DIEGUEZ Jason v R [2008] NSWCCA 147 | Case summary

4 JULY 2008 Jason DIEGUEZ v REGINA Judgment 1 BELL JA : I agree with Latham J. 2 GROVE J : I agree with Latham J 3 LATHAM J : The applicant, Jason Dieguez, seeks leave to appeal against the sentence imposed upon him on 13 March 2007 by Sides QC DCJ (the judge) following the applicant's conviction after trial on one count of Supply Prohibited Drug (heroin). A non-parole period of 4 (four) years was imposed, with an additional term of two and a half (2.5) years. 4 The applicant faces a considerable hurdle in persuading the Court to grant leave. A Notice of Intention to Appeal was filed on 4 April 2007, expiring 4 October 2007. The applicant's present solicitors received instructions to act on the appeal on or about 22 March 2007. It appears that the transcripts of the trial and the remarks on sentence were requested as early as 11 May 2007. By late August, those transcripts had been provided to the applicant's solicitors. Senior counsel was briefed in late July 2007. There was no explanation provided for the failure to apply for an extension of the Notice of Intention to Appeal in these circumstances. 5 Moreover, the grounds of the application for leave to appeal and senior counsel's submissions were provided to the applicant's solicitors in mid February 2008, yet were not filed until 9 April 2008. No explanation is forthcoming to explain that delay. 6 For the purposes of what is a relatively straightforward appeal against sentence, such a considerable delay is more than unfortunate. The Crown does not contend that it suffers any prejudice, but rightly points out that the interests of justice in the broader sense are not served by tardiness of this order. 7 Whilst the grounds as filed contend a number of errors on the part of the judge, the substance of each of them is that the sentence is manifestly excessive. I turn to a brief account of the offence, summarised from the trial transcript.

(i) The Sentence was Unduly Harsh and Severe (ii) The Sentencing Judge Erred in his Reliance on The Quantity of the Drug (iii) The Sentencing Judge Erred in Finding Substantial Involvement with Drug Trafficking (iv) The Sentencing Judge Erred in Failing to Make Any or Sufficient Allowance for Subjective Matters. 11 It is convenient to deal with grounds (ii) - (iv), before returning to consider whether the sentence was manifestly excessive in all the circumstances. 12 Following a finding that the offence was "very serious indeed", the judge went on to say :_ The commercial quantity is 250 g; the indictable quantity is 5 g; and the trafficable quantity is 3 g. The quantity involved in this case is almost 14 times the indictable quantity; 23 times the trafficable quantity; and just over 27% of the commercial quantity. The court is satisfied beyond a reasonable doubt that he was substantially involved in drug trafficking. As there is no basis to conclude that he was involved in this venture to fund his own habit, the only conclusion is that he was involved in it for profit. Whilst the Crown has no billed the charge against Peter McDonald, the court cannot exclude the possibility that Mr McDonald was also involved in the venture. 13 The applicant contends that these remarks support the conclusion that the judge selected the weight of the drug as the chief factor to be taken into account in fixing a sentence, and that this represents a departure from fundamental principle, according to Wong v R (2001) 207 CLR 584. It is further submitted that the judge's calculations based on where the relevant quantity stood in relation to the various prescribed amounts under the Drug Misuse and Trafficking Act 1985 reinforced that error, namely, that it was not necessarily the case that the higher the quantity of the drug, the greater the objective gravity of the offence. Reliance was placed upon Markarian v R (2005) 228 CLR 357 in this regard. 14 The applicant's submissions are not supported by a reading of the whole of the judge's remarks. I can discern no basis for concluding that his Honour fixed upon the weight of the drug as "the chief factor". It was a factor which, among others, led his Honour to the conclusion that the applicant was "substantially involved in drug trafficking". 15 The applicant's reliance upon Wong and Markarian is, in my view, misplaced. It may be accepted that it is not always the case that the greater the quantity of a drug, the more objectively serious the offence. As was pointed out in Markarian in the majority judgment, the supply of a small quantity of a drug to an infant may render that offence more objectively serious than the supply of a larger quantity to an adult user. Similarly, given the matters enumerated in s 16A(2) of the Crimes Act 1914 (Cth), it is not correct to sentence according to a grid of sentencing hierarchies dependent solely upon the quantity of a drug : Wong at [71] - [72]. However, the judge said nothing in the course of his remarks that approached the kind of reasoning criticised by the High Court. Rather, the judge recognised the materiality of the weight of the drug, as he was entitled to do : Wong at [67] ; R v Stanbouli (2003) 141 A Crim R 531 ; [2003] NSWCCA 355 at [102]. 16 The complaint under (ii) is allied to (iii). The applicant maintains that the finding of substantial involvement in drug trafficking is inconsistent with the finding that the offence was "an isolated aberration." This conclusion depends upon an acceptance that the judge's use of the term "trafficking" connotes supply on more than one occasion. The applicant relies upon a series of decisions of this Court, beginning with R v Bardo CCA 14 July 1992, wherein Hunt CJ at CL commented that "'trafficking' clearly carries with it the connotation of supply on more than one occasion." Bardo was followed in that regard in R v Ozer CCA 9 November 1993 and in R v Depalo [2003] NSWCCA 80. In R v Gip ; R v Ly [2006] NSWCCA 115, McClellan CJ at CL reviewed these authorities and concluded that :- My understanding of these various statements is that where a finding can be made that an offender has engaged in repeated offences so that his or her activities can be described as trafficking, a full-time custodial sentence should, unless there are exceptional circumstances, be imposed. However, if only one offence can be proved, but the circumstances surrounding that offence indicate that it was the result of a sophisticated commercial arrangement, the objective criminality involved may also require a custodial sentence, unless exceptional circumstances can otherwise be shown. 17 The applicant does not contend that a non-custodial sentence was appropriate in the circumstances of his case. However, he does maintain that it is not correct to describe a single supply, not evincing the traits of a "sophisticated commercial arrangement", as "trafficking". It may have been an unfortunate choice of words to describe one incident of supply, but given the extempore nature of the remarks on sentence, I am not persuaded that the judge meant anything other than "the activity of trading or dealing in drugs" : Gip & Ly at [9]. 18 Whilst it was accepted that the applicant had not engaged in the supply of heroin on more than one occasion, he was substantially involved in the act of supplying a prohibited drug on this occasion. That substantial involvement was, in part, a product of the quantity of the drug, in that the applicant had demonstrated a capacity to obtain such an amount and parcel it for supply. The evidence of the street price of the heroin also underpinned the finding. 19 The fact that the Crown case at trial was one of joint possession did not escape his Honour. The remarks on sentence refer to Mr McDonald and the possibility that he was "also involved in the venture". Even if the applicant obtained the heroin for supply jointly with Mr McDonald, that did not invalidate the judge's finding of substantial involvement. 20 Turning to the applicant's subjective case, it is said that the judge failed to "allow for" four particular subjective matters. The remarks on sentence canvassed the fact that the applicant was of good character, the fact that it was his first custodial sentence, the fact that the applicant, who was 30 years of age, had given evidence of a diagnosis of bowel cancer and the fact that the applicant was the custodial parent of a daughter, aged 11, although they both lived with the applicant's parents and there were other close family members who were available to care for the child. The applicant's submissions, in effect, allege that each of these matters was not given the appropriate weight by the judge in arriving at the sentence that was ultimately imposed. 21 A further feature of the applicant's subjective case that was not taken into account by the judge, in the sense that it did not feature in the course of his remarks on sentence, was the fact that the applicant had been on bail for a period of 11 months, during which time he was subject to a residential condition and daily reporting conditions. The applicant relies upon the decisions of this Court in R v Keyte CCA 26 March 1986 and R v Rajapaski [2001] NSWCCA 126 to support the proposition that a state of conditional liberty, involving constraints to the applicant's freedom of movement, should result in some mitigation of penalty. 22 It is important to place the comments in Keyte and Rajapaski in context. In Keyte there was a two and a half year delay between the applicant's arrest and sentence. In Rajapaski there was almost a four year delay between the applicant's arrest and sentence. By way of contrast, the passage of 11 months between the date of arrest (but for five days) and the jury's verdict of guilty represents a relatively speedy resolution of the applicant's fate. In my view, the applicant was not entitled to any mitigation of an otherwise appropriate penalty because of his bail conditions. 23 Returning to the four matters referred to at [20], this aspect of the applicant's case on appeal really amounts to a restatement of the applicant's principal contention (i), which is that the sentence is manifestly excessive in all the circumstances, both objective and subjective. In other words, it is not possible to determine whether the judge gave insufficient weight to any one or all of the above factors, without determining whether a non-parole period of 4 years, with an additional term of 2.5 years was outside the range of the judge's legitimate sentencing discretion. As Gleeson CJ and Hayne J said in Dinsdale v The Queen (2000) 202 CLR 321 at 325, a sentence either is, or is not, plainly unjust or unreasonable. 24 To call in aid the Judicial Commission statistics in order to demonstrate manifest excess, as the applicant does, is not always helpful. It is apparent that the applicant's sentence is at the upper end of the range of sentences imposed for this offence, according to those statistics. The fact remains that it is nonetheless within the range of sentences imposed for an offence carrying a maximum penalty of 15 years imprisonment. Caution should be exercised when having regard to this data. As Hulme J observed, with the concurrence of the other members of the Court in Ma & Pham v R [2007] NSWCCA 240 :- 91 Subliminal in the reference to the statistics and the observation that the sentences here fall into the highest end of the range is the proposition that that is indicative of error. The proposition must be rejected. As this Court has said on many occasions, the range extends to the maximum penalty set by Parliament and it is against that that an offender's conduct must primarily be judged. Certainly, the statistics may at times inspire further reflection on the sentence in a particular case and perhaps give some limited guidance but, of themselves, they do not demonstrate error. Particularly is this so because, within each category, they provide no details of the cases reflected in them.

DIEGUEZ Jason v R

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