Edwards v R

Court of Criminal Appeal (NSW)|2008-11-07|Before: McClellan CJ, Hall J, Harrison J, Clellan CJ

JUDGMENT OF: McClellan CJ at CL at 1; Hall J at 27; Harrison J at 28

DECISION: 1. Grant leave to appeal 2. Dismiss the appeal.

CATCHWORDS: CRIMINAL LAW - appeal and new trial and inquiry after conviction - appeal and new trial - appeal against sentence - appeal by convicted persons - applications to reduce sentence - when refused

Drug Misuse and Trafficking Act 1985 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Criminal Appeal Act 1912

CASES CITED : Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267

PARTIES: Steven Douglas Edwards (Applicant) The Crown

COUNSEL: P Lange (Applicant) P Calvert (Crown)

SOLICITORS: S Moran & Co (Applicant) Director of Public Prosecutions (Crown)

IN THE COURT OF CRIMINAL APPEAL 2006/13125

McCLELLAN CJ at CL HALL J HARRISON J

WEDNESDAY 3 DECEMBER 2008 EDWARDS, Steven Douglas v R Judgment 1 McCLELLAN CJ at CL: The applicant pleaded guilty to four counts of supplying a prohibited drug contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. The drugs were supplied over the period 11 March 2005 to 30 June 2005. The first count involved the supply of 3,4 methylenedioxymethylamphetamine (MDMA) in an amount of 1,680 grams being an amount not less than a large commercial quantity. The maximum penalty for this count was life imprisonment and/or a fine of $550,000. There is a standard non-parole period of 15 years imprisonment. 2 Count 2 involved an amount of 381.3 grams of amphetamine being an amount not less than the commercial quantity. The maximum penalty for this offence is imprisonment for 20 years and/or a fine of $350,000. The third count was a deemed supply of 3, 4 MDMA concerned with an amount of 225 grams. The fourth count, again deemed supply but of amphetamine involved the amount of 301.29 grams. The relevant standard non-parole period for each of counts 2, 3 and 4 was 10 years imprisonment. 3 There were 3 further charges which were taken into account on a Form 1 in relation to count 1 which included one charge of having goods in custody, one charge of deemed supply of 100 ecstasy tablets and another of deemed supply of 68.35 grams of methylamphetamine. 4 The applicant was sentenced in respect of counts 2, 3 and 4 to concurrent fixed terms of imprisonment of 7 years and 6 months. With respect to count 1, taking into account the matters on a Form 1 the sentencing judge imposed a non-parole period of 10 years with a total term of imprisonment of 17 years. The sentencing judge provided that the sentences for counts 2, 3 and 4 were wholly subsumed within the sentence in respect of count 1. The applicant seeks leave to appeal against his sentence.

The facts 5 The Crown has provided an appropriate summary of the relevant facts. "The applicant was involved for more than three months in the supply of 7,720 tablets of 3,4 methylenedioxymethylamphetamine (MDMA) at 0.25 grams per tablet. The total weight of the drug was 1,930 grams which, at $30 per tablet, had an estimated street value of $231,000. In addition the applicant was involved in the supply of 750.94 grams of amphetamine, which are $50 per 0.01 grams had a street value of $375,470. In total, the telephone intercept evidence disclosed that between 16 March 2005 and 28 June 2005 the applicant supplied 3,4 methylenedioxymethylamphetamine (MDMA) on 23 separate occasions and amphetamine on 13 separate occasions. Further, 100 tablets of 3,4 methylenedioxymethylamphetamine (MDMA) were located in the applicant's vehicle on arrest and 900 tablets of 3,4 methylenedioxymethylamphetamine (MDMA) were located in his premises upon search by police. Police also found 380.09 grams of amphetamine in his premises and a (smaller) quantity of methylamphetamine. During March 2005, the Tuggerah Lakes Drug Unit commenced an investigation into the supply prohibited drugs by the applicant who was born on 29 September 1981, his de facto Stacey Marie McDonald, and Brendan Brian Wardell. During the course of this investigation a number of lawfully obtained telephone intercept warrants were obtained and conversations monitored in relation to these telephone warrants. These conversations had been corroborated to some extent by surveillance conducted on the applicant and exhibits later seized by investigators following the execution of search warrants. On 11 March 2005, a lawfully obtained telephone intercept was placed on a mobile phone. That mobile phone was used by the applicant. The quantity of MDMA actually supplied by the applicant was 1,680 grams. The large commercial quantity applicable to MDMA is 500 grams. The applicant also actually supplied a total quantity of 381.3 grams of amphetamine. The commercial quantity applicable to amphetamine is 500 grams. The intercepted telephone conversations were characterised by the use of drug codes, such as 'palm trees', 'cheapies' (MDMA tablets of a cheaper quality), 'lady' (one ounce or 28.4 grams of amphetamine), 'butterflies' (MDMA tables bearing a butterfly logo), 'HSV's', 'slut' (an ounce or 28.4 grams of amphetamine), 'eight balls' (one eight of an ounce of 3.55 grams of amphetamine), 'one in a bag' (an ounce of amphetamine and 100 MDMA tables) and 'apples' and 'trees' (MDMA tablets bearing those logos). The drugs were to be on-supplied by the various purchasers. Search warrants were executed on 30 June 2005 by police on the applicant's premises at 136 Woodbury Park Drive, Mardi. In the main bedroom of the house police located a resealable plastic bag containing a quantity of white tablets believed to be MDMA. When later weighted the bag and tablets weighed 20.8 grams. In the master bedroom shared by the applicant and Stacey McDonald police located a large wooden shoe or blanket box. Inside the base of the box police located eight resealable bags containing MDMA tablets, each bag weighed between 32.8 grams and 34.9 grams. The contents of one bag was counted and contained 100 tablets. Each bag contained 100 tablets. On a kitchen bench police located a resealable plastic bag containing pink tablets and powder believed to be MDMA. When weighed, the bag, pink tablets and powder was found to weigh 3.5 grams. The total weight of the drugs found when analysed was 223.20 grams. On 30 June 2005 police went with officers from the New South Wales Crimes Commission to a factory unit leased by the applicant at Johnson Square, Unit 9, 9-11 Johnson Road, Tuggerah for the purpose of seizing a number of motor vehicles which were said to have been purchased with the proceeds of the applicant's drug dealing. There was a small bar fridge in which two shopping bags were found to contain eleven plastic resealable bags each of which contained a quantity of white powder. That powder was later found to weigh 301.29 grams. The drugs were to be supplied in accordance with telephone calls of 27 June 2005. The three charges taken into account on sentence, contained on a Form 1 schedule, arise from the execution of a search warrant upon the applicant's home on 30 June 2005. In the freezer in the kitchen of the premises police located a resealable plastic bag containing a white block substance believed to be amphetamine. When later weighed the bag and the white block substance weighed was found to be 29.8 grams. In the fridge police located a number of resealable plastic bags containing methylamphetamine, weighing in total 50.3 grams. On a kitchen bench of the premises police located a number of items, including bags of methylamphetamine which, when analysed weighed 68.35 grams. In the master bedroom in the house, in the wooden shoe or blanket box, in which the police found prohibited drugs, police located an amount of cash totalling $24,540. The cash was the proceeds of the applicant's involvement in supplying prohibited drugs. At 7.30 am on 30 June 2005, the applicant was stopped by police whilst driving at Mardi. Police from the Tuggerah Lakes Drug Unit attended and placed the applicant under arrest in relation to a number of drug supply matters. The applicant's detention, arrest and caution was recorded on an in car video system of the Highway Patrol car. He was asked if there was anything in the car which should not be there, he indicated there was a quantity of pills and a bag in the car. Police located 100 MDMA pills in a small resealable bag in a backpack on the passenger's seat floor of the vehicle. The applicant stated that they were for his own use. Also in the car police located four mobile phones. The phones were the ones used by the applicant in the supply of prohibited drugs. He declined to be interviewed."

The remarks of the sentencing judge 6 Although the applicant did not give evidence at the sentencing hearing her Honour found that he was truly remorseful and contrite. Her Honour afforded the applicant a discount of 25% by reason of his guilty plea at the earliest opportunity. 7 The applicant had no previous criminal history. Her Honour said of that aspect of the matter: "Those who choose to make significant profits from trafficking in drugs are often people of otherwise good character. Their good character is something they rely upon to avoid detection. It is often that the lack of criminal antecedents will deflect the police attention away from them and onto others who are known to mix in the criminal milieu." 8 Her Honour found that the applicant was engaged in a sophisticated operation. She concluded that he had access to significant supplies and was wiling to provide significant supplies to others. Her Honour found that the criminality of the applicant in relation to count 1 fell "well within the mid-range of objective seriousness." The purport of this finding is not clear. Although it is undoubted that the applicant's offending was at least within the mid-range of objective seriousness her Honour may have intended to indicate that it fell above the mid-range. Such a finding would have been open. 9 Her Honour said: "These are offences committed without regard for public safety involving significant planning on his part and were part of planned and organised criminal activity." 10 The sentencing judge found that the applicant had good prospects of rehabilitation and found special circumstances to allow for a lengthy supervised period on parole to minimise the risk of relapse both in terms of drug and alcohol abuse and re-offending. Although the applicant's early life was marked by disharmony between his parents his subjective circumstances could neither explain or justify his serious level of offending.

The appeal 11 The applicant contends that the sentencing judge made three errors which have the consequence that the sentences imposed were excessive. Even if there were merit in the submissions in my judgment the application must ultimately fail. 12 The effect of her Honour's sentences is that the applicant has received no effective penalty for any of counts 2, 3 and 4. Each of those counts was itself a serious offences carrying a maximum penalty of 20 years. By wholly subsuming the sentences in the sentence for count 1 the applicant has received a benefit which I am satisfied is greater than any adverse consequence flowing from the matters complained of. 13 The applicant's first complaint was the finding by her Honour that the offences were committed without regard to public safety. It was submitted that this is a characteristic of a drug supply offence. Her Honour commented that by conducting his drug supplying activities from his home he exposed his children to illicit substances and the presence of undesirable characters coming to collect their orders. The respondent submitted her Honour's reference to this issue should be understood as a reference to s 21A(2)(i) of the Crimes (Sentencing Procedure) Act 1999. I am not satisfied that this is the case. It was of the essence of the offence that it was committed without regard for public safety and it was inevitable that her Honour would refer to the matter. However, there is no indication that her Honour impermissibly had regard to it as a matter of aggravation. 14 It was further submitted that her Honour erred in treating as an aggravating factor that the offence was committed as part of a planned and organised criminal activity. It was again submitted that this should be understood as a reference to s 21A(2) of the Crimes (Sentencing Procedure) Act and in particular to factor (n). It was submitted that because a degree of planning is inherent in the possession of a large quantity of drugs for the purpose of supply, her Honour erred by having regard to it as a matter of aggravation. 15 I do not think this submission can be accepted. Her Honour commented that the offences were committed as part of an organised criminal activity which was clearly the case. That finding was inevitable. There is nothing in her Honour's remarks to indicate that her Honour impermissibly had regard to it as a matter of aggravation. 16 The third submission was to the effect that her Honour had erroneously failed to give the applicant the benefit of her Honour's finding of good character. The applicant emphasised the remarks of McHugh J in Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267 at 275 where his Honour said: "If an offender is of otherwise good character, then the sentencing judge is bound to take that into account in the sentence that he or she imposes." (emphasis added) 17 McHugh J went on to say that the weight to be given to good character will vary according to all of the circumstances. This Court has said on many occasions that the weight to be ascribed to a clean record in drug cases is less than in other types of offending. This is because, as the sentencing judge correctly identified, the lack of a previous record is common in drug supply offences where sophisticated organisation and planning is not uncommon. Although the low level operator may be readily detected, the principals for those in the middle management of the operation may be difficult to identify. 18 It may be that her Honour should be understood as having ignored the applicant's prior good character, although this is not clearly the case. Her Honour did correctly identify that good character is of less significance in drug cases. In the circumstances of this case if her Honour impermissibly put this issue to one side it has not occasioned an injustice requiring the intervention of this Court. 19 The final submission made by the applicant was that her Honour had overvalued the seriousness of the matters in the Form 1. The applicant's analysis of the sentence, which I accept, was that her Honour had increased the total sentence for count 1 from a term of 15 years to that of 17 years, an increase of 2 years by reason of the matters on the Form 1. 20 The matters on the Form 1 included the deemed supply of 100 ecstasy tablets, 68.35 grams of methylamphetamine and $24,540 in cash suspected of being stolen. The offence of goods in custody contrary to s 527C of the Crimes Act 1900 carries a maximum sentence of 6 months imprisonment. It was submitted that this modest maximum sentence and the relatively small quantity of drugs involved in the other matters made an increase of 2 years by the inclusion of these matters on the Form 1 excessive. 21 I am satisfied that this submission should be accepted. 22 The appropriate approach by a sentencing court to matters included on a Form 1 has been authoritatively considered by this Court. In Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 at [66] Spigelman CJ said: "The effect of inclusion on a Form 1 is to give the offences so included a significant lower salience in the sentencing process. There will be an obvious advantage, and hence a greater incentive to admit guilt, where the Form 1 procedure is employed." 23 Although the goods in custody offence was relatively minor the drug matters were more serious and if the applicant was being separately sentenced for each of these offences a total head sentence of 2 years may not have been excessive. However, when included on a Form 1 a 2 year term was outside the appropriate range.

Should this Court intervene? 24 Notwithstanding that an error has occurred in relation to the consideration of the matters on the Form 1 I am not satisfied that this Court should intervene to reduce the applicant's sentence. As I have identified count 1 had a standard non-parole period of 15 years. Although by reason of the applicant's plea of guilty the significance of the standard non-parole period was diminished a total non-parole period for all of the offences of 10 years was in the circumstances lenient. Counts 2, 3 and 4 each carried a standard non-parole period of 10 years imprisonment. Each was a separate offence in which a significant quantity of the relevant drug was supplied. The total weight of MDMA supplied was 1,930 grams. The total supply of amphetamines was 750.94 grams. Furthermore, it would appear that her Honour paid no regard to the Form 1 matters when determining the non-parole period. 25 Similar considerations are relevant to the head sentence. The multiple and serious counts to which the applicant pleaded guilty should not have been dealt with by the imposition of a single term of imprisonment. Notwithstanding considerations of totality the applicant's offending should have been marked out with a portion of his sentence expressly related to counts 2, 3 and 4. This would inevitably have extended the total term beyond 15 years and probably beyond 17 years.

Orders 26 In these circumstances I am not satisfied that either in respect of the non-parole period or the total sentence a less severe sentence is warranted in law (s 6(3) Criminal Appeal Act 1912). Although I would grant leave to appeal I would dismiss the appeal. 27 HALL J: I agree with McClellan CJ at CL. 28 HARRISON J: I agree with McClellan CJ at CL. **********

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