Des Rosiers v R

The factual circumstances

1. The relevant facts were summarised in this Court's previous judgment as follows: "6 The charges arose out of a search conducted on the applicant's premises on the north coast of New South Wales. The statement of facts tendered on sentence (Exhibit B) was summarised by his Honour in the briefest of terms, namely that 'as a result of information [the police] had acquired, [they] attended upon the home or the premises occupied by the offender and in there they found a substantial quantity of pieces of paper impregnated, or to be impregnated with LSD. They found that some of them already had been impregnated. They found a quantity of the drug known as MDMA and they found an appreciable quantity of cannabis.' (ROS page 2). The information in fact acquired by police included the product of a lawfully obtained telephone intercept linking the applicant with a person known as Phillip Martin. It appeared from the conversations between the applicant and Mr Martin that Mr Martin was preparing blotting paper under the instructions of the applicant. The applicant had requested 50,000 to 100,000 items and had indicated a need to send money to Thailand. Federal Police ascertained that an associate of the applicant travelled to Thailand on 9 March 2004 returning on 14 March 2004. 7 Following the execution of the search warrant on the applicant's premises on 20 April 2004, the following items were seized: '(a) 19 vials of LSD in liquid form, being a total of 196 grams (98 times the large commercial quantity) (b) 101 sheets of blotting paper containing 1,000 heart-shaped logos printed on each sheet (c) 90.6 grams of MDMA (72 times the indictable quantity) (d) 724.4 grams of dried cannabis leaf (more than twice the traffickable quantity) (e) Three cannabis plants (Form 1 offence) (f) Ten pieces of blotting paper, commonly referred to as tabs, impregnated with LSD (Form 1 offence) (g) Six white capsules containing a prohibited drug (Nexus) (Form 1 offence) (h) $2,340 in cash (Form 1 offence)' 8 The applicant admitted to the possession of these items. Later that same day, members of the Federal Police executed a search warrant at the residence of Mr Martin. During the execution of that warrant, 101 sheets of blotting paper with 1,000 heart-shaped logos printed on each sheet, identical to those seized from the applicant's premises, and ten sheets of blotting paper with various logos printed on each (1,000 logos per sheet) were also seized. 9 In the course of an interview between Federal Police and Mr Martin, the latter claimed that the sheets of blotting paper containing the logos had been produced on the instructions of the applicant, by way of payment of a debt of $3,500 owed by Mr Martin to the applicant. The relevance of this information lies in the applicant's purported explanation for his involvement in the offences, provided to a Probation and Parole Officer for the purposes of a report dated 30 November 2004 (Exhibit E). The applicant maintained that he owed a favour to a long-time friend whose partner asked for the applicant's assistance in the storage and transportation of the LSD. An explanation in the same terms was provided to Ms Seidler, Clinical and Forensic Psychologist, for the purposes of her report dated 19 November 2004. Clearly, the applicant's account was not consistent with the content of Exhibit B. His Honour noted that there was no evidence to support the applicant's assertions in this regard. 10 The Australian Federal Police estimated that the liquid LSD was capable of producing 82,000 individual doses or tabs, based on a dosage of 50 micrograms of LSD per tab. There was some discussion in the course of the sentencing proceedings as to the reliability of that estimate, in the light of the possibility that individual dosages may in fact contain 100 micrograms of LSD per tab. The quantity of MDMA was estimated to produce something between 500 and 1500 individual doses, depending upon the purity of the ultimate product. Based on the estimates of the number of doses available from the liquid LSD and MDMA and from the cannabis, the Federal Police estimated a total street value of all of the drugs seized from the applicant's premises at between $837,000 and $2,581,000 approximately. The LSD alone was said to have a street value of between $820,000 and $2,460,000. However, his Honour ultimately arrived at the conclusion that a more sound estimate of the value of the LSD was between $200,000 and $1,500,000. 11 The supply of a small quantity of LSD charge arose out of the supply by the applicant to a 22 year old female acquaintance of one paper tab impregnated with LSD, on 7 February 2004."

The District Court sentencing judgment

1. As reflected in [10] quoted in the previous paragraph, the sentencing judge concluded that the street value of the LSD the subject of Count 1 was "somewhere between $200,000 and $1,500,000, depending on how it is sold, the quantities or the strength in which it is sold, and many other factors". He concluded that the activities in which the appellant was involved constituted a significant operation.
2. His Honour then referred to countervailing factors of general deterrence on the one hand and the age of the appellant on the other. He found special circumstances for the purposes of s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) by reason of the appellant's age and his good prospects of rehabilitation and allowed an unspecified discount to reflect the appellant's pleas of guilty.

The previous Court of Criminal Appeal judgment

1. This Court identified a number of errors in the District Court judgment, including the taking into account of the wrong maximum penalties for some of the offences and undue emphasis placed by his Honour on the appellant's age (54 at the time of sentence).
2. The Court then considered and rejected the contention that the sentence on Count 1 was manifestly excessive. The Court had earlier (at [15]) concluded that a concession by the appellant's counsel that the Count 1 offence lay in "the upper range of objective gravity" was properly made having regard "to the quantity of LSD and the evidence pointing to the large scale production of LSD for profit". At paragraph [35], the Court said: "As noted at par 15, there can be no doubt that the supply large commercial quantity offence lay at least at, if not above, the mid-range of objective gravity. The applicant had the means to distribute at least 40,000 individual doses or tabs of LSD. The absence of any direct evidence of large-scale supply or the recruitment of persons to effect that supply is not to the point. The applicant was clearly in possession for supply to others. The drug was capable of realising a considerable amount of money, even accepting his Honour's somewhat conservative estimate. In addition, the offences on the Form 1 should not be overlooked. There must be some increase in sentence, above that otherwise appropriate to the circumstances of the primary offence; Re Attorney-General's Application (No 1 of 2002) (NSW) (2002) 56 NSWLR 146; 137 A Crim R 180."
3. On the present appeal, the appellant submitted that in its previous decision this Court erred in the following respects: 1. The Court's judgment conflicted with the approach to sentencing adopted in the subsequent decision of Muldrock by: 1. Giving primary or determinative significance to the standard non-parole period. 2. Adopting a "two-stage approach" to sentencing, with the standard non-parole period being taken as the starting point and a consideration of whether there were factors justifying a departure from it as the second stage. 3. Treating subjective factors as relevant to the Court's assessment of objective seriousness and thereby failing to give them full weight in the exercise of the Court's sentencing discretion. 1. In re-sentencing, considering whether the sentencing decision below was in error rather than exercising an independent sentencing discretion (compare Kentwell at [42]). 2. Using a finding of special circumstances to increase the head sentence rather than to decrease the non-parole period (compare Kentwell v R (No 2) [2015] NSWCCA 96 at [32]-[36]).
4. The Crown conceded that the Court made the error referred to above in [12(1)(c)], concerning the assessment of objective seriousness. While it did not accept that the other alleged errors occurred, it observed, correctly, that the conceded error required this Court to exercise the sentencing discretion afresh. The Court is not required to "assess whether and to what degree the error influenced the outcome" (Kentwell in the High Court at [42]). In these circumstances, it is unnecessary for this Court to determine whether the other alleged errors occurred.

The additional evidence on this appeal

1. Evidence of the appellant's progress towards rehabilitation was admitted "on the usual basis", that is, to be taken into account in the event that the sentencing discretion was to be re-exercised. The Court also admitted evidence of the steps taken, and the time spent by or on behalf of the appellant, to have his Count 1 sentence reviewed in light of the High Court decisions in Muldrock and Kentwell. The Court has a general discretion to admit further evidence on appeal although it should not ordinarily do so where the evidence is inconsistent with the case that the appellant ran in the sentencing court (Betts v The Queen [2016] HCA 25; 90 ALJR 758 at [2]). The evidence admitted on this appeal does not attract that qualification to the general rule.
2. To an affidavit of 29 July 2016, the appellant's solicitor annexed copies of documents obtained by him from the appellant's Corrective Services (Case Management and Parole) files. These contained detailed considerations of the appellant's conduct and progress during the 12 years of his incarceration from April 2004 to April 2016. The following summary appeared in the relevant Community Corrections Officer's report of 10 February 2016: "Mr Desrosiers appears to have progressed well in custody. He has received only one institutional misconduct charge, that being for Fail to Comply with Centre Routine in 2006, additionally his work and behavioural reports have been excellent. He is described as a polite and compliant inmate who presents no management issues. Mr Desrosiers has expressed his willingness to participate in programs as directed however due to his assessed low level risk of re offending and lack of identifiable criminogenic factors has not been required to do so. Mr Desrosiers appears to have developed some insight into the effects of illicit drugs on the community and has verbalised remorse for his offending. The inmate enjoys the continuing support of a number of close friends in the community. He also has stable post release accommodation and employment available to him. These supports, together with his anticipated access to periods of external leave will assist with his ongoing community integration. Given Mr Desrosiers' positive response to custody and his available community supports release to parole at this time is recommended with the following additional conditions ..." (Emphasis as in original.)
3. These comments were followed by the following expression of opinion by the Acting Manager of Glen Innes Community Corrections dated 11 February 2016: "The inmate reflects a positive attitude towards community reintegration and has maintained a high level of compliance during his time in custody. It is noted that the inmate expressed remorse for his actions and that he recognized the social impact of his offences, even so, the recommended additional parole conditions will ensure that further structured boundaries in regard to prohibited drug or substance misuse are retained by the inmate during his proposed period of parole. Mr Herman's recommendation is therefore supported."
4. The documents also indicate that the appellant has acted appropriately following his release, maintaining contact with his parole officer and remaining drug free.
5. An affidavit of the appellant read on the appeal stated his regret and embarrassment at having engaged in criminal conduct and described his efforts whilst incarcerated to take up all work and educational opportunities that presented themselves. He is presently in employment and has been re-establishing his religious connections.
6. A further affidavit of his solicitor detailed the protracted efforts made on the appellant's behalf to have his sentences reviewed following the High Court decision on 5 October 2011 in Muldrock. These culminated in the appellant's first application under s 78 of the Crimes (Appeal and Review) Act, which was refused on 20 June 2014, and to the second application, which was granted on 4 April 2016. The Crown did not suggest on the present appeal that there were any more active or persistent steps that the appellant could have taken to obtain the right of appeal which is the subject of this judgment.

Re-exercise of the sentencing discretion

1. A re-sentencing court must make its own assessment of the appropriate sentence, without allowing the original sentence to dictate or guide the exercise of its discretion (see Thammavongsa v R [2015] NSWCCA 107 at [4]-[7]; [21]-[25] and [44]-[45]). When it has done that, the Court must compare the appropriate sentence with that originally imposed and if it is less than the latter substitute it for the latter (Criminal Appeal Act 1912 (NSW), s 6(3)). If it is more, the appeal should be dismissed (Thammavongsa [24]-[25]). If findings of fact made when a sentence was first imposed are not challenged on appeal, there is no reason why the court should not adopt them for the purposes of re-sentencing (Thammavongsa at [23]).

Objective seriousness

1. In Muldrock, the Court indicated that sentencing courts are to be "mindful of two legislative guideposts: the maximum sentence and the standard non-parole period" and that meaningful content can only be given to the latter concept by determining the "objective seriousness of an offence … without reference to matters personal to a particular offender or class of offenders" (at [27]). As noted above, the different approach taken by this Court in its earlier decision in relation to the present appellant constituted error (at [13] above).
2. The District Court found that the value of the LSD the subject of Count 1 charged against the appellant was between $200,000 and $1,500,000 ([10] quoted in [7] above). In its previous decision this Court (at [35]) described that estimate as "somewhat conservative", but on the present appeal, the appellant's senior counsel sought to demonstrate by reference to the evidence before the District Court that the estimate was in fact realistic. On this footing, the appellant contended that this Court could not be satisfied beyond reasonable doubt (which is the relevant standard) that the LSD had a street value in excess of $200,000. As the Crown did not seek to contradict this analysis, it should be accepted. Nevertheless, it is relevant that there was, on the evidence, a real possibility of a much greater amount being realised for the LSD.
3. In light of this, whilst I would accept the Crown's submission that Count 1 constituted "an extremely serious drug offence", I would not accept its submission that it was at the upper end of the range of objective seriousness (Crown's written submissions, [22]). Rather, I would describe the offence as somewhat in excess of the mid-range of seriousness, the following additional matters being relevant in this respect: 1. On the Australian Federal Police's estimate, the LSD was capable of producing some 82,000 individual doses or tabs. The appellant submitted that only an estimate of 40,000 was justifiable. Accepting this, there was nevertheless a very substantial quantity of LSD involved. 2. The appellant was primarily responsible for the production of the LSD. 3. The production undertaken was on a large scale, and well-planned and organised. 4. The enterprise was conducted for profit and was likely to reap significant financial rewards.

Subjective features

1. On this appeal the Crown accepted ([24]) that the evidence before the District Court established the following subjective factors that this Court should take into account on re-sentencing: "a. The appellant was cooperative and courteous with police from the outset; b. The value of the drugs in the appellant's possession was somewhere between $200,000 and $1.5 million; c. He has no prior convictions and was of good character; d. He pleaded guilty at the earliest opportunity warranting a 25% discount; e. It was his first time in custody; f. He has good prospects of rehabilitation; g. He is a gifted stained glass artist and had been a loyal friend to many people; h. Special circumstances warranted a non-parole period ratio of 2:1; and i. The appellant's circumstances of incarceration prior to his re-sentence on appeal were 'physically and psychologically violent' and lacked 'vocational courses, educational opportunities, counsellors and caseworkers'; CCA [37]."
2. In addition, as I have noted earlier, further evidence of events occurring since the District Court hearing was admitted on the appeal. The topics dealt with were summarised by the Crown as follows: "i. the appellant's conditions and progress in custody; ii. his separation from his family whilst in custody; iii. the steps he has taken to address his offending; iv. the support he has had from family and friends; v. his recent release into the community on parole and initial contact with his parole officer; and vi. the steps taken and the time spent in seeking to review his sentence for reason of alleged 'Muldrock error'."
3. All of these matters operate in the appellant's favour. The material includes strong evidence of remorse, the support of friends and associates, the absence of any taking by the appellant of illicit drugs, his good behaviour during his incarceration, his attempts to obtain additional occupational qualifications and his employment both before and after he was admitted to parole.
4. Furthermore it is appropriate to take into account the long delay that has occurred, through no fault of the appellant, in the court system producing a final determination of the proper sentence referable to the appellant's Count 1 offence. This is relevant in a case where, in light of the sentences that I propose below, the appellant will probably have been incarcerated for a longer period than was warranted. I say "probably" because the non-parole period to be fixed upon re-sentencing in respect of Count 1 has been assessed by reference to matters that include the appellant's circumstances up to the present time, as well as the fact of delay in the sentence being imposed. To attempt (in my view, unnecessarily) to identify the sentence that would have been appropriate at earlier points in time, one would have to identify with some precision the evidence that was or would have been available at those points.

Sentencing statistics and previous cases

1. A sentencing court must have regard to sentencing statistics and other cases where they establish a range of sentences that have been imposed or evidence principles that may assist in the sentencing process in the subject case (Hili v The Queen [2010] HCA 45; 242 CLR 520 at [48]-[49]; Barbaro v The Queen [2014] HCA 2; 253 CLR 58 at [40]-[41]; R v Pham [2015] HCA 39; 90 ALJR 13 at [28]-[29]).
2. Neither party to the present appeal suggested that there were sentencing statistics or previous cases that might provide such assistance. Nor did my examination of the statistics that the Crown provided to the Court suggest that a range of sentences that might give guidance to the Court had been established.

Conclusion on re-sentencing

1. I proceed then to undertake in respect of Count 1 the "instinctive synthesis" required on re-sentencing (Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [50]-[51] per McHugh J).
2. For this purpose, I take into account the objective and subjective factors to which I have referred and allow a 25% discount from the head sentence for the appellant's early plea of guilty. Further, in accordance with Muldrock, I am mindful of the two legislative guideposts: the maximum sentence and the standard non-parole period. In respect of Count 1 they are a maximum penalty of life imprisonment and a standard non-parole period of 15 years. There are no aggravating or mitigating factors to be taken into account pursuant to s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) beyond those to which I have made reference in the course of describing the applicable objective and subjective features of the case.
3. I take into account also the considerable importance of general deterrence in a case such as the present. However, in light of the appellant's strong subjective case to which I have referred above and the consequent unlikelihood of the appellant further offending, deterrence specific to the appellant is not a significant factor. He is in the unusual position of being able, because of the passage of time, to demonstrate his rehabilitation is a reality as opposed to a mere prospect.
4. In light of all of these circumstances, my independent assessment of the appropriate minimum period of detention in relation to the Count 1 offence is 10 years 6 months. Applying the statutory ratio of 3:1 (s 44(2) of the Sentencing Procedure Act) results in a balance of the term of the sentence of 3 years 6 months. There are not in my view any special circumstances that require a variation of the statutory ratio (s 44(2)). Indeed, there is good reason to maintain the statutory ratio: the appellant was incarcerated for approximately 12 years and has subsequently been on parole for about 4 months. With the head sentence that I propose, the appellant will remain on parole for approximately another 1 year 8 months. Bearing in mind his good conduct in prison and whilst on parole, and his present employment, this is a sufficient period for him to be on parole before completion of his sentence.
5. As this sentence is less severe than the sentence imposed in this Court in its earlier decision, s 6(3) requires the earlier sentence to be quashed and the appropriate sentence passed in substitution. In such a case, the earlier sentence is properly described in the language of s 6(3), as not "warranted in law" (Kentwell at [42]).

Orders

1. For the reasons given above, I propose the following orders: 1. Appeal allowed. 2. Quash the sentence imposed by the Court of Criminal Appeal on 10 February 2006 in respect of Count 1. 3. For the offence of Supply a Large Commercial Quantity of LSD (Count 1), and taking into account the offences on the Form 1, sentence the appellant to a term of imprisonment of 14 years commencing on 20 April 2004 and expiring on 19 April 2018, with a non-parole period of 10 years and 6 months commencing on 20 April 2004 and expiring on 19 October 2014. 4. Note that the sentences imposed by this Court in relation to Counts 2, 3 and 4 on 10 February 2006 expired prior to the expiration of the above sentence in relation to Count 1. As a result, the appellant became eligible for release to parole on expiration of the non-parole period in relation to his Count 1 sentence, being 19 October 2014.
2. HALL J: I agree with Macfarlan JA.
3. BELLEW J: I agree with Macfarlan JA.

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