Regina v Brett Raymond Walker

Judgment (7 paragraphs)

[1]

The Applicant's Background 18 The applicant was 39 years old at the time of the offences and 40 years at the time of sentence. He told the District Court that he was a fisherman who had been working on a fishing boat occasionally up to the time of his arrest. He had worked in other areas before then, including roof tiling, handyman work and in a bakery. The applicant had been in relationships, the last of which had ended in January 2003 because of his drug use. 19 The applicant had a criminal history which he accepted in evidence as being "absolutely appalling". In 1983, he was dealt with for offences of supply, possession and use of Indian hemp. Again, in 1983, he was fined for imposition, forgery and uttering. In 1984, he was sentenced to terms of imprisonment for larceny, assault and break, enter and steal and was fined for a firearm offence. In 1985, he was fined for possession of Indian hemp. In 1986, he was fined for assault. In 1987, he was dealt with for driving offences and possessing equipment to administer a prohibited drug. In 1988, he was imprisoned for driving whilst disqualified, driving whilst licence cancelled and for firearm offences. In 1988, he was dealt with for another firearm offence, further driving offences and using heroin. In 1989, he was imprisoned for break, enter and steal, assault and using heroin. In 1990, he was sentenced to terms of imprisonment for break, enter and steal, assault and false pretences. In 1997, he was sentenced to imprisonment by way of periodic detention for embezzlement. Again, in 1997, he was sentenced for imprisonment for armed robbery. Following his release from prison in 2000, he was convicted of possession of a prohibited drug in 2001 and was imprisoned for driving whilst disqualified in 2003. 20 A report dated 11 April 2004 of Dr Allan White, Consultant Psychiatrist, was tendered in the applicant's case in the District Court. Dr White did not find any psychological or psychiatric disorder. He referred to the applicant's long history of substance abuse. He expressed the opinion that it would be helpful for the applicant to be in the community where he can have access to regular treatment to assist him with his rehabilitation from drugs. 21 Coolahan DCJ accepted that the applicant was a person who was addicted to drugs, but that he had made efforts to deal with that addiction and had a resolve to continue in that regard. 22 His Honour accepted that the applicant was in protective custody and was likely to continue to be on protection for the balance of his sentence. The applicant's protective custody flowed from an assertion by another prisoner that the applicant had reported him to the authorities.

Ground 1 - His Honour Erred in Regarding the Applicant's Criminal Record as an Aggravating Factor 25 In the course of his remarks on sentence, Coolahan DCJ said (page 17): "In dealing with the offender, I have taken into account those matters which are required to be taken into account under section 21A of the Crimes (Sentencing Procedure) Act. Aggravating factors, of course, include the fact that he has a record of prior convictions . So far as mitigating factors are concerned; anecdotally, I suppose, he is at an age where people who have had a criminal history tend to change their lives around. This is a factor referred to by Dr White in his report, and in that regard I am prepared to accept that he has some prospects of rehabilitation." (emphasis added) 26 Section 21A(2) Crimes (Sentencing Procedure) Act 1999 includes the following provision: "(2) Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows: … (d) the offender has a record of previous convictions, …". 27 Section 21A(4) of that Act provides that the court is not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so. It has been held that the effect of s.21A(2)(d) and (4) is to require the court to apply the common law principles in Veen v The Queen (No. 2) (1988) 164 CLR 465 with respect to use of a prior criminal record on sentence: R v Johnson [2004] NSWCCA 76 at paragraphs 32-37; R v Wickham [2004] NSWCCA 193 at paragraph 24. In R v Shankley [2003] NSWCCA 253, Howie J expressed the principle in Veen (No. 2) as follows (paragraph 31): "The effect of the prior criminal record of the offender, where it is relevant to sentencing, is not to increase the objective seriousness of the offence committed but rather that 'retribution, deterrence and protection of society may indicate a more severe sentence is warranted'." 28 The applicant submits that the sentencing judge erred in treating the applicant's record of prior convictions as an aggravating factor in this case. Counsel for the applicant submits that the record was relevant, but was not a factor which aggravated the offence. It was pointed out that, despite the applicant's lengthy criminal record, he had only one prior conviction for supplying a drug and that was in 1983. Further, it was noted that at the time of his arrest in June 2003, he had been out of custody for more than three years and had been convicted of only two offences, both of which were dealt with by way of fines. 29 Apart from a recital of the applicant's criminal record, and a reference to the applicant's concession that his criminal history was "appalling", the only reference to the applicant's criminal record by the sentencing judge was that contained in the passage set out in paragraph 25 above. 30 The Crown submitted that, applying Veen (No. 2), the applicant's criminal record, which included convictions for possession, use and supply of prohibited drugs, was such that personal deterrence had to be given more significance than would otherwise have been the case: R v Berg [2004] NSWCCA 300 at paragraph 29. It was submitted that the applicant had not demonstrated that the sentencing judge's treatment of his criminal record was otherwise than in accordance with the applicable principles. 31 I am not persuaded that error had been demonstrated in this case in the use by the sentencing judge of the applicant's criminal history. As in Berg, there were parts of the applicant's criminal history which the sentencing judge would have been entitled to take into account in accordance with the principles in Veen (No. 2). 32 It should be observed, however, that a passing reference to s.21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999, without reference to the precise manner in which the sentencing judge takes that factor into account on sentence, is unsatisfactory. A failure to explain the manner in which the factor is taken into account does not enlighten the sentencing process, in a manner which s.21A appears to have been designed to achieve. Nor does it inform the offender, the Crown and the community of the use which the sentencing judge has made of this factor. In a case where the offender's criminal history is not capable of attracting the principles in Veen (No. 2), error may be demonstrated which affects the sentencing process. It is important that sentencing judges keep firmly in mind the limited purpose for which an offender's criminal record may be taken into account, in a manner adverse to the offender, in the exercise of sentencing discretion. 33 In the circumstances of the present case, however, I am not satisfied that impermissible use of the applicant's criminal history has been established. I reject this ground of appeal.

(b) there was insufficient weight given to the subjective circumstances of the applicant. 35 With respect to the objective seriousness of the offences, the Crown submits that this was part of a planned criminal activity. The evidence before the sentencing judge pointed to persons visiting the applicant's premises in a manner indicative of drug supplying, the presence of text messages on his mobile phone which again indicated the business of supply of drugs, the applicant's possession of resealable plastic bags and a substantial sum of money, all of which contributed to the finding of Coolahan DCJ that the applicant was "in the business of supplying drugs for profit". The Crown submits that these were objectively serious offences. The Crown points to the fact that the sentences imposed upon the applicant were wholly concurrent despite the fact that two different drugs were being supplied by him. 36 In my view, it would be an unduly narrow and artificial approach to confine attention to the quantity of the particular drugs possessed by the applicant and their street value to determine the objective seriousness of those offences. There is a broader factual context which was revealed by the evidence which supports the finding by the learned sentencing judge that the applicant was "in the business of supplying drugs for profit". These were not isolated offences. They were committed by an offender with a prior history of supplying drugs. There were offences on the Form 1 which justified the imposition of a longer sentence for the first count on the Indictment: Attorney General's Application under s.37 Crimes (Sentencing Procedure) Act 1999 (No. 1 of 2002) (2002) 56 NSWLR 146 at paragraph 18. 37 The applicant contends that insufficient weight was given to what was described as a reasonably strong subjective case involving pleas of guilty, the applicant's resolve to stop using illicit drugs, his prospects of rehabilitation in the context of his mature years and his more onerous custodial conditions whilst subject to protective custody. Reference was made to his improved (but not offence-free) criminal record between 2000 and 2003. Reliance was also placed upon Judicial Commission statistics for the offence of supplying a prohibited drug. 38 I am not satisfied that the applicant has demonstrated error in the imposition of the sentence passed in this case. It is clear that the sentencing judge took into account the pleas of guilty, the applicant's prospects of rehabilitation and his protective custody in passing sentence, including a finding of special circumstances. In my view, the sentences imposed by the sentencing judge were well within the range of sentences appropriate for the offences for which the applicant stood to be sentenced. Further, his Honour's direction that the sentences be wholly concurrent was favourable to the applicant in the circumstances of this case. 39 In my view, the sentences imposed were such that, even had there been error shown, the Court would not have intervened as no lesser sentence is warranted in law: s.6(3) Criminal Appeal Act 1912. 40 I propose that the application for leave be granted, but that the appeal be dismissed.

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Judgment (7 paragraphs)

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