Regina v Burgess

Regina v Burgess - [2006] NSWCCA 319 - NSWCCA 2006 case summary — Zoe

[11]

Judgment 1 SULLY J: I agree with Howie J. 2 ADAMS J: I have had the advantage of reading the judgment in draft of Howie J. I agree with the orders proposed by his Honour and with his Honour's reasoning, subject to the qualifications expressed in what follows. 3 In determining whether a case falls within the middle of the range of objective seriousness, this Court said in R v Way (2004) 60 NSWLR 168 at [88] that the factors to which regard must be had in assessing whether a case falls within the middle of the range of objective seriousness include the objective factors referred to in s21A of the Crimes (Sentencing Procedure) Act 1999. I have already pointed out (in R v AJP (2004) 150 A Crim R 575) that, with respect, it is difficult to reconcile this approach with the requirement of s54B(3) that "the reasons for which the court may set a non-parole period that is longer or shorter than the standard non-parole period are only those referred to in s21A". For example, if some factor, such as planning (cf s21A(2)(n)), aggravated the offence, it could not be used at the same time to assess whether the offence was in the middle of the range of objective seriousness. The obverse (lack of planning) is in precisely the same position. The same must be true of all the objective features referred to in s21A. However, this logical problem was not referred to in Way and, of course, I must defer to the view there expressed as to the application of s54B. For the reasons that I gave in AJP, the possible solution of positing an abstract or hypothetical case as a comparator with the instance case was also, in my respectful view, problematical. For this reason I suggested that it was easier to indicate why a matter was not in the middle of the range -- whether above or below -- than why it was. I note that in no case in which the Court of Criminal Appeal has been critical of a court of first instance for failing to give sufficient significance to the standard non-parole period has this Court attempted this task, despite the numerous opportunities presented for it to do so. The present case is no exception. In this regard, perhaps the jurisprudence concerning the interpretation of Division 1A of the Crimes (Sentencing Procedure) Act 1999 is not yet set in stone. 4 I also, with respect to Howie J, have some doubt that the standard non-parole period must have the consequence that in cases of the present kind the range of sentences will necessarily increase. It is reasonable, as I see it, to have regard to the standard non-parole period itself as informing the question whether a case falls within the middle of the range of objective seriousness. If this be right, then the anomaly to which Howie J has referred may be resolved. 5 In the present appeal I agree, with respect, that the learned sentencing judge did not give sufficient significance to the standard non-parole period as a signpost or reference point and that, had his Honour done so, the sentence must have been higher. Attention has, not surprisingly, focussed on the lack of reasons articulated by the learned sentencing judge describing the particular features of the case that placed it in the range that his Honour thought appropriate. Had this been done, the sense in which his Honour used the standard non-parole period as a reference point would have been made clear. However, I would respectfully disagree with Howie J's view that the learned trial judge was bound to indicate why his Honour failed to impose the standard non-parole period. First, of all, s54B did not oblige him to do so, there being a plea of guilty. Secondly, the application of the utilitarian discount and the other subjective features were reasons for departure. There is no doubt that his Honour was perfectly entitled not to impose the standard non-parole period. Indeed, to have imposed it would have been patently wrong. 6 In R v Way this Court said --

[14]

With respect, it may be that, in light of the point at which the comparison is to be made, the passage in R v Dang [2005] NSWCCA 430 at [22] needs to be approached with some caution. The existence of the standard non-parole period is an aid to the instinctive synthesis of all relevant factors and it is imperative, in my respectful view, keep this firmly in mind. 7 As I understand the reasoning of Howie J, his Honour is of the view that a proper appreciation of the objective circumstances shows that this case was somewhere near the middle of the range of objective seriousness and that reference to the standard non-parole period should have informed, but did not in a real sense do so, the assessment of the appropriate sentence. With respect, I agree with his Honour. I am concerned, however, by the reference of his Honour to his own "departure" from the standard non-parole period. I would prefer to approach the sentence by reference first to all the objective and subjective features and then to look to the standard non-parole period for a case in the middle of the range of seriousness, in the manner set out in the passage above quoted from Way. 8 At all events, I would conclude that the addiction and mental disorder of the respondent, his position on the middle rung and the extent of his dealing placed his offence at something below the middle of the range of objective seriousness, given the quantity of drugs he was charged with, the extent of his trading, and the subjective features comprising his plea, his remorse and good prospects of rehabilitation. Although, of course, the respondent cannot be punished for dealings with drugs other that that with the supply of which he was charged, the nature of that supply is demonstrated by the evidence to which Howie J has referred concerning the character of the respondent's drug business. Even so, my own judgment of the nature of the offences involving the supply of a commercial quantity of drugs places the scale of this enterprise somewhat below, though not by a large margin, the middle of the range, an assessment that takes into account that a ten year standard non-parole period applies to cases in that range. 9 My own measure of the seriousness of the offence echoes the view expressed by Howie J. I wish to emphasise, however, that I have come to the same result as his Honour by way of an instinctive synthesis of all the relevant features mentioned by his Honour (not in any way implying that Howie J has not done so but simply wishing to make my own position explicit), bearing in mind, by way of reference point, the standard non-parole period for a case in the middle of the range of objective seriousness. This is, perhaps, little more than saying that the sentence did not reflect the gravity of the offence, making every allowance for the significant subjective features to which Howie J has referred. 10 HOWIE J: The Crown has appealed in respect of sentences imposed upon the respondent on 23 June 2006 by Judge Bennett SC (the Judge). The respondent had pleaded guilty to two charges in the Local Court and was committed for sentence to the District Court where he adhered to his pleas. The first charge alleged a supply of not less than a commercial quantity of a methylamphetamine between 23 February 2005 and 29 April 2005. This was an offence contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 and for which relevantly the maximum penalty is imprisonment for 20 years. There is a standard non-parole period of 10 years applicable to such an offence pursuant to s 54B of the Crimes (Sentencing Procedure) Act 1999. The second offence alleged the supply of cannabis on 29 April 2005 contrary to s 25(1) of the Drugs Misuse and Trafficking Act 1985. The maximum penalty applicable to the offence is relevantly imprisonment for 15 years. 11 In respect of the first charge, and taking into account an offence of goods in custody on a Form 1, the respondent was sentenced to a non-parole period of three years from 29 April 2005 and to expire on 28 April 2008 with a balance of term of 12 months commencing on 29 April 2008. In respect of the offence of supplying cannabis the respondent was sentenced to a non-parole period of three years with a balance of term of 12 months to be served concurrently with the first sentence. The respondent, therefore, is eligible to be released to parole on 28 April 2008. 12 The appeal by the Director of Public Prosecutions was dated 4 August 2006.

[15]

The facts 13 The facts were placed before the Judge by an agreed statement and can be briefly summarised. The respondent was subject to an on-going investigation by police into the supply of methylamphetamine in the Manning area of the North Coast. There was initially one target of this operation, the respondent's father-in-law, Kevin White. He was a street supplier of the drug and between December 2004 and April 2005 undercover police operatives purchased methylamphetamine from him on ten occasions. During that operation the respondent was identified as being White's supplier. 14 In February 2005 police began lawfully intercepting White's mobile phone and recorded numerous calls between the respondent and White relating to the supply of methylamphetamine. The respondent supplied White with large quantities of the drug every two or more days in $100 deals pre-packaged by the respondent. There were also calls recorded that revealed that the respondent's wife would deliver the drugs to White at his home or at a shop that she operated from where he would obtain the drugs. She also picked up money from her father, being the proceeds of drug sales. 15 On 31 March 2005 police began lawfully intercepting the respondent's mobile telephone and recorded numerous calls and text messages between the respondent, White and a number of other drug suppliers in the area. 16 On 15 April 2005 police commenced lawfully video recording activity in the premises in Nabiac in which the respondent, his wife and children lived. On 21 April police recorded the respondent taking bags of methylamphetamine and cannabis from a backpack and then placing the bags in the kitchen cupboard. Later that evening the respondent supplied a female with $400 worth of methylamphetamine. A short time later the respondent is recorded sitting at the dining room table making up about 60 deals of the drug with his wife and three children in the general vicinity. The respondent's wife is seen checking and counting the deals. The respondent later admitted that these were supplied to White the next morning. The respondent was also seen to count about $10,000 in cash. 17 On 24 April 2005 police observed the respondent supply Richard Lee with 12.3 grams of methylamphetamine for which Lee paid him $2,600. This transaction was carried out in the presence of the respondent's wife. Lee was arrested a short time later with the drug. After learning of Lee's arrest they decided to take drugs and cash from their property at Nabiac to a unit they owned in Tuncurry. 18 On 29 April 2005 police executed a search warrant at the respondent's premises in Nabiac and found a total of 3.57 grams of methylamphetamine at that address. There was also found cannabis, cannabis seeds, electronic scales and resealable plastic bags. There was also $7,380 in cash found which included money used by the police operatives to purchase drugs from White. This money was the subject of the goods in custody charge on the Form 1 19 Police later searched the respondent's unit at Tuncurry where they located a total of 739.7 grams of methylamphetamine. During the search the respondent admitted that he been supplying drugs to truck drivers to sell for him. He stated that he received the drugs on credit and that one bag containing about 455 grams was worth $20,000 and he had paid $12,500 for the bag and owed the rest in credit. He said that he purchased a pound of the drug and mixed it with an additive to make two pounds. Electronic scales and resealable plastic bags were also found. 20 At the Tuncurry unit police also located four bags of cannabis amounting to 1,628 grams. The respondent told police that he had received the cannabis on credit to sell. 21 The applicant entered into an ERISP with police and admitted the following: he used methylamphetamine once or twice a week; he sometimes used a person named Brett Banbury to deliver drugs and money for which he gave him drugs and money in return; he had supplied drugs occasionally to five named persons.

[16]

The respondent's subjective circumstances 22 The respondent was aged 43 years at the date of sentence. He had a criminal record for driving offences including offences of driving while disqualified and two PCA offences but nothing since 1997. The respondent was married with three children aged between 5 and 18 years. His wife was charged with knowingly take part in the supply of a commercial quantity of methylamphetamine arising from her involvement in the respondent's activities and was sentenced to imprisonment by the Judge. The respondent and his wife had been together for 20 years and corresponded while in custody. 23 There was in evidence a current report from a psychiatrist, past psychiatric and medical reports and a letter written by the respondent. That material disclosed that at the time of the offending the respondent had been abusing amphetamine which he had taken to alleviate depression from which he suffered as a result of a number of life crises. He said that he had been subject to sexual abuse as a child. A business as a butcher had failed because of the dishonesty of a trusted financial adviser. He had suffered a heart attack at the age of 38 and this led him to believe that he would die early, as had his father and brother. He had inadvertently caused the death of a young child in a motor vehicle accident the result of which was that the child's mother committed suicide. 24 The respondent used to work for a period as a truck driver and used methylamphetamine to stay awake but he also found that it alleviated his feelings of depression. He was eventually using up to 10 grams per week. The respondent said that, as a result of his contacts in the trucking industry, he had been able to purchase large amounts of amphetamine and cannabis. He owed his suppliers money and his motivation for selling was to "square with his dealers". He explained that he had large amounts of the drug in his possession because some was for his own use, some was for a friend and the balance was to be sold for a profit. The psychiatrist diagnosed the respondent as suffering from a major depressive illness. He had been treated by a psychiatrist in 1997 for post traumatic stress disorder but did not persist with the treatment because he found it unsettling. The psychiatrist believed that the respondent would need long term treatment with anti-depressant medication and counselling. 25 There were medical reports relating to previous treatment that the respondent received in relation to a coronary by-pass in June 1992. 26 There were also in evidence certificates in relation to the respondent having completed courses in anger management and alcohol and drug prevention. The respondent in his letter indicated that since being in custody his brother had died. He expressed remorse for his offending and an acceptance that he would be required to spend a period in custody. 27 Evidence was given by a long-standing friend of the respondent who spoke well of him notwithstanding his criminal conduct. The respondent's sister gave evidence as to the impact of imprisonment of their parents upon the children. She stated that the respondent was remorseful and distressed by his conduct and its effect on his children.

[26]

Following the decision of this Court in Wong it cannot now be doubted that sentencing courts may not add and subtract item by item from some apparently subliminally derived figure, passages of time in order to fix the time which an offender must serve in prison. That is not to say that in a simple case, in which, for example, the circumstances of the crime have to be weighed against one or a small number of other important matters, indulgence in arithmetical deduction by the sentencing judges should be absolutely forbidden. An invitation to a sentencing judge to engage in a process of "instinctive synthesis", as useful as shorthand terminology may on occasions be, is not desirable if no more is said or understood about what that means. The expression "instinctive synthesis" may then be understood to suggest an arcane process into the mysteries of which only judges can be initiated. The law strongly favours transparency. Accessible reasoning is necessary in the interests of victims, of the parties, appeal courts, and the public. There may be occasions when some indulgence in an arithmetical process will better serve these ends. This case was not however one of them because of the number and complexity of the considerations which had to be weighed by the trial judge. 42 Further, if the Judge meant to indicate that an appropriate sentence before considering matters of mitigation was "six to seven years" then he was also in my view very much in error. This is where the Judge seems to have had no regard to the standard non-parole period. Presumably the Judge was referring to the full term when giving that estimation, yet the sentences being suggested were within a range of 60 percent to 70 per cent of the standard non-parole period for an unmitigated case of what the judge described as a "significant commercial enterprise". Unmitigated by a plea, or any of the subjective matters relevant to the respondent, the appropriate non-parole period should have been close to the standard non-parole period of ten years. 43 This was a commercial organisation in which the respondent was the principal. It may not have been an organisation of the most complex kind but the respondent used other persons, including White and Lee to supply on his behalf. The respondent might not have been at the top of the organisation but he was at a level higher than the street supplier: he was buying high quality drug, breaking it down and packaging it into deals which he then supplied to the street dealers. He admitted his involvement in the supply of drugs was partly for profit even if some of his motivation was to ensure a supply for his personal use. It was an on-going enterprise over at least a period of 2 months and came to an end because of the arrest of the respondent and the others. 44 The respondent was found to have in his possession at arrest over 740 grams of methylamphetamine. This is three times the commercial quantity: a large commercial quantity is 1 kilogram. But this was not the extent of the respondent's involvement in the supply of that drug as is clear from the agreed facts and the respondent's admissions. That figure represents merely the drug that he had on hand at that time, a significant portion of which would have been supplied into the community. The respondent supplied White with the drug about every two days. He had supplied White with 60 deals on 21 April 2005. He was also supplying truck drivers, five persons whom he named to police and Lee. 45 The Judge failed anywhere in his sentencing remarks to indicate the level of seriousness of the offending except in the most general terms. There is no indication of whether he viewed it as in the mid range of seriousness or above or below that point. This is an important step in determining the appropriate sentence notwithstanding that the standard non-parole period might be reduced by reason of a plea of guilty and other matters of mitigation. The Judge did not give any reason for his failure to impose a standard non-parole period other than to indicate that, because the respondent had pleaded guilty, the standard non-parole period was "no more than a reference point for the assessment of the appropriate sentence". It has been made clear more than once that the fact that the offender has pleaded guilty does not relieve the sentencing judge from indicating where in the range of offending the particular offence falls and the reasons for coming to that conclusion. The Judge in the present case made no attempt to comply with s 54B(4). 46 In R v Dang [2005] NSWCCA 430, with the concurrence of Studdert and Whealey JJ, I stated:

[28]

Wood CJ at CL, with whom the other members of the Court agreed, held: [49] I do not consider that this was a sufficient compliance with the requirements of s 54B(4). A mere statement of the conclusion, accompanied by a confirmation that the submissions of counsel, and the circumstances of the case, have been taken into account, does not constitute an identification of the reasons which are expected in a case which falls within the umbrella of the Division. As is also the case in relation to s 21A of the Act, more is expected than mere lip service to the legislation. What is required is a clear identification of the relevant factors, the weight given to them, and their role in the structuring of the sentencing order: see R v Walker [2005] NSWCCA 109. [50] The present case, it may be accepted, was one involving pleas of guilty, so that the role of the standard non-parole period was as a reference or check point: R v Way [2004] 60 NSWLR 168. That circumstance does not however lessen the obligation to give adequate reasons in relation to this aspect of sentencing. [51] The absence of sufficient reasons does not necessarily guarantee intervention by this Court. Whether it should do so, in this case, depends upon the remaining grounds . [22] Whether a sentence falls within the mid-range of seriousness of an offence of a particular kind is a matter of judgment on which minds might reasonably differ. To succeed on an appeal, the appellant or the Crown would have to show that it was not open for the sentencing judge to make the finding that he or she did in the particular case. Where, as here, the sentencing judge does not indicate the factors taken into account in making the determination of where the offence stands in relation to an offence falling within the mid range of seriousness this Court might be more willing to find error if it disagrees with the finding made by the sentencing judge. In the present case the Judge did not even indicate where in the range of offences the present criminal activity fell. 47 As has been noted, the Judge referred to this Court's judgment in Shi but, with respect, he could have only paid lip-service to it, because a proper appreciation of the case would have revealed to him that his approach was erroneous and it also must have caused him to reconsider his appraisal of the appropriate sentence before discount for the matters of mitigation. In Shi a Crown appeal resulted in a sentence of 6 years with a non-parole period of 3 years for a much less serious offence than that which was before the Judge and in respect of an offender with far greater subjective circumstances.

[35]

[24] Clearly there will be a range of factors that are relevant to a determination of whether an offence of supplying a prohibited drug falls within the mid-range of seriousness. The amount and purity of the drug will be significant matters but they are not decisive: Way at [159]. The number of occasions on which the drug was supplied, the motivation for the supply, the planning involved and the role of the offender in the supply are obviously relevant matters. In R v Shi [2004] NSWCCA 135 at [35], [37-38] Wood CJ at CL stated: [35] As was decided in Regina v Way the determination of the objective seriousness of the offence before the Court is not confined to a consideration of the circumstances which are specifically listed in s 21A(2) and (3). The motive of an offender, or any condition which affects the offender's state of mind which impinges upon the elements comprised within the mens rea is of relevance, although less so in the case of any condition which is self induced through abuse of alcohol or drugs. [37] I am satisfied, applying the approach that was found to be appropriate in Regina v Way that error was shown. The offence involved in this case was a serious offence, having regard to the weight and the purity of the drugs involved, and also to the fact that the respondent knowingly, and with his eyes open, lent his aid to those who directed the supply network, in order to feed his habit, and in order to clear a debt. [38] Clearly the case fell well below the middle range of seriousness, since the respondent was not a principal, and was not shown to have been engaged in the work of a courier on more than one occasion. There is also the fact that his supplier had taken advantage of him. 51 In my opinion the offence in the first count would have been one at the mid-range of offending but for the applicant's mentally disordered state that resulted in his abuse of drugs. A consideration of that matter must take into account that the applicant had been offered psychiatric assistance earlier but had declined it and ceased using the medication prescribed. Rather he continued to use illegal drugs in order to alleviate his condition. Even accepting that the respondent's choice as to how to deal with his depression might itself have been affected by his mental disorder, little moderation should be given to the need for the sentence to reflect general deterrence given the nature and scope of the offending. Nor could his mental condition reduce his criminal responsibility for his conduct to the degree that the sentence imposed could be considered in anyway appropriate to reflect his culpability. This was an on-going criminal enterprise for profit involving the substantial distribution of drugs in the community by the use of others. 52 The standard non-parole period in respect of this type of offence must have the consequence of increasing the range of sentences form that which existed before the provision was introduced. This is because the standard non-parole period of 10 years is higher than might have been expected for offences falling in the category of mid-range of seriousness as against a maximum penalty of imprisonment for 20 years. A non-parole period of 10 years would result in an overall term of about 13½ years which is, of course, more than half of the maximum penalty. This is one of the anomalies of the provision and was commented upon in R v AJP (2004) 150 A Crim R 575. 53 In the present case it is clear to me that the Judge's sentencing discretion has fundamentally miscarried in the way he approached the determination of the appropriate sentence on the first count. Error having been shown, this Court must consider whether it should interfere. In my view it should exercise its discretion in favour of the Crown as the sentence imposed is so inadequate as to be unreasonable. The Court should temper its response, as is normally done, having regard to the principle of double jeopardy. I would re-sentence the applicant on the basis of a discount for the plea of guilty of about 25 per cent. I take into account the other findings of the sentencing judge as to the mitigating factors including the respondent's mental condition and have adjusted the sentence to diminish to a slight degree the need for general deterrence. The sentence that I propose is the very lowest that I believe could have been imposed upon the respondent and a much heavier sentence would have been well within the Judge's sentencing discretion. It has been significantly reduced to take into account the psychiatric evidence. 54 I would depart from the standard non-parole period for the following reasons: despite the commercial and organised nature of the supply which was an ongoing criminal activity, the respondent was addicted to drugs by reason of a mental disorder and was supplying in part to satisfy that addiction; he was on the middle rung of the organisation involved in supplying the drugs; there was a plea of guilty at the earliest opportunity; the respondent was remorseful and had good prospects of rehabilitation. 55 I would find special circumstances by reason of the fact that the applicant will require ongoing treatment and counselling for his depression and drug addiction on release from custody and accordingly reduce the non-parole period. The criminality in the first count is so grave that the totality principle would be infringed by making the sentence for the second count cumulative to any extent upon the sentence for the first count.

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