Solicitors:
Legal Aid New South Wales (Applicant)
Solicitor for Public Prosecutions (Respondent)
File Number(s): 2014/370815
Decision under appeal Court or tribunal: District Court of New South Wales
Jurisdiction: Criminal
Date of Decision: 05 February 2016
Before: Blackmore DCJ
File Number(s): 2014/370815
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Judgment
Meagher JA: I agree with Button J.
Rothman J: I have had the advantage of reading, in draft, the reasons for judgment of Button J. I agree with those reasons and with the orders proposed.
Button J:
Introduction
On 5 February 2016, in the District Court of New South Wales at Sydney, Judge Blackmore SC sentenced Daniel Greenyer (the applicant) for two offences to which he had pleaded guilty in the Local Court. The first was that he had engaged in the ongoing supply of a prohibited drug; namely, methylamphetamine. Pursuant to s 25A of the Drug Misuse and Trafficking Act 1985 (NSW), the maximum penalty was imprisonment for 20 years, with no standard non-parole period applicable. The second was supplying a prohibited drug, an offence that carried a maximum penalty of imprisonment for 15 years, pursuant to s 32 of the same Act. Again, no standard non-parole period applied.
Taken into account with regard to the offence of ongoing supply was a charge on a Form 1, pursuant to s 36Y(1)(a) of the Drug Misuse and Trafficking Act. That was an offence of knowingly allowing premises to be used as "drug premises". The maximum penalty for that offence is imprisonment for 12 months.
Background
The agreed facts placed before his Honour may be concisely summarised as follows.
The applicant and the co-offender, Mr Jake Henderson, were living at premises in Alexandria. In March 2013, police came to the home after Mr Henderson suffered a drug overdose. The premises were fortified and secured in ways that readily led to the suspicion that they were being used for some unlawful purpose, in all likelihood the supply of prohibited drugs.
Subsequently, the police engaged in a controlled operation whereby a person was authorised to purchase drugs from the premises. The suspicions of the police were confirmed when, between 1 December 2014 and 10 December 2014, the applicant repeatedly supplied that person with crystal methylamphetamine (commonly known in this country as ice).
On 1 December 2014, $600 cash was provided in return for 0.62 grams at 78.5% purity.
On 3 December 2014, $1,200 cash was provided (with a further $50 provided subsequently) in return for 3.42 grams at 79.5% purity.
On 4 December 2014, $250 was provided in return for 0.43 grams at 80.5% purity.
On 10 December 2014, $1,250 was provided in return for 2.92 grams at 51% purity.
In other words, in total 7.39 grams was actually supplied by the applicant, in return for $3,350.
Finally, on 17 December 2014, the authorised person went to the premises purporting to wish to purchase half an ounce (that is, a little over 14 grams) of the prohibited drug. The co-offender and the applicant agreed to supply the drug to him. Cash in the sum of $2,500 was handed to the applicant, who secured the money in a way that one might infer was intended to eliminate inculpatory scientific evidence.
Shortly thereafter, the applicant was arrested. The co-offender was also arrested, and the premises searched. There the police found well-known indicia of supply, including a large number of resealable bags, a money counter, electronic scales, and $1,000 above and beyond the $2,500 cash handed over shortly beforehand. A small plastic bag containing approximately half a gram of ice was also located. Quite apart from the fortifications, the scales were able to be secreted in the kitchen, which had been specially modified.
In summary then, the applicant actually supplied over 7 grams of a notoriously pernicious drug for the substantial sum of $3,350. He was also content to agree to supply the more significant amount of 14 grams of that drug, and to pocket $2,500 in payment for it. It was accepted on sentence that the offending captured by the two charges was not isolated.
Subjective features
As I have said, the applicant pleaded guilty to both charges in the Local Court, and received an uncontroversial utilitarian discount of 25% as a result.
The story of how it was that the applicant came to be a well-established and effective drug dealer was a sad one. Aged 35 years at the time of sentence, he came from a wealthy family, and had enjoyed a privileged and settled childhood. He excelled academically at primary school, and was privileged to be educated at one of the leading private schools of Sydney. Although a quiet adolescent who was not at the centre of school social life, he did well at high school and enjoyed a number of extra-curricular activities, such as singing in the choir. He had been admitted to University and commenced studying, but, for reasons that were unclear, he subsequently discontinued his studies. He went on to be employed in various positions.
In the meantime, the parents of the applicant separated, and both of them remarried. His mother suffered from depression, which culminated in her suicide in October 2015 (although the evidence was that her tragic death was not linked to the plight of her son).
When he was about 28 years of age, the applicant told his mother that he was gay, and he later told his father when aged in his early 30s. Around this time he had commenced his first long-term romantic relationship with another man who, regrettably, had a burgeoning problem with prohibited drugs. That person broke the relationship off in order to keep the truth from the applicant, who at that stage was very much opposed to drugs, and completely inexperienced with regard to them. Ultimately, the decision was taken by the two of them that the relationship would continue, and that the applicant would partake of prohibited drugs recreationally. Those drugs included ice and, predictably, things soon spiralled out of control. Eventually, the applicant was injecting ice on a daily basis, and supplying to others.
In more recent years, the applicant had commenced a long-term romantic relationship with the co-offender, another drug user. The drug use of the applicant became even worse during that relationship.
The applicant was refused bail between December 2014 and February 2015, but thereafter had attended a residential rehabilitation centre for many months, and taken remarkable steps towards freeing himself from prohibited drugs. By the time of the imposition of sentence, there were firm grounds for optimism about his future, not least of which was his complete lack of prior criminality.
Aspects of sentence
The remarks on sentence may be summarised as follows.
His Honour rejected a submission made on behalf of the applicant that exceptional circumstances had been established that could lead to a sentence other than full-time imprisonment.
His Honour noted the renovations of the house directed towards minimising detection, and regarded them as an aggravating feature, in that they showed a settled and organised course of conduct.
His Honour noted that the applicant had no prior criminal record whatsoever, and that sound steps had already been taken towards rehabilitation. On the other hand, his Honour noted that there had been something of a considered choice on his part to dabble in prohibited drugs, with disastrous results.
A finding of special circumstances was made, on the basis of the need to reinforce the rehabilitation already achieved.
His Honour also proposed that a significant combined backdate be granted, not only to reflect the period spent in custody whilst refused bail, but also to reflect the period of approximately 12 months subject to the strictures of the residential rehabilitation centre.
His Honour decided to impose an aggregate sentence. For the ongoing supply (taking into account the Form 1 offence), a head sentence of imprisonment for 2 years and 3 months was indicated. For the supply charge founded upon an agreement to supply, a head sentence of imprisonment for 18 months was indicated.
Ultimately, an aggregate head sentence of imprisonment for 3 years with a non-parole period of 1 year and 9 months was imposed. That sentence was backdated to commence on 19 July 2015, with the result that the applicant will be released to parole on 18 April 2017.
Grounds
The following grounds were pressed at the hearing of the application:
Ground 1: The learned judge erred in his calculation of the commencement date.
Ground 3: The sentence is manifestly excessive.
Ground 1
As for ground 1, it was agreed between the parties that his Honour made a mathematical slip in calculating the backdate (regrettably, that slip was not corrected by either lawyer appearing at first instance).
It was further agreed that the commencement date of the aggregate sentence should be changed from 19 July 2015 to 19 June 2015.
Finally, it was agreed that correction of that confined error would not call for a full reconsideration of the sentence pursuant to s 6(3) of the Criminal Appeal Act 1912 (NSW), in accordance with what was said in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42].
I consider that all of those agreed positions should be accepted. Accordingly, I propose that ground 1 be upheld, and that the aggregate sentence be adjusted with regard to its commencement date. I would also accept the joint submission that that exercise does not call for consideration of resentence generally.
Ground 3
As for ground 3, the focus of counsel for the applicant at the hearing was very much on the fact that the aggregate head sentence of imprisonment for 3 years means that there was an implicit accumulation of 9 months upon the indicative head sentence of 2 years and 3 months for the ongoing supply. That cumulation is derived from the indicative head sentence of 18 months of the agreement to supply. Relying upon McKellar v R [2010] NSWCCA 295, it was said that there had not been extensive analysis of the question of accumulation in the remarks on sentence, in circumstances in which the two separate charges were very much factually connected. It was said that, analysing the indicative sentences underlying the aggregate sentence in that way, one sees that the sentence for the agreement to supply was manifestly excessive, that attribute in turn affecting the aggregate sentence ultimately imposed.
I do not accept that submission, for the following reasons.
First, it is true that, as a matter of prosecutorial discretion, the agreement to supply could have been a "sub-offence" of the ongoing drug dealing. But it is hardly surprising that it was not: it was a different kind of supply (agreement as opposed to actual); it featured a downpayment that was double any previous cash purchase; and (at over 14 grams) it was over four times greater than the largest amount actually supplied (3.42 grams).
Secondly, the agreement was entered into in the context of well-organised and well-resourced dealing in a prohibited drug.
Thirdly, the broad discretion of sentencing judges with regard to questions of concurrence and cumulation (whether explicit or, by way of an aggregate sentence, implicit) is very well established. I consider that the discretionary decision to cumulate implicitly by nine months was well open to his Honour. Neither the analysis nor the result in McKellar v R demonstrates the contrary.
Fourthly, an effective extra period in custody of nothing more than nine months, referable to an offence that related to over $2,000 worth of ice, cannot be impugned as excessive. Nor can an indicative sentence of 18 months.
Fifthly and finally, whilst it is true that analysis of indicative sentences is not inapposite, the focus must ultimately be on the aggregate sentence actually imposed. Despite the destructive effect that ice has had upon the life of the applicant, and the sound steps that he has taken towards rebuilding his life, I consider that it cannot be said that either the aggregate head sentence of 3 years or the aggregate non-parole period of 1 year and 9 months is excessive, let alone manifestly so. Indeed, the aggregate non-parole period has built into it a measure of (with respect, entirely appropriate) leniency.
I would dismiss ground 3.
Proposed orders
Because the only adjustment to be made to the sentence is with regard to its commencement date, I do not propose that there be any interference with the indicative head sentences of 2 years and 3 months and 18 months.
I propose the following orders:
1. Leave to appeal granted.
2. The aggregate sentence imposed by Judge Blackmore SC is quashed.
3. The applicant is sentenced to an aggregate head sentence of imprisonment for 3 years, with a non-parole period of 1 year and 9 months, to date from 19 June 2015.
4. The applicant will be released to parole on 18 March 2017.
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Decision last updated: 01 December 2016