Morris v R

Court of Criminal Appeal (NSW)|2022-08-12|Before: Kirk JA, Button J, Dhanji J, Legislation Amendment J

HEADNOTE [This headnote is not to be read as part of the judgment] The applicant appealed against a sentence imposed on him on 24 March 2021 by Judge Robison in the District Court. The single substantive offence was ongoing supply of a prohibited drug, namely methylamphetamine, contrary to s 25 of the Drug Misuse and Trafficking Act 1985 (NSW). Three further offences were taken into account on a Form 1. The applicant received a head sentence of imprisonment of 2 years 9 months, with a non-parole period of 9 months. The applicant pressed a single ground of appeal, submitting that the head sentence alone was manifestly excessive. The applicant advanced two key submissions in support of the ground of appeal. First, the applicant relied on the unusual sentence structure imposed by the learned sentencing judge, whereby the non-parole period imposed amounted to only 27% of the head sentence, to demonstrate error. Secondly, he submitted that the very small quantities of prohibited drugs supplied and the very small sums of money received for them, seen in the context of many favourable subjective features, meant that the head sentence was patently too long. The Court held, dismissing the appeal (per Button J, Kirk JA and Dhanji J agreeing): 1. The unusual sentence structure does not itself demonstrate an error with regard to the head sentence imposed: [46] (Button J); [1] (Kirk JA); [53] (Dhanji J). 2. Taken as a whole, and bearing in mind the criminal record of the applicant and the financial gain that he had made from the offending as a whole (including the offences on the Form 1), the head sentence was stern. It was not manifestly excessive: [40]-[41] (Button J); [1] (Kirk JA); [53] (Dhanji J).

JUDGMENT

KIRK JA: I agree with Button J.
BUTTON J: Mr Bruce Morris (the applicant) has sought leave to appeal against a sentence imposed by Judge Robison on 24 March 2021 in the District Court at Bourke. The single substantive offence was ongoing supply of the prohibited drug methylamphetamine, contrary to s 25 of the Drug Misuse and Trafficking Act 1985 (NSW) (the DMTA). Taken into account on a Form 1 were three further offences.
The learned sentencing judge imposed a head sentence of imprisonment of 2 years 9 months, to commence on 13 January 2021 and expire on 12 October 2023, with a non-parole period of 9 months that expired on 12 October 2021. As at the date of the hearing of the application, the applicant had been released to parole, and remained subject to it.
A single ground of appeal was pressed: that the head sentence is manifestly excessive.

Objective features

A statement of agreed facts was summarised in the remarks on sentence, and is to the following effect.
On 6 February 2020, a registered police source attended premises in Bourke and yelled out to the offender, who was present inside. They had a conversation at the front door, and the offender directed the source as to where to go on the property. Eventually, the source met a Mr Elwood, a cousin of the applicant, at the property. Mr Elwood sold the source a very small quantity of methylamphetamine, 0.04 g, in return for $50.
That conduct of the applicant constituted one of the three offences on the Form 1, in the form of knowingly taking part in the supply of a prohibited drug. When dealt with in the Local Court (as it surely would have been, if not taken into account in that way in the District Court) it carries a jurisdictional limit of imprisonment for 2 years.
As for the substantive offence, during the thirty days between 24 February 2020 and 26 March 2020, the offender supplied methylamphetamine on five occasions to the police source for financial reward, as follows.
On 25 February 2020, he supplied 0.05 g, in return for $50.
The next day, he supplied 0.04 g of the same drug for the same amount of cash.
He supplied another very small quantity of the drug, being 0.05g, on 2 March 2020.
On 5 March 2020, he supplied 0.10 g of methylamphetamine, and pretended to supply a further 0.11 g of the same drug (deceitful behaviour of that kind is captured by the deeming provision in s 40 of the DMTA).
On 10 March 2020, he again purported to supply 0.06 g of the same drug.
Most of the time, the source handed over $50 in cash for these substances; on one occasion the purchase price was $100.
Separately, between 5 February 2020 and 11 March 2020, the applicant permitted premises of which he was the lawful occupant to be used for the supply of prohibited drugs. That offence also appeared on the Form 1, and carries a maximum penalty of imprisonment for 12 months.
On 8 April 2020, the police attended the home of the applicant, executed a search warrant, and arrested him. Found secreted in the engine block of a vehicle parked in the carport and registered to the applicant was a metal tin with electrical tape wrapped around it. The tin contained $2,000 in cash. That led to the final charge on the Form 1: dealing with property reasonably suspected to be proceeds of crime. It carries a maximum penalty on indictment of imprisonment for 3 years, and a jurisdictional limit in the Local Court of imprisonment for 2 years.
The assessment of the objective seriousness of the offending by the sentencing judge was that it fell "towards the lower end of the scale". Having said that, the sentencing judge also referred to the patently damaging effect that distribution of the substance in question does to the community, and the fact that that damage extends beyond those unfortunate persons who are dependent upon it. As well as that, the sentencing judge remarked that the applicant's motivation for the offending was multifactorial, and included "commercial gain and greed."

Subjective matters

The applicant pleaded guilty to all offences in the Local Court, and received a discount of 25% on the head sentence of the substantive count as a result. That means that its starting point was a head sentence of imprisonment for 3 years 8 months.
The applicant was born in June 1986, and was therefore aged 34 years as at the date of sentence, and is now 36 years old. An Aboriginal man, he had been raised by his grandmother until she passed away when he was still a child, and thereafter lived in an environment bereft of adult supervision. He had been the subject of violence by a family member when young. He was also exposed to abuse of prohibited drugs by those around him from an early age, and had himself used cannabis from his teenage years.
The applicant left school in year 10 and completed an apprenticeship. His life was proceeding well until, in 2013, his romantic partner and he tragically lost a baby. He sought to assuage the pain of that loss with the use of prohibited drugs, in particular "ice", with predictably disastrous results. By the time of the offending, he was spending approximately $500 a week on drugs.
The applicant accepted in evidence that he had involved himself in selling drugs in order to maintain his own dependency, but also, to an extent, to contribute to the financial position of his family.
The criminal record of the applicant assisted him neither on sentence nor in this application. Amongst other offences, in 2007, he had been imprisoned for 6 months for supplying a prohibited drug. In the same year, he had been imprisoned for 4 years with a non-parole period of 2 years, for two counts of aggravated break and enter with the commission of a serious indictable offence in company. As recently as 2015 he had received a substantial fine for an affray, and in 2017 he possessed a prohibited drug and committed a further property offence.
The sentencing judge accepted in favour of the applicant that his plea of guilty was not just a plea of convenience, but also an acceptance of responsibility; that the applicant maintained strong connections with his family, and was deeply concerned about their welfare (he by that stage being in custody); that onerous bail conditions to which the applicant had been subject previously should be taken into account; that a written work reference showed that the applicant had been well regarded in employment in the past, and had an offer of work available for the future; that previous conditional liberty had been completed successfully, which augured well for prospects of rehabilitation; that the applicant had had "a lot of time to think about all of this" in a positive way; that the applicant had come to appreciate the effect of his crimes not just upon himself and those close to him, but also upon the wider community; and that there were "real" prospects of rehabilitation.
Having said that, the sentencing judge was satisfied that imprisonment was called for, and rejected the proposition that the head sentence could be short enough to accommodate the alternative of an intensive correction order. That led to the imposition of the sentence of full-time incarceration that I have detailed above.
Clearly enough, the sentencing judge found special circumstances, and varied the ratio between the non-parole period and the head sentence to a very marked degree: it became 27% of the head sentence. If that had not been the case, the non-parole period would have been in the region of 2 years 1 month.
Finally, because of the way the matter was argued, I briefly summarise the sentence that was imposed upon Mr Elwood. Relevantly, the applicant and Mr Elwood were co-accused for only one offence - the supply in which the applicant knowingly took part (taken into account on his Form 1). Mr Elwood was sentenced for this, and two other supplies (of 0.18g and 0.05g), to three Community Corrections Orders for 15 months in total. Aside from this overlap in offending and also possessing a criminal record, Mr Elwood's circumstances were significantly different: he was six years younger than the applicant, and his offending was less serious and dealt with in the Local Court.

Submissions of the applicant

In written submissions in support of the assertion of manifest excess, counsel for the applicant contended that the head sentence imposed on the applicant did not reflect the findings by the trial judge about the objective seriousness of the offence, and the subjective factors in favour of the applicant, especially his considerable prospects of rehabilitation.
Far from impugning the conclusions in the remarks on sentence, counsel embraced the observations of his Honour with respect to objective and subjective factors.
Reliance was placed on the low level of seriousness of the offence, apparent from the quantities of the prohibited drug supplied, and their demonstrated street market value.
Counsel submitted that the disadvantaged background of the applicant ameliorated his moral culpability, in accordance with the well-known principles discussed in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 23.
Counsel conceded that the subjective circumstances of the so-called co-offender, Mr Elwood, were so significantly different as to eliminate any parity argument. However, it was argued that the gulf between the sentence imposed on the co-offender and that imposed upon the applicant, indirectly highlights the manifestly excessive sentence imposed upon Mr Morris.
The radical adjustment for special circumstances, demonstrated by the remarkable ratio, was also relied upon to indicate error. In a case, it was submitted, where the subjective case did not really call for a reduction in the minimum mandatory term of imprisonment to 27% of the overall head sentence, error could be present - in the head sentence. A hypothetical head sentence of 18 months was proposed as fitting more comfortably with the non-parole period of 9 months (which counsel, of course, did not seek to disturb).
In oral submissions, counsel eschewed sentencing statistics or comparable cases with regard to the offence, on the basis that it simply captures too wide a variety of offending for them to be useful. (I interpolate that the Crown in this Court adopted the same approach.)
Counsel emphasised two matters referred to above: the outcome of the finding of special circumstances and the sentence imposed upon the co-offender.
He also emphasised that, because all of the supplies making up the substantive offence were captured by way of a police operation, there was no danger of harm to the community by way of dissemination.
While counsel conceded that the Form 1 offence to do with the sum of $2,000 had some role to play in assessing the applicant's culpability, it was argued that this was limited to preventing a defence submission that the pleaded "sub-offences" were the only transactions.
Counsel readily conceded - noting that it was also conceded in front of the sentencing judge - that the threshold in s 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW) was crossed, not least because of the criminal record of the applicant, which had resulted in previous gaol sentences.
In submissions focusing upon the vast distance between the non-parole period and the head sentence, counsel resisted the notion that the sentencing judge had been lenient in imposing the non-parole period, as opposed to falling into patent error founded on severity with regard to the head sentence. Counsel noted that there was no assertion of inadequacy or error in the non-parole period by the Crown.
In short, the unusual sentence structure along with the powerful objective and subjective circumstances, which called for an emphasis on rehabilitation, were relied upon to submit that the head sentence is manifestly excessive.

Determination

I accept that the head sentence is stern. I also accept that the starting point of the head sentence, if it had been imposed after trial, would have been very stern. I do not accept, however, that the head sentence is manifestly excessive, in the sense of being patently erroneous in its length. That opinion is based upon the following analysis, in generally descending order of importance.
It is certainly true that the quantities of drugs involved, and the amounts of cash handed over, were at the lowest end of the pyramid of drug distribution. And I also accept that a significant proportion of whatever profit the applicant derived from his illegal activities was being spent on his own drug dependence. But the $2,000 cash, found secreted in the engine of his vehicle, puts a different light on things, objectively and subjectively. Even taking care to reflect upon that Form 1 matter in accordance with the limited approach discussed in the very well-known guideline judgment of Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518, it has the following effect. It conclusively establishes that the applicant was something more than an impoverished drug addict who was simply spending his ill-gotten gains on drugs for himself, and perhaps defraying some household bills. On the contrary, a business had been conducted that led to a significant sum of accumulated cash profit.
The same may be said about the finding of digital scales in the home of the applicant: they are suggestive of something beyond a person who handed over very small sums of drugs for very small sums of money.
Relatedly, the objective finding by the sentencing judge, not impugned in this Court, that the applicant clearly "in fact, set himself up in a business of supply" is significant. It differentiates the applicant from a mere desperate drug addict who is paid a pittance, or in drugs, or in forgiveness of debt, and who is nothing more than a delivery person (in the context of the form of supply under consideration), caretaker (in the context of manufacture), or labourer (in the context of cultivation).
The happenstance that the prohibited drugs were not distributed due to police intervention and contrary to the obvious intention of the applicant is not a significant mitigating feature.
Much could be said in favour of the applicant subjectively, and the sentencing judge did so in the remarks on sentence. But his previous conviction for supply, and his previous incarceration for two matters, the seriousness of which is demonstrated by the head sentence of imprisonment for 4 years, play a role in buttressing the appropriateness of the head sentence imposed here of 2 years and 9 months.
There is certainly a remarkable "gap" between the non-parole period and the head sentence. And I assume for the sake of argument, without deciding, that one can appeal against one component of a sentence, without throwing open the whole question of re-sentence with regard to all components. But the simple fact is that the non-parole period was lenient (I do not say that critically). The leniency of one component of the sentence does not of itself serve to establish the erroneous severity of another component.
In accordance with the joint approach of the parties, I shall refer neither to statistics maintained by the Judicial Commission, nor to the significant number of comparative cases decided in this Court since the offence-creating provision was inserted in the DMTA in 1998. I confine my reflection to the substantial maximum penalty of imprisonment for 20 years, and the undoubted intention of Parliament that an unusual offence within the DMTA - based not on quantities of drugs or plants supplied, manufactured, or cultivated - would thereafter lead to imprisonment of many persons who were operating at the lowest level of the system of illicit supply.
The eschewal by counsel of a parity argument based on the disposition of the matters of Mr Elwood was well-founded. As I have shown above, Mr Elwood was the co-accused with regard to only one matter, that being the matter on the Form 1 of the applicant founded on a statutory form of accessorial liability, and relating to a truly tiny amount of methylamphetamine. If Mr Elwood is not to be thought of as a co-offender in any substantial sense, and if no parity argument is to be mounted as a result, then he merely becomes one of countless persons dealt with for drug offences in New South Wales over the past many years. That being the case, there is no need to take the analysis further.
In short: the head sentence was stern. A shorter head sentence would have been open to the discretion of the sentencing judge, and, perhaps, alternatives to full-time imprisonment as a result. In that regard, it is noteworthy that Parliament recently amended "Table 1" of the Criminal Procedure Act 1986 (NSW) to permit the offence of ongoing drug dealing (which had been strictly indictable for two decades) to be dealt with summarily: see new cl 30C of the Table, inserted by the Justice Legislation Amendment Act (No 2) 2019 (NSW), which commenced on 30 April 2021, a little over a month after the applicant was sentenced in the District Court. That constitutes, perhaps, a reflection of a changing attitude on the part of Parliament to the commission of offences of repeated supply of prohibited drugs at the lowest level.
But establishment of the possibility of different outcomes of the exercise of the sentencing discretion does not establish that this particular outcome is wrong. The quantities supplied in the "sub-offences" and the sums of cash received were trifling, but the objective aspects of the matter were not entirely trivial. Despite his many positive attributes, the applicant had been convicted of the same offence in the past, and had infringed against the criminal law quite significantly in other ways.
In all the circumstances, I do not believe that the ground of appeal has been made good.

Orders

For those reasons, I propose the following orders: 1. Leave to appeal against sentence granted. 2. Appeal dismissed.
DHANJI J: I agree with Button J for the reasons his Honour gives, and would add only the following. The applicant gave evidence as part of his case before the District Court. That evidence, together with the submissions made on his behalf, clearly made an impression on the sentencing judge, reflected in his Honour's observations as to that subjective case, as referred to by Button J.. While the various purposes of sentencing are relevant to both the head sentence and any non-parole period, the weight to be given to those different purposes of sentencing will vary between the setting of the head sentence and the setting of the non-parole period: see Bugmy v The Queen (1990) 169 CLR 525 at 531; [1990] HCA 18. It appears that in this case, his Honour gave significant weight to the applicant's subjective case in setting the non-parole period, and less weight to that consideration in setting the head sentence. Whether the ratio which resulted, itself, bespeaks error, does not need to be decided for the reasons given by Button J. While a very unusual ratio might attract attention, the real issue will generally be, as it is here, whether the head sentence is excessive (or inadequate) and, where the complaint relates to a non-parole period, whether that non-parole period is excessive (or inadequate): see R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 at [73].

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