Pannowitz v R

Factual background

1. The following summary is taken from two Statements of Facts and the Sentencing Judge's Remarks on Sentence:
2. On the morning of 24 January 2013 Senior Constable Robert Banks, Senior Constable J Chapman and Senior Constable Michael Allen were patrolling the Swansea area in an unmarked police car. They were tasked that morning to patrol specifically the area of Walsh Street, Swansea as there had been intelligence reports of drug activity in the area. Both Senior Constable Banks and Senior Constable Chapman had also previously made arrests in the area for drug related matters.
3. At about 8am on 24 January 2013 they observed a red Commodore with three occupants drive into Wallace Street and then into the driveway of a Housing Commission complex at 15-19 Wallace Street, Swansea. The officers followed the car into the driveway and observed the rear passenger, a person called Wayne Stevens, look around out the back of the car a number of times. The red Commodore then stopped out the front of unit number 12. Senior Constable Chapman had previously arrested the occupant of unit 12 for drug related matters. Senior Constable Banks had also arrested persons leaving the unit complex for drug related matters.
4. Based on the intelligence reports and the knowledge of drug activity in the area, the officers suspected that there might be drugs in the car. Senior Constable Banks activated the flashing lights. The Applicant got out of the front passenger seat. Senior Constable Banks approached and spoke to the Applicant. The Applicant said he was visiting a mate named Mark but did not know his last name. Senior Constable Banks observed that the Applicant appeared nervous, unsure and hesitant in his answers. That, in combination with the area being known for drug activity, led to the officers deciding to search the car. Senior Constable Banks asked the Applicant for some identification. He then saw the Applicant approach the front passenger side of the vehicle and lean into the car.
5. Senior Constable Chapman and Senior Constable Allen watched the Applicant walk to the front passenger door, reach into a grey backpack that was located in the front passenger footwell, remove his wallet from the backpack and return to Senior Constable Banks. When the Applicant stood up he had a wallet and gave it to Senior Constable Banks. Senior Constable Banks observed the grey Caribee backpack sitting in the footwell of the front passenger side. He saw the zipper was open and he saw a number of $50 notes sitting inside. He removed the backpack and asked who owned it. The Applicant and the other two persons all denied ownership.
6. The bag was searched and inside the backpack was $6,600 in cash in $50 notes, syringes, electronic scales, 25 clear resealable bags, some personal items such as deodorant, hairbrush and mobile phone, et cetera. Inside a sunglass case was a large resealable plastic bag containing methylamphetamine, three smaller plastic bags with methylamphetamine, a black pouch that had more methylamphetamine wrapped in foil. In total there was 62.62 grams of methylamphetamine. One of the large bags was tested and returned a purity level of 88%.
7. The Applicant was arrested and taken to Belmont Police Station. At the police station the Applicant was observed having blue electrical tape on a cut on his finger. A roll of blue electrical tape was located taped to the grey backpack where the drugs were located. The Applicant declined to be interviewed.
8. The second offence occurred at about 3pm on 25 November 2013. The police attended the home of the Applicant at 70 Charlton Street, Lambton to execute a search warrant. At that time the Applicant was on bail for the first offence, bail having been granted on 4 June 2013.
9. While searching the laundry area police located a black coloured toiletry bag sitting on top of the washing machine. Police unzipped the bag and located a substantial amount of $50 notes as well as clear resealable bags containing a clear crystal substance. The Applicant was cautioned and then questioned with regard to the contents. The Applicant said, "I don't know about the drugs." He did, however, claim ownership of the toiletry bag.
10. Police removed the items from the bag which contained $4,200 in cash, two Nokia brand mobile phones, several sets of keys, a white coloured hairbrush, a small leather wallet and several clear resealable bags containing a clear crystal substance. The substance was later analysed at 40.75 grams of methylamphetamine at a purity of 80.5%.
11. The Applicant claimed ownership for the bag, one of the Nokia mobile phones and the hairbrush. At this time police also located the wallet of the Applicant on top of the bench within the dining area and, upon opening the wallet, police located $2,800 in cash, as well as a small clear resealable bag containing a clear crystal substance. In regard to the contents of the resealable bag the Applicant claimed ownership and made admissions that the contents were amphetamines for his personal use. The total cash recovered was $7,000.
12. An ice cream container and a small brown box with numerous packets containing small clear plastic resealable bags and two digital sets of scales on a bench were found within a shed at the premises. Police continued a search of the shed and the carport of the premises and found a number of goods being a black coloured Dell brand laptop computer, a black coloured Asus brand laptop computer, two leather cases containing a XII Commonwealth Games Brisbane 1982 coin collection and a large quantity of electric battery and power tools. Many of the items appeared to be brand new and still in their boxes or with tags attached. Police also located in the shed a silver coloured Taser that looked like a mobile phone. Police activated the device which appeared to be functioning.

Subjective matters

1. The Applicant gave evidence at the sentencing hearing. In addition, there was a detailed and lengthy report from a forensic psychologist, Ms Caroline Hare, who met with the Applicant on 5 December 2014. The Applicant said in his evidence that Ms Hare had correctly recorded what he told her and he had told her the truth. The evidence that he gave at the sentencing hearing was consistent with what Ms Hare had reported.
2. The Sentencing Judge provided a lengthy summary in his Remarks of Ms Hare's report. What follows is largely taken from those Remarks.
3. The Applicant was born on 13 June 1970. At the time of sentencing he was aged 44.
4. Ms Hare was of the view the Applicant's mood was stable throughout the meeting with no evidence of psychopathology. The Applicant described to her a difficult upbringing, being the youngest of six children. When he was aged between 2 and 9 years his father spent time in custody. The Applicant did not visit his father and was unable to develop a relationship with him. There was no improvement in the relationship after his father's release and that led to his feelings of anger and resentment and an ongoing tumultuous relationship with his father punctuated by verbal arguments. Having worked for his father, he walked out following disputes between them.
5. He described a positive relationship with his grandmother but frequent absences of his mother from the family home when she was working. When aged 12 his parents separated, and he remained living with his mother, relocating to an area where he was exposed to negative peers because of the absence of constant supervision by his mother. He became increasingly enmeshed in the antisocial subculture engaged in by his newly formed negative peers.
6. He went to reside with his older brother in Scone for a period of time leading to disagreements between himself and his mother during his teenage years, and he described the relationship with her going downhill. He described the death of his grandmother. He did not manage his grief well and misued illicit substances to cope. He denied exposure to sexual or physical childhood abuse beyond infrequent physical discipline. The Applicant estimated that since the age of 18 he had spent a total of eight years residing in the community, the remainder of the time being spent in prison.
7. He set out an educational and vocational history, attending some five high schools, engaging in physical fights with other students and verbal altercations with teachers. He was engaged in frequent truanting, and attended school drug-affected which resulted in suspensions. He changed high schools, which he maintained prevented him forming enduring friendships. The last year at school he completed was Year 10.
8. On release from his first custodial sentence he worked at his father's demolition business for approximately two years, which coincided with the development of his present relationship and the birth of their first daughter. This was the last extended period of relative stability which he had achieved within the community. He described having worked periodically for his father over the years and difficulty achieving employment when released from custody, which appears to have continued to manifest itself on the many times thereafter that he has been released from custody. He endorsed a mindset that the world was out to get him.
9. Ms Hare was of the view that the Applicant would require considerable support to complete forms, secure appropriate identification, prepare for the interview process and develop appropriate time-management and budgeting skills, and in her view he would require support to develop these areas prior to release if he was to break the cycle of crime and imprisonment that had dominated his adult life.
10. The Applicant is currently still in the long-term relationship with his partner of 25 years. They have known each other from high school and had developed a romantic relationship when the Applicant was 19. The Applicant described his partner as a very strong individual who maintained a pro-social lifestyle and did not engage in misuse of substances, and having been primarily responsible for the raising of their four daughters, currently aged 23, 20, 16 and six.
11. He identified difficulties in being emotionally intimate with his partner due to his long history of residing in custody and blocking out thoughts of family. Apart from his immediate family, the only persons he knew were from gaol. He was able to confide in other inmates in custody and it apparently caused him difficulties when he was released because there was no one there to listen. Ms Hare noted that he avoided sharing his problems with his partner because he perceived that she had enough to deal with and he felt guilty if he burdened her with his own problems.
12. He commenced using alcohol at the age of 12 and ceased consuming alcohol in his early 20s. He commenced taking cannabis at about the same time until about the age of 17 years because he did not like the down feeling that it provided. He commenced using amphetamines at the same age when one of the older persons with whom he was mixing injected him with amphetamines. After 12 months he was engaged in daily usage. Such usage had been declining between the ages of 19 to 21 and he had consistently maintained abstinence within gaol over the years despite the availability of substances. He described this as a part of a pattern of behaviour he created for himself in gaol. He said the pressure was off in gaol and that allowed him to maintain abstinence.
13. He said he had completed a number of educative SMART Programs that had been ineffective and had not addressed his underlying deficits in core living skills which ultimately caused him distress within the community. His inability to manage these situations and emotions led to his relapse and the substance abuse. He said that he engaged in problematic gambling, smoking up to 50 grams of tobacco each week, and drinking a lot of caffeine.
14. Ms Hare also thought that in conjunction with substance misuse intervention the Applicant would benefit from access to psychological intervention to help him effectively manage his emotions, including frustration, concerns regarding protection, anxiety and panic. She thought that within custody he should be referred to the centre psychologist to address this area. In the community a referral to a psychologist could be made via a general practitioner or referral under the Medicare guidelines. She was of the view that upon release gaining employment would provide Mr Pannowitz with a meaningful and structured way to spend his time within the community and promote positive feelings of self-worth as well as providing him a reliable income and bring him into contact with more positive supports.

The Applicant's criminal record

1. The Applicant has a criminal record extending back to January 1984 when he was 13 years of age. He was given an 18 months recognisance at that time for attempted stealing.
2. Apart from drug offences the matters in respect of which the Applicant has been convicted include driving and property offences with a number of convictions for break and enter in respect of which he has been in prison, as well as three offences of assaulting a police officer in the execution of his or her duty.
3. His history of drug offending is of most significance. On 24 March 1988 when he was aged 17 he was convicted of possessing a utensil for the administration of drugs and self-administering a prohibited drug. On 13 January 1995 and on 7 September 1998 he was convicted on each occasion of possessing a prohibited drug.
4. On 28 November 2001 he was imprisoned for six months for supplying an indictable quantity of a prohibited drug not being cannabis.
5. On 17 February 2004 he was imprisoned for one month for possessing a prohibited drug. On 4 June 2007 he was sentenced to a non-parole period of one year and four months with an additional term of 11 months for supplying a prohibited drug. He was released on parole on 2 May 2008. During his parole period he was charged again with both possessing a prohibited drug and supplying an indictable quantity of a prohibited drug not being cannabis. On the supply charge he was sentenced on 15 May 2009 to a non-parole period of two years and ten months with an additional term of 12 months. He said the parole authorities would not release him because he was institutionalised. The Applicant in fact served the full sentence and was released on 7 November 2012.
6. The first of the offences the subject of the present application for leave to appeal was committed on 24 January 2013. The Applicant was released on bail in respect of count 1 and was then arrested and charged with the second count on 25 November 2013.

Ground 1: Totality

1. In his Remarks on Sentence the Sentencing Judge said (ROS 14.5): I have regard to totality because of the two matters, notwithstanding the second offence is totally removed from the first, committed in the circumstances where he had been released on bail from the first.
2. The Applicant submitted that, despite that statement, his Honour did not expressly consider principles arising from Pearce v The Queen (1998) 194 CLR 610 "in any principled fashion". The Applicant submitted that the degree of partial accumulation was too extreme given the nature of the offences. The Applicant did not submit that there should have been no accumulation, having accepted at the sentencing hearing that there had to be a partial accumulation by reason of two very distinct acts.
3. As the Applicant acknowledged the matter of the extent of accumulation is a matter of judicial discretion made in accordance with established principle: R v Hammoud [2000] NSWCCA 540; (2000) 118 A Crim R 66 at [7]. In Regina v XX [2009] NSWCCA 115 Hall J (with whom Tobias JA and Kirby J agreed) set out at [52] a number of propositions that his Honour said could be derived from the case law. Those propositions focused on a consideration of the similarity, differences and the degree of connection between the offending both in time and type to ascertain the extent to which the sentence for one offence can comprehend and reflect the criminality of the other. To those matters may be added a need to ensure public confidence in the administration of criminal justice to avoid the perception that an offender will not be punished more severely for committing multiple offences: Khawaja v R [2014] NSWCCA 80 at [24]-[25] following R v Harris [2007] NSWCCA 130; (2007) 171 A Crim R 267 at [46].
4. Because the determination of accumulation and concurrency is a matter of discretion the Applicant is required to show a House v The King (1936) 55 CLR 499 error. No such error was identified apart from the submission that the extent of the accumulation was too great.
5. It is clear that the Sentencing Judge had regard to the principle of totality. It was not necessary for him specifically to refer to Pearce. Nor is it apparent what else needed to be said. The Applicant submitted that his Honour should have exposed his reasoning for the view he came to about accumulation. However, this aspect of sentencing is as much a matter of instinctive synthesis as the selection of an individual sentence.
6. His Honour accumulated the sentence for count 2 by one year and 11 months on the sentence for count 1. Thereafter the Applicant was required to serve a non-parole period of three years. That was a discretionary decision. In circumstances where the Applicant had earlier three times been convicted of supplying a prohibited drug and where count 2 was committed whilst he was on bail for count 1 there is nothing in the extent of the accumulation that even faintly suggests that the discretion miscarried.
7. I would not uphold this ground.

Ground 2: Sentence manifestly excessive

1. His Honour considered that the notional starting point in respect of count 1 would be a sentence of five years imprisonment. The plea in respect of that offence was only entered after the trial was not reached. A discount of 10% for the utilitarian value of the plea was extended.
2. In respect of count 2, which included the taking into account of four matters on a Form 1, his Honour said the notional starting point would be six years and four months. That was reduced by 25% for an early plea in the Local Court.
3. The Sentencing Judge found that count 1 was in the mid-range of objective seriousness and in respect of count 2 found that "because of the matters (sic) of aggravation" it was well above the mid-range.
4. The Applicant submitted that the only matter of aggravation identified in respect of count 2 was the fact that the Applicant was on bail at the time. The Applicant submitted that the Sentencing Judge's statement (at ROS 8.5) that: "… the offender has continually, when at liberty, engaged in the supply of drugs of addiction for reward" was not established. Rather, he had been convicted of supply offences in 2001, 2007 and 2008.
5. The Applicant submitted that the Sentencing Judge had placed undue weight on R v Roby [2003] NSWCCA 242, an authority relied upon by the Crown at the sentencing hearing, and made no reference to the cases or the statistics referred to by the Applicant's counsel. However, his Honour makes no mention of this case and the sentences he imposed were more lenient than even the reduced sentence ordered by this Court in Roby. It is not apparent, therefore, that his Honour placed any weight on it.
6. Counsel for the Applicant in this Court made reference to the decisions of Stanton v R [2008] NSWCCA 326, Huynh v R [2008] NSWCCA 216 and Wicks v R [2012] NSWCCA 208 to suggest that by reference to the sentences in those cases in similar circumstances, the sentences in the present case were manifestly excessive. The Applicant submitted that, accepting that statistics are a blunt tool, the individual sentences on counts 1 and 2 each fell within the top 10% of all sentences imposed. The Applicant submitted that those cases and the statistics demonstrate that the starting points for the two counts in the present matter were starkly out of step with an identifiable range notwithstanding the Applicant's record.
7. The cases relied upon by the Applicant do not provide assistance. In each of Stanton and Wicks the Applicant appealed against the sentences imposed seeking a reduction on the grounds of parity with a co-offender. In Wicks that application was refused and in Stanton the sentence was reduced but solely by reason of the disparity with the co-offender. In Huynh this Court dismissed the Applicant's appeal which raised issues relating to special circumstances and that the sentence was manifestly excessive. Nothing said in any of those cases provides any indication of what an appropriate sentence might be in a case like the present. Somewhat ironically in Huynh Johnson J (with whom Allsop P and Price J agreed) said at [61] : … The practice of approaching sentencing appeals by a search for, and comparison with, sentences passed in other cases, is neither helpful nor supported by authority: R v Morgan (1993) 70 A Crim R 368 at 371; R v George (2004) 149 A Crim R 38 at 47 [48]-[49]. See also in that regard Dang v R [2014] NSWCCA 47 at [55], Pham v R [2014] NSWCCA 1115 at [57] and Vandeventer v R [2013] NSWCCA 33 at [45].
8. The statistics do not assist the Applicant. The sentences imposed fall within the range of those statistics, albeit they are at the upper end.
9. The Applicant submitted that his Honour made no findings about the Applicant's subjective case except that he found the Applicant to be remorseful but impermissibly dealt with that matter by the discount for the pleas.
10. A reading of his Honour's Remarks as a whole lead me to the view that his Honour accepted what Ms Hare said and also accepted the evidence the Applicant gave which, as noted earlier, was consistent with Ms Hare's report. The evidence certainly demonstrates a somewhat unsatisfactory childhood and upbringing. However, although the Applicant's counsel made reference to Bugmy v The Queen [2013] HCA 37; (2012) 249 CLR 571 little that was discussed in that case has any application to the present case
11. The Applicant's childhood and adolescence did not involve any form of abuse nor of abandonment by his parents. Alcohol and drugs were not features of his home life. Whether he should be regarded as being addicted to drugs was unclear on the evidence. The Applicant himself says that he remains abstinent, by choice it appears, from drugs whilst in prison, despite their availability yet he was using every day when not in prison. There was no psychiatric diagnosis of the Applicant nor any conclusion from Ms Hare about his drug use other than his need for treatment and therapy to address drug and other issues.
12. There must be set against his background and his drug use the fact that he has been in a relationship for some 25 years and has four children to a woman who has stood by and supported him, and who is not involved in the drug scene nor in any criminal nor anti-social behaviour. His mother, sister and adult daughter were present in support at the sentencing proceedings.
13. It may be accepted that the only matter of aggravation identified by the Sentencing Judge in relation to count 2 was the fact that he was on bail at the time of its commission. There is no ground challenging his Honour's determination that the second offence was "well above the middle of the scale" of objective seriousness although that determination is submitted as forming an explanation for the manifestly excessive sentence. The commission of this offence while on bail, and in the light of the Applicant's criminal history, was a seriously aggravating factor. Further, four matters, only one of which could be regarded as not serious, were taken into account on a Form 1.
14. His Honour's statement that the offender had continually when at liberty engaged in the supply of drugs of addiction for reward is difficult to dispute when in periods outside prison totalling two and a half years from the time of his conviction on 28 November 2001 until the commission of the offence constituted by count 1 he had supplied drugs on four separate occasions. When the offence in count 2 is added the statement was entirely justifiable.
15. The Applicant's counsel also drew attention to the weight of the drugs to suggest that his Honour should have had regard to the fact that the weight on each occasion was well below the top of the indictable range when he assessed objective seriousness. Apart from the fact that this submission was not made to the Sentencing Judge and there is no ground of appeal (as has been noted) challenging the assessment of objective seriousness, the weight of the drug was of less significance in the present case. This was not a single offence committed for the first time where the weight and purity might have more significance. These offences were the fourth and fifth time the Applicant had been charged with supplying drugs. The charges on the Form 1 certificates tended to suggest an ongoing and well-organised drug supply business. In those circumstances the weight of the drugs which happened to be found in the possession of the Applicant at the time of each search is of far less significance.
16. In my opinion the Applicant does not demonstrate that either of the sentences nor the overall sentence was manifestly excessive.

Conclusion

1. I propose the following orders: (1) Leave to appeal granted. (2) Appeal dismissed.
2. Beech-Jones J: I agree with Davies J.

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