R v Brown [1999] NSWCCA 323 | Case summary

1 THE COURT: This is an appeal by the Director of Public Prosecutions, pursuant to S 5D of the Criminal Appeal Act 1912, against the sentences imposed on the respondent, Trent Robert Brown, by his Honour Judge Williams in the Sydney District Court on 31 March, 1999. 2 The respondent pleaded guilty before Judge Williams on 25 March, 1999 to one count of "supply large commercial quantity of methylamphetamine"; one count of "offer to supply commercial quantity of methylamphetamine" and two counts of "supply commercial quantity of methylamphetamine". In passing sentence, a number of offences of possess prohibited drug, which were included on a Form 1, were taken into account. 3 The respondent was sentenced on the first count to 5 years imprisonment, comprised of a minimum term of 2 years and an additional term of 3 years. In relation to the second, third and fourth counts, the respondent was sentenced to 3 years imprisonment, comprised of a minimum term of 12 months and an additional term of 2 years, concurrent with each other, and with the first count. 4 The sentences were ordered to date from 15 September, 1998. On the basis of the sentences imposed, the respondent would be eligible for release to parole on 14 September, 2000. 5 The maximum penalty for the offence outlined in the first count is life imprisonment. Counts 2, 3 and 4 carry maximum penalties of 20 years imprisonment. 6 The offences to which the respondent pleaded guilty occurred on the following dates:-

As to count 4 - 29 May, 1997. 7 The respondent was arrested on 18 June, 1997 and was granted bail, which was entered on 17 September, 1997. He has accordingly spent 3 months in custody with respect to the offences in question. 8 On 2 May, 1998 the respondent was arrested on other matters and was bail refused. He has been in continuous custody since that date. 9 The facts relating to the offences are to be gleaned from a statement of facts recounting taped conversations on authorised listening devices in which the respondent participated, together with his electronically recorded record of interview, conducted on 23 July, 1998, between police officers and the respondent. This material is summarised in Judge Williams' remarks on sentence, which include a passage from the respondent's record of interview, in which the respondent outlines part of his activities in the supply of amphetamine, in conjunction with a co-offender. The respondent was described as being, at the relevant time, a "heavy heroin and cocaine addict and needed considerable funds to maintain his habit". He was described in the remarks on sentences as a lieutenant within the organisation, rather than the general. 10 The first charge relates to the supply of 1,298.8 grams of amphetamine, the respondent assisting the principal supplier, whose name is Hausler, to supply one Ray Windsor with this amount. On 6 March, 1997 the respondent offered to supply to Windsor five pounds of amphetamine, but this transaction did not come to pass. On 14 March, 1997 the respondent supplied Windsor with 372 grams of amphetamine and on 29 May, 1997 he was given 481.1 grams of amphetamine by Hausler which he then passed on to Windsor and payment was made in return for the provision of that drug. 11 Judge Williams went on to say, at page 3 of his remarks:- "It is clear from his own admissions and the above facts that he was part of a large commercial operation supplying amphetamines in the Sydney area. Throughout this period he was also heavily involved in paying for his own heroin and cocaine addictions." 12 The Crown submits that the sentencing judge fell into error in the following respects. Firstly, his Honour overlooked, in that he failed to mention or take into account, that the respondent, by reason of his conviction on 26 November, 1996 was subject to a Community Service Order at the time of the commission of the first of the subject offences. 13 Secondly, his Honour overlooked, in that he failed to mention or take into account, that the respondent was arrested, charged and bailed on 22 April, 1997 for other non-related offences and was accordingly on bail at the time of the commission of the last offence in the indictment. That is to say, on 29 May, 1997. 14 Thirdly, his Honour erred by backdating the sentences to 15 September, 1998 despite the fact that the respondent had been in custody from 2 May, 1998 (referred to in written submissions as being from 22 July, 1998), on other non-related matters. 15 Fourthly, that his Honour erred in not directing that the sentences be cumulative upon the existing sentences. 16 In reviewing the subjective matters relating to the respondent, Judge Williams, at page 7 of his remarks on sentence, stated:- "In July, 1998 he was arrested for other offences and has been in custody since. He pleaded guilty to these offences in December, 1998 and bail was thereafter refused." 17 This chronology does not accord with the particulars with which we have been supplied and to which reference has been made. His Honour did, however, note that the respondent was, at time of sentence:- "… currently serving a sentence imposed by this court for a variety of offences which have resulted in a minimum term expiring on 23 July, in the year 2001 and an additional term expiring on 23 July in the year 2003. Those sentences are the subject of an appeal. There is nothing about his record that would suggest that he should have any sentence imposed discounted in any way." 18 With regard to the appeal by the respondent against the sentence imposed on 24 July, 1998, it is to be noted that the application for leave to appeal was summarily dismissed by this Court on 28 June, 1999. 19 Counsel for the respondent has indicated his client's wish to apply to reinstate this abandoned appeal on the basis of instructions that assistance to authorities was given prior to sentence on 24 July 1998 and not made known to the sentencing judge. Why the sentencing judge was not appraised, has not been disclosed. It is inexpedient to delay the present appeal to await resolution of such an application. 20 Judge Williams reviewed in detail the respondent's subjective circumstances, including his extensive criminal history reaching back to 1987; his fragmented upbringing by his separated parents and his early diagnosis of depression. The latter was the subject of a report of Dr Canaris, extensive passages of which are set out in the judge's remarks and which formed a basis for a finding of special circumstances within the meaning of S 5(2) of the Sentencing Act. 21 His Honour had the benefit of a pre-sentence report from Ms Vicki George of the Probation and Parole Service which, together with the report of Dr Canaris, is before us today. 22 Of significance in determining the sentence to be imposed, was the material contained in a sealed envelope relating to the assistance to authorities, both past and prospective, which the respondent had given and was prepared to give. 23 His Honour noted his awareness of the sentencing principle that notwithstanding assistance to the authorities, it was necessary to impose a sentence that was not unreasonably disproportionate to the stated penalty for the crimes for which sentence was being imposed, citing R -v- C (1994) 75 A Crim R 309. 24 The sentence which Judge Williams imposed was, in essence, no sentence at all. The minimum term expired some 10 months prior to the minimum term of the sentence the respondent was already serving and the additional term expired something less than two months later than the additional term of the sentence he was presently serving. Some confusion on the part of his Honour in his understanding of the relationship between the sentence he was imposing and the sentence the respondent was already serving, is evident in the closing remark:- "Well Mr Brown you will be eligible for release on parole on 14 September in the year 2000 and thereafter you will be subject to an additional term of three years imprisonment and during that period of time I am putting you on supervision by the Probation and Parole Service." 25 As we have said, this statement ignores the fact that the minimum custodial term then being served by the respondent does not expire until over 10 months later on 23 July, 2001. 26 To impose the minimal sentences which the sentencing judge determined to be appropriate for the subject offences, which themselves demonstrate objective criminality of a very high order involving, as they do, the deliberate trafficking in substantial quantities of methylamphetamine, and then to make the sentences concurrent with existing sentences, of longer duration, currently being served by the respondent for unrelated offences, demonstrates such leniency as to constitute appellable error; R -v- Dodd (1991) 57 A Crim R 349. 27 Further, in those circumstances the sentence patently could not be said to be commensurate with the seriousness of the crime; Regina -v- Rushby (1977) 1 NSWLR 594. 28 Were it not for the factor of assistance to authorities, the objective criminality here involved, even after taking properly into account all other subjective matters particular to the respondent, would have justified the imposition of sentences, the aggregate effect of which would have been to impose upon the respondent a minimum term greatly in excess of the minimum term of 2 years in fact imposed. 29 It is true that the matter of assistance to authorities changes, in the respondent's favour, what would otherwise have been a properly severe end result. The tender of Exhibit 1 before this Court further strengthens the respondent's claim to a substantial discount on sentence in this regard. 30 The way in which this Court should now deal with that situation has been conditioned by a number of considerations which are not easily brought to account on the facts of the present case. 31 First of all, account must be taken of the well established principles that constrain this Court's exercise of its own proper discretion in the matter of appellate review of sentences and, in particular Crown appeals. 32 Secondly, there is the need to avoid undoing whatever of value has been accomplished, or might yet be accomplished, by the co-operation of the respondent with relevant law authorities. It is not expedient to do more than say that on the material before this Court, this particular consideration must weigh very heavily in the present case. 33 Thirdly, it is necessary that everything now done by this Court, by way of appellate intervention, should allow properly for the principle of totality. That principle is relevant, obviously, to any assessment of the overall criminality of the four offences with which this Court must now concern itself. 34 The principle is relevant also in connection with the fact that the respondent will be imprisoned, at least until 23 July, 2001, because of the minimum term component of the sentences imposed upon him in the District Court at Sydney on 24 July, 1998. 35 Fourthly, the very least that should be entailed in the proper punishment of the respondent is that he should be required actually to serve a minimum term which largely approximates the minimum term of 2 years imposed by the sentencing judge. 36 No application of the principle of totality can properly entail an existing sentence will simply subsume a subsequent sentence which is imposed for a subsequent unrelated offence; a fortiori a serious subsequent unrelated offence. 37 Finally, we make the following observations concerning what was said by the learned sentencing Judge in connection with the decision in Reg -v- Le Cerf (1976) 8 ALR 349. 38 The learned sentencing Judge made these comments: "I do not know that I would agree with the judgment in R -v- Lecerf 8 ALR 349 a decision of the South Australian Supreme Court. I do not agree that that judgment necessarily excludes the proposition that a court may treat a person who is at a lesser level of the pyramid differently to those who may be at the top. If one was to apply Lecerf strictly, couriers would get the same sentence as organisers and I do not think that that is a realistic proposition these days. Indeed distinctions of that nature were clearly made in Olbrick which is a Court of Criminal Appeal decision unreported of 6 July 1998, particularly at page 4." 39 It is, in our opinion, not correct to postulate that a proper application of what is in fact said in Le Cerf would entail that "couriers would get the same sentence as organisers". The correct understanding, and the correct application in a particular case, of the principles stated in Le Cerf have been clearly enunciated by this Court in the matters of Reg -v- Ilan Behar, unreported NSW CCA 14 October 1998; Reg -v- Herry Budiman, unreported, NSW CCA 8 September 1998; and Reg -v-Trina La Shae Smith, unreported, NSW CCA 20 August 1998. 40 It is timely to draw attention to the following remarks of Wood CJ at CL in Smith, which remarks his Honour reaffirmed in Budiman, both those judgments of Wood CJ at CL being referred to with approval by Spigelman CJ in Behar: "It is time that this court reminded those who would seek to establish chains for the importation of substances such as cocaine and heroin into this country, and their potential recruits, of those remarks. [Wood CJ at CL is there referring to the remarks of Wells J in Le Cerf at 8 ALR, 351 and following.] Too often has it been the case that recruits have been selected to act as couriers and the like, upon the basis either that they are free of conviction and possess apparent attributes of respectability such that they are likely to escape detection or alternatively upon the basis that they possess personal circumstances relating to family or otherwise such that they can press a powerful argument for leniency upon subjective grounds."

R v Brown

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