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[2011] NSWCCA 134
Court of Criminal Appeal (NSW)
2011-06-06
Hodgson JA, Hoeben J, Grove AJ
Original judgment source is linked above.
Judgment 1HODGSON JA: I agree with Grove AJ. 2HOEBEN J: I agree with Grove AJ. 3GROVE AJ: This is an application for leave to appeal against severity of sentence imposed by Sorby DCJ at Sydney District Court. The applicant pleaded guilty to 3 counts on an indictment charging on count 1, supplying a prohibited drug on 5 occasions between 5 February and 21 February 2008 constituted by 4 supplies of cocaine and 1 supply of methylamphetamine ("ongoing supply"), on count 2 having in possession for supply on 28 February 2008 72.34grams of methylenedioxymethylamphetamine (MDMA or Ecstasy) and on count 3 having in his possession for supply on 28 February 2008 298.4grams of gamma butyrolactone (GBL). 4A Form 1 pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 sought that there be taken into account on sentence 3 further charges. In executing a search warrant on 28 February 2008 at the applicant's home police located a bag containing $17,915 in cash, resealable plastic bags in 2 of which there was a combined total of 18.97grams of cocaine and another collection of plastic bags containing a total of 3.51grams of methylamphetamine. These findings led to charges of dealing with the proceedings of crime and (deemed) supply of the respective drugs. The Form 1 document relates to the applicant being "charged with the offence of supply prohibited drug on 28 February 2008". There was no identification of which of the (deemed) supplies on that date, the MDMA or the GBL, was the principal offence for the purpose of s 32. There is a further problem with how the Form 1 offences were dealt with to which I will return. 5On the charges in the indictment his Honour imposed sentences first on counts 2 and 3 and then on count 1. On count 2 the applicant was sentenced to imprisonment for a fixed term of 12 months commencing on 31 August 2009 and expiring on 30 August 2010, on count 3 to imprisonment for a fixed term of 12 months commencing on 28 February 2010 and expiring on 27 February 2011 and on count 1 (ongoing supply) to imprisonment consisting of a non parole period of 2 years commencing on 28 February 2011 and expiring on 27 February 2013 with a balance term of 22 months commencing on 28 February 2013 and expiring on 27 December 2014. 6The effective term of custody for the 3 offences consisted of a non parole period of 3 years 6 months and a balance term of 22 months, an overall total term of 5 years 4 months. These reflected a "discount" of 37% made up of 17% for the delayed plea of guilty and 20% for assistance to authority. Although conventionally allowance for the latter has designated elements for past and future assistance, the Crown acknowledged that the applicant did fulfil his undertaking and the proceedings in respect of which he gave it have been completed. Both the Crown and the applicant accepted that the combined discount of 37% was appropriate to the circumstances. Although his Honour did not nominate a "starting point" it would appear that, applying that discount to the overall term, a point can be calculated in the order of 8 to 9 years. 7The facts were not in dispute and were put before the Court in an agreed statement. In brief, the applicant conducted a hairdressing business from a shop in Sydney city. On three occasions a police undercover operative contacted the applicant and in exchange for $300 on each occasion the applicant supplied him with a little less than a gram of cocaine. On a fourth occasion, for the same amount of money, a similar quantity of cocaine was arranged to be collected from the shop being left for the operative in an envelope. Pursuant to an authorised telephone interception, police became aware of an arrangement between the applicant and a "customer" and surveyed the latter entering and leaving the shop. He was arrested and found to be in possession of about 1gram of methylamphetamine obtained from the applicant. These transactions constituted the ongoing supply charged in count 1. 8Counts 2 and 3 related to amounts of drugs found in the bag on the execution of the search warrant in addition to what has already been described in connection with the Form 1 charges. 9The applicant is now 48 years of age. He has been married and divorced. His former wife gave evidence about the changes to his life by what she now knows to have been connected with drug use. He was, unusually, aged about 35 when he commenced to use illicit drugs. He has a current partner and has a supportive family. The two children of the marriage are now adults. 10Evidence confirmed (by regular analysis) that he had ceased drug use since his arrest. There was a considerable assembly of testimonials establishing his long term generosity and involvement with charitable activity. Minor transgressions in the distant past were ignored by the learned sentencing Judge as irrelevant to the current sentencing task. 11The applicants Notice of Appeal specified 5 grounds namely: (1) The sentence is manifestly excessive. (2) The sentencing Judge erred in his approach to the matters on the Form 1. (3) The sentencing Judge erred in his application of the principles of totality. (4) The sentencing Judge erred in ordering that the sentence for count 1 be wholly cumulative upon the sentence for counts 2 and 3. (5) The sentencing Judge erred in his approach to the evidence establishing the applicant's remorse. 12Grounds 2 and 5 focus on discrete issues and it will be convenient to consider them first and then grounds 1, 3 and 4 can be dealt with together.
Ground 2 13In his remarks on sentence his Honour made two references to the Form 1 offences. He said "taking into account the criminality involved including the three offences on the Form 1 I consider the appropriate sentence to be a non parole period of 3 years with a further period of parole of 22 months". 14That reference to sentence is to the total term for the three offences on the indictment. The use of the Form 1 procedure requires the scheduled offences in respect of which guilt is admitted to be taken into account in the sentence for "a principal offence" and, hence, not in respect of a total term for multiple offences. 15However, his Honour later said also "I formally attach the matters on the Form 1 for the s 25A(1) offence", that is the ongoing supply between 5 and 21 February 2008. I have already observed that the request in the Form 1 specified an offence of supplying prohibited drug on 28 February 2008. Although there was ambiguity about whether this referred to count 2 or count 3, it could not refer to count 1. I observe in passing that the photocopy of the Form 1 (Exhibit 2) in the appeal papers reproduces a signature of the Judge but not of the applicant or the authorised signatory for the Crown but, in the absence of other information, it is assumed that the original was duly completed. 16The power of a sentencing Judge and requisite procedures to take Form 1 matters into account are vested by ss 32 and 33 of the legislation. In this case the charge of ongoing supply to which his Honour "attached" the matters on Form 1 could not fulfil the definition of a "principal offence" described on the Form itself and he lacked power to make that attachment. It is not known what elevating effect the Form 1 matters contributed to sentence assessment but it is inferred that "taking into account" admitted offending would have had some such effect. I am not, of course, suggesting that his Honour should have indicated a separate penalty for the Form 1 offences even if he was taking them into account in sentencing for an appropriate principal offence: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (2002) 56 NSWLR 146. 17Ground 2 has been made out.
Ground 3 18His Honour stated: "The offender did not give evidence before me and has not expressed any remorse for what he has done or show (sic) any insight into the effects his drug activities may have had on the community, particularly among the young." 19To the extent that these remarks imply that the applicant needed to give evidence to establish his remorse, such implication is contrary to authority: Butters v R [2010] NSWCCA 1. It was not disputed that the applicant had expressed his remorse in various ways to many of the authors of the testimonials presented on his behalf but the contents of his expressions referred to the shame on his family and the effects of penalty upon his children in particular. 20The Crown pointed to the statutory provision for mitigation in s 21A(3)(i) of the Crimes (Sentencing Procedure) Act which allows mitigation for: "(i) the remorse shown by the offender for the offence, but only if: (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both)" 21With focus on subparagraph (ii) it was submitted that, even if the requirement to testify was erroneous, the applicant could not qualify for this aspect of mitigation because he had not acknowledged the impact of his offending upon the wider community. In terms of the statutory factor, the submission is correct but that is not to say that it was not open to his Honour to find otherwise, as he did, that the applicant harboured some contrition. 22To the extent that the requirement to testify was erroneous the ground is made out but for the above reasons it is not shown that any adverse consequence to the applicant arose out of such error.
Grounds 1, 3 and 4 23Each of the counts of the indictment showed dealing with different classes of prohibited drugs and two different drugs were the subject of the ongoing supply and, although in a sense all offences reflected elements of overall criminal conduct of similar nature, it was an appropriate exercise of his Honour's discretion to order a degree of cumulation of sentences. Complaint is directed to the cumulation of the entire sentence for ongoing supply (count 1) upon the sentences for the supplies in counts 1 and 2. 24His Honour did not express any reason for directing that the sentence on count 1 be served wholly cumulatively on the other sentences but made a general remark, consistent with authority ( Pearce v The Queen (1998) 194 CLR 610), that he should set separate sentences for each of offence before considering whether sentences should be concurrent, cumulative or partly both and the question of totality. It is recognised that cumulation is determined by an exercise of discretion which carries the usual restraint upon appellate intervention: R v Hammond (2000) 118 A Crim R 66 but the outcome of that exercise of discretion can be examined against the application of the principle of totality: Regina v MMK (2006) 164 A Crim R 481. 25Although dealing with Commonwealth offences at the time, the recent cautions by the High Court in Hili v The Queen [2010] HCA 45 should be borne in mind when considering statistical survey or assertedly comparable case law concerning sentence. Nevertheless, without pausing to recite the outcomes of listed cases, it can be observed that, at the very least, the total term in this instance is in the category of the highest impositions appearing in the collected data. 26Bearing in mind that there must have been some inflation in the term for the ongoing supply by reason of taking into account of the Form 1 matters in a fashion beyond power, I would conclude that the entire cumulation of that term inevitably resulted in tainting the total term. 27The application for leave to appeal against sentence should be granted and this Court should intervene and re-sentence. 28There is, in one aspect, some awkwardness in effecting the re-sentence. The Form 1 offences can only be taken into account in respect of counts 2 or 3 given the expression in the Form itself. The sentences on both these counts were identical fixed terms of imprisonment which have been fully served and are now expired. It might have been expected that, if the Form 1 offences were taken into account in one of those matters, that sentence would likely to be longer than that on the other but, in the light of the expiry and although it might present as somewhat ritual, re-sentence should attach the Form 1 offences to an available count. 29To give practical effect to the conclusion stated, I would advance the commencing date of the sentence on count 1 to 31 May 2010, that is some 9 months before the date of 28 February 2011 pursuant to the current order. In so doing I would give significant account to the rehabilitative steps taken by the applicant which can be perceived in his demonstrated cessation of drug using and the considerable confirmation by the many authors of testimonials to his substantial charitable activity over a long period of time before he offended together with his absence of relevant prior conviction. 30I propose the following orders:
Amendments 17 October 2012 - amended para 3(c) to read: ...balance of term of 1 year 10 months commencing on 31 May 2012. Amended paragraphs: 30 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: 17 October 2012
Morrie Paul DOUMIT
R