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[2000] NSWCCA 473
Court of Criminal Appeal (NSW)
2000-11-01
Giles JA, James J, Whealy J
Original judgment source is linked above.
The applicant's grounds of appeal 23 The applicant submitted that the sentences were excessive having regard to three matters. The first matter was that the sentencing judge, in the absence of reasonably precise evidence of the quantities of drugs involved in the offences, had attributed excessive seriousness to the offences. The second matter was that the judge had given inadequate weight to certain subjective factors which mitigated the appropriate sentences, or if he had not done so had started with unduly harsh sentences. The third matter, linked with the second limb of the second, was the sentences were inconsistent with, and shown to be unduly harsh by regard to, the sentencing pattern revealed by sentencing statistics for the offences and for the substantive offences of supplying prohibited drugs.
Quantities of drugs 24 The minimum quantities were 1000 gms for the large commercial quantity of cocaine and 250 gms for the commercial quantity of heroin. I have briefly described the Crown's case as to the quantities of drugs, and set out relevant exchanges between counsel and the judge. Counsel's submissions after evidence in the sentencing hearing had closed were not recorded. 25 In his remarks on sentencing his Honour said that the only factual issue in dispute was "the exact quantity of the drugs that were in fact supplied according to the evidence that had been called and would have been called". He said - "I cannot be satisfied beyond reasonable doubt as to the exact amount but I am satisfied in the light of the plea and the evidence that the amount was in each case well in excess of the amounts required of 1.0 gms of cocaine and 250 gms of heroin. There is no doubt on the evidence that emerged before me that the prisoner was the prime move [sic: mover] in the conspiracy and the effect of this agreement was far reaching on the drug supply to those in the Kings Cross area. He was in direct contact with people who provided he and those conspiring with him direct with large amounts of heroin and cocaine which he proceeded to cut and distributed to sellers. It was not a small operation." 26 After dealing with other matters, his Honour described the conspiracies in the manner which I have earlier set out, see para 17 above. He continued after that description - "It is further aggravated by the fact that he was involved not only with heroin but with an equally abhorrent drug, cocaine. Indeed, the amount of the cocaine that was supplied exceeded the heroin. The seriousness of these conspiracies cannot be doubted. Whilst they may not meet the indicia of fitting into to the worst of their kind they rank not far behind. The legislature has imposed severe penalties, life and twenty years on offences such as these, but people such as the prisoner seem ready to take the risk for the money that is involved. These courts must impose condign sentences that will show this prisoner and deter him and any like-minded person by showing that when caught they will spent long periods of time in gaol and make them come to realise that the price from them that society demands is not affordable." (emphasis added) 27 The applicant firstly submitted that the sentencing judge failed to make an effective finding as to the quantities of drugs involved beyond that they were the minimum quantities necessary for the offences to which the applicant had pleaded guilty, 1000 gms as the large commercial quantity of cocaine and 250 gms as the commercial quantity of heroin. To the extent to which his Honour was satisfied "in the light of the plea", it was said, his satisfaction could have gone no further, and to the extent that his Honour expressed satisfaction as to amounts "well in excess" of these minimum amounts there was no finding as to particular amounts and the sentencing should not have proceeded on the basis of quantities greater than the minimum quantities. The applicant referred to observations of Hulme J in R v Kalache [2000] NSWCCA 2 at [140] and R v S ([2000] NSWCCA 13 at [16] and submitted that, in the absence of findings as to particular amounts, the sentencing should have proceeded on the basis that the quantities involved were the minimum quantities. 28 I do not think that Hulme J's observations are contrary to a finding, in appropriate circumstances, that the quantity of drugs involved in an offence was a non-particular quantity but a quantity well in excess of the minimum amount relevant to the particular offence. In the present case, as no doubt in many other cases, it would have been unrealistic to find with appropriate certainty precise quantities of drugs involved, but it may be expressed with appropriate certainty that the quantities were more than minimum quantities. In some cases the quantity may be able to be found within a range; in other cases the quantity may only be found with more generality, provided that the scale of the supply or other dealing in the drug is conveyed. With full appreciation that the quantity of drugs involved is an important consideration in a sentencing exercise (see, for example, R v Wong (1999) 48 NSWLR 340 at 364-5), a finding with such precision as the evidence permits and sufficient precision for the sentencing exercise is permissible. 29 In the present case the judge expressed his finding in terms of amounts well in excess of the minimum amounts, clearly finding more than the minimum amounts and conveying scale with the certainty permitted by the materials before him. In the light of those materials, by "well in excess of" the minimum amounts the scale was of the order of 2000 to 3000 gms of cocaine and 500 to 1000 gms of heroin, Specific quantities could not realistically be found, and such findings were correctly not attempted; it was enough to assess the scale of the quantities involved in the offences with which the applicant was charged, and the precision was sufficient for the particular sentencing exercise. 30 The applicant then submitted that the judge erred in describing the conspiracies, in the sentence underlined in the passage earlier set out, as ranking not far behind the worst of their kind. He said that such a description could not properly be given to the conspiracies when the findings as to the quantities involved were in the imprecise terms already discussed, and that even if the quantities involved be taken to have been of the order of those for which the Crown had contended the quantities were low within the possible range of quantities contemplated by the offences - for example, it was said that in R v Chung [1999] NSWCCA 330 the prisoner had been sentenced on the basis that he had supplied or had had in his possession for supply 63 kgs of heroin. 31 In my view this misunderstands the judge's remarks on sentencing. He had found the quantities involved as quantities well in excess of the minimum quantities. He had described the applicant as the prime mover in the conspiracy, and the conspiracy as one with a far reaching effect on the drug supply to those in the Kings Cross area and as "not a small operation". He had then summarised the nature and features of the conspiracies, and the applicant's part in them, in powerful terms which the applicant accepted on the hearing of this application, see para [17] above. In saying that the seriousness of the conspiracies could not be doubted, and that they ranked not far behind the worst of their kind, his Honour was referring to much more than the quantities of drugs involved. He was referring to the nature and features of the conspiracies, to the applicant's principal role in them, to the callous disregard for users of the drugs and the misery that was caused to so many people, and to the blatantly commercial motivation for what was done. His Honour expressly declined to characterise the conspiracies as the worst of their kind, but in my opinion he was entitled to characterise them in the manner he did. 32 In my opinion there was no error in the sentencing in relation to the quantities of drugs involved or the seriousness attributed to the conspiracies.
Subjective factors 33 In the course of the applicant's case on sentencing he sought and obtained a concession from the Crown - "KEILY: There's one concession the Crown -- HEALEY: I'm sorry, yes. Yes your Honour, on my instructions the prisoner at an early stage following his arrest indicated that he wished to enter pleas of guilty to lesser quantities of drug, of cocaine and heroin than that contained in the indictment your Honour, that this offer was made to the arresting police officers and indeed to the, I think to my learned friend the Crown at the committal proceedings and it wasn't until last November 2 your Honour that he entered a plea of guilty to the substantive charges that he now appears before you Honour on, but I think that my friend would conceded [sic] that that -- KEILY: That's conceded your Honour, the pleas were -- HIS HONOUR: Well once again what effect does that have on … (not transcribable) .. HEALEY: Only this your Honour that within the framework of his understanding of his criminal involvement at that stage at least he was prepared to enter some pleas at an earlier point in time than November 2 last year. HIS HONOUR: Yes, I understand."
34 When dealing with sentencing for the 1990 offence, which he did prior to sentencing for the 1996 offence, the sentencing judge said that he took into consideration, amongst other things, that at the time the applicant had no prior convictions. He did not otherwise refer to absence of prior convictions. 35 The applicant did not give evidence, but tendered a statement in which he expressed his remorse and sorrow. His Honour said in the remarks on sentencing that "in the light of his conduct and the way he misled the court [this referred to the Botel episode]" the applicant was left with very little credibility, and that he did not believe, despite the statement, that the applicant was remorseful. He said that he believed the offences were carried out with full knowledge of what the applicant was doing and for greed. 36 After referring to some other matters his Honour said - "Council [sic: Counsel] submitted that the fact that he had offered prior to the trial and committal to plead guilty to lesser charges showed his remorse as did his ultimate plea of guilty. It was further submitted that his remorse coupled with his behaviour in gaol indicated his good prospects for rehabilitation. Whilst other people have told the court of his remorse, and he had tendered a statement in evidence today, he has never availed himself of the opportunity of telling the court himself from the witness box. It is not my view that trying to bargain for lesser charges shows remorse, nor does his subsequent plea show, in my view, anything other than a realisation of the strength of the Crown case. He is, however, entitle [sic] to have taken into consideration the fact that he, by his plea, has saved the Crown an appreciable amount of money that the continuation of the trial would have entailed. I personally, on the evidence that I have heard and seen, do not believe that the prisoner is remorseful or indeed that he is likely to be easily rehabilitated. I believe that he is pragmatic enough to realise that the better he behaves in gaol the better off he will be and the easier it will be for him and I believe that is the reason for his behaviour in gaol. However, the period of the additional term imposed will be, in my opinion, enough to accomplish his rehabilitation if he so desires. … I take into consideration the material referred to in exhibits 5 and 8 which have been sealed in accordance with my order. Further material was tendered this morning which has been, once again, by my order included in that exhibit C, this includes an amount of money that has been paid in relation to proceeds of crime assessment and I note the amount and I note the amount of the assessment. There is a letter from the solicitors for the prisoner of 29 January 1999 which was sent to the Crown and which the Crown has declined to accept the offer in there. I note also the provisions of s 442B of the Crimes Act and the matters referred to therein and I take all those matters into consideration." 37 The applicant submitted on this application that, although his Honour had said he had taken into account the plea of guilty and (by his reference to exhibits 5 and 8) the assistance offered to the authorities, he had not adequately recognised them in the applicant's favour. He further submitted that the judge had not recognised in the applicant's favour the fact that he had no prior convictions. I do not think there was error in any of these respects. 38 As to prior convictions, it would have been quite unrealistic for the judge to have sentenced the applicant for the 1996 offences on the basis that he had no prior convictions. The applicant had been convicted in 1989 for gaming and driving offences. The judge was entitled to pass over them when sentencing the applicant for the 1990 offence and the later offences. But at the time the applicant committed the 1996 offences he had committed the 1990 and 1994 offences, for the former of which he had been convicted although he had caused the sentencing to miscarry and for the latter of which he was being sentenced at the time he was being sentenced for the 1996 offences. He could not claim to be sentenced for the 1996 offences as a person relevantly free from transgressions and penalties, even though the penalties were being reimposed and imposed at the time of his sentencing. The earlier offences, in my view, were such as to deprive the applicant of any benefit from an earlier upright life. 39 The fact of a plea of guilty is important when sentencing, and may attract a significant discount from the sentence otherwise appropriate, see R v Thomson [2000] NSWCCA 309. The discount may be because the plea indicates contrition, or it may be because of the utilitarian value of the plea. The sentencing judge did not accept that the applicant's pleas showed remorse, but considered that they were in recognition of the strength of the Crown case. This was clearly open to him, and indeed was not challenged on this application. His Honour did take into consideration the utilitarian value of the pleas. He did not attribute a particular discount to them. In my opinion, his Honour was generous to the applicant. As can be seen from the history of the charges earlier noted, the applicant had opposed the Crown at committal and through a number of abortive trials. His pleas were at a very late time, and were after an unsuccessful attempt to plea-bargain. In my opinion, if any recognition of the late pleas of guilty in the face of appreciation of the strength of the Crown case was appropriate for utilitarian reasons, it was minimal. There is no reason to think that the judge failed to give at least minimal credit to the applicant in the determination of the sentences. 40 His Honour said that he took into consideration the materials in exhibits 5 and 8, but for obvious enough reasons did not detail the materials. There is no doubt that genuine co-operation with the authorities, for example, by provision of true information which could significantly assist the authorities, may be taken into account favourably to the prisoner when sentencing, even though the information does not in the result prove to be of assistance. But, having considered the materials in exhibits 5 and 8, I am unable to see that reliable or particularly useful assistance to the authorities was provided or likely. In the circumstances, I do not think that significant lessening of the sentences otherwise appropriate was warranted, if any lessening at all. Again, there is no reason to think that the judge failed to give such little significance to the materials as was warranted.
Statistical materials 41 In R v Henry (1999) 46 NSWLR 346 at 352 Spigelman CJ said that "the ineluctable core of the sentencing task is the process of balancing overlapping and contradictory objectives", at the appellate level including the objectives of consistency and individualisation. The desirability of consistency in judicial decision-making, including sentencing, needs no justification. In aid of consistency, in R v Jurisic (1998) 45 NSWLR 209, R v Henry and subsequent decisions this Court has issued guideline judgments with respect to sentencing for particular offences. These decisions have recognised regard to statistics kept by the Judicial Commission of New South Wales, see for example, R v Henry at 368-71 and R v Wong at 360. R v Wong provided guidelines for the offence of being knowingly concerned in the importation of heroin, contrary to s 233B of the Customs Act 1901 (C'th). The applicant submitted that the sentences for the 1996 offences were excessive, and offended the desideratum of consistency, when regard was has to the Judicial Commission's statistics for sentences for the offences and closely related offences. 42 The maximum penalty for the cocaine offence was imprisonment for life. The maximum penalty for the heroin offence was imprisonment for 20 years. The sentencing judge correctly observed that the legislature had imposed severe penalties for such offences. 43 All the Judicial Commission statistics to which we were referred were for the years 1993 to 1999 inclusive. In the circumstances of the applicant's pleas of guilty, I concentrate on the statistics for all offenders rather than those for offenders pleading guilty: I also refer only to full terms. The statistics show - (i) conspiring to supply large commercial quantity of cocaine: 3 cases, terms from five to seven years; (ii) conspiring to supply large commercial quantity of heroin: 8 cases, terms from 3 to 20 years; (iii) supply large commercial quantity of cocaine: 15 cases, terms from 1 to 9 years; (iv) supply large commercial quantity of heroin: 27 cases, terms from 6 months to life; (v) supply commercial quantity of cocaine: 11 cases, terms from 18 months to 6 years; (vi) supply commercial quantity of heroin: 96 cases, terms from 18 months to 14 years. 44 It is apparent that the circumstances of the particular offences vary widely, and only limited guidance can be gained from the statistics. In R v Wong the guidelines, for a different but arguably related offence, were for couriers and persons low in the hierarchy of the importing organisation, and were structured according to the quantities involved. For a quantity of 200-1000 gms of heroin the term was 6 to 9 years, for a quantity of 1500-3500 gms of heroin or 2000-3500 gms of cocaine the term was 8 to 12 years. It was, of course, made plain that sentences outside the range could be appropriate, and it was said that an increment should be applied to the principal of an organisation responsible for an importation or a person high in the hierarchy of such an organisation (see at 365). 45 The applicant's submission, with more detailed reference to the Judicial Commission statistics, was to the effect that the sentences imposed on him were greatly in excess of all but a few of the sentences recorded, and he also suggested that comparison with the sentence imposed in R v Kalache suggested that his sentences were excessive. Nonetheless, it is necessary to consider the applicant's sentences in the light of the maximum sentences for the offences and the seriousness of the applicant's offences. I have accepted the sentencing judge's assessment of their seriousness. The appellant was the prime mover in the conspiracies, and was himself an intimate participant. He acted for motives of greed, to make money without thought for the effects on drug users, or indeed society, of what he was doing. His sentencing for the 1996 offences was in the light of his earlier supplying cocaine, from the consequences of which he had sought to escape by corrupting the sentencing process. There was no contrition. As well as the objective seriousness of the offences, personal and general deterrence were properly to be given significance. I have concluded that, although high, the sentences imposed were open to his Honour and that reason to vary them on appeal has not been established.
Orders 46 I propose that leave to appeal be granted, but the appeal be dismissed. 47 JAMES J: I agree with the judgment of Giles JA. 48 WHEALY J: I agree with+ the reasons of Giles JA and the order he proposes.
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R
Bayeh
CITATION : R v Bayeh [2000] NSWCCA 473 FILE NUMBER(S) : CCA 60301/99 HEARING DATE(S) : 1 November 2000 JUDGMENT DATE : 21 November 2000
COUNSEL : P Byrne SC - Applicant L M B Lamprati - Respondent/Crown SOLICITORS : J B Hajje & Associates - Applicant S E O'Connor - Crown CATCHWORDS : SENTENCING APPEAL - drugs offences - quantities of drugs - finding "well in excess" of minimum amounts for the charges - whether finding as to specific quantities necessary - sentencing on non-specific finding permissible in the circumstances - whether sufficient regard to certain subjective factors - whether sentences excessive in light of Judicial Commission statistics - no reason to vary sentences. D. R v Chung [1999] NSWCCA 330; R v Henry (1999) 46 NSWLR 346; R v Jurisic (1998) 45 NSWLR 209; CASES CITED: R v Kalache [2000] NSWCCA 2; R v S [2000] NSWCCA 13; R v Thomson [2000] NSWCCA 309; R v Wong (1999) 48 NSWLR 340. DECISION : Leave to appeal granted. Appeal dismissed.
(1999) 46 NSWLR 346
(1998) 45 NSWLR 209
(1999) 48 NSWLR 340