Fitzsimon v R

House v The King (1936) 55 CLR 499 Lowe v R (1984) 154 CLR 606 CASES CITED : R v Engert (1995) 85 A Crim R 67 R v Hemsley [2004] NSWCCA 228 R v Wright (1997) 93 A Crim R 48 Stephens v R [2009] NSWCCA 240

PARTIES: David James Fitzsimon (Applicant) Crown (Respondent)

COUNSEL: C Nash (Applicant) S Dowling (Respondent)

SOLICITORS: Ford Criminal Lawyers (Applicant) Solicitor for Public Prosecutions (Respondent)

• 1 - IN THE COURT OF CRIMINAL APPEAL 2008/16310

McCLELLAN CJ at CL JAMES J DAVIES J

4 MARCH 2010 FITZSIMON v R Judgment 1 McCLELLAN CJ at CL: I agree with Davies J. 2 JAMES J: I agree with Davies J. 3 DAVIES J: On 19 November 2008 the Applicant pleaded guilty to 2 offences as follows: [1] Supply not less than a large commercial quantity of a prohibited drug (1.7 kilograms of ecstasy) between 9 March 2007 and 12 May 2007 contrary to s 25(2) Drug Misuse and Trafficking Act 1985;

[2] Supply a prohibited drug (54.84 grams of methylamphetamine) between 18 April 2007 and 12 May 2007 contrary to s 25(1) Drug Misuse and Trafficking Act 1985. 4 The maximum penalty for the first Count is life imprisonment and there is a standard non-parole period of 15 years. The maximum penalty for the second Count is 15 years imprisonment. 5 In addition, the Applicant asked the Sentencing Judge to take into account 2 additional charges on the Form 1, namely, 2 charges of supplying 56 grams of methylamphetamine, the first between 1 and 7 April 2007 and the second between 16 and 20 April 2007. 6 On 21 January 2009 the Applicant was sentenced by her Honour Judge Tupman as follows: [1] On Count 1 (taking into account the Form 1 offences), sentenced to a non-parole period of 6 years commencing 19 July 2007 and expiring on 18 July 2013 with an additional period of 3 years and 4 months commencing on 19 July 2013 and expiring on 18 November 2016.

[2] On Count 2, sentenced to a fixed term of imprisonment of 2 years commencing 19 July 2007 and expiring 18 July 2009.

On Count 2 her Honour declined to set a non-parole period because she said it would be subsumed within the non-parole period in relation to Count 1. 7 At the same time her Honour sentenced a co-offender Douglas Stewart Ross. He was charged with the same offences. However, Mr Ross asked her Honour to take into account 4 additional charges on the Form 1. The first two were the same as those for which the Applicant was charged and appeared on his Form 1. The other two were the deemed supply of 104.1 grams of methylamphetamine on 12 May 2007, and a charge of dealing with the proceeds of crime, namely, the sum of $4,500 contrary to s 193C(1) Crimes Act 1900. The drug charge had a maximum penalty of 15 years imprisonment, and the offence contrary to s 193C Crimes Act carried a maximum penalty of 2 years imprisonment. 8 Her Honour sentenced Mr Ross as follows: [1] On Count 1 (taking into account the Form 1 offences), sentenced to a non-parole period of 5 years commencing 11 May 2007 and expiring 10 May 2012 with an additional period of 3 years commencing 11 May 2012 and expiring 10 May 2015.

[2] On Count 2, sentenced to a fixed term of 2 years commencing 1 May 2007 and expiring 10 May 2009.

Her Honour declined to set a non-parole period on Count 2 for the same reason as she did in the Applicant's case.

Facts and circumstances 9 As one of the grounds of appeal relates to parity it is important to understand the approach her Honour took to the co-offender Ross. 10 The facts and circumstances giving rise to the offences are clearly set out by her Honour as follows: The facts on which I sentence are that each of these two offenders came to notice during a police investigation which occurred over a number of months involving police undercover investigation. The strike force investigation was into the manufacture and supply of prohibited drugs namely ecstasy and methylamphetamine. The investigation included the lawful interception of telephone calls involving a person Richard Monckton who lived on the far north coast of New South Wales in the Lismore/Ballina area. During the course of monitoring his telephone lines, police became aware of this enterprise involving the manufacture and supply of these two drugs. Amongst those who came to light and whose calls were also then monitored was the offender Mr Fitzsimon.

The Crown case on the agreed facts before me is that Mr Monckton was heavily involved in these illicit drug activities and was assisted in that enterprise by others including the offenders before me. I accept from the facts that it was Mr Fitzsimon's role in this enterprise to take possession of quantities of the drugs and make them available to Mr Ross to then drive from Sydney and deliver them to Mr Monckton on the north coast. The surveillance indicated that during the period covered by the first count in relation to each of these two offenders, there were four separate occasions on which Mr Fitzsimon and Mr Ross were involved in the supply in this way. Mr Ross was a friend of Mr Fitzsimon and became involved just before 15 March 2007. Mr Fitzsimon on the facts was involved in the supply for only a few days longer, namely from 9 March.

Specifically the facts involving this first supply charge are that on 15 March 2007, Mr Fitzsimon arranged for Mr Ross to drive to Mr Monckton on the north coast and there deliver to him 486 grams of ecstasy. This occurred again on 7 April 2007 where Mr Ross delivered 270 grams of ecstasy to Mr Monckton, that having been supplied to him by Mr Fitzsimon. On this occasion he also delivered 56 grams of methylamphetamine also provided to him by Mr Fitzsimon.

This is the subject of the first Form 1 offence for each offender. Again on 20 April 2007, Mr Fitzsimon arranged for Mr Ross to take delivery of and drive up to meet Mr Monckton with 405 grams of ecstasy. On that occasion too, he delivered another 56 grams of methylamphetamine. That latter supply of methylamphetamine is the second of the two additional charges in the Form 1 for each of these two offenders. On 11 May 2007, once again Mr Fitzsimon arranged for Mr Ross to deliver ecstasy tablets to Monckton on the north coast. This time the quantity was 596.8 grams. Mr Ross was stopped by police at Normanhurst on his way and the drugs never reached Monckton on this occasion. In total these four occasions amounted to either the actual delivery or attempted delivery to Monckton of approximately 1.7 kilos of ecstasy and these are the facts relevant for the first count in the indictment against each of these offenders namely the charge of supplying the large commercial quantity of ecstasy.

As well as delivering or attempting to deliver 596.8 grams of ecstasy on 11 May, Mr Fitzsimon had also given Mr Ross 54.04 grams of methylamphetamine to supply to Mr Monckton. This was also found in his possession when he was arrested at Normanhurst. These facts involving this quantity of methylamphetamine are the relevant facts for the second count in the indictment relevant to each of these two offenders. The day following Mr Ross's arrest, police searched his premises and there located a number of things including 104.1 grams of methylamphetamine and the sum of $4,500 in cash. These facts are the relevant facts for the remaining two additional Form 1 offences against Mr Ross, namely the deemed supply of this quantity of methylamphetamine on 12 May 2007 and the charge of dealing with the proceeds of crime. 11 Her Honour then turned to assess the role of each of the offenders and the objective criminality. She said that it was a relatively substantial drug supply organisation in which they were involved but, on the evidence, neither of them stood to gain much money from their involvement. She accepted the evidence that each of the 2 offenders received only the sum of $6000 from their involvement, that that was not a particularly large amount, and that the Applicant used it only to extinguish some pre-existing debt to people from whom he had obtained the drugs. 12 Her Honour accepted that Mr Monckton was in the business of distributing the drugs around the North Coast of NSW and on the Gold Coast. The role of each of Mr Ross and the Applicant was, in a different capacity, to get the drugs to Mr Monckton for that purpose. The drug supply business was connected with a motorcycle club or gang in which the Applicant was involved. His role was as a middleman obtaining the drugs from someone else and then giving them to Mr Ross to deliver to Mr Monckton in the role of a courier. Mr Ross became involved only because he was an acquaintance of the Applicant and because of his own very longstanding addiction to drugs at the time. 13 Her Honour found that Mr Ross was not involved in the gang in any way and that there was no evidence that the gang played any part in the Applicant's offending other than it was through that association that the Applicant became involved in the offence. Her Honour found that the offence was not aggravated in any way by gang involvement.

(a) The Applicant 14 The Applicant was 32 years of age at the time of commission of the offences and was 34 when sentenced. He had, as the Sentencing Judge found, a fairly significant criminal record which commenced in the Children's Court in 1991 when he was 16 years of age. Except for a low-range PCA in February 2006, the Applicant's criminal record finished in April 2001. 15 Although the Applicant started using drugs at the age of 15, commencing with cannabis and moving onto amphetamines, none of the offences for which he had been convicted was a drug offence. A number of the offences were, however, offences that might be expected from a person addicted to drugs including dishonesty offences, offences against property and offences against the person. 16 He appears to have developed psychotic symptoms during his teenage years at about the time he commenced using amphetamines. He was subsequently diagnosed with schizophrenia. 17 He has 2 children from 2 relationships. The second child was born from a marriage he had with a Thai woman. That relationship came to an end in acrimonious circumstances, and her Honour found that the events in respect of which she was sentencing the Applicant were occurring during the worst part of that relationship. Both the Applicant and his wife were gambling heavily and using drugs. The gambling debts that had been run up were part of the reason the Applicant involved himself in the drug offences. He was attempting to pay off those debts by the money he was to receive from his involvement in the drug supply. 18 Her Honour found that the Applicant had been, for the 2½ years prior to the sentence, in a relationship with another woman who gave evidence at the sentence proceedings. Her Honour found that woman to be a positive influence on the Applicant. She remained available to provide support for him while he was in prison and on his ultimate release. 19 Her Honour found, from the Applicant's partner's evidence, from the Probation and Parole Service and from a psychologist, that the Applicant was well motivated to change his life and to remain drug free, to resume his relationship with his partner and to go to live with her and her children out of the Sydney area where he could obtain work. 20 Her Honour accepted that his prospects of rehabilitation were reasonably good and were much enhanced by the support he had from his partner and from his father and stepmother who were available to provide continuing support.

(b) Co-offender Ross 21 Mr Ross was 31 years old at the time of sentence. Her Honour found that his criminal record was of much shorter compass than that of the Applicant. She said that it was in fact of very little relevance when sentencing him for the offences. There were no drug supply or drug related offences on the record and, she said, apart from one period of what would appear to be alcohol-related offences in August 2006 his record was otherwise nonexistent. It should be noted that Mr Ross's record was not amongst the appeal papers. 22 She noted that he had a significant drug addiction for a long period of time, starting to use marijuana at the age of 18 which led onto other drugs including cocaine, amphetamines and ecstasy from about the age of 25 until he came into custody. He had also been involved in excessive alcohol consumption in the past. 23 Her Honour thought his involvement in the drug offences were very much out of character. She thought he had good prospects for rehabilitation, partly because he had become engaged to a woman with whom he had had a young daughter, and because he was well supported by his family and other persons.

Grounds of appeal 24 The Applicant seeks leave to appeal on 3 grounds as follows: (1) Her Honour erred by emphasising general deterrence over the Applicant's mental illness;

(2) Her Honour erred in relation to the issue of parity;

Ground 1 - Emphasising general deterrence over Applicant's mental illness; 25 Where a person has a mental disorder or is suffering from a mental illness, that may render the person an inappropriate vehicle for general deterrence and moderate that consideration: R v Hemsley [2004] NSWCCA 228 at [34]; R v Engert (1995) 85 A Crim R 67 at 71 and 72; R v Wright (1997) 93 A Crim R 48 at 50-51. 26 The Applicant submits that her Honour gave little consideration to the impact of the mental illness upon both the Applicant's thought processes and the capacity of the offender to appreciate the gravity and significance of the criminal conduct, notwithstanding that the Applicant was appreciably aware of the consequences of his offending behaviour. 27 The Applicant points to the fact that the pre-sentence report noted that the Applicant was diagnosed with schizophrenia in approximately 2000 and that he had been medicated for that illness since that time. 28 The Applicant points also to the report from the psychologist Mr Watson-Munro who noted a troubling clinical and forensic history which had been compounded by the diagnosis of a serious and lifelong psychiatric illness, being the paranoid schizophrenia. Mr Watson-Munro said that it, in all likelihood, was caused in the first instance by a protracted Substance Abuse Disorder involving dangerous stimulant drugs such as Ice, cocaine and amphetamines. 29 Mr Watson-Munro said that the Applicant's problems were clearly aggravated at a level of clinical significance by his escalating drug abuse. He thought it was clear that the Applicant's judgment was diminished by virtue of the convergence of his drug abuse superimposed upon an underlying psychotic illness. However, Mr Watson-Munro noted that the Applicant's problems including paranoia, sleep disturbance and general disorientation in time, place and person did not reach the point where he was unaware of his wrongdoing nor of the consequences of his actions. 30 Mr Watson-Munro noted that the Applicant told him that in the lead up to the drug offences he was in a state of continuous confusion and disorientation. Mr Watson-Munro noted that state was entirely consistent with the body of research material attesting to the adverse effect stimulant drugs such as cocaine and Ice had on the pre-frontal cortex of the brain, an area which is responsible for forward planning, judgment and stability of personality. 31 Her Honour noted the Applicant's diagnosis for schizophrenia and its relationship to his drug use. She then went on to say a little later: Other factors that I take into account involving his subjective circumstances as I have said are his diagnosis for schizophrenia in the past. I accept that more probably than not to some extent, it was either created by or exacerbated by his significant drug use at the time. He is currently on medication for it and it seems to be under control whilst he is in custody. 32 Earlier her Honour had said this in relation to general deterrence: The sentence of course should carry an element to reflect the note for general deterrence. The evidence before me is that these drugs or at least some of these drugs were in fact distributed to the community at large, that was known to each of the offenders and nonetheless they involved themselves in the offence. The Court is only too aware of the tragedy that is wreaked on the community at large by the scourge of prohibited drugs. The sentence for this and any other drug supply charge particularly one involving a large commercial quantity must include an element to send a message to the community that any involvement in such offences will give rise to a significant period of custody as the penalty. 33 It is difficult to see on the basis of those comments, and what her Honour said elsewhere about taking into account the Applicant's schizophrenia, his drug use and the relationship between the two, that her Honour has emphasised general deterrence over his mental illness. She has obviously taken both matters into account but has not expressly or impliedly weighed one over the other. 34 Indeed, in her oral submissions Ms Nash, on behalf of the Applicant, accepted that her Honour did not in so many words emphasise general deterrence over the mental illness but submitted that the sentence ultimately given indicated that too much weight was placed on deterrence. 35 There seem to me to be 2 considerable difficulties with that submission. The first is that it seems impossible to conclude from the length of the sentence alone that the sentencing judge has given too much weight to general deterrence or no weight or not enough weight to other factors. When it is remembered that the maximum penalty for Court 1 was life imprisonment with a standard non-parole period of 15 years, it is impossible to say that a total sentence of 9 years 4 months with a non-parole period of 6 years (even taking account of the discount for early plea) necessarily leads to the view that general deterrence has been given too much emphasis. 36 The second problem with the submission arises from the fact that it is, in terms, a submission about the amount of weight that the Sentencing Judge has accorded to one factor or another. In Stephens v R [2009] NSWCCA 240 Grove J (with whom McClellan CJ at CL and R A Hulme J agreed) said: [16] The applicant advanced two express grounds of appeal. Ground 1 contended that the learned sentencing judge erred in failing to give sufficient weight to the applicant's mental illness in mitigation of penalty.

[17] There are inherent problems in such a ground succeeding. Although it was said in the context of a Crown appeal, the observation of Spigelman CJ in R v Baker [2000] NSWCCA 85 should be borne in mind: "The use of terminology such as 'sufficient weight' highlights the difficulty for the Crown case. Questions of weight in the exercise of a discretion are matters for the first instance judge. The circumstances in which matters of 'weight' will justify intervention by an appellate court are narrowly confined."

[18] As is obvious, a ground expressed in that fashion tacitly concedes that some weight had been placed by the sentencing judge upon the factor. … 37 This is a Court of error. As was emphasised in Stephens, questions of weight are part of the discretion of the Sentencing Judge. It would be necessary for the Applicant to show a House v The King (1936) 55 CLR 499 type of error for this Court to be able to intervene. No such error is or could be shown on the basis of what the Sentencing Judge said, nor from the sentence imposed. 38 This ground fails.

Ground 2 - Error in relation to the issue of parity 39 Her Honour said this: Turning then to the appropriate sentences, I assess Mr Fitzsimon's role in the offence as slightly higher than that of Mr Ross. It was Mr Fitzsimon who obtained the drugs to give to Mr Ross to supply on to Monckton, it was Mr Fitzsimon who was the one with the contacts to enable that to occur. On that basis it seems to me there is no argument for absolute parity between the two of them. There are other factors of course that make parity not appropriate. 40 Her Honour then went on to say that she thought without the plea of guilty an overall term of 11 years would have been appropriate and that acknowledged the Form 1 offences. A little later on she said: In relation to Mr Ross, taking into account the slightly lesser involvement than that of Mr Fitzsimon and some of the other factors surrounding him, particularly his somewhat greater prospects of rehabilitation but also acknowledging the Form 1 offences for him which are 4 in number compared to 2 for Mr Fitzsimon. It seems to me that absent the plea of guilty an overall term of imprisonment of 10 years would have been appropriate. 41 Her Honour provided a discount of 20% for Mr Ross's plea of guilty and a 15% discount for the Applicant. The distinction made there turned on the timing of the guilty pleas with the Applicant's plea being made at a later time. No complaint is made about that on the appeal. 42 It was accepted by the Applicant that there were differences in the findings and subjective features between Mr Ross and the Applicant. However, it was submitted that any mitigation or discount (not including the discount for the early plea) which would otherwise have been appropriate based on the differences between the Applicant and Mr Ross should have been balanced out by the fact that Mr Ross had 4 matters taken into account on a Form 1. 43 It is further submitted that her Honour could not reasonably have found that the Applicant's role in the offences was "slightly higher" than that of the co-offender simply on the basis that it was the Applicant who originally obtained the drugs to give to the co-offender to take to Monckton. 44 The real complaint, as articulated in oral submissions, was that her Honour chose a starting point of 11 years for the Applicant and 10 years for the co-offender. 45 In Lowe v R (1984) 154 CLR 606 at 609 Gibbs CJ said: It may be said that the very existence of the disparity reveals that an error must have been committed, but I would prefer frankly to acknowledge that the reason why the court interferes in such a case is that it considers that the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done. The decision whether the existence of a disparity calls for intervention is a matter which lies very much within the discretion of the Court of Criminal Appeal. (emphasis added) 46 Mason J said at 612: It has therefore been generally accepted that it is preferable to err on the side of leniency and eliminate or diminish the sense of grievance and appearance of injustice by reducing the more severe penalty in appropriate cases. So the courts have on many occasions reduced a sentence to bring it more into line with the co-offender's penalty, though it is well established that there is no principle of law that sentences must strictly compare: … (emphasis added) 47 It is not sufficient, therefore, that there is a disparity. It must be such a disparity that gives rise to a justifiable sense of grievance. 48 The question of parity was ultimately one for her Honour's discretion. Her Honour was required to weigh up a number of factors. The extent of the 2 offenders' involvement was, as her Honour made clear, only one such factor. On the facts found by her Honour, Mr Fitzsimon had a larger involvement, albeit slight. It was through the motorcycle club or gang with which he was involved that he became involved in the drug trafficking. He was the person who obtained the drugs from another person and gave them to Mr Ross who, as her Honour found, was a courier. It was Mr Fitzsimon, her Honour found, who got Mr Ross involved. 49 The other factors concerned the difference in the criminal records of the 2 offenders, the Applicant's being considerably worse than that of Mr Ross. Further, her Honour found that Mr Ross's involvement in the offences was very much out of character and that he had very good prospects of rehabilitation. Although her Honour found that the Applicant had reasonably good prospects of rehabilitation she noted that she needed to be guarded because in the past the Applicant had been offered counselling and intervention on many occasions and had not always taken full advantage of them. 50 The only matter weighing in the negative for Mr Ross was that he had 2 more drug offences taken into account on the Form 1. However, her Honour accepted that all of the drug offences for both offenders were part of the same criminal enterprise. In fact, it can reasonably be inferred from the facts that the co-offender was unlucky in having different quantities of the drug in different places with the result that when the police searched his premises they found quantities of the same drug that he also had in his possession when stopped in the car. 51 The other 2 Form 1 offences with which the co-offender was charged do not stand out as requiring any particular weight to be given to them to balance the position of the Applicant and the co-offender to a point of parity. Ultimately it was a matter for the discretion of the Sentencing Judge. The difference in sentence (effectively a 1 year non-parole period) is, as I have said, only partly explicable by the different factors that the Sentencing Judge weighed because of the different discounts for early pleas. 52 In my opinion, no error has been shown in this regard and this ground is not made out.

Ground 3 - Sentence was manifestly excessive 53 No independent submissions were made about this ground and the written submissions suggest that it is related to the other 2 grounds, both of which are said to have resulted in an excessive sentence. 54 Considered without reference to those other grounds the sentence, particularly in the light of the maximum penalty and the standard non-parole period, does not appear to be excessive in any way that suggests error on the part of the Sentencing Judge.

Conclusion 55 I propose the following orders: (1) Leave to appeal granted.

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