R v Knapp [2004] NSWCCA 419 | Case summary

1 SIMPSON J: I agree with Davidson AJ. 2 ADAMS J: I agree with the orders proposed by Davidson AJ but I wish to add some comments of my own. 3 In R v Clark (unreported, NSWCCA 15 March 1990), which was a case involving two counts of supplying amphetamines, Hunt CJ at CL said, "The position is worse when there has been a profitable commercial exploitation, but trafficking alone in any substantial degree should normally lead to a custodial sentence". His Honour had earlier observed that the "word 'trafficking' clearly carries with it the connotation of supply on more than one occasion". In R v Ozer (unreported, NSWCCA 9 November 1993) Hunt CJ at CL referred to what he had said in Clark and concluded that in Ozer's case, his offence was "a limited and isolated event" and thus "he was not 'trafficking' in the sense in which that word is used in the cases, of supply on more than one occasion: Regina v Juliano Romy Bardo (unreported, NSWCCA 1992)". The question of what constitutes "trafficking" for the purpose of applying the principle that such conduct would normally require a custodial sentence has been considered by this Court on a number of occasions, for example in R v Garvie (unreported, 24 March 1997), where Sperling J made the point that even "an isolated business transaction involving a large quantity of prohibited drug" would generally require a full-time custodial sentence". 4 It seems to me that, merely because a person is found on one occasion to have in his or her possession for the purpose of supply a quantity of drugs of less than a commercial quantity and thus (if there is no more evidence on the point) cannot be regarded as trafficking, it does not follow that a sentence of full time custody is not appropriate. In this case, it is evident from the quantity of the drugs and the way in which they were packaged that the applicant proposed to supply them for profit. There could be no other sensible conclusion that he had acquired the drugs for the purpose of trafficking in them but was forestalled by the happenstance of his arrest. In these circumstances a custodial sentence was objectively justified and normally should have been imposed. 5 This was, however, an exceptional case in two respects: the applicant was (for practical purposes) a first offender and he was relatively young: the Judicial Commission statistics themselves demonstrate that only a relatively very small number of offenders fall into this category. The public interest in his rehabilitation was a significant feature in his case, all the more so because it appeared that he was at the beginning of a criminal career. Such an offender will often be significantly deterred by what has been called the "clanging shut of the prison gates behind him". Moreover, the potential advantage of a lengthy period of supervision will usually justify a relatively short period of custody before release on parole. Had he pleaded guilty and thus shown that he was prepared to take the first step towards rehabilitation, that factor and the utilitarian discount might well have justified an order that he should serve his term of imprisonment by way of periodic detention, although I do not mean to imply that a sentence of full-time custody would have been appealably wrong. 6 In the result, however, I respectfully agree with Davidson AJ that a sentence of full-time imprisonment is justified in this case and that, in all the circumstances, the orders his Honour proposes are appropriate. 7 DAVIDSON AJ: This is an application for leave to appeal against the severity of a sentence imposed on the applicant in the Sydney District Court on 26 March 2004. 8 The sentence was imposed on one count laid pursuant to s 25(1) of the Drug Misuse and Trafficking Act 1985 ("Drug Misuse etc Act"). The applicant was convicted following a plea of not guilty. 9 The learned sentencing judge imposed a sentence of eighteen months imprisonment to commence on 4 February 2004 and expiring on 3 August 2005 with eighteen months balance of term to commence on 4 August 2005 and expiring on 3 February 2007. 10 The maximum penalty prescribed under the Drug Misuse etc Act for this offence is fifteen years imprisonment and/or a fine of 2,000 penalty units. 11 The Crown's case was one of deemed, not actual, supply. It was based on evidence of the police, on 9 December 2002, finding six resealable sandwich bags in the applicant's underpants. One of the bags contained two smaller resealable bags, each with three grams of the substance while the remaining five contained thirty one grams, making 161 grams in all. Upon analysis this was found to contain 145 grams of methylamphetamine. 12 Her Honour accepted evidence to the effect that the estimated street value of the drugs was about $2,800 for approximately thirty two grams i.e. in the region of $14,000 for the total quantity found. 13 The grounds of appeal are as follows: "1. The learned judge erred by imposing a sentence that was manifestly excessive in all the circumstances. 2. Her Honour erred by giving insufficient regard to the youth and rehabilitation prospects of the applicant." 14 It is convenient to deal with the second ground first. The date of birth of the applicant is 9 November 1981 and he had therefore just turned twenty one at the date of the offence. He was twenty two years of age when he stood for sentence. 15 Her Honour in her remarks on sentence dealt with these matters in the context of other matters relevant to sentence. She canvassed the contents of a pre sentence report to the effect that the applicant comes from a supportive and loving family. Having left school at about fifteen he has had various employments. He is qualified for work in the building industry and has a forklift driver's licence. 16 In the pre sentence report and in a letter apparently addressed to the sentencing judge after verdict the applicant continued to maintain that he had found the drugs in a park on the way to the house where he was arrested. This assertion was made before the jury and obviously rejected by them. His continued assertion of this as factual to the probation officer and to the Court in the letter is not indicative of remorse on the part of the applicant. 17 His prior criminal record consists of two entries, one a conviction in 2001 for driving with the prescribed content of alcohol and another for being an unlicensed driver. These were regarded as not such as should deprive the applicant of leniency otherwise properly to be extended to him, a view with which I agree. There is also evidence which was apparently accepted as factual to the effect that the offence was out of character and the applicant presented to those who knew him as quiet, polite and courteous, as well as diligent and hard working by those who also employed him. 18 The applicant's letter, to which I have referred, makes reference to his experience whilst in custody. Her Honour accepted that having regard to this "He will not readily put himself in this position again." It is also apparent that her Honour regarded his prospects of rehabilitation as good and the Crown does not challenge this proposition. 19 Dealing with the circumstances of the offence, her Honour described it as a serious one and adverted to the necessity of imposing a sentence appropriate to the objective gravity of the crime. 20 Her Honour said that although there was no evidence that the applicant in fact supplied the drugs or made a profit from their supply "the seriousness of the offence rests on the quantity held in possession". 21 Her Honour also determined that this was a case in which only a full time custodial sentence was warranted and with that view I also concur. The authorities cited by the Crown in this appeal particularly R v Clark NSWCCA, unreported, 15 March 1990 establish the proposition that in cases such as these, a custodial sentence is appropriate even where profit has not been obtained in the absence of "exceptional circumstances". 22 It was in the context of the applicant's lack of relevant criminal convictions, prior good character and good prospects of rehabilitation on release that her Honour considered the aspect of the applicant's relative youth, as she did also in the context of a finding of special circumstances for the purposes of imposing an extended non parole period. I see no error in her Honour's approach, in my view ground two has not been made out. 23 Turning to the other ground of appeal, namely that the penalty imposed was manifestly excessive, reliance is placed upon sentencing statistics issued by the Judicial Commission of New South Wales. Reservations and caveats as to the use of such materials are fully canvassed in the Crown's helpful written submissions. 24 Any tendency to regard the maximum sentence revealed by the statistics as the maximum for the offence is to be resisted. That maximum is of course, a matter for the Legislature, and not to be gleaned from statistical analyses of sentences previously imposed. 25 Nevertheless, I accept the submission of counsel for the applicant that statistics may be of assistance in ensuring consistency in sentencing and in determining whether a sentence is manifestly excessive, or manifestly inadequate, as well as for other purposes. (R v Bloomfield (1998) 44 NSWLR 734 at 739). 26 The statistical evidence submitted on behalf of the applicant relates firstly to a set of penalties for offences of deemed supply of amphetamines involving as here, less than the commercial quantity. This database, Annexure A to counsel's submissions, is said to be an analysis of over 600 cases and in my view cannot be said to be inadequate for present purposes. They shows that in just over one third of these cases a sentence involving full time custody was imposed. The rest of the penalties range between a s 9 bond and periodic detention. 27 The second set of statistics relied upon by the applicant is refined so as to include only sentences in cases more closely related to the present. They involve cases where there was one charge, no Form 1 matters taken into consideration, a plea of not guilty and where the offenders ranged in age between twenty one to thirty years. This database is said to relate to seven cases. Whilst the Crown submits that this is too small a database to permit the drawing of inferences, nevertheless when regard is had to the fact that it involves seven limitations being factored into the data in order to arrive at it from a much more extensive set of data, it is in my view material from which sufficiently reliable conclusions may be drawn. 28 The more limited set of data, Annexure B to counsel's submissions, indicate that no full time custodial sentences were imposed. Twenty nine percent of cases resulted in sentences of periodic detention and the balance in supervised bonds, community service orders and suspended sentences. 29 The question is whether a sentence involving eighteen months full time custody discloses in itself error so as to justify interference by this Court. The material before me does not indicate one way or the other whether the statistics relied upon by the applicant in this Court were before her Honour. If not, this was unfortunate because this sort of material would have helped to indicate the appropriate range (R v Bishop NSWCCA unreported, 23 September 1996; R v Goldsworthy NSWCCA unreported, 22 May 1996). 30 Whilst I have indicated that I accept and endorse the sentencing judge's determination that only a sentence of full time custody was appropriate, the question is whether the quantum of that sentence, having regard to the statistical evidence adduced supports that conclusion. 31 The sentence imposed was outside the range indicated by the statistical material before this Court. Whilst the objective seriousness of this offence did warrant a sentence outside that range including a full time custodial sentence, the objective circumstances did not warrant a sentence of incarceration for a period of 18 months. To that extent error is made out. 32 In the result I would grant leave to appeal, allow the appeal and set aside the penalty imposed in the Court below. 33 As to the penalty to be substituted, the now repealed s 44 of the Crimes (Sentencing Procedure) Act 1999 applies. It requires that the Court must firstly set the term of the sentence and secondly set a non parole period, which must be not less than three quarters of the term of the sentence unless the Court decides that there are special circumstances. 34 As previously noted, the learned judge made a finding of special circumstances based on the combined factors of the applicant's youth and of this being his first time in custody. I would adopt a similar approach and also find special circumstances based on these factors in combination. I would also take into consideration the onerous conditions of servitude which, on the balance of probabilities I accept that the prisoner has already undergone since the commencement of the sentence on 4 February 2004. 35 I propose that the applicant be resentenced to a term of twenty one months imprisonment to commence from 4 February 2004. I would fix a non parole period of nine months to end on 3 November 2004 and direct his release on and from that date. I would also direct that for the balance of the sentence the applicant be subject to the supervision of the Probation and Parole Service until such time as a responsible officer of that service determines that supervision is no longer necessary. This is, of course, in addition to any other conditions of parole which may be fixed. 36 In summary then I would order:

R v Knapp

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