R v Ramos

P.G. Berman (Crown), M. Grogan COUNSEL : D.G. Dalton SOLICITORS : S.E. O'Connor CATCHWORDS : CRIMINAL LAW - sentencing - supply of a prohibited drug, Drug Misuse and Trafficking Act 1985 s25 - SENTENCING - sentence manifestly lenient - discretion to not re-sentence - public interest in not interfering with demonstrated rehabilitation DECISION : Appeal dismissed; Conviction and sentence confirmed

SPIGELMAN CJ WOOD CJ at CL FOSTER AJA GROVE J JAMES J

No. 60620 of 1999 SPIGELMAN CJ WOOD CJ at CL FOSTER AJA, GROVE J BM JAMES J

FRIDAY 26 MAY 2000 Regina v Alan De Silva RAMOS JUDGMENT

2 WOOD CJ at CL: This is an appeal by the Director of Public Prosecutions, pursuant to S 5D of the Criminal Appeal Act 1912, against the sentence imposed upon the respondent by his Honour Judge J. B. Phelan, at the Wollongong District Court, on 7 October 1999. 3 Following his plea of guilty, at the Wollongong Local Court on 23 June 1998, the respondent was committed for sentence to the District Court on four counts of supply a prohibited drug contrary to S 25(1) Drug Misuse & Trafficking Act 1985 - offences for which the maximum penalty was imprisonment for fifteen years or a fine of 2,000 penalty units, or both. 4 The respondent adhered to his plea and asked his Honour to take into account upon sentence, a further three matters on a Form 1, namely, drive an unregistered vehicle, use an uninsured vehicle, and drive while disqualified. The sentence imposed by his Honour, after taking into account those other matters, was one of imprisonment for twenty-four months, made up of a minimum term of six months, which expired on 31 March 2000, and an additional term of eighteen months.

Facts 5 The offences under the Drug Misuse and Trafficking Act 1985 related to the supply of methylamphetimine, on four separate occasions during the period 6 February to 27 February 1998, to an undercover police officer. This arose in the course of Operation Ghana, which was directed towards the sale of amphetamines and ecstasy. 6 The first offence occurred when the undercover officer met with the respondent in a car park at Lake Heights. The respondent quoted a price of $250 for a quarter of methylamphetamine, and indicated that he could supply in pounds or ounces. The quantity sold on this occasion was found to be 4.9 gms. 7 The respondent met the undercover agent again at the same place on 18 February 1998. On this occasion their conversation was recorded pursuant to a lawfully obtained listening device. The respondent produced a pair of electronic scales from the glove box of his car, and weighed out 27.4 gms, for which he was paid $800. The undercover agent indicated that, on the next occasion, he wanted to purchase 4 ounces. The respondent said that he could also sell ecstasy at a price of $35 each for ten or more tablets. 8 On 26 February 1998, the undercover agent rang the appellant on his mobile phone and organised the purchase of 100 ecstasy tablets and 4 ounces of methylamphetamine. When they met, the respondent produced two plastic resealable bags containing tablets and white powder respectively. 9 The operation was brought to an end at that point with the arrest of the appellant. The bags in his possession were found to contain 220 gms of methylamphetamine, and 100 tablets with a total weight of 26.6 gms,, containing traces of methylamphetamine and caffeine. A list of names and numeric accounts was found in his wallet, indicating that he was owed $6,000 by drug customers. 10 The Crown case, it may be accepted, was overwhelming, although clearly there was a significant utilitarian value in the pleas which were offered by the appellant at the first available moment. He was properly entitled to a discount in that regard. 11 In sentencing the applicant his Honour had before him the following subjective circumstances: · the respondent was twenty-two years of age, and had a prior criminal record including one count of supply prohibited drug, and three counts of possession of prohibited drug; · at the time of the offences he was subject to a bond and also a Community Service order, and in his Honour's words he had been "completely arrogant in his attitude to the law"; · he had completed a significant period of apprenticeship as a mechanic, and had a job with a construction company, the proprietor of which regarded him as a capable and energetic employee; · his family was supportive, and he had a relationship with a lady who was adverse to drugs. 12 In my view, the sentence imposed was manifestly lenient and displayed error of law in several ways:

a) the offences involved were serious incidents, connected with the ongoing supply of drugs for reward, and were such that insufficient weight was given to the objective gravity of the respondent's misconduct, or to the accumulation of offences which had to be taken into account in assessing the overall criminality involved: Dodd (1991) 57 A Crim R 349 and Rushby (1997) 1 NSWLR 594.

b) insufficient weight was given to the circumstance that the offences occurred at a time when the respondent was subject to a bond and to a Community Service Order, matters significantly aggravating his criminality: Readman (1990) 47 A Crim R 181 and Tran (1999) NSW CCA 109;

c) the respondent fell into the category of offender who sells for greed, but does not use - again a matter of aggravation: Liang CCA (NSW) 2 June 1995 unreported;

d) the sentences were so short and so structured as to provide no element of general deterrence, a matter of some significance in relation to the drug trade: Myers CCA (NSW) 13 February 1990 unreported, Clarke CCA (NSW) 15 March 1990, Swann CCA (NSW) 17 July 1992 unreported and Cacciola CCA(NSW) 15 October 1998;

e) His Honour, although appropriately acknowledging the respondent's subjective circumstances and his progress towards rehabilitation, gave undue weight to those factors, at the price of not imposing a sentence which was called for by the offences;

f) His Honour also fell into error which was illogical, in the way that the sentence was structured. Having given the respondent the benefit of his favourable subjective circumstances and of his progression towards rehabilitation, in fixing an overall sentence, he then gave him a second benefit for the same matters, in finding special circumstances, and in structuring a sentence that was made up of a minimum term of only six months and an additional term of eighteen months. Yet, if the respondent had rehabilitated himself, as his Honour found, there was little purpose in an extended period of release on parole, particularly since in its pre-sentence report the Probation & Parole Service advised that it saw no need for supervision. 13 It is again necessary to make the point that sentencing Judges do neither the community, or the offender, any service by imposing sentences that are weakly merciful, or in being unduly influenced by apparently favourable subjective circumstances: Cacciola at 16, per Abadee J. Their duty is to sentence according to law, including the pronouncements of this Court in relation to sentences appropriate for drug dealers, and against the maximum penalty provided by the Drug Misuse & Trafficking Act. 14 In my view, error has been established, and subject to the exercise of discretion, this Court should re-sentence. After giving the matter careful consideration, however, I reach the view that it would be inappropriate to intervene at this stage, ie at a time when the appellant has served the minimum term, has been released, and has returned to gainful employment. Although he has not reached the usual age regarded as a turning point for offenders with a history of criminality, there is nonetheless a public interest in not interfering in a process of demonstrated rehabilitation, particularly in this area of criminality. His employer and his mother have both provided information confirmatory of his continuing post release progress, and it may well be that he has received sufficient shock, from a first period of imprisonment, to turn his back on his former ways. He should, however, be under no illusion as to what might happen to him if he reoffends, whether during the period of release on parole, or subsequently. 15 I would propose that in the exercise of the Court's discretion, the appeal be dismissed, and that the conviction and sentence below be confirmed. **********

IN THE COURT OF CRIMINAL APPEAL 60463/99 60620/99

SPIGELMAN CJ WOOD CJ at CL FOSTER AJA GROVE J JAMES J

REGINA v Alan De Silva RAMOS JUDGMENT 16 FOSTER AJA: I agree with Wood CJ at CL.

SPIGELMAN CJ WOOD CJ at CL FOSTER AJA GROVE J JAMES J

IN THE COURT OF CRIMINAL APPEAL 60620/99 Spigelman CJ Wood CJ at CL Foster AJA Grove J James J

Friday 26 May 2000 REGINA v Alan De Silva RAMOS

JUDGMENT 18 JAMES J: I agree with the judgment of Wood CJ at CJ.

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