[2013] HCA 37
Dinsdale v The Queen (2000) 202 CLR 321
[2000] HCA 54
Kentwell v The Queen (2014) 252 CLR 601
[2014] HCA 37
Perdija v R [2012] NSWCCA 244
R v Bugmy [2012] NSWCCA 223
R v Henry (1999) 46 NSWLR 346
[1999] NSWCCA 111
Taysavang v R
Source
Original judgment source is linked above.
Catchwords
[2013] HCA 37
Dinsdale v The Queen (2000) 202 CLR 321[2000] HCA 54
Kentwell v The Queen (2014) 252 CLR 601[2014] HCA 37
Perdija v R [2012] NSWCCA 244
R v Bugmy [2012] NSWCCA 223
R v Henry (1999) 46 NSWLR 346[1999] NSWCCA 111
Taysavang v R
Judgment (7 paragraphs)
[1]
Solicitors:
One Group Legal (Applicant)
Solicitor for Public Prosecutions (Respondent)
File Number(s): 2015/203078
Decision under appeal Court or tribunal: District Court of New South Wales
Jurisdiction: Criminal
Date of Decision: 24 March 2017
Before: Craigie SC DCJ
File Number(s): 2015/203078
[2]
Judgment
GLEESON JA: I agree with Hamill J.
ROTHMAN J: I agree with Hamill J.
HAMILL J: Robert Ohanian seeks leave to appeal against a sentence imposed on him by his Honour Judge Craigie SC in the District Court on 24 March 2017. In relation to one count of supplying a prohibited drug (94.1 grams of "MDA"), the applicant was sentenced to imprisonment for four years and five months comprised of a non-parole period of two years and ten months and a balance of term of one year and seven months. The applicant received a reduction in the sentence of 25% for his early plea of guilty. [1] In sentencing the applicant the sentencing Judge took into account three matters on a Form 1. [2]
Mr Ohanian was caught in the course of a police operation arising from a registered source (RS) approaching the police with information. On 14 May 2015 RS attended the applicant's premises, was shown 10 ecstasy tablets and provided with two tablets as a sample. On 17 May 2015 the applicant sold a quantity of tablets to RS for $9,500. Another male delivered the tablets to RS. On 24 June 2015, RS's vehicle was searched and two plastic bags were seized which contained a large number of beige tablets. These were analysed and found to be 94.1 grams of "MDA". Over the next two weeks or so, there were a number of meetings and electronic communications in which the applicant sought to recover the "outstanding drug debt owed by RS to the offender." These facts were the basis of the offence upon which the applicant stood to be sentenced. The offence carried a maximum penalty of 15 years.
The three offences on the Form 1 arose from events surrounding that offence. The first offence to be taken into account was an offence of supply. The facts were that, in early May 2015, the offender arranged for the supply of 43 grams of MDMA to RS for $9,500. The second offence to be taken into account involved the supply of 1 gram of cocaine to RS. Each of those offences, had they been charged separately, carried the same maximum penalty as the principal offence. The third offence involved the possession of 0.55 grams of MDMA which was found when Mr Ohanian's vehicle was searched on the day of his arrest.
There was no dispute as to the facts of the offences and a document styled "Agreed Facts" was tendered on sentence.
The Crown also tendered the applicant's criminal and custodial history. The applicant was born in April 1982. He was 33 at the time of the offences and 34 when he stood to be sentenced.
In 2002 he was placed on a bond without conviction for offences of assaulting and resisting or hindering police officers. In the same year an offence of possessing prohibited drugs was dismissed under s 10. In 2004 he was fined for negligent driving. In 2007 he was fined and placed on a bond for possessing drugs. When he breached that bond he was ordered to serve a sentence of 4 months home detention. He received a further 9 months home detention for possessing drugs in the same year. In 2008 he was fined and disqualified from driving for driving offences. In 2009 he was fined for driving an unregistered and uninsured car and sentenced to 9 months periodic detention for driving whilst disqualified.
Finally, and most significantly, in 2013 the applicant was sentenced to 4 years imprisonment with a 2 year non-parole period for an offence of selling a prohibited firearm. The sentencing Judge took into account four other offences being supplying drugs, selling a firearm, dealing with the proceeds of crime and participating in a criminal group.
The non-parole period expired on 6 November 2014 and a parole order was made on that date. The offences committed in May and June 2015 constituted a breach of parole. Parole was revoked and the applicant was ordered to serve the balance of the sentence imposed in 2013.
The breach of parole was an aggravating feature and the criminal record, while mostly consisting of relatively minor offences, disentitled the offender to very much leniency. The most recent prior offence, and the associated matters taken into account, were extremely serious and demonstrated an escalation of the offender's involvement in the criminal milieu. The amount of drugs involved in the principal offence on this occasion (94 g) was substantial and approached the commercial quantity applicable for the drug in question (125g). [3] Considerations such as deterrence and denunciation were bound to play a significant role in the proper exercise of the sentencing exercise.
Mr Ohanian tendered two psychological reports in the proceedings. The first, by the psychologist Associate Professor Stephen Woods, concerned the applicant's personal, psychological and family history and the events leading up to the offending. The second, by a psychologist Annalese Bolton, addressed the impact of the applicant's incarceration on his wife and young family. The sentencing Judge accepted and acted upon parts of these reports but was not prepared to act on what his Honour described as "controversial" assertions made by Mr Ohanian to Associate Professor Woods. In particular, Judge Craigie did not accept (on balance) an assertion that the applicant committed the offence as a result of duress from criminals who threatened the applicant and his brother as a result of drug debts owed by the brother. The applicant did not give evidence and his version of events in relation to threats and duress was untested and not supported by other evidence. No suggestion was made on the hearing of the application for leave to appeal against sentence that his Honour erred in this regard and it is unnecessary to say any more about it.
Associate Professor Woods diagnosed the applicant as suffering from substance use disorder, persistent (early onset) depressive disorder, somatic symptom disorder and features of post-traumatic stress disorder. There was a provisional diagnosis of psychotic disorder (possibly schizoaffective disorder or drug induced psychosis). There was evidence in files maintained by Corrective Services that supported the proposition that Mr Ohanian had "serious mental health issues" and a "history of anxiety and schizophrenia" in relation to which he was "not medicated but stable".
The applicant's mental health issues arose from a severely dysfunctional childhood. The sentencing Judge accepted that parts of the history provided to Associate Professor Woods was uncontroversial. Mr Ohanian's father was physically and emotionally abusive and his mother left the marriage to cohabitate with his father's best friend ("K") when the applicant was about five. The separation was "intensely acrimonious" and the applicant had little or no contact with his father until he was around 14 years old. Meanwhile, K introduced the applicant and his other brother to drugs at an early age. He provided the applicant with cannabis from the age of just twelve years and continued to encourage him to use that drug throughout his teenage years. By the age of 18 years the applicant had commenced to use other drugs. People frequently came to the house looking for his older brother and issued threats to physically harm members of the family. When he was 19 years old there was a "drive by shooting" at the family home. Both of the applicant's brothers were also involved in drug use and criminal activity and both were also in gaol.
Associate Professor Woods said that the applicant is a "psychologically damaged" and vulnerable individual as a result of the environment in which he was raised. Testing showed that he was "not a particularly intelligent individual" and Mr Woods concluded that "he is inclined to be reactive to major stressors rather than adopt a considered approach".
In spite of the problems identified by Associate Professor Woods, his long term drug abuse and his periods of incarceration the applicant had employment in various labouring and unskilled jobs and at the time of the offences he was employed by his brother in law supplying and delivering truck parts. He was married to a supportive wife and had 4 children aged 9, 8, 4 and 3 years.
The impact of the applicant's criminal conduct and incarceration on his wife and family was detailed in the report of Ms Bolton. The impact was, unsurprisingly, considerable and there was evidence that the children were suffering in the absence of their father. Judge Craigie took this matter into account but was unable to find that the hardship was so extreme or exceptional that it could properly inform the exercise of the sentencing discretion. However, his devotion to his family provided the applicant with a significant motivation to reform and, along with his mental health issues, made his time in custody more onerous.
Judge Craigie considered all of these matters in the course of his thoughtful remarks (or judgment) on sentence. His Honour determined that the facts of the offences were of such seriousness that a custodial sentence of some substance was appropriate and rejected a submission that a sentence of less than two years could be imposed thereby entitling the sentencing Court to suspend the sentence. His Honour referred to this (in argument) as an "audacious submission" and one that "simply does not fit any notion of general deterrence". His Honour also said in argument that such an approach would send "a totally risible message out to the community."
Judge Craigie found special circumstances under s 44 of the Crimes (Sentencing Procedure) Act. The special circumstances so identified was the accumulation of the sentence on the period in custody arising from the applicant's incarceration following the revocation of his parole. His Honour ordered the sentence to commence on 10 January 2016, which is to say part way through the period the applicant was required to serve as a result of the revocation of parole. Neither party in this Court submitted that this was an erroneous approach and, in my view, it struck an appropriate balance.
[3]
Ground 1: His Honour erred in concluding that the mitigating effects of the applicant's dysfunctional upbringing diminished for a mature man who has had ample opportunity to address his difficulties.
Judge Craigie made the following observations that are relevant to the first ground of appeal:
"Otherwise, I do regard matters of general background, such as those contained in the report, as uncontroversial and to some degree explanatory of the offender's criminal history and of his lapse again into offending. The matters including the early and acrimonious separation of his parents when he was aged five are amongst those that I generally accept as elements of disruption that may well explain his early descent into entrenched substance abuse and related criminal lifestyles. So much is certainly consistent with the extent and duration of the offender's criminal record, which I find, more probably than not, is explained in large measure by features of an unfortunate and early introduction to illicit substance abuse. I accept also that the offender has lived within an environment where criminality and exposure to risks has become part of his life from adolescence.
The fact that each of the offender's brothers has found themselves in custody of one kind or another, and I note that I am told a third brother also finds himself in custody, is consistent with the formulation that I have arrived upon. Although I take into account evidence of disadvantage in his upbringing and that the offender has continued in involvement in illicit drugs, that is largely explanatory and as a matter of law does not mitigate his offending."
"I have read the annexures summaries in Associate Professor Woods' report relating to the assessments by Odyssey House in the period from 20 to 27 February 2009. They satisfy me that it is more probable than not that a substantial explanation for the offender's involvement in a criminality activity has been his longstanding psychological weakness for illicit drugs and the related involvement to which this may well have drawn him".
The part of the judgment that is challenged on appeal is where his Honour said:
"I do, however, find that the offender came from a family background which on his account was dysfunctional during a sensitive time of his upbringing. Factors of that nature do not exhaust themselves, although the fact of the matter is their force in a mature man who has had ample opportunity to address his difficulties that may be diminished by reasons of that factor."
I accept the applicant's submission that the suggestion by the sentencing Judge that this factor was "diminished" because he was "a mature man" who had "ample opportunity to address his difficulties" is contrary to the law as explained by the High Court in Bugmy v The Queen. [4]
Bugmy v The Queen concerned an Aboriginal offender from far western New South Wales who had been exposed to violence and alcoholism at a very young age. He was 29 at the time of the offences, had an extensive criminal history including a record for violence and had spent much of his adult life in gaol. The sentencing Judge gave significant weight to the offender's dysfunctional upbringing. The prosecution appealed against the asserted inadequacy of the sentence. The prosecution submitted (in the Court of Criminal Appeal) that the dysfunctional childhood and associated problems "lost much of its weight when it was raised against a background of numerous previous offences". [5] The Court of Criminal Appeal accepted this submission. Hoeben JA (as his Honour then was) said: [6]
"I agree that with the passage of time, the extent to which social deprivation in a person's youth and background can be taken into account, must diminish. This is particularly so when the passage of time has included substantial offending. Nevertheless, it is still a matter of relevance which can properly be taken into account in the sentencing process."
The Crown appeal was allowed (on other grounds) and Mr Bugmy was re-sentenced. He was granted leave to appeal to the High Court. In a joint judgment six of the seven judges concluded that the approach taken in the Court of Criminal Appeal was erroneous: [7]
"25 In the Court of Criminal Appeal the prosecution argued that given the appellant's age and record of serious criminal offending, it had been an error for Judge Lerve to give weight to the propositions stated in Fernando. Hoeben JA said of this submission:
'I agree that with the passage of time, the extent to which social deprivation in a person's youth and background can be taken into account, must diminish. This is particularly so when the passage of time has included substantial offending.'
26 Nonetheless, Hoeben JA said that consideration of the appellant's background of social deprivation remained a matter of relevance which could properly be taken into account in sentencing. However, any reduction on this account would be "modest".
27 The appellant challenges Hoeben JA's statement of the principle. He submits that the effects of childhood deprivation do not diminish with time and with repeated incarceration. Despite his age and his long criminal record, he contends that it was open to Judge Lerve to impose a lenient sentence reflecting his reduced moral culpability for his offence.
…
42 It will be recalled that in the Court of Criminal Appeal the prosecution submitted that the evidence of the appellant's deprived background lost much of its force when viewed against the background of his previous offences. On the hearing of the appeal in this Court the Director did not maintain that submission. The Director acknowledges that the effects of profound deprivation do not diminish over time and he submits that they are to be given full weight in the determination of the appropriate sentence in every case.
43 The Director's submission should be accepted. The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.
44 Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving "full weight" to an offender's deprived background in every sentencing decision. However, this is not to suggest, as the appellant's submissions were apt to do, that an offender's deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender."
There is no relevant difference between the approach taken by the Court of Criminal Appeal in R v Bugmy and the approach taken by the sentencing Judge in the present case. In each instance, the court took into account the dysfunctional background but held that its impact on the sentencing exercise was "diminished" by the passage of time because (in Bugmy) there was a lengthy history of offending and (in this case) the applicant had "ample opportunity to address his difficulties."
The respondent attempted to distinguish this case from Bugmy on two bases. First, it was submitted that the Court of Criminal Appeal in Bugmy "effectively [reduced] it to the point that it had no weight whereas in [the present case] the sentencing Judge was in fact still giving it weight." [8] However, this submission cannot be accepted given that "Hoeben JA said that consideration of the appellant's background of social deprivation remained a matter of relevance which could properly be taken into account in sentencing". [9]
The second basis upon which the respondent sought to distinguish Bugmy was that the present case involved "planning and organisation". Reliance was placed on certain observations by this Court in Taysavang v R; Lee v R. [10] However, it was not on this basis that the sentencing Judge in the present case "diminished" the significance of the applicant's dysfunctional background. Rather, it was on the basis that he had "ample opportunity" to address his problems. Further, while the offence involved a degree of planning, there was little evidence of the extent of that planning. Finally, the offence was committed in the context of Mr Ohanian's involvement in the drug culture, which was at the very heart of his dysfunctional upbringing. He was introduced to drugs at a tender age by his stepfather and was exposed to drug use and the criminal milieu surrounding drugs throughout his formative years.
For these reasons, Ground 1 must be upheld and the Court must exercise the sentencing discretion afresh. If this Court concludes that a lesser sentence is warranted, the appeal must be allowed. [11]
[4]
Ground 2: The sentence was manifestly excessive.
In view of the fact that the Court must consider the appropriate sentence for itself, it may not strictly be necessary to determine this ground.
The applicant relied on statistics maintained by the Judicial Commission and the outcome in a case called Perdija v R. [12] The applicant submitted that upon synthesising all of the circumstances of the case, both objective and subjective, the Court would come to the instinctive or intuitive conclusion that the sentence was manifestly excessive.
Counsel appearing for the respondent was critical of the approach adopted by the applicant. It was submitted that no range was established, particularly not by reference to one individual case and the statistics. The Crown pointed to well established authority concerning the flexibility allowed to sentencing judges in the exercise of the sentencing discretion and to the fact that, for this ground to succeed, it was necessary for the applicant to establish that the sentence was "unreasonable" or "plainly unjust". It was submitted that Perdija was a completely different case and, while it involved a more serious charge, it was the fact that the applicant in that case was a first offender whereas Mr Ohanian had a significant criminal record, including prior drug offences, and was on parole at the time he committed the offence. Counsel also provided a helpful schedule of twenty previous cases in support of her submission that sentence imposed on the applicant was not manifestly excessive.
The respondent's submissions are correct. Taking into account the seriousness of the offending, the matters taken into account on the Form 1 which increase the need for specific deterrence and retribution, the breach of parole and the offender's criminal history, the sentence imposed on the applicant was not manifestly excessive. It was not "plainly unjust" or "manifestly wrong". [13]
[5]
Re-sentencing
Because error has been found (pursuant to ground 1), it is necessary to re-exercise the sentencing discretion to determine whether a different, less severe, sentence was warranted. [14]
I have taken into account the seriousness of the offence and the maximum penalty of 15 years. As the respondent submitted, deterrence and denunciation is an important purpose of punishment in cases of this kind. The quantity of drugs involved was substantial and many times more than the indictable quantity prescribed by the legislation. The breach of parole was a significant aggravating feature of the offence. The matters to be taken into account mean that personal deterrence and retribution must play a more significant role in the sentencing exercise.
On the other hand, the applicant's dysfunctional upbringing and his early and ongoing exposure to drug use and the drug underworld provides a compelling explanation for his addiction and ongoing involvement in criminal offences such as the one for which he is to be sentenced. They have resulted in significant and chronic mental health problems. As the sentencing Judge found, his time in custody is likely to be more onerous as a result. The applicant has made sporadic, and at times quite successful, attempts at rehabilitation. The fact that he has a loving and supportive wife, and four children under the age of ten years, provides him with a compelling motive to rehabilitate himself. One of the important purposes of punishment in these circumstances is to foster his rehabilitation.
Notwithstanding these matters, there is no doubt that there is no alternative to imposing a custodial sentence of some length. Because of the length of that sentence, there is no alternative to it being served in custody.
Taking into account all of these factors, which pull in opposite directions, I would commence with a starting point of five years. I would reduce the sentence by 25% (1 year and 3 months) for the plea of guilty, resulting in a total sentence of 3 years and 9 months. I would find special circumstances in the accumulation on the pre-existing parole period, the fact that the offender will find the custodial part of his sentence more onerous as a result of his mental health issues and the desirability of an extended period of supervised parole. In view of his recent history, the applicant is well aware of the consequences of any breach of this parole. I would set a non-parole period of 2 years.
Because the sentence that I would impose is less than that imposed by the sentencing Judge, the application for leave to appeal should be granted and the appeal upheld.
[6]
Orders
For those reasons, the orders I favour are as follows:
1. Leave to appeal granted.
2. Appeal upheld.
3. Sentence imposed on 24 March 2017 quashed.
4. In lieu thereof, the applicant is sentenced to a non-parole period of two years commencing 10 January 2016 and expiring 9 January 2018 with a balance of term of one year and nine months commencing 10 January 2018 and expiring on 9 October 2019.
5. The applicant will be eligible for release on parole at the conclusion of the non-parole period.
[7]
Endnotes
R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111; Crimes (Sentencing Procedure) Act 1999 (NSW), s 22.
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 32-33.
Drug Misuse and Trafficking Act 1985 (NSW), Schedule 1.
(2013) 249 CLR 571; [2013] HCA 37 at [25]-[27], [42]-[44].
R v Bugmy [2012] NSWCCA 223 at [48]-[49].
Ibid, at [50].
French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ at [25]-[27], [42]-[44]. Gaegler J also accepted that the absolute terms in which the Court of Criminal Appeal expressed its view was erroneous but did not accept the terms of the concession made by the Crown on the issue.
Appeal transcript at 7.
Bugmy v The Queen at [27]; R v Bugmy at [50].
Taysavang v R; Lee v R [2017] NSWCCA 146 at [41]-[42].
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42].
Perdija v R [2012] NSWCCA 244.
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [22] (Gaudron and Gummow JJ).
Kentwell v The Queen at [42].
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: 06 April 2018