Fato v R

Background

1. Since the ground of appeal concerns a confined issue in relation to two counts only, it is sufficient to record briefly the facts concerning those two offences.
2. The applicant was identified as a major person of interest as a result of police investigations (Strike Force Oceanic) into the large commercial supply of prohibited drugs. The applicant lived at Apple Tree Farm, East Lynne with his 2 daughters, a fiancé of one of his daughters, and an employee, Vyse, who lived in a separate dwelling on the property.
3. Two police undercover operatives were introduced to the applicant on 25 July 2013. During this meeting the applicant agreed to supply between 20-30lbs of cannabis and an ongoing supply of cannabis. At the end of the meeting the applicant supplied his home phone number on a napkin to the operative.
4. In the ensuing eight months a number of meetings and dealings occurred between the operatives, the applicant and the co-offenders Pickett and Vyse.
5. During the course of the investigation police utilized a variety of forms of electronic and physical surveillance.

Count 2: Supply Methamphetamine - large commercial quantity (1.36kg)

1. On 25 September 2013 an undercover operatives drove to Apple Tree Farm, East Lynne. There, the applicant met with the operative and also introduced the co-offender Hank Pickett to the operative.
2. The operative paid $84,000 to the applicant. The applicant placed this amount of cash in a large container of dog food in the kitchen pantry. Pickett then escorted the operatives in their vehicle to Dam Road, East Lynne until they were instructed to stop. Pickett alighted the vehicle, was observed to walk 20 metres into the bush, and he returned with a large garbage bag. Pickett opened the bag and showed the operatives a plastic container with 3 cryovac bags of white solid substance. The garbage bag was then placed in the boot of the vehicle and the operatives left the location in their vehicle.
3. Pickett remained at Dam Road and was observed to be picked up by the applicant and driven back to Apple Tree Farm.
4. The substance was later analysed and found to be of 10% purity.

Count 3: Supply Methamphetamine - large commercial quantity - 9.47kg

1. On 22 January 2014 the applicant and Pickett met with undercover operatives. During that meeting the applicant and Pickett agreed to sell 25lbs of amphetamine at $23,000 per pound amounting to $575,000. A code was agreed upon between the parties when speaking on the telephone.
2. On 11 February 2014 the applicant and another co-offender, John Finlayson, met with undercover operatives. This meeting was unable to produce an exchange because Pickett was running late to the meeting location and was not able to supply the 25lbs. The operatives, the applicant, Finlayson and Pickett agreed to meet the next day at the same location.
3. On 12 February 2014 undercover operatives met with the applicant, Pickett and Finlayson at "The dog on the tucker box" at Gundagai. The applicant spoke of the supply of 21lbs before walking away for a short period of time. Pickett also spoke to the operatives about the supply of amphetamine. The operatives were taken to the boot of Pickett's vehicle and shown two boxes and a cooler bag which contained a prohibited drug. The operatives returned to their vehicle with Pickett where they calculated the purchase price of the amphetamine at $483,000.
4. All three were then arrested and taken back to the Wagga Wagga Police Station. The amphetamine was analysed and was found to have a purity of 13.5% and weight of 9.47kg.

Extension of time

1. A Notice of Intention to Appeal dated 6 May 2016 was filed on 11 May 2016 and expired on 10 November 2016. On 5 May 2017 the applicant filed a Notice of Application for Extension of Time for Notice of Application for Leave to Appeal along with the single ground of appeal and submissions. Accordingly, the appeal is nearly six months out of time. The Crown opposes an extension of time.
2. The basis for an extension is said to be that the sentencing remarks were not received until 2 February 2017 and written submissions were not received from counsel until 1 May 2017.

Remarks on sentence

1. The sentencing judge found that the applicant was a principal in the operation, that he was responsible for the recruitment of all the participants and undertook the making of offers to acquire the various properties.
2. The sentencing judge found that the objective gravity of the applicant's conduct was above the mid-range for offences of their type. His Honour found that the fact the drugs would not have found their way into the community was of some significance when the charges involved such large quantities but he noted that it was no act of the applicant that resulted in the drugs not reaching their intended targets.
3. His Honour did not accept the applicant's counsel's submission that the low purity of the methamphetamine in count 3 entitled him to find that the offending fell below the mid-range. His Honour said that the Form 1 matters all involved very serious criminal conduct and highlighted the very significant role which the applicant played in the drug activities of the criminal group. His Honour found that the applicant had attempted to minimise his role.
4. His Honour found that any regret expressed for his offending behaviour arose from the fact that the applicant was caught, and not out of any real appreciation of his wrongdoing.
5. His Honour found special circumstances on the basis of the applicant's age and that he would be of a very advanced age when released from gaol and from the partial accumulation of the sentences.
6. His Honour found that the applicant had good prospects of rehabilitation and that he was unlikely to re-offend.

Submissions

1. The applicant drew attention to the submission made by his counsel before the sentencing judge that both counts 2 and 3 should be viewed as supplies below the mid-level range of seriousness due to the low level of purity (10% and 13%) at which the drugs in both counts were assessed. Counsel had made reference to this Court's decision in R v Blair [2005] NSWCCA 78; (2005) 152 A Crim R 462.
2. In his written submissions the applicant drew attention to the sentencing judge's rejection of his counsel's submission that the purity in count 3 would entitle the Court to find that the offending fell below the mid-range. However, in oral submissions Senior Counsel for the applicant submitted that the learned sentencing judge was in error in failing to adopt the reasoning in Blair and the submission of counsel at the sentencing hearing with the result that his Honour should have found that the offending fell below the mid-range. The applicant submitted that his Honour gave the issue of low purity no weight.
3. The applicant submitted that from a sentencing perspective it was appropriate that illegal drugs the subject of supply charges be differentiated according to their level of purity. The moral culpability accorded to dealing with a drug of high purity that can be sold for a greater amount and which is potentially of greater harm in its purer form is much higher than that of a drug of much lesser purity
4. The Crown did not disagree that Blair was authority for the proposition that the purity of drugs is one of the factors that needs to be considered when determining whether an offence falls within the mid-range of objective seriousness. The Crown said that the sentencing judge was well aware of the purity of the drug but he was entitled to reject the submission that the objective gravity was below the mid-range.
5. The Crown drew attention to a number of cases which indicated that the purity of drugs and their weight were not the only consideration on sentence and that while the seriousness of an offence was elevated where the purity of the drugs was high an offence is not necessarily mitigated where the purity is low.
6. The Crown submitted that along with the purity of the drug the quantity of the drugs was also an important factor. That was made clear by the increase in penalties as the amount of the drugs fell into higher categories of supply. The Crown submitted that the quantity of methamphetamine in count 2 was 1.4 kilograms, and in count 3 it was 9.5 kilograms where a large commercial quantity is 0.5 kilograms. In fact at the time of the offending (September 2013 and February 2014) the large commercial quantity for this drug was one kilogram. The large commercial quantity was reduced to 0.5 kilograms on 1 September 2015 by the Drug Misuse and Trafficking Amendment (Methylamphetamine) Regulation 2015 (NSW).
7. The Crown also said that a matter of higher importance in drug trafficking offences was the role played by the offender. The Crown submitted that the sentencing judge properly focused on the Applicant's role in the criminal group and in the supply of the drugs and submitted that the applicant's position in the hierarchy was a critical consideration.

Consideration

1. In Blair the Court was considering, following R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131, the question whether there were reasons for not imposing the standard non-parole period. Justice Grove (with whom James and Barr JJ agreed) said at [56]: … I would answer the question in the affirmative. In particular, a prominent reason for determining that the offence does not answer the description of one that falls into the mid range of seriousness for an offence of the relevant kind is that the role of the appellant was not that of a principal but the lesser, albeit culpable, role of a courier and storeman. In addition, the weight of prohibited drug was in the lower part of the range of defined commercial quantity and it was of extremely low purity.
2. It may be seen that the purity of the drug was only one of three relevant considerations in that case.
3. In Lorraway v R [2010] NSWCCA 46 McClellan CJ at CL (Howie and Harrison JJ agreeing) considered a ground of appeal that the sentencing judge had erred in finding that the low quantity and purity of a drug was not a matter that mitigated the seriousness of the offence. In that case the applicant had relevantly been convicted of supplying not less than the commercial quantity of methamphetamine being 259.2 grams with a purity of less than 1% methamphetamine. The drugs were supplied in tablet form.
4. Justice McClellan said: [31] At the sentencing hearing his Honour was invited to consider both the quantity and purity of the drug supplied by the applicant. It was submitted that the quantity being only modestly in excess of the minimum commercial quantity (250 grms) and more particularly of modest ie 1% purity should be considered to be mitigating factors. His Honour rejected this submission and concluded that the quantity and purity were neither aggravating nor mitigating features. It is this conclusion which is challenged in the appeal. [32] In R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 at [159] this Court (per Spigelman CJ, Wood CJ at CL, Simpson J) concluded that when defining where a supply offence came in the range of objective seriousness the amount of the drug was a relevant factor: see also R v Shi [2004] NSWCCA 135 at [34] and [37] (per Wood CJ at CL, Spigelman CJ and Simpson J agreeing); R v Blair [2005] NSWCCA 78 at [50] (per Grove J, James and Barr JJ agreeing). This Court has also indicated that when sentencing for an offence contrary to s 25(2) both the amount and the purity of the drug supplied may be relevant: R v Deng [2005] NSWCCA 430. A larger quantity of a drug with a higher concentration may, after all other matters have been considered, require a heavier penalty. However, it is inappropriate to speak in terms of aggravation or mitigation. It is also important to bear in mind that although a supplier will be aware of the quantity of the drug which he or she has supplied it will often be the case that they have little, or perhaps, any idea of its purity. [33] Central to the applicant's argument was a submission that by reason of the low concentration of amphetamine in the pills supplied the drugs had little or no potential for harm to the community. It was further submitted that they could not be used or cut or further disseminated. However, the latter argument is of no consequence. Because the drugs were supplied in pill form there was no suggestion that they were ever to be cut or in some manner transformed before their distribution. Whether consumed by the person to whom they were supplied or by someone else the intention was that they should be ingested in the form in which they were sold. [34] In the present case his Honour was correct to conclude that the fact that the amount of the drug was modestly in excess of the minimum required for the offence and its purity was minimal were not mitigating factors. They were matters which required consideration. However, I am satisfied that there is nothing to indicate that his Honour was not mindful of them when imposing the sentence. [35] I would reject ground 1 of the appeal.
5. Further, it has been made clear in a number of cases that weight and purity of drugs are not the only considerations in fixing a sentence for supply or importing drugs: Ninness v R [2014] NSWCCA 288 at [76]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [67]-[69]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [33].
6. His Honour made mention of the purity of each of the drugs in counts 2 and 3. His Honour noted the submission made on behalf of the applicant concerning the purity of the drug and how that should affect the assessment of objective seriousness. The ground of appeal asserts that his Honour erred in failing to take into account the low purity of the drug. If the ground in fact asserts that his Honour failed to consider the matter, that is, in House v The King terms, failed to take into account a relevant consideration, the ground is completely answered by his Honour's having recorded and rejected the submission that it should lead to a finding of below the mid-range objective seriousness.
7. Senior counsel for the applicant submitted that the ground was intended to say that the sentencing judge gave the matter no weight. However, what his Honour said does not support such a submission. Under the heading "Objective Seriousness" in the Remarks on Sentence his Honour dealt with each of the counts to which the applicant had pleaded guilty. In relation to both counts 2 and 3 his Honour dealt principally with the role the applicant played in each supply. Having determined that the applicant was personally involved in the supply as well as the co-offender Pickett his Honour said: I am unable to accept Mr Lloyd's submission that purity of the methyl amphetamine in count 3 being 13.5% would entitle the Court to find the offending falling below the mid-range.
8. That finding does not lead to the inference that his Honour gave the purity no weight, only that it did not lead to the offending falling below the mid-range. Blair is not authority for the proposition that if a drug is of low purity the offending will be below the mid-range. As the passage in Blair at [56] makes clear, the finding in that case was able to be made because not only was the drug of low purity but the appellant was a courier and not a principal, and the weight of the drug was in the lower part of the range of defined commercial quantity. The contrast with the factual findings in the present case is clear.
9. It is also important to note the submission made to the sentencing judge. In written submissions the applicant's counsel said: Further, the purity of the drugs involved was just 13.5%, entitling the Court to find the offending at below the mid level of objective seriousness (see Blair [2005] NSWCCA 78) (emphasis added) Similarly, in oral submissions Senior Counsel said: I don't know what submission was made to your Honour by counsel for Pickett and I don't know whether this discrete submission was made. I looked at those sentences and I'm obviously not being critical of your Honour, but they were at the higher end perhaps of an available sentence on a plea, particularly where the purity was 13%. I don't know whether the case of Blair was pointed out to your Honour, which shows that one can assess a supply as below the mid-level when the purity is as low that. In Blair, the levels of purity were about the same as that, about 13.5%. If that submission was made, I do apologise, your Honour. But in fairness to my client, I thought I should make it. (emphasis added)
10. The submissions were undoubtedly correct. The low purity could have entitled the judge to assess the objective seriousness below the mid-range. But his Honour was not bound to do so, as the submission at the hearing of the appeal asserted.
11. Where Blair and the other authorities show that the purity of the drug is only one matter to be considered, it cannot be said to be an error for the sentencing judge not to find that the low purity resulted in the offence being assessed below the mid-range. Other factors needed to be, and were, considered. The weight of the drugs, particularly for count 3, was considerably above the then threshold for a large commercial quantity of methamphetamine (one kilogram, since reduced to 0.5 kilograms on 1 September 2015 as noted earlier). Even for count 2 the weight was well over the prescribed quantity. There is no indication nor was there any contention that the sentencing judge misunderstood the relevant threshold.
12. The sentencing judge also had regard to the estimated street value of the drugs. The sentencing judge quite properly discussed at some length the role of the applicant in the criminal organisation and how that role compared with the co-offender Pickett who had previously been sentenced by the same judge.
13. In my opinion, the ground is not made out.
14. Even if I were of the opinion that error had been shown I would have considered that no lesser sentence should be imposed not only because of the matters I have identified at [47] above but also by reason of the other findings made by the sentencing judge. In addition there were three offences on two Form 1 documents attached to counts 2 and 3, all of which were drug and drug-related offences. That which was attached to count 2 involved a significant amount of another drug. Finally, there was no evidence that the applicant had any idea of the purity of the drug: Lorraway at [32].

Conclusion

1. The applicant sought an extension of time to make the present application.
2. A Notice of Intention to Appeal was filed on 6 May 2016. On that day a transcript of the Sentencing Remarks was requested but those Sentencing Remarks were not received until 2 February 2017. Written submissions were not received from counsel until 1 May 2017. The present application was filed on 1 May 2017. No explanation is provided for why an extension was not sought earlier.
3. The High Court made clear in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 and O'Grady v The Queen (2014) 252 CLR 621; [2014] HCA 38 that the touchstone for an extension of time for an appeal is the interests of justice and, in Kentwell at [33], that relevant to the determination of the interests of justice is the prospects of success should the extension be granted.
4. It may be accepted in the present case that the delay is not considerable and is largely but not completely explained. Nevertheless, the ground of appeal raised has little merit. It relies on a mis-reading of Blair and a conclusion (that the judge was in error in not finding the offence below the mid-range) that is unjustifiable because it would result in other relevant considerations being put to one side, contrary to what has been said in many cases. In those circumstances, it is not in the interests of justice for an extension of time to be granted: see Lowe v R [2013] NSWCCA 141 at [89] - [99].
5. I propose the following order: 1. Extension of time to seek leave to appeal against sentence is refused.
6. LONERGAN J: I agree with Davies J.

Amendments 25 October 2017 - Paragraph 6. In relation to count 5 the non-parole period is corrected from four years to five years. 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: 25 October 2017