Leffley v R

Court of Criminal Appeal (NSW)|2016-08-24|Before: Hoeben CJ, Hall J, Davies J

Solicitors: Baker Ryrie Rickards Titmarsh (Applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2014/297696 Decision under appeal Court or tribunal: District Court Jurisdiction: Common Law - Criminal Date of Decision: 9 June 2015 Before: English DCJ File Number(s): 2014/297696

Factual Matters

At approximately 2:00am on 10 October 2014, the applicant was driving his white Hyundai iLoad vehicle in Narrandera when he was pulled over by police for the purpose of a random breath test. When asked as to whether he had any drugs in the vehicle he admitted that he had a small amount of cannabis leaf which was contained in a Tupperware container that was handed to police. He also handed over a water pipe to the police officer.
The Crown Summary of Facts records the following: "Police formed the view that there were reasonable grounds to suspect that the applicant had other drugs in the vehicle: [ROS [2]]. The applicant was cautioned and asked whether there were other drugs in the vehicle. He said that there were not. A search of the vehicle then located the following items [ROS [2]-[4]]: (a) Two M&M containers that each contained an amount of cannabis; (b) A black Nike sports drink bottle which contained a container holding 7.5g of methylamphetamine; a sealed bag containing 30.3g of amphetamine; a cylindrical clear tube which contained 1.302g of methylamphetamine; a blister pack of Diazepam and contact lens containers containing 0.404g of cocaine and 0.139g of methylamphetamine; (c) A gift box containing a Uniden brand portable radio box, which, when opened, was found to contain two cryo-vac bags containing 892.6g of amphetamine. This amphetamine was analysed and found to have a purity of 12.5%; (d) A tissue containing 4.44g of oxymetholone; (e) A blue coloured sports bag containing two cry-vac [sic] bags containing cannabis leaf; (f) A black sports drink bottle containing 376.0g of methylamphetamine. The methylamphetamine was later analysed and found to have a purity of 79%; (g) Sixteen mobile telephones and four Blackberry phones including SIM cards (one of which was turned on); (h) A laptop and three tablets and a number of two-way portable radios; and (i) Drug administering items, including ice-smoking pipes, cocaine snorting tube and other glass pipes." (CWS at [10])
The total quantity of amphetamine and methylamphetamine found in the applicant's possession, as stated above, amounted to a commercial quantity of each of the drugs. The amphetamine amounted to slightly less than a large commercial quantity (1kg). Particulars are as follows: Drug Amount Found Commercial quantity Large commercial quantity Amphetamine 922.9g 250g 1kg Methylamphetamine 383.3g 250g 1kg

The Crown noted that a total of 0.44g of oxymetholone and 0.404g of cocaine was also found by police. Each quantity was less than the small quantity applicable to that drug.
The Crown accepted that the applicant entered his guilty pleas at the first available opportunity.

Proceedings on Sentence

At the sentence hearing, the Crown tendered a bundle of material. This included the abovementioned Statement of Agreed Facts, the applicant's criminal and custodial histories, an analyst's certificate dated 10 December 2014, the s 166 certificate, a pre-sentence report of Theresa Ross dated 23 April 2015, and a drug and alcohol report of Peter Townsend dated 24 April 2015.
The applicant relied upon a letter from Odyssey House dated 6 May 2015 and a psychological report of Mr Phil Gorrell dated 24 April 2014 (Exhibit 1).
He also relied upon a letter which he addressed to the sentencing judge dated 14 May 2014 together with a character reference from Mr Dean Profilio dated 4 February 2015 (Exhibit 2). The applicant's father gave evidence at the sentence hearing.
It was submitted at the sentence hearing that the offending fell slightly less than the middle of the range in relation to the nature of the offences charged. The Crown submitted that the drug supply offences fell objectively within the mid-range of seriousness.

Remarks on Sentence

The sentencing judge set out in her Remarks on Sentence a number of factual matters based upon the agreed facts and circumstances: ROS pp 1-4. Reference was made to the applicant's account to the custody manager whilst waiting to be charged to the effect that he was threatened by persons causing him to convey the drugs. However, as the applicant did not himself give evidence at the sentence hearing, his account was not verified.
In the Pre-Sentence Report dated 23 April 2015, reference is made to the applicant having stated that the main motivation for his offending behaviour was to pay off his drug debts (p 2).
In the report of Mr Gorrell, Psychologist/Social Worker dated 24 April 2014, the applicant is reported as having said that a person asked him to deliver a package to another person in South Australia and that he, the applicant, indicated that he had assumed that the package contained illicit substances (p 5).
The sentencing judge noted that the offence of supply prohibited drugs were serious offences which, her Honour stated, were often committed: "…by desperate persons seeking to fund a drug habit. The community suffers enormously as a result. Lives are destroyed, crimes are committed to fund habits and career criminals higher up the chain escape detection. Vast sums of public money are expended on treatment programs and rehabilitation facilities and mental health facilities to assist those who are addicted to these hideous substances…" (ROS at pp 6-7)
Her Honour observed that all too often persons who are persuaded to supply drugs are persons of otherwise good character as was the case with the applicant.
In the course of her remarks her Honour emphasised the fact that in sentencing general deterrence "looms large" and that the penalty to be imposed should send a message to the community that those who engage in the supply of drugs will face condign punishment when charged: (ROS at p 7).
Her Honour observed: "This offender had in his possession significant quantities of amphetamine and methyl-amphetamine. The large commercial quantity of amphetamine, as I have said is one kilogram. This offender had 922.9 grams, not a great deal less than the large commercial quantity and certainly at the upper end of the scale for quantities of this particular drug and that alone makes this offence objectively serious. The commercial quantity of methyl-amphetamine as I have said is 250 grams and this offender had 383.5 grams, less than half the commercial quantity but nonetheless a significant quantity of an illicit drug. The purity however was particularly high, 370 grams was found to have a purity of 79%, that could result in the drug being cut many times over. The nature of this particular drug is of course particularly pernicious in its effect on those who choose to use it and who unfortunately, as this offender now only knows too well, quickly become addicted. Fortunately the drugs were intercepted by sheer chance, otherwise they may well have reached their destination and been distributed into the community with serious consequences." (ROS at p 8)
The sentencing judge made reference to the offender's claims that he entered into the supply of drugs in order to pay a drug debt, that he was unable to pay the debt and that he and his family had been threatened if he did not repay it.
Her Honour observed: "He did not give evidence on sentence, the Crown therefore has not had the opportunity to test the evidence of the offender in that regard. The offender does bear the onus of establishing on balance that he was only a courier. The difficulty I am faced with in giving significant weight to the untested evidence is the plethora of other items located in his vehicle at the time of his arrest. He also had in his possession cannabis in a variety of containers, implements which could be utilised for the ingestion of drugs such as the water pipe, a cocaine snorting tube and other glass pipes. He had multiple mobile phones, he had cocaine and oxymetholone which is a synthetic male hormone or anabolic steroid and a number of two way portable radios, the pen cam, a CCTV type camera and an eavesdropping device…" (ROS at p 9)
Her Honour proceeded, stating that the need to acquire funds to support a habit or to repay a drug debt, "…are not matters of mitigation on sentence…" although she acknowledged that factors such as the impulsivity of the offence and motivation are matters that can be taken into account when assessing the objective criminality of the offence: ROS at p 9.
Her Honour stated: "This offender I find on balance was someone who was a courier, one who was motivated by his habit and drug debt rather than someone who was motivated to engage in couriering of drugs purely for profit. However I find having regard to what was found in the vehicle that his level of participation falls well above that of a street level courier. He was on any view of the evidence playing an important role in the distribution of a significant quantity of drugs. The importance of his role can be inferred from the quantity of drugs involved." (ROS at pp 9-10)
Her Honour proceeded, as earlier indicated, to find that the offences fell below the mid-range of objective seriousness and that accordingly she proposed to depart from imposing the standard non-parole periods in respect of each offence.
Her Honour allowed a 25% discount on sentence for the applicant's pleas, found him to be truly remorseful and contrite and that he had good prospects of rehabilitation if he attended an appropriate full-time residential rehabilitation program as recommended by the psychologist and Corrective Services (ROS at p 10).
Her Honour determined that the sentences to be imposed were to be served concurrently on the basis that the offences were committed "…in the one course of criminal conduct…". She accepted that the applicant was unaware of the nature and quantity of the drugs in his possession.

Ground of Appeal

The applicant relied upon only one ground of appeal in the following terms: Her Honour erred in imposing sentences that were discordant with her findings of fact and which were thereby manifestly excessive.
This ground in essence asserted that the sentence imposed was manifestly excessive.
In order to establish such a ground it is necessary for the applicant to establish that the sentence was "unreasonable" or "plainly unjust": Markarian v R (2005) 228 CLR 357; [2005] HCA 25; and Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59].
It is well accepted that whether a sentence is unreasonable or plainly unjust is a matter to be considered in the context that there is no single correct sentence and that sentencing is not a mathematical exercise. Additionally, sentencing judges are required to reach a sentence for each offence by balancing many different and conflicting features: Markarian v R, supra, at [27]; Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [34].

Applicant's Submissions

It was submitted on behalf of the applicant that, after allowing for a 25% discount on sentence for the applicant's early pleas of guilty, the starting points for the two sentences imposed by the sentencing judge in respect of the two supply offences were 11 years and 4 months (charge sequence 9, supply amphetamine: 922.9 grams) and 8 years (charge sequence 11, supply methylamphetamine: 383.3 grams) respectively.
In the written submissions on behalf of the applicant dated 11 April 2016, the sentencing judge's findings were summarised as follows: (i) The applicant was a courier who was motivated by his habit and drug debt rather than someone who was motivated to engage in such activity purely for profit (ROS 9.8); (ii) The offences fell below the mid-range of objective seriousness (ROS 10.1-2); (iii) The applicant should receive a 25% discount for his pleas of guilty which were entered at the earliest opportunity (ROS 10.2); (iv) The applicant was truly remorseful and contrite (ROS 10.3); (v) The applicant has good prospects for rehabilitation if he attends an appropriate full-time residential rehabilitation program as recommended by the psychologist and Corrective Services (ROS 10.4); (vi) There is a low likelihood of the applicant re-offending if he successfully undergoes rehabilitation (ROS 10.5); (vii) The offences were committed in the one course of criminal conduct and accordingly, can be served concurrently (ROS 10.6-7); (viii) The applicant was unaware of the nature and quantity of the drugs in his possession (ROS 10.7); (ix) There were special circumstances that justified a longer than normal period of supervised parole (ROS 10.8-9)." (AWS 8-9)
The submission for the applicant was that against the background of the findings as set out in (i) to (ix) above, the sentences are manifestly excessive.
Intervention of this Court, it was contended on behalf of the applicant, was justified for similar reasons as given in the judgment of this Court in Hill v R [2012] NSWCCA 265.
The judgment in that case, it was argued, provided guidance for the purposes of the present application for leave to appeal.
It was submitted for the applicant at [24]: "The findings made by her Honour were very supportive of the applicant. The two offences were correctly assessed as one course of criminal conduct, committed by a person who was unaware of the nature and quantity of the drugs and in circumstances where he was a courier who was motivated by his habit and drug debt, rather than someone who was motivated to engage in such conduct purely for profit. The offences fell below the mid-range of objective seriousness and the applicant had no prior criminal record. He was truly remorseful and contrite, has good prospects of rehabilitation and the likelihood of re-offending is low. These factors in particular, attract leniency and an approach consistent with that adopted by this Court in Hill. Accordingly, it is submitted that the sentences her Honour imposed in respect of the two supply charges are manifestly excessive."
In support of the submissions that intervention by this Court is justified for reasons advanced in Hill v R, supra, it was noted that in that case this Court allowed a severity appeal on the ground that the sentence was manifestly excessive having regard to the objective seriousness of the offence and the applicant's subjective circumstances.
It was noted that in Hill v R the Court found a lesser sentence was warranted in law where the sentence imposed was said to be incongruously at odds with the offender's strong subjective case. It was submitted that the decision in that case provides guidance in the present application as to the appropriate sentences.
Mr Rowe of counsel, who appeared in this Court on behalf of the applicant, acknowledged that the observations made by Harrison J in Hill upon which he relied did not purport to establish a statement of principle other than observing that the sentencing judge in that case had failed to bring into account significant aspects of the subjective case. Mr Rowe submitted that the total effective sentence involving a total term of imprisonment of 8 years 6 months with a non-parole period of 4 years 6 months was the type of sentence that was appropriate for what he described as "repeat offenders" or offenders that had a prior record, or to offenders that were "substantially involved in the supply exercise" (T 24 August 2016 at p 2).
In respect of the charge (sequence 9) of supply amphetamine in the amount of 922.9 grams, Mr Rowe observed that the purity of the drug involved was quite low as opposed to the supply of methylamphetamine the subject of the other charge (sequence 11).
Mr Rowe also observed that the supply was made up of two different substances that constituted a deemed supply, the applicant not having precisely known what the substances were, and that his level of involvement was identified as that of courier. He submitted that the sentence was plainly unjust because "…it is the sort of sentence that should be reserved for far more serious matters": T 2.
In support of the ground of appeal relied upon, Mr Rowe emphasised the fact that the applicant did not have a criminal record, was a man of prior good character and that he had good prospects of rehabilitation, there being, he submitted, no likelihood of reoffending: T 3.
Mr Rowe submitted that the sentencing exercised must have miscarried: "…because if you make those sort of very, very favourable findings on the subjective case, we say it must follow that it has got to result in a non-parole period of less than four and a half years on any view of it. That is really at the heart of our argument." (T 4)
Mr Rowe also submitted that error lay in the fact of the length of the effective total sentence.

Crown Submissions

The Crown in its written submissions referred to the principles that apply to an appeal against sentence in which it is alleged that the sentence imposed was manifestly excessive as enunciated by the High Court in Markarian v The Queen, supra, and Hili v The Queen, supra.
The Crown also referred to the observations in AB v The Queen (1999) 198 CLR 111; [1999] HCA 46 at [128], to the effect that there will be a range of possible sentences that could be imposed without error. The Crown submitted that the total effective sentence imposed in the present case was within the range of sentences that could be imposed without error.
The Crown stated that the observations made in Hill v R, supra, by Harrison J at [24], and relied upon by the applicant, namely, "[t]he sentence imposed upon the applicant is incongruously at odds with the strong subjective case" was not a statement of principle. The Crown referred to the observations of this Court to that effect in Briouzguine v R [2014] NSWCCA 264 at [61].
The Crown submitted that unlike Hill, but like Briouzguine, supra, the sentencing judge expressly considered and took into account the applicant's subjective circumstances as part of the instinctive synthesis in arriving at the total effective sentence imposed. The applicant's subjective circumstances, the Crown noted, were additionally taken into account in the determination to vary the statutory ratio to just 52% of the total term, a finding which it submitted was generous in all the circumstances.
The Crown observed that the quantities of the drugs involved are also significant. The quantity of amphetamine, it was noted, fell only slightly below the large commercial quantity of amphetamine and the quantity of methylamphetamine was well over (almost double) the commercial quantity of that drug.
The Crown also noted that the sentences imposed in respect of the two s 25(2) offences were concurrent, so that the total effective sentence of 8 years and 6 months with a non-parole period of 4 years and 6 months, related to the applicant's supply of significant quantities of two extremely harmful drugs: CWS at [25].
The Crown noted that the sentencing judge made a finding which was favourable to the applicant, namely, that the level of his offending fell below the mid-range of objective seriousness: ROS at 10. That finding, it was observed, was consistent with the submission made by counsel for the applicant at the sentence hearing.
After taking into account the 25% discount for the early pleas of guilty, the Crown observed that the total effective non-parole period of 4 years and 6 months fell well below the standard non-parole period of 10 years for those offences.
The Crown submitted that this Court's judgment in Hill does not provide guidance for the purpose of this case and set out in its written submissions the distinguishing features between Hill and the applicant's case: at [27]. One such distinguishing feature was that the offender in Hill was given a 25% discount for his pleas of guilty and a further discount of 25% for past and present assistance (a combined discount of 50%).
In addition, an element of coercion was found to have existed in Hill which led to a significant reduction in his sentence.
The Crown observed that the present case concerned large quantities of two very harmful drugs which are growing in frequency before the Courts: R v Hatzisavvas; R v Lopez-Rios [2016] NSWCCA 147 at [136] ff. The Crown submitted that there was a strong need for deterrence, both general and specific, in view of the harm caused by such drugs and the difficulty of detecting offences relating to their supply.
The Crown submitted that in the circumstances it cannot be said that a total effective sentence of 8 years and 6 months with a non-parole period of 4 years and 6 months was manifestly excessive.

Consideration

The sentencing judge made factual findings about which no complaint has been made. Further the matters advanced in the submissions for the applicant do not establish any erroneous application of sentencing principle or that the sentencing judge failed to take into account all relevant considerations in determining the sentences imposed: House v The King (1936) 55 CLR 499 at 504-5; [1936] HCA 40.
It is well accepted that 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: Markarian, supra, at [27].
The sentencing judge in this case took into account all relevant objective factors in concluding that the applicant's level of participation fell well above that of a street-level courier and that he had played an important role in the distribution of a significant quantity of drugs.
As noted above, her Honour also made findings which were favourable to the applicant including a finding that, on balance, he was a courier who was motivated by his habit and drug debt, rather than motivated purely for profit and that the offences fell below the mid-range of objective seriousness.
The applicant also had the benefit of a finding that he had good prospects of rehabilitation if he attended an appropriate full-time residential rehabilitation program and a determination that the offences were committed in one course of criminal conduct and that therefore the sentences should be served concurrently.
As noted above, the applicant was granted a discount for his guilty pleas of 25%.
It is of some importance in these proceedings to observe that the determination that the offences fell below the mid-range of objective seriousness had a significant bearing upon the determination of the non-parole period of 4 years and 6 months in contrast to the standard non-parole period of 10 years. Given that the total quantity of methylamphetamine found in the applicant's possession amounted to almost double the commercial quantity and, in the case of the amphetamine, was slightly less than a large commercial quantity, the determination of the sentence, including the non-parole period, could be considered as containing an element of leniency.
The finding of special circumstances further operated to the applicant's benefit as providing the basis for a variation in the ratio of the non-parole period to the total term of the sentences imposed, namely, a ratio of 52% instead of the otherwise prescribed ratio of 75%.
No error was established in this case as occurred in Hill where the sentencing judge imposed a sentence that was said to be "incongruously at odds" with the strong subjective case. As earlier noted, in the present case the sentencing judge expressly had regard to all relevant subjective circumstances in determining sentencing.
The sentences imposed, in particular the total effective sentence of 8 years and 6 months with a non-parole period of 4 years and 6 months, was not, in my opinion, manifestly excessive. As the High Court has observed, appellate intervention on the ground that a sentence is manifestly excessive is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Intervention is warranted only where the difference is such that, in all the circumstances, an appellate court concludes that there must have been some misapplication of principle even though where and how is not apparent from the reasons: Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; and Hili v R, supra, at [59].
I have concluded that the sentences imposed were not outside the range of sentences available and that no basis exists for the contention that the sentences imposed were manifestly excessive. Indeed a consideration of all objective and subjective factors, in my opinion, establishes that the sentences imposed were well within the applicable range of sentences.
Finally, it is to be observed that in determining sentence the sentencing judge was required to give effect to both specific and general deterrence.
Her Honour's observation that: "general deterrence looms large and any penalty to be imposed [is] to ensure that a message is sent to the community that those who choose to engage in the supply of drugs will face condign punishment when they are charged" is an appropriate one in this case: ROS p 7.
Finally, as noted above, the factual findings made by the sentencing judge, not challenged as having been erroneous in any respect, included, in particular, that the applicant, though a courier who was motivated by his habit and drug debt, was found to have participated at a level well above that of a street level courier and played an important role in the distribution of a significant quantity of drugs: ROS p 9.
The sentences imposed were not, in my opinion, manifestly excessive.

Orders

I accordingly propose the following orders: 1. Leave to appeal be granted. 2. The appeal be dismissed.
DAVIES J: I agree with Hall J.

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