(2014) 252 CLR 601
Power v The Queen [1974] HCA 26
(1974) 131 CLR 623
R v Fidow [2004] NSWCCA 172
R v Simpson [2001] NSWCCA 534
Source
Original judgment source is linked above.
Catchwords
(2014) 252 CLR 601
Power v The Queen [1974] HCA 26(1974) 131 CLR 623
R v Fidow [2004] NSWCCA 172
R v Simpson [2001] NSWCCA 534
Judgment (5 paragraphs)
[1]
EX TEMPORE Judgment
BATHURST CJ: I agree with Schmidt J.
SCHMIDT J: On 5 February 2015 the applicant was convicted by a jury of a charge of supplying a prohibited drug, methylamphetamine, in an amount of 27 grams, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW). Wells DCJ sentenced him to a term of imprisonment of 2 years with a non-parole period of 18 months for that offence.
The applicant seeks leave to appeal that sentence on the basis that her Honour erred in overlooking the question of whether special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) had been established. Section 44 relevantly provides:
"44 Court to set non-parole period
(1) Unless imposing an aggregate sentence of imprisonment, when sentencing an offender to imprisonment for an offence, the court is first required to set a non-parole period for the sentence (that is, the minimum period for which the offender must be kept in detention in relation to the offence).
(2) The balance of the term of the sentence must not exceed one-third of the non-parole period for the sentence, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision).
(2A) …
(2B) …
(2C) …
(3) The failure of a court to comply with subsection (2), (2B) or (2C) does not invalidate the sentence.
(4) …
The Crown concedes the alleged error, it not having made any submissions to oppose the finding of special circumstances sought by the applicant. It submits, nevertheless, that the appeal would not be upheld, because the Court would conclude that no lesser sentence is warranted than that which her Honour imposed on the applicant (see s 6(3) of the Criminal Appeal Act 1912 (NSW)), essentially because any non-parole period less than that imposed would not adequately reflect the criminality of the applicant's offending. Accordingly, there was no scope for a finding of special circumstances in the sentence imposed.
In the circumstances the applicant must be granted leave to appeal. A submission was made to her Honour as to special circumstances. It was not referred to in the sentencing remarks. The offence carries a maximum penalty of 15 years. On sentence there had been an issue between the parties as to whether her Honour should make an intensive correction order, to which she said in her reserved judgment she had given close attention, but rejected, for reasons given. That only arose for consideration in the event that a sentence of imprisonment of not more than 2 years was imposed (s 7(1) Crimes (Sentencing Procedure) Act). Her Honour concluded that a custodial sentence had to be imposed, but she did not, however, deal with the question of the exercise of the s 44(2) discretion.
Given this and the end result of the sentencing exercise, like in Baghdadi v R [2012] NSWCCA 212, it must be concluded that this application, which was not in issue, was overlooked despite her Honour's reference to matters which were relied on to support the application.
[2]
The sentencing judgment
The applicant did not give evidence at trial, but he did give evidence on sentence, when various other evidence was led, including a presentence report, in which the applicant was assessed to be suitable for a community service order, an affidavit from his sister, a solicitor, as well as correspondence from his partner and father.
There was no challenge to her Honour's findings on that evidence, or to the conclusion that a custodial sentence of 2 years was warranted.
Her Honour found that the applicant, who resided at Tweed Heads, had flown on 26 January 2014 from the Gold Coast to Sydney, where he had hired a car to drive to Wollongong, where he had bought 28 grams of methylamphetamine most of which was found in his possession on arrest in the car on 27 January. Her Honour found his evidence that he had paid $6,000 for the drugs was implausible, given its weight and purity.
Her Honour accepted his evidence that he had not obtained the drugs with the view of supplying others, other than the acquaintance with whom he was in partnership in this venture. Despite his motivation as a user, however, she took account of the fact that it was a commercial venture designed to save the two offenders a significant amount of money and to get a better quality product for a lower price. In the result her Honour concluded that the applicant had put himself above the usual drug user/drug dealer into a position more akin to a drug courier/wholesaler, even if he was not distributing to a wider range of people. At least, her Honour held he intended to distribute a substantial quantity of high grade methylamphetamine to his friend, with a 50% cost and share agreed.
Her Honour also took into account that the applicant was on bail for a common assault charge, of which he was not finally convicted, at the time of this offence. On his own evidence that offending involved him in knowing breach of that bail.
Her Honour found the applicant's subjective circumstances to be that he was aged 30 at the time of arrest; he had a minor criminal record, which included, however, a robbery in company offence while a child, at a time of a very dysfunctional period of his life. His parents had split up when he was aged 6 years and he went to live with his father, who moved to a less desirable area and began to drink and gamble. His mother failed to maintain contact with him, he changed schools and mixed with an antisocial group, drinking alcohol, abusing cannabis and committing a robbery at age 13. He then left home, was declared a ward of the State and lived in a refuge.
By age 15, the applicant had become a single father. He has maintained parental contact with that child who lives with her mother. He now has four children. He had separated from his most previous partner, with whom he had a five year relationship and a six month old daughter, some four months before his offence. That separation led to a relapse into binge drinking and drug abuse, but he and his partner at the time of sentence intended to resume their relationship.
The applicant had left school early, after ongoing behavioural problems, but returned of his own accord and completed his schooling to year 12. He joined the navy, working ultimately as a navigations officer until age 21. He then worked in hotel management and also obtained civil construction certificates, including a riggers and dogman qualification, work which had pursued for 5 years and was performing on arrest, albeit then he was on light duties as the result of a workplace knee injury.
The applicant had also pursued further education in custody and was described by a teacher to be polite, conscientious and participating fully in all educational activities, including by assisting other students and working in his cell. Other references attested to his dedication to his work, improving himself, to his children and his family.
The applicant's drug and alcohol problems are of longstanding, including recreational methylamphetamine use on weekends for some four months before his offence. There was evidence, however, that his time in custody had had a significant impact, he did not wish to return to custody or offend again, given his recognition of the impact of what he had done. His evidence was that he was ashamed and embarrassed about his offending.
The amount of the drugs involved in the applicant's offending was not considered by her Honour to put his offending at the highest end of the scale, but she considered that it was more significant than that involved in the case of many other people who appear before the Court for such offending. Her Honour also considered that while this was an isolated act, it was relevant that there had been a considerable degree of premeditation.
Her Honour accepted that the applicant was very ashamed and remorseful and had no intention of ever reoffending, despite not having entered a plea. She also accepted that he never intended to return to prison and accepted that his prospects of rehabilitation were very good, given his intelligence, that despite his difficult upbringing he had educated himself, gained excellent employment, was devoted to his children and intended to continue to support them by gainful employment, which all provided him with great incentive not to offend again.
Her Honour considered the question of whether an intensive correction order was appropriate, but found that it was not, given his substantial drug trafficking, given the weight and purity of the drug, while on bail.
[3]
Is any lesser sentence warranted?
Once specific error in the sentencing exercise has been established, it is the duty of the Court to exercise the sentencing discretion afresh, exercising its independent discretion in order to determine whether the sentence is appropriate for the offender and the offence (see Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601 at [42]). On that exercise the Court must take account any evidence of relevant events which have occurred since the sentence hearing, but if the Court concludes either that the same sentence or a greater sentence, should be imposed, it is not required to resentence (see Kentwell at [43]). Affidavits of the applicant and his solicitor are relied on. They establish impressive progress in custody in fulfilment of his intention to pursue rehabilitation and not to offend again. He has available to him paid employment on his release.
A finding of special circumstances, which permits an adjustment downwards of the non-parole period, is a discretionary finding which must rest on a conclusion that the offender's circumstances are sufficiently special to warrant its exercise (see R v Fidow [2004] NSWCCA 172 at [22]). That requires the relevant circumstances first to be identified and then a decision to be made as to whether they justify a lowering of the non-parole period below the statutory ratio ( see R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704 at [73]; Fitzpatrick v R [2010] NSWCCA 26 at [36]). The exercise of the discretion must ensure that the non-parole period set reflects the minimum period of incarceration which the offender must serve for the offence in question, given all of the relevant circumstances of the case.
The matters here relied on as warranting the finding of special circumstances are that this is the applicant's first time in custody and that given the evidence of his drug abuse, he has an ongoing need for rehabilitation.
In the presentence report, reference is made to the applicant's reported alcohol and cannabis abuse from age 13 until the age of 25, when he progressed to amphetamine use. He reported a period of abstinence for some five years, but there had in 2012 been a conviction for possession and ice use began in December 2013, after his relationship breakdown. He was there assessed to be of low/medium risk of re-offending, given his alcohol/drug and emotional/personal problems. Relapse prevention was also identified to be necessary and a period of supervision beneficial. The applicant's evidence on sentence supported those conclusions, given his evidence as to his long term drug abuse, the circumstances in which he came to breach his bail, by his continued drug abuse and this offence, aimed as it was at facilitating that continued abuse, after the breakdown of his relationship.
The sentence imposed on the applicant will result in his supervision in the community if released on parole at the time that the applicant becomes eligible, for a period of six months. In all of the circumstances I have discussed, including that the applicant's offence, while serious as her Honour found, was pursued for personal use, I consider that there should be a finding of special circumstances. Both the applicant and the community would undoubtedly benefit from him having a longer period of supervision once released from custody, than the application of the statutory ratio will result in. That conclusion must, however, be balanced with the need to ensure that he serves an appropriate minimum period of actual incarceration, which adequately reflects all the elements of punishment, including rehabilitation, the objective seriousness of his crime and his subjective circumstances (see Power v The Queen [1974] HCA 26; (1974) 131 CLR 623 at 628-629).
In all of the circumstances I have discussed, I consider that the applicant should be resentenced to a non-parole period of 16 months, commencing on 5 February 2015 and expiring on 4 June 2016. The parole period of 8 months expires on 4 February 2017.
[4]
Orders
The orders I would propose are:
1. Leave to appeal is granted.
2. The appeal is upheld.
3. The sentence is quashed.
4. The appellant is resentenced to a term of imprisonment of 2 years, commencing on 5 February 2015 and expiring on 4 February 2017, with a non-parole period of 16 months, commencing on 5 February 2015 and expiring on 4 June 2016.
5. Under s 50(1) of the Crimes (Sentencing Procedure) Act the applicant be released on parole at the expiry of the non-parole period on 4 June 2016.
6. The applicant's parole be supervised and that he comply with all reasonable directions of the Department of Corrective Services relating to his ongoing treatment and counselling for substance abuse.
WILSON J: I agree with Schmidt J.
[5]
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Decision last updated: 23 May 2016