Hinchcliffe v R

● the applicant left school at the age of 15, during Year 9;

● the applicant has five children, of whom one, a 15 year old boy, was born when the applicant was 20 years of age, three are stepdaughters (aged 8, 5 and 3 years), being daughters of his current de facto partner, and one is the 7 month old son of the applicant and his de facto partner;

● the applicant "places tremendous importance on his family", and feels ashamed at the impact of his conduct on them;

● the applicant has engaged in various forms of employment and is in good physical and mental health.

While it was not expressly stated, the written submissions clearly implied that the applicant suffered from a drug addiction, the nature of which was unspecified, and which he plans, on release, to address. 12 Further information was provided, by way of submissions, from the bar table by the applicant's legal representative. 13 The applicant was born in May 1973, and was 35 years of age at the time of the offences, 36 at sentencing. He has a lengthy criminal history, which includes convictions for dishonesty, such as possession of goods reasonably suspected of being stolen, larceny, and receiving, as well as some drug offences. The record is littered with entries concerning the use of motor vehicles, including, extraordinarily, no less than 10 instances of driving whilst disqualified and others of driving whilst unlicensed, or subject to licence cancellation. His Honour was told, in submissions, that the applicant experienced back pain, for which he was prescribed legitimate drugs, but that, in addition to those, he "self medicated" with illegal drugs such as amphetamines, and the other prescription drugs of the kind stolen from the pharmacy and found in his possession. 14 The applicant had earlier been arrested, on or about 31 August 2008, and charged with possession and supply of prohibited drugs. He was, at the time of these offences, on bail in respect of those. In respect of the 2008 offences he was sentenced in the Local Court on 11 February 2009, to a total period of imprisonment for 15 months commencing on 6 January 2009, with a non-parole period of 12 months, expiring on 5 January 2010. 15 The applicant's legal representative went on to tell the sentencing judge that the applicant lives in a de facto relationship, and to refer to the five children; of his 15 year old son his legal representative said that he maintains regular contact with him "as best he can". His Honour was told that the applicant's de facto wife has three daughters of whom the applicant is not the biological father, but for whom he assumes parental responsibility; and, that, with his de facto, he has a seven month old son "who he dotes on". His Honour was told that the applicant was "incredibly ashamed" of his actions, and was conscious that: "… he has let his children down, his defacto wife down and in turn he's let himself down."

The remarks on sentence 16 The sentencing judge recounted the facts and noted the seriousness and prevalence of offences of the kind. He considered, correctly, that that emphasised the need for the sentences to take account of both general as well as specific deterrence. He observed that the applicant's prior convictions, both for receiving and drug offences, "must mitigate any leniency from the penalty". He turned his attention to s 21A(3) of the Sentencing Procedure Act; he found, having regard to the applicant's history, little indication of rehabilitation. He noted the pleas of guilty, which he held to be late (according to the written submissions, the guilty plea to the receiving offence was entered a few days before the date fixed for trial and the guilty pleas for the drug offences on the day fixed for trial) but acknowledged that the indictment included the more serious offence of break, enter and steal. 17 He made an allowance, unquantified, for the utilitarian value of the pleas of guilty: R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383. 18 With respect to the offence of receiving, his Honour said: "The offence of receiving stolen goods presupposes an illegal act and therefore in effect, the offender has by his support for looking after the goods, the subject of a theft, has in effect supported the person who stole the goods. Whilst from what he said to police at the time that he was woken by a friend in the middle of the night, who dumped the stolen goods and equipment on him, it does raise the suggestion that this offence may be categorised as a passive offence. But in reality, such an offence should never be seen merely as a passive offence, by way of passive support for a friend. In fact, many offenders often cannot perpetrate such offences without people like the offender before me now to help them with the care of stolen goods"

and: "The drugs involved appear to have been drugs taken from a pharmacy, and are drugs which can only be obtained legally according to relevant medical prescriptions for relevant medical treatment. They were not held by the offender under a relevant medical authority, instead they were for use and supply illegally. This must raise the level of seriousness for the offence of receiving, where the goods are the subject of quite stringent legislative regulation, for the protection of the community." (ROS 4.9-5.1) 19 With respect to the drug offences, he said: "The courts have recognised that the use of mid range drugs, like amphetamines for other than expressed medical reasons, causes great harm to the community and there is a need for sentences that have an effect as a general deterrence."

and: "For the prohibited drugs, the law states fifteen years. In each case there was a substantial amount of prescription quality, so that must be seen at the top end of objective seriousness." 20 His Honour noted that the applicant was on bail at the time of the offences, and considered that, in order for there to be "no advantage" from offending whilst at conditional liberty, the sentence he was to impose must commence at the expiration of the term subsequently imposed in respect of those offences. 21 He proceeded to impose the sentences I have mentioned above.

The grounds of the application 22 The grounds of the application were pleaded as follows: "1. His Honour erred by engaging in an impermissible double jeopardy in sentencing the applicant for the offence of receiving stolen property. (Count Two)

2. His Honour erred in failing to properly assess the objective seriousness of the offence of receiving stolen property. (Count Two)

3. His Honour erred in the assessment in the objective seriousness of the offences of supply prohibited drug. Specifically, his Honour has: (a) Made inappropriate reference to the type of drugs (as 'mid range'),

(b) Regarded the quantity of drugs as either the sole or principal determinant of objective seriousness,

(c) Failed to give appropriate consideration to the applicant's role in the offences, and

(d) Made a global assessment of objective seriousness instead of assessing the objective seriousness of each individual offence.

4. His Honour erred in either: (i) Failing to give reasons for finding special circumstances with respect to Counts Three, Four, Five and Six; or alternatively

(ii) Finding special circumstances at all with respect to these counts; or alternatively

(iii) Lapsing into mathematical error, intending not to find special circumstances with respect to these counts." 23 On the hearing of the application leave was granted to the applicant to add a further ground of appeal, complaining that, as a result of excessive accumulation, the overall sentence imposed was itself manifestly excessive.

Ground 1: "impermissible double jeopardy" 24 In support of this ground reliance was placed upon the second of the passages in the Remarks on Sentence extracted above at [18]. It was then submitted: "6. The applicant stood for sentence for a number of counts of supply prohibited drug. The basis of these other offences was possession for the purposes of later supply. His Honour has subjected the applicant to an in (sic) impermissible double jeopardy. In Pearce v The Queen [[1998] HCA 57]; 194 CLR 610 the judgment of McHugh, Hayne and Callinan JJ at [40] stated: '[40] To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts.'

7. His Honour has contravened the above sentencing principle in the present matter." 25 Although no mention was made of it in the written submissions, it seems that the substance of this ground is drawn from the principle stated in Nahlous v R [2010] NSWCCA 58. There the Court held that it was not open to the prosecution to charge, under Commonwealth legislation, an offender with the sale (or with offering to sell) unauthorised items, and also with dealing in the proceeds of crime, where the proceeds of crime alleged were the very money received as a consequence of the sale. The Court referred to Thorn v R [2009] NSWCCA 294 in which an offender had been charged with taxation fraud, and also with dealing with money obtained as a consequence of the fraud, where that offender "was merely accessing the funds that he had derived from the frauds". In both cases, the Court (in Nahlous) held: "… the offence to a certain extent concerned the profits of the applicant's own criminality …"

and the offender being charged with both offences resulted in a miscarriage of justice. The Court considered that charging both offences, in the relevant circumstances, amounted to an abuse of process. 26 However, the Court also said: "17 We appreciate that a person can by the one act commit two offences and, where the two offences address different aspects of the criminal conduct, there is nothing wrong with prosecuting the two offences or, subject to the principle of totality, with imposing separate sentences for the two offences. But in our view the receipt of the money as a result of the sale did not result in a separate act of criminality that warranted a separate charge and a separate penalty … We believe that in the circumstances of this case it was oppressive to charge the applicant with both the sale of the [items] and the receipt of the money as a result of the sale. That is because in our view the offence of sale encompassed the criminality of possessing the proceeds of the sale."

That is a long way from the present case. 27 The act of criminality in receiving stolen property (even where the stolen property happens to be drugs) is quite different from the act of criminality in possessing a drug for the purpose of sale. Even without the applicant's admissions, it would have been clear that the possession, deemed by s 29 of the DMT Act to be for the purpose of sale, was a quite different act from the act of receiving the drugs. 28 Moreover, while the first and second drug charges nominated drugs also identified in the receiving charge (morphine and dexamphetamine), the third and fourth nominated drugs not named in that charge on the indictment. (I recognise that it is possible that these are the same drugs under a different name, but there is no evidence to that effect.) 29 In my opinion, there was no element of double jeopardy in the manner in which his Honour treated the receiving offence.

Ground 2: assessment of objective seriousness of receiving 30 In support of this ground the applicant again relied on that passage of the Remarks on Sentence extracted in [18] above. The complaint that was then made on his behalf was: "9. Whilst his Honour refers to the level of objective seriousness being 'raised' he does not at any time come to a determination of what the level of objective seriousness is."

It was submitted that: "It is always necessary for a sentencing Judge to assess the objective seriousness of an offence before imposing any sentence." 31 A consideration of objective seriousness has always been an essential part of the sentencing process. However, it has only been since the introduction of Div 4 Pt 1A of the Sentencing Procedure Act (providing, in respect of certain specified offences, for standard non-parole periods) that, in respect of those offences to which that Division applies, a more precise evaluation of where on a scale of objective seriousness an offence sits has been necessary: Georgopoulos v R [2010] NSWCCA 246 at [30]-[32]; R v Pickett [2010] NSWCCA 273 at [47]. 32 Receiving is not an offence to which Pt 4 Div 1A applies. The task of a sentencing judge in assessing objective seriousness is to appreciate those circumstances relevant to objective seriousness, balanced against any mitigating features that may appear. 33 In fact, his Honour said rather more than has been attributed to him. He said: "The offence of receiving stolen goods presupposes an illegal act and therefore in effect, the offender has by his support for looking after the goods, the subject of a theft, has in effect supported the person who stole the goods. Whilst from what he said to police at the time that he was woken by a friend in the middle of the night, who dumped the stolen goods and equipment on him, it does raise the suggestion that this offence maybe categorised as a passive offence. But in reality, such an offence should never be seen merely as a passive offence, by way of passive support for a friend. In fact, many offenders often cannot perpetrate such offences without people like the offender before me now to help them with the care of stolen goods." 34 In my opinion his Honour adequately dealt with the determination of objective seriousness. No error has been shown in this respect.

Ground 3: objective seriousness - drug supply 35 Four separate complaints were made under this ground. It is of some considerable interest that none involves a complaint that his Honour reached erroneous assessments of the objective gravity of these offences, or that the individual sentences imposed were too severe.

(a) "mid-range" drugs 36 The first complaint was what was said to be an "inappropriate reference" to the drugs as "mid range". 37 That is drawn from that part in the Remarks on Sentence in which his Honour recognised the principle (R v Clark (NSWCCA, 15 March 1990, unreported) that, in offences involving illegal drugs, a custodial sentence must, absent exceptional circumstances, be imposed. In that context, his Honour said: "The courts have recognised that the use of mid range drugs, like amphetamines for other than expressed medical reasons, causes great harm to the community and there is a need for sentences that have an effect as a general deterrence." 38 The submission was made that it is inappropriate to assess the objective seriousness of a drug offence by reference to the nature of the drug. Reference was made to R v Nai Poon [2003] NSWCCA 42; 56 NSWLR 284 and R v Bimahendali [1999] NSWCCA 409; 109 A Crim R 355, and subsequent cases. 39 It is now well established that it is not for the courts to construct a gradation of seriousness of different drugs by reference to perceptions of their harmfulness: Bimahendali at [16]; Adams v The Queen [2008] HCA 15; 234 CLR 143. The seriousness of drug offences is determined by the legislature by the prescription of maximum penalties. One guide to the dangers of a particular drug as perceived by the legislature is the prescription, in Schedule 1 of the DMT Act, of the quantities that constitute traffickable, indictable, commercial and, where applicable, large commercial quantities. In this respect a perusal of Schedule 1 suggests that the traffickable quantity of amphetamines, referred to by the sentencing judge, is 3.0 grams. That is comparable with, for example, heroin and cocaine. When compared with other drugs on the Schedule, it would appear that, to the extent the quantity identified as constituting a traffickable quantity is relevant, the description of "mid range" of amphetamine is, if anything, favourable to the applicant. As a rule of thumb, it might be thought that the smaller the quantity that constitutes a traffickable quantity, the greater the perception of harmfulness of the drug. It may be also be an indicator of the quantities found to be sufficient for the purposes of illegal supply. 40 In any event, in my opinion the categorisation of the drugs here in question, specifically amphetamine, as "mid range" had little impact upon the assessment of objective seriousness; to the extent that it did, it has not been shown to be incorrect.

(b) quantity 41 In respect of this complaint reliance was placed upon that passage in the Remarks on Sentence in which his Honour said: "… In each case there was a substantial amount of prescription quality, so that must be seen as at the top end of objective seriousness." 42 Quantity of drug is not the sole determinant of the seriousness of an offence, or the sentence to be imposed: Wong v The Queen; Leung v The Queen [2001] HCA 64; 207 CLR 584. It remains, however, a relevant consideration. I do not accept that his Honour regarded the quantity of drugs "as either the sole or the principal determinant of objective seriousness". His Honour treated it as one relevant circumstance.

(c) the applicant's role 43 The next complaint that was made was that his Honour: "appeared to be dismissive regarding the issue of the applicant's role, giving it no real weight." 44 Further reference was made to the passage extracted at [18] above. It was then complained that: "Nowhere does his Honour make a specific evaluation of the applicant's role with respect to the drug matters, a critical matter in the evaluation of the objective seriousness. This amounts to specific error."

It was acknowledged that the passage quoted appears in that part of the Remarks in which his Honour was considering the receiving offence, but it was contended that it is equally apposite to the consideration of the applicant's role in the drug supply offences. 45 In R v Olbrich [1999] HCA 54; 199 CLR 270 the High Court rejected a proposition first made in this Court that: "[t]he identification of the precise nature of the involvement of an accused in an act of importation of drugs is an essential aspect of the sentencing process.": see [13].

The court said that the utility of such an exercise is necessarily limited by the extent to which the material facts are known. 46 That is entirely apposite to the present case. Very little was put before the sentencing judge concerning the role of the applicant. He gave no evidence himself. The agreed statement of facts records that the applicant acknowledged: "… that he was assisting the friend in the supply of those drugs by permitting and suffering those drugs to be in his home. He exercised dominion and control over the drugs by secreting the drugs in different places in his home … The offender agrees that he knew that the friend proposed to return and take possession of the drugs and supply them to others."

That was, essentially, the information the sentencing judge had concerning the applicant's role in the offences. The sentencing judge summarised and paraphrased almost the whole of that paragraph. 47 Reference to the role of an offender in drug cases is relevant where the offence in question is part of an enterprise, particularly where it involves a number of people. But here the applicant was charged with offences based solely on his own possession of the drugs. In those circumstances it is hardly apt to speak of his "role" in the offences. To have gone further, as appears to be suggested on his behalf, and referred to any part he might have played, or intended to play, in the ongoing supply of the drugs would be both to do him an injustice, and to risk contravention of the principle stated in The Queen v De Simoni [1981] HCA 31; 147 CLR 383.

(d) "global assessment of seriousness" 48 Finally, under this ground, complaint was made that the judge "made a global assessment of objective seriousness" instead of assessing the seriousness of each drug offence separately, as, it was contended, is required by Pearce v The Queen [1998] HCA 57; 194 CLR 610. 49 It was pointed out that the quantity of the drug involved in each of the four drug offences was different, and there was a difference in the relationship of the quantity possessed and the specification in Schedule 1 of traffickable and indictable quantities. This was the only possible differentiation between the drug offences. Otherwise, each drug offence was identical: the drugs were received at the same time, from the same source, and in the same circumstances. Except to the extent that the applicant intended to retain some for his own use (and which drug, or how much, of any, was not the subject of evidence and is not known) his intention with respect to disposition of each was identical. 50 The circumstances of the offences are such that, in this case, it was appropriate to proceed as his Honour did. The agreed facts showed that the applicant received all of the drugs in one deposit; the quantity of each individual drug that was left with him was purely the result of what had been available and stolen from the pharmacy. Each drug offence had to be looked at in the context of each other drug offence. These were inextricably linked. No distinction in terms of objective seriousness could realistically be made. 51 There was no basis on which to differentiate between the drug offences. No such basis was identified. 52 In my opinion no error has been shown in respect of the judge's assessment of objective gravity of the drug offences. I would reject Ground 3 of the application.

Ground 4: special circumstances 53 His Honour made no reference to s 44(2) of the Sentencing Procedure Act, which prescribes, that unless special circumstances are found (for which reasons are to be given), the parole period (balance of term, or the period during which the offender may be eligible for release on parole) must not exceed one-third of the term of the sentence. 54 Despite the way s 44(2) is worded (after amendment in 2003) it is generally accepted that it is intended that the non-parole period should, absent special circumstances being found, be not less than 75 per cent of the total sentence. It is also generally accepted that a reduction in those proportions operates to the benefit of an offender, by reducing the proportion of the overall sentence that must be spent in custody. 55 Here, it is difficult to see what the complaint made on behalf of the applicant is. In respect of each of the drug offences, the non-parole period is less than 75 per cent of the head sentence - meaning that the applicant has been afforded a benefit. The same applies, even more starkly, to the sentence imposed in respect of the receiving offence. There, the head sentence is 4 years and 6 months; 75 per cent of that is 3 years and 4 months on that offence, however, the applicant was sentenced to a non-parole period of 2 years. 56 It is so also, to a lesser extent, in respect of the overall sentence of 8 years and 6 months. 75 per cent of that period is 6 years and 4½ months. The overall non-parole period imposed on the applicant was 6 years. 57 Although, in imposing sentences that incorporated a departure from the statutory ratio, thus implying a finding of special circumstances, his Honour fell into error in failing to comply with the provisions of s 44(2) (by not giving reasons for the finding), this was not an error which operated adversely to the applicant. 58 I would reject Ground 4 of the application.

The additional ground of appeal: manifest excess 59 The question of concurrency or accumulation (and, if there is to be accumulation, its extent) is one with which this Court (and sentencing courts) regularly have to grapple. Whether or not to accumulate is very much within the discretion of the sentencing judge (R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66, although, of course, that discretion is to be exercised in the light of the relevant facts and circumstances (R v Merrin [2007] NSWCCA 255; 174 A Crim R 100). In some instances the facts and circumstances will be such as to point unequivocally either to concurrency or to accumulation. 60 Factors pointing to accumulation include sequential offending (as distinct from a number of offences committed in a single episode of criminality); that the offences involve multiple victims; and that concurrency would, when the principles stated by the High Court in Pearce are correctly applied, result in a total sentence that is inadequate to reflect the total criminality. 61 Factors pointing to concurrency include that the offences were committed as part of a single episode of criminality (R v Lansdell (NSWCCA, 22 May 2005, unreported); R v Weldon; R v Carberry [2002] NSWCCA 475; 136 A Crim R 55 (although this is not "an inflexible rule"): Nguyen v R [2007] NSWCCA 14; Vaovasa v R [2007] NSWCCA 253; 174 A Crim R 116); and that the sentence for an offence "can comprehend and reflect the criminality for the other offence[s]": Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41. 62 In dealing with Ground 3(d) above, I have set out the relevant circumstances of the drug offences. Except for the identity and quantity of the drug, they were all identical and cannot be differentiated. 63 In respect of each of those offences, the sentencing judge imposed a sentence of 3 years with a non-parole period of 2 years. Such a sentence is unremarkable, unexceptionable and incontestably appropriate. But the accumulation of each successive sentence upon each earlier sentence by 1 year resulted in an overall sentence (for the drug offences only) of 6 years with a non-parole period of 5 years. That, in my opinion, is manifestly excessive for those offences. When the sentence for the receiving offence is added (also accumulated by another year), it is clear that the sentencing discretion miscarried. 64 In my opinion, in the circumstances of this case, the interests of justice did not call for any accumulation of the drug offences. (It is otherwise in respect of the receiving offence, for which the criminality is different.) All the drug offences ought to have been treated as part of a single enterprise; to adapt the language of Cahyadi, the sentence for each offence could comprehend and reflect the criminality of each other offence. 65 In my opinion, leave to appeal ought to be granted, and the appeal allowed insofar only as the commencement dates of the sentences imposed in respect of counts 4 to 6 are concerned. 66 The orders I propose are:

(iii) the applicant be re-sentenced as follows: (a) on each of counts 3 to 6: imprisonment made up of a non-parole period of 2 years commencing on 6 January 2010 and expiring on 5 January 2012 with a balance of term of 1 year expiring on 5 January 2013;

(b) Count 2 (taking into account the Form 1 offence): imprisonment made up of a non-parole period of 2 years commencing on 6 January 2012 and expiring on 5 January 2014 with a balance of term of 2 years and 6 months expiring on 5 July 2016. 67 The overall sentence is therefore one of a non-parole period of 4 years with a balance of term of 2 years and 6 months. 68 Incorporated in that sentence is an allowance for special circumstances. The non-parole period is 61.5 per cent of the total sentence. 69 BLANCH J: I agree with Simpson J. 70 R A HULME J: I agree with Simpson J. **********

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