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[2013] NSWCCA 226
Court of Criminal Appeal (NSW)
2013-09-25
Hoeben CJ, Bellew J, Barr AJ
Original judgment source is linked above.
Judgment 1HOEBEN CJ at CL: I agree with Barr AJ and the orders which he proposes. 2BELLEW J: I agree with Barr AJ. 3BARR AJ: This is an application for leave to appeal against a sentence imposed in the District Court. The applicant, Michael Joseph O'Connor, pleaded guilty to a charge of supplying a prohibited drug, namely methylamphetamine. No actual supply was detected and the Crown relied on the deeming provisions of the Drug Misuse and Trafficking Act 1985. The maximum penalty was 15 years' imprisonment. English DCJ set a non-parole period of 2 years and a balance of term of 1 year and 6 months. The sentence was partly accumulated on an existing sentence. The applicant had been sentenced to serve a period of 4 years following his conviction for recklessly inflicting grievous bodily harm. He had served the non-parole period and had been released but his parole was revoked. Her Honour backdated the sentence so as to make the first 6 months or so concurrent with the previous sentence. The applicant's present non-parole period is due to expire on 3 July 2014 and his head sentence on 3 January 2016.
The Facts 4At about 6pm on Wednesday 16 November 2011 police executed a search warrant on Room 34 of the Lachlan Hotel in Cowra where the applicant was staying at the time. 5In the seat of a chair in the room police found a large plastic bag with a resealable end that contained 27.1 grams of methylamphetamine the purity of which was 12.5 per cent. After being cautioned and arrested the applicant denied any knowledge of the bag or its contents. Within the top drawer of a chest of drawers police found a Calvin Klein aftershave box containing $485 in cash as well as two glass smoking pipes inside a sunglasses case. The applicant said to police that the money was from his unemployment benefit and that he had bought the sunglasses from a person at another hotel but denied any knowledge of the existence of the pipes. A further bag containing 7.8 grams of methylamphetamine (81.5 per cent purity) was found inside the second drawer along with 2 more glass smoking pipes. Again the applicant initially denied any knowledge of these items. On and in a wardrobe in the room police found a CD cover containing electronic scales and a bag containing a large number of small resealable plastic bags. In relation to the scales the applicant said that he had bought the CDs from "a bloke" and opened the cover to find the scales. 6The applicant was found with a total of 34.9 grams of methylamphetamine. The trafficable quantity is 3 grams and the commercial quantity is 250 grams. 7After his arrest, the applicant exercised his right to silence. 8The applicant gave evidence during the sentencing hearing. He said that he was 42 years of age. He said that his father, a Vietnam veteran, had been affected by Agent Orange and had showed a lot of violence towards the applicant and his other children, and to their mother. He said that he had been subjected to an episode of sexual abuse from his brother and from a friend of his brother's. He said that he believed that his experiences as a child had had some impact on his later use of drugs. He said that most of his earlier convictions for drug offences related to cannabis. 9In relation to the offence itself the applicant gave this evidence in chief:- Q: How long have you been using methamphetamine as opposed to your criminal history that shows that it's mainly cannabis? A: Probably five, six years. That was prior to the last incarceration I was smoking it so the year before I was locked up then. Q: But you do understand the elements of the offence of supply? A: Yes, yes I do. Q: And do you fully admit that? A: I do admit it and I realise I done the wrong thing in supplying drugs. To be put in an environment where I am I really - it really hits me really what I was doing and how wrong it was. Q: Why were you doing it? A: I was doing it to support my own habit really. There was a couple of reasons there why I was doing it but the main reason was to support my own habit. I realise I was supply (sic) drugs. 10In cross-examination the applicant gave this evidence:- Q: And one of those bags had a purity of 81-and-a-half per cent. Have you seen the lab report about that? A: I have. Q: Very, very high purity isn't it sir in terms of street level methylamphetamine? A: Yes it is. Q: Something that could be cut and cut and cut again in terms of onward supply to others is that not right? A: Not really. Q: Sir isn't it the case that street level methylamphetamine, the purity is somewhere three to five per cent? A: No. Q: What would you say it is? A: It's a lot higher. Q: See I suggest to you that in general terms three to five per cent is about the mark on the street? A: No. Q: Sir you were making some money on the side from the sale of these drugs weren't you? A: Yes I was. Q: Making some profit? A: I wouldn't say profit. I was making just enough back so I could buy some more. Q: Well you're selling it for more than you paid for it were you not, cutting it and then getting some more money than what you ultimately paid for it? A: No I wasn't cutting it and I only had like two or three people that were actually buying drugs off me. Q: But you were certainly making some money from the deals? A: I was. Q: Yes and you said that you primarily - in effect you said you primarily sold these drugs to support your drug addiction? A: Yes. Q: You also said to your lawyer that there are a couple of reasons but that was the main one. What were the other ones? A: The main reason for selling drugs. Q: Sorry I'll slow down. You said that you sold the drugs to support your own habit is what you - A: Yes. Q: Well your actual words were and I quote you, "There are a couple of reasons but the main reason was to support my own habit" right? A: Yes. Q: My question to you is what were the other reasons? A: What were the other reasons I was using the drugs or supplying the drugs. Q: Supplying? A: Pretty much out of friendship. I didn't know anyone in town and Q: Was that a way to make friends to be a supplier to someone? A: Well it wasn't a way to make friends. I was approached on the acknowledgment that I would supply a couple of people. It was one at first and then became two, then three that I would supply them with the drugs. Q: Were you looking to increase your business at that point when police found you? A: No I don't think so because I was - I was getting the drugs at very - a cheaper price than what one would usually pay. Q: But certainly if the word got out that you could supply the drug you had the drug there and the means to split it up and bag it and sell it? A: Yeah well I was approached on that matter and I told the people that were buying off me if your friend wants drugs I don't wish to meet him, he can give the money to you and you can pass it on to me. Q: Because you wanted to deal with somebody you knew and trusted? A: Yeah well - yes. 11There was evidence that the applicant was being treated for depression. The author of a psychological report tendered on his behalf offered the opinion that the depression was likely to be a response to his imprisonment rather than entrenched or characteristic behaviour. 12It was apparent that the applicant had used cannabis from 13 years of age and amphetamine as well as cocaine from 17 or 18 years of age.
The Ground of Appeal 13There is a single ground of appeal, namely that the sentencing judge erred in finding as an aggravating factor that the applicant was supplying for profit over and above the drugs in his possession for his own use. 14On sentence the Crown submitted that the offence was aggravated because it was committed for financial gain. The Crown referred not only to the applicant's evidence but to the amount of the drugs seized, almost 7 times the indictable quantity, and the fact that the lesser portion of the drug seized was 81 per cent pure. 15The purity of the drug might have implied that the applicant intended to cut it for redistribution. However, although there was evidence of resealable plastic bags and scales, no cutting agent was found. Her Honour said that the purity of the drug alone did not satisfy her beyond reasonable doubt of an intent to supply. That left only the evidence given by the applicant himself. As to that, her Honour said:- I cannot therefore be satisfied beyond reasonable doubt that the offender was aware of the high purity of the substances in his possession or that he was intending to further increase his activities by cutting the drug with a cutting agent and thereby increasing the profit to be made by him, despite the high purity and the destructive potential to which I have just been referring.
The Submissions on Appeal 16Mr Nash, counsel for the applicant, submitted on appeal that the evidence given by the applicant to her Honour did not justify her Honour's findings. Mr Nash relied on the statement in Cicciarello v The Queen [2009] NSWCCA 272 in which Allsop P, Fullerton and McCallum JJ said at [17]:- Whilst one should be careful about generalising in relation to such factors outside the circumstances of any particular case, here, quite clearly, when one understands the background of this young man and what he was doing, he was not selling for greed or for financial gain, he was selling to feed a drug habit that he had acquired. This does not detract from the fact that he committed a serious offence, but what it does mean is that it was an error, and an important one, to characterise this as selling for financial gain and thus to characterise it as an offence falling within the mid-range. In our view, that latter conclusion must clearly have been affected by the finding of financial gain because no other basis in the facts could found such a conclusion. 17In this Court counsel for the Crown drew attention to portions of the applicant's evidence on sentence, viz:- Q. Why were you doing it? A. I was doing it to support my own habit really. There was a couple of reasons there why I was doing it but the main reason was to support my own habit. I realise I was supply (sic) drugs'' Q. Sir you were making some money on the side from the sale of these drugs weren't you? A. Yes I was. Q. Making some profit? A. I wouldn't say profit. I was making just enough back so I could buy some more. Q. Well you're selling it for more than you paid for it were you not, cutting it and then getting some more money than what you ultimately paid for it? A. No I wasn't cutting it and I only had like two or three people that were actually buying drugs off me. Q. But you were certainly making some money from the deals? A. I was. ... Q. Were you looking to increase your business at that point when police found you? A. No I don't think so because I was - I was getting the drugs at very - a cheaper price than what one would usually pay. Q. But certainly if the word got out that you could supply the drug you had the drug there and the means to split it up and bag it up and sell it? A. Yeah well I was approached on that matter and I told the people that were buying it off me if your friend wants drugs I don't wish to meet him, he can give the money to you and you can pass it on to me. Q. Because you wanted to deal with somebody you knew and trusted? A. Yeah well - yes. 18On that evidence, the Crown submitted, her Honour was justified in coming to the conclusion that the applicant was in part supplying for financial reward, with a consequent aggravation of his criminality. 19I have read the whole of the applicant's evidence. The portion I have extracted from the applicant's written submissions in this Court (see [9] - [10] above) better reflects, I think, what the applicant was really telling her Honour. That, I think, was that although he was making money from the sale of drugs, it was only enough to enable him to buy more for his own use. I think that her Honour erred in her conclusion. The applicant's complaint has been made good.
The Consequences of a Finding of Error 20The mere demonstration of error in the sentencing court does not entitle an applicant for leave to appeal against sentence to a reduction in the sentence. It must first appear to this Court that a lesser sentence is warranted in law: Criminal Appeal Act 1912 s 6(3). The Court must be of the opinion that some other sentence is warranted before it interferes with the sentence imposed, notwithstanding that error has been found: R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704 in the judgment of Spigelman CJ, with whom Mason P, Grove J and Newman AJ agreed at [74]. See also the judgment of Sully J at [100]. 21The applicant was a mature man. There are 40 prior convictions recorded against him, many of them involving the use of drugs, including inappropriate use of alcohol, and offences of violence. He has served a number of terms of imprisonment. I would not regard his record as justifying any more severe sentence than would otherwise be appropriate, but it disentitles him to leniency. Statistics put before the Court show that only 51 per cent of persons pleading guilty to an offence of this type receive custodial sentences. They also show that the head sentence of 3 years and 6 months, even ignoring the benefit of partial concurrency with the balance of parole of the previous sentence, is within the range. 22Taking all these matters into account, I think that the resulting sentence is unremarkable and appropriate. In my opinion no lesser sentence is warranted in law. 23I propose the following orders:- 1.Grant leave to appeal; 2.Dismiss the appeal.
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: 14 October 2013
O'Connor
Regina