R v Tirtabudi

LOWER COURT District Court JURISDICTION : LOWER COURT 03/11/0329 FILE NUMBER(S) : LOWER COURT Latham DCJ JUDICIAL OFFICER :

• 3 - IN THE COURT OF CRIMINAL APPEAL 2004/1834 CCAP (603174/04)

WOOD CJ at CL BUDDIN J SHAW J

21 SEPTEMBER 2004 REGINA v ALVIN TIRTABUDI Judgment 1 SHAW J: This is an application for leave to appeal against the sentences imposed by Latham DCJ upon the applicant, following pleas of guilty. 2 There were two substantive charges, both relating to the supply of a prohibited drug. The precise charges were as follows. Count 1 Supply a prohibited drug (4.56 grams of 3, 4 - methylenedioxymethylamphetamine). (d.o.o. 18.12. 01) s 25 & s 29 Drug Misuse and Trafficking Act 1985 Maximum Penalty: Imprisonment 15 years

Count 2 : Supply a prohibited drug (5.42 grams of methylamphetamine and 4.2 grams of 3,4 - methylenedioxymethylamphetamine). (d.o.o. 28. 10. 02) s 25 & s 29 Drug Misuse and Trafficking Act 1985 Maximum penalty: Imprisonment 15 years. 3 In addition, there were four Form 1 offences which were also appropriately taken into account in imposing the sentence, including custody of a knife in a public place; and three offences of possessing a prohibited drug, respectively, amphetamine, methylamphetamine and MDMA. 4 The maximum penalty prescribed by the legislature was fifteen years in respect of each count. The sentence determined by her Honour was, in relation to count 1, taking into account the Form 1 offences, imprisonment for two years to date from 26 September 2003 and to expire on 25 November 2005. A non-parole period of eighteen months was set to expire on 25 May 2005.

5 The sentence in relation to count 2 was imprisonment for three years, to date from 26 May 2004 and expire on 25 May 2007. A non-parole period of fourteen months was set to expire on 25 July 2005. 6 An order was also made that the drugs be destroyed.

7 It appears that the applicant had no prior offences recorded against him. 8 There are two grounds of appeal: First it is said that the sentences on both counts are "manifestly excessive." I am unable to agree that this ground has been made out. The sentencing judge carefully considered the relevant factors, some of which were subjectively favourable to the applicant, including the fact of addiction to "ecstasy", that the supply offences arose out of the applicant's need to finance his own drug use, that the sale of drugs was to friends for a relatively modest profit and that the applicant had been frank and open in his account of his dealings. 9 So we have undoubtedly serious offences committed by a person without any prior criminal conviction, but with a drug addiction. It is true, as the applicant contends that, on the evidence, the motivation for supplying the drugs was to finance the applicant's own drug use, as distinct from being an entrepreneurial or cynical drug supplier who did not himself or herself use drugs but was simply out to make a profit. 10 It is contended that in these circumstances, the crimes constitute a level of criminality "low on the range …", I would take account, as I believe the sentencing judge did, of the lack of prior criminal record, the plea of guilty, the contrition which can be inferred from that plea of guilty and the prospects of rehabilitation. I accept that the head sentence of two years for the first count is at the high end of the range. I note that it is conceded by the applicant that the facts and circumstances of the second count were more serious and that, in particular, whilst the applicant was on bail for the first count, he was found in possession of 5.42 grams of methylamphetamine and 4.2 grams of ecstasy, located in a motor vehicle. It was obviously relevant that the applicant was on bail at the time of the second offence and that this was a significant aggravating feature. There were some favourable subjective circumstances, and in my view a real prospect of rehabilitation. Nonetheless, I have difficulty in finding that the head sentence of three years in relation to the second count was excessive or beyond the established range of penalties. 11 It is vitally important, in my opinion, that this Court respect the discretionary nature of sentencing by trial judges. Of course, if error can be demonstrated or if a sentence is outside of the range (whether excessively lenient or excessively harsh) then correction can occur and a variation can be made of the sentence imposed. But, a prime factor that this Court should give weight to, is the necessarily discretionary nature of the sentencing process. These are matters upon which minds can legitimately differ. But it is insufficient for this Court to form the view merely that it may have come to some different view as to the appropriate sentence that the decision at first instance should be varied. Rather, it seems to me that some error of principle or some manifestly inadequate or excessive sentence has to be demonstrated in the appellate argument.

12 I note that the sentencing judge gave a discount for the plea of guilty (fifteen per cent) and that no complaint is made by the applicant about the extent of the discount, resulting from a plea of guilty on the day fixed for trial. Accordingly, due account has been accorded to the presumed contrition arising from the plea of guilty and the utilitarian value to the criminal justice system of such a plea. 13 In short, I am unpersuaded that the sentences on both of the counts, taking into account the Form 1 matters, were excessive or beyond the bounds of a reasonably exercised discretion. 14 The second ground argued by the applicant asserts that her Honour erred in setting a non parole period of eighteen months in relation to count 1, even though she found that there were "special circumstances" for varying the prima facie statutory ratio of the head sentence and the non parole period. It is clear that her Honour thought that there were special circumstances which would justify a variation of that ratio and, in particular, her Honour held that this was the first time that the prisoner had spent any time in full-time custody, and that alteration is required so that the prisoner might benefit from supervision and facilitate his return to the community. This did constitute a finding of special circumstances in accordance with s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

15 The manner in which the individual sentences were structured is of no great moment. It may be that a shorter fixed term should have been imposed in relation to count 1. However, the question is whether the totality of the sentence is susceptible to appellate review. 16 The overall effective sentence has not been demonstrated to be inappropriate, unjust or otherwise outside of the appropriate exercise of sentencing discretion. It is the outcome which is critical, as opposed to the arithmetic. The overall non-parole period was forty-eight per cent of the head sentence. The effective overall sentence is three and a half year with a non-parole period of 20 months. I am unable to see that this is erroneous.

2 The appeal be dismissed. 18 WOOD CJ at CL: I agree. The practical effect of the sentence imposed in relation to the first count was to impose a term of imprisonment of six months. As Shaw J has indicated, that matter could easily have been dealt with by a fixed term of six months, taking into account the four offences on the Form a and there could have been no possible quarrel with that outcome. 19 As Shaw J has also indicated, what is of concern in this case is the overall sentencing order. I am not persuaded, having regard to the seriousness of the second offence and particularly the fact that it was committed whilst on bail, that any sentence, either more or less severe, was warranted in law and should have been passed. Accordingly, I agree that while the application for leave to appeal should be granted, the appeal be dismissed.

20 BUDDIN J: I agree with Shaw J and I also agree with the additional observations of the presiding Judge. 21 WOOD CJ at CL: The orders of the Court will, therefore, be as proposed by Shaw J.

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