Kelly v R

Re-sentencing

1. I also have the misfortune to differ from the orders proposed by Hidden AJ, with whom Beazley P agrees.
2. I am of the view, having regard to all of the circumstances, that no less a sentence than that which was imposed was, in all the circumstances, warranted. As I would not make any adjustment to the commencement date of the sentence, I would dismiss the appeal.
3. HIDDEN AJ: The applicant, Andrew Graham Kelly, was committed for sentence in the District Court for an offence of supplying methylamphetamine which, by s 25(1) of the Drug Misuse and Trafficking Act 1985, carries a maximum sentence of 15 years imprisonment. He was sentenced to imprisonment for 3 years, comprising a non-parole period of 20 months and a balance of term of 16 months, commencing on 27 March 2017. He seeks leave to appeal against that sentence.
4. He was also dealt with for four other offences on a s 166 certificate, being possession of small amounts of methylamphetamine and cannabis and two charges of possessing ammunition without a licence, permit or authority. On each of those he was convicted but not otherwise punished, pursuant to s10A of the Crimes (Sentencing Procedure) Act 1999. These matters may be put aside. Facts
5. In May 2016, police in the Oxley local area command undertook an investigation of the applicant in relation to the supply of methylamphetamine. Monitoring of his mobile phone revealed messages indicating that he was supplying that drug. Investigating police established that he would drive to Sydney to source methylamphetamine to sell in the Tamworth region.
6. On 14 July 2016, the applicant drove from Tamworth to Sydney. There he obtained methylamphetamine and returned to Tamworth. Early on 15 July 2016, police stopped his vehicle and searched it. In it was found the quantity of methylamphetamine which was the subject of the s 166 certificate. The applicant was arrested and charged in relation to that offence. His vehicle was towed to Tamworth police station where a more comprehensive search was undertaken. In the rear indicator compartment there was found a quantity of methylamphetamine, which proved to be 115 grams of a purity of 71.5%. His home was searched and there were found, among other things, one hundred small resealable plastic bags and a set of digital scales with amphetamine residue.
7. It was agreed that at a wholesale level, the drug was worth between $8,000 and $12,000. Its street value was between $57,000 and $92,000. It was also agreed that the offending fell within the mid-range of objective seriousness.
8. From the information revealed by mobile phone intercepts, from the purity and quantity of the drug the subject of the charge, and from the paraphernalia of drug supply found at the applicant's home, the sentencing judge was satisfied that the offence charged was not an isolated incident, but rather an aspect of an ongoing business of supplying drugs in the Tamworth area which had been on foot from May to July 2016. I shall return to this aspect of his Honour's reasons as it is the subject of a ground of the application. Subjective case
9. The applicant was 28 years old at the time of the offence and is now 30. His criminal history is confined to a traffic offence, and is of no present significance. A pre-sentence report revealed that he had a loving and supportive upbringing, and that he still enjoyed the support of all members of a small but close knit family. He was married but the marriage had broken down about 18 months previously. He has no children. He operated a horse breaking business in and around the Kempsey region.
10. He told the author of the report that he began using substances when his marriage broke down. He described feelings at that time which the Community Corrections officer believed indicated "potential issues pertaining to depressive feelings." At the time of the offences he was using large quantities of ice daily. He said that he had been "feeling down" and a friend offered him the drug as a means of feeling better.
11. In July 2016 he sought to address his substance misuse by attending a 6 week intensive residential program at Byron Private Treatment Centre in Myocom. A letter from that Centre confirmed that he completed the program between 27 July and 7 September 2016, and that he participated in all aspects of it, including regular attendance at 12 Step meetings (both Narcotics Anonymous and Alcoholics Anonymous). It asserts that upon his discharge, he was committed to remaining abstinent from drugs and alcohol and intended to continue 12 Step Fellowship meetings for ongoing support.
12. There were in evidence testimonials from the applicant's mother, his uncle and aunt, and three friends, one of whom is the nursing unit manager at a Correctional Centre. They attest to his general good character and his determination to rehabilitate himself. The pre-sentence report records his awareness of the impact which his offending has had on members of his family, and his stated desire to maintain abstinence from drugs and, consequentially, from further offending. His having sought treatment was seen to indicate "a desire and willingness on his behalf to address his substance use issues." An actuarial risk/needs assessment tool pointed to his being at a "medium/low risk of re-offending."
13. The sentencing judge was satisfied that the "downward spiral" of the applicant's life could be traced to the breakdown of his marriage and the drug use which it engendered. His Honour also expressed himself to be satisfied that he was "well on the way to rehabilitating himself" and had made "genuine efforts in that regard." He found special circumstances so as to foster that rehabilitation, and thought it unlikely that the applicant would re-offend in any way. He reduced the sentence by 25% for the utilitarian value of the plea of guilty. The application
14. Counsel for the applicant, Mr Dhanji SC, argued the application on three grounds. It is convenient to deal immediately with the third ground, as it is conceded by the Crown and it is agreed that this Court's discretion to re-sentence has been enlivened. The ground is as follows:
15. The learned sentencing Judge erred in that he impermissibly constrained his sentencing discretion by sentencing the applicant on the basis that a full time custodial sentence was to be imposed unless the applicant could demonstrate exceptional circumstances.
16. This matter was dealt with before the decision of this Court in Parente v R [2017] NSWCCA 284. In that case a five judge bench considered the decision in R v Peter Michael Clark (Court of Criminal Appeal (NSW), 15 March 1990, unrep), in which it was said that drug trafficking in any substantial degree should lead to a custodial sentence (that is, a sentence of full time imprisonment) unless there were exceptional circumstances justifying a non-custodial order. In Parente the Court held that the Clark "principle" is incompatible with the judicial sentencing discretion and should no longer be applied.
17. In his reasons his Honour recorded a concession by the applicant's representative in the District Court that his subjective case did not amount to "exceptional circumstances", a proposition with which his Honour agreed. His Honour then referred to the decision of Fullerton J in Smaragdis v R [2010] NSWCCA 276 at [31]-[36], where her Honour discussed what does and does not constitute exceptional circumstances.
18. Clearly, the reference to "exceptional circumstances" in that passage arose from the Clark approach, and it was that same approach which was the subject of the observations of Fullerton J in the relevant passages of Smaragdis. In the light of the subsequent decision in Parente, that approach is erroneous.
19. As the Court is now called upon to consider the sentence afresh, it is strictly unnecessary to determine the other two grounds of the application. However, it is appropriate to consider the issues raised by them as they would be relevant if the applicant is to be resentenced.
20. The grounds are that the sentencing judge erred: 1. in the manner in which he had regard to criminal conduct of the applicant with which he had not been charged; 2. in failing to demonstrably take into account the time spent by the applicant in rehabilitation. Uncharged conduct
21. As I have said, the applicant was sentenced on the basis that the offence was not an isolated incident but, rather, was an aspect of an ongoing enterprise. It is appropriate to set out the whole of this part of his Honour's reasons: It is also relevant to observe that his possession for supply on this particular occasion is merely an aspect of a longer period of supply which had been identified by police some time after May, and so therefore one can see that this possession on this occasion was not an isolated incident, but rather was an aspect of an ongoing business of supplying drugs in the Tamworth area which had been on foot during that period, May to July 2016. It is clear that the offender had a particular part of the vehicle which was used for the storage and transport of the drugs, which was only located upon a more thorough search of the vehicle once it had been taken into custody by the police. Whilst the conduct itself does not have the hallmarks of an excessive degree of sophistication, it is unquestionably the case that the conduct was planned; it is unquestionably the case that it was persistent; and it was unquestionably the case that large profits were involved, both potentially, and in my respectful view, actually, having regard to what are the agreed facts.
22. The applicant stood for sentence for the offence of supplying methylamphetamine on 15 July 2016. However, it was common ground that his Honour was entitled to have regard to uncharged conduct of a similar nature casting light on the context of the offence, so as to demonstrate that the applicant was not entitled to the leniency which he might otherwise have been afforded if the offence were an isolated incident. The uncharged conduct may not be taken into account so as to lead to the imposition of a higher sentence than would be merited for the offence charged. So much has been well established in child sexual assault cases where the offences charged are frequently part of a wider pattern of abuse: see, for example, Holyoak v R (1995) 82 A Crim R 502 at [510]-[511].
23. That line of authority was examined at some length by Spigelman CJ in R v JCW [2000] NSWCCA 209; (2002) 112 A Crim R 466, and his Honour affirmed it at [52]. The principle has been applied in a number of subsequent decisions in this Court and is not in doubt. As to an admission by the applicant in JCW that the particular counts with respect to his daughter with which he was charged were "representative", the Chief Justice said that an admission of that character could be taken into account "for purposes of rejecting any claim to mitigation and attendant reduction of an otherwise appropriate sentence", but not as a circumstance of aggravation.
24. Mr Dhanji submitted that in the passage from his reasons quoted above his Honour crossed the line, so as to sentence the applicant not just for the instant offence but for other criminal conduct. He relied in particular on his Honour's assertion that the "conduct" was planned and persistent, and that large profits were involved, both potentially and actually. Mr Dhanji pointed out that there was no actual profit from the offence charged because the drug was recovered. The passage from the remarks as a whole, he argued, conveys that his Honour saw the conduct for which the applicant stood for sentence as embracing the pattern of dealing disclosed in the statement of facts.
25. The Crown prosecutor responded that his Honour's observations related to the uncharged conduct to which he was entitled to have regard to determine the offence charged was not isolated, and it was material consistent with a finding that the instant offence was "deliberate, determined and planned, in contrast to being on the spur of the moment and out of character." However, he added - and Mr Dhanji agreed - that those inferences could be drawn from the facts of the offence itself, given the quantity and purity of the drug, the way in which it was concealed in the car, and the paraphernalia of drug supply found at the applicant's home.
26. In my view, there is force in Mr Dhanji's submissions on this ground. However, it is sufficient to say that if this Court were to re-sentence, it should do so simply on the basis that the offence charged was planned and was not an isolated incident. Period in rehabilitation
27. His Honour said in his reasons that he took into account some bail conditions, which he saw as a fetter on the applicant's "absolute liberty", and also the six week period he spent in the residential rehabilitation centre. No doubt his Honour did so as part of the instinctive synthesis in arriving at the appropriate sentence. However, Mr Dhanji argued that the sentence should have been backdated to reflect that period of residential rehabilitation.
28. Sentence was passed on 6 April 2017 but, as I have said, it was directed to commence on 27 March 2017. The applicant had been arrested on 16 July 2016, and was in custody until 26 July, when he was released on bail on the condition that he enter the residential rehabilitation program. That was a period of 11 days, and it is clear that his Honour backdated the sentence only to reflect that period.
29. Mr Dhanji relied upon authority that an offender should be given recognition and credit for time spent in rehabilitation. This is on the basis that residential rehabilitation may amount to a period of quasi-custody, so that it is appropriately recognised by backdating the sentence to some degree. Mr Dhanji referred to a line of authority to this effect.
30. It is sufficient to cite the decision of Hughes v R [2008] NSWCCA 48; (2008) 185 A Crim R 155, where the Court held that a sentence should have been backdated to recognise a period of 103 days which the applicant had spent in residential rehabilitation programs. Grove J, with whom McClellan CJ at CL and Simpson J (as she then was) agreed, said at [38]: It is appropriate for an offender to receive recognition and credit for time spent in rehabilitation which has been productive: R v Eastaway (unreported, NSWCCA 19 May 1992). An allowance of approximately 50 percent of the credit that would be given in respect of pre-sentence custody has been endorsed: R v Douglas (unreported, NSWCCA 4 March 1997). Pre-sentence custody and the similar concept of rehabilitation "custody" is preferably catered for by backdating of the commencement date of sentence: R v McHugh (1985) 1 NSWLR 588. What is here involved is therefore a potential backdating of a little over fifty days. I would reject the Crown submission that this ground should be rejected because that period is de minimis.
31. Hughes was relied upon more recently in Brown v R [2013] NSWCCA 44; (2013) 228 A Crim R 298, in the judgment of Fullerton J (with whom Bathurst CJ and Beech-Jones J agreed) at [21]-[22]. In that passage her Honour also referred to two of the earlier cases dealing with the need to afford recognition and credit for time spent in rehabilitation: R v Campbell [1999] NSWCCA 76 and R v Delaney (2003) 59 NSWLR 1;[2003] NSWCCA 342.
32. The Crown prosecutor referred to the judgment of Adamson J (with whom Gleeson JA and R A Hulme J agreed) in Bonett v R [2013] NSWCCA 234 at [48]-[50]:
33. The applicant relied on the principle that where a sentencing judge has failed to take into account time already served, the sentence must be corrected even in circumstances where the time already served was not referred to or otherwise brought to the attention of a sentencing judge. It does not, however, follow from the correctness of this principle that so-called quasi-custody must be treated in the same way.
34. The time for which the offender has been held in custody in relation to the offence is a mandatory relevant consideration by reason of s 24(a) of the Crimes (Sentencing Procedure) Act. Accordingly it is an error of law to fail to take it into account: Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; 162 CLR 24 at 39-40 per Mason J.
35. Whether restrictions outside of gaol amount to quasi-custody is a question of fact: see for example R v Cartwright (1989) 17 NSWLR 243 at 258 per Hunt and Badgery-Parker JJ and R v Serratore [2000] NSWSC 696 per Kirby J at [31]-[35]. The weight to be given to any such quasi-custody in reducing the sentence imposed is a matter for the discretion of the sentencing judge. Although quasi-custody may be a relevant consideration it is not a mandatory relevant consideration. However, in circumstances where there is an evidentiary foundation for its being taken into account, the sentencing judge may be obliged, in some circumstances, to have regard to it even when not specifically asked to.
36. The Crown prosecutor relied upon that passage as authority for the proposition that quasi-custody - where conditions resemble imprisonment - may be taken into account by way of an express reduction in sentence, but it is not an error not to be taken into account in that way. I do not understand her Honour to have been saying that where pre-sentence conditions amounting to quasi-custody are established, a judge need not have regard to it at all. When her Honour said that quasi-custody "is not a mandatory relevant consideration", I understand her to be saying that, unlike pre-sentence prison custody, it is not a consideration spelt out by statute.
37. Of course, the first question the sentencing judge must determine is whether the conditions of an offender who has been in some form of rehabilitation amounted to quasi-custody warranting an adjustment of sentence. That was the issue in Bonett: see her Honour's judgment at [52]ff. If conditions amounting to quasi-custody are established then, as her Honour said, the extent to which the sentence should be adjusted is a matter for the discretion of the sentencing judge. Her Honour did not, and did not need to, address the issue of how a sentence should be adjusted to recognise a period of quasi-custody.
38. As I have said, in the present case his Honour said that he had taken into account the applicant's period in the residential rehabilitation centre. Mr Dhanji's only complaint is that that recognition should have been effected by backdating the sentence. The applicant was in the program for six weeks and Mr Dhanji argued that, applying the reasoning in Hughes, the sentence should have been backdated by three weeks. He acknowledged that that was a short period only, but pointed out that the sentence would undoubtedly have been backdated if the applicant had been in prison custody for three weeks prior to sentence. He noted Grove J's reference in the passage from Hughes quoted above to "presentence custody and the similar concept of rehabilitation custody", citing the well-known decision in R v McHugh (1985) 1 NSWLR 588 dealing with backdating a sentence to take account of presentence prison custody.
39. Evidence of conditions at the Byron Private Treatment Centre, where the applicant undertook the course of rehabilitation, was rather spare. The letter from that Centre describes the program as "intensive" and records that, apart from the 12 Step meetings, it consisted of individual and group therapy, psycho-educational groups and a three day family program. Certainly, he was committed by conditions of his bail to reside at the Centre and to accept any treatment reasonably recommended. A responsible person from the Centre was required to undertake to inform police if he "self-exited" or was ejected from the program. In the absence of further evidence, a finding that the program amounted to quasi-custody might be seen as borderline, but it was open to his Honour to reach that conclusion.
40. In all the circumstances, I consider Mr Dhanji's submissions to be sound, and that the course he advocated should be adopted. If the Court does resentence it should be backdated by a further three weeks.
41. Since preparing this judgment, I have read in draft the judgment of Garling J. His Honour considers the issue of quasi-custody and, in particular, sets out a number of factors bearing upon it. The issue was not canvassed to that extent in argument and, while I respectfully appreciate the force of his Honour's observations, I would prefer to express no concluded view about them. Re-sentence
42. On the question of resentence the Court must have regard to the principles relating to sentencing for drug supply offences reiterated in Parente (supra) at [107]ff. It is sufficient to set out [108]-[112]:
43. First, it is necessary for a sentencing court to be mindful of the purposes of sentencing listed in s 3A of the Crimes (Sentencing Procedure) Act which include "(b) to prevent crime by deterring the offender and other persons from committing similar offences" and "(c) to protect the community from the offender".
44. Since at least the 1970s (see the cases referred to above at [63]ff) there has been no doubt about the importance of general deterrence in drug supply cases. An inherent characteristic of most activity relating to illicit drug supply is that participants take steps to ensure it is carried out covertly with the result that significant resources have had to be devoted by law enforcement authorities to detection and successful prosecution. A consistent message of deterrence from sentencing judges is necessary.
45. Further, having regard to the social impact of drug use, particularly as an underlying cause of other criminal offending, protection of the community will usually be of significance as well.
46. Secondly, it is necessary for sentencing judges to remain mindful of the maximum penalty and any standard non-parole period. They are legislative guideposts (Muldrock v The Queen (2011) 244 CLR 120 at 132 [27]; [2011] HCA 39) and for drug supply offences they are set at a high level. Gleeson CJ, Gummow, Hayne and Callinan JJ spoke of the importance of having regard to the maximum penalty in Markarian v The Queen at 372 [31] as follows: "[C]areful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick."
47. Thirdly, Simpson JA in Robertson v R [[2017] NSWCCA 205] at [50] was, with respect, correct to observe: "[I]t may be accepted that examination and analysis of sentencing practices establishes that, where the facts of an offence demonstrate drug dealing "to a substantial degree", a sentence of imprisonment will ordinarily be imposed. Moreover, recognition of the serious social implications of drug dealing (reflected, if in nothing else, in the maximum prescribed sentences) suggests that, in the ordinary case, a sentence other than imprisonment will fail to meet sentencing objectives."
48. The present offence is a serious one. As I have said, the offence was planned and was not an isolated incident. The amount of methylamphetamine involved, 115 grams, was close to half of the commercial quantity for that drug (250 grams) and the purity of 71.5% was high. The potential value of the drug, both at the wholesale and the street levels, was substantial. As I have also said, it was accepted in the sentence proceedings that the offence stood within the mid-range of objective seriousness, and no issue has been taken with that in this Court.
49. The Crown Prosecutor noted that, having found special circumstances, his Honour fixed a non-parole period of 20 months which, in round figures, was only 55% of the head sentence of 3 years. As to the sentence as a whole, he submitted that no lesser sentence was warranted and that the appeal should be dismissed.
50. Mr Dhanji accepted that a sentence of full time imprisonment was within the range, but argued that a lesser sentence should have been passed. He relied upon the applicant's subjective case: in particular, his plea of guilty, his lack of any relevant prior offending, the fact that the offence and its origin in his drug use, and his demonstrably good prospects of rehabilitation.
51. Mr Dhanji referred to a number of cases of sentence for supplying methylamphetamine dealt with in this Court, some where sentences in the District Court were affirmed and others where this Court resentenced. Some of these were also cited by the sentencing judge. They were: Quayle v R [2010] NSWCCA 16 Scott v R [2010] NSWCCA 103Tabuan v R [2013] NSWCCA 143 R v West [2014] NSWCCA 250 Kelloway v R [2016] NSWCCA 95 Mr Dhanji acknowledged the qualifications in doing so, citing Hili v The Queen, Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45.
52. Generally, there is no need to go to the detail of these cases. They involved sentences ranging from 20 months with a non-parole period of 15 months (Scott) to 3 years with a non-parole period of 2 years (West - the sentence the Court indicated it would have passed on a Crown appeal if it had not exercised its discretion not to intervene). In some cases sentences were passed after pleas of guilty, in others after trial. As one would expect, the facts of the offences and the offenders' subjective circumstances vary widely, but there are some broad parallels.
53. Mr Dhanji relied in particular on Quayle, in which the offender was dealt with for two charges of supplying methylamphetamine. He was found guilty of the charge earlier in time after a trial, but pleaded guilty to the later charge. He was on bail in respect of the first offence when he committed the second. The offences involved lesser quantities than the present case. The first offence involved a little over 51 grams of the drug, and the second offence 67 grams. He had a positive subjective case somewhat similar to that of the present applicant. The Court allowed his appeal, and on the first charge sentenced him to imprisonment for 3 years with a non-parole period of 18 months and on the second charge (after a 25% discount for the plea of guilty) to 2 ½ years with a non-parole period of 18 months. After partial accumulation, the effective sentence was 3 years and 3 months with a non-parole period of 1 year and 9 months.
54. In Scott, the offender had been found guilty at trial of supplying a quantity of methylamphetamine substantially less than the present case (just over 27 grams). He also had a subjective case similar to the present applicant. Again the Court allowed his appeal, resentencing him to imprisonment for 20 months with a non-parole period of 15 months. In West, where this Court thought the appropriate sentence to be 3 years with a non-parole period of 2 years after a 25% discount for a plea of guilty, the offence involved 245 grams of methylamphetamine and the respondent was noted to have been "trafficking in drugs to a substantial degree:" [30].
55. Insofar as any guidance is provided by these cases, the sentence in the present case is conformable with them. After careful consideration, I am satisfied that no lesser sentence is warranted. The sentence properly reflects both the gravity of the offence and the applicant's favourable subjective case, the latter being given further recognition by a generous allowance for special circumstances. However, I am also satisfied that the sentence should be backdated by a further 21 days in recognition of his residential rehabilitation. As I have said, the commencement date of the sentence directed by his Honour, 27 March 2017, takes account of his initial brief period of custody. Backdating the sentence a further 21 days, it should commence on 6 March 2017. Orders
56. I would propose that leave to appeal be granted, and the appeal be allowed in part. I would confirm the sentence passed in the District Court, but would direct that it commence on 6 March 2017. The applicant will become eligible for release on parole on 5 November 2018.

Amendments 28 March 2018 - Solicitors for Applicant 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: 28 March 2018