168 A Crim R 41
Markarian v The Queen [2005] HCA 25
228 CLR 357
MMK v R [2006] NSWCCA 272
164 A Crim R 481
R v Hammoud [2000] NSWCCA 540
Source
Original judgment source is linked above.
Catchwords
168 A Crim R 41
Markarian v The Queen [2005] HCA 25228 CLR 357
MMK v R [2006] NSWCCA 272164 A Crim R 481
R v Hammoud [2000] NSWCCA 540
Judgment (7 paragraphs)
[1]
The applicant's personal circumstances
The applicant was born in 1942 and so was aged 68 at the time of the offending and 72 at the time of sentencing.
He has a significant criminal history. He was sentenced in the District Court in 1989 and 1992 for a number of offences of supplying heroin and cocaine. He received terms of imprisonment, the longest being 6 years. In 1993 he was sentenced for a multitude of offences receiving a fixed term of imprisonment for 12 months. There are some further offences in his subsequent criminal history but nothing terribly serious or of present relevance.
A Pre-Sentence Report included that the applicant had lived at home with his mother for much of his life except when in custody or during the period of a relatively brief marriage. He had supported his mother financially and physically. He had qualifications as an electrician but had not worked in recent years and was in receipt of the aged pension.
Dr Richard Furst, forensic psychiatrist, provided a report for sentencing. He noted that the applicant was single, on an aged pension, and had been living with his mother when arrested. His mother was frail, suffering with a variety of physical health issues. The applicant related a history of being a victim of serious crime in 2005, 2007 and 2008. He had been assaulted, shot in the leg when he could not remember his PIN after being abducted and taken to a bank, and the subject of a home invasion. He also told Dr Furst of having witnessed a suicide in Parklea Correctional Centre in 2011 whilst on remand for the present matter. He was concerned about the possibility of his mother dying whilst he was in custody; his father having died during a previous period of incarceration.
The applicant told Dr Furst about various physical health issues including prostate cancer (no evidence of metastases) and macular degeneration.
Dr Furst noted that the applicant had a paranoid view of police, the courts and probably Legal Aid NSW (for example, the purpose of the court was "to get a conviction at all costs" and there was a "presumption of guilt") but Dr Furst did not think the applicant's beliefs were held with a delusional level of conviction. He found no indications of a major mental illness such as schizophrenia or bipolar affective disorder. He did, however, make diagnoses of Post-Traumatic Stress Disorder and Paranoid Personality Disorder.
Dr Furst recommended the use of antidepressant medication or a low dose of an antipsychotic medication to reduce the applicant's anxiety and stress. He suggested referral to a psychologist to help him deal with his poor coping skills, chronic PTSD symptoms and his paranoid personality disorder. Drug and alcohol counselling was also indicated. He thought that his prostate cancer would reduce his life expectancy. Prospects of rehabilitation were dependent upon his acceptance of his mental health issues and treatment.
It is significant that Dr Furst did not indicate any connection between the applicant's health issues, mental or physical, with his offending.
Medical reports were tendered before the sentencing judge but their effect appears to be adequately summarised in Dr Furst's report.
There was a positive reference by Sister Marcia Cox of the Parklea Correctional Centre Chaplaincy Service before the judge which referred to the applicant's completion of educational and other courses and his attendance at religious services.
The Pre-Sentence Report included an assessment of the applicant having a low to medium risk of re-offending. He denied any offending on his part, both in relation to present and past matters. He was said to have been reluctant to provide information on issues he may need to address on the basis that it may jeopardise appeals. The reporting officer said that as a result "it is difficult to identify factors that may have contributed to his offending behaviour or to develop a case plan with regard to any future supervision orders".
The judge found that the applicant's prospects of rehabilitation were "guarded at best and most probably … poor". Despite the fact that the author of the Pre-Sentence Report was somewhat negative about supervision, the judge was prepared to accept that the applicant would need a prolonged period of supervision and treatment in the community to attempt his rehabilitation and this, together with his age and ill-health, warranted a finding of special circumstances so as to reduce the non-parole component of the sentence.
[2]
Grounds 1 to 3
At the hearing of the application today, Mr Glissan QC indicated in response to a question from the bench that if Ground 4 was to be upheld, no determination of Grounds 1 to 3 was necessary. Accordingly I will proceed directly to Ground 4.
[3]
Ground 4 - manifestly excessive sentence
The applicant acknowledged that to make good a ground asserting that a sentence is manifestly excessive he bore a burden of persuading the Court that the sentence was unreasonable or plainly unjust: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 371 [25].
The challenge to the sentences under this ground focussed on the accumulation of the sentence for count 2 by 3 years upon the sentence for count 1; it being contended that there should not have been any accumulation at all.
The judge explained why he accumulated the sentences:
"There is an argument that these supplies represent just two faces of the one crime. On this basis should the sentences be wholly concurrent? The other argument is of course these different drugs are each different crimes, each objectively serious and each deserving of a significant sentence. I do not think that the criminality of supplying methylamphetamine is wholly contained within the crime of supplying heroin. I have decided therefore even if it is only in the application of the principle of totality that there should be some concurrency."
The Crown submissions correctly (with respect) identified that the decision as to concurrency and accumulation of sentences is discretionary (R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66) which is generally circumscribed by a proper application of the principle of totality (MMK v R [2006] NSWCCA 272; 164 A Crim R 481 at [13]). The question is whether the sentence for one offence can comprehend and reflect the criminality for the other offence (Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 at [27]).
The Crown argued that the applicant's business in supplying drugs was expanded by his supplying different drugs to different client bases; the heroin being supplied to three purchasers and the methylamphetamine being supplied to a completely different purchaser. Accordingly, accumulation of the sentences was entirely open to the judge in the exercise of his discretion.
[4]
Determination
The facts and associated circumstances relating to the offence in count 1 established on their own that the applicant was substantially involved in a business of drug dealing. The fact that he also supplied another type of drug added an additional dimension to that business, but the additional criminality was not all that substantial.
Putting aside the preceding grounds, there was no complaint raised under this ground about the actual length of the individual sentences. The argument was confined to the degree of partial accumulation; a period of 3 years.
In my view the period of accumulation is excessive. There should have been some accumulation, but to a much more modest degree.
[5]
Re-sentencing
The applicant had very little going for him in terms of mitigation aside from some aspects of his personal circumstances. I have in mind his age and his physical and mental health issues. I am also mindful of the stress arising from his concern about his elderly and frail mother who he has lived with for much of his life which, no doubt, makes his incarceration more stressful. But there cannot be any finding of remorse; prospects of rehabilitation cannot be said to be good; and there cannot be said to be an unlikelihood of reoffending given the age at which the present offences were committed and the applicant's prior history of similar offending. And, of course, the applicant is not entitled to any reduction of sentence on account of any facilitation of the course of justice.
I accept the appropriateness of sentences for each offence of 7 years imprisonment but I would reduce the degree of accumulation from 3 years to 1 year. The finding by the sentencing judge of special circumstances should be maintained. However, due to the degree of accumulation I propose, the non-parole period of the sentence for count 2 will require modification.
[6]
Orders
I propose the following orders:
1. Leave to appeal allowed.
2. Appeal against sentence upheld.
3. Confirm the sentences imposed in the District Court on 27 May 2014 except insofar as to specify a non-parole period for count 2 (ongoing supply of methylamphetamine) of 4 years and specify that that sentence commence on 1 September 2011. The non-parole period for count 2 expired on 31 August 2015. The applicant is now eligible for release on parole.
For clarity, it should be confirmed that the new overall sentence is one of 8 years (from 1 September 2010 to 31 August 2018) with a non-parole period of 5 years (from 1 September 2010 to 31 August 2015).
FAGAN J: I agree with R A Hulme J.
[7]
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Decision last updated: 08 December 2015
Parties
Applicant/Plaintiff:
Greer
Respondent/Defendant:
R
Legislation Cited (1)
Drugs Misuse and Trafficking Act 1985(NSW)s 25A
Cases Cited (5)
Judgment
WARD JA: I agree that the orders proposed by R A Hulme J should be made for the reasons that his Honour has given.
R A HULME J: Mr George Greer ("the applicant") was found guilty on 7 May 2013 after a jury trial of two counts of ongoing supply of prohibited drugs. He was sentenced on 27 May 2014 by his Honour Acting Judge Freeman.
The ongoing supply of a prohibited drug (that is, on more than three separate occasions supplying a drug for financial or material reward) is an offence contrary to s 25A of the Drugs Misuse and Trafficking Act 1985 (NSW). The maximum penalty is imprisonment for 20 years and/or a fine of $385,000.
For the ongoing supply of heroin he was sentenced to imprisonment for 7 years with a non-parole period of 4 years commencing on 1 September 2010. For the ongoing supply of methylamphetamine he was sentenced to 7 years with a non-parole period of 3 years commencing on 1 September 2013. The overall sentence is one of 10 years with a non-parole period of 6 years.
The applicant seeks leave to appeal against the severity of sentence upon the following grounds:
1. The learned judge erred in law in holding that the circumstances surrounding the offences were matters which could be taken into account in properly assessing the overall criminality of the appellant (R v Redfern [2012] NSWCCA 178) [Remarks at pages 6,8].
2. The learned judge erred in law in the proper consideration of s 25A(1) and the application of R v Yang [sic] and associated cases [Remarks at pages 8,9].
3. The learned judge erred in not allowing sufficient weight to the subjective case advanced for the appellant, especially his age and health, and the period of time spent in custody on remand, in determining the appropriate punishment for the offences.
4. That in the whole of the circumstances the sentence imposed was manifestly excessive.