Fogg v Regina

Applicant's Submissions on Sentence 19The applicant, as I have said earlier, agreed with the facts set out above. He did not lead or tender any evidence for any purpose on sentence. He relied solely on submissions. 20During submissions, Mr Bruce, who appeared for the applicant conceded that the applicant's conduct was part of an organised criminal enterprise. He conceded that the applicant's conduct had the effect of shielding his brother, Raymond Fogg, from ready detection by law-enforcement authorities. 21Mr Bruce accepted that the conduct of the applicant was accompanied by financial gain, by way of profit. He also conceded that, without his client's conduct, " ... much of the criminality would not have occurred."

Subjective Features 22The applicant was born on 11 September 1956 and was aged 51 years at the time of the offence. 23He had a very long history of previous offences and convictions, commencing in 1968 when he was 11. The sentencing judge set out some of these convictions in his remarks on sentencing. His record included offences such as stealing, possession of prohibited drugs, assault and offensive behaviour. There is no significant break in the occurrence of offences for the 40 year period from 1968 to 2008. 24However, with the exception of the matter to which I refer in the next paragraph, those offences on his record which involve drugs, are all for possession of a prohibited drug which have resulted in relatively small penalties. I note that the offence the subject of the appeal is the first occasion upon which the applicant has been convicted of being involved in the supply of drugs. 25On 21 May 2008, the applicant was given a 12-month good behaviour bond by the Cessnock Local Court, pursuant to s9 of the Crimes (Sentencing Procedure) Act 1999, for possession of a prohibited drug. He was therefore in breach of his bond when, about three weeks afterwards on 13 June 2008, he made the first of the methylamphetamine transactions with the undercover police operative. 26As I have already noted, there was no evidence led by the applicant at all on the sentencing proceedings which had the result that the judge had no material to show that the applicant was unlikely to re-offend. There was no evidence as to his prospects of rehabilitation nor to prove that he had at any stage shown remorse for his actions, except such inference as was available from the applicant's plea of guilty. 27His counsel conceded before Frearson DCJ that the applicant's lengthy criminal record disentitled him to any degree of leniency. 28Most of the other participants in the illegal drug enterprise were members of the applicant's family including his extended family.

Remarks on Sentence 29The sentencing judge found that the enterprise, although organised, was unsophisticated, with no technology or anti-surveillance mechanisms. He found that the applicant himself received only a modest financial gain from his role in the enterprise. 30However, the sentencing judge found that the applicant was the second-in-charge of the enterprise, as the Crown had submitted he should. He also found that the organisation operated in such a way as to shield Raymond Fogg, who was in charge of the enterprise, from police detection. 31The sentencing judge noted the Crown's submission that the applicant, in his dealings with the operative, showed an awareness that to deal in a prohibited drug for more than three times in one month was something he ought avoid. 32It is unclear what weight his Honour placed on this submission in his determination that the applicant should not receive any reward for the venture being unsophisticated and amateurish. Nor is it clear whether his Honour found that the applicant limited his dealings to three times in one month because it was more likely to draw police attention, as the Crown submitted, or because it would lead to a greater legal sanction if he were caught as the applicant seemingly believed. 33The sentencing judge made a specific finding that, in all of the circumstances, the applicant's offence was above the mid-range of objective seriousness for an offence of this type. 34As the applicant had pleaded guilty at the earliest opportunity, the sentencing judge allowed a discount of 25 per cent on the sentence.

Grounds of appeal 35Five grounds of appeal were relied upon by the applicant: "(1) The sentencing Judge erred in characterising the offence as above the mid-range of objective gravity for an offence of this type. (2) The sentencing Judge erred in determining that it was an aggravating feature of the Appellant's offending, that the organisation was operated in such a way as to shield Raymond Fogg. (3) The sentencing Judge erred in determining that the Appellant's awareness that supplying drugs more than 3 times in a month would constitute a more serious offence was an aggravating feature. (4) The sentencing Judge erred in not giving sufficient consideration to the lack of sophistication in the appellant's offending. (5) The sentence was manifestly excessive in all the circumstances."

Grounds 1- 4 36These grounds can conveniently be considered together because they all deal with a single issue, namely, was there an error in the characterisation of the offence as being above the mid-range of objective gravity for an offence of the particular kind. 37Shortly put, the applicant says that the sentencing judge erroneously placed the offence above the mid range of objective seriousness because his Honour erroneously took into account two aggravating features, which relate to the way in which the enterprise operated, and also because his Honour failed to take adequately into account a mitigating feature, which relates to the lack of sophistication and amateur nature of the applicant's conduct and the venture generally. 38It is to be remembered that a sentencing judge's assessment of where a particular instance of offending stands is a matter upon which minds might reasonably differ. Generally this court would not interfere in that assessment unless it was clearly erroneous: Mirza v R [2007] NSWCCA 248 at [16] per Howie J. 39This Court in Mulato v The Queen [2006] NSWCCA 282 made it plain that the Court ought to be slow to interfere with the assessment made by the sentencing judge of the objective seriousness of the offending conduct. At [37], Spigelman CJ said: "Characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts. This Court is very slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion. The question must be whether or not the particular characterisation which her Honour gave to the circumstances of the offence was open to her Honour. In my opinion it was open, although I have some hesitation in deciding so and find it to be at the lower end of the range which could reasonably be held to be so characterised." 40I express, with respect, my agreement with the remarks of Simpson J in Mulato v The Queen [2006] NSWCCA 282 at [46] where her Honour said: "The assessment of the objective seriousness of an offence is quintessentially for the sentencing judge. It is, if not a finding of fact, then the exercise of an evaluative process akin to fact finding or the exercise of a discretion. As such it is reviewable in this Court only on the principles stated in House v The King [1936] HCA 40; 55CLR 499. The importance of respecting the role of a first instance judge should never be underestimated. It is not the function of this Court to substitute its own view of objective seriousness for that of the first instance judge. That is not because objective seriousness is something determined by reference to the evaluation of the credibility of witnesses, in respect of which it is conventionally held that the first instance judge is in a superior position. It is because it is a fundamental aspect of the appellate system. Each judicial officer in the hierarchy has his or her own function, and those at appellate level need to take care not to trespass upon the role of those at first instance." 41Frearson DCJ gave careful attention to determining where the offence fell on the range, and determined that the offence was above the mid range of objective gravity. 42The applicant's submission, referring to Ground 2 of the grounds of appeal, that it was erroneous for the learned sentencing judge to make a determination that the operation of the organisation was effective to shield Mr Raymond Fogg from detection, must be rejected. First, the applicant's counsel expressly conceded that such a finding was not only available but appropriate. Secondly, the nature of the organisation is an indicator of the degree of criminality involved. It was, as the applicant's counsel conceded "... the gravamen of the criminality involved ". 43In the written submissions on the application, it was submitted that Frearson DCJ also erred by wrongly describing the applicant as the second-in-command of the enterprise. Although not a specific ground of appeal, it is convenient to consider the submissions at this juncture. 44In considering this ground, it is to be noted that his Honour was considering, together with and at the same time as the sentencing proceedings for the applicant, the sentencing of his brother Raymond Fogg. This concurrent sentencing exercise was done if not with the consent of the applicant, without any demur on his part. It was inevitable that his Honour would thus be in a position of comparing the respective roles of the applicant and Raymond Fogg in the enterprise in which they were both engaged. 45As well, in the course of the sentencing submissions, the Crown provided to Frearson DCJ, without any objection from the applicant's counsel, a document entitled "Family Dynamics" which described the relationships between six members of the Fogg family, all of whom had been arrested at the same time as the applicant. The document also recorded the offences to which four members of the family had pleaded guilty and for which they had been sentenced. 46His Honour had been the sentencing judge for each of the members of the family. As his Honour knew what the offences were for the other family members and what sentences had been imposed, it was appropriate for a document summarising this material to be put before him. As I have said, no objection was taken to it. 47Based on contents of that document, and the facts with which he was provided on the sentence of Raymond Fogg, the judge concluded that the applicant's role was as second in command of the organisation as the Crown submitted. There was abundant material from which his Honour could come to this conclusion. In my opinion, the conclusion was correct. 48His Honour was also correct to regard it as a factor of aggravation, because it indicated the extent of the criminality involved in the offences with which the applicant was charged. It was also one indicator of the degree of sophistication of the enterprise of which the applicant was a part. 49With respect to Ground 3, the applicant submits that an error occurred because Frearson DCJ included in his assessment of the objective seriousness of the offence, the fact that the Applicant's knowledge that supplying drugs more than three times in a month would constitute a more serious offence as he recounted to the police undercover operative was an aggravating feature of his conduct. 50This ground must also be rejected because it is simply not correct to conclude that his Honour did what this ground suggests. His Honour recorded that the Crown submitted that such fact ought to be seen as an aggravating factor, however, in his analysis, on my reading, his Honour did not record either his agreement with the Crown submission, nor his inclusion of the fact as an aggravating factor. 51His Honour did use the term " ... repetition ... " when referring to aggravating factors which he was including in his assessment of the objective seriousness of the conduct. But I am satisfied, that what was meant by this term was the fact that the applicant had been detected engaging in five separate deals with the police operatives within a short space of time. That was clearly an aggravating factor to which his Honour was entitled to refer and include in his assessment. 52With respect to Ground 4, the applicant submits that his Honour erred because he failed to adequately take into account the lack of sophistication and amateur nature of the applicant's conduct and the venture generally. His Honour clearly considered these issues. He said: " I do not think that there is any reward for the venture being unsophisticated and amateurish ..." . As well, earlier in that paragraph, his Honour specifically noted that he had regard to the sophistication of the operation. The weight which was accorded to that factor was well within his Honour's discretion. It is not a matter for interference by an appellate Court. 53In my opinion each of these grounds should be rejected. His Honour's determination that the offence was above the mid range of seriousness was one which was well open to him. It is not susceptible to appellate interference.

Ground 5 54This ground asserts that the sentence imposed was manifestly excessive. 55The maximum penalty for the offence was 15 years imprisonment. There is no standard non parole period fixed by the legislation. The sentence imposed for the offence, which was above the mid range of objective seriousness, was an overall sentence of 4 years and 8 months imprisonment, with a non-parole period of 3 years and 6 months 56The relevant test for the applicant to succeed on this ground requires the applicant to demonstrate that the sentence was unreasonable or plainly unjust: Dinsdale v The Queen (2000) 202 CLR 321 at 325 [6] per Gleeson CJ and Hayne J. In approaching the task of establishing that the sentence is unreasonable or plainly unjust, the context is that there is no one single correct sentence, but the process of sentencing involves due allowance for differences of judicial opinion at first instance whilst still acting in accordance with principle: Vuni v The Queen [2006] NSWCCA 171 at [33] per Hoeben J (Tobias JA and James J agreeing); see also Stewart v R [2009] NSWCCA 152 at [16]-[17] per Hodgson JA (Buddin and Price JJ agreeing); R v Hayek [2010] NSWCCA 139 at [37] per McCallum J (Simpson and Johnson JJ agreeing). 57The principal submission under this ground is that a review of cases categorised as relating to the supply of less than 30 grams of amphetamine demonstrates that the applicant's sentence is higher than all but three of the sentences is those cases. 58It is submitted that a review of Judicial Commission Statistics on sentencing also demonstrates that this sentence is at the very high end of the range and is exceeded in only a very small number of cases. 59The use to which Judicial Commission Statistics can be put, and their limitations have been identified: R v Bloomfield (1998) 44 NSWLR 734 at 739E per Spigelman CJ (Sully and Ireland JJ agreeing). But for many offences, culpability varies over so wide a range that the statistics are of limited utility for a particular case: El-Ghourani v R [2009] NSWCCA 140 at [42] per Spigelman CJ. 60I accept that the statistics referred to demonstrate that the sentence in this case falls at the high end of the range of sentences imposed for the offence. But the question remains whether it falls within the range of the permissible exercise of the sentencing judge's discretion. 61In my opinion, having regard to the circumstances outlined earlier, it does. 62As well, the applicant's submissions on this ground concentrate on the small quantity of drugs involved and the small monetary return from the offence. Those facts may be accepted. On the other hand, the charge related to an activity undertaken for profit and on a number of occasions as part of an organised enterprise. I am quite unable to discern any unreasonableness or injustice in the sentence. 63In my opinion, the applicant has not shown that the sentence imposed was "unreasonable or plainly unjust" nor that any lesser sentence is warranted in law: s6(3) Criminal Appeal Act 1912. 64This ground ought also be rejected.

Orders 65I propose these orders: (1) Leave to appeal granted. (2) Appeal dismissed.

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