Moss v R

Court of Criminal Appeal (NSW)|2016-09-07|Before: Macfarlan JA, Price J, Hidden AJ

The applicant's subjective circumstances

A Corrective Services' pre-sentence report dated 30 September 2015 was accepted by the sentencing judge as providing relevant information about the applicant.
The report stated the following about the applicant's family/social circumstances, his education and his employment. "Mr Moss stated that he had arrived in Australia on a holiday visa just 3 weeks prior to his arrest and subsequent incarceration. Prior to this, he reported that he was living in Spain in a flat attached to his former mother-in-law's home. He plans to return to live in Spain following his release from custody. His current partner and his eldest child live in Spain and the remainder of his family reside in England. He had 3 adult children from 2 previous marriages. Mr Moss stated that his marriage of 20 years duration ended approximately 6 years ago as a result of financial stressors associated with his once very successful company going bankrupt. Mr Moss described this period as being particularly difficult as he lost his wife and company at the same time. Mr Moss described a close and supportive relationship with his children and his current partner. Mr Moss commented that he was raised in England by both parents in a happy and supportive home. He has 3 siblings with whom he remains close and he also shares a strong relationship with his mother. His father passed away approximately 2 years ago. Mr Moss completed the equivalent of the Higher School Certificate in England and went on to complete an apprenticeship as a butcher. He stated that he has almost always maintained employment with only brief periods of unemployment between positions in his younger years. Mr Moss' most significant employment was for 15 years as the owner and director of a company involved in importing and supplying commercial furniture. He described building this business from scratch into a multi million dollar company. He reported that the company declared bankruptcy in around 2009 following 2 large contractors failing to pay, resulting in a loss of approximately $700,000. Following the company bankruptcy, Mr Moss returned to his trade as a butcher for 18 months prior to relocating to Spain and commencing work as a taxi driver and casual builder. He indicated that he was struggling financially at this time and his intentions were to come to Australia to see if he could obtain work in the mining industry. Mr Moss claimed that he has employment available with a relative upon his return to Spain."

The applicant's evidence

The applicant gave oral evidence at the sentencing hearing. It is unnecessary to refer to it as in a number of respects it was not accepted by the sentencing judge and in any event before this Court his counsel disclaimed reliance upon it, with one limited exception. The exception related to the applicant's evidence that he was threatened with violence if he did not continue with the criminal tasks he was asked to perform. His counsel referred to this only in a very limited way. He did not assert that the evidence established that the applicant acted under duress. He simply put that the evidence was "consistent with this scenario of someone picking and dropping off things, that certain consequences would have been explained to him if he didn't perform that function" (Transcript p 9).

The sentencing judgment

In light of the Crown's concessions of error in the judgment and the need for re-sentencing, it is necessary to refer only to the following limited portions of the judgment.
First, the sentencing judge said that he was unable to adopt Corrective Services' view that the risk of the applicant re-offending was low because "of what I consider the unsatisfactory nature of [the] evidence before me". His Honour did not elaborate further. The evidence to which his Honour referred appeared to be evidence concerning the circumstances of the offences and not evidence bearing on the risk of him re-offending.
Secondly, his Honour found that the proceeds of crime offences were above the mid-range of seriousness, whilst the drug offence was within the mid-range.
Thirdly, his Honour said the following concerning deterrence: "In respect of the question of general deterrence, this matter looms large here and I will come back to it shortly when I have considered the other factors. Clearly, where a person is carrying methamphetamine and significant amounts of cash, possibly $1 million at one period of time, then this Court must send a message that if people want to come to Australia and undertake serious criminal activity they will not be given a short time in custody and sent home. That is, not having any period of probation service. I am proposing to impose periods of time for parole, but that matter will be reflected in how I accrue the sentences. In respect of the third matter, again, courts have regularly said such a matter must or should, except in exceptional circumstances, impose a custodial sentence which will act as a deterrent to others and I take that into account. The second matter is the question of specific deterrence, and in respect of this offender, because of his age, that does not loom large here as he will return to England as I understand it."
Fourthly, in respect of the applicant's good character, his Honour said: "One of the tragedies of this matter is that because of his good character, he was more likely not to come under notice of the authorities and thus, in doing what he did, it was a risk that he was prepared to take. In considering those factors and considering that he is unlikely to reoffend in this country, I must err on the side of general deterrence, and that matter is foremost in my mind in imposing the sentence that I propose to."
Fifthly, his Honour noted that the applicant had been described as a "model offender" in respect of his time in custody and that "but for the way in which he gave his evidence before me", his Honour would have accepted that description.
Sixthly, his Honour allowed a 25% discount in respect of the plea of guilty to the proceeds of crime offences and a discount of 15% in respect of the drug offence, the plea in respect of the latter not having been proffered until after a contested committal.
Seventhly, his Honour did not find that there was sufficient evidence to enable him to take into account the applicant's back soreness, there only being an x-ray before the Court.
Eighthly, due to the applicant's ability to make phone calls, his Honour did not take into account the fact that the applicant had no family member in Australia who is able to visit him.
Ninthly, the sentencing judgment concluded as follows: "In respect of the supply prohibited drug, that sentence is to commence on 7 August 2014. I consider that a four year head sentence is appropriate. I take from that the 15% for his plea of guilty and I will allow the statutory probation period of 25%. So the custody term will be backdated to 7 August 2014 and is to go for a period of 30.6 months, which we put at 6 February 2017 or 22 February 2017. Regarding the two remaining matters, being recklessly deal with proceeds of crime, these matters should be dealt with entirely concurrently with the above matter as they arise out of the same facts and actions of the offender. I propose in respect of those matters, a head sentence of five years as appropriate. I then reduce it 25% for his early pleas of guilty and a further 25% in respect of the probation period. Both matters are to commence one year after the first matter. Mr Crown, the dates tentatively are 7 August 2014 to 22 February 2017 and the balance of term will take us up to - I do not have to impose a parole period on that one, I can leave it where it is because it is nugatory, it has no effect. There is no need for a parole period because of the other two matters. … I consider in this matter that special circumstances are not appropriate and thus I then take 25% of the 45 months which is approximately 36 months bearing in mind the overwhelming need for general deterrence."
The applicant relies on the following grounds of appeal:

(b) partially accumulating the sentences for the proceeds of crime offences upon the sentence for the drug supply offence.

The sentencing judge imposed wholly concurrent sentences for the proceeds of crime offences. These were accumulated to the extent of one year on the sentence for the drug offence. Thus the sentence for the latter was stated to commence on 7 August 2014 whilst the sentences for the former were stated to commence on 7 August 2015.
However his Honour's reasoning contained an internal inconsistency in that on the one hand, consistently with the actual sentences imposed, he stated that the sentences for both proceeds of crime matters were to commence one year after that for the drug matter and on the other hand he said that the recklessly deal matters should "be dealt with entirely concurrently with the above [that is, the drug] matter".
In light of this inconsistent reasoning, the Crown was correct to concede that Ground 1 should be treated as established.
We add that in sentencing the applicant, the sentencing judge did not adhere to the requirement of s 48 of the Crimes (Sentencing Procedure) Act 1999 (NSW) that he state the earliest date upon which the applicant would be eligible to be released on parole (s 48(1)(b)).

(a) calculating that "25% of the 45 months … is approximately 36 months";

(b) sentencing the applicant to a total effective non-parole period which exceeded 80% of the overall term of imprisonment; and

The Crown rightly conceded that Ground 2(a) was established as the sentencing judge made an arithmetical error that appeared to operate to the detriment of the applicant.
The Crown also correctly conceded that Ground 2(b) was established as the sentencing judge imposed an effective aggregate non-parole period equal to 80% of the head sentence without explaining why it was appropriate that that percentage exceed 75%.
Section 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) provides: "44 Court to set non-parole period … (2) The balance of the term of the sentence must not exceed one-third of the non-parole period for the sentence, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision)."
Whilst this subsection applies by its terms only to individual sentences, the courts have applied it by analogy to aggregate sentences (Hejazi v R (2009) 217 A Crim R 151; [2009] NSWCCA 282 at [35]-[36]). The parties in the present case did not suggest that the individual sentences imposed by his Honour departed from the relevant ratio but the applicant contended, and the Crown accepted, that the aggregate sentence did so because the total effective non-parole period exceeded 80% of the overall term of imprisonment. This came about as a result of the aggregation of individual sentences that conformed to the statutory ratio. His Honour appears to have overlooked the effect of aggregation on the ratio applicable to the aggregate sentence as his comments in the course of argument suggested that he intended to apply the statutory ratio throughout.
This being his intent, he should have found, for the purposes of s 44(2), that special circumstances existed in respect of the individual sentences which justified departure from the statutory ratio. This would have enabled him to arrive at an aggregate balance of term that was one-third of the aggregate non-parole period. Although the Crown did not concede it, we thus find that Ground 2(c) has been established, in addition to Grounds 2(a) and (b).

(a) giving greater weight to general deterrence on the basis that the applicant was a foreign national; and

(b) declining to take into account the circumstance that the applicant would experience more onerous custody in Australia because he is a foreign national.

In addressing general deterrence, the sentencing judge said that "this Court must send a message that if people want to come to Australia and undertake serious criminal activity they will not be given a short time in custody and sent home" (p 12). The applicant argued that this involved the proposition that general deterrence was of greater significance in the case of the applicant than in relation to Australian offenders because the applicant was an overseas national and that this was contrary to the principle in R v Shrestha (1991) 173 CLR 48 at 71; [1991] HCA 26 that this country "has a responsibility, both moral and under international treaty, to treat all who are subjected to criminal proceedings in its courts or imprisonment in its gaols … without discrimination based on national or ethnic origins". No conclusion need be reached about this ground in light of our upholding of other grounds of appeal.
For the same reason, Ground 3(b) need not be addressed. It raises a topic to which reference is made in the course of re-sentencing below.

The sentencing judge failed to properly take into account the applicant's prior good character and prospects of rehabilitation.

The Crown correctly conceded that this ground of appeal had been established on the basis that the sentencing judge, without proper explanation, discounted the evidence of the applicant's good behaviour in custody because of the way in which he gave evidence on sentence ([44] above). There was no obvious respect in which the applicant's evidence on sentence impacted on that other evidence and no explanation as to why it in fact did so was given by his Honour. The effect on the sentencing process was potentially significantly adverse to the applicant's interests.
It is unnecessary to deal with other matters raised by the applicant in support of this ground of appeal.

RE-SENTENCING

As errors in the sentencing process having been established, this Court is required to re-sentence.

Additional evidence admitted on re-sentencing

An affidavit of a solicitor employed in the offices of the applicant's solicitors indicated that Justice Health records revealed that the applicant suffers from a back problem for which he is prescribed painkillers and anti-inflammatory drugs.
The affidavit also indicated that Corrective Services stated that, with one limited exception, the applicant had received positive comments on his work, conduct and interactions whilst in custody. The exception related to his reprimand and caution for the discovery of items in his cell which he told officers he intended to use to put up shelves in the cell.
In an affidavit, the applicant stated that he wakes up every day suffering back pain and that Corrective Services has attempted to assist him by providing extra pillows and mattresses.
He also indicated that he has been given a degree of responsibility in his job as a storeman/clerk at the Cessnock Correctional Centre. He said that he has undertaken a number of courses but has been denied enrolment for others because he is classified as a "deportee".
He calls overseas to speak to his family but the calls are monitored and recorded and he has to pay for them from the very limited funds that he has available.
He expressed considerable regret for his offending.

Re-sentencing consideration

The proceeds of crime offences are each subject to a maximum penalty of 10 years imprisonment and the drug offence is subject to a maximum penalty of 5 years imprisonment. No standard non-parole periods are specified for the offences.
The offences of which the applicant was convicted were objectively serious. He dealt with two amounts of about $330,000 which represented the proceeds of crime and he had in his possession for the purposes of supply more than 15 times the indictable quantity of methylamphetamine. His activities involved a degree of organisation as evidenced by the ledger he kept.
We recognise the importance of general deterrence in sentencing for offences such as those of the applicant and take that factor into account. Specific deterrence is a consideration of only limited significance as the prospect of the applicant re-offending appears low.
So far as subjective factors are concerned, we note that the applicant expressed remorse to the Corrective Services Officer who prepared the pre-sentence report and also in his affidavit which was read upon his present application for leave to appeal. In his favour also is a generally satisfactory employment record and an absence of prior convictions. As well, he has strong family support to assist in his rehabilitation and there is evidence that a job is available for him in Spain after he has completed his sentence.
Some limited weight is to be given to the applicant's submission that incarceration is particularly onerous for him because he is a foreign national without family in Australia. However his ability to speak English fluently and to have telephone contact with his family overseas limits the impact of this consideration (compare R v Huang (2000) 113 A Crim R 386; [2000] NSWCCA 238 at [18]-[19] and see Yang v R [2007] NSWCCA 37 at [24]-[26]). The applicant complains that his telephone calls are timed and recorded. Whilst the position in this respect has not been suggested to be any different for other persons in custody, the applicant's reliance upon telephone calls is great because of the absence of persons able to visit him.
Relevant also is the evidence on appeal of the applicant's suffering of considerable back pain, restricting his movement and requiring extra bedding. His conduct in custody and progress towards rehabilitation has been excellent save for one incident of limited significance.
The applicant should be allowed a 25% discount on his head sentences in respect of the proceeds of crime offences to reflect his early pleas of guilty and a discount of 15% in respect of the drug offence to which he pleaded guilty after a contested committal hearing.
No finding of special circumstances for the purposes of s 44(2) of the Crimes (Sentencing Procedure) Act is justified other than one to achieve a ratio of the applicant's overall balance of term to his overall non-parole period for his three sentences which reflects the statutory ratio of no more than one third.
We consider that some limited accumulation is appropriate in respect of the sentences. To reflect the criminality involved in Count 2 additional to that involved in Count 1, the sentence on the former count should be accumulated by 6 months on that for the latter. Likewise, the sentence on Count 3 should be accumulated on the sentence for Count 2 by a further nine months to reflect the additional criminality involved in that offence.
Neither party to the application for leave to appeal suggested that sentencing statistics demonstrated that sentences imposed in other cases concerning the subject offence provisions established a range that could be of assistance in re-sentencing in the present case. The applicant referred to some cases in which offenders were sentenced under those provisions but the facts of them were not sufficiently similar to those in the present case to warrant discussion of them.
In respect of Count 1, we consider a head sentence of 4 years imprisonment less the 25% discount for the early plea (that is, 3 years) to be appropriate. We consider the same sentence, to commence 6 months after that for Count 1, to be appropriate in respect of Count 2. In respect of Count 3, we consider a sentence of 4 years imprisonment less 15% discount for the plea of guilty (that is, 3 years 4 months) to be appropriate. As we have indicated, this sentence should commence 9 months after the commencement of the sentence for Count 2.
On this basis, the applicant's overall head sentence will be 4 years 7 months. The non-parole period and the balance of term should be approximately 75% and 25% respectively (that is, 3 years and 5 months, and 1 year 2 months) of this term. To achieve this, we make a finding of special circumstances in respect of the sentence for Count 3 increasing the proportion of the balance of the term to the head sentence.

ORDERS

Taking these considerations into account, we make the following orders: 1. Leave to appeal against sentence granted. 2. Appeal allowed and sentences imposed by the District Court on 9 October 2015 quashed. 3. The applicant is sentenced to terms of imprisonment as follows: 1. In respect of Count 1 (dealing with proceeds of crime of $330,500) to a non-parole period of 2 years and 3 months commencing on 7 August 2014 and concluding on 6 November 2016, with a balance of term of 9 months concluding on 6 August 2017. 2. In respect of Count 2 (dealing with proceeds of crime of $333,980), to a non-parole period of 2 years 3 months commencing on 6 February 2015 and concluding on 6 May 2017, with a balance of term of 9 months concluding on 6 February 2018. 3. In respect of Count 3 (supply a prohibited drug), to a non-parole period of 2 years and 2 months commencing on 7 November 2015 and concluding on 6 January 2018, with a balance of term of 1 year and 2 months concluding on 6 March 2019. The applicant's overall head sentence is 4 years and 7 months, comprising a non-parole period of 3 years and 5 months commencing on 7 August 2014 and concluding on 6 January 2018 with a balance of term of 1 year and 2 months concluding on 6 March 2019. The first date that the applicant will be eligible for release on parole is 6 January 2018.

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: 04 November 2016

Judgment

THE COURT: On 9 October 2015 Maiden DCJ sentenced Mr Paul Moss, the applicant, in respect of the following offences to which he had pleaded guilty: 1. That on 7 August 2014 he dealt with the proceeds of crime ($330,500), being reckless as to whether it was the proceeds of crime (s 193B(3) Crimes Act 1900 (NSW)). 2. That on 7 August 2014 he dealt with the proceeds of crime ($333,980), being reckless as to whether it was the proceeds of crime (s 193B(3) Crimes Act 1900 (NSW)). 3. That on 7 August 2014 he supplied a prohibited drug (77.8 grams of methylamphetamine) (s 25(1) Drug Misuse and Trafficking Act 1985 (NSW)).
The Court order signed by his Honour states in respect of the two proceeds of crime offences that the applicant was sentenced to a term of imprisonment as follows: "Both these matters will be dealt with concurrently. Commencing from 07/08/15 expiring on 29 May 2018 with a balance of term on 06 May 2019" (sic).
In respect of the drug offence, the Court order states that the applicant was sentenced to a term of imprisonment as follows: "Commencing from 07/08/14 expiring on 22 February 2017" (sic).
On the present application by Mr Moss to appeal against his sentences, counsel agreed that the effect of these orders was that the total sentence imposed was four years and nine months with an effective non-parole period of three years, nine months and 23 days (Transcript pp 19-20). It is regrettable that there was a distinct lack of clarity in his Honour's identification of the sentences both in these orders and in the Remarks on Sentence.
By reason of errors in his Honour's reasoning on sentence, it is necessary for this Court to re-sentence Mr Moss by an independent exercise of its discretion (Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42]). It is neither necessary nor appropriate for this Court to attempt to assess the degree to which the errors were influential in his Honour's determination of the sentences he imposed (ibid).
Before turning to the grounds of appeal and re-sentencing, we summarise as follows the evidence before the sentencing judge and this Court.

At a glance

Court

Decision date

Before

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Source

Catchwords

Judgment (15 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (8)

Cited By (1)