Postlewaight v R

Court of Criminal Appeal (NSW)|2007-08-02|Before: Tobias JA, Latham J, Mathews AJ, Tobias AJ

CITATION: Postlewaight v R [2007] NSWCCA 230

JUDGMENT OF: Tobias JA at 1; Latham J at 2; Mathews AJ at 3

DECISION: 1. Leave to appeal granted. 2. Appeal allowed. 3. The sentence imposed by Sweeney DCJ on 13 October 2006 quashed. 4. In lieu, a sentence to imprisonment consisting of a non-parole period of one year, to date from 8 October 2006 and to expire on 7 October 2007, with an additional term of two years, to commence on 8 October 2007 and to expire on 7 October 2009.

CATCHWORDS: Sentencing appeal - plea of guilty to being knowingly concerned in the supply of cocaine - applicant's role in offence overestimated by sentencing judge - sentence above normal range for this offence - sentence manifestly excessive

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985

COUNSEL: P Boulten SC (Appl) J A Girdham (Crown)

SOLICITORS: William O'Brien Solicitors (Appl) Director of Public Prosecutions (Crown)

IN THE COURT OF CRIMINAL APPEAL 2007/894

TOBIAS JA LATHAM J MATHEWS AJ

THURSDAY 2 AUGUST 2007 JEREMY GEORGE POSTLEWAIGHT v R Judgment 1 TOBIAS AJ: I agree with Mathews AJ. 2 LATHAM J: I agree with Mathews AJ. 3 MATHEWS AJ: The applicant seeks leave to appeal against the severity of a sentence imposed by Sweeney DCJ at the Sydney District Court on 13 October 2006. Her Honour sentenced the applicant to imprisonment comprising a non-parole period of three years, to commence on 8 October 2006, with a balance of one year. This followed the applicant's plea of guilty to one count of being knowingly concerned in the supply of a prohibited drug, namely 5.2 grams of cocaine, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985. Two other offences under s 25(1), each concerning 28.4 grams of cocaine, were taken into account by her Honour on a Form 1. 4 In sentencing the applicant, her Honour had regard to a relatively brief statement of facts, a statement made by a co-offender Saxon Ball, and the transcript of several intercepted telephone conversations involving another co-offender, John Kazzi. 5 From these documents the following facts emerged. In the second half of 2004 Ball started to purchase quantities of cocaine, generally in one ounce lots, from Kazzi. The cocaine was partly for his own use, Ball said, and partly for resale. The usual pattern was for the transaction to take place at Kazzi's apartment at Bondi. However on three occasions, in January and February 2006, Kazzi arranged for Ball to drive his car to a particular place at a specified time. On each of these occasions the applicant went to Ball's car and placed in it the quantity of cocaine which Ball had previously arranged to purchase from Kazzi. There was no conversation between them except, on the first occasion, when the applicant asked "You Sax?" and Ball responded "Yep". 6 On the third of these occasions, on 17 February 2006, the amount delivered was 85.2 grams, or 3 ounces, of cocaine. It was this transaction which constituted the offence to which the applicant pleaded guilty. The two earlier transactions, which involved the delivery of 28.4 grams, or one ounce, of cocaine were taken into account under Form 1. On none of these occasions did Ball give the applicant any money. 7 In addition to these rather sparse facts, her Honour had a considerable body of material before her relating to the applicant's personal circumstances. This consisted of a report from the Probation and Parole Service, a report from a forensic psychologist Tim Watson-Munro, a report from Waverley Drug and Alcohol Centre, and references from various people who knew the applicant, including some of his previous employers. Two of his previous employers also gave evidence on his behalf during the sentencing proceedings. 8 From this material the following picture emerges. At the time of sentence, the applicant was 29 years old, having been born on 22 April 1977. When he was about 8 years old his parents separated. He moved to New Zealand with his father. However when he was about 13, his father started a relationship with a woman with whom the applicant did not get on, so he returned to Australia to live with his mother. It is clear that his mother had significant problems relating to depression and drug abuse. Indeed when the applicant returned to live with her in 1991, she was on a bond in relation to two charges of supplying cocaine. 9 The applicant left school after completing the School Certificate. He later undertook a number of courses in various subjects such as tourism, hospitality and security operations. He has worked in various different capacities, including as a builder's labourer, a car wholesaler, a driver, a maintenance worker, a security officer and others. At the time of his sentencing he had commenced his own property maintenance business. 10 The applicant's only previous conviction was for a drink driving offence in 2003. For about four years before his sentencing he had been in a close and supportive relationship with a woman who worked in the fashion industry. They had bought an apartment together and were planning to marry, but these plans were put on hold when the applicant was arrested. His partner remains fully supportive of him and they intend to continue their relationship and get married after his release. 11 The psychologist, Mr Watson-Munro, noted in his report dated 9 October 2006 that the applicant had long standing symptoms of depression and anxiety. Mr Watson-Munro considered that this related, at least in part, to his problematic childhood, which was characterised by an absence of appropriate parental supervision and role modelling. At about the age of 17 the applicant started to take cocaine. His addiction to this drug continued until shortly before his sentencing. Mr Watson-Munro attributed his drug addiction to his other psychological problems arising from his dysfunctional childhood. He considered that there was a direct nexus between the applicant's drug addiction, his impairment of judgement and the offences which were before her Honour. After the applicant was charged in relation to these offences he started attending counselling sessions at the Waverley Drug and Alcohol Centre. This was the first time he had taken positive steps to address his drug addiction. A very favourable report from the Centre was put before her Honour on sentence.

12 Returning to the offence itself: it was submitted to her Honour on behalf of the applicant that his conduct fell into the lower end of the spectrum of offences of knowingly taking part in the supply of prohibited drugs. Her Honour declined to accept this. She found that he was in the middle range for these types of offences. Nevertheless, she accepted that there was a causal connection between the applicant's cocaine use and his offending behaviour. This occurred in two ways: first, his drug use affected his judgement; secondly, the fact that he was a cocaine addict and needed to obtain the drug had led him to become involved with the co-offender Kazzi. Her Honour noted that the applicant was held in high regard by those who knew him and worked with him. She accepted that his remorse was genuine and that he was committed to rehabilitating himself and getting rid of his addiction. 13 It was submitted to her Honour on the applicant's behalf that a sentence of periodic detention would be adequate in his case. However her Honour found that the circumstances did not warrant this type of leniency. Nor was her Honour able to find that special circumstances existed so as to break the statutory nexus between the non-parole period and the additional term. Her Honour noted that the applicant had pleaded guilty in the Local Court. This early plea of guilty entitled him to a discount "at the maximum end of the range of discounts available for pleas of guilty." Her Honour then, as indicated, sentenced the applicant to a non-parole period of three years with an additional term of one year imprisonment.

14 Four grounds of appeal were raised before us. They are:

Her Honour erred by overestimating the objective criminality of the offence, given the applicant's role.
Her Honour erred by failing to have sufficient regard to the applicant's subjective features.
Her Honour erred by failing to find that there were "special circumstances" under section 44(2) of the Crimes (Sentencing Procedure) Act 1999.
The sentence is manifestly excessive. 15 In support of the first ground Mr Boulten SC, on behalf of the applicant, emphasised the difference between offenders who actually supply drugs and those who knowingly take part in the supply of drugs by others. In this case there was a marked difference between the principal offender, Kazzi, who was the person who supplied the drugs to Ball, and the applicant, who delivered them to Ball at Kazzi's direction. Given that the applicant's role was limited to that of a delivery person, coupled with her Honour's finding that his cocaine addiction was closely connected to his participation in this crime, Mr Boulten urged that her Honour should have concluded that the applicant's objective criminality was in the lower half of the spectrum. 16 It can sometimes be very difficult to identify the point on the spectrum of criminality which an individual occupies by virtue of his or her involvement in the supply of drugs. Her Honour gave, as her reason for putting the applicant into the mid-range of criminality, the quantity of cocaine which was involved in the three transactions, the fact that the applicant's role was an essential one in the delivery of cocaine from Kazzi to Ball, and the fact that there was no evidence as to what benefit the applicant was to receive for his part in these transactions. It must also be remembered that the applicant himself was addicted to cocaine. On one level it could be seen as the drug dealer, Kazzi, utilising the services of a person whose addiction to the drug made him particularly vulnerable. Accepting, as her Honour did, that the applicant's addiction was directly related to his offending, I consider that he should have been placed in the lower end of criminality in relation to this offence. Accordingly, in my view, the first ground has been made out.

17 I turn to the second ground of appeal, namely that her Honour failed to have sufficient regard to the applicant's subjective features. As Mr Boulten pointed out, a very strong subjective case was put before her Honour on sentence. With the exception of a drink driving offence, the applicant had an impeccable record. He was a hard-working responsible man who was highly regarded by those who knew him. His major problem, which was directly related to his offending, was his cocaine addiction. The psychologist considered that this addiction was probably a response, in the absence of more appropriate treatment, to the applicant's other problems of depression and anxiety, arising from his difficult childhood. In any event the applicant had, by the time of sentence, been drug-free for some months. It was suggested under this head that the sentence which her Honour imposed did not reflect the applicant's favourable subjective circumstances.

18 At this point, this second ground becomes inextricably linked with ground 4, namely that the sentence was manifestly excessive. I shall resume my discussion of it when dealing with that ground. 19 The third ground of appeal is that her Honour erred in failing to find that there were special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999. Her Honour was asked to find special circumstances on the basis that the applicant had not previously served a custodial sentence and that there was a need for an extended period of supervision to ensure his continued rehabilitation. Her Honour rejected this submission in the following terms: "In my view, Mr Postlewaight's circumstances do not demonstrate special circumstances. He has made a significant step towards rehabilitating himself, but in my view, it has not been demonstrated that there is a need for him to have a longer period of supervision on parole in order to be supervised and continue that rehabilitation process." 20 Mr Boulten submitted that her Honour erred in failing to find special circumstances, given the unusual features of the applicant's background and the need for a long period of supervision to assist in the completion of his rehabilitation. 21 On the other hand, as the Crown's submissions pointed out, a finding of special circumstances under s 44(2) is a discretionary matter, and specific error needs to be shown before such a finding will be overturned. No such error has been demonstrated in this case. The fact that other judges might have found special circumstances in similar situations is insufficient for this purpose. 22 Mr Boulten implicitly recognised this difficulty by linking this ground with the fourth ground, namely that the sentence was manifestly excessive. He submitted that the features of the applicant's case which were relied upon to constitute special circumstances should at least have been taken into account by her Honour in reducing the overall sentence. However the nature of that sentence indicates that her Honour must have failed to do so. 23 This takes me directly to the fourth ground of appeal, namely that the sentence was manifestly excessive. This was the nub of the applicant's complaints in relation to the sentencing process. 24 The applicant, it will be remembered, had entered a plea of guilty in the Local Court. Her Honour did not precisely quantify the discount attributable to this plea. However she noted that, given that it was an early plea of guilty, he was entitled to a discount "at the maximum end" of the range of discounts afforded by reason of pleas of guilty. Applying, then, a notional discount of 25 per cent, her Honour's starting point must have been a total sentence of five years and four months with a non-parole period of four years. 25 Mr Boulten took us to sentencing statistics relating to prison sentences imposed between January 1999 and December 2005 in relation to supplying cocaine of less than the commercial quantity. Of the 62 cases which made up these statistics, 53 of them (or 85%) involved sentences of three years or less. 55 of them (or 89%), involved non-parole periods of two years or less. Of these latter, the great majority (48) comprised non-parole period of 18 months or less. There were no sentences of more than five years or non-parole periods of more than three years and six months. 26 Whilst I acknowledge the inherent difficulties in relying on sentencing statistics such as these, it does appear that her Honour's starting point, of a total sentence of five years and four months with a non-parole period of four years, was outside the general pattern of sentencing for offences of this nature. In any event, quite apart from the statistics, I consider that the sentence imposed by her Honour was well beyond the appropriate range, given the relatively minor role played by the applicant in these drug transactions, together with the powerful subjective considerations and the strong steps already taken towards his rehabilitation. 27 I would accordingly uphold this ground of appeal and allow the appeal against sentence. The applicant therefore comes to be re-sentenced.

28 We were handed an affidavit of the applicant dated 11 July 2007 in which he referred to the difficulties he has experienced in gaol. He is currently in Cessnock Correctional Centre. It has been difficult for his fiancé and his family and friends to travel to Cessnock to visit him. The business he had commenced before his arrest has now collapsed. He said that during this time in custody he has remained committed to rehabilitation and that he wants to ensure that he remains drug-free. For this purpose he has undertaken a number of programs in prison to address his alcohol and drug problems.

29 In my view the applicant's background, including his drug addiction, and his strong attempts to rehabilitate himself, for which he will need considerable support upon his release from prison, combine to constitute special circumstances under s 44(2). Bearing in mind all the matters that I have already ventilated in these reasons, I would sentence the applicant to a non-parole period of one year, to date from 8 October 2006, with an additional term of two years. 30 The orders I propose are:

Leave to appeal granted.
The appeal be allowed and the sentence imposed by Sweeney DCJ on 13 October 2006 be quashed.
In lieu thereof the applicant be sentenced to imprisonment consisting of a non-parole period of one year, to date from 8 October 2006 and to expire on 7 October 2007, with an additional term of two years, to commence on 8 October 2007 and to expire on 7 October 2009. **********

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