Jesse Daniel Heilpern v R

CATCHWORDS: Supply of prohibited drugs (x2) - offender drug dependent - significance of time spent in Odyssey House - significance of Form 1 matters - whether pleas of guilty taken into account - whether necessary to have regard to finding of "special circumstances" in respect of both sentences - whether offender in fact on a bond

LEGISLATION CITED: Crimes (Local Courts Appeal and Review) Act, 2001 Crimes (Sentencing Procedure) Act 1999

Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 De Simoni v The Queen (1981) 147 CLR 383 Pearce v The Queen (1998) 194 CLR 598 R v Clark (NSWCCA (unreported) 15 March 1990) CASES CITED: R v Delaney (2003) 59 NSWLR 1 R v Grbin [2004] NSWCCA 220 R v Lao [2003] NSWCCA 315 R v Sparos [2002] NSWCCA 52 R v Thomson & Houlton (2000) 49 NSWLR 383

PARTIES: Jesse Daniel Heilpern (Applicant) Crown (Respondent)

COUNSEL: P Hamill SC (Applicant) N Noman (Crown - Respondent)

SOLICITORS: Bolt Findlay Solicitors (Applicant) S Kavanagh - Solicitor for Public Prosecutions

IN THE COURT OF CRIMINAL APPEAL 2006/1916

McCLELLAN CJ at CL BUDDIN J ROTHMAN J

FRIDAY 22 SEPTEMBER 2006 JESSE DANIEL HEILPERN v REGINA Judgment Introduction 1 BUDDIN J: The applicant seeks leave to appeal against sentences imposed upon him in the District Court on 9 June 2006 following his pleas of guilty to two offences of supplying prohibited drugs. 2 In respect of the first offence, which alleged that he supplied 33.9 grams of ecstasy between 10 August and 1 September 2004, the applicant was sentenced to a non-parole period of 18 months with a total sentence of 2 years imprisonment. That sentence was ordered to commence on 9 June 2005 and the non-parole period will thus expire on 8 December 2006. In passing sentence for this offence, two further offences on a Form 1 document, were taken into account by the sentencing judge. Those offences related to the possession and cultivation of cannabis. The maximum penalties for those offences were 2 years and 10 years imprisonment respectively. 3 In respect of the second offence, which alleged that he supplied 67 grams of ecstasy on 10 November 2004, the applicant was sentenced to a non-parole period of 6 months with a total term of 2 years imprisonment. That sentence was ordered to commence on 9 June 2006 and the non-parole period for this offence will thus also expire on 8 December 2006. Accordingly the effective non-parole period is 18 months whilst the effective total sentence is 3 years. The maximum penalty for each of the offences of supplying ecstasy is 15 years imprisonment and/or a fine of $220,000. The trafficable quantity prescribed by the legislature for ecstasy is 0.75 grams and the commercial quantity is 125 grams.

Factual background 4 In July 2004 the Richmond Local Area Command Drug Unit commenced an investigation into the distribution of ecstasy and cannabis in the Northern Rivers region of New South Wales. As a result, the applicant and his younger brother were identified as being the source of the supply of ecstasy to a man named Peter Massie. During the course of the investigation the telephone services of each of those three persons were intercepted.

The first offence 5 On 31 August an undercover police operative (UCO) contacted Massie and arranged to purchase 100 tablets of ecstasy from him. The following day the UCO met Massie at a local hotel. The applicant was observed attending the vicinity of the hotel in his vehicle. Massie got into the applicant's vehicle and they both then left the scene. A short time later, Massie reappeared and provided the UCO with 100 tablets of ecstasy for which he received $2700. This transaction was recorded by way of a telephone intercept and a listening device.

The second offence 6 On 2 November 2004 the UCO contacted Massie and requested that he provide him with 1000 tablets of ecstasy. Massie then made contact with the applicant's brother, who in turn, contacted the applicant. 7 On 10 November the UCO again contacted Massie. Massie met the UCO and told him that he could not arrange 1,000 tablets but that he could obtain "somewhere in excess of 500". Later that day Massie told the UCO that his friends could only "source" 200 tablets. The UCO agreed to accept that quantity of tablets. Massie then spoke to the applicant's brother and arranged a meeting with him. The meeting was observed by police who then arrested Massie, as well as the applicant and his brother. The applicant's brother was found to be in possession of the 200 tablets which were apparently going to be supplied to the UCO.

Form 1 offences 8 Later the same day a search warrant was executed at the premises occupied by the applicant. Police located 19 cannabis plants which were being grown hydroponically in a shed at the rear of the property. They also located 456 grams of cannabis inside the house.

The subjective case 9 The applicant, who was aged 20 when he committed the offences, spent a total of 103 days in custody following his arrest. He was then released on bail on condition that he enter the drug rehabilitation program conducted by Odyssey House. When he appeared for sentence on 13 December 2005, he had spent a period in excess of 9 months in that program. Although the applicant had not at that stage completed the program, evidence was placed before the Court which outlined the progress which he had made up until that point in time. It was against that background that the sentencing judge adjourned the proceedings to enable the applicant to complete the program. 10 When proceedings resumed on 9 June 2006, evidence was adduced from a Mr Stephen Hocking which demonstrated that the applicant had made "excellent progress" whilst in Odyssey House, and that his involvement in the program had been successful. A report prepared by Brian Holt, described the applicant's time there as having been "long and arduous". Mr Holt said that the applicant had initially been "guarded and cynical" but had developed into a "good role model [who] leads by example at all times". He was described as having matured and as having developed significant insights into his behaviour. Material provided by members of the applicant's family confirmed that there had been a significant transformation in the applicant as a result of his time in Odyssey House. The evidence also showed that the applicant had made plans, when he was free of his court commitments, to move to the Wollongong area where work as a builder's labourer was available to him. 11 As at the date of sentence, the applicant had spent more than 15 months in Odyssey House. The sentencing judge made specific reference to the principle which entitles an offender to appropriate credit for having spent time in what is regarded as a form of "quasi-custody": R v Delaney (2003) 59 NSWLR 1. In the upshot, the sentencing judge allowed the applicant the equivalent of 12 months in custody for the period of time spent in Odyssey House together with the time spent by him in gaol prior to his release on bail. The sentencing judge reflected that period of time by ordering that the sentence which was imposed in respect of the first offence commence 12 months prior to the date of sentence, a period during which the applicant had in fact been in Odyssey House. 12 Having found "special circumstances" within the meaning of s 44(2) of the Crimes (Sentencing Procedure) Act 1999, his Honour then applied the principles enunciated in Pearce v The Queen (1998) 194 CLR 598 before imposing the sentences to which I referred earlier. 13 Other information pertaining to the applicant's background emerged from a pre-sentence report and from a psychological report prepared by Dr Ross Colquhoun. The applicant is the oldest of three siblings. He grew up in a small town outside Nimbin. His parents separated when he was about 10, an event which the applicant found particularly traumatic. The applicant did not get along with his stepfather and so when he was 11 he moved to a commune where his father lived. There was little by way of parental supervision in that environment and the applicant was allowed to miss school and do more or less as he pleased. 14 He attended three different high schools before finally leaving school in Year 9. He then worked in a number of jobs, the most recent of which had been as a stonemason. However, because of the nature of that work he had developed carpal tunnel syndrome and had been retrenched. 15 The applicant's parents are each described as being "substance abusers". The applicant himself started using cannabis at the age of 8 and by the time he was 12 he was smoking it on a daily basis. He began to use LSD when he was13 and ecstasy when he was 15. He estimated that after he had lost his job he had been smoking up to 28 grams of cannabis as well as 5 to 6 grams of cocaine each day. He estimated that he had also regularly consumed 1 to 4 ecstasy tablets a day. 16 The sentencing judge specifically referred to the evidence that the applicant had been "enmeshed" in the drug culture from an early age. His Honour indicated that he regarded the applicant's dependency upon illicit drugs as a relevant factor in assessing his overall criminality. 17 The applicant relies upon the following Grounds of Appeal: Ground One The learned sentencing Judge failed to have sufficient regard to the level of rehabilitation achieved by the applicant during the period between the commission of the offences and the time of sentencing, and in particular to the period of almost sixteen months spent continuously by the applicant in a rehabilitation program at Odyssey House. Ground Two The learned sentencing judge failed to give sufficient weight to the probable adverse impact of the imposition of a sentence of full time imprisonment after the applicant had done all that could have been expected of him during an adjournment for a period of six months ordered by the District Court for the purpose of permitting him to continue his participation in an institutional program of rehabilitation at Odyssey House. Ground Three The learned sentencing Judge erred in the assessment of sentence on the first matter on the indictment by giving disproportionate and arguably erroneous emphasis to the two offences relating to cannabis that were asked to be taken into account on a Form 1 schedule. One of these charges was an offence of possession of cannabis which was given a character in the nature of an offence of supplying. Ground Four The learned sentencing judge apparently failed to afford to the applicant any credit on sentence for the fact of his pleas of guilty to the charges on the indictment. Although the fact of those pleas was acknowledged in the remarks on sentence at 1.1, there is no indication that they have been taken into account in favour of the applicant in the assessment of sentence. Ground Five His Honour erred in finding that there were special circumstances for the purpose of count two, but not for the purpose of count one. Ground Six His Honour erred in having regard, as an aggravating feature in the assessment of an appropriate sentence, to the fact that, as he saw it, at the time of the commission of the offences charged: remarks on sentence at 3.1, the applicant was subject to a recognisance to be of good behaviour, when this was not in fact the case.

Grounds One and Two 18 It is convenient to deal with these grounds together because in combination they capture the essence of the present application. The submission urged upon the sentencing judge was that given all the circumstances of the case, a sentence could be fashioned which would have the consequence that the applicant would not be subjected to any further period of imprisonment. It is now urged, in effect, that the sentencing judge erred in not acceding to that submission. 19 It was submitted in this Court that whilst the period which the applicant had spent in Odyssey House had properly been taken into account by the sentencing judge as amounting to a form of quasi-custody, his Honour had not given that period of time "separate consideration on the question of his rehabilitation since the offence and on his future prospects of rehabilitation". It was submitted that by the time the applicant stood for sentence in June this year "the question of rehabilitation was paramount". 20 Whether or not it is correct to characterise the applicant's rehabilitation as being "paramount", it is clear that the sentencing judge did treat it as a significant factor in the sentencing process. That the sentencing judge so regarded the issue of rehabilitation is apparent from the fact that his Honour adjourned the proceedings from December 2005 for the express purpose of enabling the applicant to continue in the Odyssey program, a consideration which was clearly designed to facilitate his rehabilitation. Furthermore, in the Remarks on Sentence his Honour observed that: The offender completed his Odyssey programme. He is still in that system, rendering assistance as I understand it, on more of an instructor or helping management level, and he has proved a credit to himself and all those of his family and friends who have faith in him and have put their trust in him and given him their support. That is a very significant achievement, which the Court has to recognise appropriately . (emphasis added) 21 A little later his Honour said: The offender in my view, certainly merits… a finding [of special circumstances] in view of what he has been doing at Odyssey House and in view of what Mr Hocking has said today. I can be confident in my view, that the risk of further offending in matters such as this, is significantly reduced and I accept also what Dr Colquhoun says in his report, and I think it is very important, having regard to the age of this offender, that he does not feel it has all been a waste of time and that he should have every encouragement in due course to continue to take advantage of the opportunities offered by his relatives and start a new life, away from these illegal substances. 22 Finally, his Honour observed that the further period of custody which he intended to impose had been "significantly reduced because of the achievements to date". 23 In my view, those observations make it abundantly clear that his Honour was alive to the need to give due weight to the positive steps which the applicant had made towards his ultimate rehabilitation and further that the favourable reports which he had received had led to an amelioration of the sentences which would otherwise have been imposed. 24 The applicant properly acknowledges that the adjournment of the proceedings to enable him to continue in the Odyssey House program could not "be taken as any form of promise or holding out to [him] that if the program in question [was] in fact successfully completed, he would avoid a further sentence of imprisonment". That concession however is not easy to reconcile with the complaint that lies at the heart of Ground Two. The terms in which that Ground is couched suggest that it was in some way unfair to return the applicant to custody once he had successfully completed the program. However, no specific evidence was adduced to suggest, for example, that returning the applicant to custody would unduly interfere with the process of rehabilitation. 25 Nor it may be noted, did the sentencing judge provide the applicant with any false expectations when he adjourned the proceedings in December 2005. At that stage his Honour addressed the applicant in the following fashion: And it's up to you as far as the Odyssey House is concerned but in fairness to you I want to know what they think of what you've achieved and if they think you've done well that will be better than if they don't think you've done well so it's up to you all right. But as to what will happen at the end of the day we'll have to wait and see I'm afraid. 26 Ultimately the sentencing judge in imposing sentence had to balance a number of competing considerations. On the one hand an impressive subjective case had been made out on behalf of the applicant. As against that, the applicant had committed two quite separate serious offences of supplying prohibited drugs. In the circumstances, and notwithstanding the evidence of rehabilitation, a full-time custodial sentence was inevitable: see R v Clark (NSWCCA unreported 15 March 1990); R v Sparos [2002] NSWCCA 52. I would reject the first two Grounds of Appeal.

Ground three 27 Complaint is made about the following observations which appear in the Remarks on Sentence. In addition, the offender has asked me to take into account some matters on a Form 1 relating to cannabis, which clearly indicates in my view, more than a personal involvement. The quantity was 456 grams and there were nineteen plants, and it is not suggested otherwise that some of that was probably going to go by way of sale. 28 It was submitted that the sentencing judge overestimated the objective gravity of the offences on the Form 1. It was also submitted that because the applicant was charged with possession of the cannabis found in the house and not with its supply, the sentencing judge had, in effect, fallen foul of the principles enunciated in De Simoni v The Queen (1981) 147 CLR 383. The Crown concedes that given the quantity of cannabis found in the premises, the applicant could have been charged with the offence of supply and that if his Honour's remarks were intended to refer to that matter then error would have been established. The Crown submitted that his Honour may however have been intending to refer to the cultivation charge and not to the other material. In my view, no such refinement can be read into his Honour's remarks. In any event as I have already indicated, there was a body of evidence which demonstrated that the applicant was in the habit of consuming a large quantity of cannabis on a daily basis. 29 Some adjustment of the otherwise appropriate sentence was required to reflect the fact that these other offences had been committed: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146. Nevertheless I am of the view, in all the circumstances, that his Honour has fallen into error and that this Ground of Appeal has been established.

Ground Four 30 In R v Thomson & Houlton (2000) 49 NSWLR 383, Spigelman CJ, with whom the other members of the Court agreed, observed that: (i) A sentencing judge should explicitly state that a plea of guilty has been taken into account. Failure to do so will generally be taken to indicate that the plea was not given weight. (ii) Sentencing judges are encouraged to quantify the effect of the plea on the sentence in so far as they believe it appropriate to do so. (at 160) 31 His Honour at the very outset of what were ex tempore Remarks on Sentence, no doubt delivered during the course of a busy list, merely referred to the fact that the applicant had pleaded guilty. His Honour did not however refer to the matters adverted to by this Court in Thomson & Houlton, including the not unimportant consideration that the pleas were entered at an early stage of the proceedings. In my view, his Honour was in error in not addressing those matters: see also R v Lao [2003] NSWCCA 315; R v Grbin [2004] NSWCCA 220. This Ground of Appeal has been established.

Ground Five 32 As I have observed, the sentencing judge gave the applicant the benefit of a finding of "special circumstances". That finding was clearly reflected in the way in which the overall effective sentence was structured. Indeed the effective non-parole period which was imposed was only 50% of the effective total sentence, a figure which represents a considerable departure from the normal statutory proportion. 33 Having made a finding of "special circumstances" there were a number of different ways in which the sentencing judge could have legitimately achieved the desired outcome. Accordingly the approach which his Honour adopted cannot be legitimately criticised upon the basis that he reflected his finding of "special circumstances" in respect of only one of the sentences which he imposed. One of the reasons which his Honour gave for finding "special circumstances" was the fact that the second sentence was to be partially accumulated upon the first sentence. The course taken by his Honour was thus not only open to him but it was a course which accorded with the proper application of the principles laid down in Pearce. This Ground of Appeal should be rejected.

Ground Six 34 The applicant's complaint is that the sentencing judge erred in making the following remarks: He was in fact on a bond at the time of these offences, which is a matter of aggravation, because it related to drugs, so it is not a matter that can be completely ignored. 35 On 8 October 2004 the applicant was sentenced to a 12 month good behaviour bond pursuant to s 9 Crimes (Sentencing Procedure) Act 1999 for possession of a prohibited drug, an offence which had been committed on 24 May 2004. The applicant was issued with a court attendance notice and was therefore not on bail in respect of it. The applicant entered the bond but immediately appealed the sentence. The lodging of the Notice of Appeal stayed the sentence: s 63 Crimes (Local Courts Appeal and Review) Act, 2001. Nor was the applicant on bail pending the hearing of the appeal. On 12 December 2004 he appeared before the Lismore District Court. His appeal was allowed and in lieu of the bond, a monetary penalty was imposed. 36 It is common ground that the applicant was not therefore subject to a bond at the time of either of the present offences and that his Honour erred in concluding that he was. Accordingly, this Ground of Appeal has also been established. 37 In my view, especially given the combination of errors which have been established, this Court should intervene and proceed to re-sentence the applicant. 38 I propose the following orders:

3 The sentences imposed in the District Court are quashed and in lieu thereof the following sentences are imposed.

4 In respect of count 1 (and taking into account the matters on a Form 1) the applicant is sentenced to a non-parole period to commence on 9 June 2005 and to expire on 22 September 2006 with a total sentence of 2 years which will expire on 8 June 2007. In respect of count 2 the applicant is sentenced to a non-parole period to commence on 9 June 2006 and to expire on 22 September 2006 with a total sentence of two years which will expire on 8 June 2008. The effect of these orders is that the applicant is to be released on parole today. 39 McClellan CJ at CL: I agree with Buddin J. 40 Rothman J: I agree with Buddin J. 41 McClellan CJ at CL: Accordingly the orders of the Court will be as indicated by Buddin J. **********

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