Donaghey v R

Court of Criminal Appeal (NSW)|2015-04-29|Before: Bathurst CJ, Simpson J, Bellew J, Mr P

Solicitors: Rebecca McMahon - Applicant Solicitor for Public Prosecutions - Respondent File Number(s): 2013/247756 Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 29 September 2014 Before: Wilson DCJ

Judgment

BATHURST CJ: I agree with Bellew J.
SIMPSON J: I agree with Bellew J.
BELLEW J: Andrew Michael Donaghey ("the applicant") pleaded guilty to a charge that on 14 August 2013 he supplied a prohibited drug, namely methylamphetamine, contrary to s. 25(1) of the Drug Misuse and Trafficking Act 1985 ("the DMT Act"). The maximum penalty for that offence is 15 years imprisonment and/or 2000 penalty units. No standard non-parole period is prescribed.
On sentence the applicant asked the sentencing judge to take into account two additional matters contained in a Form 1, namely: 1. dealing with property suspected of being the proceeds of crime; and 2. supplying a prohibited drug, namely 4.46 grams of heroin.

THE FACTS

At about 11:00pm on 14 August 2013 police were patrolling the Newcastle suburb of Belmont. In the course of doing so they observed a Mitsubishi Magna vehicle stopped on the side of the road, with another vehicle stopped immediately behind it. The passenger side door of the Magna was open and police observed two persons, Justin Bestwick and Linden Scott, standing near the door. The applicant was seated in the driver's seat.
Police approached and spoke to the three persons present. All appeared to be nervous. The applicant and Bestwick appeared to be under the influence of prohibited drugs. Specifically, both had bloodshot eyes, were unsteady on their feet and had the appearance of being tired. Bestwick told the police that he had stopped to ask the applicant if he could use his mobile telephone charger.
Police conducted checks in relation to all three persons which revealed that the applicant had a history of involvement in drug supply. Bestwick and Scott were known for drug use and possession.
Police then searched the vehicle and located a small amount of white crystal substance under the front passenger seat, along with a quantity of resealable bags, two sets of digital scales and two mobile telephones.
The applicant was searched by police. A large resealable bag containing a white crystal substance, and two smaller resealable bags which also contained a similar crystal substance, were found in his underpants. The substance in one of the bags was found to be 13.46 grams of methylamphetamine with a purity of 79 percent. Another of the resealable bags contained 4.46 grams of heroin with a purity of 26 percent. Police also found the sum of $1,096.55 in cash in the applicant's pocket, and a further $269.00 in cash in his wallet. The applicant was arrested and taken to the police station where he declined to be interviewed.

Ground 1 - Her Honour erred in sentencing the applicant on the basis the maximum penalty for the subject offence was 20 years imprisonment.

The findings of the sentencing judge

The sentencing judge stated the following (at ROS 1): "The offender stands to be sentenced for an offence of supplying a prohibited drug contrary to s. 25(1) of the Drug Misuse and Trafficking Act 1985. The maximum penalty specified for this offence is 20 years imprisonment and a fine currently set at $222,000.00. There is no standard non-parole period. A further supply offence and an offence of dealing with the proceeds of crime are before the court on a Form 1 document to be taken into account when sentence is imposed for the principle offence" (emphasis added).

Submissions of the applicant

Counsel for the applicant correctly submitted that the maximum penalty for the offence was 15 years imprisonment, not 20 years. It was submitted that in stating the maximum penalty was 20 years imprisonment, the sentencing judge had erred.

Submissions of the Crown

The Crown accepted that the sentencing judge had incorrectly stated the maximum penalty but did not concede that this amounted to error. The Crown submitted that this Court would be satisfied that the sentencing judge "merely misspoke the number 20 rather than 15" and that she did not sentence the applicant on the basis that the penalty was in fact 20 years. The Crown relied on three particular factors in support of those submissions.
Firstly, the Crown relied upon the fact that the Crown sentence summary which formed part of exhibit A on sentence correctly identified the maximum penalty as 15 years imprisonment.
Secondly, it was pointed out that although the sentence summary correctly identified the maximum fine as 2000 penalty units, the applicable monetary amount had been erroneously stated as $22,000.00. It was pointed out that notwithstanding that error, the sentencing judge had correctly identified the maximum fine. It was submitted that this indicated that despite what the sentencing judge had said, she was obviously aware of the correct maximum penalty.
Thirdly, it was submitted that the sentencing judge had correctly observed that an offence contrary to s. 25(1) of the DMT Act is concerned with amounts of prohibited drugs which are less than 250 grams. This, it was submitted, was a further indication that the sentencing judge was aware of the correct maximum penalty.

Consideration

In my view, the position taken by the Crown invites impermissible speculation. The simple fact is that the maximum penalty stated by the sentencing judge was incorrect. Further, it is significant that the sentence proceedings concluded on a Friday, at which time the sentencing judge reserved her decision until the following Monday. The terms of the judgment reflect careful preparation, a circumstance which tends completely against the position taken by the Crown.
In my view, the error was a material one. It had the capacity to infect the exercise of the sentencing discretion: Baxter v R [2007] NSWCCA 237; (2007) 173 A Crim R 284 per Latham J at [83].
It follows that ground 1 is made out. In these circumstances, the provisions of s. 6(3) of the Criminal Appeal Act 1912 are enlivened and it is the duty of this Court to exercise the sentencing discretion afresh, taking into account the purposes of sentencing and any statutory factors that are required or permitted: Kentwell v R [2014] HCA 37; (2014) 88 ALJR 947 at [42]-[43] per French CJ, Hayne, Bell and Keane JJ. I have considered these matters further below.

Ground 2 - In rejecting a basis for a finding of special circumstances, her Honour erred in failing to take into account that the further sentence of imprisonment was imposed cumulatively on a sentence already being served by the applicant

The relevant history

On 5 November 2009 the applicant was convicted of supplying a prohibited drug and sentenced to 2 years imprisonment which was fully suspended upon his entering into a bond to be of good behaviour. He breached that bond and was called up for that breach. On 1 March 2012 he was sentenced to imprisonment for 2 years commencing 1 March 2012 and expiring on 28 February 2014. A non-parole period of 12 months was imposed.
The applicant was subsequently released to parole, and was on parole at the time of the present offending on 14 August 2013. His parole was revoked on 29 August 2013 solely as a result of such offending. The applicant then served the balance of that parole, a period of 6 months and 14 days, with the sentence expiring on 28 February 2014.
As previously outlined, the sentencing judge backdated the sentence for the present offending to commence on 28 January 2014.

The sentence proceedings

The applicant's solicitor submitted to the sentencing judge (commencing at T6 L25) that the sentence for the present offending should be backdated to commence prior to 28 February 2014. Specifically, it was submitted (commencing at T7 L3) that the sentence should be backdated to 14 August 2013, being the date of the present offending. A further submission was made that special circumstances should be found.
The Crown submitted (commencing at T8 L15) that the applicant must have known that if he was involved in any offending again he would be expected to serve the balance of his parole. The Crown submitted that there was nothing in the evidence which otherwise justified a finding of special circumstances.

The findings of the sentencing judge

Against the background outlined above her Honour said (commencing at ROS [44]): "[44] There is a question of when the sentence to be imposed upon the offender should commence. The offender was apprehended on 14 August 2013, and his parole for the earlier supply offence (itself imposed on call-up) was revoked on 29 August 2013, dating from the date of his arrest. It is reasonable to conclude that parole was revoked because of the commission of the present offence. [45] The offender submits that the court should back-date his sentence at least to some extent so that this sentence and the balance of parole of 6 months and 14 days run concurrently. [46] There will be some concurrence, but only to a very modest extent. Those who breach conditional liberty by the commission of further serious crime must expect to pay the price for the disregard of the court's order to them to be of good behaviour. I do not think concurrence of sentence to any extent is indicated by anything other than the principle of totality."
Her Honour then proceeded (at ROS [49]) to impose the sentence previously outlined. No reference was made to special circumstances.

Submissions of the applicant

In circumstances where the applicant was taken into custody at the time of the present offending on 14 August 2013, and where his parole was revoked, it was submitted that the sentence imposed meant, in effect, that the applicant would serve a non-parole period of 2 years, 2 months, and 13 days (i.e. from 14 August 2013 until 27 October 2015) following which he would (subject to release) be on parole for 7 months (i.e. until 27 May 2015). It was pointed out that this yielded a ratio well in excess of 75 per cent.
It was further submitted that the sentencing judge, when structuring the sentence, had failed to make any reference to special circumstances, despite that issue having been raised. It was submitted that the absence of such reference, along with the end result, supported a conclusion that the issue had been overlooked and that in these circumstances, error was established.

Submissions of the Crown

The Crown submitted that the remarks on sentence at [44]-[46] amounted to a clear rejection of the submission that a finding of special circumstances was warranted. It was submitted, in particular, that the observations of the sentencing judge at ROS [46] indicated a specific intention to impose the sentence she did.

Consideration

The sentencing judge was obviously aware of the applicant's custodial history. Equally however, a submission was made to her Honour that special circumstances should be found. The absence, in the remarks on sentence, of any reference to the issue of special circumstances, along with the end result, supports a conclusion that the matter was overlooked: Baghdadi v R [2012] NSWCCA 212 per Davies J at [32], Macfarlan JA and Johnson J agreeing.
In these circumstances I am satisfied that ground 2 has been made out.

Re-sentence

In the event that this Court came to consider the question of re-sentence, the following affidavits were read without objection in the applicant's case: 1. an affidavit of the applicant of 22 April 2015; 2. an affidavit of Rebecca McMahon, solicitor of 26 April 2015.
In addition the Crown read, without objection, an affidavit of Catherine Anne Williams solicitor of 28 April 2015.
I have referred to aspects of this affidavit material in more detail below.
The present offending was described by counsel for the applicant before the Court as "a fairly typical example of fairly low level street dealing by a drug addict". Given the circumstances of the offending outlined in the facts before the sentencing judge, I am prepared to accept that counsel's description was, generally speaking, apt. At the same time, such description must not be allowed to detract from the objective seriousness of offences involving the supply of illicit drugs.
A report of Laura Durkin, psychologist records that the applicant, who has a criminal history for offences involving drug supply and drug possession, was born in the United Kingdom and was the only child of his parents. As the applicant's mother was only 14 when he was born, his maternal aunt and her husband adopted him. The applicant moved to Australia at the age of 6 months with his adoptive parents who, it seems, were supportive of him. In his late teenage years, the applicant learned that his biological mother was the sister of his adoptive mother. This caused difficulties in the relationship between the applicant and his adoptive parents although it seems that those matters resolved over time.
The applicant told Ms Durkin that during the course of his life he had abused cannabis, MDMA and cocaine for varying periods of time. However, he advised her that he was now abstinent of all substances. Ms Durkin recommended that the applicant engage in intensive drug and alcohol treatment designed to address substance abuse issues. She concluded: "Through drug and alcohol rehabilitation, (the applicant) can obtain case management, which will support his return to the community post admission. Ongoing case management is recommended given (the applicant's) peer supports in the community and it is suggested he disconnect from his drug using peers."
The affidavit of Ms McMahon establishes (inter alia) that the applicant has been employed since being taken into custody. That is confirmed by the applicant's own affidavit of 22 April 2015 in which he stated that since being taken into custody, he has worked in an upholstery factory, as well as in a facility making demountable buildings for schools. As a result, he has acquired painting, decorating and associated manual skills. The applicant supervised ten co-workers in his most recent position.
The applicant has been prescribed anti-depressant medication since being taken into custody with which he has been compliant. He has stated that he proposes to continue to take that medication when released. He has also participated in narcotics anonymous groups whilst in custody.
On 8 April 2015 the applicant was transferred to Long Bay Hospital due to passing blood. A letter from the Executive Director of Clinical Operations at Justice Health (which forms annexure A to the affidavit of Ms Williams) confirms that a renal ultrasound undertaken in April 2014 demonstrated moderate right hydronephrosis, with the most likely cause being ureteric calculus or in other words, kidney stones. No surgery has been carried out, nor is any anticipated in the immediate future.
For the reasons I have already outlined, there is an issue in the present case as to the commencement date of any sentence in light of the applicant's custodial history. In Callaghan v R [2006] 160 A Crim R 145 Simpson J (at [20] and [21]) observed that where pre-sentence custody is referable partly to the crime for which an offender is being sentenced and partly to some other circumstance, there is no absolute rule that the pre-sentence custody can never be taken into account in determining when any sentence should commence. Her Honour observed that the matter is discretionary, and further observed (at [23]) that it would, in some cases, be unfair not to backdate a sentence to some point before the expiration of the earlier parole period. In doing so, her Honour pointed out that it is always open to an offender to seek, and be granted parole, even after an initial revocation.
In my view, it is appropriate to backdate any sentence to commence on 28 January 2014. The applicant was subject to conditional liberty at the time of the offending. Such offending amounted to the applicant disregarding the previous order that he be of good behaviour. Backdating the sentence to 28 January 2014 incorporates the appropriate degree of accumulation.
There is a separate issue in respect of whether a finding of special circumstances should be made. The entirety of the evidence, and in particular the evidence of the progress that the applicant has made since being taken into custody, supports the conclusion that he has favourable prospects of rehabilitation despite his criminal history. The evidence also supports a finding of special circumstances. I am satisfied that there exist positive signs which show that if he is allowed a longer period on parole his rehabilitation is likely to be successful: R v Tuuta [2014] NSWCCA 40 at [87]. That finding will result in a ratio between the total sentence and the non-parole period of slightly less than 75 percent.
In the exercise of the sentencing discretion afresh, I propose the following orders: 1. Leave to appeal is granted. 2. The appeal is allowed. 3. The sentence imposed in the District Court is quashed. 4. In lieu thereof, the applicant is sentenced to imprisonment for 2 years commencing on 28 January 2014 and expiring on 27 January 2016. 5. A non-parole period of 1 year and 4 months is imposed, commencing on 28 January 2014 and concluding on 27 May 2015. 6. The applicant will be eligible for parole on 28 May 2015 and his sentence will expire on 27 January 2016.

Amendments 27 May 2015 - Correction to Representation for Applicant 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: 27 May 2015

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