Haule v R

The facts

1. These were not disputed. The following account is taken from the statement of agreed facts.
2. On 28 November 2012 police executed a search warrant at the applicant's house. When they arrived, officers asked the applicant if there was anything in the house, to which he responded, "it's all on the bed. You'll see it". In the bedroom, the police found 17 clear plastic resealable plastic bags containing cannabis. In the kitchen they found more cannabis, stored inside a cupboard as well as in a vacuum sealed package in the spare room. Together, the cannabis weighed 8.7kg. Police located also a large storage bag in the garage containing 80 empty vacuum bags smelling strongly of cannabis. The applicant told police that some of these bags had previously contained cannabis that he had either sold or used personally over the previous eight months. He indicated that the bags would have contained from between two and eight pounds but that, at times, they would be double or triple bagged to conceal the strong odour. The agreed facts noted that, using the lowest weight provided by the applicant, on the assumption that all of the bags were double bags, the total quantity of cannabis was 36kg. Allowing for the applicant's claim that he had used some of it, the applicant would have supplied close to 25kg of cannabis over the preceding eight months. This was said in the agreed facts to relate to count one. However, whilst the facts certainly concede the supply of cannabis beyond the quantity found in his possession of 8.7kg, it is clear that the calculation assumed facts which were not admitted. Firstly, the applicant only admitted that "some of these bags had previously contained cannabis" and that "at times they would either be double or triple bagged". But this is not an admission that all the bags were used. A fact which is adverse to an offender cannot be based upon an assumption. It may be established beyond reasonable doubt by evidence or admission but an admission as to a calculation based on an assumption which is not admitted is clearly insufficient. Furthermore, in respect of cannabis leaf, the indictable quantity is 1kg whilst the commercial quantity is 25kg. The 8.7kg of cannabis in the applicant's possession at the time of his arrest together with "close to 25kg of cannabis" suggested to have been supplied during the period comprehended by the charge would have amounted to a commercial quantity of the prohibited drug, which was not alleged. It seems to me that the appropriate approach for present purposes to this issue is to sentence the applicant upon the basis that he had 8.7kg of cannabis in possession at the time of his arrest, mostly but not all for the purpose of supply (he was a heavy user) and that he would have supplied a significant but unknown quantity of cannabis leaf during the previous eight months. He cannot be sentenced on the basis that he had either in his possession for supply or had in fact supplied as much as 25kg.
3. Returning to the facts, the applicant directed police to search the kitchen, where they located 12 resealable bags, one of which contained an ecstasy tablet, whilst inside the fridge police also located two vials of steroid medication and, inside a built in wardrobe in the spare room, four small resealable bags containing cannabis seeds (otherwise not quantified). Possession of these substances comprised the three charges on the Form 1. Also in the kitchen the applicant directed police to a plastic bag containing cocaine in a corner cupboard. This, together with two small knotted bags of cocaine found in the wardrobe in his bedroom totalled 74.6g of cocaine at 65 per cent purity and constituted the second charge. Police found wads of cash of $15,000 and $6,400 in two separate bags in the bedside table of the applicant's bedroom, the applicant admitting that this was the proceeds of the sales of drugs. This constituted charge three.
4. The applicant was arrested, taken into custody, and ultimately participated in an electronically recorded interview confirming the admissions he had made during the execution of the search warrant.
5. On 16 October 2012 he had committed the offence of driving whilst disqualified and, on 26 March 2013 (whilst he was in custody on the present charges) he was sentenced to a term of 6 months imprisonment commencing on 28 November 2012. Accordingly, as the primary judge observed, the applicant had been in custody in respect of the drug offences alone since 27 May 2013.

Subjective features

1. These are not controversial. The applicant is now 38 years of age. His criminal record was characterised by the primary judge as "minor" comprising convictions for driving whilst disqualified, stating a false name, exceeding the speed limit, affray, obtaining money by deception, displaying unauthorised number plates, driving whilst licence suspended, using an uninsured and unregistered motor vehicle and receiving stolen property. So far as the sentence of imprisonment for the offence of driving whilst disqualified is concerned, the learned primary judge considered that a gaol sentence may well not have been imposed had he not been in custody for the present charges. Mr Barrow, counsel for the applicant in this Court, points out that his previous offence was three years earlier and, but for his being bail refused on the present charges, a non-custodial disposition could well have resulted but was not available as he was in custody. The Crown submits that he would likely have been sentenced to imprisonment at all events. In my view this Court should approach the matter in the same way as did the primary judge.
2. Tendered on the sentence proceedings was a drug and alcohol report prepared by Corrective Services. It noted that the applicant scored "extremely high in the range which requires more intensive treatment in some domains specifically around his cannabis and cocaine use". It noted his strong desire to address his alcohol and drug use and had expressed an interest in attending a rehabilitation program within the community. Programs are available within the custodial setting, providing he is assessed as suitable for them. A report from Mr Bradley Jones, a forensic psychologist, was also tendered. The history in that report was used as a basis for the primary judge's consideration of his background. The following is drawn from her Honour's reasons for sentence.
3. The applicant was raised in a family of African descent although he, himself, is Caucasian. He was born in Australia and his mother moved to Tanzania, ultimately returning to Australia when he was aged four years. He enjoyed a stable and loving upbringing and speaks highly of his mother, a devout Catholic and his stepfather. He completed year 10 at school and went on to complete a mechanic's course, undertaking an apprenticeship in a repair shop. Thereafter he worked for a number of mechanics and commenced his own business which, however, failed after he lost his license as a result of driving offences. The applicant commenced consuming alcohol at the age of 18 and to abuse marijuana when he was 22. His consumption of this drug increased significantly over the next 12 years. He has experimented with ecstasy and has also been a heavy user of cocaine. He experienced a significant trauma when, in 1999, one of his stepbrothers petrol bombed the residence where he and another brother were staying and both men suffered significant emotional distress and physical injuries as a result. Following the petrol bombing and the loss of his business, his drug addiction increased significantly. He had been receiving psychological treatment for some four years before his arrest but continues to suffer flashbacks and nightmares. The report notes that the applicant has expressed shame and regret at his offending behaviour saying, "I was blinded by drugs, I'm glad I was caught, I was over the top". In the opinion of the psychologist, the applicant suffers from anxiety and depression and needs cognitive behavioural therapy, drug release prevention counselling, cognitive training and monitoring upon his release from custody by the Community Corrections Service. The psychologist considered that he has insight into the basis of his offending behaviour, his maladaptive thought processes and his depression and noted his willingness to engage in a treatment program. He has established a connection with the chaplaincy service at the correctional centres where he has been held and appears to have been doing well in prison, engaging with the drug and alcohol counsellor and undertaking studies which will be useful on his release.
4. At the time of his arrest the applicant was in a relationship and has a four year old child from that relationship.
5. It is a significant matter to be taken into account that, were it not for the applicant's admissions that he had been supplying cannabis over something like eight months before his arrest and his candid estimate of the quantity involved, it would have been virtually impossible for the Crown to prove the extent of his criminal activities over and above what was found in his possession, although no doubt it could be inferred beyond reasonable doubt that he had been trading in an unknown quantity in addition to that found in his possession. The primary judge considered that the applicant's criminal antecedents, as I have mentioned, were relatively minor and did not disentitle him to leniency. Her Honour also concluded that he was truly remorseful and contrite but his prospects for rehabilitation were guarded because of the extent of his addictions. She considered that the applicant was in need of intensive rehabilitation for a lengthy period if he were to become and remain law abiding. I agree with these conclusions which were not, at all events, really disputed. The need for a long period of supervised parole justifies a finding of special circumstances warranting a variation of the calculus prescribed by s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Objective seriousness

1. The scale of drug supply is obviously significant and naturally focuses attention on the amount of cannabis involved. I have already discussed the difficulties in determining this quantity. It is fair to say, as the Crown submitted, that his supply was not an isolated event and could not be regarded as a temporary aberration. The supply of significant quantities of cannabis is plainly a serious offence, marked by the maximum term of imprisonment its commission attracts. It took place over a period of eight months and produced at least the cash which was found in the applicant's possession on his arrest. The objective seriousness of the applicant's offence is significant but very far short of the worst case. Since, essentially, he is to be sentenced in respect of the marijuana offence for selling drugs, it appears to me to be double counting to punish him additionally for dealing with the proceeds of those sales. That the primary judge made the sentence for that offence wholly concurrent with the supply of marijuana charge is not surprising and this Court should take the same approach.

The other offences

1. It was submitted by the Crown in this Court that there should be a degree of accumulation in respect of the cannabis and cocaine charges, pointing to Luu v R [2008] NSWCCA 285 in which the applicant was convicted of the deemed supply of 19.72g of crystalline methylamphetamine and 7.29g of heroin. The Court observed - "[32] Possession of the two different kinds of drugs giving rise to the 'deemed supply' offences is not properly regarded as one episode of criminality. There were two deemed supplies, as there would be two (or more) actual supplies were the different drugs to be sold to two (or more) purchasers in the course of the applicant's drug dealing ..." (The appellant in that case had also been found in the possession of a prohibited and an unregistered pistol.) Dealing with the drug offences, the sentence imposed for the heroin offence was 2 years imprisonment with a non-parole period of 1 year and 4 months and, for the crystalline methylamphetamine offence, imprisonment for 3 years with a non-parole period of 2 years. They were accumulated by 6 months. It is apparent that the Court did not consider this accumulation as suggestive of error.
2. It is relevant to note, in respect of the overall quantity of cocaine, that the history he gave to the psychologist, which was not sought to be disputed either below or in this Court, was that the applicant had commenced consuming cocaine for about two years before the offence, rising to 7g daily. The cocaine, which he was deemed to have in possession for supply, was not an insignificant quantity and it is appropriate to accumulate the sentence for this offence to some degree on the sentence to be imposed in respect of the supplying marijuana.
3. So far as the Form 1 offences are concerned, it seems to me virtually certain that, either individually or taken together, they would not have resulted in a custodial sentence. Accordingly, it is not appropriate to add a period of custody in respect of them. Nor do they indicate anything of significance in relation to the substantive offences.

Assessment

1. Mr Barrow brought to the Court's attention the Judicial Commission's statistics for supply of less than a commercial quantity of cannabis. Although the sample is reasonably high (87 cases), since it is not known what proportion of these involve a quantity of drugs greater than the indictable quantity, let alone the quantities themselves, they are not of much use. The statistics of cases involving the supply of a commercial quantity of cannabis leaf (which of course must be regarded as much more serious, having a maximum term of imprisonment of 15 years), involve 24 cases. Only 58 per cent of these offences attracted prison sentences, which is rather surprising. In 14 cases, the sentences ranged between 2 years and 4 years, 6 months. Although we were given the figures for non-parole periods, I do not think these are at all useful, given the very wide range of special circumstances that might or might not have been applied. The statistics are informative at a somewhat doubtful level of significance. A number of particular cases were also referred to but I do not regard them as presently useful and it is unnecessary to discuss them further.
2. In my view the appropriate commencing point for sentencing the applicant in respect of the cannabis offence is 5 years and 6 months which, with a 25 per cent discount, yields an overall sentence of 4 years and 9 months. It is in the public interest as well in that of the applicant to find (as did the primary judge) that special circumstances justify varying what I have called the statutory calculus to provide for an extended period of supervision, which the applicant will need if he is to maintain an appropriate level of treatment for his drug addiction. Accordingly, I would impose a non-parole period of 2 years and 6 months. The offence for the proceeds of crime should be wholly concurrent with the other sentences. The cannabis supply offence should in my view be accumulated by four months on the cocaine supply offence. I therefore propose the following orders - 1. Leave to appeal granted. 2. Set aside the sentences imposed by the District Court on 6 June 2014, in lieu thereof, sentence the applicant as follows: 1. for the supply of cocaine on 28 November 2012, a term of imprisonment of two years commencing on 28 November 2012 and expiring on 27 November 2014; 2. for the supply of cannabis leaf between 29 February 2012 and 28 November 2012 (taking into account the offences on the Form 1) a non-parole period of 2 years and 6 months commencing on 28 March 2013 and expiring on 27 September 2015 with a balance of term of 2 years and 3 months commencing on 28 September 2015 and expiring on 27 December 2017; and 3. for the offence of dealing with the proceeds of crime a term of imprisonment of twelve months commencing on 28 March 2013. 4. The first date upon which the appellant is eligible to be considered for parole is 27 September 2015.
3. FAGAN J: I agree with Adams J.

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