Quinn v The Queen [2011] HCA 49(2011) 244 CLR 462
Lowe v R [1984] HCA 46
Judgment (3 paragraphs)
[1]
Solicitors:
R Gregory - O'Brien Solicitors
C Hyland - Solicitor for Public Prosecutions
File Number(s): 2013/00023743
Decision under appeal Court or tribunal: District Court of New South Wales
Jurisdiction: Bathurst
Date of Decision: 13 March 2014
Before: Colefax SC DCJ
File Number(s): 2013/23743
[2]
Judgment
JOHNSON J: I agree with Button J.
BUTTON J: This is an application for leave to appeal brought by Geoffrey Huckstadt (the applicant) with regard to a sentence imposed upon him by Judge Colefax SC in the District Court at Bathurst on 13 March 2014. The sole ground of appeal asserts that there is erroneous disparity between that sentence and a sentence that was imposed by his Honour on the same occasion upon Shane Galvin (the co-offender).
Background
Each offender pleaded guilty to three offences that were committed to the District Court for sentence. They were as follows.
First, an offence of supplying a prohibited drug on an ongoing basis. In the case of the applicant, that offence was committed between 5 December 2012 and 3 January 2013. In the case of the co-offender, that offence was committed between 27 September 2012 and 26 October 2012. Pursuant to s 25A(1) of the Drug Misuse and Trafficking Act 1985 (NSW), that offence carries a maximum penalty of imprisonment for 20 years, and has no standard non-parole period.
Secondly, an offence of supplying a prohibited drug, namely amphetamine. In the case of the applicant, he committed that offence on 24 January 2013. In the case of the co-offender, he committed the offence on 31 October 2012. Pursuant to s 25(1) of the Drug Misuse and Trafficking Act, that offence carries a maximum penalty of imprisonment for 15 years, and has no standard non-parole period.
Thirdly, an offence of possessing a prohibited weapon; namely, a taser. The offender committed that offence on 24 January 2013. In the case of the co-offender, he committed the offence separately, but on the same date. Pursuant to s 7(1) of the Weapons Prohibition Act 1998 (NSW), that offence carries a maximum penalty of imprisonment for 14 years. It also carries a standard non-parole period of 3 years.
Each offender also asked his Honour to take into account on sentence a number of further offences by way of a Form 1 pursuant to s 32 of the Criminal Procedure Act 1986 (NSW).
In the case of the applicant, they were as follows: four charges of knowingly taking part in the supply of a prohibited drug (on 10 October, 16 October, 25 October and 31 October 2012); two charges of possessing a prohibited drug (cannabis leaf, and cannabis seeds); one charge of possessing a prohibited weapon (a body armour vest); and one charge of possessing an unauthorised firearm (a pellet gun).
In the case of the co-offender, they were as follows: two charges of knowingly taking part in the supply of a prohibited drug (on 18 December 2012 and 2 January 2013); one charge of possessing a prohibited drug (cannabis); and one charge of possessing an unauthorised firearm (an air pistol).
The Form 1 offences were taken into account with regard to the offence of ongoing supply of a prohibited drug committed by each offender.
Each offender received a 25% discount for the utilitarian value of his pleas of guilty entered in the Local Court.
Objective features
These do not require elaborate discussion in light of the single ground of appeal. That is because his Honour said in the remarks on sentence that "for parity considerations I am of the view that in terms of objective criminality, the conduct of each offender was approximately equivalent". That finding was impugned by neither party before this Court.
To state things succinctly, the two offenders, who are cousins, were involved in the supply of substantial quantities of amphetamines in Lithgow and Bathurst. In late 2012 and early 2013, their actions were detected by police by way of telephone intercepts and the use of an undercover operative.
On 10 October 2012, the applicant and the co-offender travelled to a meeting place that had been arranged with the undercover operative. The applicant was the driver. The co-offender supplied 53g of amphetamine to the undercover operative in return for $5,600. The drug had a purity of 15%.
That conduct constituted the first "sub-offence" in the ongoing supply count against the co-offender, and one of the charges of knowingly taking part in a supply of prohibited drug on the Form 1 of the applicant.
On 15 October 2012, the co-offender and the operative arranged to meet the following day. They did so at a car park in Lithgow. Again, the applicant was the driver for the co-offender. The co-offender provided a little under 54g of amphetamine to the operative in return for $4,700. The drug was later found to have a purity of 13%.
In the case of the co-offender, that transaction was the second sub-offence of the ongoing drug dealing count. In the case of the applicant, it constituted a further charge of knowingly taking part in the supply of a prohibited drug on his Form 1.
On 25 October 2012, the co-offender and the operative again met by arrangement in a car park in Lithgow. Yet again, the applicant was the driver. The co-offender supplied a little under 56g of amphetamine to the operative, in exchange for $5,000. The drug was later found to have a purity of 16%.
This transaction was the third and final sub-offence in the count of ongoing supply of the co-offender. It formed the basis of the third charge of knowingly taking part in the supply of a prohibited drug on the Form 1 of the applicant.
On 31 October 2012, the co-offender and the operative met for a fourth time. For a fourth time, the applicant was the driver. On that occasion, a little over 54g of amphetamine was supplied, in exchange for $5,000. The drug was later found to have a purity of 14.5%.
This illegal transaction underpinned the offence of supplying a prohibited drug brought against the co-offender. It also constituted the fourth and final charge of knowingly taking part in the supply of a prohibited drug on the Form 1 of the applicant.
On 28 November 2012, the operative received a telephone call from the co-offender. The latter foreshadowed that the applicant would, from that point on, be taking over the criminal business of the co-offender. Later on the same day, the applicant telephoned the operative, and, having referred to what his cousin had told the operative, said "I'm looking after things now".
Thereafter, on 5 December 2012, the operative met the applicant at the same car park in Lithgow. The co-offender was not present. The applicant supplied 55g of methylamphetamine in exchange for $5,000 in cash. On subsequent analysis, the drug was found to be of 12% purity.
That conduct of the applicant constitutes the first sub-offence within his own count of ongoing drug dealing.
On 18 December 2012, the applicant and the operative met by arrangement in the village of Hartley, some kilometres east of Lithgow. On this occasion, the co-offender was the driver of the applicant. The applicant supplied the operative with a little under 55g of methylamphetamine, in return for $5,000. The drug was later found to have a purity of 12.5%.
This conduct is the second sub-offence in the count of ongoing drug dealing committed by the applicant. It also underpins one of the charges of knowingly taking part in the supply of a prohibited drug on the Form 1 of the co-offender.
On 2 January 2013, the operative and the applicant met yet again by arrangement. For a second time, the co-offender was present as the driver. The applicant provided a little under 56g of methylamphetamine in return for $5,000. The drug, consistent generally with what had been the case on previous occasions, had a purity of 11.5%.
That conduct was the third and final sub-offence within the ongoing drug dealing count of the applicant. It also constituted the second charge of knowingly taking part in the supply of a prohibited drug on the Form 1 of the co-offender.
Approximately three weeks later, on 24 January 2013, the operative and the applicant met again in the car park in Lithgow. The applicant drove himself there, and the co-offender was not present. On this occasion, the applicant supplied almost 142g of a form of amphetamine known as NNDMA. It was subsequently found to have a purity of 14.5%. No money changed hands, because the applicant was arrested immediately after the drugs had been handed over.
That conduct underpinned the count of supplying a prohibited drug committed by the applicant.
The co-offender was arrested shortly afterwards on the same day. The homes of the applicant and the co-offender were thereafter searched by police.
At the home of Mr Galvin, the police found a taser, which underpins the charge brought against him of possessing a prohibited weapon. They also located an air pistol and 7g of cannabis. Those items underpinned two of the charges on the Form 1 brought against him.
At the home of the applicant, the police found another taser. That is the separate basis of the count of possessing a prohibited weapon brought against him. They also found a pellet gun, some cannabis leaf, and some cannabis seeds. It is also noteworthy that they located a body armour vest. Those items underpinned various offences contained on the Form 1 of the applicant.
In short, it is true that the offences were not identical, and were assigned differently as between the two offenders with regard to whether they were placed before his Honour as substantive matters committed for sentence or placed before his Honour as offences on a Form 1. Nevertheless, it can be seen that the offending of the two offenders was (as his Honour said) broadly equivalent: each of them was involved in the supply of large quantities of amphetamines, often as an assistant to the other, to an undercover operative in return for some thousands of dollars, and each of them possessed small quantities of prohibited drugs at their separate homes, along with other prohibited items.
Only one further aspect of the objective features need be noted. That is the fact that an attempt by the applicant in oral evidence in the proceedings on sentence to abrogate the contents of an agreed set of facts - in particular, with regard to the proposition that he had taken over the unlawful business in question from his cousin - was rejected by his Honour in the remarks on sentence.
Subjective features of the applicant
The applicant was born in September 1973, and accordingly as at the date of sentence was aged 40 years.
He had suffered a damaging childhood, during which he and other members of his family had been the victims of violence at the hands of his alcoholic father. He left school early, and is functionally illiterate. He has four children from previous relationships, but does not maintain contact with them.
Regrettably, his mother suffers from a chronic bone disease that affects her mobility. He was actively involved in her full-time care for a number of years, and resided with her at her home at the time of his arrest.
His criminal record is not short. It began in March 1988, when he was aged 14 years. He was placed on a bond for 12 months for stealing by the Children's Court.
In April 1989, for two charges of breaking, entering and stealing, two charges of stealing, and one charge of receiving, he was placed on probation for 12 months by the same court.
In June 1991, the same court ordered that he perform 100 hours of community service for an offence of breaking, entering and stealing.
In January 1992, in the Local Court at Lithgow, he was fined for various traffic offences. In May of the same year, he was fined in the same court for further offences of the same nature.
In January 1996, he was sentenced to a fixed term of imprisonment of six months for repeatedly driving whilst disqualified. On appeal to the District Court at Penrith in 19 May 1997, however, that sentence was reduced to community service and a bond.
In May 2003, for an offence of intimidation, he was ordered to perform community service yet again by the Local Court at Lithgow.
In April 2005, in the Local Court at Lithgow, the applicant was sentenced to imprisonment for three months for two charges of threatening injury to a potential witness. One can infer from the fact that an all grounds appeal to the District Court was lodged that those matters had been the subject of pleas of not guilty. In September 2005, the convictions and sentences were confirmed in the District Court at Bathurst.
Finally, in May 2005, he had been given short sentences of imprisonment of no more than four months for four offences: resisting a police officer; escaping police custody; escaping lawful custody; and assault occasioning actual bodily harm.
In summary with regard to the criminal record of the applicant, it is true to say that he had only ever been dealt with in the Children's Court or the Local Court. It is also true to say that there was a gap in his offending between 2005 and 2012.
On the other hand, his offending had extended over 25 years; had resulted in sentences of imprisonment; featured offences against both property and person; and included offences against public justice.
As for remorse, his Honour found it difficult to assess, and had reservations about the applicant's expressions of remorse, based on the rejected evidence of the applicant in relation to taking over the unlawful business.
As for the prospects of rehabilitation of the applicant, his Honour considered the past criminal history, lack of family support, and age of the applicant, and was of the opinion that, at best, his prospects might be regarded as reasonable.
Subjective features of the co-offender
The co-offender was born in April 1984, and accordingly was 28 years of age when he was sentenced.
He had suffered from addictions to cannabis and gambling for many years. His Honour accepted that the offences under consideration were committed in order to support those addictions.
At the time of his arrest, he had been in a relationship with his partner for 13 years. There are three children from that relationship, and his partner remained supportive of him.
The criminal record of the co-offender was shorter than that of the applicant. He had been fined in July 2002 by the Local Court at Lithgow for an offence of common assault. In November 2009, the same court had fined him $400 for driving with a low range of the prescribed concentration of alcohol in his blood. In April 2011, the same court had placed him on a bond without conviction pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) for damaging property. That was the extent of his recorded offending prior to the matters that brought him before the sentencing judge.
His Honour was prepared to sentence the co-offender on the basis that he had no criminal record. The words his Honour used at page 12 of the remarks on sentence were: "Mr Galvin has a very limited criminal history… Whilst these matters are not trivial, it is almost as if he had no prior convictions and accordingly some leniency in the nature of that usually extended to first offenders will be given to him".
In the case of the co-offender, his Honour was not satisfied that he was genuinely remorseful, despite expressions of remorse made in the witness box and to the author of his pre-sentence report.
As for the prospects of rehabilitation of the co-offender, his Honour found that the co-offender's prospects for rehabilitation might be reasonable, given his minimal criminal history, age and family support.
To summarise and compare the subjective positions then, each man had not been the beneficiary of privilege or good fortune throughout his life.
The applicant had not been properly educated, and had been brutalised as a child. He had been able to maintain employment over the years, and had played at least some role in caring for his ill mother.
The co-offender had not been treated so badly as a child, but had developed from an early age a problem with prohibited drugs, and thereafter a problem with gambling, each of which led him to commit the offences under discussion.
With regard to each man, his Honour had reservations about finding that each was genuinely remorseful.
With regard to each man, his Honour, albeit cautiously, was prepared to find that there were reasonable prospects of rehabilitation, and was perhaps more optimistic in the case of the co-offender.
Aspects of the remarks on sentence
As is apparent from the above, there were two significant points of contrast between the two offenders. The first was the difference in their ages as at the date of sentence: 40 years old in the case of the applicant on the day of sentence, and 28 years old in the case of the co-offender. The second was the difference in their criminal antecedents: quite lengthy in the case of the applicant, and minimal in the case of the co-offender.
Those differences were quite apparent to his Honour as well. Indeed, throughout the remarks on sentence, his Honour touched upon them more than once.
At page 13 of the remarks on sentence, his Honour noted that the applicant is "considerably older than his cousin", and at page 15 of the remarks on sentence stated that the applicant's "age is also against him".
At page 14 of the remarks on sentence, his Honour said that, "Unlike his cousin Mr Huckstadt has a serious criminal history". As well as that, at page 15 of the remarks on sentence, his Honour said that, "Unlike Mr Galvin, Mr Huckstadt does not have a minimal criminal history or strong support from his family".
Sentences imposed
His Honour imposed an aggregate sentence upon each offender.
In the case of the applicant, the following indicative sentences were provided. For the offence of supplying a prohibited drug on an ongoing basis, an indicative head sentence of seven years. For the offence of supplying a prohibited drug, an indicative head sentence of three years. For the offence of possessing a prohibited weapon, an indicative head sentence of six months.
His Honour applied the utilitarian discount of 25% to the aggregate head sentence. The result was that his Honour imposed upon the applicant an aggregate head sentence of six years and nine months, with an aggregate non-parole period of five years, to date from 5 November 2013. That backdate is not impugned.
Turning to the co-offender, the following indicative sentences were provided. For the offence of supplying a prohibited drug on an ongoing basis, an indicative head sentence of six and a half years. For the offence of supplying a prohibited drug, an indicative sentence of two and a half years. For the offence of possessing a prohibited weapon, an indicative sentence of six months.
Again, his Honour applied the utilitarian discount to the aggregate head sentence. In the ultimate, his Honour imposed upon the co-offender an aggregate head sentence of five years and seven months, with an aggregate non-parole period of four years and two months, to date from 18 October 2013.
I interpolate to say that I respectfully consider that it was an error for the sentencing judge to apply the utilitarian discount to the aggregate head sentences for each offender, rather than to each of the individual indicative sentences, before turning to the expression of principles of totality by determining the aggregate sentence: see JM v R [2014] NSWCCA 297 at [39]. That error, however, is inconsequential for the following reasons.
First, it is not the basis of a ground of appeal.
Secondly, one can, as a matter of mathematics, readily determine what the indicative sentences would have been if the utilitarian discount had been correctly applied to each one. In the case of the applicant: for the offence of supplying a prohibited drug on an ongoing basis, an indicative sentence of five years and three months; for the offence of supplying a prohibited drug, an indicative sentence of two years and three months; and for the offence of possessing a prohibited weapon, an indicative sentence of four months and fifteen days. In the case of the co-offender: for the offence of supplying a prohibited drug on an ongoing basis, an indicative sentence of four years, ten months and fifteen days; for the offence of supplying a prohibited drug, an indicative sentence of one year, ten months and fifteen days; and for the offence of possessing a prohibited weapon, an indicative sentence of four months and fifteen days.
Thirdly, a ground of erroneous disparity must inevitably focus on the aggregate sentences actually imposed, not the sentences merely indicated.
In short, it can be seen that the aggregate head sentence imposed upon the applicant is longer than the aggregate head sentence imposed upon the co-offender by one year and two months, and the aggregate non-parole period imposed upon the applicant is longer than the aggregate non-parole period imposed upon the co-offender by 10 months.
Ground of appeal
One ground was notified and pressed, as follows:
The Applicant has a legitimate sense of grievance because of the different sentence imposed on the co-offender.
Submissions
Counsel for the applicant accepted that it was open to his Honour to impose both an aggregate head sentence and an aggregate non-parole period upon the applicant that were longer than those imposed upon the co-offender. He submitted, however, that the differentiation between the head sentences and the non-parole periods was too pronounced, bearing in mind the equivalence in objective matters, and the broadly similar subjective features.
He declined the invitation of members of the Court to identify the quantum of differentiation in the aggregate head sentences and non-parole periods (in terms of months or years) that he would have accepted was within the sentencing discretion available to his Honour. As a result, the Court was unassisted as to the point beyond which counsel submitted erroneous disparity commenced to occur. I also consider that one can infer from that approach that counsel appreciated that answering our enquiries directly would not have assisted his case.
Counsel for the applicant engaged in a rather complex analysis of the differing indicative sentences that his Honour had provided with regard to each offender, and submitted that, combined with the degree of implicit totality that must be reflected in the aggregate sentences ultimately imposed, they show that his Honour drew an inappropriate distinction between the two offenders.
He submitted that the approach of his Honour to the criminal record of the co-offender (namely, regarding him effectively as a first offender) was overly generous. That was said to be because, in his oral evidence in the proceedings on sentence, the co-offender had accepted that he had been in the habit of supplying prohibited drugs for some time before his arrest, quite apart from the matters to which he had pleaded guilty.
Counsel submitted that the difference in age between the two men was of no great moment, bearing in mind that the co-offender was not a person who was close to being a juvenile at the time of the alleged offences; on the contrary, he was an entire decade past that point.
In short it was said that there should be some downward adjustment in both the aggregate head sentence and the aggregate non-parole period imposed upon the applicant. If the Court came to that view, affidavits were read on the usual contingent basis that they should be taken into account on resentence.
The response of the Crown may be stated concisely. It was that, in all the circumstances, the differentiation in the sentences imposed was perfectly open to Judge Colefax, and no error had been demonstrated by the applicant.
Determination
I do not accept the fundamental submission of counsel for the applicant. To my mind, the differentiation in the sentences imposed upon the applicant and the co-offender was well open to the discretion reposed in his Honour. That is so for the following reasons.
First, there was an undoubted distinction to be drawn between the two offenders based upon their criminal records. It will be recalled that his Honour approached the co-offender as a man with effectively no criminal record. It was perfectly open to his Honour to take that generous approach to the minimal pre-existing criminality of the co-offender. And it was also quite open to his Honour to contrast sharply the position of the co-offender with that of the applicant who had, after all, committed offences over a period of many years; been imprisoned for some of them; committed offences of violence; and committed two offences against public justice.
Speaking generally, an offender who has no, or no meaningful, criminal record can have that taken into account in his or her favour in at least two ways: first, in the form of "credit" for a previously blameless life; and, secondly, by way of a finding that a person who has never offended before potentially has good prospects of rehabilitation. Neither of those considerations applied to the applicant in this case.
Secondly, it is true that the co-offender was not aged (for example) 18 years and 3 months at the time of the commission of the offences. Still and all, I consider it well open to a sentencing judge to draw a distinction between, on the one hand, an offender who is in his late twenties (and who can still be described as a young man) and, on the other hand, an offender who is entering his forties (and who must be described as being in early middle age).
Thirdly, each of these factors - age and criminal record - has recently been explicitly referred to by the High Court of Australia as legitimately founding differentiation in sentence: Green v The Queen; Quinn v The Queen [2011] HCA 49 at [31]; (2011) 244 CLR 462 (French CJ, Crennan and Kiefel JJ).
Fourthly, this was not a case in which one judge sentenced one offender, and another judge the other. To the contrary, what should happen in the circumstances is exactly what did happen: one judicial officer heard both matters simultaneously, and was in a position to consider the interrelationship between the objective and subjective features of the two offenders in an overarching way.
Fifthly, the degree of differentiation between the sentences actually imposed upon the two men was by no means marked: as I have shown, the aggregate head sentence imposed upon the applicant is longer than that imposed upon the co-offender by no more than one year and two months, and the aggregate non-parole period imposed upon the applicant is only 10 months longer than the non-parole period imposed upon the co-offender. And yet it is well-established that, for a ground founded on erroneous disparity to succeed, the asserted disparity must be "marked", thereby "giving rise to the appearance of injustice": Green v The Queen; Quinn v The Queen [31]-[32].
Sixthly, to the extent that his Honour heard from both men in the witness box, his Honour was in a position to form an impression of both of them, an advantage that is very largely unavailable to members of this Court when reading transcripts of proceedings on sentence.
Seventhly, it needs to be borne in mind that questions of asserted disparity are not to be resolved by way of rigid mathematical comparison between two or more sentences. Just as a broad discretion is reposed in sentencing judges when they are dealing with a single offender, so also there is no single "right answer" with regard to the degree to which the sentences imposed upon two or more co-offenders should differ. That is a matter of broad evaluative judgment by sentencing judges at first instance, not minute dissection by this Court.
Eighthly, seeking to "disentangle" the indicative sentences that underpinned the aggregate sentences actually imposed, and to discern the degree to which principles of totality ameliorated the total period of incarceration of each man is, to my mind, an arcane and inapposite exercise. That is especially the case in light of the (inconsequential) error that occurred here, whereby the utilitarian discount was applied to the aggregate head sentences and not to the indicative sentences. Rather, the task of this Court is to consider whether the distinction actually drawn in the sentences actually imposed was so sharp as to be unavailable to the discretion of his Honour, bearing in mind all of the salient objective and subjective features actually found by the sentencing judge.
Ninthly and finally, in any event, even if one compares the (notionally discounted) indicative sentences with regard to each offender, the difference between them was not great. Nor indeed was the difference with regard to the implicit partial concurrence that was ultimately afforded to each offender: one year and two months in the case of Mr Galvin, and 9 months in the case of Mr Huckstadt.
In short, to my mind, there were two separate bases upon which his Honour was quite entitled to draw a distinction between the applicant and the co-offender, and to reflect that distinction in the aggregate sentences actually imposed. I consider that there is no basis upon which the applicant can experience a justifiable sense of grievance, objectively speaking, when he compares the aggregate sentence imposed upon him with that imposed upon the co-offender: see Lowe v R [1984] HCA 46; (1984) 154 CLR 606. For that reason, I do not consider that, examined together, the two sentences demonstrate erroneous disparity; to the contrary, I consider that the moderate level of ultimate differentiation in the two sentences was well within the discretion reposed in the learned sentencing judge.
In the circumstances, there is no need for me to refer to the evidence that was read on a contingent basis.
Conclusion
The ground of appeal was arguable, and was fully argued before us. Accordingly, leave should be granted, but the appeal should be dismissed.
Proposed orders
I propose the following orders:
1. Leave to appeal granted.
2. Appeal dismissed.
FAGAN J: I agree with Button J.
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Decision last updated: 24 February 2016