R v Mendez

Drug Misuse and Trafficking Act 1985 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999

R v Way (2004) 60 NSWLR 168 R v Pellew [2004] NSWCCA 434 R v Shi [2004] NSWCCA 135 CASES CITED: R v Blair [2005] NSWCCA 78 R v Allpass (1994) 72 A Crim R 561 Dinsdale v The Queen (2000) 202 CLR 321

Regina (Appl) PARTIES: Raymond Mendez (Resp)

Ms J A Girdham (Crown/Appl) COUNSEL: B Dalton (Resp)

S Kavanagh - DPP (Crown/Appl) SOLICITORS: S E O'Connor - LAC (Resp)

IN THE COURT OF CRIMINAL APPEAL 2005/617

STUDDERT J KIRBY J HOWIE J

Friday 22 July 2005 REGINA v Raymond MENDEZ Judgment 1 STUDDERT J: I agree with Kirby J. 2 KIRBY J: This is an appeal against sentence by the Crown. Mr Raymond Mendez (the respondent) was charged with an offence of (deemed) supply of a commercial quantity of the prohibited drug, methylamphetamine, contrary to s25(2) of the Drug Misuse and Trafficking Act 1985. He stood trial before Maguire DCJ and a jury in the Campbelltown District Court. On 26 November 2004, the jury returned a verdict of guilty. On 18 March 2005, he was sentenced to a non parole period of 3 years (commencing on 30 September 2003 and expiring on 29 September 2006) with a further term of 12 months (expiring on 29 September 2007). On 4 April 2005, the Crown gave notice of its intention to appeal. Mr Mendez was served with that notice the same day. 3 I shall first describe the offence and then deal with the complaints of the Crown.

The circumstances of the offence. 4 In the early hours of 12 April 2003, Mr Mendez, then a man aged 22 years, was driving a motor vehicle along Saltbush Avenue, Bass Hill. Suddenly he lost control of the vehicle. It collided with the kerb and mounted the footpath before returning to the roadway. The collision deflated two of the tyres so that the vehicle was not driveable. Mr Mendez then fell asleep. He was still asleep at 11.00 am when a passing motorist called the police. 5 The police arrived at 11.15 am. Mr Mendez was still asleep, seated in the driver's seat. The police observed a wallet between his legs with a large number of $20 notes protruding from it. There were more notes between the front seats. The police woke Mr Mendez. He was searched, as was the vehicle. According to police, Mr Mendez had a small plastic bag in his jeans pocket. It contained 7 grams of methylamphetamine. The police also found a further 28.9 grams of the same drug in a shopping bag on the front passenger's seat. Concealed within the glovebox was a further plastic bag containing 442.9 grams of methylamphetamine. 6 The police recovered a total of 478.8 grams of methylamphetamine. The drugs were tested and found to be 84% pure. Evidence was given that, on a conservative basis (if cut to 5% rather than the usual 1%), the street value would be approximately $670,000. There was, in Mr Mendez' wallet and in the vehicle, a total of $3,600. 7 The police also found within the vehicle, the usual paraphernalia of a drug dealer. There were two sets of electronic scales, two mobile phones and a large number of resealable plastic bags. 8 After the jury had returned its verdict, three issues of fact were identified, which were thought to have some relevance to sentence and which had not been resolved by the verdict. First, Mr Mendez at trial had denied having in his possession the small quantity of methylamphetamine which the police said they found in his jeans pocket (7 grams). In his Honour's remarks on sentence he said that he accepted the police evidence. It was plainly open to him to reach that view. No complaint is made on this appeal concerning that finding. 9 The second issue was rather more complex. Mr Mendez, at trial, and again on sentence, swore that four days before his arrest he had sold the vehicle in which he was arrested. Some weeks after his arrest, registration papers were lodged by him, on behalf of the purchaser, purporting to record the sale of the vehicle four days before the offence. The Crown suggested at the trial, and again on sentence, that Mr Mendez was trying to distance himself from the vehicle and its contents, including the drugs. His Honour resolved that issue as follows: (ROS 3) "I am entirely satisfied that the transfer of registration which purported to show a sale by the offender prior to his apprehension was a not so clever device entirely directed to mislead. I do not accept the offender's version of the sale. I am satisfied that at the moment of his apprehension he was the owner of the vehicle concerned." 10 The third issue, however, was not specifically addressed by his Honour. The police found, in the map compartment of the vehicle, a piece of A4 paper setting out names, addresses and phone numbers and recording amounts of money against these names. A police drug expert, Det Sgt O'Toole, gave evidence that it was a "crude ledger" of the type commonly used by drug suppliers (T160). A single fingerprint of Mr Mendez was found on the back of the document. Mr Mendez denied that it was his document or that he knew anything about it. There was no evidence that the handwriting was that of Mr Mendez. Mr Mendez explained the fingerprint by reference to the location of the document. He had fumbled through the map compartment in his use of the vehicle. He could have touched the document accidentally. When the question was first raised (on 10/02/05 T2), his Honour said that he "would have great difficulty in resolving that issue". The issue was not addressed in the remarks on sentence. It does not, in my view, need to be determined on this appeal. 11 Mr Mendez was convicted upon the basis of "deemed supply" (cf s29 Drug Misuse and Trafficking Act 1985). His Honour, when sentencing, did not deal with the circumstances in which Mr Mendez came to be in possession of such a significant quantity of drugs. However, there was evidence which, to some extent, defined Mr Mendez' role. Mr Marc Milic, a psychologist, provided a report dated 28 January 2005. It included the following history (which Mr Mendez said was true): (p5/6) "Mr Mendez said he became a heavy daily drug user in the four month period before he was arrested. He said he began helping drug dealers in return for drugs and began using ecstasy and cocaine in addition to methamphetamines. He said he also smoked cannabis at the time in order to help him get to sleep. Mr Mendez estimated that he used approximately one thousand dollars worth of drugs per week in this period. He said that he began injecting drugs towards the end." 12 When giving evidence on sentence, Mr Mendez elaborated. He said he ran errands for the drug suppliers, delivering "things to their customers" (T6). In cross examination, he was asked the following question: (T14/15) "Q. Could you elaborate on that, what are the errands? A. Just hang around and I would drive them around. Sometimes I'd get asked to meet up with someone to give them drugs and get money, bring it back, just to weigh the bags up, see people, just do any errand and in return I'd just get to hang around and I'd get to use drugs while I was there. Q. And when you say 'weigh the bags up' do you mean cut drugs from a pure sample down to smaller and put it into little bags or what do you mean? A. Like if somebody wanted fifty bucks of drugs I'd go and weigh up a point for them if I was told to and I would just do that." 13 It is plain that Mr Mendez was not simply a courier. Whilst he may not have been a principal, he was involved in a number of aspects of the business of supplying drugs. 14 In written submissions provided to the sentencing Judge, the Crown identified three matters which, in terms of s21A(2) of the Crimes (Sentencing Procedure) Act 1999, may be regarded as aggravating features of Mr Mendez' crime. Adopting the paragraphs of that section, the Crown said this: "(i) The offence was committed without regard for public safety - in Shi the sentencing judge held that the purity of the drugs being 84.5% pure (compared with 84% in this instance) were an aggravating feature as 'the amount of the drug that he was delivering was of a considerable value, and of considerable potential destructive force to people who would have been able to use it; accordingly the offence was one that was committed without regard for public safety.' (at para 16) (m) The offence involved multiple victims or a series of criminal acts. (n) The offence was part of a planned or organised criminal activity."

The subjective case of Mr Mendez. 15 In the same submission, the Crown acknowledged a number of mitigating factors. Again, adopting the paragraph numbers of s21A(3) of the Act, the Crown said this: "The Crown concedes that the following factors can be taken into account in mitigation in accordance with s21A(3): (e) the offender does not have any record for previous convictions, (f) the offender was a person of good character, (h) the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise." 16 Mr Mendez was born on 13 September 1980. He was, as mentioned, 22 years old at the time of the offence. When sentenced, he was 24 years old. He was still a young man. As his Honour remarked, he came from "a decent family" (ROS 5). The evidence included references from a number of people who knew the family and Mr Mendez well. Mr Mendez was born in the Philippines. He came with his mother and siblings to Australia at an early age. His father followed some time later. He was a gifted student. He received a number of awards and prizes at school. Having completed the Higher School Certificate in 1999, he enrolled at the University of Western Sydney studying a Bachelor of Commerce Degree - Accounting. In his first year he did well, passing all subjects and indeed gaining a distinction in Information Technology. 17 By the year 2000, however, there were symptoms of his developing drug problem. He began to fail in a number of subjects. The same is true of the years 2001 and 2002. It will be remembered that he was arrested on 12 April 2003. 18 The Probation and Parole Report, in a passage quoted by his Honour, described the escalating drug use of Mr Mendez, in the period before his arrest, in these words: (ROS 4) "Mr Mendez stated he commenced the use of amphetamines approximately one year into his university studies at the age of twenty or twenty-one. He added that he was introduced to the drug through a family member and started using the drug on a recreational basis on the weekends. Over time his use increased and he found friends who were also into drug taking, adding he progressed to other drug use. The offender stated he began using cocaine, seven grams shared with friends in a week; ecstasy, ten pills in a week plus daily use of ice. On some nights when he was having difficulty in getting to sleep he would occasionally use cannabis. Mr Mendez stated that during this period of his drug taking he could not see that his intake was problematic. However, his incarceration period has given him time to reflect and he stated he is able to see in hindsight that his drug use was a problem. The offender has not accessed any programs or counselling with the alcohol and other drug worker in custody. However, he stated he is willing to do this." 19 By the time of his arrest, as set out in the report of Mr Milic, he was taking drugs daily, whether amphetamines, cocaine, ecstasy or cannabis. 20 Remarkably, Mr Mendez managed to pass a number of subjects in the course he was undertaking throughout this period. He also worked part time. The records of the University of Western Sydney disclosed that Mr Mendez had completed all but three of the subjects necessary to graduate in the degree he was pursuing. Mr Mendez has said that he intends to complete that degree, if possible whilst he is serving his sentence. 21 Mr Mendez gave evidence that, since his incarceration, he had come to recognise the devastation that drugs had caused to him personally and his family. He had resolved to take no further drugs. He said that, with three exceptions, he had maintained that resolve. Indeed, he had given up smoking. The exceptions involved two occasions (since 30 September 2003) where he had accepted cannabis and one occasion where he had taken amphetamines in gaol. 22 His Honour, in his sentencing remarks, quoted the conclusion of Mr Milic where he dealt with Mr Mendez' prospects of rehabilitation. Mr Milic said this: (report 28.1.05 - Exhibit 5) "Mr Mendez' tendency towards the dependence on others for approval and self esteem currently manifests itself in an adaptive way as a desire to rediscover his Christian religion and to belong to a church. Mr Mendez' prospects for rehabilitation are enhanced by the following factors. He has a high level of intelligence, has demonstrated the ability to succeed at university and expresses motivation to complete his studies. He has a good employment record and a supportive family. Most importantly, he is now in remission from amphetamine dependence, acknowledges that he has a problem with the drug and is motivated to maintain his recovery once released from gaol; by staying away from illicit drug using peers and maintaining a more balanced lifestyle." 23 On the question of contrition, his Honour made the following comment: "I accept that he has expressed regret for his actions to some of his close associates. However, it is significant that there has been no expression by him on contrition to the Court." The sentencing Judge's remarks. 24 His Honour, when sentencing Mr Mendez, was conscious of the two statutory "guideposts or benchmarks or reference points" (R v Way (2004) 60 NSWLR 168, para 50), namely, the maximum penalty and the standard non parole period. The maximum penalty for Mr Mendez' crime was 20 years imprisonment and/or a fine of 3,500 penalty units. The standard non parole period under Part 4 Division 1A of the Crimes (Sentencing Procedure) Act 1999 was ten years imprisonment. 25 Having shortly stated the facts and quoted from a number of reports, as set out above, his Honour said this: (ROS 5-6) "This is a serious offence. It calls for a sentence of fulltime custody. The Parliament has set a non parole period of ten years. I see this offence as being in the middle range of seriousness. I then turn to a consideration of the factors referred to in section 21A of the Act. There are, as have been pointed out by the Crown, a number of aggravating features. However, I see the mitigating features as outweighing those and to a considerable degree. He has no criminal history. His prospects of rehabilitation are well above average. I refer in particular to the matters referred by Mr Milledge (sic) to which I have just made reference. This young man has a high level of intelligence, has demonstrated his ability to achieve his university degree and I accept that he is motivated to do that. He has a good employment record and a very supportive family. These factors all suggest to me that his prospects of rehabilitation are overwhelmingly important in the consideration of what is an appropriate sentence to be passed upon him. He has been in custody since 30 September 2003."

The submissions of the parties. 26 The Crown submitted that the sentence imposed was manifestly inadequate. Indeed, counsel for Mr Mendez, in careful written submissions to the sentencing Judge, suggested that an appropriate sentence, before any adjustment for special circumstances, was a total term of eight years with a six year non parole period. 27 There were, according to the Crown, a number of errors in the remarks on sentence which may explain why the sentence was inadequate. The suggested errors were as follows: · First, whilst his Honour stated that the sentence fell within "the middle range of seriousness" (cf s54A(2) Crimes (Sentencing Procedure) Act 1999), his Honour did not identify the basis upon which he had reached that view. · Secondly, where, as here, there was a standard non parole period, and it was not imposed, there was an obligation on the Court "to make a record of it's reasons" for reducing the standard non parole period (s54B(4)). The standard non parole period was ten years. The non parole period fixed by his Honour was three years, representing 30% of the standard. Yet no reasons were given. · Thirdly, the only hint given by his Honour as to the basis for his determination that a three year non parole period was appropriate was that the "mitigating features" outweighed the "aggravating features" to "a considerable degree". His Honour did not say in either case what those features were. · Fourthly, no reference was made to general sentencing principles. In particular, his Honour did not refer to deterrence, and its importance in the context of the drug crime in respect of which Mr Mendez had been convicted. The Court should infer, according to the Crown, that his Honour paid no regard, or insufficient regard, to deterrence and that he overvalued the subjective case of Mr Mendez. · Fifthly, the crime committed by Mr Mendez was serious. The amount of the drug, its purity, the circumstances of his arrest and his acknowledged role suggested, according to the Crown, "no significant circumstances mitigating the respondent's culpability". 28 Mr Dalton of counsel, appearing for Mr Mendez, acknowledged error. He said this: "It is immediately conceded that it is difficult to argue with the Appellant's contention that his Honour the sentencing judge has erred in failing to give detailed reasons for the significant departure from the standard non-parole period represented by the sentence imposed, as required by the provision of s54B(4) Crimes (Sentencing Procedure) Act 1999.) 29 Indeed, Mr Dalton made the same complaint with respect to a determination by his Honour which was adverse to Mr Mendez. He said this: "Indeed it is also submitted that his Honour erred in failing to give any reasons for not adjusting the usual statutory ratio between the non-parole period and the head sentence as a result of special circumstances." 30 Counsel made a further concession in these terms: "2. It is also immediately conceded the sentence imposed is so low, given particularly an analysis of this Court's findings in R v Shi [2004] NSWCCA 135, as initially upon its face to be suggestive of material error, or at the very least extremely lenient." 31 Mr Dalton argued, however, that whilst not articulating the path by which he reached his conclusion, his Honour had instinctively determined the complex synthesis which was necessary in reaching an appropriate sentence. Significant weight should be given to that determination. If the Court felt constrained to intervene, it must do so in accordance with the established principles concerning Crown appeals. That is, it should not impose the sentence that ought to have been imposed at first instance, but a lesser sentence, recognising the fact of double jeopardy. It would be appropriate in such circumstances to adjust the total term, leaving the non parole period, namely 3 years, to stand.

Was there error? 32 Part 4 Division 1A of the Crimes (Sentencing Procedure) Act 1999 was introduced in October 2002, with operation from 1 February 2003. It introduced standard non parole periods in respect of offences set out in a table which formed part of that Division (s54A). The standard non parole period is described as representing "an offence in the middle of the range of objective seriousness for offences" in the table (s54A(2)). The Court is required "to set the standard non parole period" unless it determines that there are reasons for setting a longer or shorter period (s54B(2)). The Court may depart from the standard, but only for reasons which are identified in s21A of the Act (s54B(3)). Section 21A obliges the Court, when fixing a sentence, to have regard to aggravating and mitigating factors (which the section identifies), as well as other objective and subjective factors affecting the relative seriousness of the offence. The Court, by s54B(4), is enjoined to make a record of its reasons for increasing or reducing the standard non parole period, identifying each factor taken into account. 33 The issue which his Honour was therefore obliged to consider was identified in R v Way (supra) (para 117) in these words: Are there reasons for not imposing the standard non parole period? That question will be answered by considering the following matters: (R v Way (supra para 23) (para 118)) "(i) the objective seriousness of the offence considered in the light of the facts, which relate directly to its commission, including those which may explain why it was committed, so as to determine whether it answers the description of one that falls into the mid range of seriousness for an offence of the relevant kind; (ii) the circumstances of aggravation, and of mitigation, which are present in the subject case, or which apply to the particular offender, as listed in s21A(2) and (3), and as incorporated by the general provisions in s21A(1)(c) and by the concluding sentence to s21A(1)." 34 A helpful distillation of the principles emerging from R v Way has been provided by Simpson J in R v Pellew [2004] NSWCCA 434. Her Honour said this: (para 13) "13 The following propositions emerge from Way and subsequent cases: (i) while s54B(2) requires, in sentencing in respect of an offence to which Division 1A applies, unless the sentencing court determines that there are reasons not to do so, that it set the standard non-parole period as the non-parole period for the offence, that obligation exists where the offence in question is an offence in the middle of the range of objective seriousness of offences of that kind; ... (ii) the standard non-parole period was intended for a middle range case where the offender is convicted after trial: a plea of guilty might be in itself a reason for departure from the standard non-parole period (para [68]); (iii) a sentencing judge will be required, in relation to any given case, to hypothesise what is an abstract offence in the middle of the range of objective seriousness in order to determine where the subject offence lies in relation to such an offence; such an exercise is, in reality, little different from the traditional sentencing exercise of evaluating objective seriousness of any offence, and should be approached intuitively and based upon the general experience of courts in sentencing for the particular offence (paras [74] - [77]); (iv) circumstances that affect the evaluation of the objective seriousness of any offence include (but are not necessarily limited to) the actus reus , the consequences of the conduct, such factors as impinge upon the mens rea of the offender, matters of motivation, mental state, mental illness or disability (where causally related to the commission of the offence). Factors that affect the circumstances of the offender as distinct from the offence (for example, youth or prior sexual abuse) do not affect the evaluation of objective seriousness (paras [85] - [86]); (v) that an offence is "typical" or "common" does not dictate that it is in the middle of the range of objective seriousness (para [101]); (vi) the numerical frequency with which an offence of a particular kind is committed is not an indicator of the objective seriousness of any individual instance of that offence: (paras [101] - [102]); (vii) where a court determines that there are reasons for departing from the standard non-parole period, the standard non-parole period nevertheless remains of relevance in the sentencing determination, as a reference point, benchmark, sounding board or guidepost (para [122]); see also R v GJ Davies [2004] NSWCCA 319. 35 Given that his Honour determined that the offence was in the middle of the range of objective seriousness, and given that the standard non parole period is ten years, it is at once apparent that a three year non parole period is extremely low. Is it manifestly inadequate, given the continuing significance of the standard non parole period, even where a departure is thought appropriate? Unfortunately, as the Crown complains, his Honour did not provide reasons, as required by s54B(4), for reducing the non parole period. His remarks, moreover, suggest that, having determined that the offence was "in the middle range of seriousness", his Honour then balanced aggravating features under s21A with mitigating features, determining that the latter outweighed the former "to a considerable degree". Approaching the issue in that way does not conform with the principles set out in R v Way. 36 His Honour was plainly impressed by the subjective case presented on behalf of Mr Mendez. At the time of this offence he was a young man. He is well educated. He had the capacity to make something of his life. He has taken significant steps in his own rehabilitation by giving up drugs. Some moderation of the standard non parole period was therefore appropriate. 37 However, as the Crown points out, Mr Mendez was convicted of a serious drug offence, namely the deemed supply of a commercial quantity of methylamphetamine. Schedule 1 of the Drug Misuse and Trafficking Act defines a "commercial quantity" of amphetamines as 250 grams. Mr Mendez was found with 478.8 grams of the drug which was of very high purity (84%). A large commercial quantity is one kilogram (attracting, incidentally, a standard non parole period of 15 years). 38 The Crown, in support of its submission that the sentence was manifestly inadequate, drew attention to a number of recent appeals. In each case the offender was sentenced for the supply of a commercial quantity of amphetamines and the offence occurred after the first of 1 February 2003, so that the standard non parole provisions applied. Indeed, R v Way was one such case, as was R v Shi [2004] NSWCCA 135, handed down on the same day. The third case was R v Blair [2005] NSWCCA 78. Each case, no doubt, depends to some degree upon its own particular facts. One must exercise caution in comparing one case, or even the three cases, with the case under appeal. Nonetheless, collectively, these authorities reinforce the impression, which was immediately apparent, that the sentence imposed upon Mr Mendez was manifestly inadequate. There is, therefore, a need for this Court to intervene and resentence the respondent.

Resentence. 39 The description of Mr Mendez' crime, and his part in the drug supply, as set out above, make it appropriate, in my view, to describe the offence (as his Honour did) as being in the middle of the range of objective seriousness. 40 The subjective case, for the reasons his Honour identified, was strong. Mr Mendez was, at the time of this offence and still is, a young man. Whilst deterrence is of great importance in the context of the supply of a commercial quantity of drugs, rehabilitation of a young offender is also important. 41 The respondent sought and was given leave on this appeal to rely upon certain affidavits in the event that the Court was required to resentence. The affidavits reinforced the impression that Mr Mendez has taken significant steps in his own rehabilitation. He has used his time in gaol well. He has worked and been given positions of responsibility and trust within the gaol system. He has completed a number of courses. He states that he has not taken drugs for the past nine months. He expresses contrition for his crime. He says that he has found solace and guidance in religion. His mother states that she has noticed "big changes" in her son. He accepts full responsibility for his involvement in the offence. He has not attempted to blame others. His family continues to support him. 42 It is urged on behalf of Mr Mendez that a finding of special circumstances should be made. It is appropriate to make such a finding. This is Mr Mendez' first criminal offence and first time in custody. His crime is the consequence of his drug addition, which he is endeavouring to overcome. Nonetheless, Mr Mendez would, in my view, benefit from a longer period of supervision than the period contemplated by the Act. 43 The principles which should guide this Court, when resentencing after a successful Crown appeal, are well established (R v Allpass (1994) 72 A Crim R 561 at 562). The fact of double jeopardy is recognised. The sentence substituted should be conservative, that is, at the lower end of the range (Dinsdale v The Queen (2000) 202 CLR 321 at 341). The sentence which I propose is emphatically not the sentence that I believe should have been passed at first instance, but rather a sentence that recognises these principles.

2. That the sentence of Maguire DCJ on 18 March 2005 be quashed.

3. That in lieu thereof, the respondent be sentenced to a non parole period of 5 years and 6 months commencing on 30 September 2003 and ending on 29 March 2009, with a total term of 8 years ending on 29 September 2011. 45 HOWIE J: I agree with Kirby J.

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