REGINA v. BENTLEY [2003] NSWCCA 360

Appeal arguments 81 Two submissions were put on appeal. The first concerned the reference to "no rational basis". 82 The significance for the ground of appeal concerning alternative verdicts of what went on in totality is, so it is submitted now, on appeal, that the jury would have understood from the previous day's direction as to the availability of alternative verdicts, that they could have returned alternative verdicts if they were satisfied of one or two supplies but not of all, so that a lack of credit on one or two supplies would not have produced a complete acquittal. It was submitted that the later direction that there was no rational basis to found such an alternative verdict in that context could have been understood by the jury as an indication from the judge that the jury should accept the whole of the evidence unless they were minded to wholly reject it, so that they could reach a verdict of guilty by being satisfied that the appellant had carried out some, though not necessarily all, of the supplies and could only acquit if not satisfied that he had carried out any of them. I do not accept that what was said would have been so understood by the jury. 83 In my view, the introduction of the possibility of the alternative verdict into the case is to be regretted and reference to the lack of a rational basis for it was unfortunate, but again and again throughout the summing up, his Honour clearly directs the jury that it was necessary for the prosecution to prove beyond reasonable doubt all three of the supples alleged by the Crown, and for that purpose the case was entirely dependent on the evidence of the undercover operative, albeit, she was in respect of some matters to some extent, corroborated, particularly in relation to the sale on 14 September. 84 Counsels' addresses were, except as I have set out, to the same effect. In this context, the jury had also been told a number of times that they could accept or reject all or part of Julie's evidence. Rejection of any supply necessarily meant outright acquittal. So far as I can see, defence counsel never sought or supported the availability of the alternative verdict. 85 Although, as I have said, I found the entire discussion between counsel and his Honour concerning the alternative direction confusing, when I consider what was put to the jury in the whole of the summing up and addresses, I am unable to detect any legal error or prejudice to the accused arising from the reference to it or from the terms of the judge's withdrawal of it from the jury's consideration. I do not consider that there should have been any further discussion or elaboration on what the trial judge had said to the jury when withdrawing the prospect of the alternative verdict as anything further said was liable to produce confusion. 86 Further, I do not see there was any practical necessity for the alternative verdict or to further discuss with the jury the terms that the judge had used in withdrawing it, since I do not accept that, as it was submitted, the evidence of the incident of 16 September or any one of the supplies was substantially weaker than that of the others. I see no reason why the jury might have considered the credibility of Julie differed from occasion to occasion, although I accept the corroborating evidence differed. But such evidence as the jury accepted of any particular supply would inevitably have bolstered Julie's credit generally and thus reflected upon the strength of the evidence of any other supply just as any doubt they may have had as to the reliability and truthfulness of her account as to any one supply would have undermined the reliability of the whole of her evidence. 87 In conclusion, I do not see any risk of a miscarriage arising from the alternative verdict being left or withdrawn nor that the refusal of the application for discharge, made as and when it was, occasions any disquiet. 88 In my view, there was a powerful, if not overwhelming, Crown case. Even though I consider the alternative verdict would have been better not left and the choice of words used in withdrawing it was unfortunate, I consider that there was no fundamental flaw in the trial, that the appellant lost no chance of an acquittal and that there was no risk of miscarriage arising from the terms used by his Honour when referring to the basis for the alternative verdict being withdrawn. 89 I conclude that the appeal against conviction must be dismissed. 90 I turn now to the application for leave to appeal against sentence. 91 His Honour, the learned trial judge, found in the appellant's favour that he was himself addicted to the drug, being a single man, aged 35 with a limited prior criminal history with entries for minor dishonesty matters and possession of cannabis, who had not previously, except for a period of some 100 or so days been subjected to a substantial sentence of imprisonment for 118 in Queensland being subjected to a period of substantial imprisonment. 92 His Honour had regard to the applicant's hospitalisation for serious medical conditions and, in particular, to the injury to his arm which had left him, in his view, vulnerable so that he had requested that he be confined on protection. 93 Trial counsel had specifically raised with his Honour that injury and his gaol regime contending "he doesn't get into the sun or the library or the gym, has a limited access to education and can't paint. He is an artist.". 94 It was specifically put to the trial judge that special circumstances should be found in those circumstances and the non-parole period thereby shortened from that provided for by s.44 of the Crimes (Sentencing Procedure) Act 1999 in the absence of finding of special circumstances. 95 The ground of appeal in respect of the application for leave to appeal against sentence asserted that "the penalty is too severe and some other sentence is warranted". Reference was made to the small amount of the drug and the limited value of the payment for it. In the context particularly of the applicant's prior record, however, I am unable to see that the sentence is in error. The written submissions focused on the length of the non-parole period and his Honour's asserted error in failing to find special circumstances. In particular, reference was made to the appellant serving part of his sentence in protection and to his Honour having failed to find special circumstances. 96 On the hearing of the appeal, by consent, the affidavit of Janet Elizabeth Bremner, solicitor, of 27 October 2003 was read as to the circumstances of the appellant's confinement. That, because, there was before the trial judge a paucity of evidence as to the actual circumstances of that confinement but assertions made without evidentiary support as to it from the Bar table. 97 It was conceded by senior counsel for the appellant in the light of the whole of the material, and particularly a memorandum annexed to the affidavit of Janet Bremner that it could not be said that the applicant was significantly disadvantaged. The circumstances of his confinement included that he might associate with other inmates within a protected area, have access to services and programmes, had extended periods of time out of cells each day, have access to activities on a daily basis or as starting levels permit, and is not deprived of access to employment, educational courses, counselling or other facilities, albeit, there is some limited availability of appropriate employment. 98 The memorandum informed the court that his classification within the system would not be affected by his status. That information was not challenged before us. In regard to this submission, I should note that in a series of recent decisions referred to in Regina v. Totten [2003] NSWCCA 207, this court has emphasised the necessity for evidence to establish not only that a person might be confined in some specially designated custody, but to establish the circumstances of that custody and whether it really is or is not disadvantageous. Custody which is more onerous will be taken into account to determine the length of the sentence to be imposed and in determining whether there are special circumstances but that matter must be properly established. 99 In this case, it is clear that the trial judge had reference to that matter and to the other matters to which our attention has been drawn, both with reference to the length of the head sentence and also with reference to his considerations of whether or not he should find special circumstances. The categorising of those matters as special circumstances, however, was plainly a matter for him in the exercise of his discretion. Given that the submissions put below concerning disadvantageous circumstances could not be sustained on the evidence now before us and, having regard to the ambit of the discretion vested in the trial judge to decide whether a matter should in an individual case be categorised as special circumstances, a discretion which I am not persuaded here, miscarried. I see no basis upon which the appeal against sentence might succeed. 100 In my view, since there has been full argument, leave should be granted but the appeal dismissed. 101 HOWIE, J: I agree with the orders proposed by Greg James, J. and generally with his Honours reasons.

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