R v REICHER

• 13 - IN THE COURT OF CRIMINAL APPEAL 60196/03

HULME J GREG JAMES J

Wednesday, 1 October 2003 R v Manfred REICHER Judgment 1 HULME J: On 5 December 2002 this applicant for leave to appeal was sentenced by Naughton DCJ in respect of four offences to which he had previously pleaded guilty at the Newcastle Local Court. The offences, and some factors relevant thereto, were:

(i) On 14 September 2001 supplying 0.5 grams of methylamphetamine. This was a breach of Section 25(1) of the Drug (Misuse and Trafficking) Act 1985 . The quantity represented half of a "small" quantity within Schedule 1 to the Act and the maximum period of imprisonment prescribed was fifteen years.

(ii) On 21 September 2001 selling a firearm namely a "Walther" semi automatic pistol to someone who is not a licensed firearms dealer without the sale having been arranged through a licensed firearms dealer or witnessed by an authorised police officer or the offender not himself being a licensed firearms dealer. This offence was a breach of Section 51(2) of the Firearms Act, 1966 , the maximum period of imprisonment prescribed being twenty years.

(iii) On 21 September 2001 selling a "Coachman" brand shotgun without the sale having been arranged through a licensed firearms dealer or witnessed by an authorised police officer or the offender not himself being a licensed firearms dealer. This offence also was a breach of Section 51(2) of the Firearms Act, 1966 , but because of the nature of the weapon the maximum period of imprisonment prescribed was five years. The sale was in fact an offer to sell, there being an expanded definition of "sell" in the Firearms Act so as to include an offer to sell.

(iv) On 25 October 2001 supplying eight grams of methylamphetamine. In fact the supply was a deemed supply, this quantity having been found during the execution of a search warrant at the applicant's premises. The offence is also a breach of Section 25(1) of the Drug (Misuse and Trafficking) Act and again the maximum period of imprisonment prescribed was fifteen years. 2 The sentences imposed for the four offences were, respectively:

(i) Imprisonment for a fixed term of one year commencing on 5 December 2002. (ii) Imprisonment for a fixed term of two years commencing on 5 December 2003. (iii) Imprisonment for a fixed term of one year commencing on 5 December 2003. (iv) Imprisonment for two years including a non-parole period of eighteen months, both such terms commencing on 5 December 2005. 3 Thus the effective sentence for the four offences was five years, including what was effectively a non-parole period of four and a half years. 4 Judge Naughton accepted that the applicant was remorseful and contrite and allowed a discount of twenty-five per cent or thereabouts on account of the applicant's plea and its demonstration of his willingness to facilitate the administration of justice. His Honour also recorded that he made some further reduction pursuant to the principle of totality, though the details of that further reduction are not disclosed. His Honour observed, in the paragraph in which he dealt with the sentence to be imposed on the fourth charge:- "I determine that special circumstances do not exist for varying the statutory ratio between the total sentence and the non-parole period." 5 Originally six grounds of appeal were taken on behalf of the applicant but the first two were abandoned. Those that remain were as follows: 3. The sentencing judge erred in failing to take into account the effect of cumulation in settling a non-parole period. 4. The sentencing judge erred in failing to sentence the applicant according to a proper assessment of his role in the offences. 5. The sentencing judge erred in failing to give proper weight to the applicant's subjective case. 6. The sentencing judge failed to sentence in accordance with Pearce v The Queen (1998) 194 CLR 610. 6 Some of these grounds require further attention to the objective and subjective circumstances which Naughton DCJ was required to take into account. 7 The applicant came under notice as part of a controlled drug investigation. On 14 September 2001 he met with a police undercover operative and negotiations occurred concerning the supply of prohibited drugs. It was in the course of those negotiations that the applicant sold the methylamphetamine, the subject of the first charge, in return for an amount of $200. The discussions which occurred were recorded pursuant to a listening device warrant. 8 On 21 September there were further discussions between the offender and the undercover operative relating to the supply of firearms. The offender believed that the undercover operative was a criminal. Those discussions led to the sale by the applicant and the purchase by the police officer of a semi-automatic pistol, the subject of the second charge, and a holster and ammunition for the price of $2,800. In due course the weapon was found to be in working order and to have been stolen during a break, enter and steal in September 1999. 9 The discussions also extended so as to include an offer by the applicant to sell the shotgun the subject of the third charge for $1,000. The weapon was shown to the operative while seated in the applicant's vehicle. Again the discussions were recorded. 10 On 25 October 2001 the police executed a search warrant at the applicant's home. In addition to the drugs the subject of the fourth charge the police also found a set of electronic scales, clear plastic resealable bags and a Tupperware container with white powder inside it, similar in appearance to glucose. Intercepted telephone calls revealed conversations suggesting the applicant was involved in the supply of drugs to other parties. 11 Some of the grounds of appeal require further reference to the evidence. Called as a witness during the sentencing proceedings, the applicant described himself as a "paid monkey" and "middleman", terms he had used in at least one of the recorded conversations with the undercover police operative. He said he merely made a percentage out of the transactions in which he participated. The applicant also described some of his conversation with the police operative as "something made up", "all bravado" and "street tough talk when you're trying to sell something" and that there was no reality in his big talk which had accompanied the sale of the pistol. He asserted that was a one-off event notwithstanding representations he then made to the police operative that he could obtain ammunition "by the thousand rounds" and that he could obtain other firearms and also silencers. 12 So far as the applicant's subjective circumstances are concerned, his Honour recognised that the applicant had: "suffered a tragic broken family situation early in his life, which only got worse. He was given little or no encouragement in life and little or no support or help. Unfortunately, he is one of the ones who tragically come before this court as having been unable to cope with that situation." 13 His Honour recorded: "He left home at age sixteen, basically never to see his parents again. He is educated to Year 7 standard in Adelaide. He is a self-taught steel fixer and has worked most of his life...in the construction industry. 14 It is clear that the offender has suffered for some time a severe alcohol problem. 15 He told the court that he has been devastated by the break up of the relationship which he enjoyed with his wife and two children, which break up occurred as the result of the crimes which are presently before me for my attention." 16 His Honour also indicated that, with the exception of a diagnosis of post-traumatic stress disorder, he accepted the report of a psychologist whom the applicant had seen and from whose report his Honour quoted at length. His Honour acknowledged that the applicant suffered from chronic back trouble as a result of the type of work he had pursued throughout his life and prior to involvement in drugs had been on a disability pension. His Honour accepted that the applicant began dealing in drugs because he needed the money to support his family and his abuse of alcohol. His Honour accepted that the applicant had suffered for some time a severe alcohol problem. 17 On the other hand his Honour said that the applicant was not assisted by his criminal history, which his Honour recorded as extending back as far as 1966 when the applicant would have been eighteen. His Honour seems, not inappropriately, to have ignored an earlier offence when the applicant was thirteen. I can summarise the effect of that history by saying that between 1966 and 1982 the applicant was convicted of fourteen charges of dishonesty, including breaking, entering and stealing and larceny of a motor vehicle, having been dealt with on six occasions for these offences. Thereafter there have been no offences of dishonesty recorded. Between 1976 and 2000 the applicant has been dealt with on five occasions for driving with an excess concentration of alcohol. The only prior imprisonment he seems to have suffered seems to have been imposed in respect of a number of offences in 1970.

Ground 3 18 Counsel for the applicant pointed out that the effective non-parole period represents ninety per cent of the effective term of the sentence. It was submitted that in light of the applicant's age, antecedents, background and alcohol problem such proportion is, of itself, indicative of error and that the inference should be drawn that the sentencing judge overlooked the effect of accumulation of the sentences. Reference was made to R v Lyndon [2003] NSWCCA 152 where in somewhat similar circumstances that inference was drawn. 19 I think the inference urged is the appropriate one to draw. It is very unusual for the custodial portion of a sentence or a number of cumulative sentences to be in excess of seventy-five per cent of the total period referred to in section 44 of the Crimes (Sentencing Procedure) Act as that section was in force at the relevant time. This is not to say that that percentage may not, in appropriate cases, be exceeded but where the excess is as high as it is in this case one would have expected any judge to have referred to the reasons for that. A fortiori is that so when one has regard to the applicant's age, to the fact that he has not been in prison for the last thirty years and to the fact that one would anticipate the usefulness of supervision over a not insignificant period on release from custody. This ground of appeal is made out.

Ground 4 20 In the support of the fourth ground of appeal attention is directed to remarks of the sentencing judge in the following terms: "I return to the question of place in the 'hierarchy' of drug trafficking. In that 'hierarchy' a person who occupies a lesser position in an organisation set up to make a profit from trafficking in prohibited drugs cannot usually expect that his punishment will be less severe than that of someone higher up. That is because the hierarchy cannot operate without the lesser members and, accordingly, they occupy positions of essentiality. See, eg, Re v Le Cerf (1975) ALR 349; R v Fabian (1992) 64 A Crim R 365; R v WHS (unreported; NSWCCA; 27/3/95), and R v Thiagragrah (unreported; NSWCCA; 12/4/89." 21 The proposition contains error. In R v Le Cerf, which is the case principally cited in this area and which was relied on in the first two of the other cases cited, Wells J, after referring to reasons for punishing severely those having lesser roles in the hierarchy went on: "A man who participates in such an organisation (for purveying drugs) at any level - I repeat at any level - must expect, and will receive, a heavy penalty. I do not, in saying that, mean to imply that no distinction at all will be drawn between the upper and lower echelons of organised crime. But I wish it clearly to be understood that, given that a particular range of penalties is considered appropriate for those in the upper echelons, there is no inevitable correlation between the standing of an offender who is in the lower echelons and the severity of the punishment that he can expect and will receive." 22 In R v Olbrich (1999) 199 CLR 270 at 279 the High Court recognised the appropriateness of the imposition of different sentences on persons at different levels of a drug hierarchy. This ground is made out.

Ground 5 23 In support of this ground, counsel for the applicant drew attentions to the following remarks of the sentencing judge: "I have not found any subjective features which are of significant assistance to the offender for the purposes of sentencing. To extend leniency to persons who have had a personally tragic past or who have some personal limitation or impairment is likely to encourage the evil forces who control the drug traffic to recruit, and continue recruiting, such people to fulfil the role of intermediaries and 'runners' and 'paid monkeys'. The court must give weight to this consideration. Compare R v Mousa (unreported; NSWCCA; 5/11/86)." 24 That passage also contains error. The authorities in this area are replete with cases where an offender's subjective circumstances are given some weight in the direction of leniency. Undoubtedly there are limitations in this regard and the weight afforded to subjective circumstances is liable to be less, but to suggest that the applicant's "tragic past", inability to work due to his chronic back problem, even if one puts aside his alcoholism, are not of significant assistance to him in the sentencing exercise is wrong. This ground also is made out.

Ground 6 25 In light of the conclusion to which I have come it is unnecessary to consider this ground.

Conclusion 26 The question then arises what course this court should follow in the appeal. In this connection it is relevant to bear in mind the terms of section 6(3) of the Criminal Appeal Act which provides that: "On an appeal under Section 5(1) against a sentence, the Court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal." 27 A deal of misery is created by those who indulge themselves in amphetamines, not only to themselves but also to others. Time after time those of us involved in the legal system see the havoc which those whose minds have been addled by such drugs wreak on the lives of others. Those who choose, for whatever reason, to profit, or, indeed, sustain themselves by distributing such drugs deserve, as was said in R v Le Cerf (supra) heavy punishment. 28 So far as the individual head sentences are concerned it was not submitted by counsel for the applicant that any one of them was excessive. Certainly they are not. Indeed a fact which should be taken into account is that, in my view, the sentence imposed on the second count, that of selling the automatic pistol, was extremely lenient. There has been no Crown appeal and it cannot in that situation be increased, except in circumstances where notice was provided to the applicant and him given an opportunity of withdrawing his appeal. But the view which I take in relation to that sentence colours the course which I think should be adopted in the resolution of the appeal. 29 I take the view that that sentence was wholly inadequate and that the total of the head sentences which were imposed should have been substantially heavier. But if one does not increase the head sentence one is left with the four and a half years effective non-parole period and five years total period which his Honour imposed. The six months parole period provided is of itself an error but absent an increase in the effective head sentence, that error can only be dealt with by reducing the effective non-parole period and, indeed, reducing it to an extent which would also result in error. 30 Thus the court is faced with the situation that whether it interferes or whether it does not, there will be error in the result. For a time this situation inspired me to think that the court should leave the matter as it is, but ultimately I have been persuaded that the court should interfere. I am moved in this regard to an appreciable extent by the applicant's subjective circumstances and by the fact that since 1982 he seems to have managed to avoid committing offences of dishonesty. The conclusion at which I have arrived is that the court should interfere to the extent of providing a parole period of twenty-five per cent of the total five year sentence. This should be done by leaving the sentences on the first three counts as they were imposed and allowing the appeal in relation to the sentence imposed on the fourth count, quashing that sentence and imposing a sentence of two years including a non-parole period of nine months and directing the applicant's release to parole at the expiration of that period. Because the sentence is one of under three years, and the terms of the Crimes (Sentencing Procedure) Act, the court is required to make an order directing the release of the applicant on parole at the end of the non-parole period. We are entitled also under section 51 of the Crimes (Sentencing Procedure) Act to impose conditions on any such parole order and, in my view, subject to hearing from the parties, that is a course which the court should follow. 31 GREG JAMES J: I agree with the proposals by the presiding judge as to the disposition of this appeal. I concur that leave to appeal should be granted and the appeal allowed but to the limited extent that the presiding judge has proposed. I agree with the formal orders, the nature of which has been communicated to me in draft as proposed by the presiding judge. I wish, however, to add some short remarks of my own since it appears to me that the complexity of the sentencing regime to which regard was required to be paid by the sentencing judge and the changes in the sentencing regimes over the years have contributed greatly to the errors that have been detected, and conceded indeed, by the Crown in this case. 32 The Crimes (Sentencing Procedure) Act as it stood at the time required by reason of section 44 of that Act that an offender when being sentenced to imprisonment to have the benefit of a non-parole period except where a fixed term was imposed. Section 44 provided, as it then stood, that the court had firstly, to set the term of the sentence and, secondly, to set a non-parole period in relation to that sentence proportionate to the sentence unless special circumstances were established. The Act therefore required that each sentence that was being passed had to be separately determined and each non-parole period separately determined. It was with that matter in particular that the High Court's decision in R v Pearce was concerned. 33 Those provisions had taken the place of prior provisions providing for a minimum term and an additional term and they, in their turn, had taken the place of provisions which allowed the imposition of a total non-parole period upon sentences which were cumulative each upon the other. 34 As section 44 now stands, putting aside for the moment reference to specific non-parole periods, it provides that the court is first required to set a non-parole period which is by section 44(1) defined to be the minimum period for which the offender must be kept in detention in relation to the offence. It further provides for the term of the sentence in proportion to the non-parole period. Whilst it maintains the focus of the section as it has stood even under the previous regime on the individual sentence passed in respect of the individual offence, nonetheless it now looks to the non-parole period as the defining circumstance to which is to be proportionate, the total sentence to be passed for any particular offence. 35 In this case the sentencing judge determined that fixed terms should be imposed i.e. sentences without a non-parole period. In that regard, as the Act stands, it is necessary in order to consider whether a non-parole period has or has not been properly declined, to consider what course the trial judge took, in particular in the light of the reasons the trial judge was required by virtue of section 45(2) to give for declining to set a non-parole period for any individual sentence. In truth the Act now no longer knows the concept of a fixed term of imprisonment; that is language carried over from the predecessor. What it refers to is a sentence of imprisonment in respect of which the trial judge has declined a non-parole period. 36 On one view of the Act it does not permit one to consider questions of totality of notional non-parole periods arising by reason of a cumulation or cumulated terms of imprisonment or each of which no non-parole period has been imposed but a non-parole period designed to embrace them all has been imposed on the last of such sentences so accumulated. However, the definition in section 44, as it now stands, of the Act relating to the non-parole period being the minimum period the offender must actually serve enables a practical consideration of the totality of periods that the offender must actually spend in custody to be treated as an overall non-parole period. 37 It will be appreciated that there is some considerable tension, therefore, between the provisions of the Act concerning the sentence to be imposed, the non-parole period to be imposed and the application of the High Court's views in R v Pearce. None of this is to make any easier the task of the sentencing judge when dealing with multiple offences, the elements of which sometimes overlap. It must be remembered that R v Pearce was particularly concerned to deal with the question of an inappropriate additional penalty arising where the elements of the offences overlapped and that the remarks of the High Court Justices concerning sentencing for individual offences were made in the context of dealing with that phenomenon. 38 I am of the view that the appropriate course in this case both practically and theoretically is to take the course proposed by the learned presiding judge. It is for those reasons, in addition to those he has given, that I agree with that course. 39 HULME J: The court has now had the benefit of submissions by the parties on the topic of the appropriate orders to be made to reflect the court's intention as expressed earlier. 40 The following orders will express that intention: 1. Leave to appeal is granted. 2. The appeal against the sentences imposed by Naughton DCJ on the applicant on 5 December 2002 in respect of counts 1, 2 and 3 are dismissed. 3. The appeal against the sentence imposed by Naughton DCJ on the applicant on 5 December 2002 on count 4 is allowed and that sentence is quashed. 4. In respect of count 4 the applicant is sentenced to imprisonment for two years commencing on 5 December 2005 and expiring on 4 December 2007, such term to include a non-parole period of nine months commencing on 5 December 2005 and expiring on 4 September 2006. 5. The court directs that at the expiration of the non-parole period the applicant be released to supervised parole on the terms envisaged by regulation 217 of the Crimes (Administration of Sentences) Regulations . 6. The earliest date upon which the applicant will be eligible for release on parole is 5 September 2006. 41 The court records that there are special circumstances being the accumulation of the sentences imposed by Naughton DCJ, the absence of non-parole periods in respect of the sentences imposed on counts 1, 2 and 3, the applicant's age and his need for rehabilitation in particular arising from his alcoholism. 42 The court recommends to the parole authorities that on the applicant's release to parole he be subject to appropriate treatment for that alcoholism. 43 We note also that although reasons for this course were not expressed by Naughton DCJ it is apparent that no non-parole periods were fixed on counts 1, 2 and 3, having regard to the total number and structure of the sentences.

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