Jeffery v R

9The agreed facts may be summarised as follows. 10Strike Force McKickle was established in April 2009 to target the illegal activities of members of the Rebels Outlaw Motorcycle Gang. On 9 March 2010, a warrant was issued authorising police to install surveillance cameras in storage shed 2001 at the National Storage complex in Minchinbury, which was hired by the brother of the Applicant's partner. The cameras were installed in that storage unit on 12 March 2010. 11On 19 March 2010, police executed a covert search warrant in relation to the storage shed where they located a blue esky containing three water bottles containing approximately 2.9 kilograms of liquid methylamphetamine, a Jack Daniels' bottle containing 513.9 grams of liquid methylamphetamine, a semi-automatic rifle, a Luger pistol, a ballistics vest and ammunition. Police seized the rifle and substituted the three water bottles in the blue esky with similar water bottles. 12On 22 March 2010, the Applicant entered the storage unit and decanted the contents of the Jack Daniels' bottle. Police executed a further covert search warrant that day. They seized the Jack Daniels' bottle and substituted it with a similar item. On 23 March 2010, the Applicant attended the shed with Mr Gary Pearce. The Applicant removed a bag containing the substituted Jack Daniels' bottle. 13At 4.14 pm on 24 March 2010, Mr Pearce and Rishaad Christian attended the storage shed and removed a red metal tool box, the blue esky and a kit bag. They went to Mr Christian's house before going to the Applicant's house. At about 4.40 pm that day, the Applicant, Mr Pearce and Mr Christian went to the National Storage complex where they asked an employee about the apparent break-in. The three men were then arrested by police. 14Search warrants were executed at the houses of each of the offenders later that day. At the Applicant's house, police located the substituted Jack Daniels' bottle which had been smashed, and $46,700.00 in cash. The Applicant's DNA was located on the Jack Daniels' bottle earlier seized by police. 15The two offences of driving whilst disqualified, for which the Applicant was dealt with under s.166 Criminal Procedure Act 1986, were committed on 13 and 23 March 2010. At those times, the Applicant was disqualified from driving until 5 October 2014.

16The Applicant was born in 1976 and was 33 years' old at the time of the offences and 34 years' old at the time of sentence. 17The Applicant has a criminal history dating from 1993, including, as an adult offender, offences of assault occasioning actual bodily harm (in 1996), low-range PCA and drive whilst suspended (in 1999), mid-range PCA (in 2003), possess prohibited weapon (in 2004), possess loaded firearm, low-range PCA, drive whilst disqualified, resist police and dangerous driving (in 2006) and drive whilst disqualified (in 2009). 18The Applicant served terms of imprisonment for his 2006 offences, involving a head sentence of imprisonment for two years with a non-parole period of only six months. This lenient sentencing outcome no doubt reflected the report of Professor Stephen Woods, psychologist, which was before that sentencing Court. 19At the time of the subject offences, the Applicant was subject to conditional liberty, in the form of a s.9 bond to be of good behaviour for 18 months for the offence of drive whilst disqualified, for which he was sentenced on 27 October 2009. As a condition of that bond, the Applicant was placed under the supervision of the Probation and Parole Service with orders for counselling and supervision. 20It does not appear that the Applicant took advantage of the leniency extended to him in 2006 and 2009. The evidence suggests that, in 2008 or 2009, the Applicant joined the Rebels Outlaw Motorcycle Gang. 21In addition to the sentences imposed on 27 October 2009, the Applicant was disqualified from driving for a period of two years from 5 October 2014. 22A psychologist's report of Professor Woods dated 3 August 2011 was tendered at the sentencing hearing. In addition, a number of references and certificates were tendered. The Applicant and his partner, together with a Mr Williams, gave evidence in the sentencing proceedings. Aspects of this evidence are the subject of grounds of appeal to this Court.

23The Applicant relies upon the following grounds of appeal: (a)Ground 1 - that the Applicant has a justifiable sense of grievance arising out of the disparity of the sentence imposed upon him for the offence of supplying a commercial quantity of methylamphetamine compared to that imposed upon the offender, Gary Pearce, for supplying a large commercial quantity of methylamphetamine. (b)Ground 2 - the sentencing Judge erred in rejecting the Applicant's account of how the Applicant came to be in possession of a commercial quantity of methylamphetamine. (c)Ground 3 - the sentence was manifestly excessive having regard to the Court's finding that the objective seriousness of the offence of supplying a commercial quantity of a prohibited drug was substantially below the middle range of objective seriousness. (d)Ground 4 - that the sentencing Judge erred by finding "that the money is likely to be related to the supply of drugs".

Ground 1 - The Complaint of Disparity by Reference to the Sentence Imposed Upon Gary Pearce

24In the course of summarising the facts of the Applicant's offences, the sentencing Judge referred to acts of another person, Gary Pearce. Mr Pearce was sentenced by the same Judge on 23 September 2011 for offences of knowingly taking part in the supply of a large commercial quantity of a prohibited drug (2.815 kilograms of liquid methylamphetamine) contrary to s.25(2) Drug Misuse and Trafficking Act 1985, an offence punishable by imprisonment for life with a standard non-parole period of 15 years. An offence of goods in custody was taken into account on a Form 1 with respect to that offence. 25In addition, Mr Pearce was sentenced for possession of a prohibited pistol contrary to s.7(1) Firearms Act 1996, an offence punishable by imprisonment for 14 years with a standard non-parole period of three years. An offence of possess ammunition contrary to s.65(3) Firearms Act 1996 was taken into account on a Form 1 with respect to that offence. 26For the firearms offence, Mr Pearce was sentenced to a non-parole period of one year and seven months to date from 25 March 2010 and to expire on 24 October 2011, with a balance of term of 11 months to expire on 24 September 2012. For the drug supply offence, Mr Pearce was sentenced to a non-parole period of four years and six months to date from 25 September 2010 and to expire on 24 March 2015, with a balance of term of three years to expire on 24 March 2018. 27The total effective sentence for Mr Pearce comprised a non-parole period of five years with a head sentence of eight years. Submissions 28Mr Wendler, counsel for the Applicant, submits that the Applicant has a justifiable sense of grievance having regard to the sentences imposed upon Mr Pearce and himself. He submits that the Applicant and Mr Pearce had been engaged in the same criminal enterprise, regardless of the charges actually laid against each of them, so as to attract the principle of parity or proportionality or relativity referred to by Howie J in Jimmy v R [2010] NSWCCA 60; 77 NSWLR 540 at 596 [246]. Counsel relied, as well, upon the recent decision of the High Court of Australia in Green v The Queen [2011] HCA 49; 86 ALJR 36 at 44-45 [30]. 29Mr Wendler contended that the Applicant and Mr Pearce had similar antecedents, but that the Applicant was sentenced for a less serious drug supply offence. All of this, it was submitted, warranted the imposition of a less severe sentence upon the Applicant. 30The Crown accepted that the parity principle is not confined to co-offenders charged with the same offence, and that it may apply to offenders charged with different offences arising from the same criminal enterprise: Green v The Queen; Jimmy v The Queen at 574 [136], 588 [202], 596 [245] and 598 [262]. The question is whether the Applicant and Mr Pearce were involved in the same criminal enterprise. 31The Crown submitted that the Applicant was not being sentenced in relation to the 2.815 kilograms of liquid methylamphetamine located in the three water bottles and Mr Pearce was not being sentenced in relation to the 513.9 grams of liquid methylamphetamine contained in the Jack Daniels' bottle. Nor, it was submitted, were the drugs in each offender's possession for the same purpose, other than broadly for the purpose of supply. 32The Crown pointed to the Applicant's evidence, which was not accepted by the sentencing Judge, concerning the Applicant's intention with respect to the drugs to which he pleaded guilty. An entirely different account and motive was given by Mr Pearce in relation to the drugs which he possessed. The sentencing Judge accepted Mr Pearce's account that he agreed to store the three bottles of liquid methylamphetamine to clear a drug debt and to avoid further threats from a dealer to whom he had become indebted. 33The Crown submitted that the Applicant and Mr Pearce were not involved in the same criminal enterprise, and the fact that their criminal conduct was uncovered by the one police investigation did not make them co-offenders for the purpose of the parity principle: Furia v R [2010] NSWCCA 326 at [62]-[65]. 34Even if the parity, relativity or proportionality principles could apply to this case, the Crown submitted that no objective justifiable sense of grievance had been established on the part of the Applicant. The Crown submitted that there were significant differences in the subjective circumstances of the two offenders. The Applicant was aged 33 years at the time of his offence whilst Mr Pearce was 23 years' old. The Applicant had a more substantial criminal history and was subject to conditional liberty at the time of the commission of his offences. 35The sentencing Judge accepted that Mr Pearce was genuinely remorseful and had reasonable prospects of rehabilitation. The sentencing Judge found that the Applicant's remorse was "at best, limited" and that he had moderate prospects of rehabilitation. 36The Crown submitted that there were differences in the objective seriousness of the offences as well. Although Mr Pearce's offence involved a greater quantity, motivation was also relevant to culpability and favourable findings had been made in the case of Mr Pearce in this respect. The sentencing Judge found that the Applicant's offence fell just below the mid-range of objective seriousness, whereas Mr Pearce's offence fell "around mid way between the middle and lower end of the range of objective seriousness". 37Taking the objective culpability of each offender and their subjective cases into account, the Crown submitted that it cannot be said that a justifiable sense of grievance arises from the sentences imposed on the Applicant as compared with those imposed upon Mr Pearce for his offences. Decision 38Although it may be said that there is some factual connection between the Applicant's offences and those of Mr Pearce, given that the drugs in question were found in the same locality, there are significant differences in the objective circumstances of their offences and the subjective circumstances of the two offenders. 39The decisions of the High Court of Australia in Green v The Queen and of this Court in Jimmy v The Queen, indicate that parity or proportionality or relativity grounds are not to be strictly confined to co-offenders charged with the same offence. That said, the principles still require an examination of the circumstances of the offences for which each offender was sentenced and the circumstances of the offender in each case. 40The same sentencing Judge sentenced Mr Pearce and the Applicant. It is noteworthy that his Honour's remarks on sentence for Mr Pearce do not refer to the sentence imposed upon the Applicant. It does not appear that any submissions were directed to his Honour, for the purpose of sentencing Mr Pearce, concerning parity, proportionality or relativity. That does not disentitle the Applicant from advancing submissions based on those principles in this case. However, it is noteworthy that the same sentencing Judge was not invited to compare and contrast the two offenders when he came to sentence Mr Pearce. Yet, this Court is asked to do so on appeal. 41The circumstances in which each offender possessed the relevant quantity of drugs were quite different. The findings of the sentencing Judge concerning Mr Pearce's motive is an important point of distinction. His Honour found that Mr Pearce was effectively a warehouseman, and a warehouseman acting under some pressure. 42There are significant differences in the subjective circumstances of the two offenders as well. Amongst these is the fact that the Applicant was substantially older than Mr Pearce. The Applicant received lenient sentencing outcomes involving conditional liberty (an extended period on parole in 2006 and a bond in 2009) but then, at the age of 33, engaged in serious criminality involving substantial drug supply. The Applicant cannot claim the immaturity of youth as being a factor which bears upon his criminal conduct: R v Nguyen; R v Pham [2010] NSWCCA 238; 205 A Crim R 106 at 127 72. Mr Pearce was in a different position. He was 23 years' old. This was a significant factor on sentence. 43Further, the Applicant was on a good-behaviour bond at the time when he committed these offences. 44Even if it could be concluded, somewhat tenuously, that the Applicant and Mr Pearce were engaged in a similar criminal enterprise, I am entirely unpersuaded that any objective foundation for grievance, and thus a legitimate sense of grievance, is available for the Applicant as a result of the sentences imposed upon Mr Pearce. 45It has not been demonstrated that the sentencing outcome for the Applicant was unjust by reference to the principles of parity, proportionality or relativity. 46I would reject the first ground of appeal.

Ground 2 - Suggested Error in Rejection of the Applicant's Account as to How he Came to be in Possession of the Prohibited Drug Submissions

47Mr Wendler acknowledged that the Applicant bore the onus of proof, on the balance of probabilities, with respect to any factual finding which was said to mitigate his criminality. However, he submitted that the evidence was effectively all one way so that the sentencing Judge had erred in not making a finding in the Applicant's favour on this issue. 48The Crown submitted that it was open to the sentencing Judge to make findings unfavourable to the Applicant on this aspect. The credibility of the Applicant's account was clearly an issue at the sentencing hearing. The Crown made submissions that the Applicant's evidence ought not be accepted. It was submitted that the fact that there was no direct evidence inconsistent with the Applicant's account did not mean that the sentencing Judge was bound to accept it. Decision 49This ground of appeal seeks to challenge a finding of fact by the sentencing Judge. 50His Honour rejected the Applicant's explanation in the course of the following findings (ROS7): "Having seen and heard the offender, I do not accept his account of how he came to be in possession of the commercial quantity of methylamphetamine. Apart from the pure coincidence that he was arrested at a time when he says he had decided to leave the Rebels and pack his bags, there is the inherent unlikelihood of being in possession of more than twice the commercial quantity of methylamphetamine for one last big party, and further, the inherent unlikelihood that a drug dealer would provide a large amount of methylamphetamine without requiring any payment at the time of or before delivery. On the other hand, there were no indicia of drug supply such as ledgers or scales. There was no evidence adduced suggesting that the drug was to be sold to others for financial gain, despite telephone taps and surveillance over a relatively extended period. Despite the surveillance, there is no evidence the offender was a principal within a distribution hierarchy. In these circumstances, I will sentence the offender on the basis that he had over twice the commercial quantity of methylamphetamine of a purity of 61.5% in his possession for the purposes of supply. I am, however, unable to make any further findings as to his involvement." 51It is necessary to keep in mind the limits of the jurisdiction of this Court where a finding of a sentencing Judge is challenged on appeal. A frequently cited and applied statement of principle is that of Hunt J (Carruthers and Wood JJ agreeing) in R v O'Donoghue (1988) 334 A Crim R 397 at 401. The principles were succinctly stated by McCallum J in McBeth v R [2009] NSWCCA 235 at [30]: "Many of the applicant's grounds concern the sentencing Judge's findings of fact. It must be recalled, however, that the task of this Court is confined to determining whether there was error in the sentencing of the applicant on the principles stated in House v The King [1936] HCA 40; 55 CLR 499 at 504-505. This Court's power to substitute its own findings of fact for those of the trial judge arises only if the Judge 'mistakes the facts' in the sense there understood. It is necessary to establish that there is no evidence to support the finding, or that the evidence is 'all one way', or that the Judge has misdirected himself: R v O'Donoghue (1988) 34 A Crim R 397 at 401 per Hunt J, Carruthers and Wood JJ agreeing'." 52Having considered the evidence given at the sentencing hearing, it was entirely open to the sentencing Judge to reject the Applicant's account. His Honour had observed, in the course of submissions made by counsel for the Applicant, that the Applicant's account appeared "inherently improbable", a view which his Honour clearly maintained in his remarks on sentence. The submissions made at that time by the Applicant's counsel did not involve strong opposition to that proposition, but rather focused upon avoiding a conclusion that the rejection of the Applicant's evidence should lead to some more sinister and adverse conclusion. The Crown had submitted that the sentencing Judge would find that the Applicant was "a very vague and unimpressive witness" whose "credit is quite low" and that he should not be accepted as a witness of credit. 53It was open to the sentencing Judge to make these findings, having seen and heard the Applicant give evidence. The conclusion reached by his Honour was hardly surprising. 54I would reject this ground of appeal.

Ground 3 - The Claim of Manifest Excess by Reference to the Finding Concerning the Objective Seriousness of the Drug Supply Offence

55As argued in writing, this ground focused upon the claim that the sentencing Judge had found that the drug supply offence lay "substantially below the middle range of seriousness" for this type of offence. However, as is apparent from the transcript, his Honour corrected this erroneous statement at the sentencing hearing, with his Honour indicating that his finding was that the offence was "just below the mid range of objective seriousness". 56The argument proceeded in this Court upon the basis that the finding should have been that the offence lay substantially below the middle range of seriousness. 57This Court has emphasised that the characterisation of objective seriousness of an offence is classically within the role of the sentencing Judge, in finding facts and drawing inferences from them: Ali v R [2010] NSWCCA 35 at [33]-[34]. 58It is sufficiently clear that the sentencing Judge identified and corrected the finding which had been made concerning the objective seriousness of the drug supply offence, noting that he had erred in his reading from notes. 59I am entirely unpersuaded that any error has been demonstrated with respect to this ground of appeal. His Honour's characterisation of this offence was explained by reference to the quantity and purity of drug and his finding concerning the Applicant's involvement in the offence. The finding was open to the sentencing Judge. 60There is no substance in this ground of appeal which should be rejected.

Ground 4 - Suggested Error in Finding that the Money was Likely to be Related to the Supply of Drugs

61Counsel for the Applicant submitted that his Honour had erred in making a finding to this effect (ROS12): "As I have indicated above, I do not accept the offender's account of how he came to be in possession of the $46,700.00. That money is likely to be related to the supply of drugs". 62The argument that was put is that the lastmentioned finding was inconsistent with his Honour's findings with respect to the drug supply offence itself. 63To the extent that the written submissions in support of this ground complained of a breach of the principle in The Queen v De Simoni [1981] HCA 31; 147 CLR 383, that argument was not pressed at the hearing. 64The short answer to this ground is that the Applicant pleaded guilty to an offence under s.193B(2) Crimes Act 1900. By that plea, he admitted the elements of the offence. The offence involves a person dealing with the proceeds of crime, knowing them to be the proceeds of crime. The term "proceeds of crime" is defined as meaning any property that is substantially derived or realised, directly or indirectly, from the commission of a serious offence. "Serious offence" is defined as including, amongst other things, an offence against the law of New South Wales that may be prosecuted on indictment. 65The plea of guilty of the Applicant admitted the elements of the offence, and that is sufficient to dispose of this ground of appeal. 66I observe, in any event, that the sentence imposed for the second count was entirely concurrent with the sentence on the first count, and the non-parole period for that offence has expired already. 67I would reject this ground of appeal.

68I am entirely unpersuaded that any of the grounds advanced for the Applicant have been made good. However, even if there was some merit in any of the grounds, the fact remains that the Applicant received entirely concurrent sentences for these offences. Further, he obtained the benefit of the drive whilst disqualified matters being dealt with in the District Court in a manner which meant that no additional sentence could be imposed for those matters (despite the fact that he was a recidivist for this class of offence). 69Even if some error had been demonstrated (and it has not), I do not consider that any lesser sentence is warranted for the Applicant's offences for the purposes of s.6(3) Criminal Appeal Act 1912. 70In my view, the grounds of appeal are sufficiently unmeritorious that leave to appeal against sentence should be refused. 71MCCLELLAN CJ AT CL: Johnson J has, in his usual comprehensive manner, competently discussed each ground of appeal. As his Honour's analysis makes plain, none of the grounds have any merit at all. For that reason, I join with him in agreeing that leave to appeal should be refused. 72GROVE AJ: I also agree with Johnson J. I also agree with the observations of the presiding Judge. 73MCCLELLAN CJ AT CL: The order of the Court is that leave to appeal is refused.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 March 2012