Esquilant v Regina

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985 - s 25A

De Simoni v The Queen (1981) 147 CLR 383 R v Smiraldo (2000) 112 A Crim R 47 CASES CITED: R v Smith [2002] NSWCCA 278 R v Hoon and Puna [2000] NSWCCA 137

D. Arnott SC - Crown COUNSEL: C. Davenport SC - Applicant

S. Kavanagh - Crown SOLICITORS: Ford Criminal Lawyers - Applicant

IN THE COURT OF CRIMINAL APPEAL 2005/2034

GROVE J SULLY J HOWIE J

FRIDAY 2 DECEMBER 2005 Mischa ESQUILANT v REGINA Judgment 1 HOWIE J: The applicant pleaded guilty in the Local Court to a charge of ongoing supply of cocaine contrary to s 25A of the Drug Misuse and Trafficking Act. This is an offence for which relevantly a maximum penalty of 20 years imprisonment is prescribed. The applicant was committed for sentence to the District Court and adhered to his plea of guilty before Judge Williams (the Judge). He was sentenced to a term of imprisonment comprising a non-parole period of 12 months and a balance of term of 15 months. He is to be released to parole on 11 July 2006. The applicant seeks leave to appeal against that sentence. 2 There was no dispute as to the facts of the three acts of supply of cocaine that gave rise to the offence charged. On 14 January 2004, 27 January 2004 and 4 February 2004, the applicant supplied about a gram of cocaine on each date to an undercover police operative for the sum of $250. He was arrested immediately after the third supply. However, there was a significant dispute between the Crown and the applicant as to the circumstances in which those supplies occurred and, in particular, as to the extent of the applicant's involvement in the supply of drugs in the community generally. The sentencing hearing took place over almost two days in the course of which the undercover police officer and the applicant gave evidence. 3 The applicant is aged 27 years. He has no prior criminal record. He is a student studying political science as part of a degree in Arts. At the time of his arrest he lived with his girlfriend in an apartment in Bondi that was owned by her father. The Judge accepted that the applicant was a heavy user of cocaine and cannabis. 4 There was in evidence a report of Dr Whitten, a psychiatrist who had been treating the applicant as a result of his use of drugs. The applicant told him that he first started using cocaine at the age 23 and cannabis from the age of 21. He said that he had been supplying drugs to friends for three years before his arrest and saw it as a way of occupying his free time and as a way to socialise with others. 5 The applicant had a disturbed childhood because his father was an international banker and the family were constantly travelling. He told Dr Whitten that he attended 16 different schools in 12 years. His parents' marriage was marked by his father's absence and domestic violence. When the applicant was aged 10 his father disappeared and the applicant was left as the carer for his mother who was psychologically unstable. His father died when the applicant was aged 16. His mother resides in Austria and the applicant has a brother in Canada. The applicant returned to Australia at the age of 20 and commenced his studies. However, because of financial problems experienced by his family, he ceased studying after 18 months. The applicant then had a series of jobs until returning to his studies in 2003. 6 Dr Whitten diagnosed the applicant as suffering from depression and a panic disorder and he was placed on a course of anti-depressant medication. He believed that the applicant's prognosis was good, if he did not receive a custodial sentence, as the applicant intended to complete his studies and continue with his treatment. Dr Whitten was of the opinion that the applicant "bought" friends by supplying drugs because of his lack of self-esteem. He did not believe that the applicant supplied for profit but rather that the friends reimbursed the applicant for the cocaine supplied and that he did not supply outside his circle of friends, 7 There is only one ground of appeal and it relates to the use of a finding that the Judge made about the applicant's supply of cocaine to his friends and associates. It is not contended that it was not open for the Judge to make that finding, and indeed the applicant admitted as much during the course of his evidence and to Dr Whitten. Rather it is submitted that the Judge erred in taking into account that finding as an aggravating feature of the offence. 8 A number of issues in dispute between the Crown and the applicant were resolved in the applicant's favour. For example, the Judge was not prepared to find that a large sum of cash in denominations of $100 and $50 notes found by police in the applicant's premises was the proceeds of drug supplies generally. Nor was the Judge prepared to find that the applicant used scales and a calculator found in the premises for the purpose of supplying drugs. However, the Judge was not prepared to accept that a filofax found in the premises and that contained a list of names and sums of money written against each name was a record of amounts of money that the applicant had loaned to various people. Nor was he prepared to find that the undercover officer had pressured the applicant into supplying drugs to her. 9 The Judge made the following finding during the course of his sentencing remarks:

When I have regard to the conversations with the undercover officer, the filofax document and the denominations of the money found in the apartment, I am satisfied that [the applicant] was in the business albeit at the bottom end of the scale of supplying cocaine in that he was available to supply cocaine to persons who became involved in his personal milieu.

The Judge also found that the applicant believed that the undercover officer was part of the group of people with whom he associated. 10 The Crown asserted to the Judge that the applicant was a supplier of drugs generally by relying upon the scales found in the apartment and other objects that the Crown said were the indicia of a drug supplier. But, as I have already indicated, the Judge was not prepared to make that finding other than that he supplied to a circle of friends. Although the Crown was relying upon its assertion of the fact that the applicant was a drug supplier as a matter of aggravation, the Judge did not make that finding. 11 It was submitted on behalf of the applicant that the Judge erroneously relied upon the fact that the applicant supplied to his friends in order to increase the sentence beyond the criminality contained in the charge before the court and so breached the principle in De Simoni v The Queen (1981) 147 CLR 383. 12 In R v Smiraldo (2000) 112 A Crim R 47 this Court considered the relevant principles to be applied when sentencing for an offence under s 25A. Hulme J after indicating that the amount supplied was a relevant consideration, wrote:

15 On the other hand, it would be wrong to look merely at the quantity supplied on the occasions which led to a conviction and attempt to judge an offender's conduct by that quantity and those provisions of the Act which impose penalties for supply and grade those penalties by reference to quantity. The persons at whom s25A is directed are those who appear to be indulging in a practice or business of supplying prohibited drugs. It must, it seems to me, be relevant to consider the magnitude of such an operation. As great a quantity of a prohibited drug may be supplied by a series of small transactions as by a few large ones and one may anticipate that most offenders charged under s25A will have been involved in the supply of far more than the particular quantities the subject of the occasions which have inspired the charge.

16 But there are likely to be constraints on how far it is permissible to go in any assessment of any overall quantity supplied in an offender's operation. Any conclusion that he or she had supplied a specified quantity, or at least that quantity, on occasions other than those relied on in the particular charge would run against the principle for which R v De Simone [sic] (1980-1981) 147 CLR 383 is commonly cited that, in sentencing, it is not appropriate to take into account as factors of aggravation, circumstances which would themselves constitute another offence which has not been charged.

17 However, subject to that qualification, the sentencing judge was entitled to take other matters into account if they bore on the Applicant's criminality and which were proved in accordance with the standards referred to in R v Olbrich (1999) 73 ALJR 1550. 13 In that case the judge sentenced the applicant on the basis that the supplies had been made in the course of a significant retail business for profit that was open 7 days a week. There was no suggestion that the judge was wrong to sentence the applicant on that basis notwithstanding that the finding indicated other supplies by the offender than those charged against him. 14 In R v Smith [2002] NSWCCA 278 it was held that evidence of the finding of drugs and drug dealing accoutrements in the applicant's home was "relevant for the assessment of whether or not the present offences represented discrete episodes which were out of character for the applicant……". In relation to an argument that the sentencing judge wrongly took into account matters giving rise to further offences, Wood CJ said:

12. The decision of this Court in R v Smiroldo [2000] NSWCCA 120 at paras 15 to 17 does not, in my view, support the submission advanced on behalf of the applicant. It was there made clear that a sentencing judge can have regard to those matters which throw light upon the practice or business of the offender standing for sentence, so long as that is not done in a way which would involve taking into account, as matters of aggravation, circumstances which would themselves constitute another more serious offence which has not been charged. 15 His Honour also said:

15. It is not the case that a sentencing judge must confine the consideration of the objective criminality of an offender to the bare minimum of the available facts. Subject to its proper use, a sentencing judge is entitled to have regard to all of the relevant evidence which throws light upon that issue. 16 In the present case the Judge, after referring to the judgment of Dunford J in R v Hoon and Puna [2000] NSWCCA 137, held:

Unfortunately [the applicant] could not be regarded as a retail courier as apparently were the respondents in the above case. He is something more than that………

There is no suggestion that the Judge was wrong in forming that evaluation of the applicant's role as a drug supplier. 17 It my opinion there is no merit in this ground of appeal. It is plain from a fair reading of the sentencing remarks that the Judge was simply determining the context in which the supplies to the undercover officer occurred. The Judge was clearly entitled, if not required, to consider whether the charged incidents were isolated acts of supply or whether they were part of a course of conduct in which the applicant was engaged and the nature of that conduct. He was simply making an assessment of the objective criminality of the offence before him. Although the Crown was submitting that the circumstances surrounding the supply amounted to an aggravating factor, the Judge rejected most of the Crown's arguments. There is nothing in the remarks on sentence nor in the sentence imposed to support the submission the Judge used his finding as to the applicant's previous supplies in any way as a matter of aggravation such that he infringed the principle in De Simoni. 18 I propose that the application for leave be granted but the appeal be dismissed. 19 GROVE J: I agree. 20 SULLY J: I also agree. 21 GROVE J: The orders of the court are therefore the orders proposed by Howie J.

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