aggregate sentence is manifestly excessive. The principles that apply to the determination of such a ground are well known. They were summarised in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443] and need not be repeated here.
2. The applicant's submissions in relation this ground may be summarised: (a) The totality of the applicant's conduct involved the supply of 20g of cocaine. (b) Although the offending was aggravated by him being on bail, he had an otherwise powerful subjective case. (c) The applicant was a street level user/dealer. It was unclear whether the money found at his home was profit or for on-forwarding to someone else, but it was conceded to be the proceeds of crime. (d) The applicant had spent almost a year on very strict bail conditions "tantamount to house arrest" before sentencing. He had addressed his addiction and made very considerable progress towards rehabilitation. He had significant family and community support and was actively engaged in programs that assist the community.
3. By way of brief response to these submissions, the quantity of drug involved was not the complete measure of the seriousness of the applicant's offending (see above at [40]).
4. It would be open to describe the applicant's subjective case as a strong one (and there is no complaint that the judge failed to advert to any pertinent feature).
5. There was no evidence as to how much of the money found at the applicant's home was profit or money he was required to pay his supplier(s). Regardless of this, counsel in the District Court submitted that the applicant was "obviously making some money out of this, he'd gone off and went absolutely mad punting and drinking", [9] and that "the financial gain essentially ended up going on dog number 8 at race 5 at Wentworth Park, and endless partying and going out". [10] It may be inferred that in the Court below, it was conceded that the applicant received a financial gain of some substance.
6. Submissions were made to the primary judge about the circumstances of the applicant's bail. The Crown pointed out (in this Court) that the conditions of bail included not consuming illicit drugs, not entering Paddington, or having more than one mobile phone. For the first three months, he was not allowed to leave home unless in the company of his mother or sister or attending work or court. That condition was then relaxed so that he was also able to attend a gym. At the same time, a requirement for daily reporting to police was reduced to three times per week. On the face of it, these were onerous bail conditions, but there was no evidence as to how onerous they were in reality in terms of posing a burden on the applicant as distinct from his mother and sister. They did not prevent the applicant from working 70 hours per week and commuting two hours per day to and from work; [11] nor did they prevent him attending professional and counselling appointments, [12] and volunteering with the Salvation Army at Manly. [13]
7. The applicant had the benefit of a number of favourable findings made by the sentencing judge. They included that the sentences should be reduced by 25% for his early pleas of guilty; there was "very little likelihood that he would re-offend"; "what he has done so far does bode well for rehabilitation"; and there are "reasonable prospects of rehabilitation". [14]
8. The aggregate sentence incorporates a finding by the judge that "there is ample evidence to make a finding of special circumstances"; those circumstances being "his prospects of rehabilitation and his genuine desire to rehabilitate himself". [15] This had the consequence that the non-parole period was reduced from 75% of the aggregate sentence to 53%. In other words, what would have been a non-parole period of about 2 years, 10 months became one of 2 years.
9. At the hearing of the application in this Court, counsel submitted that the applicant's principal complaint was with the head sentence. However, the judge was required to, and did, have regard to the sentencing guideposts for each offence of the maximum penalties of 20 years, 15 years, and 15 years respectively. There was the aggravating factor that the applicant was on conditional liberty, having been released on bail for offences (including a possess prohibited drug offence) only eight days before the first supply to the police agent. General deterrence was something the judge considered "looms large in this instance". [16] He was correct in this respect: Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284 at [109]. Specific (or personal) deterrence was also taken into account, although it is clear the judge gave it reduced weight having regard to the applicant's rehabilitation prospects.
10. I am not persuaded the aggregate sentence imposed upon the applicant was unreasonable or plainly unjust.

Orders

1. I propose the following orders: 1. Leave to appeal against sentence granted. 2. Appeal against sentence dismissed.
2. DAVIES J: I agree with R A Hulme J.

Endnotes

1. Proceedings on sentence (POS), 1 November 2018, p 3(5).
2. It should not be forgotten that it is also an element of the offence in s 25A of the Act that the three supplies in the 30 day period must be for "financial or material reward".
3. POS, 1 November 2018, p 9.
4. POS, 1 November 2018, p 2(45). Counsel was referring to s 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW) which provides that "a court must not sentence an offender to imprisonment unless satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate".
5. For example, POS, 1 November 2018, p 5(39); p 5(48); p 6(41).
6. Remarks on sentence (ROS), 1 November 2018, p 10.
7. Scales and bags.
8. For example, that 15.95g of cocaine was 6% of the prescribed commercial quantity; the applicant only had one mobile phone, and it had a cracked screen; and there was no evidence of a lavish lifestyle.
9. POS, 1 November 2018, p 5(32).
10. POS, 1 November 2018, p 7(3).
11. Testimonial by Mr Angus Scott dated 30 October 2018.
12. Report of Dr Tanfeer Ahmed dated 30 October 2018 and letter of Ms Robyn Zeller dated 25 October 2018.
13. Letter of Captain Louanne Mitchell dated 30 October 2018.
14. POS, 1 November 2018, pp 9, 11.
15. POS, 1 November 2018, p 11.
16. Ibid. 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 July 2019