Regina v Blakeman

Court of Criminal Appeal (NSW)|1999-09-09|Before: Newman J, Simpson J, Hidden J

New South Wales Court of Criminal Appeal CITATION : Regina v Blakeman [1999] NSWCCA 415 revised - 20/12/99 FILE NUMBER(S) : CCA 60712/98 HEARING DATE(S) : 9 September 1999 JUDGMENT DATE : 9 September 1999

PARTIES : Regina v Kerry Vernon Short BLAKEMAN JUDGMENT OF : Newman J at 26; Simpson J at 2; Hidden J at 26

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 95/11/0305 LOWER COURT JUDICIAL OFFICER : Mitchelmore DCJ

IN THE COURT OF CRIMINAL APPEAL 60712/98

NEWMAN J SIMPSON J HIDDENJ

1 NEWMAN J: I will ask Simpson J to deliver the first judgment in this matter. 2 SIMPSON J: On 22 October 1998 the applicant was convicted after a trial by jury of a charge of conspiracy to import into Australia narcotic goods to which s 233B of the Custom's Act 1901 applies. On 13 November 1998 he was sentenced by Mitchelmore DCJ to imprisonment for three and a half years with a non-parole period of two years and three months. The applicant seeks leave to appeal the sentence. He has abandoned an appeal against conviction. 3 The prohibited goods in question consisted of the drug commonly known as Ecstacy. The conspiracy involved 296 tablets containing a total quantity of 25.4 grams of the pure drug. This was well in excess of the trafficable quantity prescribed by Schedule VI of the Act (0.5 grams) and exposed the applicant to a maximum penalty of imprisonment for twenty-five years or a fine of $100,000 or both. 4 The sentencing judge was satisfied beyond reasonable doubt that the applicant had arranged with the co-conspirator, a man named Anderson, for the drug to be sent from Germany concealed in three parcels containing cassette tapes, addressed to two post office boxes taken out by Anderson in false names. The applicant posted the articles while on a trip to Germany between June and August 1994. In the applicant's favour, the sentencing judge was not satisfied that the applicant travelled overseas for the purpose of the conspiracy but rather considered that he took the opportunity that presented itself while he was coincidentally in Europe. 5 There was subjective material before the sentencing judge. The applicant was born on 15 March 1957. He was forty-one at sentencing. His only previous encounter with the law involved possession and self-administration of prohibited drugs and possession of equipment for that purpose in 1990, in respect of which no convictions were recorded and which his Honour ignored for sentencing purposes. He had an impressive work record, having served in the New Zealand army and subsequently taken up employment in the security industry and later the film industry as a safety supervisor. He has six children, one of whom is a daughter of an earlier relationship and all of whom the applicant supports. The youngest child was born during the applicant's trial. The remaining five children are the children of his present marriage. It is obvious that his incarceration will cast a considerable burden on his wife who, at the time of sentencing, was the manager of an extensive medical practice. The burden will be financial as well as emotional. However, this is not a case which comes within the exception of the general principle that hardship to third parties, including families, cannot be taken into account as a sentencing consideration. 6 There was evidence that the applicant had, some years earlier during his employment as a security officer, been involved in a terrifying and traumatic armed robbery and had, on another occasion 1990, been severely injured in a motor vehicle accident. It was not suggested that these events in any way mitigated the offence or bore on penalty.

7 Some prominent members of the community gave character evidence in support of the applicant. One of these testified to the beneficial influence the applicant had on that witness's teenage sons. Others were equally supportive. A pre-sentence report was also generally supportive, describing the applicant as, "usually being a hardworking family-oriented man who perhaps, by an unwise choice of associates, has become involved in the offence". 8 In addition to the oral evidence given in support of the applicant, no less than twelve written references were presented to the judge. As well as that, there was a letter written by the applicant himself which the judge described as "a touching document" and to which he expressly gave "careful cognisance". 9 Counsel for the applicant argued that two factual errors can be identified in the remarks on sentence. The first of these was said to be a misstatement of the number of tablets involved. It is true that in referring to a broadly comparable sentencing exercise in R v Robinson 5 August 1998, his Honour said that in the present case there were 300 tablets. As mentioned above, there were, in fact, 296 tablets. The discrepancy is so slight as to be of no moment. His Honour overstated the number of tablets by 1.3 percent. He did not overstate the actual quantity of the drug. The minuscule error in relation to the number of tablets should be disregarded. 10 The second asserted error concerns a reference made by his Honour to another broadly comparable case R v Behar unreported, NSW CCA 14 October 1998. What his Honour, in fact, said was: "Mr Wendler placed reliance on R v Behar 14 October 1998 . The gravamen of that submission was that Behar got eleven years for 532 tablets, 1.2 kilograms of pure MDEA".

11 It is correct that his Honour misstated both the number of tablets involved and the sentence imposed. There were, in fact, 11,532 tablets. The drug content was, as stated by his Honour, 1.2 kilograms. The sentence imposed after a successful Crown appeal was one of a total term of imprisonment for six years, with a non-parole period of two and a half years. However, the sentencing judge in that case had begun with a sentence of ten years. This court concluded that, applying the necessary reduction required by s 16G of the Crimes Act 1900 (Commonwealth) he had reduced that sentence to six years with a non-parole period of four years. He further reduced the non-parole period by 50 percent for assistance to and cooperation with authorities and further still to take account of other subjective factors. This court held that the starting point of ten years was below the appropriate level for offences of the character with which the court was there dealing but, having regard to the principles applicable to Crown appeals, did not interfere with the head sentence but increased the non-parole period, imposing the sentence set out above. 12 There was nothing in the sentencing remarks in the present case to suggest Mitchelmore DCJ placed great weight on Behar or his apparent misapprehension of its effect had any bearing on the outcome of the sentence he was imposing. The reference to Behar appears in that part of the remarks on sentence in which his Honour records the submissions made by counsel for the applicant. If his Honour took the view that Behar provided limited guidance in his sentencing exercise he was, in my view, correct. The amount of the drug involved in the applicant's offence was but 2 percent of the amount involved in Behar, which was a commercial quantity and exposed Behar to imprisonment for life.

13 I am of the opinion that the apparent misapprehension about the facts in Behar's case was immaterial to the sentencing decision. 14 A further complaint was that his Honour gave insufficient weight to the delay in bringing the applicant to trial. The offence was committed in June to August 1994. He was convicted in October 1998. It may be assumed that both the applicant and his family suffered considerable stress and hardship during that time. This court was provided, without dissent, with a chronology of relevant events during that time. 15 The applicant was arrested and charged 20 September 1994 and was committed for trial with his co-accused, Anderson, on 30 March 1995. He was arraigned in the District Court jointly with Anderson on 12 May 1995 when, presumably, he entered a plea of not guilty. At that time he faced two charges, the second of which (alleging that he was knowingly concerned in a prohibited importation) was subsequently discontinued. A long delay followed because Anderson was without legal representation. A joint trial fixed to commence on 30 September 1996 was adjourned because of Anderson's continuing unrepresented status. A separate trial, fixed because of the applicant's desire to have the charge finalised, commenced but was aborted through no fault of the applicant. A second trial fixed to commence in November 1997 was not reached. A separate trial of Anderson concluded with a verdict of guilty on 6 October 1998. This was followed by the applicant's trial. 16 I accept that delay in the judicial process is a relevant factor to be taken into account in the imposition of sentence: R v Fahda [1999] NSW CCA 267 (31 August 1999), unreported, paras 16-21. In this case his Honour expressly took into account the effect of delay, observing that the delay in adjudication of the matter would have caused the applicant considerable stress and anxiety as he waited the determination of his fate. A long delay in sentencing does not necessarily or automatically result in a downward adjustment of a sentence. A long lapse of time between offence and sentencing may be taken into account but is only one of many factors relevant to the sentencing consideration. I perceive no error in his Honour's approach in this regard. 17 On appeal, counsel sought to compare the applicant's criminality with the criminality exposed in a number of other cases. One of these was Behar. It was argued that, by comparison with the sentencing starting point in Behar, and taking into account the vast difference in the quantities of the drugs involved, the sentence imposed on the applicant was manifestly excessive. I have already stated my views on the comparison with Behar. 18 Another case sought to be compared was that of Robinson in which the offender was sentenced by Blanch CJ of DC. In that case, involving the importation of 396 tablets of Ecstasy containing 32.2 grams of the pure drug, the offender was sentenced to imprisonment for five years with a non-parole period of two and a half years. That offender had two earlier importation matters taken into account pursuant to s 21 of the Criminal Procedure Act, involving another 16.2 grams of the drug; he had a previous conviction for dishonesty in the United Kingdom. 19 Reference was also made to the decision in Youval Benais, sentenced by Viney DCJ on 13 November 1997. That offender pleaded guilty to one count of importing 1,560 tablets of Ecstacy with a gross weight of 555.4 grams, with a net drug content of 61 grams. Benais was sentenced to imprisonment to six years with a non-parole period of three years. (R v Benais [1999] NSWCCA 236) An application for leave to appeal was dismissed. 20 In my opinion, it is a pointless exercise attempting to make mathematical comparisons between the amount of the drug and the sentences imposed. In all cases there is a range of sentence appropriate to any offence, taking into account all relevant objective and subjective matters. The cases referred to, in my opinion, show only that the sentences imposed on the applicant was well within the appropriate range. In my opinion, no error has been identified. 21 The final matter to which reference was made concerned sentencing parity with the co-offender Anderson. On 8 December 1998, that is after the applicant had been sentenced, Mitchelmore DCJ also sentenced Anderson and imposed an identical sentence. His Honour expressly considered questions of parity and he made the observation that Anderson's proven involvement in setting up post boxes with false addresses in a number of localities could be argued to show a slightly more active involvement than the proven involvement of the applicant who dispatched the three parcels. 22 In response to this argument, the Crown submitted that a finding that Anderson could be seen to have had a slightly more active involvement did not necessarily make a finding of a difference in the level of criminality. I am not attracted to this response to the argument. There must have been a reason why his Honour made the observation in the first place and it seems to me that what he was saying was that Anderson's level of criminality, viewed objectively, could have been seen to be slightly greater than that of the applicant. However, what appears to me to have been his Honour's reason for not sentencing Anderson more severely was the comparison between the ages of the two offenders. Anderson was 22 at the time of the offence; the applicant was 37 years of age at the time of the offence. It seems to me that this is a significant age difference and explains the approach taken by his Honour. 23 It was also suggested that his Honour was entitled to take account of evidence adduced from police officers in the applicant's trial from which evidence it might be inferred that Anderson was engaged, in some organized way, in the distribution of the drug. It does not seem to me that it is appropriate for this court to draw the kind of comparisons suggested and certainly not on the basis of the limited material available. 24 Another matter that was argued in relation to parity was that his Honour treated the delay in each case in the same way and indeed an identical, or virtually identical, paragraph appears in the remarks on sentence in each case. What his Honour said, in each case, was: "For whatever reason, these events have been hanging over the prisoner's head since 1994 when he was arrested. The delay in adjudicating this matter would have caused the prisoner considerable stress and anxiety as he awaited the determination of his trial".

25 The argument advanced in this court is that, by reason of the chronology to which I have earlier adverted, the co-accused Anderson bore more culpability for the delay and was therefore not entitled to be given the same credit on sentence for that. I cannot accept that proposition. What this court was told was that the delays occurred because Anderson was unrepresented but I would not be prepared to infer from that alone that Anderson, in any way, bore any culpability for the delay in the sentencing proceeding. 26 In my opinion, no error has been demonstrated. I would grant leave to appeal but dismiss the appeal. NEWMAN J: I agree HIDDEN J: I agree. NEWMAN J: The orders of the court will be as proposed by Simpson J.

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