R v Kijurina

Court of Criminal Appeal (NSW)|2017-05-15|Before: Hoeben CJ, Price J, Lonergan J, As Price J

Solicitors: Mr C Hyland - Solicitor for Public Prosecutions Mr R Funston - Legal Aid NSW File Number(s): 2014/144612 Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 28 October 2016 Before: Jeffreys DCJ File Number(s): 2014/144612

Facts

An agreed statement of facts was placed before the judge. The agreed facts may be summarised as follows:
On 1 May 2014 authority to conduct a controlled operation was granted authorising an undercover operative ("UCO"), to participate in conversations and negotiations concerning the supply, purchase and possession of prohibited drugs from the respondent and/or his associates.
At 12.10pm on 6 May 2014 the UCO met with the respondent at a coffee shop. Also present at the meeting was a registered source, "Mr B", who introduced the UCO to the respondent. The respondent informed the UCO that he had supplied prohibited drugs on a previous occasion. During the meeting, the UCO said to the respondent that he was interested in purchasing two kilograms of methylamphetamine or "ice", and the respondent indicated that he could supply him with that amount.
The respondent informed the UCO that he was also able to supply "oil" - a reference to methylamphetamine oil - and indicated that he could provide a sample the following day.
The UCO asked the respondent how long it would take for two kilograms of methylamphetamine and for methylamphetamine oil to be supplied. The respondent said that it would take two days for the two kilograms of methylamphetamine and the oil could be supplied the next day. The respondent agreed that he could supply two kilograms of methylamphetamine for $460,000 and methylamphetamine oil for $160,000 per litre. It was discussed that $150,000 was for the upline supplier and $10,000 was for the respondent.
During the meeting, the respondent told the UCO that he had a sample of methylamphetamine in his vehicle. He walked away with his coffee cup and five minutes later returned and placed the coffee cup in front of the UCO. Inside the coffee cup was a cigarette packet containing a small resealable plastic bag with a sample of methylamphetamine. The sample was subsequently submitted for forensic analysis and it was determined to be 0.05 grams of methylamphetamine.
On 13 May 2014, after a number of coded conversations between the respondent and the UCO, an agreement was made to meet in the carpark of the Moore Park Golf Club for the exchange. The UCO was provided with $700,000, which was expected to be for the purchase of two kilograms of methylamphetamine for $460,000 and $240,000 for the purchase of methylamphetamine oil.
The UCO walked towards the respondent and they had a conversation which was recorded and conducted under police surveillance. The respondent informed the UCO that there was a problem as the upline supplier was in hospital with his son. The UCO asked whether the respondent could get the methylamphetamine from the supplier and the respondent indicated that he could, and that he had in fact seen the methylamphetamine the night before.
The respondent then informed the UCO that he had two bottles of oil for him. The UCO said, "you're talking about a litre and a half, aren't you?" and the respondent agreed. The respondent walked the UCO to his vehicle and opened the boot. There was a cardboard box in the boot, which contained two clear wine bottles, filled with clear liquid. The UCO smelt the contents and noted that they had a similar smell to ethanol and/or methylated spirits.
The respondent informed the UCO that he had placed two testers in the cardboard box to enable the UCO to authenticate the contents of the bottles. The contents of the bottles were later submitted for forensic analysis and it was determined that they did not contain a prohibited drug. The testers provided were identified as ephedrine presumptive test kits, with fingerprints from both pouches matched to the respondent.
The UCO informed the respondent that he had the money, and the respondent placed the box containing the bottles into the back tray of the UCO's utility vehicle. The UCO then enquired as to when he could expect delivery of the two kilograms of methylamphetamine. The respondent indicated that it would take a couple of days.
Both the respondent and UCO entered the UCO's vehicle. Police officers then removed the respondent from the vehicle and arrested him. The respondent declined to participate in an electronic interview.

The respondent's oral evidence

The following is a short summary of the respondent's evidence before the judge. The respondent said that Mr B was his drug supplier. They had been involved together in a mobile phone business which essentially was sourcing iPhones from China. They had travelled to China together but Mr B had gone behind his back and had made extra money on the phones. When he asked Mr B about this, Mr B replied "mate, do I need to get the boys involved?" The respondent said that Mr B was a "Hells Angel" so "the boys" were his Hells Angel mates. The respondent had not spoken to him for two years prior to his telephone call in early 2014.
In early 2014, Mr B asked him if he could provide him with large amounts of "ice" and ephedrine oil. The respondent said that in the course of a number of telephone calls and meetings, he was threatened by Mr B whom he believed had the capacity to carry out his threats.
The respondent said he could not obtain what Mr B required and he spoke to "Mo" from whom he obtained cocaine for his own use. Mo informed him that he could provide a sample of ice, but he did not know where to obtain ephedrine oil and could not provide him with the quantities that Mr B wanted. The respondent said that he got a sample of ice from Mo and he told Mr B that he had a sample and arrangements were made for them to meet.
He said that when they met, Mr B told him to "play the part" and to tell this guy [the UCO] that I can get two kilos of ice, and a litre of ephedrine. He said that Mr B told him to come along with the sample of ice, play the part and make out that he knew what was going on and Mr B would take it from there.
The respondent was taken to the reference in the agreed facts, where he had informed the UCO he had supplied on previous occasions. He agreed he said that, but was playing a role and hadn't supplied anything on other occasions.
He agreed that he met with Mr B and the UCO and supplied the UCO with a sample of ice, but all that he said during the meeting were lies, as he was playing the part.
He said prior to the next meeting, he met up with Mo and in that meeting Mo told him that the only thing they could do was to put something in the bottles, put a few testers in, go there on the day and whatever happens, happens.
The respondent further said "I was heavily reliant on drugs. I wasn't thinking straight, I wasn't with it, so I organised with Mo that he would get bottles and put whatever he put in it and get me the testers and as for the two kilos, that was never happening" (Tcpt, 29 October 2015, p 14).
He said "on 12 May I went and met with Mo and picked up the two bottles of lookalike ephedrine with the testers that were in there and on the thirteenth, I obviously went to Moore Park and what did I do? I tried to sell something that wasn't something, not that I wanted to do it, I just didn't know what else to do" (Tcpt, 29 October 2015, p 14-15). The respondent said that he felt he needed to do it. He referred to the threats from Mr B and did not feel as though he had any options.
The respondent said he expected to get $240,000 for the litre and a half of the substance in the bottles. He was going to give half the money to Mo, $100,000 to his parents and keep $20,000 for himself.
The evidence given by the respondent in cross-examination included denials that it was he and not Mr B who was directing the transaction and that he had access to two kilograms of ice. He said that he had committed the offences because he wanted to "rip-off" Mr B, the man who was threatening him.
The Crown cross-examined the respondent on a number of SMS messages between the respondent and Mr B that had been downloaded from Mr B's phone (Ex D). The respondent was unable to remember either receiving or sending them.

Evidence of Mr B

The Crown called Mr B in reply to the respondent's evidence. His evidence included the following:
In 2013 he had been charged with an offence of supplying a commercial quantity of a prohibited drug and was released on bail. He gave evidence that the arresting officer supported his bail on the condition that he would do controlled operations for the police.
Mr B said that he met the respondent in 2010 and had sporadic contact with him. He characterised their relationship as friendly. He said that on 2 February 2014, under an arrangement with NSW police, he met up with the respondent for dinner and a general catch-up. The respondent asked if he knew anyone that wanted to invest money in importing bags from overseas that were laced with cocaine. He said that he might know somebody, and the respondent indicated that he might be able to supply methamphetamine as well. Mr B reported this back to police.
Mr B further stated that he and the respondent then continued to communicate by phone and met numerous times in person. At one such meeting, the respondent told him that he could supply one and half litres of oil that his friend was holding, and that he could supply ice. The respondent was going to ask his friend how much the supply for the ice and for the oil was going to be and then get back to Mr B. When shown the SMS messages (Ex D), he identified the messages from his phone sent by and received from the respondent.
He confirmed that on 6 May 2013, he met with the UCO for the purpose of introducing him to the respondent, and that he was aware of the sample the respondent provided.
He further confirmed that he received and sent SMS messages to the respondent regarding a later meeting between the UCO and the respondent for the purposes of supplying methylamphetamine oil.
In cross-examination, Mr B agreed that he had been charged with the supply of the commercial quantity of a prohibited drug in September 2013. He had been overseas when he heard that the police were investigating him for this offence and contacted his solicitor to try and broker a deal for him. He was arrested when he returned to Australia and around ten weeks after his arrest, the arresting officer supported his release on bail so that he would do controlled operations for them. This included the respondent.
He contacted the respondent about getting something "going" as far as drug dealing around 28 December 2013. The police gave him instructions on what to do, which continued into 2014. His evidence was that the SMS exchanges between himself and the respondent of 24, 26 March and 12 April 2014 were about the drugs.
Mr B agreed that when he was sentenced for his own offence of supply, on 5 December 2014, he received a discount on sentence for his early guilty plea and his assistance to authorities, both past and promised, of 60 per cent. The sentencing judge indicated that 15 per cent was for future assistance.
He denied that he threatened the respondent's family. Mr B agreed that he had gained very considerably by assisting the police in this case and his prime motive was to ensure that he got the lower penalty.

The respondent's subjective circumstances

The respondent was 28 years old at the time of offending and 31 years old when sentenced. His oral testimony in the proceedings on sentence included the time that he had spent in the rehabilitation centre at Dooralong. He said that he entered the centre eight days after being granted bail and it was the best thing that he had done. He remained at Dooralong, a live-in rehabilitation centre for four and a half months. The respondent told the judge that he then started a cleaning business with his step-father. In cross-examination, the respondent agreed that he did not complete the full programme at Dooralong.
Written material that was before the judge included a pre-sentence report and a psychologist's report. The respondent told the author of the pre-sentence report that at the time of the offences he was addicted to cocaine and using large amounts on a daily basis. He had undertaken four months of a ten month drug rehabilitation programme between 10 June 2014 and 14 October 2014. The respondent asserted that he had abstained from drugs since that time. The author of the report observed that this assertion was supported by his girlfriend and confirmed by a recent urine drug screen. The respondent related that his drug addiction had been a contributing factor in the offences, having compromised his judgment.
The respondent was self-employed and working five days a week. He benefited from the support of his mother and step-father, his girlfriend and her parents. The respondent was assessed as having a low risk of re-offending and was suitable for an intensive correction order.
The psychologist's report of Ms De Santa Brigida provided a history of the respondent's substance abuse. The report detailed that his first use of an illicit drug was at the age of 18 years when he was introduced to cocaine through his relationship with an older woman. Following that introduction, the respondent moved out of home with that partner and commenced using cocaine on a daily basis, before ending the relationship after nine months and returning home.
At around the age of 20 he met his current partner who was and is drug-free. At that stage he was firmly entrenched in daily drug-using. At the age of 25, he admitted his addiction to his current partner and she left when she realised he would not stop using drugs. He told the psychologist that after she left him he started using increasing daily amounts of cocaine, up to and in excess of one gram per day.
The respondent was also consuming 15 to 20 pills of ecstasy over the course of a weekend. He also indicated that he commenced smoking cannabis to help him "come down" from his cocaine use. This pattern of drug use continued until the respondent's arrest. Ms De Santa Brigida concluded that the respondent fell in the low range of further offending and that he had a number of protective factors in his life which acted as a buffer against further offending. This included his girlfriend who was drug-free, the support of his family, steady employment and most importantly that he was now drug-free.
Oral evidence was given by George Kijurina, the respondent's stepfather, Nana Kijurina, his mother and Alexandra Leondaris, his partner. All of the witnesses described the positive steps that the respondent had taken towards his rehabilitation and the support that he has from his family. The judge was told that the respondent had commenced a commercial cleaning business which was doing well. The witnesses said that the respondent had been drug-free. The respondent's mother and partner described how much he had benefited from the drug rehabilitation programme.

Some findings by the judge

The judge observed that the quantity of drugs was a significant factor in assessing the objective seriousness of the offences. His Honour found that the quantity of the drugs "so far as a large commercial quantity is concerned is towards the lower end in relation to both types of prohibited drug alleged" (ROS 12).
The judge said "insofar as the Crown relies upon the evidence of Mr B, it is my view that I need to bear in mind the type of warnings that I would give a jury in relation to the type of evidence that Mr B gave in the circumstances that Mr B gave them" (ROS 18).
His Honour went on to say "that taking into account the warnings that I would need to give myself I am not able to be satisfied that I am able to accept the evidence of Mr B where it is adverse to the offender and I do not propose to do so" (ROS 18).
His Honour having considered the SMS messages, said that it was difficult to be satisfied on balance in relation to non-exculpatory duress and accordingly was unable to find non-exculpatory duress.
In respect of count 1, the judge was satisfied that the respondent intended to obtain money from Mr B and people who he believed were Mr B's "boys". The judge remarked that the respondent believed that the UCO was one of Mr B's boys. His Honour was satisfied that the respondent "planned with Mo intending to engage in a "rip-off" to provide the UCO and [Mr B] with two bottles of liquid purporting to be methylamphetamine oil and at the time the offender knew the bottles did not contain methylamphetamine oil" (ROS 19).
The judge found that the objective seriousness of count 1 was towards the bottom of the range of objective seriousness if not at the bottom of the range.
The judge also found that the respondent did not intend to later meet the UCO in relation to the offer of supply of two kilograms of methylamphetamine or to ever fulfil that offer. His Honour found that count 2 was at the bottom of the range of objective seriousness and not in the mid-range as submitted by the Crown.
In consideration of the factors set out in Vu v R [2006] NSWCCA 188 at [89] ("Vu"), the judge was satisfied on balance that: 1. the offer to supply was an isolated one in the special circumstances that applied in relation to the relationship between Mr B, the respondent and the UCO; 2. the respondent was expecting to obtain from the UCO and Mr B an amount of money for the liquid which was purported to be a prohibited drug; 3. that any conversation relating to the two kilograms of methylamphetamine was with no intention or motivation for commercial gain; 4. that the respondent did not at any time intend to fulfil the offer to supply; 5. that the respondent did not have the capacity to fulfil the offer to supply; and 6. that the reason there was no attempt to fulfil the offer was not because the respondent was unable to obtain the drugs due to the upline supplier going to hospital but because the respondent never intended to fulfil such an offer.
His Honour observed that the respondent had no previous criminal record and found him to be a person of previous good character, however noted that prior good character is of less significance in offences of this type.
The judge said that the respondent was using and abusing drugs at the time of the offences (ROS 23). His Honour found that, in accordance with what was said by Wood J in R v Henry 46 NSWLR 346 at [273] ("Henry"), the respondent's state of mind and capacity to exercise judgment was compromised by his use and abuse of drugs. His Honour was satisfied that the respondent had remained drug-free since his arrest, after which he spent 20 days in custody before seeking entry into a drug rehabilitation programme.
The judge said that the referral of the matter for an ICO assessment was predicated on the circumstances of the offending, the fact that the respondent participated in a drug rehabilitation residential programme and had shown steps towards rehabilitation beyond that which the Court usually sees. The judge said that he was particularly impressed by the evidence of the respondent's mother, stepfather and his partner. The judge found that there were good, if not excellent, prospects of rehabilitation.
The judge remarked that in sentencing the respondent, he had taken into account the term of three months that the offender had served in custody and in quasi-custody in the residential drug rehabilitation programme.

Crown Appeals

The principles relating to Crown appeals pursuant to s 5D of the Criminal Appeal Act were helpfully summarised by Hoeben CJ at CL in R v Barker [2016] NSWCCA 193 as follows: "[52] Crown appeals pursuant to s 5D of the Criminal Appeal Act 1912 must be brought for the primary purpose of this Court providing governance and guidance to sentencing courts. That requirement operates as a "limiting purpose" for such appeals and, by contrast with the Court's jurisdiction in sentence appeals brought by offenders, so circumscribes the jurisdiction of this Court on Crown appeal as to prevent intervention (other than on the ground that the sentence is 'plainly unjust' by reason of its manifest inadequacy) for the mere 'correction of error in the individual sentencing proceedings' Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462; R v Tuala [2015] NSWCCA 8). [53] Accordingly, in a s 5D Crown appeal which asserts some errors of sentencing principle (apart from the ground that the sentence is "plainly unjust") the Crown must: (i) Establish the existence of error(s) by the sentencing judge within one or more of the first four categories referred to in House v R [1936] HCA 40; 55 CLR 499 at 505 (R v Tuala at [99]); (ii) Identify the sentencing principle which is engaged by such errors: (R v Tuala at [99]); (ii) Establish that the sentence under appeal is manifestly inadequate: (Regina v Janceski per Hunt AJA at [25] with whom Spigelman CJ and Howie J agreed). … [55] Crown appeals pursuant to s 5D might also be brought for the purpose of this Court providing governance and guidance to sentencing courts 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] HCA 37; 249 CLR 571 at [24]). Such appeals involve the fifth category of error referred to in House v R."
In the present appeal, the Crown seeks to engage this Court's discretion to provide governance and guidance to sentencing judges so that due consideration continues to be given to ensuring that sentences for supplying prohibited drugs in large commercial quantities adequately reflects the maximum penalty of life imprisonment and standard non-parole period of 15 years. Further, to ensure that considerations of objective seriousness, general and specific deterrence are given appropriate weight and not overshadowed by excessive emphasis, being placed by sentencing judges, upon subjective features favourable to the offender. Finally, for guidance to sentencing judges as to circumstances that will and will not justify the imposition of an ICO in lieu of a full-time custodial sentence.

Argument

The Crown pointed to the Judicial Commission's sentencing statistics between 2009 and 2016 which revealed that in 110 cases involving supply of large commercial quantities of amphetamines, only two cases did not involve the imposition of a full-time custodial sentence. Those cases were said to have involved extraordinary assistance by the offender to the authorities. Of the remaining cases, the lowest sentence was one of three years imprisonment. The Crown submitted that there are no recorded cases of any offender being sentenced to an ICO for the offence of supply of a large commercial quantity of drugs within the amphetamine group, let alone for two such offences.
The Crown case on sentence was that the respondent was unaware that the substance was not actually methylamphetamine oil, that is, he intended to supply an actual prohibited drug. The Crown contended that its case was established by the agreed facts, the SMS messages between the respondent and Mr B and Mr B's evidence
The judge's acceptance of the respondent's evidence that he had always planned to "rip-off" Mr B and the UCO and at the time he knew that the bottles did not contain a prohibited drug was said by the Crown to be contrary to the evidence. The Crown criticised the judge for the direction that his Honour gave himself pursuant to s 165 of the Evidence Act 1995 as to Mr B's evidence and for no specific reason being given to his Honour's finding that Mr B's evidence was unreliable.
The Crown contended that the judge's rejection of the respondent's claim of "non-exculpatory duress" and the rejection of Mr B's evidence were completely contradictory. An important reason for calling Mr B, the Crown said, was to rebut the respondent's claim of duress. The Crown argued that the SMS messages clearly showed that it was the respondent urging Mr B to conclude the deal and not the other way round. Mr B's evidence was consistent with the objective evidence contained in the SMS messages and the Crown said that his Honour must have accepted this evidence (or at the very least had no cause to reject it) in respect of the question of duress.
The Crown contended that the judge mischaracterised the offence related to the supply of two kilograms in relation to the criteria set out in Vu at [89]. In particular, it was submitted that this offence was considered in isolation from the totality of the respondent's conduct, leading to an erroneous assessment of its objective seriousness. The Crown said that the agreement to supply was part of a wider conduct, starting with the respondent providing the UCO with a sample of methylamphetamine and at the subsequent meeting supplying the two bottles that he represented to be 1.5 litres of methylamphetamine oil. The Crown argued that the fact that a substance of some kind was supplied, evidenced a more specific intention to fulfil the agreement.
It was also submitted that his Honour's findings were erroneous in respect of the assessment of the quantum of drugs involved as being towards the lower end, an error which affected the assessment of the overall seriousness of the offending. The quantum of the drugs in both counts, the Crown said, was substantially above the large commercial quantity threshold.
Another submission was that the judge failed to address the issue of financial gain. For the supply of the oil, the respondent was to receive $240,000. The Crown contended that the judge did not consider the issue of the dissemination of a dangerous drug into the community. Whilst some other substance in the present case may have been disseminated, the danger remains that this substance may be on-represented as being a prohibited drug, and its ingestion could prove more dangerous to end users than the drug itself would have. Notwithstanding the fact that the supply in this case was to a UCO and the substance was therefore not disseminated, the respondent's willingness to do so should have been a relevant consideration in assessing the impact of the offending: R v DW [2012] NSWCCA 66 [107]-[117].
It was further argued that the judge's implied finding of exceptional circumstances - so implied by referring the matter for an ICO assessment - was erroneous. It was submitted that none of the reasons given by his Honour for referring the matter for an ICO, either by themselves or in combination with each other, could constitute "exceptional circumstances". The Crown relied on Parris v R [2013] NSWCCA 5 as authority for the proposition that in cases of commercial drug supply, general deterrence and punishment will generally outweigh subjective circumstances. It was submitted generally that the judge gave excessive weight to subjective features as against other sentencing considerations such as the objective seriousness of the offending and the need for general deterrence.
The Crown also contended that his Honour erroneously found, in accordance with Henry at [273], that the respondent committed the offences due to a need to acquire funds to support a drug habit.
Finally, the Crown argued that the sentence his Honour imposed was wholly concurrent and did not reflect his intention to partially accumulate the sentences. This was said to be another error resulting from the judge's emphasis to extend leniency to the respondent.
When referring to the Crown's submission as to the Judicial Commission's sentencing statistics, the respondent submitted that the Crown did not refer to any "like" cases. The respondent contended that in the present case, the offending conduct was relatively unusual as the actual supply in the first count related to a substance known by the offender not to be a prohibited drug and was largely motivated by revenge ("wanting to 'rip-off' Mr B"). The second count was committed in circumstances where there was never any intention to carry out the supply and the respondent had neither access to the actual drugs, nor was there a chance that the drugs would be supplied.
The respondent argued that in the absence of information about the circumstances of the offences and offenders comprising the statistics and how they compared with the present case, limited assistance could be gleaned from them. It was further submitted that because the offending conduct was unique and was found to fall at the bottom end of the range of objective seriousness, where it fell in comparison to the statistics for all offences, did not indicate, on its own, that the sentences were unduly or unreasonably lenient, even if it were the lowest imposed.
As to the Crown's criticism of the judge's findings of fact, the respondent contended that his Honour's findings were not contradictory and were open to the judge. The respondent submitted that it was proper for the judge to give himself a warning pursuant to s 165 of the Evidence Act. Mr B was not only an informer who had traded information about the respondent's involvement in the offences for bail, and for a sentence discount on his own matter but was at the time a heavy gambler, himself involved in the drug trade, carrying a number of convictions for prior fraud offences.
Another argument was that the judge was, based on his factual findings, entitled to make the findings that he did as to the objective seriousness of the offences. Further, his Honour did not err in finding that the quantity of the drugs in both offences was at the lower end of the scale as this offence can involve up to 50 kilograms which was a matter that the judge discussed with the Crown during the proceedings on sentence.
The respondent contended that the judge did not fail to address the issue of financial gain but this issue was expressly considered by the judge. As to the Crown's submission of dissemination of a dangerous substance into the community, the respondent put to the Court that not only was the substance never going to be disseminated into the community, but a tester was provided that would have shown it to be a fake.
The respondent submitted that should the Court find that his Honour's assessments of objective seriousness were not reasonably open in the circumstances, the Court may then consider whether favourable factors not found by the judge such as non-exculpatory duress were in fact present.
It was submitted that the judge did not err in failing to balance other sentencing considerations with the respondent's subjective case. The respondent put to the Court that an ICO was sufficient to meet all the purposes of sentencing. As to the Crown's assertion that the judge erred in the manner in which the ICOs were structured, the respondent submitted that from the accumulation of the second offence upon the first, it can be inferred that the judge was aware of the two year limitation on an ICO.

Consideration

In order to succeed on a ground of manifest inadequacy the Crown must establish that the judge imposed a sentence that was well below the range of sentences that could be justly imposed for the offence, consistent with sentencing standards. Sentencing is a discretionary judgment and there is no single correct sentence for an offender and offence: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [24].
As the Crown points out, the Judicial Commission sentencing statistics between July 2009 and June 2016 disclose that out of the 110 cases of supply of large commercial quantities of amphetamines, only two cases did not result in full-time custodial sentences. A significant factor in the imposition by the District Court judges of suspended sentences in those cases appears to have been the substantial assistance given by the offenders to the authorities. There are no recorded cases of any offender being sentenced to an ICO.
The limitations upon the use of sentencing statistics, as they do not record the actual material upon which an offender was sentenced, are well known. This is particularly so in the present case as the judge found the respondent was not involved in an actual supply. However, manifest inadequacy may be shown by consideration of all of the matters that are relevant to fixing the sentence: Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [60].
At the centre of the Crown's complaint of manifest inadequacy is the criticism of findings of fact made by the judge. In addition to the respondent's claim of non-exculpatory duress, his knowledge and intention were at issue during the sentencing proceedings. It was the Crown case that the respondent believed that the substance he supplied to the UCO was methylamphetamine oil (count 1) and he intended to supply two kilograms of methylamphetamine (count 2). For these transactions, he stood to gain $700,000. The Crown bore the onus of establishing both knowledge and intention beyond reasonable doubt.
The judge did not accept the Crown case on the respondent's knowledge and intention nor was his Honour satisfied that the respondent acted under duress. The respondent bore the onus of establishing non-exculpatory duress, on the balance of probabilities.
Where factual findings are challenged on appeal, the applicant must demonstrate that the findings of fact were not open: Turnbull v Chief Executive of the Environment and Heritage [2015] NSWCCA 278 at [26]-[32].
It is trite to observe that error must be shown before this Court will interfere in the sentence. Factual error may be demonstrated if there is no evidence to support a particular finding, if the evidence is all one way, or, if the judge has misdirected himself. This Court might disagree with his Honour's findings, but that is not sufficient. Without error being established, this Court has no power to substitute its own findings for those made by the judge: R v O'Donoghue (1988) 34 A Crim R 397 at 401; AB v R [2014] NSWCCA 339 at [52], [59].
The Crown's complaint that the judge erred in giving himself a warning as to the unreliability of Mr B's evidence under s 165 of the Evidence Act is without foundation. Mr B was central to the drug deal and received a sentencing discount for his past and future assistance to police. Police had supported his release on bail so that he would do controlled operations for them which included the respondent.
Section 165 of the Evidence Act relevantly provides: "165 Unreliable evidence (1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence … (d) evidence given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding. ... (2) If there is a jury and a party so requests, the judge is to: (a) warn the jury that the evidence may be unreliable, and (b) inform the jury of matters that may cause it to be unreliable, and (c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it."
Section 4(2) provides that the Evidence Act may apply to sentencing proceedings at the direction of the Court. His Honour made it clear during the hearing on 2 March 2016 that he should give himself a s 165 warning, with which the respondent's counsel agreed and the Crown did not oppose. As the resolution of the factual dispute between the respondent and Mr B was of importance in the findings that were ultimately to be made, the direction that his Honour gave himself was appropriate in the interests of justice.
Unlike this Court, his Honour had the benefit of observing both the respondent and Mr B giving their evidence in chief and in cross-examination. The judge was not obliged to accept Mr B's evidence. I am not persuaded that this Court should interfere in his Honour's assessment of the witnesses.
Relevantly, the judge made the following findings: 1. the respondent did not act under duress; 2. he planned with Mo to "rip-off" Mr B and the UCO by supplying the two bottles of liquid which purported to methylamphetamine oil but which he knew was not in fact methylamphetamine oil (count 1); 3. the offer for supply was an isolated one in the special circumstances that applied in relation to the relationship between Mr B, the respondent and the UCO; and 4. he did not have the intention or the capacity to supply the two kilograms of methylamphetamine (count 2).
All of these findings, in my opinion, were open on the evidence and agreed facts.
The Crown was critical of the judge's consideration of the criteria in Vu. In Vu, Buddin J (with whom James and Hall JJ agreed) identified a number of factors that will usually be relevant in assessing the objective gravity of an offence contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. Buddin J said at [89]: "In terms of offering to supply factors which will often be relevant in determining the objective seriousness of an offence under s.25(2) of the Act will include:-

The terms of the offer, in particular, as to the quantity of a drug, its price, etc.
Whether a particular offer is an isolated one or whether it occurs in the context of an ongoing supply of prohibited drugs.
Whether, and if so, the extent to which the offer is motivated by reasons of commercial gain or greed.
Whether the offeror at all material times had the intention to fulfil the offer.
Whether the offeror had the capacity to fulfil the offer to supply.
Whether the offeror attempts to fulfil the offer. If not, whether any failure to perform was the result of a decision by the person concerned not to supply or whether it was due to some intervening or extraneous circumstances."

The findings made by the judge when considering the factors identified in Vu are set out in [58] above. Whilst all of the findings were open on the evidence, the mere recounting by the judge that the respondent was expecting to obtain from the "UCO and [Mr B] an amount of money for the liquid" minimises the objective gravity of the respondent's offending. When giving specific consideration to the objective gravity of the first count, the judge said that he was satisfied "on balance that the offender intended to obtain money from [Mr B] and people who the offender believed were [Mr B's] boys" (ROS 19).
In my respectful opinion, it appears his Honour failed to properly consider that a term of the respondent's offer was to supply methylamphetamine oil at $160,000 per litre and his expectation was to obtain $240,000 from the supply. This was a significant amount of money.
Whilst the judge may have had in mind larger quantities of prohibited drugs with which offenders may be charged for an offence of supply of not less than the large commercial quantity when he opined that the quantity of drugs involved in both offences was "towards the lower end", these amounts were substantially above the large commercial quantity for methylamphetamine of one kilogram.
Another matter that his Honour appears not to have appreciated is the seriousness with which drug "rip-offs" are viewed. Although the criminality may be less than in a case where there is a genuine plan to supply drugs, drug "rip-offs" are objectively serious and remain subject to the penalties that apply to an offence contrary s 25(2) of the Drug Misuse and Trafficking Act.
In R v Yaghi (2002) 133 A Crim R 490; [2002] NSWCCA 396 ("Yaghi"), Woods CJ at CL said: "[16] It is regrettably a fact of life, within the organised drug trade, that "rip offs" occur, and those who choose to cloak such an endeavour with the appearance of a genuine drug deal, must accept the consequences if their conduct happens to fall within the specific provisions of the Drug Misuse and Trafficking Act. That this is the case is indicated by the decisions of this Court in R v Dessdic and Mazzeo (1987) 34 A Crim R 40, R v Addison (1993) 70 A Crim R 213 and R v Salem NSWCCA 3 October 1997, each of which confirmed that the relevant mens rea was that relating to the agreement or conspiracy to make an offer to supply which would be regarded by the offeree as genuine, rather than an intention to perform it. [17] Part of the reason for that lies in the circumstance that, unlike most cases of fraud or false pretences, the victim of a drug rip off is unlikely to report the matter to police. As a result, subject to any act of violent retribution, which commonly follows such an event, the offender is likely to escape scot-free. [18] There is a significant community interest in not allowing the drug trade to be used as a vehicle for fraudulent activities of this kind, and also in deterring the kind of violent response which such conduct can very readily provoke."
In the present case, the respondent acted in a way which was consistent with dealing in prohibited drugs at a high level. He exchanged SMS messages, coded conversations and provided a genuine sample of methylamphetamine. The provision of the two testers and the agreement to provide the two kilograms were part of the false pretence. He stood to gain $240,000 by the deception. Whatever he then intended to do with the money has little significance as these were serious offences.

The residual discretion

As this is a Crown appeal, the residual discretion to decline to intervene must be considered. The Crown is obliged to satisfy the Court that the residual discretion should not be exercised: CMB v Attorney General for New South Wales (2015) 256 CLR 346; [2015] HCA 9. It has been said that the primary purpose of Crown appeals is to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons. However, the guidance afforded to sentencing judges by allowing the appeal should not come at too high a cost, in terms of justice to the individual: Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [36], [44].
There has been no delay in the institution and service of the Crown appeal nor can it be said that the manifestly inadequate sentence was caused or perpetuated by the Crown.
In determining whether or not to exercise the discretion, an affidavit from the respondent has been received. The respondent affirms to his continuing abstinence from drugs, his strong relationship with his partner and his focus upon his commercial cleaning business, which employs four sub-contractors. He describes his anxiety and hopelessness since learning of the appeal.
A troubling feature of the present case is the extraordinary length of time that elapsed between the respondent first appearance before the judge on 29 October 2015 and the imposition of sentence on 28 October 2016. The chronological outline in the Crown's written submissions need not be repeated here. It is sufficient to observe that after hearing further evidence and submissions on 1 and 2 March 2016, his Honour adjourned the matter for sentence on 5 April 2016. The sentence date was subsequently vacated and the matter was listed for sentence on 12 April 2016. On a further two occasions the sentencing date was vacated, the parties eventually coming before his Honour on 3 August 2016. As the Crown observes this was some five months after the matter had been adjourned for sentence.
On that day, the parties were informed by the judge that he did not propose to pass sentence. His Honour told the parties that he required assistance in relation to a sentence for a drug "rip-off" and that there was a likelihood of a sentence of two years or less. Furthermore, the judge expressed his displeasure arising from what his Honour said was the assistance he had sought on a previous occasion that had not been provided. His Honour directed that an intensive correction assessment report be prepared.
After receiving further submissions, the judge sentenced the respondent on 28 October 2016, almost one year after the respondent's first appearance before the judge.
There appears to be no good reason for the judge not ordering an intensive correction report at an earlier stage or making it plain to the parties that further submissions were required. On 2 March 2016, the judge directed that written submissions be provided on "quasi-custody" which the parties complied with by 11 March 2016. If further assistance was required, a note to that effect from the judge could have been sent to the parties well before 3 August 2016. Among the many consequences of such unnecessary delay is the added distress to the respondent and his family caused by continuing uncertainty as to the eventual outcome.
The respondent pleaded guilty to the charges on 16 October 2014. Since that time, he has commenced a business and remained drug-free. He has the support of his partner and his family. There is no suggestion that he has not complied with the conditions of his ICOs. In my opinion, it would be unjust in all the circumstances to re-sentence the respondent to terms of full-time imprisonment.
Although the Crown has established manifest inadequacy in the sentence imposed by his Honour, I am not persuaded that this Court should intervene. Accordingly, I propose that the Crown appeal under s 5D be dismissed.
LONERGAN J: I agree with Price 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. Decision last updated: 31 May 2017

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (12 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (21)

Cited By (7)