MRN v R

Court of Criminal Appeal (NSW)|2006-03-14|Before: McClellan CJ, James J, Simpson J, Clellan CJ

the application for leave to appeal against sentence 99 Five specific grounds of appeal were pleaded and argued. They are: "Ground 1 - the learned sentencing judge erred in failing to take into account the delay in the sentencing of the applicant. Ground 2 - the learned sentencing judge erred in failing to have proper regard to the applicant's rehabilitation in setting the non-parole period. Ground 3 - the learned sentencing judge erred in sentencing the applicant on the basis that the 5,200 telephone calls and text messages intercepted by the police related to dealing in prohibited drugs. Ground 4 - the learned sentencing judge erred in failing to discount the appellant's sentence to take into account the applicant's assistance to the authorities. Ground 5 - the sentences are, individually, and their combined effect, manifestly excessive."

ground 1: delay 100 The authority to which Maguire DCJ expressly referred (R v Todd) is well-known and of long standing. There, this Court was concerned with the effect on sentencing decisions of sentences imposed in respect of offences committed in another state, resulting in sentences being imposed in different courts and necessarily involving the deferral of commencement of the second sentence or set of sentences. Street CJ said: "Moreover, where there has been a lengthy postponement, whether due to an interstate sentence or otherwise , fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach - passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner." (italics added) 101 Both parties sought to blame the other for the lengthy delays which occurred in this case. That is one of the reasons why I have set out, at some length, the procedural chronology. 102 These were offences with which the applicant was charged in December 2002; in respect of which he was committed for trial on 27 June 2003; in respect of which he admitted his guilt on 30 October 2003; to which he entered pleas of guilty on 7 November 2003; and in respect of which he was not sentenced until 27 April 2005. The chronology shows that there were delays on both sides. Examination of the chronology suggests to me that the delay lies more at the door of the Crown than of the applicant. While it may be acknowledged that it was a complex case, having regard, inter alia, to the telephone intercept materials, and to the extent of illicit activity in which the applicant engaged, it was six months before the Crown had the brief ready for presentation in the Local Court for committal. There were then lengthy negotiations between the parties over the indictment. It is apparent that the Crown substantially reduced the number of charges it proposed to pursue. There was also delay caused by the dispute over the quantity of cannabis the Crown alleged and proposed to prove against the applicant. It was the Crown who essentially capitulated on this issue. Similarly, although to a less spectacular degree, the Crown capitulated in respect of the quantity of MDMA it alleged. There were, so it appears, delays in the conduct of interviews of the applicant by police in relation to the assistance he was prepared to give. 103 I have set out above in full the passage in the remarks on sentence concerning the effect of delay. Those passages suggest that, by the time he sentenced the applicant, Maguire DCJ had in his mind that the only delay was that attributable to the decision by the parties, at the last minute, to explore the possibility that the applicant might give some assistance. That is incorrect. The chronology demonstrates delays for a range of reasons, most of them to do with the Crown. His Honour had, in fact, recognised that when, on 4 February 2004, he said that "the situation" had been brought about by "reason of shortcomings in the presentation of the Crown case". 104 Further, it was the judge who, on 10 August, initiated the inquiries into the possibility that the applicant might give assistance. 105 A good part of the delay was brought about because of Detective Bigwood's unavailability. The only reason Detective Bigwood was required to give evidence was that there remained the outstanding issue over the quantity of cannabis involved in the offence. That was ultimately resolved (by agreement) in the applicant's favour. 106 On the basis of the material put before this Court in the affidavit of Ms Boulous, I have concluded that his Honour's treatment of the delay was unfair to the applicant. It was unfair, in my opinion, in two respects. Firstly, he commented that the applicant had not given any indication of a willingness to assist prior to 10 August 2004, and added: "He has never sought to explain the delay involved on his part. He is clearly not entitled to obtain any advantage from his own delays." 107 The applicant had, in October 2003, given some (though limited and of limited value) assistance. He gave evidence in the sentencing proceedings on 9 and 10 August 2004. If any issue arose as to any delay on his part and his offering to provide assistance, it could have been, but was not, made the subject of cross-examination. The absence of explanation lies as much at the door of the Crown as at the door of the applicant. The question arose when it did on the intervention of the judge. In my opinion the manner in which his Honour treated this issue is indicative of error. 108 Secondly, it was, in my opinion, unfair and erroneous for his Honour to say, as he did, that: "Nine months had been wasted by the offender in pursuit of what was always going to be a wild goose chase. The issue could easily have been resolved before I gave him bail to [Oolong] House. It could have been resolved while he was there." 109 It was not right to assume that the applicant's willingness to assist was always "going to be a wild goose chase". Indeed, the information already provided by the applicant was of some, though limited, value. It is, in my opinion, hardly surprising that the applicant was not prepared to give evidence, in the light of the inability of police to offer him or his family any real form of protection. His reason for declining to give evidence against those individuals he had identified was, in my opinion, not unreasonable in the circumstances. Indeed, Detective Willis did not appear to consider his decision unreasonable or surprising in the circumstances. 110 Further, his Honour appears to have attributed the entirety of the delays in the finalisation of the matters to the applicant. I have detailed above significant instances of delay on the part of the Crown. If his Honour were going to take the rather harsh approach to the applicant that he did, then, in my opinion, fairness dictated that he take the same approach to delays that lay at the door of the Crown. 111 Counsel who appeared for the applicant also relied upon the delay in another way. He cited cases, following Todd, in which it has been recognised that, where an offender takes advantage of delay in proceedings to achieve and demonstrate rehabilitation or progress towards rehabilitation, then that is a factor entitled to recognition in sentencing: see, for example, R v Blanco [1999] NSWCCA 121; 106 A Crim R 303; R v Gay [2002] NSWCCA 6; R v Schwabegger [1998] 4 VR 649; R v Fahda [1999] NSWCCA 267. 112 The proposition put on behalf of the applicant was, essentially, that he was led into a false sense of security by the events that occurred. In particular, reliance was placed upon his being granted bail on 4 February 2004 for the purpose of attempting to achieve his own rehabilitation. 113 Although the section was never invoked, s11 of the Sentencing Procedure Act envisages, in appropriate circumstances, that an offender may be granted an adjournment for that very purpose. Pursuant to s5D of the Criminal Appeal Act 1912, the Crown has a right of appeal to this Court against such an order. At the time the issue was under discussion, counsel who appeared for the Crown on sentence alluded to the possibility that that was the purpose of the proposal. No dissent from anybody was forthcoming. The Crown now concedes that the order made was one of the kind for which the Crown had a right of appeal, pursuant to s5D. No such appeal was filed. 114 It is, I think, generally accepted that s11 ought only to be applied where there is a real prospect that, if rehabilitation is effected, a sentence not involving full-time custody may be imposed. At least, if that is not to be the case, it ought to be clearly explained to the offender that the use of s11 will not avoid the punishment made necessary by the objective gravity of the crimes under consideration: see, for example, R v Palu [2002] NSWCCA 381; 134 A Crim R 174. 115 I pause here to note that, notwithstanding the submissions made at sentencing on behalf of the applicant, there was never the slightest possibility that these offences could be punished other than by way of a substantial period of full-time custody. His Honour correctly characterised the offences as "very serious indeed" and correctly observed that the range of drugs was exceptional and the quantities involved very substantial. 116 Having said that, it is, in my opinion, unfortunate that it was not made plain to the applicant, at the time he was granted bail for rehabilitation purposes, that, nevertheless, he would have to expect a substantial period of full-time custody. It was not until 18 April 2005, for the first time, that his Honour made any such suggestion. In that context, his Honour was presented with the supplementary report of Mr Hudd, and a letter from a prospective employer offering the applicant full-time employment. At that time Maguire DCJ expressed the view that the notion that the applicant could be allowed at large was "just fantasy". In the meantime the matter had been mentioned on at least eight occasions. The applicant had been on bail, initially at Oolong House, and, from about July 2004, at large in the community, since February 2004. 117 There is a difficulty in determining how the treatment of delay, which I am satisfied was erroneous, can be remedied. It is not my intention to attribute mala fides to anybody. However, in my opinion the applicant has been ill-served by what has occurred and unfairly treated. 118 Delay was a factor relevant to the determination of the sentences. It was relevant because he had achieved quite significant rehabilitation during the protracted proceedings. 119 But, as I have indicated, the delay was not such as to override the need to punish the applicant's extensive drug trafficking with a period, and a substantial one, of full-time custody. 120 A number of errors are evident in the way delay was treated. They are - - the assumption, against the applicant, that his failure to make any approaches by way of providing assistance earlier than 10 August was in some way a matter in which blame could be attributed to him; - the assumption that his failure to explain any such delay was also somehow blameworthy; - the assumption that there was never any prospect that his offer of assistance would come to anything; - failure to treat those parts of the delays attributable to the Crown in the same way as those said to be attributable to the applicant were treated; - allowing the applicant to develop false expectations about the consequences of his rehabilitation efforts; - failure, in the context of delay, to take into account the evidence of the applicant's significant and apparently successful rehabilitation. 121 As against that, the objective gravity of the applicant's crime is such that those errors cannot be remedied by the imposition of anything but substantial terms of full-time imprisonment. 122 One difficulty for the applicant in this respect is that, notwithstanding evidence that might be perceived as very favourable in this respect, his Honour was somewhat lukewarm about the applicant's prospects of rehabilitation. He said two things about this. The first was: "I emphasise that Dr Lennings limits the response to rehabilitation as merely reasonable." 123 His Honour immediately acknowledged that the report to which he referred had been written before the applicant's attendance at Oolong House. Somewhat puzzlingly, his Honour went on to say: "There is not in evidence any report from Dr Lennings that post-dates Oolong House."

I say this is puzzling because, while it is true that there is no post-Oolong House report from Dr Lennings, Dr Lennings gave the evidence on 9 August 2004 (to which I have already referred), by which time the applicant had completed the Oolong House course and been discharged. In oral evidence Dr Lennings said that the applicant appeared to have: "... had a pretty good response to rehabilitation."

and that the applicant was: "... in the sort of the credit to distinction category, if you want to use the terms of marks, of a group of people who would enter into rehabilitation." 124 His Honour also had the supplementary report of Mr Hudd, dated 25 January 2005, by which time the applicant had been at large on bail for approximately six months. 125 I will deal with the remaining grounds before returning to propose a solution that is as near to just as is possible in the circumstances.

ground 2: rehabilitation vis a vis the non-parole period 126 The essential complaint under ground 2, as I understand it, lies in the finding of Maguire DCJ that no special circumstances existed justifying any variation in the s44(2) ratio between the head sentence and the non-parole period. It was argued that the evidence of established rehabilitation was, of itself; such a circumstance. Again, the applicant encounters the not altogether favourable finding of fact concerning the extent of rehabilitation. 127 On behalf of the applicant it was accepted that a failure to explain a refusal to find special circumstances does not of itself indicate error (see R v Simpson [2001] NSWCCA 534; 53 NSWLR 704). Nevertheless, it was submitted on behalf of the applicant that the circumstances of this case were so unusual as to call for an explanation. I have come to the conclusion that the applicant's submission is correct. This was a very unusual case. Certainly it would have been open to the judge to find special circumstances. To decline to do so in the light of quite a strong case leaves a sense that adequate attention was not paid to the arguments advanced. This ground of appeal has been made good.

ground 3: 5,200 telephone calls and text messages related to dealing in prohibited drugs 128 The ground of appeal asserts error of fact on the part of the sentencing judge. What the judge said was: "It is not contested that police intercepted 5,200 telephone calls and text messages made by and to the offender in a thirty day period. These related to his drug dealing. They amount to more than one every eight minutes around the clock. That is a truly remarkable degree of illegal business-oriented activity. It speaks to me of a man driven by greed." 129 Counsel for the applicant pointed out that only 314 of the 5,200 calls and messages had been transcribed. Detective Bigwood gave evidence about the process. Among other things, she said: "Some of them may be duplicate calls. It's a fault in the recording system. Some of them might be hang-ups. Some of them might be just purely to voicemail and no-one's left a message. Those sorts of calls. Some of them are a joke, SMS text messages. Might be a joke or something. We know every call because we process each but we don't transcribe the totality." 130 Maguire DCJ was correct to express alarm at the number of telephone calls and text messages, especially on the assumption that each one related to drug dealing. That assumption was not available on the evidence, which was put in perspective by the evidence of Detective Bigwood. It never became plain how many of the calls were duplicates or how many did relate to the applicant's drug dealings. 131 I think there is some substance in the ground. Detective Bigwood's evidence substantially casts doubt upon the initial proposition put in the Crown case concerning the number of telephone calls. It is simply not possible to use the large number of telephone calls as any real gauge of the extent of the applicant's criminal activity. The most that could be said was that 314 calls over the 30 day period related to drug dealing. That in itself is evidence of a substantial business or enterprise, but it is not on the massive scale that would be demonstrated by 5,200 calls and messages. There is substance in this ground of appeal.

ground 4: assistance 132 By s23 of the Sentencing Procedure Act the sentencing court may reduce the penalty it would otherwise impose having regard to the degree to which the offender has assisted or undertaken to assist law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence. Subs(2) sets out a list of matters a court must consider when considering whether to reduce a sentence under subs(1). Relevantly for present purposes, these include: "(b) the significance and usefulness of the offender's assistance ... (c) the truthfulness, completeness and reliability of any information or evidence provided ... (d) the nature and extent of the offender's assistance ..."

For completeness, by subs(3) a sentence may not be reduced under subs(1) to the extent that it is unreasonably disproportionate to the nature and circumstances of the offence for which sentence is being imposed. 133 S23 does not mandate that any discount for assistance be given. That is within the discretion of the sentencing judge. 134 The extent of any reduction in sentence depends upon a number of factors, specifically (as set out in the section), the degree to which assistance has been given and (I would add) the value of that assistance. 135 Here, it was conceded that the value of the assistance given by the applicant was limited. It was, nevertheless, put that he was entitled to some, although small, reduction in sentence. 136 In the ordinary case, an offender who gives assistance of material value can expect some reduction in sentence attributable thereto. The error in my opinion, here, was that his Honour stated that he did not regard the applicant as "being eligible" for any further discount based on his assistance. In my opinion, the applicant was "eligible", although not "entitled". 137 Alone, I would not regard this ground as a ground of substance. In conjunction with other errors it is a matter this Court is able to take into account.

ground 5: sentences manifestly excessive? 138 In submissions made on behalf of the applicant counsel recognised that the offences were very serious and that large quantities of prohibited drugs had in fact been supplied. He argued, however, that the enterprise was not a sophisticated one. The applicant did very little by way of taking precautions to conceal his activities. He used a mobile telephone registered in his own name. He did not appear to use codes in his conversations. He did not employ others, but undertook the supply activity himself. A good proportion of the drugs he supplied were supplied to end-users. There was, however, some evidence of "wholesaling". 139 The applicant was himself addicted to drugs. When the 20% discount allowed in respect of the pleas of guilty is factored in, the starting point of the total sentence is 13 years. The starting point in relation to the s25A offence (Count 6) is 12 years (against a statutory maximum of 20 years). 140 The focus of the attack was on the sentence imposed in respect of Count 6, the offence of ongoing supply. This offence attracted by far the longest sentence, which was accumulated (to the extent of one year only) upon all other sentences. Indeed, no submission was directed to suggesting that any of the other sentences was individually manifestly excessive. That is as it should be; no such submission could reasonably have been sustained. 141 Counsel referred the Court to two authorities which establish that s25A is directed at drug supplying enterprises. In R v Smiroldo [2000] NSWCCA 120; 112 A Crim R 47, Hulme J said: "The persons at whom s 25A is directed are those who appear to be indulging in a practice or business of supplying prohibited drugs." 142 In R v Hoon; R v Pouoa [2000] NSWCCA 137, Dunford J said, in the same context: "39 The section is directed to the concepts of repetition, system and organisation, and the objective criminality of any offence under the section should be determined by reference to those features, and not merely to the number and quantities of individual instances of supply." 143 From these remarks counsel sought to devise an argument that the applicant's criminality was not enlarged by reference to the quantities of drugs involved in his offences, and his criminality was not significantly greater than the criminality of other offenders charged with lower quantities but engaged in an operation capable of supplying significant quantities - that is, that the focus of sentencing under the section is on organisation. 144 In my opinion this argument should be rejected. Hulme J in Smiroldo added that the magnitude of the operation was relevant and then went on to refer to the quantity of the drugs supplied. 145 Dunford J's comments should not be interpreted as meaning that the quantity of the drug is irrelevant, or even that repetition, system and organisation are of greater importance - they take their place beside the number and quantities of individual incidences of supply. 146 It is true that quantity is not the only relevant feature in determining sentences in relation to drug offences. But the s25A offence with which the applicant was charged was at the very high end of offences against that section that come before this Court. In my opinion the sentence imposed in respect of that offence (at almost half of the maximum, and before the discount for the plea of guilty, above half of the maximum) was a substantial sentence, and possibly at the upper end of the range available, but not outside that range. Nor do I think that the aggregate sentence was outside the range available for drug dealing on the scale engaged in by the applicant. I would reject ground 5. 147 Nevertheless, I have concluded that a number of errors affected the sentencing process. It is now generally recognised that demonstration of error alone is not sufficient to justify the intervention of this Court: see, for example, R v Simpson [2001] NSWCCA 534; 53 NSWLR 704; R v Johnson [2005] NSWCCA 186; R v Douar [2005] NSWCCA 455. By s6(3) of the Criminal Appeal Act 1912 it is necessary to show that some other sentence was warranted in law. In my opinion the magnitude of the errors here demonstrated justifies such a conclusion. 148 I would therefore grant leave to appeal, allow the appeal and re-sentence the applicant as follows: I would vary the statutory ratio. In my opinion the applicant's evident rehabilitation is sufficient reason for doing so.

Count 1: imprisonment for four years, commencing on 10 October 2003, and expiring on 9 October 2007, with a non-parole period of three years expiring on 9 October 2006;

Count 4: imprisonment for three years, commencing on 10 October 2003, and expiring on 9 October 2006, with a non-parole period of two years expiring on 9 October 2005;

Count 6: (taking into account the Form 1 offences) imprisonment for seven years commencing on 10 October 2004, and expiring on 9 October 2011, with a non-parole period of four years expiring on 9 October 2008;

Counts 8, 9 and 10: imprisonment for five years commencing on 10 October 2003, and expiring on 9 October 2008, with a non-parole period of three and a half years expiring on 9 April 2007.

The aggregate sentence is of a head sentence of eight years with a non-parole period of five years. The earliest date on which the applicant would be eligible for release on parole is 9 October 2008.

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R v Blanco [1999] NSWCCA 121; 106 A Crim R 303 R v Douar [2005] NSWCCA 455 R v Fahda [1999] NSWCCA 267 R v Gay [2002] NSWCCA 6 R v Hoon; R v Pouoa [2000] NSWCCA 137 CASES CITED: R v Johnson [2005] NSWCCA 186 R v Palu [2002] NSWCCA 381; 134 A Crim R 174 R v Schwabegger [1998] 4 VR 649 R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 R v Smiroldo [2000] NSWCCA 120; 112 A Crim R 47 R v Todd (1982) 2 NSWLR 517

At a glance

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Judgment (15 paragraphs)

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Cases Cited (10)

Cited By (8)