PETTERSON, Benjamin v R

Court of Criminal Appeal (NSW)|2013-05-14|Before: Hoeben CJ, Hall J, Davies J

Judgment 1HOEBEN CJ AT CL: I agree with Hall J. 2HALL J: The applicant, Benjamin James Petterson, seeks leave to appeal against sentences imposed on him by the District Court on 7 August 2009. In the application he relies upon a single ground of appeal in the following terms: "The Applicant has a justifiable sense of grievance due to the disparity of the sentence imposed upon the Applicant and those imposed upon the co-offenders Mark Garcia and Philip Lindsay Matthews." 3The Crown observed that, given that the application for leave to appeal had been lodged on 18 December 2012 (over three years after the applicant was sentenced), an extension of time for the application for leave to appeal was required. In support, the applicant relies upon his own affidavit sworn 17 December 2012. 4In the circumstances of the case the Crown did not oppose the extension of time sought. Accordingly, the applicant should be granted an extension of time for the purposes of bringing the present application for leave to appeal.

The Offences 5The applicant was sentenced in the District Court with respect to four offences as follows:

Escape from lawful custody.
An offence of break enter and steal pursuant to s 112(1) of the Crimes Act 1900 together with, on a Form 1, an offence of take and drive conveyance and possess prohibited drug.
An offence of knowingly taking part in the manufacture of a prohibited drug on 26 July 2008 pursuant to s 24(1) of the Drug Misuse and Trafficking Act 1985.

Ground of Appeal - The Applicant has a justifiable sense of grievance due to the disparity of the sentence imposed upon the Applicant and those imposed upon the co-offenders, Mark Garcia ("Garcia") and Philip Lindsay Matthews ("Matthews")

Preliminary Observations 8Before considering the parity ground, it is noted that Garcia and Matthews did not face the same charges in respect of which the applicant was sentenced. They were prosecuted separately by the Commonwealth Director of Public Prosecutions in relation to a charge of importing a commercial quantity of the border controlled precursor, pseudoephedrine, concealed in a water pump which was subsequently delivered to the applicant intending that he or another person use it to manufacture a controlled drug. 9Both of the co-offenders were sentenced some years after the applicant's sentence hearing.

Co-Offender Matthews 10Matthews was charged with a single offence, being an offence under s 307.11(1) of the Criminal Code (Cth). An offence under that provision carries a maximum penalty of 25 years imprisonment. The importation charge was the only charge faced by Matthews. After Matthews was found guilty at trial he was sentenced in the District Court, by Tupman DCJ, on 23 January 2012 to a total term of imprisonment of 7 years and 6 months with a non-parole period of 4 years and 6 months. 11Matthews was the principal and organiser in the importation of the pseudoephedrine secreted in a water pump. He was not charged in relation to any manufacturing process (as was the applicant). Accordingly he was dealt with solely on the basis that he had imported a commercial quantity of precursor with the intention that he or another would use it in the manufacturing process with which the applicant was concerned. The pseudoephedrine imported was in fact never used in any manufacturing process because it had been intercepted by the Australian Customs Service and substituted with an inert substance. 12In the applicant's case he was, as noted above, charged with the abovementioned manufacturing offence under s 24(1) of the Drug Misuse and Trafficking Act (see [6] above) as well as an offence of attempt to possess the precursor to be used in manufacture contrary to s 24A(1) of the Drug Misuse and Trafficking Act. 13In her remarks on sentence the sentencing judge noted that Matthews and Garcia travelled to Thailand from Sydney and returned on 14 June 2008. It was there that Matthews decided to acquire the tablets containing pseudoephedrine and then import them into Australia so that they could be used to manufacture methylamphetamine. 14The sentencing judge did not accept the submission that Matthews' role was equal to that of Garcia. Although Garcia stood to gain financially from his involvement in the offence and took out a loan of $25,000 for initial funding of the venture, the sentencing judge determined that the evidence established that these matters were done by Garcia under Matthews' supervision. Matthews was found to have been the organiser for financial gain of the importation. There was a significant level of planning and organisation involved in the offence.

Co-Offender Garcia 15Garcia pleaded guilty to the lesser offence of aiding and abetting Matthews in the importation of a commercial quantity of precursor (pseudoephedrine) secreted in the water pump. 16Garcia also pleaded guilty to the State offence of knowingly taking part in the manufacture of methylamphetamine at a property in Ariah Park. This was the location of the site where the applicant was initially apprehended by police from whose custody he soon after escaped. 17Garcia was not present at the property when police arrived. Garcia's involvement appears to have been established by a number of items found and which were linked to him. These included personal identification documentation. In addition, Garcia's fingerprint was also found on an item at the laboratory at the site. His role is discussed at 47-(8) below. 18Garcia was sentenced on 10 February 2011 in the District Court, by Tupman DCJ, to a total term of 4 years imprisonment with a non-parole period of 2 years and 6 months in relation to the importation offence. 19An entirely concurrent sentence of 3 years and 2 months with a non-parole period of 2 years was imposed in relation to the offence of knowingly taking part in the manufacturer of methylamphetamine.

THE APPLICANT 20The charge against the applicant under s 24(1) of the Drug Misuse and Trafficking Act related to activities associated with the manufacture of a prohibited drug at Ariah Park on 26 July 2008, the day of his arrest. 21The charge of attempting to possess a precursor for the use in the manufacture of a prohibited drug was committed by the applicant on 29 July 2008. 22The applicant's offence of knowingly taking part in the manufacture of a prohibited drug carried a maximum penalty of 15 years imprisonment. In respect of the offence of attempting to possess a precursor for use in the manufacture of a prohibited drug, the offence carried a maximum penalty of 10 years imprisonment. 23Following his arrest on 26 July 2008, the applicant managed to escape. He was charged with an offence of escape police custody in relation to this conduct. After escaping, the applicant then proceeded to break into a nearby farm. He stole the key to a utility vehicle and drove away after using an angle-grinder to cut through the links that joined his handcuffs. This conduct formed the offence of break, enter and steal with a charge of take and drive conveyance on a Form 1. 24At the manufacture site at Ariah Park, police found a glass reaction flask which contained a quantity of yellow translucent liquid of 450 millilitres. Amongst the various items discovered were chemicals necessary for the manufacture of methylamphetamine and 52 grams of a substance later field tested as being a prohibited drug, pseudoephedrine, a substance that is essential to the manufacture of methylamphetamine. 25Investigators believed, on the basis of observations made and having regard to the items located, that the initial stages of the manufacture of methylamphetamine had been undertaken. 26At the time of the relevant offence, the applicant was on parole in relation to an offence of armed robbery. As discussed below, this was a serious aggravating factor. 27In relation to the offence of attempt to possess a precursor for use in the manufacture of a prohibited drug, as noted above at [11] the Australian Customs Service had seized a quantity of powder weighing 12.64 kilograms which was found to be partially pseudoephedrine. It was hidden in what was a high-pressure water pump. Officials inspected it and substituted an inert substance for the powder. 28The pump was ultimately delivered in a wooden crate to premises near Temora. The applicant was on hand to take possession of the crate and ultimately was involved with another man in dismantling the crate and removing the water pump. 29He managed to dismantle the water pump to retrieve what he believed to be powder containing pseudoephedrine. 30The Agreed Statement of Facts establishes various actions and statements by the applicant consistent with knowledge of what was contained within the water pump, or what he believed to be contained within the water pump. 31The applicant was arrested on 29 July 2008 following the execution of a search warrant. The applicant once again attempted to escape by diving through a window but was restrained and immediately arrested. 32Authorities observed a bucket containing a quantity of white powder on the premises. The powder was the inert substance that had been substituted by the Australian Customs Service when it had discovered the pseudoephedrine. 33In the Remarks on Sentence in relation to the applicant, on 7 August 2009, Norrish DCJ noted: "In relation to the objective facts, arising from the agreed statement of facts, it is clear in relation to the manufacturing process that it was set up in a sophisticated fashion to commence the process of manufacture of methylamphetamine. There is no evidence available to me that the prisoner set it up of his volition. The prisoner was, it was conceded by the Crown, to be regarded as a hireling or a hired help in the process of manufacture and related matters. But he was clearly an important person, notwithstanding the fact that he was not an organiser. His presence at the place of manufacture no doubt was important for the security of the process and its continual operation." (Remarks on Sentence at p 5). 34His Honour went on to note that two or three days later, after the applicant's initial detection and escape, he committed the offence of attempting to possess the pseudoephedrine which, his Honour noted, was clearly an offence: "... committed in circumstances where it bears a relationship to the process of manufacturing which had commenced as at 26 July. The importation of the pseudoephedrine had occurred a number of days before. Clearly the prisoner as at 26 July was expecting the delivery of the pseudoephedrine, as no doubt other people were as well. It is not an unreasonable inference to draw that the pseudoephedrine that the accused subsequently attempted to possess was destined for the process of manufacturing or a related process which was interrupted on 26 July." (Remarks on Sentence at p 6). 35The sentencing judge observed that the circumstances of the set up of the laboratory, in relation to the manufacture offence, its isolated location, the means of delivery of the pseudoephedrine spoke of an organised criminal activity at work of which the applicant was an important player who had been given the responsibilities of looking after the process of manufacturing and taking delivery of the pseudoephedrine: Remarks on Sentence at p 7. 36Norrish DCJ noted that the applicant was 24 years of age at the time of the offences and was 25 years at the date of sentence. 37In September 2005, he had been convicted of offences involving armed robbery with an offensive weapon; breaking, entering and stealing; larceny; taking and driving a motor vehicle; receiving stolen property and supply of prohibited drugs. 38There were four counts of supplying a prohibited drug taken into account on a Form 1 when the applicant was sentenced for the armed robbery. 39In relation to the subject offences, the applicant was given a 25% discount for his guilty pleas. 40In respect of the four offences committed, the applicant was sentenced on the bases detailed in paragraph [6] above constituting an overall term of 6 years 9 months with a non-parole period of 4 years and 6 months.

Principles 41The Crown accepted that parity as a ground of appeal may apply in cases where co-offenders are not charged with (or convicted of) the same offence: Green v The Queen; Quinn v The Queen [2011] HCA 59; Jimmy v R (2010) 77 NSWLR 540. 42However, as the Crown observed, it has been recognised that there can be significant practical difficulties in comparing the sentences of participants in the same criminal enterprise who have been charged with different offences: see Green v The Queen, supra, at [30]. 43Before determining the ground of appeal relied upon by the applicant, I set out below specific aspects of the parity principle as enunciated by the High Court in Lowe v The Queen (1984) 154 CLR 606 and Green v The Queen, supra: (1) It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part he or she played in the commission of the offence, have to be taken into account: Lowe at 609. (2) The parity principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances: Green at [28]. (3) The consistency required by the parity principle is focused on the particular case and applies to the punishment of "co-offenders": Green at [29]. (4) The foundation of the parity principle requires that its application be governed by consideration of substance rather than form. Formal identity of charges against the offenders whose sentences are compared is not a necessary condition of its application: Green at [30]. (5) Nevertheless, as observed above, there can be significant practical difficulties in comparing the sentences of participants in the same criminal enterprise who have been charged with different crimes. The greater the difference between the crimes, the greater the practical difficulties, particularly where disparity is said to arise out of a sentence imposed on a co-offender who has been charged with an offence that is less serious than that of the appellant: Green at [30]. (6) In the exercise of the statutory powers of an appellate court, in appeals by convicted persons, a court may "reduce a sentence not in itself manifestly excessive in order to avoid a marked disparity with a sentence imposed on a co-offender": Green at [31] citing Lowe at 609-610. (7) The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria. The application of the parity principle does not involve a judgment about the feelings of a person complaining of disparity. The court will refuse to intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise. (8) Where there is a marked disparity between sentences giving rise to the appearance of injustice, it is not a necessary condition of a Court of Criminal Appeal's discretion to intervene that the sentence under appeal is otherwise excessive: Green at [32].

Comparative Analysis 44The co-offender Matthews was charged with one count that between 27 May 2008 and 29 July 2008 he imported a commercial quantity of the border controlled precursor pseudoephedrine intending that either he or another person would use it to manufacture a controlled drug. 45The offence was, as earlier noted, one contrary to s 307.11(1) of the Criminal Code (Cth). The offence carried a maximum penalty of 25 years imprisonment. Matthews was convicted on this charge on 18 March 2011 by a jury after a five-week trial. 46In determining the issue of "equal justice" in relation to the sentencing of the applicant and Matthews and whether or not the facts establish a legitimate or justifiable sense of grievance in the applicant in relation to the sentencing of Matthews the following matters are to be taken into account: (1) Matthews was the principal in the importation of the pseudoephedrine secreted in the water pump. However, unlike the applicant, he was not also charged with knowingly taking part in the manufacture of a prohibited drug. In other words, unlike the applicant who was sentenced on other offences as particularised in paragraph [6] above, Matthews was dealt with solely on the basis of having imported a commercial quantity of precursor. (2) The sentence Matthews received in relation to the importing of pseudoephedrine in the water pump was a period of imprisonment of 7 years and 6 months with a non-parole period of 4 years and 6 months. In contrast, the applicant's attempted receipt of the pseudoephedrine in the same water pump resulted in a sentence of imprisonment of 3 years and 9 months overall with a 3 year non-parole period. The notional starting point for that sentence (prior to the 25% discount for the applicant's plea) was 5 years (in contrast to the term of imprisonment of Matthews after trial of 7 years and 6 months). (3) The longest sentence which the applicant received was in relation to the manufacture charge being a period of imprisonment of 5 years and 3 months with a non-parole period of 3 years (this offence as earlier noted carried a maximum penalty of 15 years imprisonment). The notional starting point for that offence (prior to the 25% discount for the applicant's plea) was 7 years. A finding was made by the sentencing judge that it was likely that the water pump contained pseudoephedrine originally intended for the manufacturing processes carried out at Ariah Park. (4) The process of manufacture at Ariah Park had actually commenced prior to the receipt of the pseudoephedrine in the water pump. (5) Although the applicant faced two significant charges, one in relation to the manufacture, and the other in relation to the attempted receipt of the pseudoephedrine, the notional starting point for the applicant for both offences (7 years) was still lower than the sentence imposed on Matthews of 7 years and 6 months. (6) The applicant did not have favourable subjective circumstances. It is clear that he had been an important participant in the manufacturing operations that had commenced at Ariah Park. The sentencing judge stated that he was not a person who he could say was unlikely to re-offend in the future or even had good prospects of rehabilitation. In contrast, Tupman DCJ considered that Matthews' prospects of rehabilitation were reasonable. (7) Both the applicant and Matthews had committed their offences whilst on parole, that being a serious aggravating feature of both cases. Unlike Matthews, it was an added fact in that the applicant persisted in performing his role in receiving the water pump even after he had been arrested in relation to the manufacture offence following which he escaped from police custody. As the Crown observed "being an escapee at the time did not deter the applicant from continuing to participate only a couple of days later": Crown Written Submissions at [26]. 47In the consideration of the issue of parity in relation to the applicant's co-offender, Garcia, the following matters are to be taken into account. (1) Garcia pleaded guilty to two counts. (2) In relation to count 1 - aiding and abetting Matthews in the importation of the border controlled precursor, pseudoephedrine - Garcia was sentenced to a term of imprisonment of 4 years with a non-parole period of 2 years and 6 months. (3) In relation to count 2 - an offence of knowingly taking part in the manufacture of the drug methylamphetamine - he was sentenced to a concurrent term of 3 years 2 months imprisonment with a non-parole period of 2 years. (4) Garcia's involvement in relation to the importation offence was that he aided and abetted Matthews. He was not a principal in the enterprise. He received a combined discount of 20% in relation to his plea and assistance to authorities. He also faced a charge, similar to the applicant, of knowingly taking part in the manufacturing process at Ariah Park. (5) Garcia was known to be a person with knowledge and expertise in cooking methylamphetamine from pseudoephedrine. He had travelled with Matthews to Thailand and Nepal together in May 2008, returning on 13 June 2008. The purpose of that trip was to assist Matthews in arranging for the acquisition of the pseudoephedrine and to organise its shipping to Australia knowing that it was to be used in the manufacture of methylamphetamine. (6) Garcia also assisted Matthews acquire the prohibited drug and in the arrangements to import it and place it in the water pump. (7) He attended at the post office to send money through to the shipping agents to have the water pump cleared through customs. On 26 July Garcia went to Ariah Park and gave some instructions to the applicant on how to cook the methylamphetamine. The police raid took place shortly thereafter. (8) In respect of the offence of knowingly take part in the manufacture of a prohibited drug, Garcia was therefore the person who had the knowledge as to how to cook methylamphetamine and who gave the instructions referred to in (7) and was the person to pass the imported substance on to the applicant. The sentencing judge, Tupman DCJ, stated that absent Garcia's guilty plea, an overall period of 4 years imprisonment would have been called for: Remarks on Sentence at p 39. (9) The Crown observed that, unlike the applicant, Garcia did not have the serious aggravating feature of being on conditional liberty at the time of his offences. (10) The applicant had been released on parole for the armed robbery offence in August 2007 and still had 1 year 5 months of the parole order left to serve at the time of committing the abovementioned offences and, as noted above, persisted in offending even after he had escaped from police custody. These features were not present in the case of Garcia. (11) Whilst Garcia had a criminal record, it did not contain prior matters with the same degree of seriousness as the applicant.

Submissions 48In the submissions for the applicant it was noted that Matthews had been found guilty in relation to a different offence to those with which the applicant had been charged. Counsel for the applicant noted, however, that formal identity of charges is not a prerequisite for the application of the parity principle: Green v The Queen, supra. 49Whilst the charges against Matthews and the applicant differed, it was submitted that it was relevant to take into account that in relation to the charge under s 307.11(1) against Matthews, that Matthews was the organiser/principal of the importation of the pseudoephedrine which the applicant attempted to possess. 50Attention was also drawn to the fact that the offence with which Matthews was charged carried a maximum penalty of 25 years as compared to the maximum penalty of the applicant's charges (respectively 15 years and 10 years). 51Some reliance was placed upon the fact that the term of imprisonment imposed upon Matthews (7 years and 6 months) was just six months greater than the starting point used by Norrish DCJ in respect of the applicant's offence of knowingly taking part in the manufacture offence (that is before a discount of 25% for the applicant's pleas). 52It was further noted that the non-parole period to which the applicant was sentenced for each of the drug matters, namely, a period of 3 years, was just 1 year and 6 months less than Matthews' sentence. 53The Crown submission was that, given the differences in the circumstances at sentencing concerning the applicant and the co-offenders Garcia and Matthews, there was no basis for any justified sense of grievance concerning the sentences imposed on the applicant arising by reason of the application of the principles of parity. As discussed below, I accept that submission.

Conclusion 54The parity issue in the present case arises in circumstances in which careful attention is to be given to the particular offences with which the applicant and his co-offenders were charged and the individual circumstances giving rise to the criminality involved in the offences. In particular, the aggravating circumstances concerning the applicant to which reference has been made above is a matter of central importance. 55Account of course, must also to be taken of the subjective matters concerning the applicant and those of his co-offenders. 56I have additionally taken into account the different maximum penalties prescribed in respect of the various offences as discussed above. 57In all the circumstances, I do not consider that grounds exist for a justifiable sense of grievance on the basis of alleged disparity of the sentences imposed upon the applicant and those imposed upon his co-offenders, Matthews and Garcia. In particular, no marked disparity has, in my assessment, been established. 58The sentence imposed on the applicant in respect of his offence of attempt to possess the imported pseudoephedrine was part of the same enterprise in which Matthews and Garcia were engaged, and clearly involved a significant level of criminality. 59Matthews was clearly the organiser and principal of the enterprise. Garcia's role was undoubtedly significant in that enterprise. 60Whilst the co-offender Matthews was sentenced on the charge of importation the applicant was charged with the two offences in respect of his involvement in both the manufacture process as well as the attempted receipt of the pseudoephedrine. Both involved a significant level of criminality. 61Although the applicant's role was less than that of Garcia in the enterprise involving Matthews, I do not consider the difference between the total term of the respective sentences or the relevant non-parole periods can be said to give rise to or represent a marked disparity. The applicant was intending to use the imported precursor in the manufacturing activities that in turn were found to form part of an organised criminal activity. Additionally, in comparison with Matthews and Garcia his subjective circumstances were very unfavourable. 62Notwithstanding the seriousness of the applicant's two offences under the Drug Misuse and Trafficking Act, the starting point in the sentencing exercise concerning the applicant was still less than the sentence imposed on Matthews. The applicant's involvement in the drug manufacturing was, as Norrish DCJ found, that of "an important player" in an operation that spoke of "organised criminal activity at work". 63Taking into account all matters discussed above, I do not consider that any marked disparity between the sentences imposed upon the applicant and his two co-offenders has been established. 64In those circumstances, I propose the following orders: (1) Order an extension of time for the filing of the application for leave to appeal. (2) Order that leave to appeal be granted. (3) Order that the appeal be dismissed. 65DAVIES J: I agree with Hall J.

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