MULATO v REGINA

Court of Criminal Appeal (NSW)|2006-02-16|Before: Spigelman CJ, Simpson J, Adams J

Introduction 52 On 23 September 2004 the applicant pleaded guilty to an offence under s 25(2) of the Drug Misuse and Trafficking Act 1985 being the supply of not less than the commercial quantity of a prohibited drug, namely methylamphetamine. The maximum penalty for this offence is twenty years or a fine of 3,500 penalty units. The applicant asked that another offence, being the supply of not less than an indictable quantity of ecstasy, should be taken into account. For an offence that falls within the middle of the range of objective circumstances, the first offence attracts a standard non-parole period of ten years' imprisonment. The quantity of methylamphetamine involved in the first offence was 520.1 grams and the quantity of ecstasy involved in the Form 1 offence was 23.24 grams. On 4 April 2005 the applicant was sentenced (the offence on the Form 1 being taken into account) to an overall term of imprisonment of nine years, seven months and five days commencing 25 October 2003 of which six years was a non-parole period expiring on 24 October 2009. The applicant seeks leave to appeal against the severity of this sentence.

Subjective features 56 The applicant had a very minor criminal record of no relevance. 57 A pre-sentence report and two psychologists' reports were tendered. The effect of those reports was adequately set out in her Honour's reasons for judgment in the following terms - "[The offender] … has been interviewed by John Machlin, a clinical psychologist and also the Probation Service. His fled El Salvador in 1990 and sought asylum in Australia. His father, who had trained in computers, was unable to find work in that field because of his poor language skills. He did obtain employment and remains employed in the security industry. The offender's mother undertook nursing in Australia and obtained registration. The offender and his brother apparently had trouble adjusting. Marital conflict developed between the offender's parents. His mother required hospitalization for depression and his brother attempted suicide. At one stage, the offender was achieving academically, but his motivation and attitude deteriorated and he left school in year 10. He has held a number of short-term positions of an unskilled nature. He commenced a pre-apprenticeship electrical course and has also obtained certificates in financial services. Whilst he has been in custody, he has worked in a metal shop, packaging, as a sweeper and is currently performing the work as a barber, having completed a brief training period for that purpose." 58 The learned sentencing judge noted that, at the time he committed the offences, he was abusing ecstasy, cocaine and tranquilisers. Her Honour noted that the applicant did not then consider that he had a problem but has come to recognise that he did. Psychometric testing revealed certain personality traits suggesting that the applicant needs counselling aimed at relapse prevention in preparation for his release. The offender's family remains supportive of him and will help him on his release. This latter consideration is important since it provides a good foundation for rehabilitation.

The reasons for sentence 59 The learned sentencing judge concluded that the applicant was truly remorseful and contrite with good prospects for rehabilitation. His early plea following negotiations justified a 20% discount for his plea. No complaint is made as to this aspect of the case. 60 In dealing with the objective seriousness of the applicant's offending, her Honour found that there was a significant degree of planning involved: he rented the unit; he had a second phone for the purpose of his dealings; he had quantities packaged ready for sale and had planned to attend local clubs for this purpose. The learned sentencing judge noted that the quantity of methylamphetamine in the applicant's possession (520 grams) was about 100 grams below the 625-gram midpoint in the range of 250 - 1,000 grams being a commercial quantity for the purposes of the Drug Misuse and Trafficking Act 1985. She noted that the purity of between 3% and 4% was low. 61 Having dealt with the objective and subjective features of the case, Her Honour went on to say - "The standard non-parole period of ten years applies to those cases where an offender goes to trial and is found guilty by a jury. In the present case, the offender, of course, has pleaded guilty. The objective seriousness of the matter calls for the imposition of nothing short of a custodial sentence, one which should reflect the need for general and specific deterrence and adequately reflects society's disapprobation of those who choose to deal in illegal drugs. Had this matter gone to trial and the offender been found guilty, I would have imposed a nine year non-parole period, having regard to his role as the principal supplier, despite the quantity falling below the range to which I have referred and the purity being low. There is no evidence to enable a finding that the offender was supplying purely to support a habit. The only rational inference is that he was supplying in addition to supporting his habit and that is agreed." 62 Dealing with special circumstances, the learned sentencing judge noted that the applicant was a young man who found himself in custody for the first time and that there was a need for lengthy and supervised rehabilitation to ensure that he did not relapse, however slight that prospect might be. Her Honour, accordingly, found special circumstances existed that warranted the variation of the statutory calculus between non-parole period and the balance of the term "to allow for a lengthy period of supervision which should include relapse prevention, drug and alcohol counselling and generalised counselling".

The appeal 63 The applicant seeks leave to appeal from the sentence imposed on him. The grounds of appeal were as follows - 1. The sentencing judge erred in failing to give reasons for reducing the standard non-parole period. 2. The sentencing judge erred in the determination of the objective seriousness of the offence. 3. The sentencing judge erred in the determination of the weight to be given to the circumstances of mitigation applicable to the applicant. 4. The sentencing judge erred in failing to take into account the fact that the applicant had been in custody for a substantial period on remand. 5. The sentence imposed was manifestly excessive. 6. The sentencing judge erred in failing to have proper regard to the maximum penalty when sentencing the applicant. 64 With the possible exception of ground 4, on the hearing of the appeal the grounds were essentially reduced to different aspects of the fundamental contention that the sentence was manifestly excessive because the learned sentencing judge gave too much significance to the standard non-parole period applicable to the offence. It was contended on the applicant's behalf that the learned sentencing judge regarded the standard non-parole period of ten years as the starting point for her Honour's calculations of the appropriate sentence and that this was a fundamental error. 65 The passage that I have set out from her Honour's reasons for sentence gives some support for the applicant's contention as to the mode of reasoning adopted by her Honour. Her Honour categorically stated that had the applicant been convicted following a trial she would have imposed a nine-year non-parole period. Adjusting this non-parole period by 20% for the applicant's discount yields the figure of seven years, two months and four days which, applying the statutory calculus would produce a head sentence of nine years seven months and five days, precisely that which was imposed by her Honour. There was then a finding of special circumstances which reduced the non-parole period to six years (approximately 62.5% of the total sentence). 66 My initial impression was that the standard non-parole period of ten years was indeed her Honour's starting point and that this period reflected her Honour's view of the objective seriousness of the applicant's offending conduct which she described as a "principal supplier", giving the applicant a somewhat lesser sentence than the standard non-parole period because the quantity fell below the "mid-range" and the purity was low. It seemed to me that her Honour reasoned that the status of the applicant - namely that of a principal supplier - placed his offence in the middle of the range of objective seriousness but that the quantity and purity of the drugs reduced that level of seriousness by one year. The alternative interpretation requires the assumption that, in the event of a verdict following a trial, the stated appropriate non-parole period of nine years appropriately reflected both the subjective as well as the objective features of the case. Using the standard non-parole period of ten years for a case in the middle of the range of objective seriousness as a benchmark, guidepost or reference point, a nine year non-parole period that takes into account both the objective and subjective features of this case seems to me, with respect, to be manifestly excessive. Whether this reflects an excessive measure of objective seriousness or the giving of too little significance to the relevant subjective features may not be capable of resolution: the figure itself seems to me, with respect, to be manifestly excessive. 67 If the standard non-parole period was the starting point, the substantial subjective features operating in the applicant's favour were not reflected in the non-parole period imposed (except in so far as they represented special circumstances), since the standard reflects the middle of the range of objective seriousness. Of course, whether starting point or not, the standard non-parole period should not dominate the process: the other elements of the proper exercise of the sentencing discretion must all be given their proper significance. 68 I note that the learned sentencing judge did not increase the penalty that was imposed on the indicted charge because of the matter contained on Form 1, for the reason that it was part of the entire activity of the offending and did not warrant additional punishment. In my respectful view this conclusion was correct. 69 The applicant also contends that the learned sentencing judge erred in categorising the applicant's offending as being that of a "principal supplier". I think that her Honour was drawing the distinction between a person who acts on his or her own behalf and one who is acting at the direction of another. In this she was plainly right. 70 In offences involving the commercial supply of drugs, the position of the offender in the drug trade is of considerable significance. This applicant was not a street dealer in the sense that he simply sold enough drugs to support his own habit. He was an addict but the learned sentencing judge's conclusion that he was in the business of drug supply though he used some of the drugs himself was correct. Nor, with respect, would I differ from the learned sentencing judge's findings (set out in paragraph 8 above) as to the character of the objective circumstances of the offence. At the same time, the quantity of drugs involved and the nature of the applicant's supplying by selling small quantities to individuals at entertainment venues placed him, in my view, in a position significantly beneath a supplier on the scale which would bring him or her within the middle of the range of objective seriousness for this particular offence. The nature of planning and organisation was also relatively unsophisticated, reflecting the nature of his business. Accordingly, using the standard non-parole period of ten years as a reference point, the objective seriousness of the offence here suggests the nine years' commencing point for the non-parole period was significantly too high, even before taking into account the subjective circumstances. Of course, this Court must be careful not to simply substitute its view of an appropriate sentence where error has not been identified or the sentence is not demonstrably wrong in the sense in which the decision in House v The King [1936] 55 CLR 55 deals with appeals from evaluative judgments. Nor should a merely different view of the facts intrude into the disposition of an appeal unless it reflects an identifiable error. 71 The applicant's favourable subjective circumstances included his (relevantly) clear record, his remorse and contrition and his prospects of rehabilitation. It is also of significance that the applicant was in custody on remand between the date of his arrest on 25 October 2003 and his being sentenced on 4 April 2005. Remand prisoners are held in maximum security prisons and many of the programs available to sentenced prisoners are not available to them. He is presently in B classification but this was not available to him whilst he was on remand. His progression to less rigorous classification has been significantly delayed. Where is a lengthy period on remand, a mere calendar adjustment (as dating the sentence from the date of commencement of incarceration) will not fairly reflect the relative harshness of this form of imprisonment and some downward adjustment of the ultimate sentence is appropriate. I do not accept the applicant's contention that the learned sentencing judge did not take this matter into account. However, it is another significant feature of the case that, with the other matters that I have mentioned, points to the manifest excessiveness of the sentence. I should mention that the applicant's affidavit reveals that his prospects of rehabilitation remain good. 72 Bearing in mind all the objective and subjective features of this case, including the maximum penalty and the standard non-parole period, it is my view that the sentence imposed on the applicant was indeed manifestly excessive. 73 I consider that (taking into account the matter on the Form 1) an appropriate overall sentence, before any discount for the early plea, is nine years' imprisonment. Reducing that overall sentence by the 20% discount (rounding down slightly) yields an overall sentence of seven years imprisonment. I agree with the learned sentencing judge that special circumstances require a variation of the statutory ratio. In my view, an appropriate non-parole period is four years three months. Conclusion 74 Accordingly, I propose that leave to appeal be granted, the appeal be upheld, the sentence below be quashed and that there be substituted in lieu thereof a non-parole period of four years and three months commencing on 25 October 2003 and expiring on 24 January 2008 with a balance of term of two years and nine months commencing 25 January 2007 and expiring on 24 October 2009. I have read the judgments in draft of the Chief Justice and Simpson J. The essential reason for my proposing a slightly lesser sentence than their Honours is the very substantial proportion of the applicant's sentence that has been served on remand, in the absence of which I would have unhesitatingly agreed with their Honours' proposed sentence. **********

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CITATION: MULATO v REGINA [2006] NSWCCA 282

AT v R [2005] NSWCCA 410 House v The King [1936] HCA 40; 55CLR 499 Markarian v The Queen [2005] HCA 25; 79 ALJR 1048 R v AJP [2004] NSWCCA 434; 150 A Crim R 575 R v Blair [2005] NSWCCA 78; 152 A Crim R 462 CASES CITED: R v Davies [2004] NSWCCA 319 R v Hung Lo [2005] NSWCCA 436; 159 A Crim R 71 R v Poon (2003) 56 NSWLR 284 R v Sangalang [2005] NSWCCA 171 R v Shi [2004] NSWCCA 135 R v Way (2004) 60 NSWLR 168 Vu v R [2006] NSWCCA at 188

11 September 2006 Alexander MULATO v REGINA Judgment 1 SPIGELMAN CJ: The facts and grounds of appeal are set out in the judgment of Adams J which I have read in draft. 2 His Honour recasts the grounds of appeal, with the possible exception of Ground 4, as constituting: " … different aspects of the fundamental contention that the learned sentencing judge gave too much significance to the standard non-parole period applicable to the offence." 3 In my opinion, this is not an accurate portrayal of the grounds of appeal or of the submissions. 4 Mr S Odgers SC, who appeared for the Applicant, primarily relied on Ground 6, which is: "The sentencing judge erred in failing to have proper regard to the maximum penalty when sentencing the Applicant." 5 With respect to this ground, Mr Odgers submitted that her Honour erred by adopting the standard non-parole period of ten years applicable to this offence as a starting point. 6 Mr Odgers did not contend that the use of the standard non-parole period had the effect that the Applicant's subjective circumstances were ignored. Indeed, he expressly abjured the proposition that her Honour failed to take into account the relevant subjective considerations. He said that there was no ground of appeal that her Honour had failed to take into account a relevant mitigating factor, but he did submit that she had failed to give proper weight to those matters. 7 The contention that the sentence was manifestly excessive was the subject of the fifth Ground of appeal. As is often the case, a number of the other grounds - namely the second, third and fourth - could explain the excessive nature of the sentence, if that be the case. The contention that her Honour failed to give appropriate weight to the subjective case of the Applicant is the subject of the third ground. However, no doubt because her Honour comprehensively set out the Applicant's subjective circumstances, Mr Odgers accepted that Ground 3 did not have significant prospects of success considered in isolation. 8 Adams J sets out the passage in her Honour's judgment which is the basis of the Applicant's contention that her Honour used the standard non-parole period as a starting point and applied a mathematical calculation from that point. I find it necessary to set out in greater detail her Honour's course of reasoning. 9 After outlining the facts and circumstances of the police investigation and what was found on the premises, summarised by Adams J, her Honour set out in detail the Applicant's subjective circumstances including his age, his personal background, the history of family disruption, his personal history of drug abuse and the results of psychological testing. Thereafter and immediately prior to the passage which is quoted by Adams J, her Honour said: "I am urged on behalf of the offender to find that this case falls below the mid-range of objectively serious matters. Submissions were made that the drugs were of a very low purity and the quantity is considerably less than those in the decisions of The Queen v Shi [2004] NSWCCA 135 and The Queen v Blair [2005] NSWCCA 78. Those cases can be distinguished on their facts, for the simple reason that in Shi the offender was merely a courier carrying the drugs for a friend and as the evidence showed in Blair, he too was a courier and what is referred to as a storeman. Neither offender in those decisions was shown to be the owner of the drugs, nor a principal in any intended transactions, such as the present case. On the offender's own evidence, he had the drugs in his possession for the purpose of taking at least some of them to the clubs in the immediate area for the purpose of selling them. He is a supplier in the true sense of the word. It is an offence committed without regard for public safety. Society suffers enormously from those who are addicted, who commit crimes to fund their habit and who become victims in the public health system in seeking to rid themselves of their addictions. Families too suffer as a consequence of those who are addicted. I have had regard to the provisions of s21A(2) to the aggravating factors, as well as the mitigating factors. There was, I find, a significant degree of planning involved in his activity. He rented the unit. He had a second phone for the purpose of his dealing. He had quantities packaged ready for sale in his motor vehicle and he was planning to attend local clubs that evening for that very purpose. The quantity of methylamphetamine in this offender's possession was a commercial quantity - namely, 520.1 grams, about 100 grams below the 625 gram mid point in the range of 250 to 1000 grams. The purity was low, as I have already stated - between three and four percent. He is a young offender with little or no criminal record, someone I find to be both truly remorseful and contrite, an offender who has good prospects for rehabilitation and is unlikely to re-offend. He pleaded guilty on arraignment and whilst perhaps not at the earliest opportunity, the Crown concedes at the earliest opportunity following negotiations. I allow him a 20 percent discount for his plea in that regard." 10 The succeeding paragraph is set out by Adams J.

3 Impose a non-parole period of five years and a balance of term of three years. 45 SIMPSON J: I have read in draft the judgments of the Chief Justice and of Adams J. I agree with the Chief Justice. I wish merely to underline my agreement in respect of one matter. Most emphatically, I agree with his Honour's observations at [37]. 46 The assessment of the objective seriousness of an offence is quintessentially for the sentencing judge. It is, if not a finding of fact, then the exercise of an evaluative process akin to fact finding or the exercise of a discretion. As such it is reviewable in this Court only on the principles stated in House v The King [1936] HCA 40; 55CLR 499. The importance of respecting the role of a first instance judge should never be underestimated. It is not the function of this Court to substitute its own view of objective seriousness for that of the first instance judge. That is not because objective seriousness is something determined by reference to the evaluation of the credibility of witnesses, in respect of which it is conventionally held that the first instance judge is in a superior position. It is because it is a fundamental aspect of the appellate system. Each judicial officer in the hierarchy has his or her own function, and those at appellate level need to take care not to trespass upon the role of those at first instance. 47 One consequence of this (which might aptly be termed a separation of powers) is the need for first instance judges to make clear findings of fact, and clear evaluations of such matters as objective seriousness. Absence of clarity in such findings may result in the need for the appellate court to undertake the task itself. 48 Here, if there was a fault in the approach taken by the sentencing judge, it was in failure to state in clear terms a conclusion as to objective seriousness. Her Honour noted that she was urged to find that the case fell below the mid-range of objective seriousness. She immediately followed that with reference to a series of matters, which, as the Chief Justice has suggested, carry the clear implication that she rejected the proposition put on behalf of the applicant. 49 In my opinion her Honour's reasons for coming to that implicit conclusion are clear. So also are her reasons, notwithstanding that conclusion, for not imposing the standard non-parole period. Again, in my opinion it is plain that her Honour regarded the mitigating circumstances as a warrant for declining to impose the standard non-parole period. So was, as her Honour recognised, the plea of guilty. 50 What I have said disposes of grounds 1, 2, 3 and 6. In relation to grounds 4 and 5 I agree with the Chief Justice. I agree with the orders that his Honour proposes. 51 ADAMS J:

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