12 February 2007
Jonathon Wayne FAYD'HERBE v REGINA
Judgment
1 ADAMS J: The applicant, Jonathon Wayne Fayd'Herbe, was sentenced on 18 July 2006 to the offence of an ongoing supply of ecstasy between 7 May and 7 June 2005 contrary to s25A of the Drug Misuse and Trafficking Act 1985. The offence carries a maximum penalty of imprisonment of 20 years and or a substantial fine. The court took into account five further offences on a Form 1 schedule: two of these offences involved actual supply of small quantities of ecstasy contrary to s25(1) of the Act; one was a deemed supply of an indictable quantity (maximum imprisonment 15 years on indictable disposal); one was possession of ecstasy contrary to s10(1) (maximum imprisonment 2 years); and the fifth concerned goods in custody ($180) suspected of having been unlawfully obtained contrary to s527C of the Crimes Act 1900 (maximum imprisonment 6 months). The applicant was sentenced to an overall term of two years and six months with a non-parole period of twelve months commencing 18 July 2006 and expiring on 17 July 2007.
2 The quantities of drugs and amounts involved were small. On four occasions the applicant supplied ecstasy tablets to undercover police officers. The first two occasions each involved the sale of one tablet for $30, the third sale involved two tablets for $50 and the fourth sale involved four tablets for $120. In all, the applicant sold eight tablets weighing 2.46 grams in return for $230, each tablet being approximately 23% pure ecstasy. The fifth transaction occurred some two months after the fourth and involved two ecstasy tablets being sold for $70. These were of a somewhat higher purity. This offence was the first on the Form 1 schedule. About a week later, the applicant sold three ecstasy tablets for $90, an offence giving rise to the second charge on the form 1 schedule. He was arrested soon after this transaction and voluntarily surrendered seven pink ecstasy tablets that had been secreted. His possession of these tablets gave rise to the third offence on the Form 1 schedule. A further three tablets were later found in his possession and it was accepted that these were for the applicant's own use. This is the fourth offence on the Form 1 schedule. $90 of the $180 found in his possession was the money paid to him by the undercover police officer.
3 The offences occurred during a controlled operation at and near a hotel in North Sydney.
4 As the learned sentencing judge found, the objective seriousness of these offences was well towards the bottom of the range of seriousness for offences under s25A of the Act. His Honour found that they were undertaken to fund the applicant's own addiction.
5 The applicant did not plead guilty at committal but did so when first arraigned. At the sentence proceedings his counsel submitted to his Honour that the Crown conceded, or would concede, that this was a plea of guilty at the earliest reasonable opportunity. As it happened, the Crown prosecutor did not advert to this matter but it is clear from the approach taken by her that she chose only to deal with those matters which were in dispute. It seems to me, therefore, that the Crown prosecutor's position was indeed as conveyed to his Honour by counsel for the defence. In this respect the learned trial judge said that his early plea entitled him to considerable leniency but not to the same extent as would have been available had he entered the plea of guilty at the committal stage in the Local Court. His Honour said that, because of the complexity of the matter, he would not specify the discount he allowed.
6 With respect, I cannot see how the complexity of this matter made it difficult to specify the discount: there was only one charge on the indictment although there were five on the Form 1. It was necessary only to pass one sentence. As this Court made clear in R v Thomson & Houlton (2000) 49 NSWLR 383, and on numerous subsequent occasions, part of the purpose of specifying the utilitarian discount is to encourage early pleas by giving transparency and predictability to the advantage offenders can expect to obtain if they do so. This purpose would be frustrated if the discount is not disclosed in the overwhelming majority cases (of which, it seems to me, the present is one) where it can be specified. It also makes the task of this Court more difficult when dealing with appeals where the discount is a significant feature of the sentence.
7 However, I would not conclude the failure in this case to specify a discount amounted to error since it should be accepted that his Honour did indeed give a significant discount, I would infer in the order of 20%. For myself, in light of the way in which the matter was put to his Honour, I cannot see why the applicant should not have received the top of the indicative range. However, I do not think that not to have given 25% amounts to an error requiring the interference of this Court.
8 The applicant's subjective features were dealt with in detail by his Honour and were undoubtedly significant and overall favourable. The following is a summary of his Honour's remarks in this respect. At the time of the offences the applicant was twenty-six years of age, twenty-eight years of age at the time of sentence. His parents separated because of domestic violence issues when he was very young and the applicant had no contact with his father since that time. The applicant's mother remarried when the applicant was six and she and the applicant's stepfather have two children who are the applicant's stepbrothers. The applicant regards his stepfather as his father and his stepbrothers as his brothers. The applicant's relationship with his mother appears to have been somewhat strained and the fact that he did not know his father had an adverse effect upon the applicant's emotional wellbeing. In the two years before the offences were committed, the applicant broke up with his girlfriend of some seven years and both maternal grandparents and his step grandfather died. The applicant had emotional difficulties since he was young which required him to see a psychologist over an eighteen month period from the age of eight. During this time he was diagnosed with dyslexia. He started drinking alcohol as a teenager and was binge drinking regularly by the time he was eighteen years old. He also started abusing ecstasy and amphetamine, gradually increasing his consumption of these drugs. The learned trial judge accepted that he abused drugs and alcohol in an attempt to deal with or cope with his emotional problems. Since his arrest, the applicant completed successfully the MERIT rehabilitation programme and has not consumed drugs or alcohol. The applicant was expelled from school during year 12 because of his destructive behaviour to which his dyslexia and problems with his mother appear to have contributed. However, after school he completed a certificate in hairdressing and has worked fulltime as a hairdresser. His current employer has high regard for him and, though aware of the offence, has supported the applicant since his arrest. The applicant has no prior convictions of any sort and was accepted by his Honour as a person of prior good character. The conditions of his bail severely restricted the applicant's freedom. This was a matter taken into account by his Honour. Commenting on the objective circumstances, the learned judge observed -
"The offence by its very nature involves pre-meditation. The use of a mobile phone and the fact that all transactions witnessed by the police occurred in or very close to the hotel indicates that the sales were not just spontaneous acts. There is no evidence that he was part of a large drug trafficking network. In the Court's view he was conducting his own small-scale drug trafficking business, selling small quantities to users. His criminality is towards the lower end of the range of offences…the need to fund his own habit explains but does not excuse his crime."
9 The learned sentencing judge concluded that the applicant had taken significant steps towards rehabilitation and his expressions of remorse were genuine. His Honour considered there was a "compelling case" of contrition. His Honour thought that the applicant's prospects of rehabilitation were excellent and it is unlikely that he will re-offend.
10 The learned sentencing judge "anxiously" considered whether the sentence should be served by way of periodic detention in light of the strong subjective case, the vulnerability of the applicant in gaol and the risk to his rehabilitation by exposing him to the adverse influence of the other inmates. In the end, the judge said that he was "not persuaded that periodic detention is the appropriate order to be made in this case". It seems to me that his Honour considered there is a presumption in a case such as the present against an order for periodic detention.
11 It is contended by counsel for the applicant that to approach the question of sentence in this case in this way is an error, citing R v Braithwaite [2005] NSWCCA 451. In that case the appellant was sentenced on his plea on two counts of supplying prohibited drugs (amphetamine and ecstasy) under s25(1) of the Act, with one charge of possession of cannabis leaf and one charge of goods in custody taken into account on a Form 1. The appellant was arrested when the drugs were detected in his backpack by sniffer dog. The amphetamine was mixed in a powder and separated into 24 small re-sealable plastic bags in various weights, in all 20.89 grams. The ecstasy comprised 47 tablets weighing a total of 17.78 grams, distributed in 10 re-sealable plastic bags. Also in the backpack was a set of electronic scales, a lockable box and an open bag of glucose powder; he had $540 on him. This was the appellant's first offence of any moment. He was 21 years of age, employed and had taken significant steps towards rehabilitation. The primary judge said that only in exceptional cases would a non-custodial sentence be appropriate for drug traffickers. On the first count (amphetamine), taking into account the Form 1 offences, the appellant was sentenced to 2 years and 7 months with a non-parole period of 9 months and on the second count (ecstasy) a concurrent term of 3 years with a non-parole period of 12 months.
12 Amongst other things, it was submitted that the primary judge erred in failing to determine first the appropriate terms of the sentences and then whether one or both should be suspended under s12 of the Crimes (Sentencing Procedure) Act 1999. Hodgson JA (McClellan CJ at CL and Hall J agreeing) held that the primary judge erred in conflating these issues rather than considering them separately and added -
"Further I do not think it was correct to say that, in all cases of s25(1) offences, it is a pre-condition to suspending the sentence that the offences fall towards the lower end of the scale or that there be exceptional circumstances…[but] I do consider that, in cases such as this of supply of drugs, a strong case needs to be made out to justify suspending the sentence."