ELDRIDGE v REGINA

Judgment 1CAMPBELL JA: I agree. 2RS HULME J: I agree with Hoeben J. 3HOEBEN J: Offence and sentence On 27 April 2010 the applicant pleaded guilty to an offence of supply prohibited drug, namely 12.72 grams of 1-benzylpiperazine contrary to s25(1) of the Drug Misuse and Trafficking Act 1985. The maximum penalty is a fine of 2000 penalty units or imprisonment for 15 years, or both. 4On 10 June 2010 her Honour Judge Payne sentenced the applicant to imprisonment with a non-parole of 11 months commencing 31 May 2010 and expiring 30 April 2011, with a balance of term of 9 months expiring 30 January 2012. 5In addition, her Honour sentenced the applicant for three offences on a Certificate under s166 of the Criminal Procedure Act 1986 as follows: (i) Conduct drug premises - imprisonment for one month to commence 31 May 2010. (ii) Possess prohibited drug - imprisonment for one month to commence 31 May 2010. (iii) Possess prohibited drug - imprisonment for one month to commence 31 May 2010. 6Since the three offences on the s166 Certificate were ordered to be served concurrently with the sentence of supply, the total effect of her Honour's sentences was imprisonment with a non-parole period of 11 months and a parole period of 9 months. 7The applicant seeks leave to appeal from the sentence for the supply offence on the following grounds: (i) The sentence was manifestly excessive. (ii) Her Honour erred in the way she dealt with the presentence custody. (iii) Her Honour erred in the way she dealt with special circumstances. Factual background 8The following facts were agreed between the applicant and the respondent: "At about 2pm on Friday 12 June 2009 police attended a unit in Wentworth Road, Burwood and executed a search warrant. The unit was a Housing Commission unit occupied by the applicant and his mother. Upon entering the unit, the police observed six males and one female inside the premises. There was a strong smell of cannabis within the unit. Located close by the males was a packed cone in a water pipe and a mullamatic used to chop cannabis. Police commenced searching the unit and located numerous resealable plastic bags in the lounge-room and one in the bedroom occupied by the applicant. The bags contained green vegetable matter. Prior to searching the applicant's room police told him that the police search dog had indicated his room and asked him if there was anything in there that he wished to declare. He said "There's probably some weed in there". In relation to other cannabis found at the premises, the applicant said "It's mine, I smoke it, it's marijuana". The cannabis found in the applicant's unit came to a total weight of 161.1 grams. Police continued to search and located a clear resealable bag containing 38 blue tablets contained in a plastic resealable bag inside a black bum bag that was sitting on a coffee table in the lounge-room. The applicant was cautioned and questioned in relation to the 38 blue tablets to which he replied "They're mine, I have a problem taking tablets as well. I think they're Ecstasy, I think so, I don't know". When asked where he got them he said, "Guys at Burwood Park". He told police he had paid a couple of hundred for them. On later analysis the tablets were found to contain a mixture of 1-benzylpiperazine (19 percent by weight) and 1 -(3 - trifluoromethylphenyl) - piperazine (10 percent by weight). Both are prohibited drugs with a similar effect to, and from time to time sold as Ecstasy. The total weight of the 38 pills was found to be 12.72 grams. Police continued to search the premises and located 1.85 grams of cannabis resin wrapped in foil on the side table in the lounge-room. Police also found numerous, empty, small, resealable plastic bags in various locations in the unit. Police conveyed the applicant to Burwood Police Station as the search warrant continued. The applicant took part in an electronically recorded interview to which he agreed. He told the police that he was at the time unemployed and receiving Newstart allowance and received about $420 per fortnight. He agreed that police had located the 38 pills in his unit, along with a bong for smoking marijuana. He declined to answer any further questions." 9The applicant was arrested and taken into custody on 18 June 2009 and was refused bail. Bail was granted to him on 21 October 2009 after he had been in custody for 4 months and 10 days. Remarks on sentence 10The applicant gave sworn evidence in the sentencing proceedings. He said that it was his intention to occasionally give these tablets to friends, but otherwise the bulk of the tablets were intended for himself. He said that he never sold any of the pills or any other drug. 11Her Honour had before her a presentence report. Her Honour concluded that this report was not a favourable one from the applicant's point of view. 12In relation to the applicant's evidence, by reference to a number of inconsistencies in it, her Honour concluded that he was a "witness who could not be believed". Despite his exculpatory statements, her Honour found that the applicant had the tablets in his possession for the purpose of supply. 13Her Honour took into account that the quantity of drugs considerably exceeded the amount necessary for an indictable offence. Her Honour also had regard to the comments of this Court as to the seriousness of drug supply offences. She found that on the facts of this case, the principles of general and specific deterrence applied. 14In relation to the applicant's subjective case, her Honour had regard to the fact that he was 28 and that he did provide some assistance for his mother. Otherwise she found that he had no real prior work history and had done little to obtain a job while he was at liberty on bail. Despite the applicant's lengthy history of illegal drug use, he had no prior criminal record and her Honour was prepared to treat him as a person of good character. 15Because of his lack of insight, her Honour found that his prospects for rehabilitation were guarded. She was, however, prepared to infer from his plea of guilty that he had shown remorse. In relation to the plea of guilty, she found that this was a late plea and that its utilitarian value entitled the applicant to a discount of 10 percent. 16Her Honour was prepared to find special circumstances in the applicant's favour since this was his first time in custody and there was a need for rehabilitation. 17Her Honour summed up her approach to the applicant and the offence as follows: "In my view given the maximum penalty prescribed for this offence being imprisonment for 15 years, the requirement for general deterrence in this case, the seriousness of persons having drugs in their possession for the purpose of supply into the community, the effect that drug use and drug addiction has on the community, the devastation it creates to those who engage in the activity and the negative effect it has upon families and friends means in my view that nothing other than a custodial sentence is appropriate in this case." (ROS 7.5) 18In relation to the commencement date of the sentence, her Honour said: "Accordingly, taking into account the 4 months and 10 days in custody I impose the following sentences. Firstly, the sentence I would have imposed prior to reduction for utilitarian considerations is one of 2 years and 3 months. That reduced by 10 percent is 2 years and 9 days rounded to 2 years. It will then be reduced by 4 months to take into account the presentence custody. Further, the sentence will commence 10 days prior to today to take into account that portion of the presentence custody." (ROS 8.3) The appeal Ground 1 - The sentence was manifestly excessive. 19The applicant primarily relied upon statistics to make out this ground of appeal. By reference to 510 cases involving the supply of an indictable amount of Ecstasy, he submitted that in only 25 percent had a sentence of fulltime imprisonment been imposed. He noted that only 49 percent of offenders had received a longer sentence and that only 42 percent had received a longer non-parole period. The applicant made specific reference to two cases R v Bradley [2004] NSWCCA 88 and R v Payne [2005] NSWCCA 85. He submitted that the criminality in those cases, by reference to the amount of drugs and the behaviour of the offenders, had been considerably more serious than on his part but that they had received roughly the same sentence. 20The applicant also referred to the amount of the drug which he had in his possession, which was towards the lower end of the indictable range, the low purity of the drug and his lack of a previous criminal record, as justifying a conclusion that her Honour's sentence was manifestly excessive. 21I do not agree. Even on the statistics put forward by the applicant, it is obvious that this sentence was well within the range of sentences for offences of this kind. 22In relation to the applicant's reliance on statistics generally, this Court has said on a number of occasions that sentencing statistics are of only limited value. The wide range of culpability and of factors relevant to sentencing are not taken account of in a simple statement of offence and sentence. The large number of variables which go into the passing of a sentence are simply not reflected in statistical figures and percentages. 23What is important when considering a particular sentence are the specific findings as to the objective seriousness of the offence and the culpability of the offender. These are the considerations which are determinative when assessing whether a particular sentence is manifestly excessive, rather than a comparison of the sentence with statistics ( Holloway v R [2011] NSWCCA 23 at [85]). A critical question is whether the sentence imposed was appropriate for the particular case ( R v F (2002) 132 A Crim R 308, adopted in Ayoub, Omran v R; El Masri, Ali v R [2010] NSWCCA 196 at [58]). 24In formulating the sentence her Honour took into account those matters, i.e. the seriousness of the offence and the culpability of the offender. She has not been shown to have been in error by reference to sentencing statistics. 25The reference to the two decisions of Bradley and Payne does not assist the applicant. As was said by this Court in R v George [2004] NSWCCA 247 at [48]: "48 ... It is necessary to restate that the practice, which appears to have developed in recent times, of approaching sentence appeals by a search for, and comparison with, sentences passed in other cases, is neither helpful nor justified by authority: see Regina v Morgan (1993) 70 A Crim R 368; Regina v Salameh NSWCCA 9 June 1994 and Regina v Trevenna [2004] NSWCCA 43 per Barr J at 98 - 101. At the most, other cases can do no more than become part of a range for sentencing ...". 26Moreover, the two cases are not truly comparable. In Bradley as well as the supply offence, there were four separate drug offences contained on a Form 1. The applicant had a very strong subjective case. She was found to be a street level dealer, aged 22 with a "sad" history and to be a person "full of potential". She had pleaded guilty at an early point in time, received a 25 percent discount, had fully co-operated with the police and was found to have genuine contrition with a real desire to reform. These matters are in stark contrast to the applicant's case. 27Payne was a Crown appeal. In accordance with the sentencing principles then in effect, the re-sentencing by this Court took into account double jeopardy and was towards the bottom of the range for offences of that kind. In that case also the offender had a much stronger subjective case than this applicant, i.e. he was found to be "an intelligent and hard working self-employed businessman". By comparison, the applicant in this case was part of a web of drug users each involved in supporting the others and jointly purchasing drugs for their consumption. 28This ground of appeal has not been made out. Ground of Appeal 2 - Her Honour erred in the way that she dealt with the pre-sentence custody. 29The applicant submitted that her Honour did not explain why the commencement date of the sentence was not backdated so as to allow him a full credit for the 4 months and 10 days which he had spent in custody before obtaining bail. The applicant submitted that this lack of any adequate explanation or reasoning was particularly troubling because her Honour had treated his pre-sentence custody in two quite different ways, i.e. reducing the head sentence by 4 months and then backdating the commencement date of the sentence by 10 days. 30I have concluded that there is substance in the applicant's submission. I appreciate that it was not mandatory for her Honour to treat the applicant's pre-sentence custody in any particular way, and that she was not prohibited from taking the approach which she did. Nevertheless, the treatment of pre-sentence custody in two different ways was quite novel and in the particular circumstances of this case, the applicant was entitled to an explanation. 31Section 47 of the Crimes (Sentencing Procedure) Act 1999 relevantly provides: "47(2) A court may direct that a sentence of imprisonment: (a) is taken to have commenced on a day occurring before the day on which the sentence is imposed, ... (3) In deciding whether or not to make a direction under subsection (2) (a) with respect to a sentence of imprisonment, and in deciding the day on which the sentence is taken to have commenced, the court must take into account any time for which the offender has been held in custody in relation to the offence or, in the case of an aggregate sentence of imprisonment, any of the offences to which the sentence relates." 32These sections have given rise to an important rule of practice to the effect that generally a court should backdate a sentence to take into account pre-sentence custody: R v McHugh (1985) 1 NSWLR 588; R v Deeble (NSWCCA, 19 September 1991, unreported); R v English [2000] NSWCCA 245. 33The benefits of that rule of practice were explained by Howie J in R v Newman; R v Simpson [2004] NSWCCA 102 at [29] where his Honour said: "29 The practice of backdating the sentence also makes it obvious to the offender that he, or she, has received a reduction in the sentence for the period already spent in custody. It ensures that there can be no argument, such as is now presently before this Court, as to whether the discount was in fact given even though the sentencing judge said that the time served in custody was taken into account in the sentence imposed. The importance of this aspect of sentencing was recognised in R v Phillips and Simpson and in R v Galati [2003] NSWCCA 148. In Galati James J, with whom Smart AJ agreed, said: "[36]...................It is true that, while a sentencing judge is required to take a period of pre-sentence custody into account, it is not obligatory for the sentencing judge to take the period of pre-sentence custody into account by the means of backdating the commencement of the sentence and that in Howard the Chief Judge at Common Law left open the option of reducing a sentence to be imposed so as to take into account a period of pre-sentence custody. However, in the present case, I consider that, notwithstanding the sentencing judge's assertion in his remarks on sentence that he had taken into account the first period of presentence custody, the first period of presentence custody is not demonstrably reflected in the sentences which were imposed. The first two sentences, on which the other two sentences depend, were made to commence from 18 January 2002, a commencement date which would allow only for the second period of pre-sentence custody. The sentences which were imposed were for round periods of whole years, which tends to militate against any conclusion that an irregular period of one month and twenty six days was really taken into account." 30 The practice also avoids questions of disparity erroneously arising because a sentence, with which comparison is being made, has been markedly reduced by pre-sentence custody. Such a sentence, particularly where there are few comparable sentences for similar offences, can also skew the statistical information derived from sentences imposed by other courts and give a false indication of the range of sentences that have been imposed for a similar offence or on a similar offender. ... 33 The present case is a good example of why the practice laid down in McHugh should continue to be applied and, in my opinion, the fact that a sentence would have to be backdated to a period when the offender was not in custody in order to comply with the practice is not a good reason for failing to follow it. In the present case, his Honour clearly reduced the head sentence by reason of the period served but there is a valid question arising as to whether the non-parole period was also reduced." 34More recently in Wiggins v R [2010] NSWCCA 30 this Court held that backdating the commencement date of a sentence was the normal course to be adopted unless the sentencing judge indicates why that course was not appropriate in the circumstances. 35There Howie J, with whom McClellan CJ at CL and Harrison J agreed, said: "3 This Court has repeatedly stated that the preferable course to adopt, where an offender has served a period of pre-sentence custody, is to backdate the sentence imposed by a period equivalent to the pre-sentence custody. In R v English [2000] NSWCCA 245, Giles JA stated: "[22] This Court has on a number of occasions said that it is desirable that a sentencing judge back-date a sentence to take into account pre-sentence custody. It is not necessary to go further back than R v McHugh (1985) 1 NSWLR 588 and what may be regarded as the definitive decision in R v Deeble (19 September 1991, unreported), in which the reasons for the practice are outlined: they need not be repeated here. Subsequent cases included R v Reid (26 March 1997, unreported) and R v Foster (30 October 1996, unreported). The desirability is put not as something which is mandatory, but as a rule of practice of importance, and in my view the importance should be emphasised once again. If a sentence is not back-dated to take into account pre-sentence custody the reason or reasons for not doing so should be clearly stated." ... 7 Despite the repeated endorsement of this Court for the preferable course of backdating a sentence to reflect the period of pre-sentence custody, this is yet another case where the sentencing judge has not taken that course and yet given no reasons for not having done so. The result is an application for leave to appeal that could have been avoided by the simple expedient of commencing the sentences imposed upon the applicant six months earlier than the date of sentencing. 8 I cannot understand why the preferred course is not universally adopted. It has everything in its favour as was made clear in the decision in McHugh almost 25 years ago: it is simple, transparent and does not result in an apparently lesser sentence being imposed than was actually served by the offender. There is nothing that can be said in support of the alternative method. In my view it should cease unless there is a good reason, which the judge clearly specifies, for not adopting that approach. ..." 36In this case her Honour did not offer any explanation for why she adopted such a novel approach to the pre-sentence custody of the applicant. Counsel for the Crown in the course of this hearing was unable to offer any explanation. In those circumstances, and given the very clear guidance forcefully expressed by this Court on a number of occasions, I am of the opinion that her Honour did err in the way in which she treated the applicant's pre-sentence custody and that this ground of appeal has been made out. Ground of Appeal 3 - Her Honour erred in the way that she dealt with special circumstances. 37The applicant submitted that although her Honour made a finding of special circumstances, she failed to expose how she gave effect to it. 38It would have been helpful if her Honour had made clear how she gave effect to her finding of special circumstances. That having been said, the ratio of the non-parole period to the total sentence is 55 percent. That of itself is the clearest indication of how her Honour used her finding of special circumstances. That is particularly so when one has regard to the provisions of s44 of the Crimes (Sentencing Procedure) Act 1999 which prescribes that the balance of term of a sentence must not exceed 25 percent of the whole sentence unless the Court decides that there are special circumstances. In this case that ratio which favours the applicant is much higher. It follows that there is no basis for the applicant's complaint and that this ground of appeal has not been made out. Conclusion 39Although her Honour erred in relation to how she treated the applicant's pre-sentence custody, this does not end the matter. The Court has to decide whether the commencement date for the sentence should be so backdated, i.e. the Court has to decide whether in accordance with s6(3) of the Criminal Appeal Act 1912 any lesser sentence than that which was passed is warranted. I have concluded that a lesser sentence is not warranted and that the sentence passed by her Honour was appropriate. 40Having regard to the nature of the offence, i.e. the supply of drugs, the seriousness with which the community regards the offence and the damage which it causes, together with the requirements for personal and general deterrence, any further reduction in the non-parole period would bring about a sentence which was manifestly inadequate. This is particularly so when one has regard to the applicant's guarded prospects of rehabilitation and the modest nature of his subjective case. 41The orders which I propose are that leave to appeal be granted but that the appeal be dismissed.