Diri v R

Court of Criminal Appeal (NSW)|2019-12-09|Before: Macfarlan JA, Davies J, Hidden AJ, MacFarlan JA

Judgment

MACFARLAN JA: I agree with Davies J.
DAVIES J: The applicant pleaded guilty in the Local Court to the following two offences: Sequence 1. Supply prohibited drug being 4.05 grams of methylamphetamine. The maximum penalty for this offence is 15 years' imprisonment. Sequence 11. Supply prohibited drugs (methlyamphetamine) on an ongoing basis. The maximum penalty for this offence is 20 years' imprisonment.
A further charge on a Form 1 constituting Sequence 10 and attached to Sequence 11 was a further offence of supplying prohibited drugs (methylamphetamine) on an ongoing basis.

The offending

The applicant was sentenced on the basis of a statement of agreed facts which can be summarised as follows.
Strike Force Ferrabetta was commenced in March 2016 to investigate the ongoing supply of prohibited drugs and prescribed restricted substances in and around the Blacktown area. Throughout the investigation the applicant was identified through the use of physical and electronic surveillance.
The offences charged all resulted from the supply of drugs to undercover police officers. In all but one supply the contact was made by the undercover officer to the applicant.
The first offence of supplying 4.05g of methylamphetamine came from three separate transactions of supply to an undercover officer on 19 July, 20 July and 9 November 2016.
The applicant was first contacted on 19 July 2016 when the police operative known as Jason called a mobile number for "Bec" and there was no answer. About half an hour later Jason received a call from that number. The applicant identified himself as Ritchie, and said, "Bec's not around anymore, she used to work for me". Jason said "She used to help me out before". The applicant said, "What are you after?" and Jason said, "I'm after two points of ''I' for me and two points for my mate". The applicant said, "Yeah I can help you out". They arranged to meet later that morning in a car park in Blacktown.
A little under two hours later the applicant drove a vehicle to a commuter car park near Blacktown Railway Station. He was monitored as he drove. That constituted the offence on the s 166 certificate of driving while disqualified.
The transaction was completed by the supply to Jason of 0.27g of methylamphetamine, later analysed to have a purity of 71.5%. The transaction was monitored through physical and electronic surveillance.
The following day another police operative known as Nick sent the applicant a text message asking if he could "hook us up again". An agreement was reached for the supply of half a gram of ice for $200 from the applicant. The transaction took place at the station. The substance was taken and analysed and was found to be 0.28g of methylamphetamine with a purity of 73.5%.
The third transaction making up the first offence was for the supply of 3.5g of methylamphetamine to an operative Shayna on 9 November 2016. In fact, what was supplied in return for $800 was not a prohibited drug at all. Ultimately it was ascertained to be bath salts.
The ongoing supply offence constituting Sequence 11 involved three supplies on 20 October, 2 November and 9 November 2016. The amounts involved in the ongoing supply charge were 0.43g and 3.57g of methylamphetamine on the first two occasions respectively. The purity of the supplies was high. The third of those supplies involved another undercover operative, Ash, and took place at the same time as the supply of the bath salts to the operative Shayna, and it also involved the supply of bath salts rather than a prohibited drug.
In relation to the supply on 2 November 2016, that supply was initiated by the applicant sending the operative a text message saying "Got them celar [scil. clear] diamond shards again", "got that dyno". Subsequently the operative rang and two amounts were supplied one purportedly for a friend of the operative. The total amount was 3.57g.
The ongoing supply charge on the Form 1 involved three supplies on 21 September, 4 October and 6 October 2016. The amounts involved were respectively 0.32g, 0.51g and 1.11g of methylamphetamine.
In the supply on 21 September 2016, the operative had asked for "$100, so two". That was clarified as meaning "two points". The applicant then said, "For an extra $100 you can get over double. I'll give you half". The operative agreed to that deal. In fact, the amount supplied was 0.32g.
As the transaction was being completed on 9 November 2016 the applicant was arrested. He and the car were searched. Two mobile phones were found together with $500.00 (of which $350.00 had just been paid to him by Ash) and a small empty resealable bag.

The sentence proceedings

The matter first came before Judge Craigie on 8 November 2018. His Honour noted that the objective offending was inherently serious, and he then made reference to the strength of the subjective case. His Honour noted that the Crown submitted that nothing less than full-time imprisonment was required to reflect the totality of the offending. His Honour said that there was considerable strength in the Crown's position, but he was mindful of the significant steps the applicant had taken in rehabilitation. He said that he proposed to place the applicant on a remand under s 11 of the Crimes (Sentencing Procedure) Act 1999 (NSW), and he directed a further sentencing assessment report be prepared as to the applicant's suitability for an intensive corrections order.
The matter then came back before Judge Craigie on 30 January 2019 where a Sentencing Assessment Report was tendered and further submissions made.
The matter was adjourned to 8 February 2019 for sentence but on that day the sentencing judge identified a matter about which he said he needed further written submissions from counsel. The matter was then briefly before his Honour on 25 March 2019 when it was adjourned to 12 April 2019 when further brief evidence was taken and further submissions made. His Honour then delivered his reasons for sentence later that day.

Ground 1: The sentencing judge erred in assessing the objective seriousness of the drug offences

Submissions

In substance, the applicant makes three complaints in support of this ground. (a) The sentencing judge failed to assess the objective seriousness of the offences individually rather than collectively. (b) The sentencing judge took into account a finding of "persistent offending over a four month period" which was not open on the evidence. (c) The sentencing judge failed to give proper regard to the fact that the offence of ongoing supply included a purported supply in that the substance supplied was bath salts rather than methylamphetamine. That was a factor which ought to have mitigated the objective seriousness of the offence.
The applicant submitted that the failure of the sentencing judge to address each of the offences individually had the consequence that his Honour nowhere identified that the two offences of ongoing supply (Sequences 10 and 11) were examples of that offending which were well below mid-range. The applicant submitted that the collective assessment of the offending as falling "somewhere around the mid-range of seriousness of its kind" was not open, as a description of either of the ongoing supply offences.
The applicant relied on remarks made by Hulme J in R v Smiroldo [2000] NSWCCA 120; (2000) 112 A Crim R 47 which suggested that an assessment of the magnitude of such an operation was a relevant factor. Reference was also made to what was said by Payne JA in Daher v R [2018] NSWCCA 287, that the objective criminality of a contravention of s 25A is determined by reference to repetition, systems and organisation, not merely the frequency of supply or quantity supplied. The applicant drew attention to a statement of the sentencing judge that there was no suggestion that the offending conduct was other than that arising directly from the charged matters. The applicant pointed to the fact that all but one of the supplies were initiated by the police operatives, that the ongoing supplies relied on the minimum number in the specified period (three), and that the amounts involved were all small.
The applicant submitted that the offending did not amount to persistent offending over a four month period. The first supplies were on 19 and 20 July 2016 with the next supply being 21 September 2016. The applicant submitted that there was no evidence of offending in the intervening period. The applicant submitted that the reference to persistent offending over the period was inconsistent with the statement of agreed facts.
The applicant submitted that the sentencing judge should have found that the criminality involved in the supply of something which was not a prohibited drug was somewhat less than the criminality involved in a case where there was a genuine plan to supply a drug, in reliance on what was said by Wood CJ at CL in R v Yaghi [2002] NSWCCA 396; (2002) 133 A Crim R 490 at [19]. The applicant submitted that the principle was reaffirmed in R v Kijurina [2017] NSWCCA 117 at [99].
The applicant submitted that it was apparent from his Honour's Remarks that his Honour did not appreciate that the offence of ongoing supply included, as its third supply, a supply of bath salts. That was evident, it was submitted, because his Honour made express reference to the fact that bath salts formed part of the supply for the rolled up drug supply charge, Sequence 1.
The Crown submitted that the characterisation of the objective seriousness of an offence is classically within the role of the sentencing judge, referring to Mulato v R [2006] NSWCCA 282.
The Crown submitted that it was only necessary for the sentencing judge to make clear from his or her findings that the judge regarded the offence as serious. The Crown submitted that the authorities show that it would be sufficient if the judge specifically referred to factors which bore upon his assessment of the objective seriousness. The Crown submitted that the sentencing judge gave detailed consideration to, and made findings in relation to, each of the factors which bore upon the objective gravity of each of the offences.
The Crown pointed out that both counsel for the applicant and the Crown at the sentence hearing had addressed objective seriousness by not distinguishing between the three offences. The Crown submitted that the offending that comprised the three offences before the Court was of a similar character, involving the dealing in small amounts of the drug.
The Crown submitted that s 25A is directed to repetition, system and organisation, that is, the business operation of supplying prohibited drugs.
The Crown submitted that the sentencing judge accurately set out the particulars of each of the individual supplies. The fact that there may have been a gap between July and September did not mean the description of "persistent offending over a four month period" was inapt.
The Crown submitted that the statements made in Yaghi and Kijurina when properly understood are not authority for the proposition that the criminality involved in a drug rip-off is less than that involved in the actual or planned supply of prohibited drugs. Indeed, the Crown submitted, both cases stressed the seriousness of drug rip-offs.
In relation to the sentencing judge's assessment that the offending was somewhere around the mid-range of seriousness for offending of its kind, the Crown submitted that the submission made on behalf of the applicant before the sentencing judge was that the seriousness was below the mid-range, whereas what was contended on the appeal on behalf of the applicant was that the offending was well below the mid-range.
The Crown submitted that an analysis of the individual supplies demonstrated a general increase in the amount of money and the weight of the drug involved in each transaction as time went on. The Crown submitted that it was relevant to consider the speed and consistency with which the applicant was able to source the drugs, their relatively high purity on a number of occasions and the general increase in amounts over time. The Crown submitted that on two occasions matters were initiated by the applicant, being the supply on 2 November 2016 and the offer on 21 September 2016 by the applicant to upsell what was sought by the operative.

Consideration

In his Remarks on Sentence of 12 April 2019 his Honour first dealt with each of the individual supplies making up Sequence 1, Sequence 11, and Sequence 10 which was on the Form 1. His Honour then said: I have paid close attention to the agreed statement of facts and have concluded that it is strongly suggestive of the offender being in a position to supply quantities of methylamphetamine, including some of relatively high purity, at short notice. … [T]he totality of his offending, particularly in repeated drug supplies over a relatively extended period, must be regarded as inherently serious. It reflects four months of persistent criminality, intending to facilitate the distribution of drugs into the community. In a number of instances, the drugs supplied were of relatively small quantities and to undercover operatives, who did not use them nor distribute them into the community. However, it is also the case that, in a number of instances, a relatively high level of purity was provided. I am satisfied beyond reasonable doubt that included in the offender's motives were those of immediate financial gain, notwithstanding that I also accept it as more probably true than not, upon the offender's own evidence and other history, that he is a person who is a long term drug user. That factor is not a mitigating factor but places him in a different category to the person who might simply be regarded as a drug marketing entrepreneur.
His Honour made reference to the attempt to pass off a quantity of bath salts as methylamphetamine as follows: It is very fortunate that no actual harm arose from the attempt, as the offender himself called it, to "rip off" a client by passing something other than methylamphetamine to his customer. Otherwise, that act and the related admissions in his statement tendered in the proceedings and adopted on oath indicated a conclusion that could not support a finding beyond reasonable doubt that this was other than an isolated and desperate act in order to satisfy his market. I have considered whether the willingness to place into the hands of another person and potentially then into the wider community bath salts should be regarded as an aggravating circumstance. ... Both parties have taken the position that it is not open to me to have regard to the bath salts supply as it was in reality as an aggravating circumstance. … With some reluctance, I accept that position. ... The offending, however, absent that factor, remains objectively serious at an inherent level.
A little later, his Honour returned to the assessment of objective seriousness and said: There is no evidence of the particular role in any terms of hierarchy beyond that indicated in the facts. That is, the offender repeatedly supplied relatively small quantities of methylamphetamine which he was able to source at relatively short notice. The scale and frequency of the drug transactions related solely to those undertaken after approaches by undercover operatives. There is no evidence such as that more commonly found in tick lists or in large amounts of cash in the hands of the offender as would indicate a more entrepreneurial kind of drug dealer. … The Court is faced with a difficult formulation. Offending that I would certainly place somewhere around the mid-range of seriousness of its kind. There is repetition. There is some purity of a notable kind in some of the drugs. It is, I find, apparent that the offender, whilst not an entrepreneurial drug dealer, was certainly well able to access the drug supply chain.
In the written submissions of the applicant's counsel before the sentencing judge, counsel said this, under the heading "Objective features of offending and criminality": [24] The offence is objectively a serious [sic], given the prevalence of drugs and drug use in the community, and the harm it wrecks on all aspects of society, the offender himself included it would appear. The fact that the offence encompassed some aspects of drug rip-offs could be regarded as a factor in terms of a lower degree of objective seriousness for instance compared with cases which do not. Counsel made reference to what was said by Wood CJ at CL in Yaghi at [16] and [19], and to what was said in R v DW [2012] NSWCCA 66; (2012) 221 A Crim R 63, that it was a relevant factor that the drugs had not actually been disseminated into the community.
Counsel then said: It is respectfully submitted that having regard to the opportune means upon which the offender participates in the supplies, the purpose of supply (if it is so accepted, to finance his own addiction, the low quantities involved both individually and overall, the objective seriousness of the offence could be categorised as below the mid-range.
In his oral submissions counsel said this: But what is important in my respectful submission and your Honour assessing the objective seriousness of his offending conduct is that Mr Diri was a substantially drug affected person at the time. … The sentences your Honour would consider are within that range [i.e. of two to three years to enable the imposition of an ICO] insofar as the offending behaviour, in my submission, your Honour, is below the mid range. It's below the mid range for a number of reasons: … … Your Honour would perhaps come to a view that the objective seriousness in this offence is lowered, and coupled with the strong subjective case on behalf of Mr Diri, an alternative form of custodial term may be appropriate. … In my respectful submission the sentences before your Honour are intrinsically linked in that the supplies arise out of a same course of conduct; although separated by time they arise out of the same course of conduct under the same investigation by related officers of the police force.
In the Crown's written submissions before the sentencing judge, the following appears under the heading "Objective seriousness". 13. The Crown submits that the Court would find this offence falls within the mid-range of objective seriousness for offences of this kind. The Crown then set out a number of matters relating to the period of time during which the supplies were made, the amounts supplied, the fact that the two supplies on 9 November 2016 were of inert substances, that there was repetition and a sustained nature of dealing to an established customer base, that the offender's supply was readily available, and that on one occasion the applicant took the initiative in sourcing a customer.
In oral submissions, the Crown said: The Crown submits it can't have been opportunistic given that the offender continued to supply over a four month period and to multiple customers. The Crown, however, does not rely on the offence being aggravated by it being planned in the s 21A sense, and the Crown submits that the evidence doesn't establish that the planning and organisation is more than might ordinarily be expected for offences of this kind.
It may be observed that all of the submissions made on behalf of the applicant and most of what was said by the Crown grouped the offending as "the offence". No distinction was made between the supply offence and the two ongoing supply offences. The sentencing judge dealt with the offending in exactly the same way. For the reasons which follow, I do not consider that the sentencing judge was wrong to do so.
The totality of the offending arose from nine individual supplies within a four month period. Three of those supplies were joined together to constitute Sequence 1. Three other of the supplies constituted Sequence 11, and the remaining three supplies constituted Sequence 10 on the Form 1.
It cannot be said that the sentencing judge failed to refer to relevant matters that ought to be considered in relation to the objective seriousness of either the supply offence or the ongoing supply offences. His Honour made reference to the amounts, the purity, the speed with which the drugs were able to be accessed after a request was made, the offender's likely role in the particular drug supply business, the fact that part of the offender's motives were those of immediate financial gain although the fact that he was a drug user was also taken into account, the fact that the drugs were supplied to undercover operatives so that they did not ultimately pass into the community, and to the fact that the last of the supplies on 9 November 2016 involved an inert substance.
In Daher, Payne JA (Simpson AJA and Johnson J agreeing) said: [46] It is clear that the sentencing judge did not, in terms, make an assessment of the objective gravity of the offending or of the individual offences. The real question in this case is whether her Honour implicitly did so in the way identified by Hoeben CJ at CL in Delaney v R. That is, did her Honour specifically refer in sufficient detail to the factors which bore upon the objective gravity of the offending such that it may be concluded that an assessment of the objective seriousness of the offending was carried out. [47] In my view her Honour failed, even implicitly, to make an assessment of the objective gravity of the offending. This is a case where, after reciting the facts at some length, and identifying at a level of generality that trafficking in prohibited drugs is a serious offence, her Honour essentially addressed the question posed by Clark of whether the applicant was involved in "trafficking to a substantial degree". Her Honour's conclusion on this topic, which the Crown submitted was the implicit assessment of objective seriousness referred to in Delaney was: "The offender appears to be at the apex of his drug network. The circumstances lead to only one available conclusion and that is that the offender has trafficked in the drug cocaine to a significant extent over a considerable period of time, a matter of months."
By reason of the matters taken into account by the sentencing judge in the present matter the position is significantly different from what was being considered by this Court in Daher.
In Delaney v R; R v Delaney [2013] NSWCCA 150; (2013) 230 A Crim R 581 Hoeben CJ at CL (with whom Harrison and Beech-Jones JJ agreed) said at [56]: While it is true that his Honour did not in terms assess the objective gravity of the offending, he did specifically refer to the factors which bore upon its objective seriousness. His Honour took account of the amount involved, the role of the appellant, the nature of the conduct and the period over which it took place. While it may have been preferable for his Honour to have made a specific assessment of the objective seriousness of the offending, he did implicitly do so. I am satisfied that the factors to which his Honour referred were relevant and important and were given proper weight in the sentencing process. While his Honour may not have expressly determined the objective criminality of the offences, he clearly took that into account.
In the same way, I am satisfied that the sentencing judge made reference to the relevant matters in assessing the objective seriousness of the offending as around the mid-range.
It is not without significance that when Payne JA came to re-sentence in Daher his Honour said this: [66] The three offences, taken together, undoubtedly disclosed a pattern of offending that involved a business operation. Such operations come frequently before the District Court and this Court, and experience shows that there is a wide range of circumstances that go into the assessment of objective gravity - eg the frequency of supplies, the quantities supplied (or agreed to be supplied), the sophistication of the supply organisation, the motive for participation, the number of recipients and the identity of the recipients (supply to juveniles would be more serious than supplies to adults, for example). On each of these criteria, the applicant's enterprise can be seen to be at the lower end. It was amateurish, the quantities supplied were small, the recipients were within a relatively small circle and the supply was conducted to facilitate the applicant's own use of drugs. Overall, this was drug supply on a small scale, well below the kind of offending that would qualify for mid-range offending. Of course, each offence must be assessed for its own objective gravity, but these observations are equally apt to each offence.
It is not easy to see how what the sentencing judge did in the present case differed from that approach.
In circumstances where both the applicant and the Crown addressed the sentencing judge on the basis of the objective seriousness of the offending generally without distinguishing amongst the offences to be considered, a claim in this Court that his Honour should have proceeded on a different basis comes up against the problem referred to in Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 at [79]-[80]. No miscarriage of justice is demonstrated. The matter is a long way removed from the position in Lyons v R [2017] NSWCCA 204 where the sentencing judge failed to make reference to the significant distinctions in the various offences charged.
Nor do I consider that his Honour's, perhaps, unfortunate use of the term "persistent" when describing the offending indicates an error. Again, both parties before his Honour treated the offending as being ongoing offending between 19 July and 9 November 2016 of the same type. The fact that there was a gap after the first two supplies from 20 July to 21 September 2016 is immaterial. It does not have an impact on the assessment of the objective seriousness of the offending.
I do not consider that a proper reading of Yaghi and Kijurina results in a conclusion that supplying an inert substance is objectively less serious than supplying a prohibited drug. The remarks made by Wood CJ at CL in Yaghi were made in the context of a plan by the suppliers from the outset to defraud the purchasers by supplying what purported to be a large commercial quantity of heroin. On one level, defrauding a purchaser who intended to buy a large quantity of a drug like heroin may be less serious than supplying that quantity of heroin. But the Court in Yaghi and the Court in Kijurina both stressed the seriousness of such rip-offs. The sentencing judge in the present matter was rightly concerned about the danger of someone ingesting a substitute substance like bath salts. The applicant was unaware that he was selling to police operatives and, in that way, supplying another substance meant that the objective seriousness was not reduced.
The applicant does not demonstrate that the assessment of objective seriousness of the offending was not open to the sentencing judge.

Submissions

In the course of the sentencing Remarks the sentencing judge said: The aggregate sentence that I impose takes into account a total amounting to nine months served either in custody or quasi custody. That nine months is a combination of five months fulltime custody and an allowance of approximately half the time in quasi custodial conditions in rehabilitation. The aggregate sentence, therefore, will be backdated to reflect that.
His Honour then imposed an aggregate sentence which he said commenced on 15 July 2018. The date the sentence was imposed was 12 April 2019.
The applicant submitted that his Honour erred in not backdating the sentence to 12 July 2018 when he had said he would backdate it by nine months.
The Crown submitted that his Honour indicated that he was making an allowance of "approximately" half the time in quasi-custodial conditions. The Crown submitted that a difference of three days is well within that approximate allowance when there is no entitlement to any fixed ratio of allowance for quasi custody.
The Crown submitted further that the sentencing judge informed the parties on 30 January 2019 that he had arrived at a figure of "a little under a total of nine months" for pre-sentence custody comprising the period the applicant had spent bail refused as well as an allowance of about 50% for the period the applicant had spent in residential rehabilitation.

Consideration

After the sentencing judge imposed the sentence, his Honour asked whether there were there any matters requiring clarification. The Crown said: Your Honour, my calculation of the start date of the sentence, nine months subtracted from today's date is 12 July 2018. A debate then ensued between his Honour and the Crown where his Honour explained how he had arrived at a backdated period of nine months. However, his Honour did not appear to understand that the Crown was referring, not so much to a nine month period, but rather to the commencement date for the sentence, taking into account the nine months backdating.
Contrary to the Crown's submissions, the issue was not about whether his Honour made an allowance "of approximately" half the time in quasi-custodial conditions, or an earlier statement by his Honour that he had arrived at a figure of "a little under a total of nine months". What his Honour said at the time of imposing the sentence was that he would backdate the sentence by nine months. In fact his Honour did not do so because he fixed a commencement date of 15 July 2018 rather than 12 July 2018. Ultimately, the Crown, at the hearing of the appeal, appeared to accept that an error had been made in that regard.
The error made can be considered to be nothing more than an administrative error that involves no aspect of discretion: Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255 at [84], [124]-[125] and [129]; Gordon v R [2018] NSWCCA 54 at [51]. It is not necessary for the Court to engage in a resentencing exercise as required by Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37.

Conclusion

I propose that leave be granted to appeal in relation to ground 2 and that the sentence be adjusted to commence from 12 July 2018. I would grant leave to appeal in respect of ground 1 but would dismiss the appeal.
Accordingly, the orders I propose are these: (1) Grant leave to appeal. (2) Allow the appeal in respect of ground 2. (3) Quash the sentence imposed by Judge Craigie SC in the District Court on 12 April 2019. In lieu, sentence the applicant to an aggregate sentence of two years nine months' imprisonment commencing 12 July 2018 and expiring 11 April 2021 with a non-parole period of one year nine months expiring 11 April 2020. The appellant will be eligible for parole from 11 April 2020. (4) Otherwise dismiss the appeal.
HIDDEN AJ: I agree with Davies J.

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