Donnelly v R

Court of Criminal Appeal (NSW)|2024-06-24|Before: Harrison CJ, Garling J, Faulkner J, O'Brien AM

Solicitors: Legal Aid NSW (applicant) Office of the Director of Public Prosecutions (NSW) (respondent) File Number(s): 2021/00010863 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 09 September 2022 Before: O'Brien AM DCJ File Number(s): 2021/00010863

HEADNOTE [This headnote is not to be read as part of the judgment] The applicant pleaded guilty to three counts of drug offences contrary to ss 25(2) and 27 of the Drug Misuse and Trafficking Act 1985 (NSW) in the District Court of New South Wales, namely: one count of aiding and abetting the supply of no less than a large commercial quantity of prohibited drug and two counts of supplying no less than a commercial quantity of prohibited drug. The first count offending was constituted by the applicant storing gamma butyrolactone for someone the applicant knew would supply the drug once it was returned. The quantity of drug stored by the applicant was six times a large commercial quantity. On 9 September 2022, the applicant was sentenced by O'Brien AM DCJ (the sentencing judge) to an aggregate sentence of 8 years and 6 months with a non-parole period of 5 years and 3 months. The sentence commenced on 30 March 2021 and expires on 29 September 2029. In the sentencing judge's reasons, his Honour assessed the count 1 offending as at a point below the mid-range of objective seriousness for offences of that type. The application for leave to appeal was brought out of time. The applicant sought an extension of time. The application and the appeal were heard concurrently. The appeal was sought on two grounds: 1. the sentencing judge erred in his assessment of the objective seriousness of count 1; and 2. the aggregate sentence was manifestly excessive. The applicant's submissions regarding Ground 1 relied upon the arguments that the sentencing judge ought to have characterised the count 1 offending as at "bottom of the notion range" of objective seriousness for offences of that type and that the applicant ought to have been characterised as a "user dealer" in relation to count 1, as he was in relation to count 2 and count 3. The Court (Faulkner J, Harrison CJ at CL and Garling J agreeing) granted an extension of time for leave to appeal and granted leave to appeal against the sentence but dismissed the appeal. As to Ground 1, the applicant's argument that the sentencing judge erred in failing to characterise count 1 was at the very bottom of a notional range of objective seriousness ought to be rejected. The fact that the applicant was the "storeman" of the drug does not necessarily lead to the characterisation for which the applicant contends. It was open to characterise the applicant as a "trusted participant" in the supply operation. The sentencing judge's inability to place a dollar value of the drug did not preclude the sentencing judge's assessment of objective seriousness. It was open to the sentencing judge to assess the objective seriousness of the offence as at a point below mid-range, having regard to all the matters before the Court. As to Ground 2, apart from the objective seriousness of count 1 and the indicative sentence recorded for count 1, the applicant has advanced no argument as to why the aggregate sentence was manifestly excessive.

JUDGMENT

HARRISON CJ at CL: I agree with Faulkner J and the orders he has proposed.
GARLING J: I agree with the orders proposed by Faulkner J, and his Honour's reasons.
FAULKNER J: This is an application under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) for leave to appeal against the sentence passed upon the applicant's conviction for certain drug offences to which he pleaded guilty. The application for leave is out of time and therefore it is accompanied by an application for an extension of time. The applications for an extension of time and for leave to appeal were heard concurrently with the appeal itself.
There should be an extension of time granted to the applicant. Leave to appeal ought also to be granted. The appeal itself ought to be dismissed.

Background

The offences for which the applicant was convicted arose out of the circumstances described in a Statement of Agreed Facts which was before O'Brien AM DCJ (the sentencing judge). Relevantly, in August 2020 police commenced an investigation into the applicant's suspected supply of prohibited drugs in the Redfern area. Surveillance revealed that the applicant frequently drove his blue utility truck to the basement carpark of an apartment complex in Rosebery.
Further surveillance in the apartment complex revealed that on 29 December 2020 the applicant visited and unlocked a particular storage cage located in the basement (storage cage 47). He was observed to open the storage tray of his ute and then unlock the two silver-coloured padlocks which secured storage cage 47. He then retrieved some reusable plastic bottles filled with clear liquid from the tray of his ute and placed them into a green reusable bag before entering the storage cage. The applicant then locked storage cage 47 and drove off.
The next day the applicant returned. He opened the tray of his ute, unlocked and entered storage cage 47 and re-emerged with a green reusable bag. The applicant then locked storage cage 47 and drove off.
On 13 January 2021, the applicant again visited the carpark of the apartment complex at Rosebery. He was subsequently seen driving the ute and was stopped by police for a random breath test. Having informed the police that he was on bail for "drugs" and that it was "ice" he had been in trouble for, the applicant was subjected to a mobile drug test. The police observed that he was not applying the swipe adequately to his tongue. Based on his demeanour and information obtained from police checks, the police searched the ute. The following items were found in the storage tray: 1. a Mount Franklin water bottle containing 285.1g of gamma butyrolactone (GBL); 2. an Oriloff Vodka bottle containing 331.3g of GBL; 3. a Woolworths Lightly Sparkling Australian Spring Water bottle containing 546.7g of GBL; 4. a glasses case containing: 1. a resealable bag of 5.88g of methylamphetamine; 2. a resealable bag of 1.23g of methylamphetamine; 3. an ice pipe; and 4. syringe; 1. a Coca Cola bottle containing 19.0g of GBL; 2. a Coles Lightly Sparkling Australian Spring Water bottle containing 553.6g of GBL; 3. empty capsules in a plastic container; and 4. three mobile phones.
The applicant was arrested and taken to Mascot Police Station.
Facilitated by search warrants which had been obtained, the police then went to storage cage 47. The cage was locked with the two silver padlocks which the police were able to unlock with keys located on the applicant at the time of his arrest. The police searched storage cage 47 and found the following items: 1. a vapour tracer machine; 2. a clear 5L plastic bottle marked "Tectaloy" coolant; 3. a 20-25L white plastic square container containing 24,721g of GBL; 4. a Balance water bottle containing 1,010.5g GBL; and 5. a glass jar containing brown tar material, later identified as 189.2g of "3,4 methylenedioxyamphetamine."
The Balance water bottle was found inside a toolbox which was locked with a gold-coloured padlock. The police unlocked the gold padlock using keys located on the applicant. The glass jar was found inside a safe which the police unlocked also using keys located on the applicant.
Amongst other things, forensic testing revealed the applicant's DNA on the gold padlock which locked the toolbox and the two silver padlocks which locked storage cage 47.
Paragraph 17 of the Statement of Agreed Facts is as follows: "The Crown accepts that the offender was storing 24.721 Kg of gamma butyrolactone located in the 20-25L white plastic square container for a person known to the offender. The offender aided that person by agreeing to store the container, knowing the said drugs were a large commercial quantity of gamma butyrolactone. The offender knew the other person would use the gamma butyrolactone for supply once it was returned to that person."

The offences

The applicant subsequently pleaded guilty to the following offences contrary to ss 25(2) and 27 of the Drug Misuse and Trafficking Act 1985 (NSW): 1. Count 1: aid and abet the supply of not less than large commercial quantity of prohibited drug being a 24.721kg of GBL; 2. Count 2: supply of no less than a commercial quantity of prohibited drug being 2.7462kg of GBL; and 3. Count 3: supply of no less than a commercial quantity of prohibited drug being 189.2 g 3,4 methylenedioxyamphetamine.
Count 1 has a maximum penalty of life imprisonment. There is no remaining dispute that a statutory non-parole period of 15 years applies to count 1, even though it is an offence committed by aiding and abetting rather than directly perpetrating the supply of drugs.
Counts 2 and 3 each have a maximum penalty of 20 years imprisonment with a statutory non-parole period of 10 years imprisonment.
In addition to the three offences set out above, the sentencing judge took into account a further Form 1 offence attaching to count 2, namely supply of no less than a commercial quantity of prohibited drug being 7.11g of methylenedioxyamphetamine contrary to s 25(1) of the Drug Misuse and Trafficking Act, which carries a maximum penalty of 15 years imprisonment.

The sentence

The applicant was sentenced on 9 September 2022.
The sentencing judge imposed an aggregate sentence of 8 years and 6 months with a non-parole period of 5 years and 3 months.

Reasons of the sentencing judge

The sentencing judge recognised that it was "necessary to assess the objective seriousness of the offences by reference to the maximum penalties prescribed by Parliament, the facts and circumstances of the offending, the relevant common law principles" and the Crimes (Sentencing Procedure) Act 1999 (NSW).
On the question of objective seriousness, the sentencing judge identified as relevant the quantity of the drugs supplied, the purity of the drugs and the potential value. The sentencing judge observed that in relation to count 1, the quantity of the drug was more than six times a large commercial quantity. There was no evidence about the purity of the drug in count 1. In relation to value, the sentencing judge said: "[s]elf evidently the drugs were valuable, although I am unable to quantify that value with any precision".
The sentencing judge found "most critical in assessing objective seriousness is the role played by the offender and the overall circumstances of the offending". Applying those principles, the sentencing judge made the following findings about objective seriousness of the offences as follows: "In his affidavit sworn 12 July 2022 the offender deposes to the circumstances leading up to his offending. This evidence which I accept, informs my consideration of the objective seriousness of all offending. In 2020 he was in full-time employment for a container transport company doing electrical and general building maintenance work. Following the onset of COVID 19 he lost his job and had nowhere to live. He ended up doing electrical jobs here and there, and couch surfing with friends. He had no stable income and a drug habit which had been long-standing. He deposes that he 'ended up getting involved with drug suppliers to pay for my habit and to get by with living expenses. I was buying drugs 'on tick' and then having to go back and pay for them. I ended up in debt about $14,000'... In respect of count 1, I have regard to the fact that the offending was limited to storing 24.721 kg of GBL for another person, knowing that the quantity of drugs would in due course be supplied within the community. … I accept the submission of the Crown that the offender was clearly a trusted participant in the drug enterprise given the quantity of drug involved. Notwithstanding the very significant quantity, I have concluded, given his limited but not insignificant role in the drug supply, that the objective seriousness of his involvement falls a point below the mid-range of objective seriousness of the offences of this type. The quantities of drug in both counts 2 and 3, the offenders regular attendance at the Rosebery premises during the period that he was under observation, along with the matters contained in the offender's affidavit sworn 12 July 2022 concerning his drug use and general circumstances at the relevant time, have led me to conclude that the offender can best be categorise[d], to the extent such a description is necessary, as a 'user dealer' in respect of those counts. I have assessed the objective seriousness of counts 2 and 3 as falling below the mid-range of objective seriousness of offences of their type. At the time these offenses were committed the offender was on conditional bail for two offences of supplying a prohibited drug, along with offences of driving under the influence of alcohol and dealing with proceeds of crime. Those offences were committed on 5 June 2020. On 27 May 2021 he was sentenced in respect of them to [an] aggregate term of imprisonment of 12 months with a non-parole period of five months commencing 13 January 2021. He was eligible for release on parole on 12 June 2021 however has remained in custody bail refused in respect of these matters since then. While not impacting the objective seriousness of the offences, this breach of conditional liberty does impact on the way these proceedings will be disposed of."
The sentencing judge then set out the subjective circumstances of the applicant by reference to the evidence of Dr Thomas Dornan (psychologist), the evidence of the applicant himself, his mother and his partner and a sentencing assessment report which addressed his time in custody.
Dr Dornan's report set out the applicant's history, including his birth to a 15 year old mother and adoption, his mixed childhood, his adolescent depression, anxiety, dyslexia, dyscalculia and learning difficulties. He left school after Year 10, trained as an electrician and had consistent employment throughout his 20s and 30s. The applicant developed a major depressive disorder and post traumatic disorder following a stabbing in custody in 2021.
The applicant commenced consuming alcohol when he was 18 and amphetamines when he was in his early 20s. His drug use increased and expanded to include ecstasy, ice and GBL. There was a period of successful rehabilitation followed by relapse.
The applicant has been abstinent since he has been in custody. He is focussed and motivated to remain drug free and has family support. The sentencing judge considered that he has reasonable prospects of rehabilitation if he remained determined to be drug free and engaged with treatment on release.
The applicant was cross-examined. The sentencing judge found him to be an impressive and candid witness.
The sentencing judge was satisfied that the applicant demonstrated remorse and a willingness to facilitate the administration of justice.
The sentencing judge made findings of special circumstances which were warranted because the applicant was found to have reasonable prospects of rehabilitation and would need an extended period of supervision upon release to ensure that he maintained the effective regime of mental health treatment and that he addresses his drug, alcohol and gambling issues.
There was no dispute in the case that the threshold contained in s 5 of the Crimes (Sentencing Procedure) Act was crossed.
The sentencing judge considered that the case lends itself well to the imposition of an aggregate sentence having regard to the principles of totality.
After considering any applicable discounts, about which there is no dispute, the sentencing judge addressed the requirement to record the indicative non-parole periods as follows: "As I intend to impose an aggregate sentence, it is necessary for me in accordance with the statutory scheme to note the indicative sentences that I would otherwise have regarded as appropriate had I not determined to proceed in that way. It is also necessary for me to note the indicative non parole periods for each count 1 as they are standard non-parole period offences. This is in accordance with s 54B(4) of the Crimes (Sentencing Procedure) Act. The indicative sentences are as follows Count 1, sentence of 8 years imprisonment less 20% to reflect the combined discount to which I have referred, making an indicative sentence after rounding down [each] of 6 years and 4 months imprisonment. I note an indicative non-parole period of 3 years and 10 months imprisonment. Count 2, taking into account the matter on a Form 1, a sentence of 4 years imprisonment less 35% to reflect the combined discount to which I have referred making an indicative sentence after rounding down of 2 years and 7 months imprisonment. I note an indicative non-parole period of 18 months imprisonment. Count 3, a sentence of 3 years imprisonment less 35% reflect the combined discount to which I have referred making an indicative sentence after rounding down [of] a 1 year and 11 months imprisonment. I note an indicative non-parole period of 15 months imprisonment."
The sentencing judge then determined an aggregate term of imprisonment of 8 years and 6 months with a non-parole period of 5 years and 3 months.
The sentencing judge had regard to the time which the applicant had already spent in custody since his arrest on 13 January 2021 and identified, as an issue to be determined, the appropriate commencement date of the sentence to be imposed. The sentencing judge found that the sentence should commence on 31 March 2021 which, having regard to a sentence for an earlier offence for which the applicant was on parole in January 2021, was a commencement date which favoured him.

Grounds of appeal

Should leave be granted, the applicant puts forward two grounds of appeal: 1. the sentencing judge erred in his assessment of the objective seriousness of count 1; and 2. the aggregate sentence was manifestly excessive.

Submissions of the applicant regarding Ground 1

As set out above, for count 1 (aid and abet the supply of not less than a large commercial quantity of a prohibited drug being 24.721 g of GBL) the sentencing judge concluded that the applicant's involvement falls at a point below the mid-range of objective seriousness for offences of this type.
The applicant contends that the sentencing judge ought to have found that count 1 was at "the very bottom of a notional range of objective seriousness".
There is no contention by the applicant that there was any error in principle in the approach taken by the sentencing judge when assessing the objective seriousness of the count 1 offending. Nor was it contended that the sentencing judge took into account irrelevant matters or that the sentencing judge failed to consider all relevant matters. The applicant's argument is that the sentencing judge's conclusion about the objective seriousness of count 1 was vitiated by error because the conclusion was not open to the sentencing judge having regard to the following four matters: 1. the 24.721 g of GBL was not the applicant's drugs and his role was limited to storing the drugs for someone else; 2. the characterisation of the applicant as a "trusted participant" is not relevant to the objective seriousness of count 1; 3. given the limited role of the applicant as storeman of the drugs, the weight of the drugs is less significant in the assessment of objective seriousness than it would otherwise be; and 4. the sentencing judge was unable to assess the value of the drugs which were the subject of count 1.
The applicant emphasised that his role in the supply was limited to storing the drugs. He was not the supplier.
The applicant submitted that an offender's role in the supply of drugs is at least as important as the quantity supplied: Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at 597; [2001] HCA 64 at [31] (Gleeson CJ) and 607, 608; [64] (Gaudron, Gummow and Hayne JJ). Having regard to his limited role, the applicant submits that the objective seriousness of count 1 ought to have been assessed as at the very bottom of the notional range.
The applicant also pointed out that the sentencing judge described him as a "user dealer" in respect of the count 2 and count 3 offending and submitted that the same description ought to have been applied to him in respect of the count 1 offending, observing that the same drug was specified for both count 1 and count 2. Viewed as a "user dealer", the applicant's role was said to be diminished further.

Ground 1 should not be accepted

Ground 1 ought to be rejected. The applicant's argument is based on the premise that a significant role in the supply of drugs is not played by someone who is not the supplier, but knowingly stores the drugs for the supplier. The applicant referred to the role of the storeman as "extremely limited" and "relatively minor". The sentencing judge, however, viewed the applicant's storage role as "not insignificant". That conclusion was open to the sentencing judge. On the facts before the Court in R v Ferguson [2022] NSWCCA 147 at [78], R A Hulme J described the storage of the drugs as a "vital function". The storage of drugs at a location removed from the actual supplier ought not to be viewed as a mere matter of logistical convenience. The work of the authorities in detecting, investigating, prosecuting and ultimately proving the offences committed by drug suppliers is made more difficult by the drugs being stored away from the supplier. In this sense, the storeman's role is vital to the overall operation.
In any event, the assessment of the objective seriousness of an offence is an exercise of a broadly based discretion: Mulato v R [2006] NSWCCA 282 at [37] (Spigelman CJ) and [46]-[47] (Simpson J). An appellate court will not intervene with such an assessment unless there is specific error of the sort referred to in House v the King (1936) 55 CLR 499; [1936] HCA 40 is established: BM v R [2023] NSWCCA 68 at [44] (Walton J).
In this case, the applicant accepts that he must demonstrate that the assessment of the objective seriousness of his conduct was not open to the sentencing judge. The four matters identified by the applicant, whether taken alone or as a group, fall well short of what is required. It will be apparent from what is set out in [45] above that the first and third matters do not detract from the objective seriousness to the extent for which the applicant contends. Neither does the second matter relied upon by him pay sufficient attention to the vital function of the storeman, including the objective of protecting the supplier from detection by the authorities. As the person who was responsible for that vital function, it was open to the sentencing judge to characterise the applicant as a trusted participant in the supply of the drugs.
It is true that the sentencing judge was not able to attribute a specific dollar value to the drugs which were the subject of count 1, but his Honour was able to find that they were "valuable". As his Honour said, that conclusion was self-evident. Count 1 relates to a quantity of drugs which was more than six times a large commercial quantity. It is not to the point that there may be other drugs which are more valuable.
Even if the four matters relied upon by the applicant are all accepted, it was still open to the sentencing judge to assess the objective seriousness of the count 1 offending at a point below the mid-range. Regard must be had to all the other matters before the Court, including the fact that the quantity of drugs the subject of count 1 did not merely exceed a large commercial quantity but did so by a factor of six. As set out in paragraph 17 of the Agreed Facts, the applicant knew he was storing a large commercial quantity and that it would be supplied once returned to the owner.
In this respect, the sentencing judge found that the applicant was best categorised as a "user dealer" with respect to the count 2 offending and the count 3 offending, but the position was different for the count 1 offending. As the facts in this case demonstrate, someone may be a "user dealer" for some of the drugs in that person's possession and yet perform the vital function of storeman for someone else's supply of the large commercial quantity of other drugs in that person's possession. The applicant's argument that once he was characterised as a user dealer for some of the drugs in his possession, he should be characterised the same way for all the drugs in his possession, or for all the drugs in his possession of the same type, cannot be accepted.
For these reasons, it was open to the sentencing judge to assess that the objective seriousness of the count 1 offending falls at a point below the mid-range. No error has been demonstrated.

Submissions of the applicant regarding Ground 2

Whilst Ground 2 was put forward as a free standing ground, it relied heavily on Ground 1.
On the question of whether the aggregate sentence imposed by the sentencing judge was manifestly excessive, the applicant accepts that the sentencing judge took into account all relevant matters, including his subjective circumstances and the circumstances in which the offences occurred.
The applicant nonetheless argues that the aggregate sentence imposed by the sentencing judge was unreasonable or plainly unjust. The essential proposition put forward was that the sentencing judge's assessment of the objective seriousness of count 1 resulted in an indicative sentence for count 1 which was too high. The applicant further observed that the indicative sentence for count 1 comprised a significant portion of the aggregate sentence ultimately imposed. Had a lower indicative sentence been recorded for count 1, the applicant argues that the aggregate sentence might also have been lower.
The applicant also observed that the indicative sentence for count 1 was higher than the indicative sentences for count 2 and count 3 and repeated the argument that he ought to have been characterised as a user dealer for the count 1 drugs.

Ground 2 should not be accepted

It follows from what has been said above in relation to Ground 1 that the applicant's arguments about the aggregate sentence being manifestly excessive ought not to be accepted. There is no basis to depart from the sentencing judge's conclusion that the applicant was not a "user dealer" in relation to the count 1 offending, nor the sentencing judge's assessment of the objective seriousness of the count 1 offending, nor the sentencing judge's assessment of the indicative sentence for count 1.
Although the applicant submitted that Ground 2 was pressed even if Ground 1 was rejected, no argument was advanced as to why the aggregate sentence was manifestly excessive other than by reason of the arguments advanced in support of Ground 1.
For these reasons the aggregate sentence imposed by the sentencing judge has not been shown to be manifestly excessive.

Proposed orders

The orders I propose are: 1. Grant an extension of time for filing the Notice of Appeal up until 23 April 2024. 2. Grant leave to appeal. 3. Dismiss the appeal.

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: 12 August 2024

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