Garner v R

The sentencing judge did not refer to this part of the pre-sentence report in his remarks on sentence. 24 It was submitted by counsel for the applicant that:- (1) The sentencing judge had erred in saying that the applicant's evidence in the proceedings on sentence was that "at the relevant time", that is at the time of the offences or at least at the time of the offences of 28 December 2006, the applicant was "making up to $4000 a week" from the business. (2) The sentencing judge had erred in not treating the figure of $4000 per week as being a gross and not a net figure. (3) The sentencing judge had erred in not having had regard to other findings he had made about the extent of the applicant's own use of drugs and other evidence admitted in the proceedings on sentence about the cost to the applicant of the applicant's use of drugs.

It was further submitted that as a result of these errors his Honour had erred in concluding that there was no other motive for the applicant committing the offences than sheer greed. 25 I consider that submission (1) should be accepted. The applicant, who was giving evidence on 16 November 2007, said in his evidence that he had set up the business "about 15 months ago, roughly", that is in about August 2006, that the business had been improving and that "towards the end", that is towards the date of his final arrest on 29 August 2007, he had been making $4000 a week, although, even then, only "sometimes". It was erroneous for his Honour to say that the applicant's evidence was that at the time of the offences (or at least at the time of the majority of the offences, those committed on 28 December 2006) the applicant was making up to $4000 per week from the business and to base a further finding upon that misstatement of the applicant's evidence. 26 As to (2), it was submitted by counsel for the applicant that the figure of $4000 per week, even when it was being achieved, was a gross figure from which, in order to arrive at a net figure, there had to be deducted the expenses of the business, including the wages of three employees, the costs of buying the scrap metal and the rent for the business premises. 27 In support of this submission counsel for the applicant referred to the statement in the pre-sentence report that the "net weekly income" of the business was only $1000 and that out of that weekly income the applicant had to pay $260 in rent for the premises of the business. 28 However, the applicant, when giving evidence was asked by his counsel whether $4000 a week was "profit", and the applicant said "profit - yeah". It is possible that by "profit" the applicant meant a gross profit (that is the difference between sales revenue and the direct cost of sales) or some other figure other than an ultimate net profit (for example, the profit of the business before payment of rent for the premises). However, having regard to the applicant's own evidence that the figure of $4000 a week was "profit", I do not consider that I should find that it would have been an error on the sentencing judge's part to treat $4000 per week, when it was achieved, as being the profit of the business. 29 As to (3), the sentencing judge in other parts of his remarks on sentence accepted that the applicant was a regular drug user and referred to what the applicant had told Dr Nielssen about the extent of his use of drugs, including his daily use of amphetamine, without any indication that the sentencing judge did not accept as being true what the applicant had told Dr Nielssen. The pre-sentence report stated that "at the time of the offences he (the applicant) was reportedly consuming up to $100 worth of amphetamine a day". 30 If the applicant was not making up to $4,000 per week from his scrap metal business, it is more likely that the motive for part of the applicant's supplying of drugs at the time of the 28 December 2006 offences was to obtain money to fund his own use of drugs. 31 I have held that the sentencing judge did err in saying that the applicant's evidence in the proceedings on sentence was that at the time of the offences (or at least at the time of the majority of the offences) the applicant was making up to $4000 per week from his scrap metal business. This misstatement by the sentencing judge of the applicant's evidence formed the basis of the finding that the applicant was conducting a successful business with a substantial income, which was one of the two premises for his Honour's conclusion that there was no motive for the applicant's conduct other than sheer greed. His Honour's misstatement of the applicant's evidence and the other, unchallenged, evidence in the proceedings on sentence about the applicant's use of drugs and the cost of that use of drugs also weakens the other premise for his Honour's conclusion, namely that the applicant was not an addict supplying (at least in part) to fund his own drug habit. 32 I would uphold the first ground of appeal.

Ground 2. The sentences imposed were manifestly excessive 33 Counsel for the applicant's submissions in support of this ground in his written submissions of 17 October 2008 were quite brief. It was submitted that the sentences imposed, that is the totality of the sentences, were manifestly excessive, having regard to the combined discount of 40 per cent for the early pleas of guilty and the assistance, the relatively small quantities of drugs involved in the offences and the fact that the applicant was himself a drug addict, and that the sentence for offence 2, considered by itself, was manifestly excessive. 34 In its written submissions the Crown disputed that either the sentences generally or the sentence for offence 2 were manifestly excessive. It was submitted that only limited weight could be given to the fact that the applicant was himself addicted to drugs. As to the sentence for offence 2, the Crown pointed out that the quantity of the drug was about eight times the indictable quantity, that the maximum penalty for the offence was imprisonment for 15 years, that in sentencing for offence 2 the sentencing judge was required to take into account the six offences on the Form 1 and that two of the offences on the Form 1 (nos 5 and 6) had been committed while the applicant was at liberty on bail. 35 In the Crown's written submissions it was stated that the sentencing judge's starting point in determining a sentence for offence 2, before allowing the combined discount of 40 per cent for the plea of guilty and the assistance, would have been 5 ½ years. This calculation of the starting point for the sentence for offence 2 as having been 5 ½ years was not disputed by counsel for the applicant and was, indeed, adopted by counsel for the applicant. It was, however, erroneous. If the sentencing judge allowed a discount of 40 per cent so as to arrive at a head sentence of three years nine months (45 months), then the putative head sentence, before allowing the discount, would have been six years three months (75 months) and not five years six months. 36 At the actual hearing of the application counsel for the applicant informed the Court that he was focusing on the sentence for offence 2; indeed, he said that he was abandoning any appeal against the sentences for the other offences. Accordingly, the second ground of appeal was limited to a contention that the sentence for offence 2 was manifestly excessive. 37 I have already noted that the application for leave to appeal against sentence was not filed until 17 October 2008. By the time the application was filed all of the other sentences, that is all the sentences for offences other than offence 2, had expired.

38 If the application for leave to appeal had been filed before the sentences for the other offences had expired, the Crown could have given consideration to lodging a Crown appeal against the sentences for the other offences, while those sentences were still current, and, whether or not a Crown appeal was brought, this Court, depending on when the application was heard, could have given consideration to varying the sentences for the other offences pursuant to s 7(1A) of the Criminal Appeal Act, while those sentences was still current. It should, however, be pointed out that, although the application for leave to appeal was not filed until 17 October 2008, a notice of intention to appeal was filed promptly on 5 December 2007 and extended on a number of occasions, so that the Crown had early notice that an application for leave to appeal against sentence might be brought. 39 Senior counsel for the applicant gave the court an explanation of why the delay in filing the application had occurred. The exhibits which had been provided by the District Court registry to the applicant's solicitors had not included the letter giving details of the assistance the applicant had provided. Senior counsel for the applicant had formed the opinion that an attempt should be made to obtain access to the letter of assistance in order to check whether a sufficient discount had been allowed for the assistance and, rather than "fragment" any application, the filing of the application should be deferred until after access had been obtained. 40 An application was made to the sentencing judge to obtain access to the letter of assistance but, notwithstanding various undertakings offered on behalf of the applicant, the sentencing judge declined to allow access. Ultimately, senior counsel for the applicant was able to inspect the letter of assistance in a court registry. It was only after this inspection had taken place that the application for leave to appeal against sentence was filed. Senior counsel informed the court that, to his knowledge, the applicant had never been advised by any person, and had not instructed any person, to delay commencing his appeal against sentence until after the sentences for offences 1, 3, 4 and 5 had expired. 41 Senior counsel for the applicant is well and favourably known to this Court and I consider that his explanation for the delay should be accepted and that the Court should proceed on the basis that the commencement of the application was not deferred for tactical reasons. In these circumstances I do not consider that the Court should dispose of the application by refusing leave to appeal. 42 At the hearing of the application it was suggested in the course of the argument that the sentencing judge might have decided to reflect in the sentence for offence 2 most of the criminality in all of the offences and to make the sentences for the other offences relatively short and concurrent with each other and that, even if the sentence for offence 2, considered by itself, was held to be manifestly excessive, the totality of the sentences was not manifestly excessive and was appropriate to reflect the totality of the criminality in all of the offences; and, this being so, the second ground of appeal should be rejected. 43 At the conclusion of the oral hearing of the application counsel were directed to lodge written submissions on the question whether, if the Court were to find that the sentence for offence 2, considered by itself, was manifestly excessive, the Court could nevertheless decline to intervene and dismiss the appeal, on the grounds that the totality of the sentences appropriately reflected the totality of the criminality in all of the offences and no less severe aggregate sentence would be warranted. 44 Pursuant to this direction, written submissions were lodged by both parties. 45 An initial question is whether the sentence for offence 2 was manifestly excessive, considered simply as a punishment for the criminality in offence 2 (but also taking into account the additional offences). 46 As the sentencing judge quantified the combined discount he was allowing for the plea of guilty and the assistance provided by the applicant, it is legitimate to refer to what the putative sentence would have been, before allowing the discount. As I have already noted, the putative sentence would have been six years three months, and not five years six months as assumed by the parties. 47 The methylamphetamine the subject of offence 2 was in resealable bags and was clearly in the applicant's possession for the purpose of supply. The quantity of the drug was 38.09 grams. The trafficable quantity for methylamphetamine is 3 grams and the commercial quantity is 250 grams. 48 I have already upheld the first ground of appeal that the sentencing judge erred in finding that the motive for the offences, and in particular offence 2, was sheer greed. The sentencing judge clearly treated this finding as an aggravating factor. 49 The six additional offences were to be taken into account in sentencing the applicant for offence 2 and two of the additional offences had been committed while the applicant was on bail. The additional penalty because additional offences are taken into account in sentencing for an offence need not be small (Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act (2002) 56 NSWLR 146). 50 On the other hand, four of the six additional offences were for possession of quite tiny amounts of cannabis leaf. The largest of the amounts was 5 grams, whereas under the Drug Misuse and Trafficking Act the "small quantity" applicable to cannabis leaf is 30 grams. Another of the offences was possession of a tiny amount of methylamphetamine (.37 grams). The small quantity prescribed for methylamphetamine is 1 gram. The applicant was a user of both cannabis leaf and methylamphetamine. 51 The remaining additional offence was possession of $2,565 in cash. The agreed facts of the offences include that, when asked about the cash, the applicant told police that he bought scrap metal for his business. By agreeing that this offence should be taken into account in sentencing him the applicant was conceding that the cash was reasonably suspected of having been unlawfully obtained; however, he was not conceding that the cash was in fact connected with drugs. 52 The Court was referred by counsel for the applicant to a number of cases which were collected in what was described as a comparative table of cases. Only limited assistance can be obtained by an examination of other cases but the other cases to which we were referred by counsel for the applicant do suggest that the sentence passed on the applicant was excessive. The other cases to which the Court was referred include R v Decandia (NSWCCA 8 July 1994), R v Smiroldo (2000) 112 A Crim R 47, R v Bacon (2000) 120 A Crim R 28, R v Brown [2001] NSWCCA 367, R v Hofer [2001] NSWCCA 544, R v Fogg [2002] NSWCCA 395, R v Connell [2003] NSWCCA 90 and R v Meres; R v Dineen [2003] NSWCCA 193. 53 In my opinion, had there been no discount for a plea of guilty and assistance, a sentence of six years three months would have been manifestly excessive as a punishment simply for the criminality in offence 2 (and the additional offences) and, consequently, a sentence of three years nine months, after allowing the combined discount, should be regarded as manifestly excessive and I would uphold the second ground of appeal insofar as it relates to the sentence for offence 2. 54 A further question is whether, even if the sentence for offence 2 was, as I have held, manifestly excessive, nevertheless no less severe aggregate sentence would have been warranted to reflect the total criminality in all the offences; so that, if this Court can dismiss an appeal against sentence, where there are sentences for multiple offences, on the grounds that no less severe aggregate sentence would have been warranted to reflect the total criminality in all the offences, that power could be exercised in the present case. 55 I am not persuaded that no less severe aggregate sentence than that imposed was warranted to reflect the total criminality in all of the offences. 56 It is true that all of the sentences for the other offences were made to commence from the same date, that the two longest sentences of 12 months each (for offences 1 and 5) were made fully concurrent with each other and that the lesser sentences of three months for offence 3 and six months for offence 4 were completely subsumed in the longer sentences. 57 On the other hand, the sentence for offence 2 was made fully cumulative on the sentences for the other offences. Of the other offences, offence 3, the firearms offence, was, on the agreed facts and the evidence of the applicant which the sentencing judge accepted, a very minor offence and hardly called for any sentence of imprisonment and offence 4 of supplying 1.35 grams of methylenedioxymethylamphetamine was, for a drug offence, a very minor offence. If there was any inadequacy in the sentences for offences 1 and 5, particularly in making them fully concurrent with each other, that inadequacy was offset by what I consider to be the manifest excessiveness of the sentence for offence 2. 58 As I have reached a conclusion that it is not the case that no less severe aggregate sentence would have been warranted to reflect the total criminality in all the offences, it is unnecessary to determine the question of principle which was the subject of the parties' further written submissions. The Court is indebted to counsel for these submissions, although, ultimately, it was unnecessary to determine the question to which the submissions were directed. 59 As I consider that the applicant's appeal against the sentence for offence 2 should be allowed, it is necessary to re-sentence the applicant for offence 2. Earlier in this judgment I set out the objective facts of the offence and the subjective circumstances of the applicant and I will not now repeat what I said. 60 In my opinion, an appropriate head sentence before allowing a combined discount for the plea of guilty and the assistance provided by the applicant would be 4 ½ years. I would allow a combined discount, as the sentencing judge did, of 40 per cent, producing (with slight rounding off) a head sentence of two years eight months. I would find special circumstances in the circumstances which the sentencing judge found to be special circumstances and I would divide the head sentence between a non-parole period and a balance of the term so that the total of the fixed terms (12 months) and the non-parole period of the sentence for offence 2 bears the same proportion to the total head sentences as that adopted by his Honour (three years to four years nine months). Accordingly, the non-parole period of the sentence for offence 2 would be one year four months and the balance of the term would be one year four months. 61 In my opinion the following orders should be made:-

1. Leave granted to appeal against the sentence for offence 2.
2. Appeal against the sentence for offence 2 allowed.
3. Sentence imposed by the sentencing judge for offence 2 quashed.
4. In lieu thereof sentence the applicant to a non-parole period of one year four months commencing on 29 August 2008 and expiring on 28 December 2009 and a balance of the term of one year four months.
5. Direct that the applicant be released on parole on 28 December 2009. 62 BUDDIN J: I agree with James J.

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