R v Smith

• 4 -IN THE COURT OF CRIMINAL APPEAL 60287/02

WOOD CJ at CL HOWIE J

Regina v Neil Smith The applicant appeals against severity of sentence imposed after pleading guilty to one count of supplying a prohibited drug on an ongoing basis, and one count of supplying a prohibited drug. For the first count he was sentenced to imprisonment for four years with a non parole period of three years, and for the second count he was sentenced to imprisonment for a fixed term of three years, to be served concurrently. The crown case depended upon intercepted telephone calls which showed that the applicant agreed to supply at least 42.5 grams of methylamphetamine and at least 70.4 grams of cannabis leaf. When the police executed a search warrant at the offender's home, they located 1,314 grams of cannabis leaf and 124.27 grams of methylamphetamine along with scales, re-sealable plastic bags and $1,030 in cash. Grounds of Appeal in Relation to Objective Criminality : Ground 1 - Whether error in giving undue weight to quantity of drug found at the applicant's premises: The sentencing judge was mindful of the constraints imposed by The Queen v. De Simoni . Reference to the finding of the drugs and accoutrements was relevant for assessing whether the offences were isolated incidents out of character for the applicant, and whether he had the means of satisfying the orders he took. A sentencing judge may have regard to matters which throw light upon the offence, so long as that is not done in a way which would treat the circumstances of aggravation as constituting a more serious offence which has not been charged. The Queen v. De Simoni (1981) 147 CLR 383, R v. Smiroldo [2000] NSWCCA 120 cited. Ground 2 - Whether error in giving insufficient weight to circumstance that there was no evidence of actual supply: There is no reason why a genuine agreement to supply drugs should be regarded as less serious than a proven act of supply. The tenor of the intercepts shows that the applicant was transacting genuine drug deals. R v. Kalpaxis [2001] NSWCCA 119 distinguished. Ground 7 - Whether error because no evidence to support the finding that the applicant was at the upper end of the scale of middlemen: The assessment of the applicant's criminal conduct was properly made by reference to the tenor of the intercepts and the number and nature of the deals that were negotiated. Olbrich v. R (1999) 73 ALJR 1550 cited. Ground 8 - Whether error in giving insufficient weight to the type of drug involved: The objective seriousness of the applicant's offences rests upon the systematic and repeated nature of his criminality. Grounds of Appeal in Relation to Subjective Criminality : Ground 4 - Whether misdirection in relation to the manner in which the applicant's antecedents were treated: There is nothing in the reasons for sentence which suggest that the sentencing judge imposed a heavier sentence than appropriate to adjust for "leniency in the past". Ground 5 - Whether misdirection as to the manner in which character evidence was used: The appellant had been able to continue a normal working life while using and dealing drugs. The submission that the sentencing judge regarded the good work record and community ties as "adverse to the applicant" and by inference, deserving of additional punishment is not supported by the reasons for sentence. Ground 3 - Whether error in failure to find special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999: While the applicant had voluntarily ceased taking drugs, that was not sufficient for a finding of special circumstances. R v. Simpson [2001] NSWCCA 534 cited. Ground 9: Sentence excessive by reference to the Judicial Commission Sentencing Statistics: These statistics have limited value, and none of the cases cited provide a helpful benchmark for sentencing for the present case, or any reason to suppose that the sentences were excessive, particularly bearing in mind that a form 1 offence was taken into account. R v. Carter [2000] NSWCCA 490, R v. Khaled [2001] NSWCCA 169, R v. Huang and Lin [2002] NSWCCA 76, R v. Barton (2001) 121 A Crim R 185, R v. Harris [2001] NSWCCA 322 cited Orders: (1) Leave to appeal against severity of sentence granted. (2) Appeal dismissed IN THE COURT OF CRIMINAL APPEAL 60287/02

WOOD CJ at CL HOWIE J

Regina v Neil Smith Judgment 1 WOOD CJ at CL: This is an application for leave to appeal against the severity of sentences imposed by her Honour English DCJ in the District Court at Gosford on 9 May 2002 following the applicant's pleas of guilty to two counts. 2 The first count involved an offence of supplying a prohibited drug, namely Methylamphetamine, on an ongoing basis contrary to s 25A(1) of the Drug Misuse and Trafficking Act 1985 which provides for a maximum sentence of imprisonment for 20 years. 3 In relation to this offence, taking into account, on a Form 1, an offence of goods in custody, the applicant was sentenced to imprisonment for four years to commence from 30 April 2002 with a non-parole period of three years to expire on 29 April 2005. 4 The second count related to an offence of supplying a prohibited drug, namely cannabis leaf, contrary to s 25(1) of the Drug Misuse and Trafficking Act which provides for a maximum penalty of imprisonment for 10 years. 5 For this offence a fixed term of imprisonment for three years was imposed to commence from 30 April 2002, such sentence to be served wholly concurrently with that for the other sentence. 6 Apart from these sentences, in respect of which a discount of 20 percent was expressly given for pleas of guilty, it was established that, by reason of consent orders made in the course of proceedings brought by The Crime Commission of New South Wales, the applicant had agreed to pay to the Crime Commission the sum of $10,000. That circumstance was the subject of one ground of appeal, namely ground 6, which was ultimately not pursued when the matter came on for hearing before us. FACTS

7 The Crown case, in respect of each offence, depended upon intercepted telephone calls which showed that between 23 March 2001 and 3 April 2001, the applicant agreed, on six occasions, to supply to callers Methylamphetamine in various quantities totalling at least 42.5 grams. The intercepts showed, additionally, that on six occasions, between 22 March 2001 and 4 April 2001, he agreed to supply cannabis leaf in various amounts, expressed on one occasion as a $50 deal, and otherwise totalling not less than 70.4 grams. 8 On 3 April 2001, following telephone surveillance the police executed a search warrant at the offender's home, as a result of which they located 1,314 grams of cannabis leaf and 124.27 grams of Methylamphetamine along with scales and unused re-sealable plastic bags, the usual indicia of a person involved in an ongoing trade in drugs. Additionally, bank notes in the sum of $1,030 were seized, which became the subject of the matter contained on the Form 1. 9 Although additional charges had been initially preferred, concerning the deemed supply of the cannabis leaf and Methylamphetamine discovered at the applicant's premises, it is evident that, as a result of a charge bargaining process, these charges were not pursued, the applicant thereafter electing to plead guilty to the two counts in the indictment which was ultimately presented to her Honour.

Objective Criminality 10 A number of grounds of appeal were advanced in relation to the objective criminality of the applicant, it being submitted that her Honour erred in four respects, which it is convenient to deal with together. Those grounds are as follows: Ground 1 : Error in giving any or undue weight to the quantity of Methylamphetamine and cannabis leaf found at the applicant's premises on 3 April 2001 thereby infringing the principal in De Simoni v The Queen (1981) 147 CLR 383. Ground 2 : Error in giving insufficient weight to the circumstance that there was no evidence of actual supply. Ground 7 : Error in that there was no evidence to support the finding, which her Honour made, to the effect that the applicant was at the " upper end of the scale of dealers who were middlemen disseminating drugs into the community ". Ground 8 : Error in giving no or insufficient weight to the type and quality of the prohibited drugs involved as compared with the substances ecstasy, cocaine and heroin. 11 In my opinion none of these grounds has any merit. It is clear that her Honour did not offend against the principle in De Simoni v The Queen. First, she expressly noted that she was mindful of "the constraints" which that decision imposed. Secondly, reference to the finding of the drugs and drug dealing accoutrements was relevant for the assessment of whether or not the present offences represented discrete episodes which were out of character for the applicant, and also for the assessment of whether or not the applicant had the means of satisfying the orders which he took by mobile phone. 12 The decision of this Court in R v Smiroldo [2000] NSWCCA 120 at paras 15 to 17 does not, in my view, support the submission advanced on behalf of the applicant. It was there made clear that a sentencing judge can have regard to those matters which throw light upon the practice or business of the offender standing for sentence, so long as that is not done in a way which would involve taking into account, as matters of aggravation, circumstances which would themselves constitute another more serious offence which has not been charged. 13 There is no reason to suppose that her Honour, in this case, inappropriately took the facts mentioned into account as circumstances of aggravation in the prohibited way mentioned. 14 In so far as the submission also involved the proposition that, since there was sufficient information in the telephone intercepts for an assessment to be made of the applicant's objective criminality, there was no occasion or justification for reference to be made to the other material, that submission in my view is unjustified both in law and in logic. 15 It is not the case that a sentencing judge must confine the consideration of the objective criminality of an offender to the bare minimum of the available facts. Subject to its proper use, a sentencing judge is entitled to have regard to all of the relevant evidence which throws light upon that issue. 16 Ground 2 similarly lacks substance, there being no reason in principle why a genuine agreement to supply drugs should be regarded as any less serious than a proven act of supply. The decision in R v Kalpaxis [2001] NSWCCA 119 provides no support for the applicant, it having been a case where the offender never had any of the drugs in question, let alone any intention of supplying them. He was at the time suffering from a mental illness which led to a substantial departure from reality. 17 In the present case, the tenor of the intercepts point unerringly to the conclusion that this applicant was transacting genuine drug deals, at the times and at the places mentioned in the conversations. 18 In relation to Ground 7, I am quite unable to see any error in her Honour's assessment that the applicant occupied a position at the upper end of the scale of middlemen disseminating drugs into the community. Clearly he was engaged, during the period covered by the intercepts, in the active and continuous supply of Methylamphetamine and cannabis leaf to those users who elected to telephone him. 19 So far as the submission appears to assume that evidence needs to be called to demonstrate the modus operandi employed, or the volume of dealings carried out, by middlemen generally, in order to place an offender's activities at some appropriate level in a scale of offenders, it is lacking in substance. 20 The assessment of the applicant's criminal conduct could be made, and was properly made in the present case, by reference to the tenor of the intercepts, and to the number and nature of the deals which were negotiated. The intercepted calls established that the applicant was involved in systematic drug dealing, that potential purchasers would telephone him in some numbers and frequently, that more than one type of drug was the subject of the negotiated deals, that cheaper rates for larger quantities were offered by the applicant to purchasers, that arrangements were made for meetings at various places to carry out the deals, and that credit was offered more than once. 21 Those circumstances in my view provided ample basis for her Honour's finding in accordance with the principles referred to in Olbrich v The Queen (1999) 73 ALJR 1550. 22 Finally, in relation to the nature of the drugs involved, comparison with individual cases of a supply of drugs such as heroin and/or cocaine, provides little by way of guidance. Methylamphetamine remains a prohibited and regrettably popular drug which is easy to obtain and cheap to manufacture. A significant group of offenders, in fact, devote their entrepreneurial activities to its manufacture and sale, and its use by polydrug abusers who also resort to harder drugs, is a dismal fact of life. In any event the objective seriousness of the applicant's offences rests in this case upon the systematic and repeated nature of his criminality. 23 The philosophy behind the creation of the offence of "ongoing supply" reflects that circumstance and it is properly one which calls for condign sentences. Both specific and general deterrence loom large in this case. As her Honour appropriately noted, it is essential for a proper discharge of judicial office that a sentence for an offence of "ongoing supply" is imposed which will make it clear to those who are minded to profit from regular drug dealing, even where they are themselves users, that they risk receiving salutary penalties. 24 Otherwise this evil and selfish trade, which can only survive in the presence of middlemen such as the applicant, will continue, with the associated criminality to which users are forced in order to feed their habits. That circumstance was itself appropriately noted by her Honour so far as it related to events on the Central Coast of this State.

Subjective Criminality 25 A number of further grounds were directed to the way in which her Honour dealt with the applicant's subjective circumstances as follows: Ground 4 : Misdirection in relation to the manner in which the applicant's antecedents were treated. Ground 5 : Misdirection as to the manner in which the character evidence was used. Ground 6 : Not pursued. Ground 3 : Failure to find special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act 1999. 26 Again these submissions can be dealt with together. In relation to Ground 4, it was submitted that her Honour's observation to the effect that the applicant had been treated "leniently in the past" was not open to her. By implication, it was suggested, this meant that she had imposed a heavier sentence than appropriate in order to adjust for that circumstance. 27 There is nothing in the reasons for sentence which would suggest that her Honour fell into the egregious error which that submission would imply. It was the fact that the applicant had a somewhat lengthy and varied criminal history dating back to 1982 which included offences of dishonesty, serious motor vehicle offences including driving in a manner dangerous, driving while disqualified and driving while under the influence (which included two high range PCA offences) as well as antisocial offences of common assault, offensive behaviour, offensive language and malicious destruction of railway property which had variously seen him subjected to bonds, fines, ordered to perform community service, and subjected to a suspended term of imprisonment. 28 While that record did not include any prior drug convictions, it was not a record which did him any credit nor was it one which showed him to be a person of good character. That ground lacks merit. 29 In relation to Ground 5, it was submitted that the evidence which was called, to show that the applicant had been successfully carrying on a private and commercial life while addicted to amphetamines (although that was seemingly quite unobserved by his friends and business associates) was given insufficient weight by her Honour when dealing with the issue of rehabilitation and, in fact, it was suggested, was inappropriately regarded as an adverse circumstance. In this regard her Honour observed: " The fact that he has a good work record and strong community ties are matters that would normally be taken into account. However, he was busily engaged in dealing in drugs whilst so employed and I therefore cannot find that these matters bode well for his rehabilitation"

30 When read in context, it is clear that all that her Honour was saying was, that this was not a case of the kind sometimes seen where a return of an offender to a useful working life can contribute to rehabilitation, in the sense of encouraging the cessation of the offending behaviour. 31 In this case the applicant had apparently been able to continue a normal social life and an effective working life in a position of some responsibility, yet at the same time he had elected to continue his own use of drugs and to conduct an active drug dealing enterprise. 32 The submission that it would seem that her Honour regarded the good work record and community ties as a matter which was "adverse to the applicant", and by implication deserving of some additional punishment, derives no support from a fair reading of this passage in the reasons for sentence. 33 Moreover, in the circumstances of this case, even making allowance for the applicant's claimed addiction to Methylamphetamine, the fact of his favourable work record and community ties were not themselves demonstrative of the fact of his rehabilitation, or even of his prospects of turning his back on this form of criminality in the future, since it had been his choice to lead a double life, one strand or side of which involved serious ongoing criminality. 34 In relation to Ground 3, it was submitted that her Honour fell into error in relation to the existence of special circumstances, so far as she concluded that the applicant had not been genuine about his rehabilitation since he had "done nothing about addressing his addiction other than to cease taking any drugs" since his arrest. 35 As I understand this passage, what her Honour was referring to was the fact that the applicant had not entered into any form of drug rehabilitation program or counselling of the kind that might have addressed the underlying reasons for his resort to drugs, or which might provide him with the means of resisting future temptation. 36 While it was to his credit that he had voluntarily ceased taking drugs, that was not in the circumstances of this case sufficient reason for a finding of special circumstances. 37 The statutory ratio between the head sentence and non-parole period can be departed from where there is good reason to do so in the presence of circumstances of the kind discussed in R v Simpson [2001] NSWCCA 534. 38 In the present case the applicant does have gainful employment to which he can return; he is not a young person (being 33 years of age at the time of sentence) who by reason of his youth or immaturity was in serious need of long-term supervision; and he has demonstrated the capacity, if he so chooses, to take himself off drugs. 39 I am not persuaded, in those circumstances, that the potential period of release for one year on parole would be insufficient, in his case, to secure or to assist in his rehabilitation. No other matters which might come within the definition of special circumstances were identified either before her Honour or on appeal. I, accordingly, see no error in her Honour's findings. 40 Finally, it was submitted, via a catch all Ground 9, that the sentence as a whole was excessive by reference to the Judicial Commission Sentencing Statistics and by reference to the decisions of this Court in R v Carter [2000] NSWCCA 490; R v Khaled [2001] NSWCCA 169; R v Huang and Lin [2002] NSWCCA 76, each of which involved s 25A offences. 41 The Judicial Commission's statistics for all offenders for a s 25A amphetamine offence, show that the sentence on the first count was towards the top of the range. However, as this Court has frequently pointed out, for example in Carter, these statistics have limited value particularly where the statistical population is small, as it is in this instance, since for all offenders there are only 14 cases included in that population. 42 The reason for caution being required in the use of these statistics lies in the fact that very different objective and subjective circumstances are encompassed and, in particular so far as this offence is concerned, in the differences between the number and the extent of the dealings encompassed in the various cases. 43 None of the cases cited, being appeals against severity which were each dismissed, provides any helpful benchmark for sentencing in relation to the present case, let alone any reason to suppose that the sentences which were imposed were excessive. Particularly is that so bearing in mind that the Form 1 offence, which was taken into account in relation to the first count, needed to be reflected by some additional penalty, although not to the same extent as that which might have been applicable had the matter been the subject of a separate charge. See R v Barton (2001) 121 A Crim R 185 and R v Harris [2001] NSWCCA 322. 44 In all these circumstances, while I would propose that leave to appeal be granted, I am not persuaded that error has been shown and I would propose that the appeal be dismissed. 45 HOWIE J: I agree. 46 WOOD CJ AT CL: The order of the Court will therefore be as I have proposed. **********

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.