242 CLR 520
Kemp v R [2014] NSWCCA 153
Lowe v R [2015] NSWCCA 46
Muldrock v The Queen [2011] HCA 39
Source
Original judgment source is linked above.
Catchwords
249 CLR 571
Cahyadi v Regina [2007] NSWCCA 1168 A Crim R 41
Hili v the QueenJones v The Queen [2010] HCA 45242 CLR 520
Kemp v R [2014] NSWCCA 153
Lowe v R [2015] NSWCCA 46
Muldrock v The Queen [2011] HCA 39244 CLR 120
Munda v Western Australia [2013] HCA 38249 CLR 600
R v Nai Poon [2003] NSWCCA 42
Judgment (3 paragraphs)
[1]
Solicitors:
Legal Aid NSW - Applicant
Solicitor for Public Prosecutions - Respondent Crown
File Number(s): 2014/231771
Decision under appeal Court or tribunal: District Court of NSW
Jurisdiction: Criminal
Date of Decision: 1 February 2016
Before: Woodburne SC DCJ
File Number(s): 2014/231771
[2]
Judgment
HOEBEN CJ at CL:
Offences and sentence
On 2 October 2015 the applicant entered pleas of guilty in relation to the following offences:
One charge of supply a firearm to a person unauthorised to possess it, contrary to s 51(1)(a) of the Firearms Act 1996 (NSW) ("the firearms offence") for which the maximum penalty was imprisonment for 5 years.
Two charges of supply a prohibited drug being not less than the commercial quantity contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) ("the supply prohibited drug offences"), for which the maximum penalty was imprisonment for 20 years and/or a fine of $385,000 with a standard non-parole period of 10 years.
On 1 February 2016, the applicant appeared before Woodburne SC DCJ for sentence. The applicant asked the Court to take into account a further two offences which were dealt with by the Court pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW). These offences of sell a prohibited weapon to a person without a permit and supply a firearm to a person unauthorised to possess it were placed on a Form 1.
The sentences imposed by her Honour were:
Supply firearm offence (taking into account the matters on the Form 1) imprisonment with a non-parole period of 1 year and 10 months, commencing 5 December 2014 and expiring 4 October 2016, and a balance of term of 1 year, expiring 4 October 2017.
Supply of not less than the commercial quantity of methylamphetamine (269.17g) imprisonment with a non-parole period of 5 years, commencing 5 December 2015 and expiring 4 December 2020, and a balance of term of 2 years and 10 months, expiring 4 October 2023.
For the offence of supply not less than the commercial quantity of methylamphetamine (496.1g) imprisonment with a non-parole period of 5 years and 2 months, commencing 5 June 2016 and expiring 4 August 2021, and a balance of term of 3 years and 10 months, expiring 4 June 2025.
The overall sentence was imprisonment with a non-parole period of 6 years and 8 months and a head sentence of 10 years and 6 months. The sentence was to commence on 5 December 2014 with a non-parole period expiring 4 August 2021 and the head sentence expiring 4 June 2025.
Factual background
In February 2014 police attached to Blacktown detectives commenced Operation Laudanum, investigating drug supply activities in the Blacktown and surrounding areas. During the course of this investigation, police identified the applicant and associates involved in mid to high level supply of crystalline methylamphetamine in the Blacktown area. Police were able to confirm that an associate of the applicant was regularly supplying significant amounts of illicit drugs to the applicant, who would then on sell the drug in smaller amounts.
The applicant resided at Dunsmore Road, Rooty Hill.
Supply not less than commercial quantity (269.17g methylamphetamine)
This offence was made up of a number of smaller supplies. No useful function would be served in setting out the detail of each supply. It is sufficient to set out in detail one supply and to indicate the number and type of other supplies which comprised the charge being laid in this form.
The drugs were supplied to a police undercover operative (UCO). The applicant was in regular contact with the associate before all the supplies and he would then travel with the UCO to the vicinity of the associate's address. Police intercepted a large number of phone calls in relation to these supplies.
At about 2.49pm on 26 May 2014 the applicant and UCOs, Tony and Jessica, travelled in Jessica's car to Valentine Street Blacktown at the direction of the applicant. They parked on the southern kerb facing Valda Street. The applicant then exited the car and walked into Valda Street. At about 2.51pm he returned from Valda Street and handed UCO Jessica a medium sized plastic resealable bag containing 21.6g of crystalline methylamphetamine in exchange for $6,800. At about 2.55pm the applicant exited the vehicle and walked back towards Valda Street.
The other supplies took place on the following dates and in the following amounts:
3 June 2014 - 15.35g of crystalline methylamphetamine in exchange for $3,500.
4 June 2014 - 43.2g of crystalline methylamphetamine in exchange for $11,000.
16 June 2014 - 27g of crystalline methylamphetamine in exchange for $6,800.
7 July 2014 - 27.14g of crystalline methylamphetamine in exchange for $6,800.
11 July 2014 - 27.18g of crystalline methylamphetamine in exchange for $6,800.
11 July 2014 - 55.4g of crystalline methylamphetamine in exchange for $13,600.
17 July 2014 - 25.5g of crystalline methylamphetamine in exchange for $6,800.
28 July 2014 - 26.8g of crystalline methylamphetamine in exchange for $6,800.
Over that period, the applicant supplied a total of 269.17g of methylamphetamine for an amount of $68,900.
Sell prohibited weapon to person without permit (Form 1)
At about 12.06pm on Monday 7 July 2014 the applicant supplied an Apple iPhone shaped taser device to a police UCO for $500, whilst outside his residential premises.
Supply firearm (Glock pistol) to person unauthorised to possess it (Form 1)
On 6 June 2014, a lawfully intercepted telephone conversation between the applicant and another male recorded negotiations for the supply of a Glock pistol for $6,000.
Supply firearm (Glock pistol) to person unauthorised to possess it
On 16 June 2014 a listening device lawfully recorded a conversation between the applicant and UCO Jessica negotiating the supply of a Glock pistol for $5,000.
Supply not less than commercial quantity (496.1g methylamphetamine)
On the days before 6 August 2014 the applicant negotiated with the UCO to supply one kilogram of crystalline methylamphetamine. As negotiations progressed, the applicant informed the UCO that he was only able to supply 500g of crystalline methylamphetamine.
On the morning of 6 August 2014 the applicant supplied 496.1g of crystalline methylamphetamine to the UCO at a location on Lyton Street Blacktown. An agreement was entered into by the applicant to accompany the UCO to a shopping complex in Flushcombe Road Prospect.
Two associates of the applicant were also present within the shopping complex acting as "lookouts". The agreement was for the exchange of $120,000 for the supply of 496.1g of crystalline methylamphetamine. Shortly after arriving at the shopping complex in Flushcombe Road, the applicant was arrested. At the time of his arrest he was in possession of 496.1 grams of crystalline methylamphetamine concealed in a large protein powder container. He submitted to a search during which a two way radio and electronic device for detecting covert surveillance were located. A sum of $755 was also recovered during the search of the applicant.
Sentence proceedings
When assessing the objective seriousness of the two drug supply offences, her Honour noted that the maximum penalty was imprisonment for 20 years and/or 3,500 penalty units. Her Honour considered that it was necessary to have regard to the maximum penalty because it indicated the seriousness with which parliament regarded the offence and served as a yardstick and a basis of comparison between the case at hand and a worst case.
Her Honour referred to the additional legislative guidepost being the standard non-parole period of 10 years. Her Honour noted that the standard non-parole period represented the non-parole period for the offence, taking into account only the objective factors affecting the relative seriousness of the offence which was in the middle of the range of seriousness. The standard non-parole period for an offence was not determinative, but it was a matter to be taken into account by a court in assessing the appropriate sentence for an applicant without limiting the matters that were otherwise required or permitted to be taken into account in assessing the appropriate sentence for that applicant.
When assessing the objective seriousness of the offending, her Honour took into account a number of other factors.
The nature and extent of the planning involved in the commission of the offence
Her Honour noted that although some planning was an inherent characteristic of drug supply offences, she was still entitled to take into account the extent of the planning involved. Her Honour found that the criminal activity was sustained between 25 May and 6 August 2014. It was a commercial enterprise involving the sale of methylamphetamine to his customer the UCO, who placed orders with him. Her Honour accepted that the planning did exceed the norm, given that on occasions an associate or associates followed the applicant and the UCO in another vehicle. Her Honour found as an aggravating factor that the offence was part of a planned or organised criminal activity.
The role of the applicant
Her Honour rejected the proposition that the applicant was "a mere conduit". She found that while he could be described as a conduit between the supplier and the UCO, it was necessary to look more closely at the steps he took to effect the supply.
Her Honour noted that the system involved the applicant maintaining contact with the supplier, negotiating the supplies to the UCO, having the UCO attend upon him, travelling with the UCO to the vicinity of the supplier's premises, attending upon and collecting the drug from the supplier while the UCO waited nearby, providing the drug to the UCO, and receiving money from the UCO. On a number of occasions associates of the applicant would follow him and the UCO as they travelled together in the UCO's car to the vicinity of the supplier's address. Her Honour concluded that the applicant's role in the enterprise was a central one and an important one.
Whether and to what extent the applicant participated for financial gain
Her Honour noted that financial gain was not an inherent characteristic of the offence of supply prohibited drug, although that aggravating factor did not necessarily arise where an applicant was supplying drugs in order to support his or her drug addiction and not for profit. Her Honour further noted that the exact relationship between the applicant and his associates was not known to the court, except to say that an associate of the applicant was regularly supplying significant amounts of illicit drugs to him, and that he would then on sell the drug in smaller amounts. Her Honour noted that it was not known whether upon receipt of money from the UCO that money, or some lesser portion of it, was given directly to the applicant's associate from whom he had collected the drugs.
In view of the organised nature of the supply activity, her Honour concluded that the applicant participated for financial gain even if, on the evidence, the extent of that was not known. Her Honour considered that that conclusion was supported by the account recorded by the psychologist, where the applicant explained that because of his significant ice habit, and following upon the failure of his flatmate to pay rent, he had a $10,000 rent debt and that he engaged in the offending to support his own drug habit and to pay the outstanding debt. Her Honour contrasted the applicant's position with that of a person who was motivated solely to participate out of greed. Her Honour found that while he was likely feeding his own ice addiction, there was also an element of participation for financial gain.
The amount of the drug supplied
Her Honour regarded the amount of drug supplied as important but not as the sole determinant of objective gravity. Her Honour noted that the amount in the first offending was towards the bottom of the range specified for an offence to qualify as involving the supply of a "commercial quantity".
The purity of the drug supplied
Her Honour noted that this ranged from 41.5% to 76.5% and would be regarded as being of a relatively high purity enabling, in the ordinary course, further dissemination into the community. Her Honour accepted that the applicant was dealing in a valuable product, its sale price being $68,900.
It was against that background that her Honour concluded that the offence was properly to be regarded as a serious one. Her Honour found that for the purpose of funding his own habit and advancing his own financial position, the applicant played an important role in the organised supply of the prohibited drug methylamphetamine. While there was no information to suggest the applicant was particularly enriched by his part in the enterprise - only $755 was found on him when he was searched - the enterprise was a commercial one involving the sale of product for some $68,900. While the drugs supplied to the UCO were not disseminated into the community, that did not reduce the applicant's moral culpability for the offence.
In relation to the second offence, her Honour regarded the following matters as important:
The nature and extent of the planning involved in the commission of the offence
Her Honour noted that the offence was committed after some days of negotiations with the UCO. The planning extended to having two associates acting as lookouts and to carrying a two way radio and an electronic device for detecting covert surveillance. Her Honour concluded that this took the matter beyond the ordinary planning inherent in drug supply offences.
The role of the applicant in the enterprise
Even if he were not the original source of the drugs, her Honour found that the applicant's role was a central one - he was the person with whom the UCO negotiated, he obtained the drugs, co-ordinated with his associates and carried the relevant equipment.
The amount of the drug in the applicant's possession for the purpose of supply
Her Honour noted that the amount involved was 496.1g. It had a purity of 59.5 percent. The purchase price was $120,000. Her Honour concluded that the amount involved was a clear indicator that the applicant well knew that the drug was being supplied for the purpose of further dissemination into the community.
The fact that the offence was engaged in with a view to obtaining financial gain
Her Honour had already made findings in relation to this matter when considering the first drug supply offence.
In relation to the supply firearm (Glock pistol) her Honour noted that the relative seriousness of the offence was indicated by the maximum penalty of imprisonment for 5 years. Her Honour noted that no attempt was made to suggest that the negotiations in relation to the firearms supply were "mere talk". It was accepted that the negotiations were genuine and that the applicant had access to a person who could supply the firearm, i.e. an automatic pistol, which could fire up to 30 rounds, depending on the size of the magazine.
Her Honour found that in determining the sentence to be imposed for this offence, it was proper to have regard to the fact that the delivery of the firearm was not completed. Nevertheless, her Honour found significant moral culpability inherent in the commission of that offence. The applicant showed himself willing to arrange the supply of a firearm to a person he believed to be associated with the illegal drug trade. He was not, for example, offering it for sale to someone who might have decided to keep it as a curiosity. He was prepared to facilitate the supply of a firearm to a person who might, for all he knew or cared, use it in illicit activity. Her Honour found that engaging in such an activity for financial gain was a poor and unworthy motivation. Her Honour found that engaging in the offence of offering to supply a firearm for sale was a deeply anti-social activity directed to undermining the laws put in place to protect society by controlling the distribution of firearms. Her Honour concluded that the penalty to be imposed must reflect those considerations.
When sentencing for the supply firearm offence, her Honour noted that she was required to take into account the two matters on the Form 1.
Subjective circumstances
The applicant was born in April 1964 and was aged 51 at the time of sentence. He had a criminal history. That history included the following:
Early contact with the criminal justice system beginning in 1981 when he was aged 16.
Convictions for possess a prohibited drug, receiving, illegal use of a conveyance, assault police, malicious damage, possess housebreaking implement, larceny, possession of knife in a public place, goods in custody, obtain money by deception, break, enter and steal, assault, stalk/intimidate and various driving offences, with the bulk of those matters having been dealt with by way of fine or recognisance in the Local Court.
There was some history of imprisonment for short periods in 1992, 1994, 1995 and 1996 for fine defaults, and in 1998 for assault, goods in custody, allow self to be carried in stolen conveyance and malicious damage. There were more substantial periods of imprisonment in 1989 for break, enter steal, (3 years, non-parole period 1 year) assault police (12 months), assault (12 months), malicious damage (6 months).
In 1999 periods of imprisonment imposed for offences of possess implements, steal motor vehicle, larceny, goods in custody, custody of a knife in a public place were ordered to be served by way of periodic detention which was later cancelled by the State Parole Authority with the consequence that the applicant served about 7 months in custody.
In 2003 the applicant served short concurrent sentences for possession of housebreaking implement (4 months); possess means of disguising face with intent to commit indictable offence (4 months); custody of knife in a public place (3 months).
In 2006 the applicant was dealt with in the Drug Court for offences of break, enter building and commit serious indictable offence, unlawfully obtain goods, dishonestly obtain money by deception and possess prohibited drug (5 months).
In 2009 a 6 month period of imprisonment was imposed and suspended for assault of a police officer in execution of duty.
The applicant was arrested on the present matters on 6 August 2014 and on 28 August 2014 was ordered to serve concurrent 4 month periods of imprisonment for the offences of custody of knife in a public place and possess/use prohibited weapon without permit. That sentence expired on 27 December 2014.
Her Honour noted that the applicant although he had considerable contact with the criminal justice system, had no prior convictions for drug or firearm supply offences and as a result at age 51 faced a more lengthy period of imprisonment than he had ever previously served. Her Honour noted that when these offences were committed, the applicant was on bail and the commission of the offences, involved an abuse of the conditional liberty which had been extended to him on 27 December 2013.
Her Honour observed that the criminal history raised questions as to the appropriate commencement date for these sentences in circumstances where after his arrest on 6 August 2014 for these matters, he remained in custody bail refused during which time he served a four month sentence of imprisonment for matters unrelated to the present matters.
Although the applicant did not give evidence in the sentence proceedings, her Honour noted the following matters which affected his childhood which he reported to Ms Durkin, a psychologist, to whom he was referred because of the sentence proceedings.
1. Disengaged, negligent and abusive parenting.
2. A lack of connection with his siblings.
3. Early alcohol abuse commencing at age 8 or 9, with regular consumption from age 16.
4. A painful bone disease requiring surgery at age 9 and ongoing use of prescribed analgesics.
5. Early drug abuse, cannabis from age 12, amphetamines and cocaine from early adolescence, hallucinogenic drug use from mid-adolescence and intravenous heroin use from age 14.
6. Being knocked unconsciousness and losing most of his teeth in a serious motor vehicle accident at age 16.
7. Repeated absconding from home to avoid his family physically and verbal abuse upon his return.
8. A disrupted education because of his defiant attitude and aggressiveness towards other students and staff, resulting in him being suspended on three occasions in secondary school and ultimately expelled for assaulting a teacher.
Her Honour noted that consistent with the applicant's poor start in life, his adult life has been marked by continued alcohol and drug abuse, regular contact with the criminal justice system, extensive periods of unemployment and ongoing engagement with a peer group immersed in drug use and crime.
In his favour, her Honour noted that he entered the workforce in his adolescence and in the early 1990s (around age 25 or so) he completed courses in landscaping and horticulture and obtained his bobcat licence. He had predominantly worked as a landscaper and gardener, with some work as a factory hand and cabinetmaker. He reported being employed in each job on average for about two years. He also experienced extended periods of unemployment due to substance abuse. Over the last 14 years while he was the primary caregiver for his five children, he has been unemployed and relied on government benefits.
The applicant met the mother of his children when aged 19 and remained in the relationship for almost 20 years. The relationship was an unstable one characterised by drug use, infidelity and domestic violence. Ultimately the applicant gained custody of his children 14 years ago after his partner was deemed unfit to care for them. His youngest child is now 19 years old and the applicant is a grandfather.
[3]
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: 31 March 2017
The applicant's biggest achievement to date, and a significant one in light of his own history, was that he was able to get his children out of care and thereafter keep them together, develop a positive relationship with them and raise them such that they are reportedly doing well. His five, very well groomed and clearly concerned children, attended court to support him.
In relation to his present circumstances, her Honour noted that in December 2015 when he was being psychologically assessed by Ms Durkin, he was at the Long Bay Hospital as he had a growth in his eye requiring surgery. He was prescribed Avanza (an anti-depressant). He reported being drug (and presumably alcohol) free since entering custody in August of 2014.
Her Honour noted that the applicant had pleaded guilty at an early point in time and as a result, she discounted his sentence by 25 percent.
Her Honour assessed the applicant's prospects of rehabilitation as guarded. She noted that in the past he had attempted repeatedly to address his drug dependence by attending courses and using methadone but had generally failed in all these attempts, despite some brief periods of success lasting up to eight months.
Her Honour found that the applicant did not have mental health problems and that his prospects of rehabilitation would be enhanced by drug and alcohol addiction treatment and regular employment.
At the time of his arrest, he reported that he was drinking a significant amount of alcohol daily, and smoking about 5g of ice a day. Her Honour was not prepared to take his self induced intoxication at the time of the offending as a mitigating factor. Her Honour was not prepared to find that this was a case where the offences could be described as impulsive. Her Honour was not prepared to find that the offence was mitigated because the applicant was motivated to commit it to support his drug habit. Her Honour was prepared to take his drug addiction into account as an explanation for his offending.
On the basis of what he told her, the psychologist, Ms Durkin, concluded that he had not been given sufficient support to help with his pain management. She also expressed the opinion that lack of appropriate supervision and guidance left him vulnerable to destructive influences.
Because the applicant did not give evidence, and all of this material came by way of hearsay from the psychologist, her Honour made the following observation:
"This is a case where the account provided by the offender as to his history is unsworn. Further, there is no medical evidence concerning the offender's bone disease, the pain associated with it and its treatment and status over the years. The offender has not claimed any ongoing problem with pain. The offender's father (and perhaps also his mother) have passed away. He has little connection with his surviving siblings and they have not attended court in support of him. I am mindful his account is unsworn. I am nevertheless prepared to accept the account given, limited though it is, in some respects."
Accordingly, her Honour was prepared give consideration to this history given by the applicant of growing up in a dysfunctional household where due to abuse and lack of supervision, and an absence of support to deal effectively with pain management, he sought refuge in anti-social connections and drugs at a very young age. Her Honour found that while it did not excuse his offences, it diminished his level of moral culpability to an extent such that consideration could be given to placing some less emphasis on retribution and general deterrence.
Her Honour found that the applicant's long and entrenched criminal history and anti-social lifestyle meant that personal deterrence and the protection of society remained relevant considerations and must be given appropriate weight when balancing all matters and arriving at an appropriate sentence.
Her Honour took into account the purposes for which a court may impose a sentence upon an offender. They were to ensure that the offender was adequately punished for the offence, to prevent crime by deterring the offender and other persons from committing similar offences, to protect the community from the offender, to promote the rehabilitation of the offender, to make the offender accountable for his actions, to denounce the conduct of the offender and to recognise the harm done to the victim of the crime and the community.
In this case, her Honour determined that general deterrence remained an important consideration when sentencing for offences of commercial drug supply and supply of a firearm. Her Honour regarded personal deterrence as relevant because of the applicant's long and entrenched criminal and anti-social activity.
Her Honour took into account the following to which she was referred by the Crown: Ryan v R [2009] NSWCCA 183 (pre Muldrock v The Queen [2011] HCA 39; 244 CLR 120); R v Parkinson [2010] NSWCCA 89 (pre Muldrock); Kemp v R [2014] NSWCCA 153; Sant v R [2014] NSWCCA 261 and Lowe v R [2015] NSWCCA 46. All of these cases involved some drug supply. None of the facts were similar to those associated with the applicant's offending, although there was a general similarity because of the supply of drugs and firearms in some cases. The range of sentences imposed were: Ryan v R - a total sentence of imprisonment for 9 years 6 months with a non-parole period of 6 years; R v Parkinson - an overall term of 9 years 6 months with a non-parole period of 6 years and 6 months; Kemp v R - an overall sentence of imprisonment for 7 years with a non-parole period of 5 years; Sant v R - an overall sentence of imprisonment for 9 years with a non-parole period of 6 years; Lowe v R - an overall sentence of 12 years and 6 months with a non-parole period of 9 years.
Her Honour concluded from her analysis of those cases that the courts take a serious attitude towards offences of supply of a commercial quantity of prohibited drug.
Her Honour took into account the principle of totality. This was because the applicant had submitted that the sentences for the two drug supply offences should be served concurrently because they should be viewed as a single course of conduct. By reference to Cahyadi v Regina [2007] NSWCCA 1; 168 A Crim R 41 at [27] her Honour assessed whether the sentence for one offence could comprehend and reflect the criminality for the other. Her Honour concluded that there was a large degree of commonality in the circumstances of the offending. Each offence involved a supply by the applicant to the UCO of the prohibited drug, methylamphetamine. The last date on which drugs relating to the first supply matter were handed over was 28 July and the date of the second supply was 6 August 2014. Her Honour noted that the second offence was a product of the ongoing relationship between the UCO and the applicant.
Her Honour declined, however, to make the drug supply sentences totally concurrent. Her Honour concluded that each of the offences was serious in its own right involving a significant amount of drugs. While the common features in the offences justified a significant degree of concurrency, her Honour was not persuaded that an appropriate sentence for one offence could comprehend the criminality involved in the commission of both offences. As a result, her Honour considered that a degree of accumulation was appropriate so as to properly mark the fact that the applicant committed two very serious offences.
Her Honour concluded that a degree of accumulation was required for the supply firearm offence, even having regard to the fact that the firearm was not ultimately handed over. Her Honour noted that drug suppliers are often in possession of firearms for a number of well known reasons. Having made those findings, her Honour still kept in mind the principle of totality. Her Honour found that there were special circumstances so that the balance of the term would be more than one-third of the non-parole period. This was because of the applicant's longstanding drug addiction and his need for an extended period of support on his release.
While her Honour remained conscious of the maximum penalties for each of the drug supply offences, and of the standard non-parole period which applied, she declined to impose that standard non-parole period because she considered that a lesser non-parole period was appropriate having regard to all the matters before her, including the level of objective seriousness of the offending, the applicant's moral culpability, his plea of guilty and the need for rehabilitation which if ultimately successful, would operate to protect the community from his offending.
Her Honour then proceeded to pass sentence.
THE APPEAL
Ground 1 - The sentence imposed is manifestly excessive
The principal complaint of the applicant is that the sentences imposed, by reference to the Judicial Information Research System (JIRS) statistics show that the individual sentences were at the very top of sentences imposed for drug supply offences. The applicant submitted that even leaving aside drug supply offences, the sentence imposed on him was in the top 10 percent of sentences imposed generally. In making that submission, the applicant acknowledged that sentencing statistics have considerable limitations and restraint had to be observed when relying upon them. Even so, the applicant submitted that the undeniable fact was that the two drug supply sentences were at the upper end of the spectrum for offences of that kind.
The applicant relied upon her Honour's finding that in part he was acting as a courier and on the acceptance by her Honour of the history recorded by Ms Durkin, the psychologist, that he had a poor start in life and that his early years were characterised by alcohol and drug abuse. The applicant also relied upon her Honour's finding that despite his drug addiction problems and almost continuous interaction with the criminal justice system, he was able to be the primary carer of his children, all of whom appeared to have embarked upon successful careers. The applicant referred to the fact (recorded by her Honour) that his five children had attended court and were supportive of him.
The applicant submitted that when regard was had to those matters, the sentences imposed for the two drug supply offences and the aggregate sentence can be seen as unreasonable or plainly unjust.
The applicant summarised the bases for that submission as follows:
1. The sentences imposed were at the upper end of the spectrum.
2. His role as a conduit between the police UCO and principal supplier, although important, was an ancillary one.
3. He has had what can be fairly described as a tragic upbringing.
4. He had no prior convictions for drug or firearm supply.
5. He had a long history of drug dependency.
6. Financial gain was only part of his motivation in committing the offences.
Consideration
The emphasis by the applicant on his unfortunate upbringing requires further analysis. When one looks at what the psychologist reported, it is a far different picture to that referred to by the High Court in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 and Munda v Western Australia [2013] HCA 38; 249 CLR 600. In those cases, the offenders were brought up in an atmosphere comprising alcohol and drug abuse, domestic and other violence and criminal activity. That was not the applicant's circumstances. His parents were described as hard and unsympathetic. That is a far cry from the Bugmy and Munda circumstances. His engagement at an early age with alcohol and drug abuse would appear to be essentially a decision of his own and not, as it were, forced upon him by a tragic environment. In any event, her Honour dealt with that issue in considerable detail.
What the applicant's submissions carefully avoid is the seriousness of the offending. While the applicant may have been an ice addict, he was also very active and performed an essential function in a commercial enterprise involving the supply of that substance in Western Sydney. That criminal activity took place over a substantial period of time (May - August 2014) and unless the police had intervened, would have continued. The half kilogram drug supply offence involved a significant escalation in criminality which was appropriately reflected in the longer sentence imposed. The level of planning in this commercial enterprise was significant and has been fully documented in her Honour's reasons. There is no point in repeating the matters which her Honour took into account in assessing the objective seriousness of the offending. These have been fully set out in respect of both of the supply offences in her Honour's reasons.
The criminality involved in the weapon supply offence should also not be ignored. This was not a circumstance where a drug supplier was found to be in possession of a weapon, which it could be inferred he carried for his own defence, given the milieu in which he was operating. The applicant had access to and was in a position to supply at least two very dangerous weapons, i.e. Glock automatic pistols. The prevalence of shooting incidents in Sydney over recent years provides ample evidence of the danger to the public of such weapons being made available to criminals. Given the nature of the proposed transactions, these weapons were not intended by the applicant to be supplied to people who were likely to use them for lawful purposes. The criminality of that offence, taken with the two Form 1 matters, was substantial.
The fact that the drug supply and firearm supply transactions did not result in the weapons and drugs being disseminated into the community does not reduce either the objective seriousness of the offending nor the applicant's moral culpability. In relation to the firearm offence, it is difficult not to conclude that the purpose of that transaction was the financial benefit of the applicant rather than to pay for his drug habit. The applicant's extensive criminal history disentitled him to any leniency on that basis. The fact that the applicant had not been convicted of offences as serious as these in the past, does not necessarily assist him. There is no evidence that these were his first offences of this kind, only that this was the first time that he had been apprehended and convicted. What the offences do indicate is a significant escalation in his criminal activity by reference to his past history, the reason for which remains unexplained.
A further aggravating factor was that these offences were committed while the applicant was on bail. Given his criminal history, he would have been well aware of what a grant of bail entailed and the consequences for breaching conditions. These present offences indicate a complete disregard on his part for his bail undertaking.
This Court has on many occasions set out the limitations associated with a reliance upon statistics. While statistics do provide some assistance in indicating in a very general way a range of sentences which have been imposed, they say nothing about the particular circumstances of the offending, nor do they say anything about the strength or otherwise of the subjective cases of the persons involved. What the applicant's submissions ignore by focusing upon the individual sentences imposed for the drug supply offences is the ultimate sentence imposed. There was a very significant amount of concurrency in the final sentence. Her Honour clearly had in mind and applied the principle of totality when arriving at it.
As the review of the sentence proceedings makes clear, her Honour carefully examined every aspect of the Crown case and the defence case, made her findings and gave reasons for those findings. Her judgment was in every way a model example of a proper sentencing judgment. It could not and has not been suggested by the applicant that any aspect of his case was not considered by her Honour.
Having made that analysis, her Honour proceeded to balance the competing considerations in order to arrive at her final sentence. No error has been identified in that process. What the applicant says is that the end result is simply too high.
I do not agree. Intervention by this Court is not warranted simply because a sentence is stern or on the high side. As was said in Hili v the Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 at [60]:
"… what reveals manifest excess, or inadequacy, of sentence is consideration of all of the matters that are relevant to fixing the sentence."
Her Honour clearly carried out that process and the contrary has not been suggested. With respect to the statistics put forward by the applicant, the fact that his sentence lies towards the top of a statistical range is not determinative. In that regard, the observations of RS Hulme J (with whom Ipp JA and Bell J agreed) in R v Nai Poon [2003] NSWCCA 42; 56 NSWLR 284 at [48] - [51] are apposite:
"48 … It is unnecessary for me to repeat such an exercise here although it is worth repeating that the infinite variation of facts and degree which fall for consideration in sentencing and the exercise of the discretionary judgment which is involved make comparison with anything but a large number of cases, and commonly even then, generally unprofitable.
49 However it was submitted on behalf of the Applicant that the sentence imposed in this case exceeded any other that could be found for an offender similarly situated - a courier of a trafficable quantity who had pleaded guilty. The table prepared by me in R v Schofield supports this contention but the question arises, so what? Once it is accepted that not all sentences are of the same length, one or more offenders in any group must receive the longest sentence.
50 In that regard there are some remarks of Grove J in an ex tempore judgment in R v Hayes [2001] NSWCCA 410 at [14-15] that are apposite:-
"… there is a misconception that the upper limit of the range of sentence is that of the statistical publications of sentence information by the Judicial Commission. …
The upper limit of sentence is in fact the maximum set by Parliament. If the upper limit of the statistical range is treated as reserved for the worst case or the worst offender, then persistent selection of sentences for others within that range will inevitably reduce the upper figure."
51 Howie J agreed with Grove J. In R v Hofer [2001] NSWCCA 544 so did Wood CJ at CL and Sperling J. With the qualification that words along the lines "effective available range" should be substituted for "upper figure", so do I. The sooner the misconception disappears, the better."
The sentences imposed by her Honour were neither unfair nor unjust. The sentences were required to comprehend the objective seriousness of two not insignificant supply prohibited drug offences, together with a supply firearm offence, which occurred in the context of the illegal drug trade. In the statutory context of the maximum penalty and the standard non-parole period specified for the supply prohibited drug offences, the sentences imposed upon the applicant were not manifestly excessive. This ground of appeal has not been made out.
The order which I propose is that leave to appeal be granted but that the appeal be dismissed.
GARLING J: I am grateful to the Chief Judge for his detailed description of all of the facts and circumstances raised by this application.
The applicant does not suggest that the sentencing remarks contained any identifiable error. He only seeks to argue that the sentences imposed were manifestly excessive. As the Chief Judge's reasons show, this argument is without any merit. I would not grant leave to appeal.
But it is important to record that the sentencing Judge's remarks were a model of thoroughness and clarity. For my part, they cannot be improved upon. In dismissing this application, I am entirely content to adopt as my own the remarks of the sentencing Judge.
The application for leave to appeal ought to be dismissed.