R v. Patek [2001] NSWCCA 315

COUNSEL : Mr. MC. Grogan for Crown Mr. T.A. Game SC for respondent SOLICITORS : S.E. O'Connor for Crown D.J. Humphreys for respondent CATCHWORDS : CRIMINAL LAW - Crown appeal against sentence - No error of principle shown. ND DECISION : Appeal dismissed

Tuesday 10 July 2001 REGINA V. George William PATEK JUDGMENT 1 HODGSON JA: On 27 November 2000 the respondent pleaded guilty to a charge under section 25A of the Drugs Misuse and Trafficking Act 1985 that between 13 March 2000 and 7 April 2000 in the State of New South Wales he did on four occasions supply a prohibited drug for financial reward, namely, on 13 March 2000 at Regents Park did supply heroin, on 20 March 2000 at Regents Park did supply heroin, on 22 March 2000 at Regents Park did supply heroin, and on 3 April 2000 at Darlinghurst did supply heroin. 2 On 28 February 2001 Judge Sorby sentenced the respondent to a term of imprisonment of twenty-seven months to date from 4 October 2000 and expire on 3 February 2003, and he set a non-parole period of twenty months to commence on 4 November 2000 and expire on 3 July 2002. 3 The Director of Public Prosecutions has appealed from that sentence pursuant to s 50 of the Criminal Appeal Act 1912 on the ground that it is manifestly inadequate. 4 The charge resulted from a police undercover operation which utilised a police undercover operative known as Tony. The evidence disclosed four transactions in each of which Tony obtained a plastic bag containing powder from the respondent in exchange for $140 in cash. The first three occurred at an address in Regents Park, following phone contact between Tony and the respondent, and the fourth occurred at Green Park, Darlinghurst, also following telephone contact between Tony and the respondent. On each occasion the conversation between Tony and the respondent was recorded by a listening device. 5 An analysis certificate showed that the quantity of powder involved in the transactions was respectively 0.40 grams, 0.42 grams, 0.40 grams, and 0.32 grams, and that, in each case, the powder contained heroin. 6 In the last of the recorded conversations the respondent is recorded as having quoted $270 for "one weight" meaning one gram offering to give a definite price for "three weights" if Tony telephoned the next day and recommending to Tony that he "make 50s out of a weight" to keep customers happy. The respondent is also recorded as saying to Tony, that in order to get it cheap, he should spend over $1,000. In response to Tony's question, "How much can you do?" the respondent is recorded as saying, "As much as you want". The respondent is also recorded as saying, "We used to score pounds", mentioning a price of $55,000 a pound and talking about a price per ounce of $4,000 to $6,000 depending on quality. The respondent is also recorded as saying words to the effect that someone "found our stash in me mate's garage and took four ounces of rough cut gear". 7 The primary judge noted that the maximum penalty under s.25A was twenty years in prison. I would note that the section also provides, as an alternative or addition, for 3,500 penalty units. The primary judge noted that the maximum penalty was intended for cases within the worst category. He referred to the Court of Criminal Appeal decision in Regina v Smiroldo [2000] NSWCCA 120 for the proposition that s.25A was directed at those who appeared to be indulging in a practice or business of supplying prohibited drugs, that it was relevant to consider the quality of drugs actually supplied, and that although most offenders were presumably involved in the supply of more than the quantity actually supplied there were constraints on how far that could be taken into account on the basis of the High Court decision in R v Di Simoni (1981) 147 CLR 383. The primary judge accepted the Crown submission that the recorded remarks to which I have referred pointed to a systematic pattern of dealing and supplying drugs for profit, even though the respondent may also have supplied his own addiction. 8 The primary judge referred to the respondent's criminal record of offences going back to 1978 resulting in a total of nearly ten years in gaol. He referred to the respondent's life history, including a history of heroin addiction on and off since about 1980, he noted that he was on a methadone programme; and he noted evidence that suggested a definite trend towards improvement in his control over addiction. The primary judge noted the respondent's plea of guilty. He noted that it was not made at the earliest time, that it was made in the context of a very strong Crown case, and that the respondent had not shown much contrition. He indicated that a discount on the head sentence by reason of the plea would be fifteen percent. The primary judge noted that there were no special circumstances to vary the statutory ratio between non-parole period and head sentence, that being the ratio provided by s.44(2) of the Crimes Sentencing Procedure Act 1999. 9 In reasons given on 22 February 2001, the primary judge indicated that the head sentence would be thirty months and the non-parole period twenty months. However, in a supplementary judgment given on 28 February 2001 the primary judge indicated that he made an error in setting the head sentence, which should have been twenty-seven months, resulting in the sentences which I indicated earlier. 10 Mr Grogan for the Crown submitted first that there was error in the proportion originally proposed between the head sentence and non-parole period, which should have been three-quarters in the absence of special circumstances, and that there was also error in the unexplained change to the head sentence. However, he accepted that the proportionality between twenty months and twenty-seven months, although not exactly three-quarters, was sufficiently close that the difference was de minimis. 11 Mr Grogan submitted that error was shown in the sentence, having regard to the case of Smiroldo to which the primary judge referred. That was a case very similar to the present in relevant respects, he submitted, albeit involving somewhat larger quantities of a different drug, namely, methylamphetamine which is sometimes regarded as being a less serious problem than heroin. In that case the Court of Criminal Appeal expressed the view that a sentence of four and a half years, with a non-parole period of two and a half years, was not excessive, and indeed expressed the view that the applicant in that case merited a significantly longer sentence. 12 Mr Grogan submitted that the primary judge failed to have regard to that expression of opinion and to the expression of opinion that there was a pattern of inadequate sentence in related cases. He submitted that the sentence imposed in this case indicated that the primary judge had failed to give proper weight to either particular deterrence or general deterrence. 13 Mr Grogan also referred to the remarks made in the case of Regina v Hoon and Pouoa 2000 NSWCCA (19/4/00) to the effect that the criminality involved in offences under s.25A was greater than the criminality of a number of individual supplies of small quantities of drugs, the section being directed to the repetition and system and organisation of regular supply. 14 For the respondent, Mr Game submitted that it was inappropriate to build a case of suggested error in comparison with a single sentence. He submitted that, in any event, there were significant differences between the facts in Smiroldo and the facts in this case. The quantities of drugs involved in that case were significantly larger. The transactions were also in the context of a business stated to be open seven days a week, as opposed to the circumstances in this case of four individual sales arranged specifically by the undercover police officer. 15 Mr Game submitted that the material in the recorded conversations could not be used to suggest that the operation conducted by the respondent concerned quantities greater than those involved in the individual transactions in this case. At most, they could be used to give context to the particular transactions and to support the conclusion that there was a systematic operation of supplying quantities of this nature. 16 Mr Game submitted that there were subjective aspects in this case distinguishing it from Smiroldo and justifying a lesser sentence. In particular, the circumstance that the respondent in this case was in quite desperate circumstances feeding a habit of his own, not in any sense conducting a profitable business, but, in effect, surviving on a disability pension. 17 Finally, Mr Game submitted that this was not a case which, on the principles expounded by the High Court in cases such as Griffiths v Regina (1977) 137 CLR 293, would justify the granting of a Crown appeal. There was no general error of principle disclosed and no gross departure from what might be regarded as the norm. 18 In my opinion the submissions advanced by the Crown do suggest that the sentence in this case was a light one in the circumstances, but I am not persuaded that any error of principle is disclosed and, in particular, I am not persuaded that there is such an error of principle or such a gross departure from the norm as would justify the allowing of a Crown appeal. 19 In my opinion also, the circumstances of the adjustment of the head sentence from thirty months to twenty-seven months is not indicative of such error as would justify the upholding of a Crown appeal. For those reasons, in my opinion the appeal should be dismissed. 20 MATTHEWS AJA: I agree. 21 STUDDERT J: I also agree. 22 HODGSON JA: The order of the Court is, the appeal is dismissed. ***********

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