Lander v R

Judgment 1HOEBEN CJ at CL: Offence and sentence On 15 November 2013 the applicant was sentenced by Freeman ADCJ on three counts of supply 3, 4 - methylenedioxymethylamphetamine (MDMA); two counts of supply cannabis and one count of possess cannabis. 2On the first count of supply MDMA (an amount of 100 tablets with a weight of 25 grams) his Honour imposed a sentence of imprisonment with a non-parole period of 9 months and a balance of term of 18 months. The sentence was to commence on 15 November 2013 with the non-parole period expiring on 14 August 2014 and the balance of term expiring on 14 February 2016. 3On the second count of supply MDMA (10 tablets with a weight of 2.5 grams) his Honour sentenced the applicant to imprisonment with a non-parole period of 6 months and a balance of term of 12 months which was wholly concurrent with the sentence in respect of count 1. 4On the third charge of supplying 2 tablets of MDMA, the applicant was sentenced to a fixed term of 6 months which was fully concurrent with the sentence imposed in respect of count 1. 5On the two charges of supply cannabis his Honour sentenced the applicant to a total term of 12 months with a non-parole period of 6 months. That sentence was to commence on 15 February 2014 with the non-parole period expiring on 14 August 2014 and the balance of term expiring on 14 February 2015. 6On the charge of possession of cannabis, his Honour sentenced the applicant to a fixed term of imprisonment of 3 months to date from 15 November 2013 and expire on 14 February 2014. 7The total sentence imposed upon the applicant was a sentence of imprisonment with a non-parole period of 9 months to expire on 14 August 2014 and a balance of term of 18 months to expire on 14 February 2016. 8The two counts of indictable supply (i.e. the first two counts referred to above) contrary to s25(1) Drug Misuse and Trafficking Act 1985 (DMT Act) involved a quantity less than the commercial quantity and accordingly, the maximum penalty available was imprisonment for 15 years. 9The applicant was also charged with one offence of supply MDMA contrary to s25(1) DMT Act (being a summary supply), two charges of supply cannabis (also summary matters) and one count of possess cannabis leaf, contrary to s10(1) DMT Act, also a summary matter. Those summary matters were dealt with pursuant to s166(1)(b) Criminal Procedure Act 1986. The maximum penalty available for the summary offences was imprisonment for 2 years. 10The applicant seeks leave to appeal the sentence imposed upon him on the following grounds: Ground 1: His Honour erred in failing to discount the applicant's sentence as a consequence of the applicant's plea of guilty. Ground 2: His Honour erred in finding that the applicant was a conduit between Roche "who was to all intents and purposes, the main supplier and a wider section of the community". Ground 4: The sentences imposed were manifestly excessive. 11There was originally a Ground 3 which the Court was advised would not be pursued. 12The applicant obtained bail pending this appeal on 14 May 2014. There remain 3 months of the non-parole period and 18 months of the parole period to be served. Factual background 13Both sides accepted his Honour's summary of the facts as accurate. 14In 2012 a strike force called "Waterlily" was established to investigate the supply of prohibited drugs in the Southern Highlands. One prime supplier, Brendan Roche, was identified. His telephone conversations were from time to time lawfully intercepted and recorded. Among those telephone conversations were some involving the applicant. 15On 20 December during one of these conversations, Mr Roche agreed to supply the applicant with 100 MDMA pills at a cost of $13 per pill. The applicant left the money in a pre-arranged location in a freezer in his residence and Roche went and collected the money. 16On Friday, 21 December the police intercepted a further telephone conversation initiated by the applicant. In it there was an agreement for the applicant to go and collect Mr Roche from the Imperial Hotel and drive him home where the drug transaction could be completed. That journey was filmed by the investigating officers. Police estimated that the 100 tablets of MDMA would have weighed approximately 25 grams. 17Shortly before 6.30pm on 21 December the applicant, having received those 100 pills, had a further telephone conversation with Mr Roche. It turned into a three way conversation between Mr Roche, the applicant and one Jake Baterinski, who was known to the applicant. Roche, who had supplied the original 100 tablets, found himself without any and wanted 2 of those 100 back on the basis that he replace the 2 which he was borrowing. That is the first matter of supply to be dealt with on the s166 certificate. 18In addition, Baterinski wanted tablets. The applicant told him where to find 10 tablets, secreted in rolled up socks, in the top drawer of his dressing table in his bedroom. Baterinski was to take those 10 tablets, paying $25 per tablet. From the 10, he was to provide 2 to Roche on the basis that Roche would ultimately replace them for the applicant. 19The agreement to supply the 100 tablets is the first count and the actual supply to Baterinski of 10 tablets is the second count. The applicant was not arrested until 7 May 2013 when police went to his home to arrest him. When the police did so, they noted in full view a quantity of cannabis leaf and a bong. The cannabis was seized by the police, together with an Apple iPhone. The applicant was taken to Bowral Police Station where he participated in a recorded interview in which he made some reluctant admissions claiming a failure of memory. 20There were text messages on the telephone which was seized. These revealed that on 18 March, Scotty Jones texted the applicant asking if he could buy $75 of weed, which was a reference to cannabis. In the course of that conversation, Mr Jones said: "I know you just got it for yourself but my workmate wants some and you're the only fellow I know." 21The applicant texted back indicating that he would advise when he was able to fulfil the request. He ultimately did so by saying that he could provide $50 worth. This is the first count of supply cannabis. 22The second count related to events of 20 March when Mr Jones again texted requiring another $100 worth, but there was no rush. The applicant texted back that there were no worries but he would not have the substance until Friday. 23The last matter for which the applicant was sentenced was the possession of the cannabis, which was seized at his home on 7 May. That weighed some 8 grams. Sentence proceedings 24The applicant gave evidence in the sentence proceedings. In that evidence he denied supplying the 100 tablets after Mr Baterinski's 10 had been subtracted, but instead consumed all of them by himself. His Honour did not believe that evidence and said: "What he told me stretched my powers of belief beyond breaking point. In order to dispose of the number of tablets which he had received from Roche at a time one might say when he was up at Byron Bay with 15 of his mates, he said not that he gave his mates any, which would be understandably a natural thing to do if they were up there in Byron Bay but rather he ate the lot himself. Meaning that he had to consume at least 8 tablets a day, even if he took them every day for the time between the receipt of the tablets and when he claimed to have ceased drug use altogether. This is an improbable number of drugs for him to ingest, particularly in circumstances where his mother testified that she saw no untoward effects in him at all. I think it is highly probable that he did distribute the drugs to his mates in Byron Bay where they were all partying and why he was foolish enough to tell me a series of lies to conceal that I have no idea. But I am convinced that he did." (ROS 4.5 - 5.1) 25In relation to those lies, his Honour said: "Now that redounds against him. Despite warnings in the course of him giving evidence that that is the likely affect of trying to lie to the Court. That does not mean that he gets punished as a form of revenge, it simply means that he has done himself no good in terms of establishing his credit which reflects of course upon his prospects of rehabilitation. It makes one wonder about how seriously one can take his protestations that he is doing all he can to abandon his drug use." (ROS 5.2) 26His Honour took into account the applicant's subjective case. The applicant was a talented sportsman who suffered serious spinal injuries at the age of 19. As a result of those injuries, he was off work for 18 months. Following that injury the applicant took drugs to deal with the pain. That injury, apart from impacting heavily upon his capacity to work, also destroyed his sporting ambitions. The applicant turned 27 some days before he was sentenced. 27The applicant's long period off work brought about financial difficulties. His Honour noted that because of these financial difficulties, the applicant moved from using drugs himself to supplying with a financial motive. His Honour said: "I believe he was a conduit between Roche who was to all intents and purposes the main supplier and a wider section of the community." 28His Honour concluded in relation to the supply of both MDMA and cannabis that the applicant was trafficking in drugs to a not insignificant extent. His Honour did not accept that part of the applicant's evidence in which he sought to minimise his criminality. His Honour said: "... that causes me to doubt his very recent attempts of rehabilitation as being any more than attempts once again to avoid the punishment his activities ought to attract." 29His Honour characterised the applicant's attempts at drug and alcohol rehabilitation as spasmodic and unsatisfactory. He found his belated attempts to address these problems as unconvincing. As a result, his Honour assessed his prospects of rehabilitation as only "fair". 30In relation to the objective seriousness of the offending, his Honour said: "The involvement of any person in the supply of prohibited drugs is a serious offence even those at the lowest level in the distribution chain. Indeed including those who only act as couriers are, on authoritative statements by the Court of Criminal Appeal, to expect severe punishment because even those at the lowest level, if they can be dissuaded from engaging in this sort of behaviour, will curtail the widespread use of drugs which is bedevilling our society at the moment." (ROS 4.1) 31In relation to sentence, his Honour said: "The finding that he was involved in trafficking although based only on the one supply of 100 pills and his involvement in re-supplying those and then supplying cannabis, leads me to the conclusion that no sentence other than fulltime custody is appropriate. I have indicated that I understand, perhaps, the basis upon which he became sucked up in the drug culture and took those downward steps from user to user/seller. I accept that the cannabis was used by him as his GP says and from time to time unwisely but again comprehensively as pain relief." (ROS 6.9 - 7.2) 32His Honour concluded his remarks by making a finding of special circumstances. He did this because of the applicant's youth, it was his first time in custody and that sending him into custody would have enormous ramifications for him in his personal life. His Honour observed that these extra curial punishments were sufficiently serious as to require a finding of special circumstances. 33The extra curial matters to which his Honour referred were described by the applicant in his evidence. The applicant had commenced his own business as a carpenter and this would suffer. It would also be difficult to maintain payments on his house, which was subject to a substantial mortgage. Ground 1: His Honour erred in failing to discount the applicant's sentence as a consequence of the applicant's plea of guilty. 34The applicant submitted that apart from commencing his Remarks on Sentence by saying "The offender Rory Lander entered pleas of guilty in Moss Vale Local Court on 3 September..." his Honour made no mention of the plea of guilty. The applicant submitted that in those circumstances there was no indication that the plea had been taken into account in his favour in the assessment of sentence, nor was there any mention of the extent of the utilitarian discount for that plea. The applicant accepted that both parties to the sentence proceedings had made submissions and had referred to the early plea of guilty. 35The applicant relied upon the statement of Spigelman CJ in R v Thomson; R v Houlton [2000] NSWCCA 309 49 NSWLR 383 at [160] where his Honour said: "160 ... (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 insofar as they believe it appropriate to do so. This effect can encompass any or all of the matters to which the plea may be relevant - contrition, witness vulnerability and utilitarian value - but particular encouragement is given to the quantification of the last mentioned matter. ..." 36The applicant submitted that his Honour had failed to comply with that requirement. He submitted that when the facts and circumstances of the case were taken into account, and when the extent of the individual sentences and the overall sentence were considered, it was apparent that the sentencing judge did not take into account the plea of guilty, nor did he allow a 25 percent reduction for its utilitarian value. Consideration 37It is true that other than the recitation of the fact that the applicant entered a plea of guilty at the beginning of the Remarks on Sentence, there was nothing said which supports the contention that his Honour gave weight to the plea of guilty. As set out in R v Thomson; R v Houlton his Honour should have done so. That having been said, the issue is whether it can be shown that his Honour in fact took the plea of guilty into account. 38A failure to expressly refer to a plea of guilty and the significance of the guilty plea, does not necessarily indicate that the plea was not taken into account. Every case is to be evaluated according to its own facts and circumstances - Regina v Schumacher [2005] NSWCCA 355 at [15] - (Hall J with whom Grove J and Smart AJ agreed). 39Observations to similar effect were made by Spigelman CJ (with whom Grove and Bell JJ agreed) in Regina v Lawrence [2005] NSWCCA 91 at [12] - [15] where his Honour said: "15 This Court is, of course, aware of the pressures under which District Court Judges have to deliver their sentences and that it is easy not to state a fact that everybody knows is required to be taken into account. Nevertheless, the reasons given in Thomson for issuing a guideline included the need to ensure that participants in the New South Wales criminal justice system had no reason to be sceptical about whether or not the benefits of a guilty plea were in fact made available to accused. It would have been preferable, for that reason, if his Honour had mentioned that he had done so. However, in view of his Honour's long experience and the structure and length of the sentence he imposed, I am not prepared to act on the basis that his Honour failed to take into account the plea, or that he failed to give it appropriate weight. I think the likely situation is that contended for by the Crown: that his Honour commenced with a sentence of 36 months and applied a full discount. Accordingly, I would not uphold this ground of appeal." 40The same considerations apply here. In submissions to his Honour, both the Crown and counsel for the applicant referred to the early plea. In the case of counsel for the applicant, it formed an important part of his primary submission that a custodial sentence should not be imposed. Since his Honour passed sentence two days after submissions were made to him, it can be inferred that his Honour was well aware of the fact of the early plea of guilty when doing so. In that regard, the exchanges between counsel and his Honour in the sentence proceedings can be taken into account if they inform or elucidate abbreviated statements in the Remarks on Sentence (Peiris v R [2014] NSWCCA 58 at [67] per Leeming JA (with who Button and R A Hulme JJ agreed). 41In addition, the structure of the effective sentence imposed on the applicant is strongly suggestive that his Honour took the early plea into account and allowed in favour of the applicant a 25 percent discount. The head sentence of 27 months in relation to count 1, suggests a starting point before a 25 percent discount of 36 months exactly. Following that line of reasoning, the starting point for count 2 was 2 years exactly, 8 months for count 3, 16 months for each of counts 4 and 5 and 4 months for count 6. Accordingly, I have concluded that the calculations for all 6 sentences show that his Honour clearly discounted the sentences by 25 percent because of the early pleas. 42While Freeman ADCJ is undoubtedly a most experienced judge, I prefer not to base my conclusion on that factor. To do so might invite submissions from counsel in other cases as to the lack of experience of a particular judge. This Court should not be seen to encourage such an approach. 43This ground of appeal has not been made out. Ground 2: His Honour erred in finding that the applicant was a conduit between Roche "who was to all intents and purposes, the main supplier and a wider section of the community". 44The impugned part of his Honour's Remarks on Sentence in context was: "In those circumstances, it was perhaps only a short step from using himself to using and supplying with a financial motive. As I said, I believe he was a conduit between Roche, who was to all intents and purposes, the main supplier and a wider section of the community. He was perfectly prepared to supply cannabis and he did so." (ROS 5.8) 45The applicant submitted that in accordance with R v Olbrich [1999] HCA 54; 199 CLR 270 it was a fundamental principle of sentencing law that a sentencing court must not make a finding adverse to an offender unless that finding was established beyond reasonable doubt. The applicant submitted that there was no evidence to establish that he was a conduit for drugs between Roche and the wider community. The applicant submitted that the word "conduit" as used by his Honour meant "supply on a regular basis". 46This ground of appeal has not been made out. 47It is by no means clear that the word "conduit" contains within it the concept of regular or continuous supply. A single supply would be sufficient to establish that a person acting as a middle man in the supply of drugs was in fact a "conduit" on that occasion. 48In any event, there was evidence from the Facts Sheet, tendered as part of the Crown case, that in December 2012 Roche agreed to supply 100 tablets of MDMA to the applicant at $13 each. They arranged for payment to be made in a clandestine way, with the applicant hiding $1300 in his freezer. 49The Facts Sheet went on to state that the next day the applicant spoke to Roche on the telephone telling him "I can sort something out tomorrow" as the banks had closed. Another person was introduced by Roche over the telephone to the applicant (Baterinski). The ensuing conversation between the applicant and Baterinski is consistent with the supply of drugs by the applicant to persons other than Roche. 50His Honour's adverse finding as to the applicant's credit is also relevant to this issue. His Honour found it inherently improbable that the applicant consumed 90 MDMA tablets himself over an 8 day period at Byron Bay. Inferentially, if the applicant were not consuming those tablets himself, he was supplying them to others. Confirmation of that fact can be found at the conclusion of the applicant's evidence (T.13.11.2013, p16) where he said: "A. I am admitting to parting with some of the pills, yes." 51It follows that there was ample evidence to enable his Honour to make the finding beyond reasonable doubt, which he did. Ground 4: The sentences imposed were manifestly excessive. 52The applicant submitted that the sentences imposed were manifestly excessive. He submitted that the objective seriousness of the offending was not high. In relation to Count 1, he submitted that the quantity of MDMA was less than 25 percent of the maximum amount before the drug would have been deemed to be a commercial quantity. He submitted that by reference to sentencing statistics, only 31 of 299 persons without previous convictions dealt with by the District Court for an offence of supplying an "indictable" quantity of MDMA had received a fulltime custodial sentence. 53The applicant also referred to his strong subjective case. He was a young man with a very minor criminal history and a good work record. He had a business which he had started after overcoming a very serious physical injury. 54For this ground of appeal to be made out, the sentence has to be shown to be unreasonable or plainly unjust (Markarian v R [2005] HCA 25; 228 CLR 357 at [25]). 55As was also said in Markarian by the plurality (Gleeson CJ, Gummow, Hayne and Callinan JJ): "27 ... The judgment is a discretionary judgment and, as the bases for appellate review reveal, what is required is that the sentencer must take into account all relevant considerations (and only relevant considerations) in forming the conclusion reached. As has now been pointed out more than once, there is no single correct sentence. And judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies." 56His Honour took into account all of the matters to which the applicant has referred in support of this ground. His Honour was conscious of the quantity of MDMA concerned which was 25g and which substantially exceeded the indictable quantity of the drug which formed the basis for the offence (1.25g). Moreover, the applicant was supplying two types of drugs to different people, the transactions were some months apart and yet he received the benefit of wholly concurrent effective terms, such that there was no punishment for the cannabis supplies. 57In relation to the statistics relied upon by the applicant, the Court has referred on a number of occasions to the limitations on the use of statistics and this case provides a good example. What is required is that due regard be had to the maximum penalty specified by the legislature and what is required is consistency in the application of sentencing principles, not consistency in outcomes as shown in statistics. These matters were recently discussed in Abdul v R [2013] NSWCCA 247 by the Court (Hoeben CJ at CL; Johnson and Bellew JJ) at [66] - [68]. In any event, the sentences imposed were well within the historical sentencing outcomes depicted in the statistics relied upon by the applicant. 58In this matter his Honour carefully analysed the objective seriousness of the offending and described the circumstances in some detail. His Honour also carefully reviewed the applicant's subjective case, in particular, his past drug use and prospects of rehabilitation. No error has been shown in that review process nor in the sentences imposed. Most particularly, the sentences have not been shown to be unreasonable or plainly unjust. This ground of appeal has not been made out. 59The orders which I propose are: (1) Grant leave to appeal. (2) The appeal is dismissed. (3) The grant of bail is hereby revoked and the applicant is to be returned to custody forthwith to complete the sentence imposed by Freeman ADCJ. The applicant is to be released to parole on 31 December 2014 and as a condition of his parole, he is to be subject to supervision by the Probation and Parole Service. 60BEECH-JONES J : I have had the benefit of reading the judgment of Hoeben CJ at CL. In relation to ground 4, in my view it would have been open to His Honour to impose a non custodial sentence on the applicant given that he was relatively young at the time he offended and the other aspects of his subjective case. However just because his Honour did not did so does not mean that the sentence imposed was manifestly excessive. For the reasons given by Hoeben CJ at CL neither that contention nor any of the other grounds of appeal were made out. I agree with the orders proposed by his Honour. 61HAMILL J: I agree with Hoeben CJ at CL. I also agree with the observations of Beech-Jones J.