Knight v R

Facts

1. A Statement of Agreed Facts was tendered to the sentencing Judge. A brief summary of these facts is set out below.
2. In December 2012, the police commenced an investigation into allegations of the supply of methylamphetamine and other illicit drugs from Sydney to western NSW and in particular, the Bourke region. During the course of that investigation, police identified an individual who lived at St Marys, who was using the applicant Mr Knight, who lived in Bourke, to transport illicit drugs between Sydney and Bourke and sell them on his behalf.
3. The operations of the applicant and his supplier were electronically and physically monitored.
4. The first offence occurred on 24 April 2013, when the applicant met his drug supplier in Dubbo. He was given a package containing 14gms of methylamphetamine. The applicant took the drug to the Bourke township and sold the drug in small quantities. For his role in this part of the dealing, the applicant received 3.5gms of methylamphetamine which he sold to make a profit for himself.
5. The second offence occurred on 12 May 2013. On this occasion, the applicant met with his drug supplier in Narromine. The applicant was supplied with 14gms of methylamphetamine. At the time he was accompanied by a young 15 year old male juvenile and his adult brother. The applicant concealed the drugs and then drove with his brother and the 15 year old male juvenile to Dubbo to collect his brother's car. Whilst there, he purchased numerous, small, re-sealable bags to facilitate the sale of the methylamphetamine. The applicant paid the 15 year old to return to Bourke with his brother, collecting the drugs from their hiding place on the way. The applicant again received 3.5gms of methylamphetamine as his reward for participating in this drug transaction and which he sold at a profit.
6. The third offence occurred on 8 June 2013, when the applicant came to Sydney from Bourke to watch a rugby league match. He met with his drug supplier and obtained a further 14gms of methylamphetamine. The applicant returned to Bourke with the drugs and sold them. For his role in this enterprise, the applicant received 3.5gms of methylamphetamine which he sold to make a profit for himself.
7. The fourth count occurred on 16 July 2013, when the applicant again travelled to Sydney to watch a rugby league game. He brought the 15 year old male juvenile with him. He also brought a grandson and a nephew aged 7 and 10 respectively. Before returning to Bourke, the applicant contacted his drug supplier and made arrangements to collect 14gms of methylamphetamine. The exchange occurred at a shopping centre in Penrith. The applicant, the 15 year old, and his young family members went to a nearby park where the parcel containing the drugs was handed by the applicant to the juvenile, who concealed the parcel of drugs inside his underwear.
8. As the applicant was returning by motor vehicle to Bourke on that evening, he was stopped by police in the Blue Mountains area. The 15 year old was searched and found to be hiding the parcel of drugs in his underwear. The applicant was arrested.
9. Upon his arrest the applicant told the police that the drugs belonged to him and he had asked the 15 year old to courier the drugs to Bourke to reduce their chance of detection by police. Upon analysis, there was found to be 9.73gms of illicit drugs.
10. The offence placed on a Certificate under s 166 of the Criminal Procedure Act alleged that between April and July 2013, the applicant resided at specified premises in Bourke. It was alleged that at those premises during those times, he knowingly allowed, and was involved in, the unlawful supply of prohibited drugs from the premises ("the s 166 offence").
11. Upon his arrest on 16 July 2013, the applicant was taken to the Penrith Police Station where he participated in an electronically recorded interview. During the course of the interview, the applicant admitted to each of the offences, and was remorseful about committing them, telling the investigating police that he was pleased that he had gotten caught and knew that what he was doing was silly.
12. The applicant told the police he became involved in the offences because he was unable to get work, and needed income to support himself and his family.
13. The applicant pleaded guilty to the four offences and as well the s 166 offence, on 6 March 2014, at the Bourke Local Court. He maintained those pleas when brought before the District Court.

Proceedings on Sentence

1. The applicant ultimately came before the District Court on 22 September 2014. He was indicted, and he pleaded guilty to the four counts on the indictment. He also agreed that he was guilty of the charge that was placed on the s 166 Certificate.
2. A pre-sentence report dated 24 March 2014, was tendered by the Crown. A number of documents were tendered on behalf of the applicant, who gave evidence himself before the sentencing Judge.
3. The applicant, a mature Aboriginal man, in his evidence told the Court that he came from a large family. He was the youngest of 15 children. He told the Court that he had engaged in the transaction because of his financial difficulties through being unemployed. He said that he had been stupid to engage in the crime, particularly getting his young cousin involved, and he felt that he had let his family and his community down with his conduct.
4. He outlined what he had been doing in an attempt to make good his offending conduct by getting involved in a number of community projects. He said in effect that he had taken significant steps towards his rehabilitation.
5. In cross-examination, he agreed that he understood the danger which illicit drugs could cause in the community, and that he had engaged in the conduct notwithstanding that he had seen those effects. He told the Court that he had made between $5,000 and $6,000 out of his illicit drug transactions which he had dealt with by spending it on clothing, fuel, food and ordinary bills, for himself and his family.
6. A Mr Stephen James Howarth gave evidence. He was a project officer with the Department of Education, Communities and Aboriginal Affairs. Mr Howarth is the applicant's nephew.
7. He gave evidence of what his uncle, the applicant, had been doing since his arrest. He said that there had been a substantial change in his life, and in his attitude towards the community and particularly his family. He also noted that the applicant had engaged extensively in caring for his elderly mother, and also other members of his family.
8. In particular, he gave evidence of a very recent approach to the applicant by the principal of the High School to assist in the role as a teacher's aide with a number of young indigenous adolescents in Years 9 to 12, who were students at the local high school.
9. The Pre-Sentence Report tendered by the Crown noted that the applicant had the fulltime care of his year old grandson, and played an active role as a grandfather to his other grandchildren. It noted that the applicant left high school at about 15 years of age, and from that time had casual employment in a variety of occupations.
10. The applicant told the Community Corrections Officer that he had experienced episodes of depression and anxiety, but no psychiatric report was tendered.
11. The Community Corrections Officer considered that the applicant would benefit from a period of supervision by Community Corrections, and the implementation of various case management strategies, including referral for assessment and ongoing counselling with a visiting psychologist, referral to a relevant local job network agency, ongoing interview and contact with Community Corrections, and referral to TAFE and community agencies for financial counselling and ongoing budget analysis and financial management.
12. The Community Corrections Officer assessed the applicant as being suitable for a Community Service Order under s 86(1) of the Crimes (Sentencing Procedure Act) 1999 ("Sentencing Procedure Act").
13. The first of the documents tendered in the applicant's case consisted of a letter which he himself wrote to the Court for the purposes of the sentencing. In that letter, he expressed his shame at his conduct, and noted that he had had a period of about 12 months to reflect upon the inappropriateness of it.
14. He also described to the sentencing Judge his activities which he voluntarily commenced after he was charged, which he was doing to benefit the community. This involved making headstones for the graves of many people who had not had headstones erected. The headstones which he provided were done for free, at his own cost. Many of the people who received them did not have the financial capacity to pay for a professionally made headstone. Their expressions of gratitude were also noted.
15. He also noted that he had undertaken a course at TAFE, including helping young indigenous people living in Bourke to undertake the same course that he was doing. He assisted with the course and working with the young indigenous people.
16. He also described how he had been filling in as a teacher's aide at the approach of the Principal of the High School. He had been recommended for that job by a police officer in Bourke, who was responsible for the Police Citizens Youth Club.
17. The applicant described how he saw his new role as being a leader in his community, and that it represented a significant change in his life.
18. There were also a series of character references which spoke highly of the applicant, and in particular his work in providing of headstones for graves of people who could not afford them. As well as the references from individuals who all spoke highly of the applicant, the Court was provided with a document relating to a variety of penalties imposed for people convicted of similar or analogous offences.
19. In submissions to the sentencing Judge, the applicant's counsel accepted that whilst the applicant was suitable for an intensive correction order, it would be unlikely to be open to the Court at that time to impose such an order because, as he conceded, the overall length of imprisonment would need to be more than 2 years. The applicant's counsel also conceded that a suspended sentence, under s 12 of the Sentencing Procedure Act was not appropriate.
20. What the applicant's counsel sought was to have the applicant further remanded for a period of about 1 year so that the Court could have a real sense of his rehabilitation. The applicant's solicitor submitted that such an approach was permissible under s 11 of the Sentencing Procedure Act.
21. The applicant's counsel concluded with the submission that a sentence in the vicinity of 2½ years as a total term, and somewhere between 12 and 18 months as a non-parole period, was appropriate.
22. The Crown relied upon the nature of the offence and the total quantity of drugs, which was about ten times the indictable quantity, the particular community to which the drugs were supplied and that children were in the vicinity of the drug supply and the involvement of the applicant's 15 year old nephew, as all being matters of aggravation. The Crown also pointed to the fact that the drug supply took place out of financial motivation and that that was ordinarily regard by courts as being a matter of aggravation.
23. The Crown drew attention to the applicant's past criminal history, which included convictions in the Bourke District Court of supplying cannabis at higher than the indictable quantity but less than the commercial quantity. For one offence the applicant was imprisoned with a non-parole period of 7 months commencing 10 April 2008 with an additional term of 4 months and 22 days. For another offence of supplying a prohibited drug greater than the indictable quantity, which was not cannabis, the applicant was sentenced to a term of imprisonment of 6 months commencing on the same date.
24. The applicant's other offences, whilst relatively regular, were not relevant for the sentence in these matters.

Remarks on Sentence

1. His Honour commenced by identifying the offences with which the applicant was charged, and to which he had pleaded guilty. He identified the evidence that was put before him, including the agreed set of facts. He summarised those facts.
2. His Honour acknowledged the applicant's criminal history and indicated that he was persuaded that the case before him was one which indicated a very high level of remorse and contrition on the part of the applicant "… which is neither feigned nor is it expedient. It is real and that is amply underscored by his full and frank admissions to the police".
3. His Honour noted the extent of the financial gain to the applicant, which he described as "not an insignificant sum".
4. His Honour had regard to the applicant's subjective case and circumstances, the references which were tendered, and newspaper reports which were put before him recounting what the applicant had done in the community since his arrest. His Honour indicated that he accepted the evidence of the applicant unreservedly.
5. His Honour specifically referred to the lengthy period of time for which the applicant had been on bail (about 15 months) during which time he had reported to police every day and had not re-offended.
6. The sentencing Judge acknowledged that the applicant should receive a 25% discount for his plea of guilty. He referred to the fact that general deterrence, rather than specific deterrence, in this case meant that a full-time custodial sentence was not only appropriate, but was inevitable. He rejected submissions that he should deal with the applicant by way of a remand under s 11 of the Sentencing Procedure Act.
7. His Honour concluded that there was virtually no risk of the applicant reoffending and that specific deterrence did not loom large in the particular case. His Honour made a finding that special circumstances was appropriate, particularly by way of allowing the applicant to continue his good work in the community.
8. His Honour referred to the principle of totality and considered that it was appropriate to proceed by way of an aggregate sentence.
9. He said that with respect to each offence by way of indicative sentence, he would have imposed a sentence of 1 year and 9 months. With respect to the s 166 offence his Honour indicated a sentence of 3 months.
10. Having reviewed all of these matters, his Honour then in an evaluative determination by way of an aggregate sentence, imposed a non-parole period of 1 year and 9 months from 22 September 2014 to 21 June 2016. He imposed a balance of term of 1 year and 7 months to expire on 21 January 2018. His Honour noted that the total sentence was 3 years and 4 months.

Was the Sentence Manifestly Excessive?

1. On this application, counsel for the applicant submitted that the aggregate sentence of 3 years and 4 months in total, with a non-parole period of 21 months, fell outside the permissible range of sentences when considering the particular facts and circumstances of the applicant, and the nature of the offences themselves.
2. Counsel did not submit that there was any identifiable error of fact, or identifiable misapplication of legal principles. Rather, counsel sought to argue that the sentence itself was "unreasonable or plainly unjust": see Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520 at [58].
3. The submissions pointed to the fact that the quantity of the drug was a relevant factor, and that the quantity involved in each offence, namely 14gms or less, was an amount towards the very lowest end of the range for an indictable quantity.
4. Counsel for the applicant submitted that the applicant's role was that of a street dealer and, accordingly, that he was the person most likely to be detected and arrested by police. She submitted that the applicant occupied a role at the bottom end of any hierarchy of drug dealing.
5. Counsel for the applicant pointed to the indicative sentences and submitted that an indicative sentence of 21 months for a single offence of supplying 14gms of methylamphetamine was "alarmingly high" for a street dealer, who had a very strong subjective case.
6. Counsel drew attention to statistics from the database maintained by the Judicial Commission of New South Wales which noted that 70% of offenders who pleaded guilty to a single offence under s 25(1) of the Trafficking Act, did not receive a full-time term of imprisonment, and 85% of those who were sentenced to jail, received a head sentence of 24 months or less.
7. By reference to the Judicial Commission statistics for offenders charged with multiple offences, counsel submitted that this applicant had received both a non-parole period and a total period of imprisonment which was in the top one third of all offenders.
8. Ultimately, counsel for the applicant submitted that, having regard to the very strong subjective case put forward by the applicant, this Court should infer that the sentencing Judge failed to properly exercise his discretion and that this Court should conclude that there must have been an error even though it was impossible to identify: see Wong v R [2001] HCA 64; (2001) 207 CLR 584 at 605 [58].
9. Counsel concluded her submissions in this way: "Section 3A of the Act mandates the purpose for which a court imposes the sentence, one basis being to promote the rehabilitation of an offender. Likewise, specific deterrence and the protection of the community are key objectives. Yet his Honour found that the applicant was virtually at no risk of re-offending, therefore specific deterrence did not loom large and consequentially the protection of the community has been met through the applicant's self-initiated rehabilitation. When one adds into the equation the considerable remorse, in addition to that which is reflected through full and frank admissions and an early plea of guilty, a sentence placing this offender in the top one third of the sentencing range is manifestly excessive."

Submissions of the Crown

1. The Crown submitted that the objective seriousness of the offences merited the sentence which was imposed. The Crown pointed to the fact that the applicant engaged in the offences for the purpose of deriving profit and that he conceded that he had made a significant sum of money - $5,000 to $6,000 - from the transactions over the space of about three months.
2. Secondly, the Crown submitted that the offences were aggravated in respect of Counts 2 and 4 by the applicant's use of the 15 year old male juvenile, and by the presence of the two other young family members during Count 4. The Crown pointed to the fact that the applicant's lengthy criminal record did not entitle him to any particular leniency, and that it was necessary to keep in mind that the maximum penalty of 15 years imprisonment applied to each count on the indictment.
3. It pointed to the repetition of offences across a period of time as indicating that the criminality of the applicant was serious.
4. The Crown submitted that there was no reason to conclude that the sentence was manifestly excessive.

Discernment

1. The sentence imposed by Robison DCJ reflected a 25% discount for the utilitarian value of the applicant's early plea of guilty.
2. His Honour did not make a clear finding about the objective seriousness of each of the offences. He said that he needed to be mindful of the objective seriousness of each of the offences. He remarked upon the adverse effect of illicit drugs in the community. He also found that such was the "level of offending", and the level of moral culpability of the applicant, that the matter was not appropriate for an order under s 11 of the Sentencing Procedure Act.
3. The offences were deliberate. They were engaged in for the purpose of financial reward. There is no suggestion that the applicant was motivated by greed. Rather, he used the money to provide for his family. The offences required a degree of pre-planning and organisation. The applicant involved a 15 year old male juvenile in two of the offences, and gave him a significant part to play. As well, one of the offences took place in the presence of other young children.
4. The distribution, even at street level, of illicit drugs in a community such as Bourke is an offence which has a significant impact on the community, which means that general deterrence is an important consideration.
5. There was a strong subjective case. His Honour made findings most favourable to the applicant with respect to those matters. But the applicant was not entitled leniency, particularly, having regard to his past record which included two terms of imprisonment for dealing in drugs.
6. Resort to the statistics relied upon by the applicant should not result in undue weight being given to them. This Court has said so on many occasions. The reason one cannot give great weight to sentencing statistics is "… the vast range of factors relevant to sentencing for such an offence": Furia v R [2010] NSWCCA 362 at [74] per R A Hulme J. The important question here is whether the sentence imposed was appropriate for the particular case: Sinkovich v R [2011] NSWCCA 90 at [41] per Hoeben J.
7. The statistics referred to demonstrate that the indicative sentences in each case fall at the high end of the range of sentences imposed for a single offence against s 25(1) of the Trafficking Act. But that is not the question which this Court needs to determine. Indicative sentences are just that. They are not sentences against which any appeal is determined. They are one way in which a court is assisted to understand how the aggregate sentence is reached. Ultimately, the question about a sentence is whether it falls within the range of permissible exercise of a sentencing Judge's discretion: Fogg v R [2011] NSWCCA 1 at [59]-[60].
8. The submissions of counsel for the applicant in this case made by reference to statistics contained an inherent flaw. The statistics to which reference was made were not at all comparable with the sentencing exercise of the Judge here. At present, the Judicial Commission of NSW does not maintain any statistics which record and collate aggregate sentences which have been imposed. Thus, there is, at present, no ready or available guide which charts the length of aggregate sentences, whether of themselves, or together with indicative sentences.
9. In my view, in this case, the use of comparative statistics is not a rewarding process. Like is not being compared with like. I agree with the remarks of R A Hulme J in his judgment about the basis of the statistics provided and the need for counsel, if they are to assist the Court, to properly understand the statistics, the basis upon which they are compiled and the limits which constrain their use according to authority.
10. The applicant was a mature man. His previous convictions and terms of imprisonment for dealing in illicit drugs did not specifically deter him from engaging in this particular conduct. The motivation was clearly financial, and the conduct extended over some months. It was deliberate and planned.
11. General deterrence, particularly in a small community such as Bourke, of people who engage in knowingly taking part in the supply of a prohibited drug carries with it particular significance.
12. Having regard to all of the matters which were appropriate to be taken into account, and which his Honour obviously did take into account, whilst I would accept that the sentencing in this case was not a lenient one, I am wholly unpersuaded that it was manifestly excessive. It was a sentence which was, both in respect of the non-parole period and the total term, one which was clearly open to the sentencing Judge. It was not unreasonable or plainly unjust.
13. I do not think that the appeal should be allowed.

Orders

1. I propose the following orders: 1. Leave to appeal granted. 2. Appeal dismissed.

Amendments 20 August 2015 - Typographical error on coversheet. 21 August 2015 - Amendment to paragraph 18 - incorrect date. 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: 21 August 2015