R v Burns

Crimes (Sentencing Procedure) Act 1999 - ss 3A, 12 LEGISLATION CITED: Criminal Appeal Act 1912 - s 5D Drug Misuse and Trafficking Act 1985 - s 25A(1)

Commissioner of Taxation v Baffsky (2001) 122 A Crim R 568 Dinsdale v The Queen (2000) 202 CLR 321 Elliott v Harris (No 2) (1976) 13 SASR 516 Griffiths v The Queen (1989) 167 CLR 372 Pearce v The Queen (1998) 194 CLR 610 R v Bacon (2000) A Crim R 28 CASES CITED: R v Baker [2000] NSWCCA 85 R v Ceissman [2004] NSWCCA 466 R v Douglas [2007] NSWCCA 31 R v Hutton [2004] NSWCCA 60 R v Lopez [1999] NSWCCA 245 R v Wall [2002] NSWCCA 42 R v Zamagias [2002] NSWCCA 17

PARTIES: Regina (Appellant) Adam Burns (Respondent)

COUNSEL: W J Abraham QC (Crown) H K Dhanji (Respondent)

SOLICITORS: S Kavanagh (Solicitor for Public Prosecutions) S O'Connor, Solicitor for Legal Aid Commission of New South Wales (Respondent)

LOWER COURT DATE OF DECISION: 30 April 2007 (date of sentence)

• 3 - IN THE COURT OF CRIMINAL APPEAL 2007/1223

SPIGELMAN CJ SIMPSON J HARRISON J

23 July 2007 REGINA v Adam BURNS Judgment (Ex TEMPORE) 1 SPIGELMAN CJ: I agree with Harrison J. 2 SIMPSON J: I agree with Harrison J. 3 HARRISON J: The respondent pleaded guilty in the Local Court to one charge of supplying a prohibited drug on three separate occasions for financial or material reward contrary to s 25A(1) of the Drug Misuse and Trafficking Act 1985 ("the Act"). The offence was committed between 20 May 2006 and 6 June 2006. The drug was 3,4-methylenedioxymethylamphetamine, also known as "ecstasy". The maximum penalty for this offence is 20 years imprisonment and/or 3500 penalty units. 4 The respondent also pleaded guilty on indictment to a charge of knowingly take part in the supply of the same drug between January and June 2006, contrary to s 25(1) of the Act. The maximum penalty for this offence is 15 years imprisonment and/or 2000 penalty units. 5 A further charge of supplying a prohibited drug, that is to say, ecstasy, on 5 March 2006 was taken into account on a Form 1. 6 On 30 April 2007 his Honour Finnane DCJ sentenced the respondent to imprisonment for 2 years in relation to the s 25A offence. He ordered that the sentence be suspended upon the respondent entering into a bond to be of good behaviour for 2 years pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999. In relation to the offence against s 25, his Honour imposed a fine of $10,000. He took into account the charge on the Form 1 when sentencing in relation to that matter. 7 The Crown appeals pursuant to section 5D of the Criminal Appeal Act 1912 upon the single ground that the sentence imposed by his Honour was manifestly inadequate. Background 8 The facts in relation to the offences are set out in the remarks on sentence and in a statement of facts tendered by the Crown. They are briefly as follows. 9 In March 2006 police mounted an undercover operation in Orange to target people selling drugs at a nightclub venue known as "The Party". On 5 March 2006 undercover police attended the premises and in the early hours of the following morning entered into negotiations with the respondent. He supplied the undercover police with one MDMA tablet for $40. The respondent provided the undercover police with his mobile telephone number. 10 On 19/20 May 2006 the undercover police officer contacted the respondent on his mobile telephone and arrangements were made for them to meet. The respondent then sold the officer ten MDMA tablets for $330. On 25 May 2006 police again contacted the respondent by mobile phone and a further 30 MDMA tablets were supplied for $990. On 5 June 2006 police contacted the respondent by mobile phone and a further 47 MDMA tablets were supplied for $1450. 11 The amount supplied was 22.68 grams, which is almost 20 times the indictable amount of 1.25 grams. 12 The respondent was arrested on 30 June 2007 and agreed to be interviewed by police. During the course of that electronically recorded interview he admitted that he had been supplying MDMA in the Orange area since the start of January 2006. He told police that between January and June 2006 he had received eight amounts of 100 tablets that he had supplied to others. He told police that on average he made $10 profit from each tablet sold. He said that he would buy the tablets for $23 and sell them for at least $33. Sometimes he would charge more for smaller amounts. He agreed that he had made at least $8000 profit. Subjective features of the respondent 13 The respondent was born on 13 May 1983 and was 23 years of age at the time he was sentenced. He was born in Newcastle and resided with his parents in New Guinea for approximately four years prior to his parents divorce when he was seven years of age. He had a positive upbringing, residing with his mother, with regular contact with his father. He completed year 10 at 16 years of age. He moved to Orange when he was 18 years of age to live with his father and took up an apprenticeship as a motor mechanic. He obtained stable employment after leaving school and successfully completed his trade course. He is reputedly a reliable and valued employee. 14 The respondent told the probation officer that he consumed alcohol socially but did not consider his level of alcohol consumption to be problematic. He had used ecstasy, taking one tablet a week since he was 19 years of age, usually on weekends at parties and other social functions. He ceased using in June 2006 and had no other substance abuse. He said that everyone was doing it and he succumbed to peer group pressure. He had no financial difficulties. 15 The respondent offered little by way of explanation for his actions to the probation officer apart from a desire to provide his ex-girlfriend with the lifestyle to which she aspired. He did not use this as an excuse and appeared to display genuine remorse. He said that he thought that if he were caught he would be liable for a sizable fine or a good behaviour bond and that he had no idea how serious the situation was into which he had managed to get himself. 16 The respondent had no prior convictions. 17 In his remarks on sentence his Honour said that the respondent impressed him as a young man who had seen the error of his ways. He described him as a "very foolish fellow. He tied himself up with a girlfriend who had expensive needs, apparently, and he involved himself in this activity to supply her with those needs. There is no doubt that he enjoyed the nightclub life". 18 His Honour referred to, and took into account, evidence given by the respondent, which indicated that he had good prospects of obtaining employment with a very high income. He took into account the respondent's previous good character and found that he was unlikely to offend again. His Honour also took into account the fact that in respect of the count of knowingly take part in supply, that the police would not have known about the offence if the respondent had not confessed to it. It is important at this stage to record precisely the words used by his Honour in his remarks on sentence:-

"When he was arrested by the Police he freely confessed and indeed he told them of his supplying what he estimated to be something like 800 tablets over a period of months to numerous people. Except for this rather very frank confession, the Police cold not have charged him. They have no other evidence but his confession for his committing that offence. The offence on the Form 1 is the offence of selling a single table (sic) and that is the matter that brought him to attention. He has given evidence before me and impresses me as a young man who has seen the error of his ways." (ROS 3).

"It was put to me that only exceptional circumstances will warrant anything else being done and that exceptional circumstances are not brought into play by matters such as previous good character, work history and ongoing hope of doing better in the future. That may be and others may disagree with me on this, but in my opinion I am entitled to impose a sentence other than that of fulltime custody and I intend to do it. If I am wrong, the Court of Criminal Appeal will say I am wrong.

I am not saying this is a challenge, but I think every so often a case comes before a court that cries out for factors of rehabilitation to be considered rather than deterrence or retribution.

I have to say this is the only occasion I have dealt with a drug matter of this type in this way." The Crown submissions

19 The Crown submitted that the sentences were so low as to indicate error and were manifestly inadequate. The Crown submitted that sentences of less than full-time custody indicated error on the part of the sentencing judge. The Crown relied on well-known authority supporting the proposition that this Court has on numerous occasions made it clear that full-time custodial sentences should be imposed to drug traffickers unless there are exceptional circumstances. Extensive reference to these authorities was contained in helpful written submissions upon which the Crown relied. It is unnecessary to refer to those authorities in these remarks. The Crown submitted that his Honour failed properly or adequately to take the relevant line of authority into account. 20 In the alternative, the Crown submitted that his Honour made a number of errors in determining the sentences imposed. These were as follows: -

20.1 His Honour failed to address the need for the respondent to be punished adequately, the need to deter him and others from committing similar offences, the need to make him accountable for his actions, the need to denounce his conduct and the need to recognise the harm done to the community in accordance with s 3A of the Crimes (Sentencing Procedure) Act . The Crown submitted that his Honour's failure adequately to address these issues led to error.

20.2 The sentences imposed, in the circumstances of the objective criminality of the offences, do not adequately punish the respondent. The Crown submitted that the respondent embarked on a course of criminal conduct over a number of months, selling some 800 tablets with a profit of at least $8000. His only motive was a desire for financial gain. The Crown submitted, in these circumstances, that the respondent's criminality was of a very high order and that only a sentence of full-time custody was appropriate.

20.3 The Crown submitted that there was a very strong public interest in deterring those who deal in drugs that cause serious injury or death. The Crown submitted that this Court could take notice of the fact that there have been a number of deaths associated with the supply of this drug at nightclubs and dance venues. The respondent does not seem to have turned his mind at all to the possible consequences of his actions and seems only to have been motivated by a desire to fund his lifestyle. The Crown submitted that the fact that the respondent claimed not to known how serious his conduct was and that he believed that he would only be subject to minor penalties if caught bespeaks the need for the imposition of sentences with a strong deterrent effect, not only to the respondent, but also to the community at large. The sentences imposed by his Honour did not achieve that aim.

20.4 The sentences contain no element of protection for young people who attend nightclubs and dance parties where party drugs are sold to them.

20.5 His Honour gave too much weight to the subjective case of the respondent and insufficient weight to the objective assessment of his criminality. The Crown cited several authorities in support of this proposition. It is unnecessary to refer to them in these remarks. The Crown submitted that his Honour allowed subjective matters to obscure a proper evaluation of what the respondent had done and the nature of the offences for which he was to be sentenced.

20.6 There was no material, or no sufficient material, upon which his Honour could properly find that there were such exceptional circumstances as to justify sentences other than of full-time custody. The Crown submitted that there was nothing in the circumstances of the facts of the subjective matters favouring the respondent that could be characterised as exceptional. The respondent was not involved in a "one-off" transaction. He was engaged in serious criminal activity over a period of months. While the respondent was entitled to have his previous good character taken into account, it is of less significance in offences involving the supply of drugs compared to other offences.

20.7 His Honour approached the proceedings on the basis that he would suspend the sentence for the offence of ongoing supply but failed to apply the principles set out in R v Zamagias [2002] NSWCCA 17 at 22-29, referred to in R v Douglas [2007] NSWCCA 31. Specifically his Honour failed to determine the appropriate sentence and then determine whether or not it should be suspended. An order suspending a sentence is to be regarded as less severe than home detention, periodic detention or full-time custody.

20.8 His Honour was in error in imposing a fine for the offence of supply. The Crown submitted that even a substantial fine failed adequately to punish the respondent for a serious offence involving the supply of 800 MDMA tablets over a period of months yielding a profit of at least $8000. The imposition of a fine, in the circumstances of this case, was said to be outside the pattern of sentencing for this offence. 20.9 Finally the Crown submitted that his Honour made no mention in his remarks on sentence of the principle of totality. When sentencing for more than one offence, the court should generally fix an appropriate sentence for each offence and then determine whether to order the sentences to be served concurrently or cumulatively in order to arrive at the appropriate total sense to reflect the criminality before the court: see Pearce v The Queen (1998) 194 CLR 610. In the present case the two offences should have been dealt with discretely. They were two separate offences, committed over different periods, involving different criminal acts. The sentences imposed by his Honour do not reflect those facts. The respondent's submissions 21 The respondent emphasised the well-known principles governing Crown appeals which were summarised by Wood CJ at CL in R v Wall [2002] NSWCCA 42 at [70]. It is unnecessary for present purposes to reproduce that portion of the Chief Judge's judgment in that matter. However, the respondent emphasised the strong resistance against appellate courts "tinkering" with sentences referred to in Dinsdale v The Queen (2000) 202 CLR 321. See also R v Ceissman [2004] NSWCCA 466 per Wood CJ at CL at [8]. 22 In summary the respondent submitted that the sentences are not manifestly inadequate, the sentencing judge made no material error and in any event there are powerful discretionary reasons for dismissing the Crown appeal. 23 The respondent submitted that even accepting that a requirement to demonstrate "exceptional circumstances" exists, it was open to his Honour to impose a non-full-time sentence. His Honour clearly regarded the case as "exceptional". The respondent points to some of his Honour's remarks, including some to which I have already referred, to emphasise this proposition. His Honour was not unaware that normally those who traffic in drugs can expect to go to gaol on a full-time basis, as his remarks on sentence also indicated. While the expression "exceptional circumstances" is not, in the present context, a statutory requirement, the respondent submitted that, in a sentencing exercise, such expressions are not necessarily to be determined by single factors but may be the result of a combination of factors: see Griffiths v The Queen (1989) 167 CLR 372. 24 The respondent submitted that the present matter was exceptional by virtue of the following matters: -

24.1 The respondent's voluntary cessation of criminal activity.

24.2 A strong subjective case, particularly the respondent's lack of a criminal history, the lack of any likelihood of re-offending, his contrition (as evidenced by, among other things, his voluntary disclosure of guilt) and his youth.

25 The respondent submitted that this was a case where the community interest was served by a sentence that provided for the successful rehabilitation of the respondent, in place of a sentence with the potential to produce the opposite effect.

26 The submission in relation to the voluntary cessation of criminal activity requires some further comment. The respondent pointed out that the Crown submissions made no mention of this important factor and would appear wholly to have overlooked it. The respondent provided very detailed and extremely helpful written submissions in support of this contention, upon which he elaborated in oral submissions before this Court. 27 The voluntary cessation of criminal activity is well recognised as a significant factor to be taken into account by a sentencing tribunal. In the present case, the last criminal act performed by the respondent was on 6 June 2006. He was not arrested until 30 June 2006. There was no suggestion that he had committed any further offences in the meantime. 28 The respondent gave evidence that he had "already left Orange to Ballarat to start my new job and life". He said that, by May 2006, he had decided to extricate himself from the situation into which he had fallen. He gave evidence that the undercover operative to whom he had supplied drugs tried to contact him on his mobile phone after 6 June 2006 but that, as a result of his decision, he did not take the call. He said, "I felt a massive relief just from not doing it and earning decent money and I just felt so much better about myself not doing it". 29 The respondent cited authority in support of the proposition that voluntary cessation of what is, typically, an ongoing activity, is a significant factor in mitigation for a number of reasons. See, for example, R v Lopez [1999] NSWCCA 245, R v Bacon (2000) 120 A Crim R 28 and R v Hutton [2004] NSWCCA 60. These factors are as follows. First, there is a public policy to be served in providing encouragement to offenders such as the respondent to cease their criminal activities. Secondly, specific deterrence is a matter to be given little or no weight. Thirdly, it provides strong evidence of remorse, contrition and rehabilitation. Finally, in some cases (although not the present case) it may support the proposition that the offence was committed as a result of need rather than greed. 30 The respondent contended that voluntary cessation of this particular type of crime prior to detection is unusual. I agree. Weighed with other factors his Honour was entitled to find that the case was sufficiently unusual or exceptional to warrant the imposition of other than a full-time sentence of imprisonment. 31 Moreover, the respondent emphasised that a suspended sentence is a sentence of imprisonment nonetheless. Australian courts have rejected the idea that a suspended sentence, even though significantly more lenient than the imposition of the like sentence not so suspended, is really no punishment at all. The respondent referred to the well-known passage from Elliott v Harris (No 2) (1976) 13 SASR 516 at 527 per Bray CJ. 32 In my opinion it was open to his Honour to impose other than a full-time custodial sentence. It could not, in my opinion, be said to be either "unreasonable or plainly unjust" or "manifestly wrong". The sentence of imprisonment, suspended, clearly fell within the range of appropriate sentences available to be imposed by his Honour in the exercise of his sentencing discretion. The sentence was not in my opinion manifestly inadequate. 33 Nor in my opinion has the Crown isolated anything that amounts relevantly to a specific error on the part of the sentencing judge. I have already described the so-called errors in some detail in these reasons. As the respondent emphasises, complaints that the sentences failed to meet the requirements of s 3A of the Crimes (Sentencing Procedure) Act, that the sentences do not provide "adequate punishment", that the sentences are "not deterrent" or do not "protect the community", or indeed that other subjective matters "were given too much weight", can only be determined by reference to the sentences actually imposed. The respondent refers to the remarks of his Honour the Chief Justice in Commissioner of Taxation v Baffsky (2001) 122 A Crim R 568 at [9]:

"Submissions asserting that insufficient weight have been accorded to particular factors must always be treated with reserve by appellate courts, so as not to interfere impermissibly with the exercise of a discretion reposed in a first instance judge." 34 The respondent also referred to similar comments made by the Chief Justice in R v Baker [2000] NSWCCA 85 at [11] -[12]:

"The use of terminology such as "sufficient weight" highlights the difficulty for the Crown case. Questions of weight in the exercise of a discretion are matters for the first instance judge. The circumstances in which matters of "weight" will justify intervention by an appellate court are narrowly confined."

35 The respondent submitted that the Crown's complaints of specific error failed, in fact, to demonstrate error and amounted instead to no more than a series of submissions in support of a complaint of manifest inadequacy. I agree. 36 There is often a fine line between those cases in which a sentencing judge can be shown to have failed properly to exercise a discretion reposed in her or him, having regard to the relevant legislative constraints and current judicial guidance, on the one hand, and those cases in which the discretion has patently been exercised in a way that balances and accommodates all the manifold competing circumstances and influences, on the other hand. Views on sentencing outcomes will almost always vary, depending significantly, although not exclusively, upon the perspective of the commentator. There seems little doubt that some appropriate sentence of full-time imprisonment imposed upon the present respondent could have withstood appellate scrutiny. However, for the purposes of this Court, that is not to the point. In my opinion the sentences imposed upon the respondent by his Honour were wholly appropriate. That is also not to the point. The issue is whether or not his Honour's sentencing discretion was relevantly infected by error in such a way that it resulted in the imposition of sentences that are manifestly inadequate. In my opinion, no relevant error has been demonstrated and the sentences imposed upon the respondent are not manifestly inadequate. Conclusion

37 In my opinion the appeal should be dismissed. **********

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