Regina v Benjamin Phillips

Court of Criminal Appeal (NSW)|2003-12-08|Before: Sully J, Hulme J, Miles AJ

CITATION : Regina v Benjamin Phillips [2003] NSWCCA 373 HEARING DATE(S) : 8/12/03 JUDGMENT DATE : 8 December 2003

JUDGMENT OF : Sully J at 1; Hulme J; Miles AJ DECISION : Leave to appeal against sentence granted; Appeal against sentence allowed; Sentence quashed and in lieu sentenced to imprisonment for 3 years to commence on 30 May 2003 and to expire on 29 May 2006, with a non-parole period of 1 year and 3 months

CASES CITED : Regina v Thomson and Houlten (2000) 49 NSWLR 383 Regina v Ellis (1986) 6 NSWLR 603 PARTIES : Regina Benjamin Phillips FILE NUMBER(S) : CCA 60313/03 COUNSEL : G. I. Rowling - Crown H. K. Dhanji - Appellant SOLICITORS : S. Cavanagh - Crown O'Brien Solicitors - Appellant

LOWER COURT District Court JURISDICTION : LOWER COURT 03/11/0276 FILE NUMBER(S) : LOWER COURT Shillington DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60313/03

SULLY J HULME J MILES AJ

Monday 8 December 2003 REGINA v BENJAMIN PHILLIPS JUDGMENT

1 SULLY J: The applicant, Mr Phillips, pleaded guilty before a Local Court Magistrate to a single charge of having supplied a prohibited drug. He was remanded accordingly to the District Court for sentence and appeared eventually before Judge Shillington QC. 2 His Honour dealt with the matter finally on 30 May 2003. His Honour sentenced the applicant to imprisonment for three years to date from 30 May 2003 and to expire on 29 May 2006; with a non-parole period of two years and three months to date from 30 May 2003 and to expire on 29 August 2005. 3 It is not disputed that his Honour's canvass of the relevant general background and objective facts is correct, and it can be reproduced accordingly as part of this judgment.

"The prisoner, Benjamin Phillips, appeared before the Local Court and entered a plea of guilty to a charge that on 22 November of the year 2002 at Mascot he supplied a prohibited drug, that is, methyldioxymethylamphetamine 3.4 in an amount of 25 grams or 24.74 grams. He confirmed that plea before this Court.

The facts are that on 22 November 2002 the prisoner despatched from Mascot Airport via Australian Air Express a gift wrapped box to Jake Edmonds at 6/30 East Gordon Street, Mackay, Queensland. He placed his name with no details of an address in Australia as sender. The package was intercepted and x-rayed at Mackay Airport where it was found to contain 100 ecstasy tablets.

On Tuesday 26 November 2002 the prisoner attended Rose Bay Police Station where he stated he wished to confess to posting the parcel. He gave an account in an ERISP interview that he was about to start a catering business with a girlfriend and that he had called in a number of debts to provide necessary capital. He claimed an unidentified acquaintance who owed him $3500 for a long-standing loan had given him the drugs in payment of a debt; that he was fearful of this person and did not therefore demand cash. He sent the drugs in a birthday present package for his sister and her boyfriend. He said those birthdays were one day apart. The parcel was directed to the sister's boyfriend, Jake Edmonds, at Unit 6/30 East Gordon Street, Mackay, the sister's name being Emma Kate Knezevic. The package was described as containing a present and a diary.

It appears on the 23 November, and this arises from a statement of Michael Handley which is dated 4 March this year, that the parcel was examined by Handley who was a self-employed agent for Australian Air Express at Mackay Airport. His suspicions were aroused because a similar parcel addressed to Emma Kate Knezevic had been delivered by him on 30 August 2002. It was marked as containing coffee products and a percolator and Handley thought the freight charge of $140 was unusual for such contents. He delivered the parcel in the evening of that day to the number 6/30 East Gordon Street. His impression was the lady was "very anxious" to get the parcel. The parcel, which had arrived at Mackay on 23 November, similarly had a freight charge of $140 and sent to the same address as the 30 August parcel. Handley took the later parcel to the security staff at the airport where it was x-rayed and the ecstasy was discovered.

The prisoner was interviewed at Waverley Police Station on 26 November, as I have recorded, after giving himself up at Rose Bay Police Station. He said in this ERISP that he sent the ecstasy tablets to his sister in Mackay although the package was addressed to her boyfriend because he trusted her but that he did not tell her of the drugs. I refer to answer 37. He said that his sister rang him at 1 am on the Sunday, the following Sunday morning, telling him of their arrest for possession of illegal drugs. As a result he gave himself up because of his concern for his sister and her boyfriend. Although the prisoner did not specifically say so it may be inferred his purpose in sending the drugs to Mackay was to raise cash for the sale of the ecstasy tablets by his sister, her boyfriend or others. Those are the objective facts." 4 In the circumstances of this particular matter, I think it useful to add to his Honour's survey the extent of the explanations given by the applicant himself in his electronically recorded interview with the investigating police; and, in particular, the answers to questions 37 and 38 of that interview:

"Q37. O.K. Just if you start from the beginning, where you got the package and how you sent it off, all the way through? A. All right. Well, on the long weekend, about eight weeks ago, I met a girl um, that I've fallen in love with, and basically we've got a lot in common. She, she used to work for Luke, Luke, Neil Perry, that big cook, and she's made me see the light as in moving on with my life. We're going to start our own catering business, and um, so I've rang around all the people that have owed me money over the years and four and a half years ago, I lent this guy money. He's a sort of a guy, if you lent him money, you think, if that guy's owes you a favour you'll be sort of sweet, and um, I finally get in contact with him, probably about three weeks ago, to tell him about how I'm starting a business with this girl. I'm in love, and rah, rah, rah. He says Yeah, I'll come around. He comes around, and instead of givin' me cash, he turns around and goes, I'll give you these, and he owed me three and a half thousand dollars, and he's not the sort of person that you can just go, no, I want the cash, you know what I mean. So he turns around, but I take these things just out of like, I don't want to let this girl down, because I said I had the money comin', and the only thing I could think of, 'cause the only person I trust is my little sister like, I wish, I should have said, no, to this guy to start with, um, I don't know. If you were in the same position, and you wanted to start a business, and you, what do you do, send these parcels to your mum, and what, your mum would tip 'em down the sink, so I sent 'em to my sister, 'cause I trust her more than anything, but I didn't tell her about it, because I thought, you know, someone might, you know, catch this, and then I won't have any money, and, and basically I went out to Australia Express, and I wrapped the present up, her birthday present for her boyfriend and her like, I didn't put my own, when I was comin' home, I put my own name on the parcel, right, to send it to her, and then I was ringin' her. This was on Friday, I don't know what the date is now, the 26th of, the 25th, the 24th, so the 22nd, I think, was Friday?

Q38. Yes, that's about right. A. I went out there, and sent that up to her, and I was ringin' her all day um, Saturday from work, and from my mobile phone, sayin', Have you got your package, have you got your package, um, she rings me at 1 o'clock in the morning on Sunday morning, saying, I don't what you've done or what someone's done to us in Mackay, but we've been set up. The police said there's illegal substances in the package. I, I just turned around, I didn't even tell her. I said, Well, it must have been from your end, rah, rah, rah. She, it must have been from your end. She hasn't spoken to me since and I've spoken to our father, and he said, she's gone, you know, to get money to get a lawyer and all this sort of stuff to fight it, and there's this like, I needed the money. I was about to start my own, you know, a new life, catering, a new job, you know, with someone that I love. I couldn't tell her. Now, it looks like I'm about to lose her too because if she had have known about this, she wouldn't have let it happen, you know what I mean." 5 There are three grounds of appeal. 6 The first is that the learned sentencing Judge erred in failing to discount the applicant's sentence for the utilitarian value of his plea of guilty. It is not disputed and, indeed, it could not be disputed on the face of the remarks upon sentence, that the learned sentencing Judge did advert, albeit in general terms, to the fact of the plea of guilty. 7 The submission is that his Honour should have stated more precisely that, in fact, he was taking the plea of guilty into account; and should have been more precise in his explanation of the extent to which he was, in fact, proposing to take it into account. These propositions are said to follow from the decision of a specially convened Bench of this Court in Regina v Thomson and Houlten (2000) 49 NSWLR 383. The short answer to that particular submission seems to me to be that a careful reading of what, in particular, his Honour the Chief Justice said in Thomson and Houlten simply does not support the propositions as now put. It is sufficient to refer in general terms to what his Honour said at para 159 and para 160, in particular in the subparagraphs (i) and (ii) of para 160. It is not, I think, necessary now to take time to reproduce that material in detail. 8 In my view, the first ground of appeal has not been made out. 9 The second ground of appeal is that the sentencing Judge failed to discount the applicant's sentence in accordance with the principle established by the decision in Regina v Ellis (1986) 6 NSWLR 603 at 604C-E. It is, I think, useful to recall what actually is the principle as established, in particular, in the judgment of the then Chief Justice, Sir Laurence Street. His Honour says, relevantly, these things: "When the conviction follows upon a plea of guilty, that itself is the result of a voluntary disclosure of guilt by the person concerned, a further element of leniency enters into the sentencing decision. Where it was unlikely that guilt would be discovered and established were it not for the disclosure by the person coming forward for sentence, then a considerable element of leniency should properly be extended by the sentencing judge. It is part of the policy of the criminal law to encourage a guilty person to come forward and disclose both the fact of an offence having been committed and confession of guilt of that offence. The leniency that follows a confession of guilt in the form of a plea of guilty is a well-recognised part of the body of principles that cover sentencing. Although less well-recognised, because less frequently encountered, the disclosure of an otherwise unknown guilt of an offence merits a significant added element of leniency, the degree of which will vary according to the degree of likelihood of that guilt being discovered by the law enforcement authorities, as well as guilt being established against the person concerned." 10 Particularly relevant for the purposes of this matter are the observations made by Street CJ at the conclusion of the quoted paragraphs. His Honour explains that the degree of added leniency that is properly to be accorded to somebody who comes forward and admits his guilt of an otherwise unknown offence, will vary according to the degree of likelihood of that guilt being discovered by the law enforcement authorities; as well as the degree of likelihood of the establishment of that guilt as against the particular person concerned. 11 In the present matter, it is clear from the evidence that the parcel which was sent by the applicant to his sister was marked with his own name and his own postcode in Sydney. There is no evidence as to how readily the police could have traced the parcel back to the applicant had it become necessary for them to do so; and that is the case for the simple reason that it did not ever become necessary for the police to embark upon that exercise. 12 The police apprehended in Queensland the addressees of the parcel. That became known almost immediately to the applicant, and triggered off in the applicant a remorseful recognition of what he had done, and his consequent coming forward to disclose to the police what he had done. It is one thing to say that the evidence justifies a view that gives to the applicant some proper recognition for that remorse, and for his having faced up to his proper responsibilities in the events that happened, especially to his sister. It is a very different thing to say that the matter can simply be slotted, as it were, into the Ellis category as a means of arguing that there should be some automatic and swingeing reduction in what would otherwise be a sentence appropriate to the circumstances of the case. I myself do not see the case as one that comes, in that particular sense, within Ellis. I would not uphold the second ground of appeal.

13 The third ground of appeal is that the sentence is, in all the circumstances, manifestly excessive. That ground can be disposed of, in my opinion, in short order; and in a way which is, at least, broadly favourable to the applicant's submission. 14 The head sentence that his Honour fixed of three years was, in my opinion, appropriate to the circumstances of the case, and I myself would not favour any interference with it. For myself, I think that the proper considerations of general and personal deterrence alone justified a sentence of that order in the flagrant circumstances of the present case. 15 The fixing of a non-parole period cannot, I think, be dealt with in quite so blunt a fashion. His Honour dealt with that aspect of the matter in a very blunt fashion, recording simply, towards the end of the remarks on sentence the observation: "I find no special circumstances."

16 There is, to begin with, an ambiguity about what that sentence is actually intended to convey. If it is intended to convey the proposition that, as a matter of law, there were not present, on the evidence, matters capable of constituting special circumstances, then I should think that such a proposition was manifestly untenable. If what his Honour said is intended to convey, rather, that his Honour accepted that there were matters capable of being accepted as special circumstances, but thought that in the circumstances of the case there should not be a finding in fact of special circumstances, then I would have thought, with great respect to his Honour, that it was necessary to expose at least some process of reasoning to justify that end result; for it cannot be gainsaid that a finding in a particular case that there are no special circumstances is of the greatest significance, to say the very least, in the proper fixing of a non-parole period in connection with what is otherwise a proper head sentence. 17 I agree, and as learned counsel for the Crown has submitted, that the Court should be slow to interfere in what is essentially the exercise of a judicial discretion by the primary sentencing Judge. But I think that there are cases where what has been achieved in the particular matter simply suggests that what has happened has not been a fair overall reasonable balancing out of all the relevant objective and subjective features of the individual case. 18 I have a clear conviction, speaking for myself, that this is not a case in which it was reasonably open to find, simply and bluntly, that there were no special circumstances. The evidence available to the learned primary Judge did suggest, and seems to me to have suggested quite strongly, that this was a case in which the applicant really did have prospects of rehabilitation. Such things, it can be granted, are ones that are difficult to predict, indeed impossible to predict, with absolute certainty. But doing the best that one can with what was before the primary Judge, it seems to me that the applicant's case was one where somebody who had a great deal of natural talent and skill in particular fields somehow went off the rails in a way that the pre-sentence report describes as a lost sense of focus and purpose. That seems to have led , as sadly it frequently does, to a downward spiral in the particular individual's behaviour. That makes it all the more important, it seems to me, to be appropriately careful and balanced in looking at prospects of rehabilitation insofar as they can be assessed on the full evidence. 19 I think that, assessed on the whole of the evidence, the prospects were sufficiently good to require, in the exercise of the relevant discretion, a finding of special circumstances. That ameliorates immediately what might be described as a strict seventy-five per cent of the head sentence, that the legislation would otherwise have required. 20 How that is to be accomplished is itself a matter calling for a present exercise of discretion by this Court, an exercise which is assisted to a great extent by the two affidavits placed before the Court in regard to that matter. 21 It suffices to say that in my opinion, and doing the best one can with that material, that justice would be done if the head sentence were left in place as a clear deterrent to others who might be tempted to offend in a similar fashion to the applicant; and if the parole period were adjusted to fifteen months. 22 I would make the following orders:

Appeal against sentence allowed. 3. Sentence quashed and in lieu thereof the applicant is sentenced to imprisonment for a period of three years to commence on 30 May 2003 and to expire on 29 May 2006, with a non-parole period of one year and three months to date from 30 May 2003 and to expire on 29 August 2004. 23 In the circumstances of this case, there should be an order that the applicant be released to parole at the expiration of the non-parole period. The Court should, in my opinion, make a particular and strong recommendation that the applicant, upon his release to parole, should be thereupon subject to the supervision of the Probation and Parole Service; and that such supervision should continue without interruption until the expiration of the parole period. 24 I should add that that last recommendation is motivated by my own perception that the evidence in this case suggests that the applicant needs, and would be materially assisted by, such uninterrupted probation and parole supervision during the entirety of what I have proposed as the adjusted parole period. 25 I propose orders accordingly.

26 HULME J: I agree. I would add only this: For my part, the unusually low proportion which the non-parole period forms of the head sentence under the orders proposed is due to an assessment of the particular situation of the applicant and circumstances of the case. 27 MILES AJ: I agree also.

Last Modified: 12/12/2003 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.

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