Solicitors:
McGirr Lawyers (Applicant)
C. Hyland, Solicitor for Public Prosecutions (Respondent Crown)
File Number(s): 2014/83999
Decision under appeal Court or tribunal: District Court of NSW
Jurisdiction: Criminal
Date of Decision: 10 July 2015
Before: Hanley DCJ
File Number(s): 2014/83999
[2]
Judgment
MACFARLAN JA: I agree with Hidden AJ.
PRICE J: I agree with Hidden AJ.
HIDDEN AJ: The applicant, Peter Reginald Jones, was committed for sentence in the District Court after pleading guilty in the Local Court to the following charges:
1. supplying a large commercial quantity of a prohibited drug, pseudoephedrine, an offence under s 25(2) of the Drug Misuse and Trafficking Act 1985 which carries a maximum sentence of imprisonment for life and a standard non-parole period of 15 years;
2. knowingly dealing with the proceeds of crime, an offence under s 193B(1) of the Crimes Act 1900 which carries a maximum sentence of 20 years imprisonment; and
3. possessing a prohibited weapon, an offence under s 7(1) of the Weapons Prohibition Act 1998 which carries a maximum sentence of 14 years imprisonment and a standard non-parole period of 3 years.
Two related charges of dealing with property suspected to be the proceeds of crime and supplying a quantity of methylamphetamine were to be taken into account on the sentence in respect of the first count.
He was sentenced to an aggregate sentence of 11 years imprisonment with a non-parole period of 7 years. The indicative sentences were as follows:
1. supplying the large commercial quantity of pseudoephedrine, taking into account the Form 1 offences: 9 years with a non-parole period of 5 years and 10 months;
2. knowingly dealing with the proceeds of crime: 4 years with a non-parole period of 2 years and 7 months; and
3. possess prohibited weapon: 12 months with a non-parole period of 8 months.
He seeks leave to appeal against that aggregate sentence on the ground that it is manifestly excessive.
The focus of the application is a narrow one, and it is sufficient to summarise the facts and the subjective material briefly. In March 2014, the applicant was involved with an accomplice in the transport of a quantity of pseudoephedrine by train from Perth to Sydney. The consignment consisted of two cardboard boxes in which there were a number of plastic tubs. Labels on those tubs conveyed that they contained various items of an innocent nature, but in fact they contained a little over 27 kilograms of pseudoephedrine. The value of the drug was in excess of $3,200,000. The matter had come to the attention of police, who intercepted the consignment upon its arrival in Sydney, removed the drug and replaced it with an inert substance, and allowed it to proceed to its intended destination, an address at North Ryde.
Upon its arrival in North Ryde, the accomplice picked up the consignment and conveyed it to a motel in West Ryde. There, the applicant picked it up and drove it to a garage at Kogarah. He was arrested at the garage. In the garage a quantity of methylamphetamine was found, and $885 was found in his wallet. That drug and that money were the subject of the Form 1 charges.
On the following day police executed a search warrant at the applicant's home. In the main bedroom were found quantities of cash totalling an amount in excess of $160,000. This was the subject of the second count, knowingly dealing with the proceeds of crime. Also found in a hallway cupboard was a homemade set of knuckledusters, the subject of the third count, possession of a prohibited weapon.
The sentencing judge made a number of factual findings, which need not be recited. It is sufficient to say that they led him to the conclusion that, although he could not characterise the precise role of the applicant in the enterprise, he was satisfied that it was associated with his being a drug dealer and that his involvement was for financial gain.
As to the applicant's subjective case, he was 44 years old at the time of the offences and is now 46. He had a minor criminal history, which his Honour did not see as disqualifying him from the leniency normally extended to first offenders. He had a difficult upbringing, marred by the experience of sexual abuse by an associate of his uncle and his own abuse of drugs from his early teenage years. His Honour found in the material some evidence of remorse, and allowed a 25% reduction of sentence in recognition of the early pleas of guilty. Here also, no issue was taken with his Honour's consideration of the subjective material and the weight he afforded it.
[3]
The application
The argument that the aggregate sentence is manifestly excessive centred upon the indicative sentence for the offence of possessing a prohibited weapon, imprisonment for 12 months with a non-parole period of 8 months. There was no complaint about the indicative sentences for the other offences. Counsel for the applicant, Mr Michael Smith, submitted that that offence did not call for a custodial sentence at all. He referred us to Judicial Commission statistics of sentences in the Local Court and the District Court for the offence of possessing a prohibited weapon, which disclose that in the Local Court the great majority of offenders were dealt with otherwise than by terms of imprisonment and in the District Court less than half of the offenders received prison terms.
It is appropriate to set out what the sentencing judge had to say about this offence in his remarks:
"The photograph at tab 5 on the Crown's sentencing bundle shows that the set of knuckledusters was made of solid metal with many jagged edges designed to cause serious injuries. This weapon can cause more serious injuries than a set of normal knuckledusters and so, it is more objectively serious. It is inherently a very dangerous weapon capable of causing serious but not necessarily life threatening injuries.
The range of "weapons" that can fall within this classification is extremely board and this item must be assessed within that context. There is no evidence it was used by the offender in the past or that it was in a position where others may have had access to it.
There is no evidence that he possessed it for the purpose of protecting the illegal drugs in his possession. There is no evidence the offender intended to use, sell or supply it."
In JM v R [2014] NSWCCA 297, RA Hume J set out the principles relating to aggregate sentences, with reference to authority, at [39-[40]. Relevantly for present purposes, his Honour observed that indicative sentences are not themselves amenable to appeal, although they may be a guide to whether error is established in relation to the aggregate sentence; even if the indicative sentences are assessed as being excessive, that does not necessarily mean that the aggregate sentence itself is excessive; and a principal focus of the determination of manifest inadequacy or excess is whether the aggregate sentence reflects the totality of the criminality involved: [40.11-13].
Mr Smith's submission in the present case was that, in the light of the mitigating features referred to by his Honour in the quoted passage from his remarks and the applicant's generally favourable subjective case, a custodial sentence for the offence of possessing a prohibited weapon would not have been called for. Accordingly, the indicative sentence for that offence was in error and that error infected the aggregate sentence as a whole. Mr Smith attempted - in my view, unsuccessfully - to calculate the extent to which that indicative sentence had contributed to the assessment of the aggregate sentence. As RA Hume J also observed in JM, this Court is not in a position to analyse issues of concurrence and accumulation in the same way that it can analyse traditional sentencing structures: [40.13].
Mr Smith frankly acknowledged that if this Court were of the view that a custodial term was open in respect of the prohibited weapon charge, the appeal must fail. I am of that view. It is well established that sentencing statistics, absent any information as to the bases upon which the sentences were arrived at, are of limited use in determining the appropriate sentence in a particular case: Hili and Jones v The Queen 242 CLR 520 at [48] (535), [2010] HCA 45. As I have noted, the offence carries a maximum sentence of 14 years imprisonment and a standard non-parole period of 3 years. While his Honour did identify some mitigating features in his remarks, those features must be balanced against his description of the set of knuckledusters in question and their capacity to cause serious injury.
Accordingly, I find no error in the indicative sentence for the prohibited weapon charge and I am satisfied that the aggregate sentence is an appropriate reflection of the totality of the criminality involved. I would grant leave for appeal but dismiss the appeal.
[4]
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Decision last updated: 21 October 2016