Purdie v R

Court of Criminal Appeal (NSW)|2018-10-17|Before: Bathurst CJ, Hoeben CJ, Price J

Judgment

BATHURST CJ: I agree with the orders proposed by Price J and with his Honour's reasons.
HOEBEN CJ AT CL: I agree with Price J and the orders which he proposes.
PRICE J: Lecx Purdie ("Purdie") pleaded guilty to the following offences: 1. Supply an indictable quantity of a prohibited drug, namely, 87.32g of cocaine on 22 March 2016, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW) ("the DMTA"). The maximum penalty for the offence of supplying an indictable quantity of cocaine is 15 years imprisonment and/or a fine of 2000 penalty units. 2. Knowingly deal with proceeds of crime, namely, $39,450 on 25 May 2016 contrary to s 193B(2) of the Crimes Act 1900 (NSW). The maximum penalty for this offence is 15 years imprisonment.
His Honour imposed an aggregate term of imprisonment of 4 years 6 months, with a non-parole period of 3 years, commencing 4 September 2017 and expiring 3 September 2020, with a balance term of 1 year 6 months expiring 3 March 2022.

Factual background

The facts relevant to Purdie's involvement in the supply of cocaine on 22 March 2016 ('Deployment 4') are detailed in Assam v R [2019] NSWCCA 12 at [42]-[49].
The facts of the offence of knowingly deal with the proceeds of crime were not in dispute and may be briefly summarised.
Police executed a search warrant at a home at Stanhope Gardens on 25 May 2016. Police believed that Purdie was living in the home. During the search, $39,450 was seized from the main bedroom walk-in wardrobe hidden in jackets and shoes. Purdie's step-father informed investigators that this money was from an inheritance his wife had received from her father's estate.
The money was later compared to all eight UCO deployments carried out during Strike Force Bamberry. A total of $7,000 of the $39,450 was in fact money used by investigators to purchase prohibited drugs during Strike Force Bamberry in the second and fourth deployments. In his second deployment on 4 March 2016, the UCO had purchased 2000 MDMA tablets from Matu and Abdul. The UCO had handed $24,000 to Matu in making the purchase in Deployment 4.

Purdie's subjective case

Purdie did not give evidence before the judge but tendered a report written by Christine Webster, a clinical psychologist, and a school counsellor's report from the Barnier Primary School in 2001. A pre-sentence report was also placed before the judge.
Purdie was 23 years old at the time of the offences. He had been in a relationship with his fiancée for 18 months. Purdie was the only child of his parents. His father left when he was 5 years old but he had a good relationship with his step-father. He reported his mother provided stability in his childhood which he described as normal. He told Ms Webster that he was asked to leave his first high school in Year 8 due to his behaviour and went to another high school before finishing in Year 9. Upon leaving school, he pursued an electrical apprenticeship for three years which he did not complete. Thereafter he had been employed in numerous jobs and moved out of home when he was 18 years old. He commenced the consumption of alcohol and prohibited drugs, primarily cocaine, when he was 14 years old.
Ms Webster reported that Purdie recalled an event when he was 18 years old, where a friend's brother held a gun to his head in his own apartment. He stated that the brother then held the gun to his friend's head, and proceeded to shoot him in the head. Purdie recalled holding his friend in his arms and watching him bleed out on his apartment floor. He also reported that from the ages of 18 to 20 years he witnessed numerous violent encounters that involved guns, bashings and stabbings.
Purdie told Ms Webster that he knew he was supplying talcum powder and did not have any prohibited drugs in his possession on the night of 22 March 2016. He stated he was asked by a friend if he could supply drugs. Ms Webster reported that Purdie recalled thinking he would be able to make "some easy money" by participating in the deal; however he did not have access to prohibited drugs, and hence provided talcum powder. Purdie stated "it was a joke" in regards to supplying talcum powder to the receiver of the substance. He said he did not think he could be charged with supplying a prohibited drug as he knew it was not a prohibited drug and did not have any prohibited drugs in his possession. The psychologist reported that Purdie had expressed remorse for his behaviour and had stated he realised what he did was wrong and disrespected the law.
Purdie had been diagnosed with Attention Deficit Hyperactivity Disorder ("ADHD") when 8 years old. He was treated with dexamphetamine from 8 years old until approximately 17 or 18 years of age. A psychologist diagnosed him with Antisocial Personality Disorder when 18 years old.
Ms Webster opined that Purdie was suffering from ADHD, antisocial personality disorder, adjustment disorder with mixed anxiety and depressed mood, and posttraumatic stress disorder. However, she stated "…these need to be assessed more clearly during treatment and a more reliable diagnosis could be produced". Ms Webster concluded that Purdie was suffering from a mental disorder that made it very difficult for him to control his emotions and behaviour.
Ms Arcaba, the author of the pre-sentence report, reported that Purdie stated he was employed as a recruitment consultant for 18 months until ceasing his employment approximately 10 months ago. According to Purdie, he was a "professional poker player" and had ceased employment, due to having $100,000 in savings and winnings of $150,000 in poker tournaments. She recounted that Purdie attributed his behaviour to "not thinking" and "joking".
Ms Arcaba stated that it appeared the offence was financially motivated as Purdie had obtained the funds in exchange for the white powder which was believed to be cocaine at the time. Purdie told Ms Arcaba that he had known the co-offenders his whole life as he had grown up with them. Ms Arcaba noted that despite this, Purdie denied having any knowledge of his co-offenders' lifestyle or what they were involved in.
When discussing the offence with Purdie, Ms Arcaba reported that Purdie claimed that it was the first time he had done something like that and claimed he was "not a drug dealer". Ms Arcaba observed that Purdie could not provide a valid answer when asked why someone would approach him with a request for the purchase of prohibited substances. Ms Arcaba found Purdie to be cooperative and forthcoming with information during the assessment process. However, she considered that Purdie appeared to minimise his behaviour because the substance supplied by him was not a prohibited substance. Ms Arcaba observed that Purdie could not provide a valid reason for his offending despite taking money in exchange for what was believed to be cocaine at the time.
Purdie's prior criminal history consisted mainly of driving offences and offences relating to dishonesty. Prior to his present offending, his most recent conviction was on 30 November 2013 for goods suspected of being stolen for which he was fined $500 and placed on a section 9 bond for 12 months.

The proceedings on sentence

Purdie's counsel submitted that an Intensive Corrections Order should be imposed rather than Purdie being sentenced to a full-time imprisonment. Emphasis was placed on Ms Webster's report and to Purdie's case that he did not know what he was doing was wrong.
In an exchange with Purdie's counsel, the judge referred to the $39,450 being "substantially more than the amount that was paid for the 3 ounces of cocaine". Purdie's counsel told the judge that "not all of those funds were attracted to this particular offence". Purdie's counsel referred to Purdie's circumstances including a lack of significant prior criminal convictions, no previous drug-related convictions, his stable position and supportive parents.
The Crown called for full-time imprisonment and pointed out whilst there was no actual drug supplied; there was no evidence of what was in fact supplied. The Crown submitted that the offence was committed for financial gain. The Crown asked the judge to treat Ms Webster's report with scepticism and submitted that there was no reliability as to the psychologist's diagnoses.
The Crown argued that Purdie's submission that the offence was a "one-off" did not fit with the $39,450 which Purdie had admitted were the proceeds of crime. The Crown said: "He's got $39,450 unexplained that he admits are proceeds of crime. $7000 of that money relates to the deployment of the fake cocaine but also to another deployment from his syndicate and my submission is, your Honour, it just doesn't fit with that. It couldn't possibly be the case that this is one-off given the money that he has. This may be a one-off drug supply but it is not a one-off venture into the criminal world doing something wrong. It can't be."
The Crown referred to the pre-sentence report where it was said that Purdie could not provide a valid answer when asked why would someone approach him with a request for prohibited substances and that he had known his co-offenders his whole life.
Purdie's counsel in reply put to the judge the references in the pre-sentence report to Purdie being open and honest, the assessment of his low to medium risk of re-offending, and to his being cooperative and forthcoming.
The judge told Purdie's counsel that if he wished to attack what the Crown had said, he would: "…carefully need to address the specific points that were made by the Crown".
Following a further short submission, the judge said: "…well, do you have any other submission in relation to what the Crown has just said?" Purdie's counsel replied that he did not.

Some findings by the judge

The judge referred to Purdie's account to Ms Arcaba that he was a poker player, had ceased employment as he had won $150,000 in poker tournaments and had savings of $100,000. His Honour noted there was no mention of gambling or winnings in the psychologist's report.
His Honour referred to Purdie's account to Ms Webster but not to Ms Arcaba of a friend's brother holding a gun to his head, then to his friend's head, shooting the friend in the head and watching him "bleed out". The judge said that the prosecution had investigated this claim and without objection, stated from the bar table that it in fact related to a game of Russian roulette at a motel and the injured brother did not "bleed out". His Honour considered that there was reason to believe that Purdie was not a reliable historian and exaggerates to gain sympathy.
When referring to Ms Webster's report, the judge observed that it was so littered with statements preceded by the words "may" or "likely", as well as references to questionable validity, that whilst Ms Webster's opinion must be taken into account, it must be regarded with scepticism.
His Honour recounted passages in the pre-sentence report which included Purdie's attitude to the offences and said: "The inevitable inference is that [Purdie] was approached because it was believed by his friends that he could in fact supply cocaine." [1]
His Honour referred to Purdie's limited history of offending and said that he did not regard Purdie's past criminal offending as having any substantial significance in relation to the sentences to be imposed.
The judge went on to say: "In respect of the others directly involved in the supply of the cocaine on 22 March 2016, Abdul and Matu, it is clear that each believed in the circumstances that the UCO operative was being supplied with a prohibited drug and not a substance that was not prohibited. Obviously Abdul believed that Purdie could source cocaine, and he was trusted to make the delivery to the vicinity of the Kariong service station. Prior to the delivery, Abdul forwarded a BlackBerry text message to the UCO from "thekid13" indicating that the cocaine would come double sealed in vacuum sealed bags. Presumably "thekid13" was in fact Purdie as he claims responsibility for providing the substitute. The substance represented as cocaine was contained in three vacuum sealed 1 ounce lots, further vacuum sealed in another single bag consistent with the message Abdul described from "thekid13". Abdul further described "thekid13" as being his "factory man". Immediately after the supply to the UCO, Matu and Purdie travelled in convoy to a nearby location where Purdie's passenger alighted and went to Matu's vehicle before returning to Purdie's vehicle. Although nothing was observed to be exchanged, it is likely that Matu provided some of the funds received from the UCO to Purdie at this time. So much is implicit in the report that I referred to earlier." [2] (Emphasis added.)
The judge said that "…inevitably, complaint must have been made to Purdie by Abdul with a request for a return of any payments or a replacement". [3] His Honour observed that those involved in the drug trade who are "ripped off" or "scammed" to any substantial degree, as here, are generally inclined to violent retribution.
His Honour posed the following rhetorical questions:

Would Purdie have so scammed his friends he had known his whole life and who must have been readily able to locate him?
Would he have scammed them in respect of a substantial drug deal where he must have known they were providing fake cocaine in a substantial quantity for substantial payment to another drug dealer?
Was he prepared to see them suffer the horrible and predictable consequences of his deceitful conduct?
Was he in fact scammed himself and passing on what he believed was in fact cocaine?

His Honour observed that Purdie did not advance the story of cheating his friends until after he had been charged and after he must have known of the complaints. His Honour said that if Purdie did scam his friends it was hardly a "joke".
The judge was unable to find any acceptable evidence of genuine remorse and contrition. As it was Purdie's first major offending, his Honour found there was at least a reasonable prospect of rehabilitation and that Purdie would not reoffend if he first attends to dealing with his drug problem.
His Honour found that although the three ounces was not in fact cocaine, nonetheless the offence was serious. As to the offence of knowingly deal with the proceeds of crime, the judge noted there had been no explanation advanced by Purdie, putting aside the $7,000 of recorded buy money, as to how the balance of $32,450 related to crime. His Honour considered that it was reasonable in the circumstances to infer that it related to drug distribution.
The judge discounted each of the indicative sentences by 25 per cent for the utility of the pleas of guilty.

Ground 1: The learned sentence judge erred in denying the applicant procedural fairness

Argument

Purdie argued that the judge denied him procedural fairness by making "implicit" adverse findings of which no indication was given during the proceedings, such that he was not put on notice, not invited to respond, and not given any opportunity to respond. The "implicit" adverse findings were: 1. Inferring prior criminal conduct in finding that the "inevitable inference" was that Purdie was approached "because it was believed by his friends that he could in fact supply cocaine"; 2. Finding that the text messages sent to Abdul were referable to Purdie, without any indication by the judge; 3. Finding that it was "likely" that Matu provided funds from the UCO to Purdie after the offence; 4. Finding that Abdul "inevitably" must have complained to Purdie about the drug quality "with a request for a return of any payments or replacement"; 5. Finding that the "balance of funds" of the proceeds of crime offence were from drug distribution.
Purdie argued that facts adverse to him could not be taken into account unless they were established beyond reasonable doubt. [4] Another submission was that such findings were not open to the judge in the absence of evidence to support them.
Purdie submitted that the judge further denied him procedural fairness by making the following findings without notice and without an opportunity to respond: 1. Rejecting and/or omitting to take into account the psychologist's expert opinion, in the absence of any formal challenge or testing of that opinion; 2. Determining that a full-time custodial sentence was to be imposed prior to the delivery of judgment but failing to provide any insight into the intentions to impose such a sentence during the proceedings.
Purdie contended that a fundamental principle of procedural fairness is that a person should have the opportunity to make submissions as to his or her case, [5] to meet the case put against him or her, [6] that the judge makes known to counsel matters which may weigh in favour of a more severe sentence, [7] and that the denial of such an opportunity amounts to a denial of procedural fairness. [8]
In oral argument, Purdie's counsel Mr Turnbull SC, confirmed that Purdie's complaint was a denial of procedural fairness. He accepted that there were no grounds of appeal that specifically complained about findings of fact made by the judge that could not be proven beyond reasonable doubt. Mr Turnbull was informed that if Ground 1 was established, this Court may remit Purdie to the District Court to be re-sentenced according to law, as the essence of Ground 1 was that Purdie did not get a fair hearing at first instance. Senior Counsel did not submit that this approach was incorrect nor did he seek to amend the grounds of appeal.
The Crown argued that the adverse findings made by the judge were open to his Honour either on inferences drawn from the agreed facts or otherwise revealed by the evidence. The Crown referred to submissions made to the judge by counsel for all of the co-offenders and contended that there was no denial of procedural fairness. The Crown submitted that Purdie was not deprived of the opportunity to make submissions and his counsel had done so both orally and in writing.
The Crown said that it was anticipated that the judge would make findings adverse to Purdie in relation to his role and reject certain matters relied on in mitigation. The Crown submitted that this was not a case where the judge made findings of fact inconsistent with the agreed facts, without warning of his intention to do so. Furthermore, Purdie's counsel had the opportunity to address the judge in reply to the Crown's oral submissions.
In oral argument, the Crown submitted that the findings by the judge were directly in relation to Purdie's submission that this was a "one-off" and did not necessarily aggravate his offending. The Crown contended that the findings would inevitably follow from the agreed facts.

Consideration

A sentencing judge's task is to decide the sentence to be imposed and for that purpose, the judge is obliged to find the relevant facts. [9] Findings of fact adverse to the offender (other than those established by the plea and the statement of agreed facts) must be established beyond reasonable doubt. [10]
In finding the relevant facts, it is the responsibility of the sentencing judge to accord procedural fairness to the parties. This obligation was recently emphasised in DL v The Queen. [11] Bell, Keane, Nettle, Gordon and Edelman JJ said at [39]: "…Notwithstanding the adversarial nature of criminal proceedings, the public interest in the sentencing of offenders is such that the sentencing judge (or the appellate court in the case of re-sentencing) is not constrained by any agreement between the parties as to the appropriate range of sentence or by concessions made by the prosecutor. Where, however, the judge (or the appellate court in the case of re-sentencing) is minded not to act on a concession made by the prosecution, the failure to put the offender on notice of that inclination and give him or her an opportunity to deal with the matter by evidence or submissions will ordinarily be a miscarriage of justice. In the absence of such an indication, it will be reasonable for the offender to conduct his or her case upon the understanding that the concession will be accepted and acted upon by the court…" (Footnotes omitted.)
Where a sentencing judge is minded to make factual findings of an offenders' culpability beyond what is contained in the agreed facts, the judge must give the parties the opportunity to address that matter. In Nguyen v R, [12] Price J (Hoeben CJ at CL and Button J agreeing) said: "[45] It is well established that a sentencing judge is not bound to accept agreed facts that are presented to him by the Crown and the defence. A judge's sentencing discretion must be exercised in the public interest. A judge is not obliged to refrain from questioning facts even though they may be agreed: Chow v Director of Public Prosecutions (1992) 28 NSWLR 593 per Kirby at [606]; R v Uzabeaga [2000] NSWCCA 381 [(2000) 199 A Crim R 452)] per Bell J at [34]. [46] When a sentencing judge considers that an offender has a higher degree of culpability than detailed in the agreed facts, the judge, as a matter of procedural fairness, must give the parties an opportunity to address the judge's view: R v Uzabeaga at [35]-[38]."
Purdie's principal complaints of a lack of procedural fairness centre upon the following factual findings made by the judge: • "The inevitable inference is that [Purdie] was approached because it was believed by his friends that he could in fact supply cocaine." (See [33] above.) • "Obviously Abdul believed that [Purdie] could source cocaine and he was trusted to make the delivery to the vicinity of the Kariong service station." (See [35] above.) • "Presumably "thekid13" was in fact Purdie as he claims responsibility for providing the substitute." (See [35] above.) • "Although nothing was observed to be exchanged, it is likely that [Matu] provided some of the funds received from the UCO to [Purdie] at this time. So much is implicit in the report that I referred to earlier." (See [35] above.) • "Inevitably complaint must have been made to Purdie by Abdul with a request for a return of any payments or a replacement." (See [36] above.) • "In respect of the offence of knowingly dealing with the proceeds of crime, there has been no explanation advanced on behalf of the offender, putting aside the $7,000 of recorded buy money as to how the balance of $32,450 related to crime. In my view, it is reasonable in the circumstances to infer that it related to drug distribution." (See [40] above.)
All of these factual findings went beyond what was contained in the agreed facts. Viewed individually or in combination, they heightened Purdie's culpability and were adverse to him. Implicit in the findings were prior involvement by Purdie in the supply of cocaine, a greater level of participation and planning in the offence, a degree of sophistication in evading police, immediate financial gain and ongoing involvement in criminal conduct after the offending.
Whilst it was open to his Honour to reject Purdie's case that his offending was a "one-off" and a "joke", his Honour was obliged to raise with Purdie's counsel these adverse findings that he was minded to make, so as to give Purdie the opportunity to address those matters by evidence or otherwise.
His Honour did draw the attention of Purdie's counsel to the $39,450 being substantially more than was paid for three ounces of cocaine, but there was nothing that was otherwise said to Purdie's counsel as to the factual findings beyond the agreed facts.
During submissions made by Abdul's counsel in Abdul's sentencing proceedings, there was some discussion as to "the kid on the BlackBerry" not being Sadi and investigators witnessing an exchange between Matu and Purdie. However, in Purdie's sentencing proceedings, the Crown did not submit that "thekid13" was Purdie and the judge did not raise the identity of "thekid13" with the Crown and Purdie's counsel.
In my respectful opinion, the judge failed to accord procedural fairness to Purdie. As Purdie did not amend the grounds of appeal, it is unnecessary to decide whether it was open to the judge to be satisfied beyond reasonable doubt of the adverse findings that were made.
Purdie had been deprived of a fair hearing at first instance and the proceedings will be remitted to the District Court for re-sentence. Accordingly, it is unnecessary to deal with the remaining grounds of appeal.

Orders

The orders which I propose are: 1. Leave to appeal against sentence is granted. 2. The sentence imposed on Lecx Purdie on 17 November 2017 is quashed. 3. Remit Lecx Purdie to the District Court at Sydney for re-sentence. 4. List the matter for mention at the District Court at Sydney on 1 March 2019 to fix a date for sentence.

Endnotes

ROS, 47.
ROS, 47-48.
ROS, 48-49.
R v Falls [2004] NSWCCA 335.
Weir v R [2011] NSWCCA 123 at [64]-[67].
Re Minister for Immigration and Multicultural Affairs and Another ex parte Miah (2001) 206 CLR 57 at [99].
Chow v DPP (1992) 28 NSWLR 593.
R v Uzabeaga [2000] NSWCCA 381; (2000) 119 A Crim R 452.
GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22 at [30].
The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27].
[2018] HCA 32; (2018) 92 ALJR 764.
[2015] NSWCCA 268. 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: 15 February 2019

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