R v Ejefekaire

Court of Criminal Appeal (NSW)|2016-10-26|Before: Gleeson JA, Fagan J, Adams J

Solicitors: Solicitor for Public Prosecutions (Appellant) Legal Aid NSW (Respondent) File Number(s): 2014/303088 Publication restriction: Nil Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 15 July 2016 Before: Syme DCJ File Number(s): 2014/303088

Ongoing supply

The facts were agreed as between the Crown and the respondent. They reveal that the respondent was involved in the supply of methylamphetamine in the Redfern area for a number of months. The respondent was not a user of the drug himself.
In September 2014, police began an investigation into drug supply occurring at premises in Elizabeth Street, Waterloo where the respondent resided with his aunt and cousin. A search warrant was executed at those premises on the evening of 25 September 2014. No one was at home at that time. In the course of the execution of the search warrant, police heard a noise coming from the back of the house. They saw the respondent trying to put his hand through the rear kitchen window. He then jumped over the fence into the neighbour's yard. Police found the respondent's phone on a fence beam, along with two house keys for the premises. He was located in a nearby backyard shortly thereafter.
Examination of the respondent's phone revealed 4,330 text messages dating from 6 June 2014 to 25 September 2014. The agreed facts state: "Numerous messages on this phone are consistent with the Offender being involved in the ongoing supply [of] prohibited drugs. There are numerous orders for what is consistent with the supply of prohibited drugs and numerous messages for the offender to persons following up outstanding debts."
The text messages disclosed that the respondent was supplying methylamphetamine for $50 per 0.1g. The agreed facts set out the details of numerous separate supplies in the period from 26 August 2014 to 19 September 2014. They state: "There are also a number of messages sent from the Offender on 19 and 20 September 2014 informing people he had 'new stuff'. These messages are in relation to the Offender obtaining a new batch of Ice to on-sell."
One of the small supplies described in the agreed facts was an occasion on 25 September 2014. The respondent received a message from a purchaser stating that he had $500 for the respondent, which was for a previous supply of 0.5g of ice and an additional supply of the same amount that day.

Form 1 offences

Police found six plastic resealable bags containing methylamphetamine with a total weight of 8.6g in the kitchen of the respondent's premises. Five cannabis seeds, 1.9g of cannabis leaf, $1,150 in $50 notes and one gold .22 bullet were found in the respondent's bedroom.

Subjective circumstances of the respondent

Syme DCJ had before her a pre-sentence report ("PSR") from a Community Corrections officer and a psychological report under the hand of Dr Katie Seidler. She also had a short report from psychologist Alice Jaroszewicz from MTCRL Psychological Services concerning assistance provided by her to the respondent to help him to gain full-time employment. A letter from Ms Sharne Dunsmore, CEO of the Fact Tree Youth Service, was also tendered on behalf of the respondent. Although the Fact Tree Youth Service predominantly works with youth aged between 11 and 25 years, the respondent had been known to that service for 17 years and had recently re-engaged with it for assistance with housing and employment.
The respondent was 32 years old at the time of sentence and 31 years old at the time of the commission of the offence. He is single, with no children, and resides with his aunt and cousin in Waterloo. He has, apparently, the benefit of a largely supportive family, although none of his family members was present in court for his sentencing proceedings. His father was apparently a disciplinarian with whom the respondent has a strained relationship. His mother suffered two strokes when the respondent was a child and after the age of about 13 years he was cared for by his aunt.
The respondent has a criminal history extending back to the Children's Court in 2000. He has convictions for, among other things, stealing property in a dwelling-house, common assault and using an offensive weapon to prevent lawful detention. In 2004, he was sentenced to imprisonment for four years, with a non-parole period of two years, for robbery armed with an offensive weapon. In 2008, he received a further sentence of imprisonment for six years, with a non-parole period of four years, for robbery armed with a dangerous weapon. The respondent had been on parole for the latest armed robbery matter until two months before the commission of the present offence. That parole period finished on 12 July 2014. Whilst he was on parole he was charged with four counts of stealing property from a dwelling house. He was on conditional bail for those charges when he committed this offence. On 16 December 2014, he was sentenced to 300 hours of community service in relation to the stealing offences.
The respondent has abused alcohol and prohibited drugs in the past, but has abstained from drug use since 2008. Urinalysis tests appear to confirm this account. He does not have any mental health issues, other than, as assessed by Dr Seidler, low mood and a degree of stress and anxiety.
The respondent has had a poor work history, mainly consisting of casual labouring. At the time of the commission of the offence he was in receipt of Centrelink benefits. He was educated to Year 11 and reportedly achieved well at school.
The opinion of Dr Seidler was that the respondent suffered from a long-standing low mood. His lifestyle prior to and at the time of the offending was "immature, unstructured and unproductive". The respondent's offending is, in her opinion, "best understood as a function of his delayed maturation, in addition to his unstructured and generally aimless routine, which has contributed to his needing money to finance his lifestyle…". Dr Seidler considered that this was in part the result of the sudden illness and disability of his mother when the respondent was a child. She recommended that the respondent maintain employment (ideally moving towards a full-time role) and develop a "more prosocial and mature routine", noting that a custodial sentence would likely destabilise the respondent's efforts to integrate into the community.
The author of the PSR, Amanda Cremer, considered that the respondent displayed minimal insight into the criminality involved in his offending behaviour. The respondent told Ms Cremer that he was motivated by financial gain, having not had consistent employment.
The respondent gave evidence at sentence. He said that at the time of the commission of the offence in 2014 he "was unemployed and…basically doing nothing". He had no engagement with employment agencies or other services at that time. When questioned as to whether he knew that selling "ice" was serious, he gave evidence that he was aware that it was serious because of "the lives it affects" and that "the drug itself is not a good one and just where it ruins lives and I had a hand in that so I know the seriousness of the offence". In cross-examination, he agreed that he knew how badly methylamphetamine affects people at the time that he was supplying the drug. He acknowledged that there was a significant risk of going into full-time custody, but said that he would "cop whatever and just move on".
The respondent was not employed on a full-time basis at the time of sentence; according to the account given to Dr Seidler, he had worked "on and off" for a scaffolding company since July 2015.

The reasons of the sentencing judge

After briefly recounting the agreed facts, her Honour considered the relevant principles as stated in the decisions in Regina v Carrion (2000) 49 NSWLR 149; [2000] NSWCCA 191, R v Cacciola (1998) 104 A Crim R 178; [1998] NSWSC 531, R v Clark (unreported, NSWCCA, 5 March 1990), R v Gip (2006) 161 A Crim R 173; [2006] NSWCCA 115 and R v Bardo (unreported, NSWCCA, 14 July 1992). Her Honour noted the sentencing principle that: "A person who supplies drugs on more than one occasion to a degree where his or her activities can be described as trafficking or who is substantially involved in supply must receive a full-time custodial sentence unless there are exceptional circumstances."
Her Honour noted that a charge of ongoing supply encompasses, by definition, conduct that may properly be described as drug trafficking.
Her Honour stated that, in considering the objective seriousness of the offence, the role of the respondent and his level of actual participation in the enterprise are more important than the quantity of drugs involved, although the statutory maximum penalties reflect the increasing seriousness of dealing with greater quantities of drugs: see Regina v Shi [2004] NSWCCA 135. Her Honour found that the agreed facts and the evidence given by the respondent at sentence revealed that he was "significantly involved" in ongoing supply of prohibited drugs in August and September 2014. Her Honour also found that the respondent was "substantially involved in his own enterprise, in his own business of supply of prohibited drugs" and that his motivation for being so involved was "greed". He was not himself addicted to prohibited drugs; he used the proceeds of his dealing to finance his lifestyle.
Although the amount of methylamphetamine involved in each transaction was usually small, described by her Honour as "street level deals", the number of transactions was significant. The respondent gave evidence that he had between 10 and 20 regular customers. Police relied upon a number of separate instances of supply in the 30-day period before the respondent's arrest as set out in the agreed facts.
Her Honour then considered the subjective circumstances of the respondent. His history of criminal offending, set out above at [12], was summarised. Her Honour considered that the respondent's criminal antecedents deprived him of the leniency that might otherwise have been afforded to him for this offence.
Noting that there was evidence that the respondent had engaged with services in the Waterloo area since being charged, her Honour found that "it is only when [the respondent] is immediately facing a sentencing hearing from the Court or facing a sanction because of noncompliance with the community service work that he engages in fruitful activity". Her Honour went on to observe that, "…his motivation to engage in proper fulltime employment and to obtain what he appears to think is desirable accommodation for himself appears to be low." Her Honour also found that "…he appears to be simply unmotivated to engage in fulltime employment himself. The only time when he is motivated is when there is apparently some real prodding from Corrective Services in order to engage in pro-social activity."
Her Honour considered the respondent to be "eminently employable except for his criminal offending". In this context, her Honour found that the respondent has very good prospects of rehabilitation provided that he is well-supervised. Her Honour remarked that his professed need for rehabilitation was "…much like the need for rehabilitation for many people who come before the Court".
Her Honour found that the respondent had expressed remorse and that he appeared to understand the negative impact of drug supply on the community.
With respect to exceptional circumstances, her Honour stated: "When considering how this matter is to be dealt with, I have already referred to the need and the principle for a fulltime custodial sentence unless there are exceptional circumstances. I accept the statements in Cacciola and Carrion's case that a combination of subjective circumstances each which [sic] may be strong in itself do not add up to exceptional circumstances unless the aggregate of all of those circumstances point to the case being one of real difference from the general run of cases. Counsel in the current case before me for the offender was asked to detail what those exceptional circumstances might be. In fairness, there is some difficulty in identifying them."
Notwithstanding these remarks, her Honour proceeded to make a finding of exceptional circumstances on the basis that the respondent was in need of "substantial supervision" in order to avoid offending in the future. No other matter was identified as going to exceptional circumstances.
Her Honour allowed a discount of 25% on the sentence that she would otherwise have imposed in recognition of the utilitarian value of the respondent's plea of guilty in the Local Court. Her Honour took into account the relative seriousness of the four Form 1 matters when sentencing the respondent for the offence of ongoing supply.
Considering that a sentence of imprisonment "approaching two years" was appropriate, her Honour referred the respondent for an ICO assessment and the matter was adjourned.
On 17 July 2016, two ICO Assessment Report reports were before the Court. The first one was dated 13 July 2016 and assessed the respondent as unsuitable for an ICO. A second report dated 14 July 2016 was also before the Court in identical terms to the first report, but with a conclusion that he was in fact suitable for an ICO. Both reports contained the following opinion: "The issue of concern is Mr Ejefekaire [sic] recent non-compliance with his Community Service Order. Given the offender was also in the process of being assessed for an Intensive Corrections Order during that time, he continued to miss his scheduled work days. It remains untested whether the offender is able to undertake such an order at this stage."
A letter from a Community Corrections Unit Leader on file explained that a junior member of staff had filed the first report with the Court prior to its being approved by her supervisor. The Community Corrections Unit Leader stated: "There was some debate about this locally given his prior poor performance at Community Service. My view on that matter is albeit he was 'difficult' to manage during said order, he did in fact complete it and we are not in the business of avoiding difficult cases."
The background to this guarded assessment is that community service orders for a total of 300 hours were imposed on the respondent on 16 December 2014 for stealing offences (see [12]). As at April 2015, the respondent had completed only 30 hours, his attendance had been unsatisfactory and he had often missed allocated work days without reasonable excuse. Application for revocation of the community service order was made and that apparently prompted better compliance.
By June 2015, according to Community Corrections, "it appeared that the offender had made some improvements" and the application for revocation was withdrawn. The community service orders had to be extended in December 2015, following which, for the first six months of 2016, his compliance with the orders "…appeared to have deteriorated, [he] having failed to attend his work days without a reasonable excuse". The respondent's non-compliance with these orders continued through the period in which he was being assessed for suitability for the ICO.
An ICO for a period of one year and ten months was imposed by Syme DCJ on 15 July 2016 based upon the second report. There were no separate reasons provided on that date. The transcript (which does not appear to have been revised) records what her Honour stated at that time as follows: "When you were last before the court, sir, I indicated the day in relation to the supply charge together with the matters to be taken into account on the Form one. A sentence of approaching, I said the words 'approaching two years' would be appropriate, I have considered matters in relation to that one note plea of guilty was entered. What I propose to do is to sentence you to a term of imprisonment of one year and ten months to be served by way of intensive corrections order, that ICO will commence today and you are required from now on to go straight home and Corrective Services will contact you, we will let them know that that order has been made today."

Grounds of appeal

The Crown appeals the sentence imposed upon the respondent on the following four grounds. 1. The sentencing judge erred by failing to assess the objective seriousness of the offence and/or the moral culpability of the respondent (Ground 1). 2. The sentencing judge erred in the finding of exceptional circumstances (Ground 2). 3. The sentencing judge failed to have regard to general deterrence in imposing the sentence (Ground 3). 4. The sentence imposed was manifestly inadequate (Ground 4).
The Crown acknowledged that appeals under s 5D of the Criminal Appeal Act must be brought for the primary purpose of this Court providing governance and guidance to sentencing courts, not the mere "correction of error" in individual sentencing proceedings: Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [1] and [36]; Griffiths v The Queen (1977) 137 CLR 293 at 310; CMB v Attorney General for New South Wales (2015) 256 CLR 346; [2015] HCA 9 at [55]. Such governance and guidance include where the sentence under appeal is so manifestly inadequate that it is "plainly unjust" and is thereby likely to undermine public confidence in the proper administration of criminal justice in the sentencing of offenders: Bugmy v The Queen (2013) 249 CLR 571 at [24]; Markarian v The Queen (2005) 228 CLR 357 at [25]; Dinsdale v The Queen (2000) 202 CLR 321 at [61].
The Crown's submission is that the sentence imposed in this case is so far below the range of sentences that could be imposed for the offence, consistently with appropriate sentencing standards, that it is "plainly unjust" and likely to undermine public confidence in the proper administration of criminal justice. It is upon this basis that the appeal is brought.

Ground 1: The sentencing judge erred by failing to assess the objective seriousness of the offence and/or the moral culpability of the respondent

Ground 1 was based upon a contention that the reasons of the sentencing judge do not disclose any assessment of the objective seriousness of the offence nor of the moral culpability of the respondent. The Crown relied upon the following observation by Latham J in R v Cage [2006] NSWCCA 304 at [17]-[18]: "A bare recitation of the facts constituting the offences and a reference to the "objective features of the offences" does not satisfy the requirements of sentencing."
Mr Fernandez of counsel, who appeared on behalf of the respondent at the hearing of this appeal, submitted, with respect to both Grounds 1 and 3, that it is necessary to bear in mind the circumstances in which her Honour's reasons were given. As Spigelman CJ observed in R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 at [48], the conditions in which ex tempore remarks on sentence are made "are not such as to permit them to be parsed and analysed". Mr Fernandez submitted that her Honour made findings in relation to each of the factors that are germane to the offence of ongoing supply, namely repetition, system, organisation and magnitude: R v Giang [2005] NSWCCA 387 at [18]-[19]. Her Honour also referred to the quantity of drugs involved, which is another factor relevant to the assessment of objective seriousness: R v Smiroldo (2000) 112 A Crim R 47 at [14]; Smith v R [2007] NSWCCA 138 at [53].
Assessment of the objective seriousness of an offence is a necessary component of the sentencing process and is not limited to offences which carry a standard non-parole period: R v Koloamatangi [2011] NSWCCA 288 at [18]-[19]. As Johnson J (in dissent, but not relevantly for present purposes) observed in R v Ehrlich [2012] NSWCCA 38 at [86]-[87]: "Assessment of the objective gravity of an offence has traditionally been an essential element of the sentencing process: R v Dodd (1951) 57 A Crim R 349 at 354; Khoury v R [2011] NSWCCA 118 at [71]. It is an essential element of the process of instinctive synthesis, a purpose of which is the imposition of a proportionate sentence, which adequately punishes an offender: s 3A(a) Crimes (Sentencing Procedure) Act 1999."
The Court accepts the proposition that extemporaneous reasons of District Court judges made in a busy list should not be read with an eye for error, especially with respect to the use or non-use of certain formulae. What is important is the substance.
In the Crown appeal of Delaney v R; R v Delaney [2013] NSWCCA 150 ("R v Delaney"), this Court considered a similar ground of appeal asserting a failure to determine the objective criminality of the offences. Hoeben CJ at CL (with whom Harrison and Beech-Jones JJ agreed) observed at [56]: "While it is true that his Honour did not in terms assess the objective gravity of the offending, he did specifically refer to the factors which bore upon its objective seriousness. His Honour took account of the amount involved, the role of the appellant, the nature of the conduct and the period over which it took place. While it may have been preferable for his Honour to have made a specific assessment of the objective seriousness of the offending, he did implicitly do so. I am satisfied that the factors to which his Honour referred were relevant and important and were given proper weight in the sentencing process. While his Honour may not have expressly determined the objective criminality of the offences, he clearly took that into account."
A reading of her Honour's reasons discloses that she did recount all of the factors relevant to a finding of objective seriousness. In addition to reciting the matters from the agreed facts relevant to this question, her Honour also considered the respondent's motivation for the offending as described in his evidence. Her Honour noted the number of supplies, the amount of each supply, the Form 1 matters, that the business was the respondent's own enterprise, that purchasers would contact him by telephone and he would supply the small quantity directly, that on some occasions he would supply more than one "street deal", that the supply was for commercial gain, that the profits from his drug dealing were his only form of income besides Centrelink payments, and that he did not supply the drugs to finance his habit but, rather, was motivated by greed.
After reciting all of the facts of the offence, her Honour made no assessment of how serious she considered the respondent's conduct to be nor did she make any reference to the words "moral culpability". When her Honour came to indicate the appropriate sentence she stated: "Considering the objective seriousness of this offence, this is a matter where in my view a sentence of approximately 2 years custody would be appropriate."
Despite the fact that her Honour made no express finding regarding objective seriousness, the Court is satisfied that she was aware of the factors relevant to the question of objective seriousness and referred to them in her reasons. The difficulty is that, unlike the findings of this Court in R v Delaney, extracted above at [43], we are not satisfied that her Honour's recognition of the factors relevant to the objective seriousness of the offence was ultimately reflected in the sentence imposed.
As the decision in R v Delaney shows, there is considerable overlap in a ground such as Ground 1 and a ground asserting manifest inadequacy. Although it is a necessary part of the sentencing process for a sentencing judge to make a finding of objective seriousness, a failure to do so in the context of a Crown appeal does not of itself allow for intervention by this Court unless the sentence is also manifestly excessive. If, after providing her reasons, Syme DCJ had proceeded to sentence the respondent to a term of full-time imprisonment greater than 22 months it seems unlikely that complaint would be made on behalf of the Crown as to her Honour's failure to make a finding regarding objective seriousness.
Although the Court is not satisfied that the sentencing judge failed to assess the objective seriousness of the respondent's offending, the Court is satisfied that the sentence imposed by her Honour failed to reflect the objective seriousness of the offence adequately. We will deal with that error under our consideration of Ground 4 below.

Ground 2: The sentencing judge erred in the finding of exceptional circumstances

There was no issue taken on this appeal that the sentencing judge was clearly aware of the relevant principles. It is well established that an offender who is involved in the supply of prohibited drugs "to a substantial degree" must receive a full-time custodial sentence unless "exceptional circumstances" can be demonstrated. The relevant authorities are cited above at [19]. As Fullerton J (Simpson and RA Hulme JJ agreeing) stated in Smaragdis v R [2010] NSWCCA 276 at [30]-[31]: "As this Court has repeatedly emphasised, when sentencing offenders who have supplied drugs to any significant degree, the general principle is that the imposition of a full-time custodial sentence is necessary to reflect the need for general deterrence…and that only in the exceptional case, where the applicant's subjective circumstances can be shown to mitigate the objective gravity of the offending in such a way as to distinguish it from the general run of cases, will a non-custodial sentence be appropriate. … In particular, the authorities have made it clear that a plea of guilty, remorse and intention not to re-offend and proven rehabilitation in relation to an offender's drug use, even where such circumstances can in combination be described as strong, are not matters of mitigation constituting an exception reason for departing from the general principle unless the aggregate of the circumstances point to the case being one of real difference from the general run of cases…" [emphasis added]
This Court cited the above observation of Fullerton J in Smaragdis v R in the recent case of Forti v R [2016] NSWCCA 127 at [19].
It was submitted on behalf of the Crown that there was no evidence of exceptional circumstances in this case. The respondent's subjective case was not compelling. The only matter identified by the sentencing judge as amounting to "exceptional circumstances" for the purposes of the relevant sentencing principle was the finding that the respondent required "substantial supervision" in order to avoid offending in the future. Central to the Crown appeal against manifest inadequacy in this matter is its contention that a finding that an offender needs substantial supervision cannot alone amount to "exceptional circumstances".
Mr Fernandez quite properly did not seek to challenge the finding by her Honour that the respondent's offending was to be characterised as drug trafficking "to a substantial degree". Rather, he submitted that there was no error regarding her Honour's finding of exceptional circumstances in this matter. He relied upon the fact that the authorities do not define what constitutes "exceptional circumstances" and submitted that the finding of exceptional circumstances due to the respondent's need for supervision was one that was open to her Honour in the context of the respondent's case on sentence as a whole. That case included that he had made significant progress while on bail. It was submitted that this Court should not substitute its own view of what constitutes exceptional circumstances for that of the sentencing judge.
This Court has not sought to define the expression "exceptional circumstances" in this context. Despite this, there have been a number of decisions which assist on the question of what would not amount to exceptional circumstances. Some of the relevant passages from those decisions were extracted in the decision of this court in Polley v R [2015] NSWCCA 247 at [37]-[40].
In R v Cacciola, Priestley JA said at 181: "A distinction needs to be drawn between the strong subjective case and the exceptional circumstances which justify a non-custodial sentence...In regard to what amounts to the kind of exceptional circumstances spoken of in the cases, although there is no clear positive definition of exceptional circumstances to be found in the authorities that have been drawn to the court's attention today, the cases in which exceptional circumstances have been held by this Court not to have existed do provide a firm basis in my opinion for saying that there were no exceptional circumstances in this case. The sentencing judge took into account and these matters were proper to take into account for the purposes of sentencing generally the respondent's youth, the fact he had no prior convictions, his pleas of guilty, his remorse, his prospects of rehabilitation which on the evidence before the sentencing judge were very promising, and his readiness to assist the police… Each of the matters that the judge apparently took into account in arriving at the decision to impose a non-custodial sentence is really a common place matter which frequently happens to people convicted of crime. A number of the cases do have an aggregation of circumstances similar to those in the present case, but a combination of subjective circumstances each strong in itself does not add up to exceptional circumstances unless the aggregate of all those circumstances point to the case being one of real difference from the general run of cases that come before the courts."
In R v Carrion, Grove J (with whom Spigelman CJ, Wood CJ at CL, Foster AJA and James J agreed) said at 153: "His Honour listed two groups of matters which he categorized as common place and exceptional. In the former category he included the guilty plea, remorse, an intention not to reoffend and proven rehabilitation in relation to the respondent's own drug use ... In the latter he specified five matters which he considered were all relevant to the relationship between the respondent and his brother Ray. First, they shared an institutional history in the sense that both had served lengthy periods in prison; second, the respondent was under the influence of his brother in an unusual and exceptional way; third, fears of security in gaol arising out of a belief that he was a selected victim for a fate similar to his brother who was murdered after his return to prison; fourth, it was clear from the taped product of the listening device that the respondent did not want to become involved and, fifth, that Kalache had preyed on Ray Carrion before he was released with the intention of recruiting him to his drug trafficking operation and this in turn drew the respondent into them."
The Court in Regina v Carrion found that none of the five matters said by the trial judge to be "exceptional" were in fact either individually or in combination "exceptional". In Smaragdis v R, Fullerton J (with whom Simpson and R A Hulme JJ agreed) considered the question of what amounted to exceptional circumstances. Counsel for the applicant in that case had identified the following subjective circumstances as "special": "The applicant's addiction to cocaine (the onset of which was coincident with significant personal stressors and ill health), that he had no criminal record, that he good prospects of rehabilitation and was unlikely to re-offend, that he was in employment at the time of sentence, that he pleaded guilty at the first opportunity and that he has shown remorse."
That submission was rejected by this Court for the reasons set out in the passage extracted above at [49].
On behalf of the respondent reliance was also placed on the decision of this Court in EF v R [2015] NSWCCA 36. In that case, the applicant was sentenced in the District Court for one count of supplying a prohibited drug contrary to s 25(1) of the DMTA and one count of dealing with proceeds of crime. This Court found that the sentencing judge was "not adequately assisted in a busy circuit sitting" (at [58]) in that the applicant's legal representative failed to raise the possibility of an ICO as a sentencing option in circumstances where the sentencing judge found the applicant's subjective case to be "compelling". It was held that as a result his Honour had failed to take into account a material consideration, an error within one of the categories identified in House v The King (1936) 55 CLR 499; [1936] HCA 40.
The Court then re-sentenced the applicant, taking into account his considerable post-sentence assistance to authorities. The applicant's sentence was reduced by a combined 50% for the plea and the assistance provided, reflecting that the assistance was of such a kind that it was appropriate to grant a discount at the top of the available range, reserved for exceptional cases: SZ v R [2007] NSWCCA 19.
The principle derived from the decision in EF v R upon which the respondent relied is to be found in what Simpson J (as her Honour then was) stated at [9]: "It seems to have been assumed by all concerned that, because the offence was of drug dealing 'to a substantial degree', non-custodial options were not available." After referring to the decisions of this court in R v Gu, R v Clark and R v Cacciola, Simpson J quoted at [11] the following passage from the decision of Priestley JA in R v Cacciola: "Speaking of policy I reiterate what I mentioned before that the sentencing rule which emerges from Clarke [sic] and later cases is a continuing rule, a rule in the sense that it must be taken into account and given serious consideration by sentencing judges on every occasion when there is a case of this kind, although the sentencing judge must, in the end, always exercise his or her own discretion, but the sentencing policy or rule is not to be neglected and put out of sight, nor should there be excessively liberal interpretation of the phrase 'exceptional circumstances'." (italics added by her Honour)
Her Honour then noted at [12] of R v EF that, "…at the time these statements of 'policy' or 'rule' were made, the option of an intensive correction order did not exist." The Court does not take her Honour to have intended by this statement that the long-standing principle that exceptional circumstances must be established before a person who supplies prohibited drugs to a substantial degree is to avoid a sentence of full-time custody is no longer good law. Although an ICO is characterised as a custodial sentence that is served in the community, it involves a significant degree of leniency: Regina v Pogson; Regina v Lapham; Regina v Martin (2012) 82 NSWLR 60 at [108].
We have had regard to the decision in EF v R. The issue for determination however is not whether a sentence other than full-time custody can ever be imposed for drug trafficking offences. Clearly such a course is possible if exceptional circumstances have been established. Rather, the question is whether the sentencing judge erred in the exercise of her sentencing discretion in this case on the material that was before her.
The Court is satisfied that the sentencing judge erred in making a finding of exceptional circumstances in this matter. There was nothing about the respondent's subjective case that could be described as exceptional. The only feature identified was his need for "substantial supervision". There would be many offenders with a history of criminal offending who would benefit from a high level of supervision. The respondent's recidivism, evident on his criminal record, is not outside the range of commonly encountered circumstances in the ordinary run of cases. Her Honour's finding does not make this case so out of the ordinary as to justify the imposition of a non-custodial sentence. There was very little in the respondent's case that was favourable to him. Nor were the circumstances of his offending exceptional. Her Honour acknowledged, as extracted above at [27], that there was "difficulty" in pointing to exceptional circumstances in this matter. It was not open to her Honour to make such a finding.
Ground 2 is made out.

Ground 3: The sentencing judge failed to have regard to general deterrence in imposing the sentence

The Crown submitted that it is well established that general deterrence is of primary importance when sentencing for offences of this kind: see R v Clark. In that context, the sentencing judge failed to refer to the need for general deterrence at all in her reasons and gave primary consideration to the respondent's rehabilitation to the detriment of specific and general deterrence, punishment and denunciation.
Mr Fernandez submitted that her Honour referred specifically to the statement of principle in R v Clark that, "Sentences involving a substantial element of general deterrence should be imposed upon drug traffickers."
It is clear that Syme DCJ adverted to the principle of general deterrence in the context of sentencing offenders for offences contrary to s 25A. Her Honour's reference to the relevant authorities in her reasons leads us to conclude that she was well aware of the need for sentences for the supply of prohibited drugs such as methylamphetamine to deter others from such offending. Despite this, the Court is satisfied that the sentence imposed by her Honour failed to reflect the need for general deterrence. Although we would uphold Ground 3, it is to be noted that this ground is better characterised as a particular of Ground 4; it is a contention that one reason for the asserted manifest inadequacy of the sentence was her Honour's failure to have regard to the need for general deterrence in this matter. That argument is considered further below under Ground 4.

Ground 4: The sentence imposed was manifestly inadequate

It was contended on behalf of the Crown that the sentence imposed upon the respondent is lenient to the extent that it is "unreasonable or plainly unjust" within the meaning of the test in Markarian v The Queen at [25]. It was submitted that the objective seriousness of the offence called for a full-time custodial sentence. There was nothing in the respondent's subjective case that would entitle him to leniency. The term of the sentence of imprisonment for one year and ten months was manifestly inadequate and this inadequacy was compounded by ordering that it be served under an ICO.
Mr Fernandez referred to the respondent's subjective matters already identified herein. He submitted that an ICO is a sentence of imprisonment that provides substantial punishment.
Reliance was placed by Mr Fernandez upon the Judicial Commission's Judicial Information Research System ("JIRS") statistics, which show that, of the 344 offenders sentenced for s 25A offences from April 2009 to March 2016, three offenders received a bond under s 9 of the CSP Act, 49 offenders received sentences that were suspended under s 12 of the CSP Act, 23 offenders received terms of imprisonment to be served by way of ICO and five offenders received sentences of imprisonment by way of periodic detention (a sentencing option that has not been available since 1 October 2010).
Even accepting the lack of detail about the 23% (80 out of 344) of offenders who did not receive a sentence of full-time imprisonment for an offence contrary to s 25A, it was submitted that this percentage indicates that an ICO is not out of the range of available sentences in the context of fostering consistency in sentencing. This submission was made in reliance upon the observation of Bell and Gageler JJ in the Queen v Pham (2015) 90 ALJR 13; [2015] HCA 39 at [49] (footnotes omitted) that : "Statistics have a role to play in fostering consistency in sentencing, and in appellate review, provided care is taken to understand the basis upon which they have been compiled and provided the limitations explained in the extract from Barbaro above are observed. The value of sentencing statistics will vary between offences. It is not meaningful to speak of a pattern of past sentences in the case of offences which are not frequently prosecuted and where a relatively small number of sentences make up the set."
The Court is satisfied that the sentence imposed in this case was manifestly inadequate for the following reasons.
First, the offence of ongoing supply is a serious offence that carries a maximum penalty of 20 years' imprisonment. Parliament fixes a maximum penalty as an indication of the seriousness with which the community views an offence; it is a guidepost to the sentencing judge in the exercise of his or her discretion. Section 25A (ongoing supply) offences are "considerably more serious" than s 25 (supply) offences: per Wood CJ at CL in R v CBK [2002] NSWCCA 457 at [56]-[57].
Secondly, the authorities establish that persons who are substantially involved in the trafficking of prohibited drugs must receive a full-time custodial sentence unless they demonstrate exceptional circumstances. This has been fully considered in connection with Ground 2.
Thirdly, the respondent asked that four offences be taken into account on a Form 1. Those offences were not insignificant. Accordingly it was appropriate that they impinge upon the sentence imposed for the ongoing supply to a degree that was not insignificant: Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 at [43].
Fourthly, the respondent was subject to conditional liberty at the time of the commission of the offence, being on bail for an offence of stealing property from a dwelling-house committed on 6 February 2014. This was an aggravating factor that ought to have been reflected in the sentence imposed: s 21A(2)(j) of the CSP Act.
Fifthly, the objective seriousness of the offence was not at the lower end of the range of objective seriousness for offences contrary to s 25A. The respondent's role was a significant one. The sentencing judge found that he was effectively the principal in his own enterprise of selling methylamphetamine. He had a number of customers and, although he dealt in small quantities, numerous instances of supply were detected by police in the relevant period of time. The threshold for an offence to fall within the terms of s 25A is supply on more than three occasions within a 30-day period.
Sixthly, her Honour found that the respondent's motivation was financial gain. He was not a user-dealer who employed the money obtained through supply of prohibited drugs to fund his own addiction. Apparently dissatisfied with his Newstart allowance, the respondent supplemented it with the proceeds of his dealing in methylamphetamine.
Seventhly, the respondent gave evidence that he was aware of the negative impact of methylamphetamine while he was dealing in the drug. He could not have failed to understand the impact of that drug on those living in the Redfern/Waterloo area. It is the effect of prohibited drugs such as methylamphetamine on individual users, their families and the community that is the justification for the principle that those who supply drugs on an ongoing basis must receive a sentence of full-time imprisonment absent exceptional circumstances. General and specific deterrence, as well as punishment, loom large as purposes of sentencing in cases such as this.
Finally, there was nothing about the respondent's subjective case that warranted any particular leniency. He had been in custody for six out of the previous 12 years. He was not employed despite being employable. He was not a drug user nor did he have any mental illness. His response to a previous community service was unsatisfactory.
Ground 4 is made out.

Residual discretion

The question is then whether, having found error, this Court should exercise its residual discretion under s 5D of the Criminal Appeal Act not to intervene and re-sentence the respondent. It is for the Crown to persuade the Court that it should intervene: CMB v Attorney General for New South Wales.
The Crown submitted that the Court should not exercise the residual discretion in this case. There was nothing about the conduct of the Crown on appeal, such as delay, or in the proceedings before the sentencing judge that would militate against intervention. It was submitted that the sentence imposed in this case fails both to reflect the criminality of the respondent's offending and to address the need for general deterrence. Although the primary purpose of Crown appeals is to guide sentencing courts, it was submitted, the sentence in fact imposed in a given case remains important: R v O'Connor [2014] NSWCCA 53 at [88].
Mr Fernandez submitted that this Court should decline to re-sentence the respondent for the principal reason that evidence concerning his rehabilitation since being placed on the ICO was said to be compelling.
Two affidavits were read on the appeal in relation to the exercise of the residual discretion and re-sentence: one affirmed by the respondent and one affirmed by his solicitor. They show that the respondent has taken the following steps. Four days after he was sentenced by her Honour he obtained work as a store-person and factory hand at a timber warehouse. He works ten hours per day in that job, three days a week (Monday, Tuesday and Wednesday) and a half day each Friday, which enables him to see either his ICO supervisor or his psychologist for counselling on Friday afternoons. Every Thursday he undertakes his community service as part of his ICO at a recycling company. He works there unpaid from 9:30am until 5pm. His duties include collecting and sorting discarded household items. The evidence on the appeal shows that he is working satisfactorily.
Mr Fernandez relied upon this evidence of the respondent's rehabilitation as well as the fact that the Crown appeal has caused the respondent worry and distress. The respondent is concerned about the impact of full-time imprisonment on his rehabilitation. He stated in his affidavit: "I am concerned that if I get sent to gaol all that I have gained which is my job, seeing Alice my psychologist and staying in touch with MTC and the job network will all be for nothing. They keep an interest in my progress and I do not want to slip back to the way I was before I got the job and started community service." Mr Fernandez cited the caution of Emmett JA in Da Pra v R; R v Da Pra [2014] NSWCCA 211 at [164] that "The guidance afforded to later sentencing judges by allowing an appeal should not come at too high a cost in terms of justice to the individual."
The respondent's current employment is certainly positive. However, according to his psychologist's report tendered in the District Court he had previously worked in the building industry from 2006, on and off when not in prison. There is no basis upon which the Court could conclude that his present employment is a once only opportunity for the respondent to engage in a lawful occupation. As her Honour said, "he is eminently employable except for his criminal offending". There is no reason to think that the respondent will not be able to obtain employment again - as he has done in the past - after serving a further term of imprisonment.
Her Honour's finding that "it is only when [the respondent] is immediately facing a sentence hearing from the Court or facing a sanction because of non-compliance with the community service work that he engages in fruitful activity" is significant. In a similar vein her Honour found, "The only time when he is motivated is when there is apparently some real prodding from Corrective Services in order to engage in pro-social activity."
As RA Hulme J (Leeming JA and Button J agreeing) observed in R v Egan [2013] NSWCCA 196 at [95] (albeit in a very different factual context): "…this case demonstrates the unfortunate consequences that flow from a judge being unduly merciful in imposing a sentence that is substantially less than that which the law demands and that the judge's duty requires to be imposed. Unpalatable as it is, it is the duty of this Court to rectify the significant errors of the primary judge by re-sentencing."
The Court accepts that Crown appeals are concerned with the correction of errors of principle. Despite this, the sentence imposed upon the respondent is such that it requires correction. We are satisfied that the Crown has established that this Court should intervene and re-sentence in this matter.

Re-sentence

It is implicit in the above findings that the Court is of the view that only a sentence of full-time imprisonment is capable of fulfilling the various purposes of sentencing in the circumstances of this case. We have found that there were no exceptional circumstances and that proper effect is to be given to the frequently restated position of this Court that the supply of illegal drugs in any significant degree should attract a full-time custodial sentence.
To the extent necessary, the Court makes a finding of objective seriousness of just below mid-range based on the factors enumerated above at [44]. The facts of the offence summarised that [6] - [8] and [21] - [22] show that the respondent was carrying on an established routine trade in methyl-amphetamine. That this offence was committed whilst on conditional liberty is a further aggravating feature. The Court has had regard to all of the subjective matters referred to herein. We adopt the finding of the sentencing judge that a discount of 25% for the early plea of guilty is appropriate and the finding that the respondent showed genuine remorse for his actions.
The learned the sentencing judge did not make a finding of special circumstances for the purposes of s 44 of the CSP Act because the question did not arise in circumstances where an ICO was being ordered. We do not find special circumstances which would warrant departure from the statutory ratio between the balance of term and non-parole period. Pursuant to the sentence of imprisonment which we consider appropriate the balance of term during which the respondent will be on parole under supervision will be relatively short if the statutory ratio is adhered to. Within the bounds of the overall sentence which we would impose, the parole period could not be made significantly longer, by varying the statutory ratio, without unacceptably eroding the time to be served before release on parole.
The respondent has been under a form of restriction upon his liberty by the operation of the ICO since 15 July 2016. In the circumstances, the Court proposes to give him full credit for the time that he has spent subject to the ICO and his sentence should commence on 15 July 2016.
In all the circumstances, the Court considers that the respondent should be re-sentenced to imprisonment for a non-parole period of 1 year and 9 months, with a balance of term of 7 months. The total effective sentence will be imprisonment for 2 years and 4 months. In accordance with s 50(1) of the CSP Act, the respondent will be released to parole upon the expiry of his non-parole period on 14 April 2018.

ORDERS

The orders of the Court will be as follows: 1. The appeal is allowed. 2. The sentence imposed by Syme DCJ in the District Court on 15 July 2016 is set aside. 3. For the offence of ongoing supply of a prohibited drug between 26 August 2014 and 25 September 2014, Ritchie Ejefekaire is sentenced to imprisonment for a non-parole period of 1 year and 9 months to commence 15 July 2016 and to expire on 14 April 2018 and a balance of term of 7 months to commence 15 April 2018 and to expire 14 November 2018. The total sentence is one of imprisonment for 2 years and 4 months. 4. Ritchie Ejefekaire is to be released on parole upon the expiry of the non-parole period specified in order 3.

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: 16 December 2016

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