R v Harris

COUNSEL : P G Berman SC - Crown T A Game SC - Respondent SOLICITORS : S E O'Connor - Crown Jeffreys Associates - Respondent CATCHWORDS : Criminal law - Crown appeal against leniency of sentence - supply of not less than a commercial quantity of methylamphetamine and pseudoephadrine - conspiracy to supply not less than a commercial quantity of cannabis leaf - possession of unauthorised firearms - s33 of the Crimes (Sentencing Procedure) Act 1999 - residual discretion to dismiss Crown appeal. Firearms Act 1996 LEGISLATION CITED : Drug Misuse and Trafficking Act 1985 Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986 R v Olbrich [1999] HCA 54; 199 CLR 270 R v Lee (1994) 76 A Crim R 271 R v Morgan (1993) 70 A Crim R 368 R v Barton [2001] NSWCCA 63 unreported, 5 March 2001 R v Bavadra [2000] NSWCCA 292; 115 A Crim R 152 R v Vougdis (1989) 41 A Crim R 125 R v Lemene [2001] NSWCCA 5; 118 A Crim R 131 CASES CITED: R v Dawson [2000] NSWCCA 399 unreported 18 December 2000. Flentjar v Daire (1983) 32 SASR 101 Queen v Shannon (1979) 21 SASR 442 Reiner's case (1974) 8 SASR 102 R v Thurgar (1999) 51 A Crim R 109 R v De Simoni (1981) 147 CLR 383 Griffith v R (1977) 137 CLR 293 R v Everett (1994) 181 CLR 295 DECISION : Crown appeal dismissed.

IN THE COURT OF CRIMINAL APPEAL 60113/01

SPIGELMAN CJ SIMPSON J EINFELD AJ

2 SIMPSON J : This is a Crown appeal against the asserted leniency of sentences imposed upon the respondent in the District Court on 8 February 2001, following the respondent's pleas of guilty to an indictment containing three charges, each brought under s 25(2) of the Drug Misuse and Trafficking Act 1985. An additional thirteen offences, of a different kind, were taken into account under s 33 of the Crimes (Sentencing Procedure) Act 1999. 3 The three charges to which the respondent pleaded guilty were: (i) supply of not less than the commercial quantity of methylamphetamine; (ii) conspiracy to supply not less than the commercial quantity of cannabis leaf; (iii) supply of not less than the commercial quantity of pseudoephedrine. 4 All of the thirteen offences taken into account were offences under the Firearms Act 1996. Twelve involved possession of unauthorised firearms. Of these, three were shortened shotguns; one was a rifle; eight were pistols. The thirteenth offence was of possession of unauthorised ammunition. 5 The maximum custodial penalty applicable to the first and third counts on the indictment was (by reason of the quantity of the drug involved) imprisonment for life. The maximum custodial penalty applicable to the second count, that is possession of cannabis leaf, was imprisonment for fifteen years, again by reference to the quantity of the drug involved. It is unnecessary to mention the additional monetary penalties for which the legislation provides. 6 Each of the three counts of possession of shortened shotguns would, if charged separately, carry a maximum term of imprisonment for ten years. The Crown fairly conceded that each of the remaining counts potentially exposed the respondent to a maximum penalty of five years imprisonment. (I describe this concession as fair because, on one view, the charges involving pistols potentially carried the same maximum penalties as the shotgun charges. In my view it is appropriate in accordance with the Crown concession, to work on the basis that the relevant maximum penalty was, in relation to each of these offences, five years.) The maximum penalty applicable to an offence of unauthorised possession of ammunition is a monetary one. 7 The sentencing judge imposed identical sentences on each of the three counts on the indictment. These were imprisonment for five years with a non-parole period of three years and nine months. In sentencing on the second count (the cannabis leaf count, carrying a statutory maximum of fifteen years) he took the s 33 offences into account. The Crown contends that these sentences were manifestly inadequate and, in particular, contends that they reflect that no proper consideration was given to the offences taken into account. It will be necessary to consider these contentions below.

Facts 8 The indictment specified 9 June 1998 as the date on which the first offence on the indictment was committed, and 1 April and 20 June 1998 as the dates between which the second and third offences on the indictment were committed. 20 June 1998 was specified as the date on which all the Firearms Act offences were committed. 9 A statement of facts placed before the sentencing judge by agreement outlined briefly the circumstances of the offences on the indictment and the respondent's involvement in them. Two other men, beside the respondent, were identified as subjects of the investigation that led to the respondent's arrest. One of the men was said to be the person on whose instructions the respondent acted. 10 Over a period in 1998 police maintained surveillance on a garage in Drummoyne. It was being used as a "safe house" for drugs, guns and chemicals. The respondent was observed coming to and going from the garage to which he had easy access. On a number of occasions he delivered to or removed from the premises drugs or chemicals.

Count 1 11 On 9 June 1998 the respondent delivered to the garage seven plastic bags containing in total 2.39 kilograms of methylamphetamine. Two days later he removed at least one of the bags.

Count 2 12 Also contained in bags in the garage were more 34.166 kilograms of cannabis leaf, the subject of the second charge. Over a period the respondent removed four of the bags. He drove to Pyrmont, where he met two co-offenders, into whose car he transferred the cannabis.

Count 3 13 On 1 June 1998 the respondent took from the garage a bag containing 10 kilograms of pseudoephedrine. Between that date and 20 June he took away two drums each containing 25 kilograms of the same drug. 14 Even on this short account of the facts, it is obvious that the enterprise was a major drug operation, and a sophisticated and organised one. It was appropriate, if the evidence permitted it, for the sentencing judge to determine the role played by the respondent in the enterprise: R v Olbrich [1999] HCA 54; 199 CLR 270.

Subjective circumstances 15 The respondent did not give sworn evidence. He did, however, through his wife and others, present a favourable subjective case. He was born on 14 June 1961, and was thirty-seven years of age at the time of his involvement in the offences. He has been married since 1996 and has one daughter, born in 1998, to whom he is devoted. He retains the wholehearted support of his wife. He and his wife had experienced financial difficulties as a result of his wife's having ceased work pending the birth of the child. There was some impressive evidence of community involvement by the respondent, particularly in relation to football coaching. His wife believed that he may have become involved in the offences because of his undue willingness to help others out. There was a favourable pre-sentence report which reviewed the respondent's history. 16 He had a previous criminal history of some relevance, although rather aged. In 1989 he was convicted of possession of an unlicensed pistol, receiving, conspiracy to rob whilst in company and armed, possession of means to disguise face, and two counts of larceny of motor vehicles. After appeal, he was sentenced to a minimum term of three years and three months with an additional term of two years and nine months.

The sentencing regime enacted in the Drug Misuse and Trafficking Act 17 By s 45 and Schedule 1 to the Drug Misuse and Trafficking Act, a commercial quantity of methylamphetamine is 250 grams. For this offence imprisonment for twenty years is the prescribed maximum penalty. A large commercial quantity of methylamphetamine, exposing an offender to life imprisonment, is 1 kilogram. The quantity involved in the offence to which the respondent pleaded guilty was 2.39 kilograms. 18 A commercial quantity of cannabis leaf is 25 kilograms. Such an offence carries a maximum penalty of imprisonment for fifteen years. A commercial quantity of cannabis leaf is 100 kilograms, carrying a maximum penalty of imprisonment for twenty years. The respondent admitted an offence involving 34.166 kilograms, about double the commercial quantity, but less than half a large commercial quantity. 19 A commercial quantity of pseudoephedrine is 1.25 kilograms, and, like a commercial quantity of methylamphetamine, carries a maximum penalty of imprisonment for twenty years. A large commercial quantity of pseudoephedrine is 5 kilograms, carrying life imprisonment. The amount of this drug in the respondent's possession was 60 kilograms. 20 Although in the indictment to which the respondent pleaded guilty the Crown specified a commercial quantity of methylamphetamine and pseudoephedrine, the amount of drug actually involved in each of these offences constituted a large commercial quantity, exposing the respondent in each case to life imprisonment. It was on this basis that the sentencing judge sentenced the respondent. The Crown relies on the decision of this court in R v Lee (1994) 76 A Crim R 271 to support that approach, and no argument to the contrary was advanced on behalf of the respondent.

The s 33 offences 21 Only a bare outline of the facts of the s 33 charges was provided. That showed that, during the course of the surveillance of the Drummoyne garage, police covertly entered, pursuant to a search warrant. Inter alia, they located three bags containing the gun, ammunition and radio scanners. All items were left in the garage and constant surveillance was maintained. Nobody except the respondent was seen to enter over a four week period.

The Crown appeal 22 As orally argued, the Crown appeal focused primarily on the manner in which the sentencing judge approached the s 33 offences. It is convenient here to set out the relevant subsections of s 33: 33. Outstanding charges may be taken into account (1) When dealing with the offender for the principal offence, the court is to ask the offender whether the offender wants the court to take any further offences into account in dealing with the offender for the principal offence. (2) The court may take a further offence into account in dealing with the offender for the principal offence: (a) if the offender: (i) admits guilt to the further offence, and (ii) indicates that the offender wants the court to take the further offence into account in dealing with the offender for the principal offence, and (b) if, in all of the circumstances, the court considers it appropriate to do so. (3) If the court takes a further offence into account, the penalty imposed on the offender for the principal offence must not exceed the maximum penalty that the court could have imposed for the principal offence had the further offence not been taken into account. (4) A court may not take a further offence into account: (a) if the offence is of a kind for which the court has no jurisdiction to impose a penalty, or (b) if the offence is an indictable offence that is punishable with imprisonment for life. 23 The Crown argument was founded on the proposition that it would be wrong in principle to approach sentencing as though the s 33 procedure was merely a device to enable an offender to clear the slate of outstanding charges or previous offences without suffering any additional penalty. So much is well established. A judge sentencing for an offence in relation to which he or she is asked to take into account additional offences should give due recognition to the gravity of those offences: R v Morgan (1993) 70 A Crim R 368; R v Barton [2001] NSWCCA 63, unreported, 5 March 2001; R v Bavadra [2000] NSWCCA 292; 115 A Crim R 152 24 Morgan was decided under the forerunner of s 33, s 21 of the Criminal Procedure Act 1986. Its terms were not substantially or relevantly different. Hunt CJ at CL repeated a previous criticism (R v Vougdis (1989) 41 A Crim R 125, per Yeldham J) of the Crown where it consents to a serious offence being taken into account rather than being separately charged. Having said that, his Honour added: "But, such an offence having been taken into account on this occasion, the whole situation had to be considered - both the murder and the armed robbery with striking . … The only limitation upon the penalty to be imposed when dealing with matters to be taken into account pursuant to s 21 of the Criminal Procedure Act 1986 (NSW) is, as s 21(3) says, that the penalty must not exceed the maximum penalty which the court would have been empowered to impose if no other offence had been taken into account … Whatever the practice may have been before Vougdis it is wrong in principle that there should only ever be little by way of addition to the penalty imposed upon the offence charged when another offence is taken into account pursuant to s 21 ..." 25 In Barton Spigelman CJ said: "The position, in my opinion, is that, although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community's entitlement to extract retribution for serious offences when there are offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence. There are matters which limit the extent to which this is so. The express position in sub s 33(3) referring to the maximum penalty for the primary offence is one. The principle of totality is another." 26 And in Bavadra, Wood CJ at CL said: "[31] There is a considerable advantage to the administration of justice, and to accused persons, for a party facing sentence to clean up the record. For that purpose the Form 1 procedure is beneficial. The objective of individual rehabilitation can be advanced by its use, since the offender does not face the prospect of further trials. There is a utilitarian value in the admission of guilt that is involved so far as there can be a saving of the resources of the law enforcement agencies and the courts concerned. Additionally, the sentencing judge is placed in a position where it is possible to sentence the offender for the totality of his or her outstanding criminality to that point. However, unless proper weight is given to the additional offences that have been disclosed, this procedure fails its true purpose." 27 Different views have been expressed in this court as to the approach to be taken to sentencing in these circumstances, and to the benefit (if any) an offender receives as a consequence of the use of the procedure, as distinct from being charged with and pleading guilty to each individual offence. In R v Lemene [2001] NSWCCA 5; 118 A Crim R 131, I expressed the view that an offender who adopts the procedure is entitled to expect an additional penalty significantly less than would have been imposed had separate charges been prosecuted; if that were not so then the section would provide no incentive for the use of the procedure, which is administratively convenient both to the prosecution and to the courts and must therefore be implemented in such a way as to afford some benefit to an offender. Hulme J, with whom Barr J agreed, expressed a different view in R v Dawson [2000] NSWCCA 399, unreported 18 December. His Honour said: "[50] It was asserted by Mr Byrne, senior counsel who appeared for the applicant that one of the purposes of s 21 was to enable an offender's slate to be wiped clean and, perhaps as an inducement to have this done, the practice in the sentencing courts was to impose substantially less by way of penalty for matters taken into account than would occur if they were included in an indictment. To the extent to which the application to have matters taken into account amounts to an acknowledgment of guilt and any punishment for them and the offence charged must reflect principles of totality, it is of course proper that the penalty imposed for matters taken into account be less than if those matters had stood alone as individual and lone charges. Often the operation of the principle of totality may have the effect that relatively little is added for the charges taken into account. However, subject to the limits imposed by s 21 itself, (now replaced by s 33 of the Crimes (Sentencing Procedure) Act 1999) it seems to me that there is no basis in either the statute or logic to justify a general approach of treating matters taken into account as thereby meriting a lower penalty than had they been the subject of specific charge. If the practice of sentencing courts is as Mr Byrne asserts, it is in my view, wrong." 28 The opinion I stated in Lemene appears to me to be consistent with that expressed by Wood CJ at CL (with whom Beazley JA and Greg James J agreed) in R v Bavadra at [31]. 29 However, the fact that implementing the s 33 procedure might result in some benefit to the offender does not have the necessary consequence that no additional punishment will be imposed in respect of the offences dealt with in that way. In Bavadra, Wood CJ at CL said: "[30] When serious offences are included in a Form 1, the sentence imposed, in respect of the count for which they are taken into account, must reflect the totality of the criminal involvement. It is not the case that Form 1 offences need only be noted in passing, or that little by way of additional penalty should be imposed by reason of their existence: Morgan …" 30 A particular difficulty confronts sentencing judges where the additional offences are numerous or very serious. The only restriction placed upon the sentencing judge is that the sentence imposed for the offence in relation to which the additional offence is (or offences are) taken into account must not exceed the: "maximum penalty that the court could have imposed for the principal offence had the further offence not been taken into account." 31 In this court an argument was floated (rather half heartedly, it seemed to me) that the phrase "the maximum penalty that the court could have imposed" in sub s (3) might mean something other than the statutorily prescribed maximum for the offence charged; for example, it might mean the maximum sentence that might properly be imposed for the offence having regard to all objective and subjective circumstances: in other words, as I understood the suggestion, the sentence that would represent the top of the range of sentences properly available in the exercise of sentencing discretion. In my opinion, that argument should be firmly rejected. The relevant words in sub s (3) should be taken to be a reference to the statutory maximum for the offence charged. 32 It has not been the practice in sentencing where additional offences are taken into account to identify any increase in the sentence imposed. This appeal, like others before it, raises the question whether any increase, by reason of the additional offence or offences, in the sentence that would otherwise have been imposed, ought to be quantified. As the question was not fully argued, and as to require such a change to established sentencing practice might have implications not presently apparent, I would not now suggest a modification to the procedure generally followed. However, lack of quantification of any such increase leaves it unclear whether, and if so to what extent, the sentence was increased. In my opinion it would be appropriate to reconsider the approach taken to sentencing in these circumstances, if for no other reason than to achieve consistency. If the Crown is to persist in what appears to me to be its present practice (and I do not suggest that it should not - it has clear advantages for the administration of justice, not only economic, but in relieving witnesses of the ordeal and inconvenience of giving evidence) then sentencing judges are entitled to guidance as to the principles to be applied. 33 Senior counsel for the respondent also drew attention to a decision of Zelling J in the Supreme Court of South Australia: Flentjar v Daire (1983) 32 SASR 101. Zelling J was dealing with an appeal against the severity of a sentence imposed by a court of summary jurisdiction in relation to a number of charges, where the appellant had asked that four further offences be taken into account under the South Australian equivalent procedure. His Honour said: "My own procedure, when I have been asked to take other offences into account, is that unless I am told in complete detail about the other offences that I am asked to take into account which has never so far happened is not to increase the sentence because of those other offences but to treat the other offences asked to be taken into account as matters counterweighing those which might otherwise have gone in reduction of sentence, as for example in the instant case the accu`sed's pleas of guilty in terms of the judgment of the Court of Criminal Appeal in the Queen v Shannon [(1979) 21 SASR 442]. 34 This court was invited to adopt the same approach, an invitation I would reject. It is, in any event, inconsistent with pronouncements of this court in Vougdis, Morgan, Barton and Bavadra. Further, Zelling J went on to say: "I am of the same opinion as Wells J in Reiner's case [(1974) 8 SASR 102, at p116] where he said: 'It would, for example, be undesirable, in my opinion, to charge one breaking and entering offence as representative when there were several others alleged with respect to as many different premises; each of such breakings constitutes a new sortie into criminal conduct, and should be separately charged and taken into consideration according to established procedures.' Accordingly if the learned special magistrate imposed a higher sentence in the case of the offence at the home of Mr Parkin than he would otherwise have imposed, because of the other four counts of house breaking asked to be taken into account by the appellant, I cannot say that he was wrong in law in so doing although it is a practice that I do not follow myself." 35 The procedure formerly provided by s 21 of Criminal Procedure Act 1986, now by s 33 of the Crimes (Sentencing Procedure) Act 1999, appears to me to have been used with increasing prevalence, both as to numbers of offences, and gravity of offences. In the present case, the suggestion that the firearms offences were available only to rebut favourable or mitigating circumstances, is, in my opinion, quite wrong. The penalty imposed had to include some recognition (by way of increased penalty) to accommodate the very serious offences taken into account. 36 In this case the decision by the Crown to have the Firearms Act offences dealt with by the s 33 procedure added to the level of complexity in sentencing the respondent. The firearms offences, though plainly related to the drugs offences, were of an entirely different kind. That made factoring them into the sentence imposed in relation to the cannabis leaf charge rather artificial. 37 The starting point of the Crown argument was that the gravity of the Firearms Act offences was not reflected in the sentence imposed on the cannabis leaf charge, in relation to which they were said to have been taken into account. In support of this argument, counsel for the Crown referred to the decision of this court in R v Thurgar (1999) 51 A Crim R 109 at 113. There Gleeson CJ said: "As the learned judge observed, the offence of possessing an unlicensed pistol is one that can cover a very wide range of circumstances. … Plainly, a person may be in possession of an unlicensed pistol in circumstances which call for a light penalty, or even no penalty at all. The failure to have a licence might result from pure inadvertence, or accident, and the possession might in every other respect be completely innocent. On the other hand, the legislature clearly contemplated that there were circumstances in which possession of an unlicensed pistol might warrant a lengthy term of imprisonment. Subject to an important qualification that will be mentioned below, … the most obvious circumstance calling for the imposition of a penalty at the higher end of the range would be one relating to the purpose for which such a weapon was possessed. In particular, and again subject to the qualification to be mentioned below, the possession of such a pistol for a purpose connected with proposed criminal activities would be likely to be the kind of thing that would lead to the imposition of a penalty close to the maximum."

[The qualification to which his Honour referred concerned circumstances appertaining particularly to the case there under consideration. The appellant had been charged with conspiracy to murder, but convicted of a charge of possession of an unlicensed pistol. Because of the acquittal, and the principle stated in R v De Simoni (1981) 147 CLR 383, the appellant in that case could not be sentenced on the basis that his purpose for possessing the unlicensed pistol was related to a conspiracy, or intention, to murder.] 38 That qualification has no application in the present case, although, of course, if the respondent were being sentenced for the firearms offences, he could not, in accordance with De Simoni principles be sentenced as though he had committed a more serious offence than the offence charged, or an aggravated form of that offence. As was pointed out by counsel for the Crown, there is no legitimate purpose in the possession of a sawn-off shotgun, even if it were possible to hypothesise a legitimate purpose for the possession of the other guns. 39 It was against this background that counsel for the Crown argued that the sentences, but in particular the sentence imposed in relation to the second count, failed adequately to reflect the gravity of the s 33 offences. 40 This court was provided with statistics maintained by the NSW Judicial Commission in relation to sentencing for the offence of knowingly taking part in the supply of not less than a large commercial quantity of amphetamines. 68 percent of offenders were sentenced to full terms of five years or more; 51 percent to minimum or fixed terms of four years or more. Of course, these statistics do not disclose whether the offender was being sentenced, as was the respondent, for a variety of offences, nor do they disclose any of the other objective or subjective circumstances. Certainly, at face value, they suggest that the total term imposed upon the respondent was toward the lower end of the available range; and the minimum term (being less than four years) was also in the lower range of sentences. 41 No similar statistics in relation to conspiracy to supply not less than the commercial quantity of cannabis leaf were provided. That sentence is of considerable significance because it was in respect of this charge that the additional offences were taken into account. It is important to remember that the maximum sentence available in relation to that charge was imprisonment for fifteen years, and yet the sentence imposed was identical to the sentences imposed in relation to the two offences which carried a maximum of life imprisonment. This does suggest that some weight was given to the firearms offences. If that were not so, then it could be expected that the cannabis leaf sentence would have been significantly less than the other two sentences, in order to reflect the substantially lesser maximum penalty. 42 I am, therefore, not satisfied that the sentencing judge omitted to take those offences into account. 43 Even so, in my opinion, having regard to the totality of the respondent's offending, the overall sentences were very lenient. While a total term of five years, with a non parole period of three years and nine months may have been an acceptable sentence in relation to any one of the charges (including the cannabis leaf count, taking into account the firearms offences), I have come to the view that, for the combination of offences, the sentences were unduly lenient. 44 Against the possibility that the court might take such a view, senior counsel for the respondent drew attention to the familiar decisions of the High Court in Griffiths v R (1977) 137 CLR 293 and R v Everett (1994) 181 CLR 295. It is unnecessary to restate the principles derived from these cases. They place a brake on Crown appeals. 45 This court retains a discretion, even when undue leniency has been demonstrated, to dismiss a Crown appeal. 46 In order to support a final argument that that discretion ought be exercised in favour of the respondent, an affidavit sworn by his solicitor was tendered. He recounted a conversation with the Area Manager of the prison where the respondent is serving his sentence, in which the respondent was described as "an exceptional inmate", "in a trusted position, working as Officers Amenities Sweeper", and maintaining the gym equipment, "an above standard worker, polite, complies with all prison rules". This material tends to reinforce the evidence of rehabilitation that was put before the sentencing judge. 47 Although I remain of the view that, having regard to the total criminality demonstrated by the respondent, the seriousness of the offences, and the period of time over which he was involved, I have concluded that this is an appropriate case in which to exercise the residual discretion to dismiss a Crown appeal notwithstanding manifest inadequacy of sentence. Accordingly, I propose that the Crown appeal be dismissed. 48 EINFELD AJ : I agree with Simpson J. *****

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.