Morton v R

Judgment 1HOEBEN CJ at CL: Offence and sentence On 4 June 2012 the applicant pleaded guilty to one count that between 20 - 26 June 2010 he did knowingly take part in the supply of a prohibited drug, namely cocaine, contrary to the provisions of s25(1) of the Drug Misuse and Trafficking Act 1985, the maximum penalty for which is imprisonment for 15 years. 2A further charge of knowingly take part in the supply of a prohibited drug (cocaine) was taken into account on a Form 1 and a related driving offence was dealt with pursuant to a certificate under s166 Criminal Procedure Act 1986. 3On 10 December 2012 the applicant was sentenced by English DCJ to imprisonment with a non-parole period of 2 years, commencing 6 December 2012 and expiring 5 December 2014, with a balance of term of 2 years expiring 5 December 2016. 4By Notice of Appeal dated 29 October 2013 the applicant seeks leave to appeal against that sentence on the following grounds: Ground 1 - The sentencing judge erred in the assessment of the discount for the plea of guilty. Ground 2 - The sentencing judge erred in the application of the principles of parity of sentencing. Ground 3 - The sentence was manifestly excessive. Factual Background 5In early June 2010 NSW Police established a strike force relating to the supply of prohibited drugs in the Surry Hills area of Sydney. As a result of that investigation, Michael Bursach was identified as a person of interest. A telephone intercept warrant was granted over a mobile telephone service used by Bursach. Police also conducted physical surveillance of Bursach. As a result, the applicant, Michael Moskvin and Andrew Mrowiec were also identified as persons of interest. 6The first act of supply occurred on 19 - 20 June 2010. This was the subject of the Form 1 offence. Bursach arranged for Mrowiec to transport 5 ounces of cocaine (140 grams) to an unidentified purchaser in Brisbane. The applicant gave Bursach the purchaser's details. The applicant discussed the quantity and price with the purchaser. When the applicant was in Queensland, he tried to secure payment for the supply of that 5 ounces of cocaine. 7Telephone intercepts of conversations between Bursach and the applicant on 14, 18 and 19 June made it clear that arrangements were being made between Bursach and the applicant to deliver cocaine to a person in Brisbane and that a price had been negotiated. Subsequent conversations made it clear that the applicant was in Brisbane and was trying to collect monies for the supply of the 5 ounces of cocaine which took place on 19-20 June. 8The second act of supply occurred on 25 June 2010 when police stopped Mrowiec as he was travelling north along the Pacific Highway. A search of his vehicle located two brown paper bags, under the driver's seat. Each contained a yellow serviette wrapped around a large resealable bag, inside of which were four further plastic bags containing white powder. The applicant's telephone number was found in the vehicle, recorded in a handwritten note. The white powder was subsequently found to be 8 ounces of cocaine (222.5 grams) with varying purity between 51.5 percent and 56.5 percent. This amount exceeded the "indictable quantity" of 5 grams, but was less than the "commercial quantity" of 250 grams. 9Between 20 and 26 June 2010 a number of phone conversations took place between the applicant and Bursach which made it clear that the applicant was aware of a purchaser in Brisbane for the 8 ounces of cocaine and that he would make himself available as a contact person for Mrowiec, who was to transport the 8 ounces of cocaine to Queensland. The conversations between the applicant and Bursach made it clear that the applicant knew all the details of the transaction, including the price to be paid for the cocaine. 10The applicant was arrested in August 2010. He declined to be interviewed and was in custody for 4 days. He was granted bail on 13 August 2010 and at the time of sentence, had been on bail for 2 years, initially reporting daily which was reduced to twice weekly and then once weekly. Remarks on sentence 11The applicant did not give evidence. Her Honour reviewed his subjective case as follows. He was aged 55 when the offences were committed and was 57 at the time of sentence. His criminal record included convictions for break enter and steal, false pretences, common assault and two high range drink driving offences. However, his last conviction was recorded in 2005. Her Honour found that his criminal antecedents did not disentitle him to leniency. 12The applicant was married with one child and was said to be a devoted father, grandfather and husband. He supported an elderly mother in a nursing home. His family were very supportive of him. 13His employment history was that of an unskilled or semi-skilled labourer. In recent years, he had been unemployed. He suffered from obesity and health problems. These included trigeminal neuralgia (satisfactorily medicated), lymphedema in his lower limbs (requiring the drainage of excess fluid on occasions) and liver disease from alcohol abuse. The applicant did not use illicit drugs. 14The applicant provided voluntary services to the community. He was said to assist the Salvation Army and the Starlight Foundation. In a letter written to the court, the applicant expressed his regret at becoming involved in the offences and his remorse and contrition, having regard to the harm that drugs cause to the community. He sought to explain his involvement in the offences as in part due to financial hardship. 15Her Honour then made a series of findings in relation to the offending. She determined a custodial penalty was required because it was necessary to acknowledge specific deterrence and general deterrence in relation to the distribution of illicit drugs into the community. The offending on this occasion was objectively more serious because it was done for financial gain. She noted that the applicant was not a user dealer engaging in crime to support his habit, but also that he was not involved in other forms of criminal activity normally associated with drug supply. 16In relation to the applicant's role, her Honour found that his involvement was at a much greater level than that of Mr Mrowiec, who was merely a courier. She found that the applicant was actively involved in facilitating the supply of a significant quantity of cocaine of a relatively high purity purely for financial gain. She found that he was an essential link in the dissemination of the drugs to Queensland on two occasions in such circumstances that his moral culpability was of a reasonably high order for offences of this kind. Her Honour reached this conclusion based on the intercepted telephone calls, his travel to Brisbane, his use of a mobile phone obtained with false details and his acceptance of $2,000 in payment for his involvement. 17Her Honour considered that the issue of parity did not arise because his co-offenders had very different roles in the offending. In relation to his plea of guilty, her Honour said: "This offender, unlike his co-offenders, did not enter his plea in the Local Court. It was entered in the District Court. It was entered after the matter had been listed for trial and in those circumstances I find the utilitarian value is lessened and I allow a 15% discount for his plea." 18Her Honour found the applicant to be truly remorseful and contrite. She thought that it was highly unlikely that he would re-offend and that he had excellent prospects for rehabilitation. 19Her Honour made a finding of special circumstances because the applicant was in poor health and as a result, his time in custody would be more onerous. In that regard, her Honour noted that it had been many years since he was last imprisoned. 20Her Honour took into account the Form 1 matter and noted that the penalty to be imposed had to reflect its seriousness. Her Honour gave the applicant credit for the 4 days which he had spent in custody before being granted bail. Ground 1 - The sentencing judge erred in the assessment of the discount for the plea of guilty. 21In order to understand the submissions relating to this ground, it is necessary to set out some further background material. 22The applicant's plea of guilty on 4 June 2012 occurred after protracted plea negotiations. The applicant had initially been charged with two counts of supplying a prohibited drug. On 29 April 2011 he made an offer to the DPP that the primary supply count be amended to knowingly take part in the supply of a prohibited drug and that the secondary supply offence (the Form 1 matter) be withdrawn. 23The DPP replied on 20 June 2011 rejecting that proposal but offering to accept a plea of guilty to the primary supply count with the secondary supply count to be withdrawn and replaced with a count of knowingly take part in the supply of a prohibited drug being at least 5 grams but no more than 5 ounces of cocaine, this count to be dealt with on a Form 1. 24The applicant did not accept that proposal and on 22 June 2011 made a counter proposal that the primary supply count be reduced to a count of knowingly take part in the supply of a prohibited drug. He indicated his acceptance that the secondary supply count be reduced to a count of knowingly take part in the supply of a prohibited drug and that this be dealt with on a Form 1 with the proviso that the quantity of cocaine be specified as 5 grams. 25On 22 June 2011 the following response was received from the DPP. "I note that the difference between the respective positions at this stage is essentially that your offer with respect to sequence 1 reflects a charge of knowingly take part in, as distinct from an actual supply; and with respect to sequence 3 the quantity concerned is accepted as being 5 grams as distinct from being a question of fact for the sentencing judge as to whether the quantity is 5 grams or 5 ounces (as contended by the Crown). We are not prepared to accept an offer in the terms you propose. The offer made on 20 June 2011 is our current position." 26On 23 June 2011 the following email was sent on behalf of the applicant to the DPP: "I note that the offer made by you in your email of 20 June 2011 is your current position. I am therefore instructed to request for the matter to proceed by way of a waiver of committal hearing when the matter is listed at the Central Local Court on 23 June 2011." 27The applicant was committed for trial from the Central Local Court to the Sydney District Court on 23 June 2011 in relation to the following offences: "Supply of a prohibited drug, namely 222.5 grams of cocaine. Supply of a prohibited drug, namely 140 grams of cocaine." The applicant's matter was listed for trial on 14 May 2012 and on 3 September 2012. 28That material was placed before her Honour in the sentence proceedings. Counsel then appearing for the applicant submitted that the "utilitarian value of the plea of guilty by the offender should be considered to be in the range of between 15 percent and 20 percent, having regard to the nature and content of the protracted plea negotiations". 29The applicant submitted that the plea of guilty entered by him on 4 June 2012, which was accepted by the Crown, was in the same terms insofar as the charges were concerned as the offer made on his behalf on 22 June 2011. He accepted that in his guilty plea insofar as the Form 1 matter was concerned, the quantity of cocaine was agreed at 140 grams, which was different to the 5 grams which he had proposed in the offer. The applicant submitted that this made no difference to the substance of the offer in that it was open to the Crown to accept it, as they ultimately did, but to reserve the factual argument as to the quantity of cocaine for hearing by the sentencing judge. In those circumstances, the applicant submitted a full discount of 25 percent should have been allowed to him. 30The applicant submitted that he should not be bound by the submissions made by his counsel in the sentencing proceedings since those submissions were wrong. This was because the applicant would have received a 25 percent discount had his offer of 22 June 2011 been accepted as it should have been. The applicant submitted that the Crown's refusal to accept the offer which he had made was something beyond his control and that he should not be penalised because of the conduct of the Crown. The applicant submitted that to find otherwise would mean that the measure of leniency afforded to an offender prepared to plead guilty to a lesser charge fairly available on the evidence would depend on the Crown's attitude. The applicant submitted that such an approach should not be endorsed by this Court (R v Cardoso [2003] NSWCCA 15 at [21]). 31The applicant submitted that the matter being listed for trial in the District Court was due solely to the conduct of the Crown. Consideration 32The applicant's submission should not be upheld. It is based on an incorrect understanding of R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383. This is clear from the analysis of Howie J (with whom Hoeben J agreed) in R v Stambolis [2006] NSWCCA 56 where his Honour said: "8 The Judge imposed the sentences on the basis that the plea of guilty was made at the first reasonable opportunity and gave the applicant the benefit of a discount of 25 per cent although his Honour found that they were "a little late (understandably)". The Crown did not oppose this finding and on the hearing of the appeal the Crown conceded that it could not assert otherwise in this Court. However, on the available material it appears that the finding by the Judge was erroneous as a matter of principle. I should point out that full argument was not heard on this issue because the Crown did not rely upon this matter as a ground of appeal and counsel for the respondent was obviously not given the opportunity to argue it. However, it is a good example of a common misconception about the discount for a plea of guilty. Although the principles are well established, they are often overlooked. 9 The applicant was arrested shortly after he committed each of the two sets of offences for which he was to be sentenced. In both cases he made full admissions to the police. Yet the applicant did not plead guilty in the Local Court but was committed for trial. He did not plead guilty until 24 May 2005, almost eight months after his arrest for the second offence. 10 Apparently the explanation for this delay was that the Crown was considering its attitude to the offence of escape. The Crown had originally found a bill for that offence and the indictment presented against the applicant contained a count for an offence of escape lawful custody. It seems that the applicant was not prepared to plead guilty to any offence charged against him until the Crown determined that the escape could be dealt with on a Form 1. There was a letter from a Crown Prosecutor placed in evidence before the Judge indicating what facts would be alleged to support the charge and that the count of escape would be removed from the indictment and placed on a Form 1. This letter was dated 20 May 2005. The respondent pleaded guilty to the remaining offences on the indictment four days later. 11 Frankly I do not understand how on the established principles it could be determined that the pleas of guilty for the offences for which the respondent was sentenced were early pleas and that they justified a discount of 25 per cent. There is no utility in a plea of guilty that has not been forthcoming. If the accused is not prepared to plead guilty until the Crown takes some course, then so be it. But if by withholding the plea the offender achieved the result he wanted, I do not understand why he should receive further favourable treatment on the basis that the plea of guilty had utilitarian value when it did not. Rarely, if ever, will the reason why the accused has withheld the plea of guilty be a relevant matter in determining the utilitarian discount. Where it has been used as a bargaining tool in order to achieve a favourable outcome from the Crown in respect of some other charge, I do not understand that this circumstance can excuse the delay or provides a basis for asserting that the plea was made at the first reasonable opportunity. 12 I accept that there may be exceptional cases, where as a matter of fairness to the offender, a discount will be given even though there was no utilitarian value in it. One such situation that has been recognised is where the Crown rejects the accused's plea of guilty to manslaughter and the accused is later acquitted of murder but convicted of manslaughter after trial: R v Oinonen [1999] NSWCCA 310; R v Cardoso [2003] NSWCCA 15. But in R v Harmouche [2005] NSWCCA 398 Hulme J, with whom Sully J and Latham J agreed, wrote: [38] Undoubtedly, the Respondent on the evidence before, and findings of, Judge Delaney made out an impressive subjective case. He had the factors of a plea, delay and youth arguing for a lesser penalty than would have been appropriate in their absence and was also entitled to have taken into account 134 days, i.e. something over 4 months, pre-sentence custody. [39] That said, the 25% discount for the Respondent's plea was unduly generous. In giving it his Honour seems to have made a mistake commonly seen in this Court that because a plea was entered at the earliest opportunity (commonly shortly after the Crown reduces a charge) an offender is entitled to that discount. Such an approach is to misread R v Thompson and Houlton (2000) 49 NSWLR 383 and to ignore the rationale for a discount of that degree. The Chief Justice made it clear, at [154-5], that the rationale for a 25% discount was the extent of the utilitarian benefit and the complexity of evidence gathering and of any trial which was avoided. Certainly his Honour made reference to a plea being entered at the earliest opportunity but that was in the context to which I have referred and where his Honour was obviously contemplating the committal stage of criminal proceedings where the community would be saved the costs associated with prosecution of the case from (the beginning of) that stage. [40] That what I have said correctly reflects what the Chief Justice said derives support from observations of Hodgson JA, with whose remarks Barr J agreed, in R v Dib [2003] NSWCCA 117 where, dealing with a complaint that only 16.7% had been allowed in the case of a plea entered in response to a lesser charge than originally preferred, his Honour said, at [5 - 6]: