REGINA v. BUTCHER [2001] NSWCCA 188

1 GREG JAMES, J: The applicant, Brett Butcher, seeks leave to appeal against the severity of sentences imposed upon him by Judge Viney, in the District Court of New South Wales at Port Macquarie. 2 The applicant had pleaded guilty to three charges under the Drugs Misuse & Trafficking Act 1985. Those charges comprised: one charge of continual supply of a prohibited drug (methylamphetamine), an offence under s.25A(1) of that Act, punishable by a maximum custodial penalty of 20 years imprisonment; two charges of supplying a prohibited drug (methylamphetamine), an offence under s.25(1) of that Act, punishable by a maximum custodial penalty of 15 years imprisonment; and one charge of supplying a commercial quantity of a prohibited drug (methylamphetamine), an offence under s.25(2) of the Drugs Misuse & Trafficking Act 1985, punishable by a maximum custodial penalty of 20 years. The charge of continual supply involved supplying the prohibited drug on three or more separate occasions within a period of 30 consecutive days. 3 To these counts he had pleaded guilty. The learned trial judge imposed sentences as follows:- Count 1: Five years imprisonment. Non-parole period of two years to commence 21 May 1999. Count 2: Fixed term of three years imprisonment to commence 21 May 1999. Count 3: Fixed term of three years imprisonment to commence 21 May 1999. Count 4: Seven years imprisonment. Non-parole period of four years to commence 21 May 1999." 4 The sentences were to date from the applicant's arrest. 5 The applicant had limited prior offences, including for matters of driving with a prescribed concentration of alcohol in 1981 and 1988 respectively and, in addition, matters of offensive language in 1990 and malicious damage to property in 1991. 6 The applicant successfully sought that his Honour take into account on a Form 1, two charges of possession of a quantity of methylamphetamine of some 28 grams and possession of one gram of cannabis. These drugs were located at the address at which he was arrested. 7 A summary of the facts was presented to his Honour. Those facts were not in contest. They were to the effect that an undercover police operative had been employed to make contact with the applicant and to purchase from him sample amounts of amphetamine to gain credibility to enable him to purchase larger amounts from the applicant. 8 On the occasions to which the offences charged referred, the undercover operative, known as Sam, met with the applicant in Port Macquarie and supplies of amphetamine took place in escalating quantities in exchange for the payment of increasing sums of money. The conversations were electronically recorded by listening device. 9 On the first of the occasions, the applicant stated he could supply the undercover operative with amphetamine on a regular basis. 10 Following the three supplies which were the foundation for the first count in the indictment, there was continued contact and a supply, on 30 March of 154 grams of amphetamine for $5,500; on 6 May, a supply of 56 grams for $2,200, and on that day, the applicant informed the undercover operative that he was willing to supply a pound for the sum of $16,000. After negotiation, it was agreed that the pound be supplied for a purchase price of $13,000, but the undercover operative stated that the price was too expensive based on the quality of the product previously supplied. He offered to take two ounces and depending on the quality, to make further contact about purchasing the pound. 11 On 21 May there was a further meeting with discussions about the purchase of the pound of amphetamines. Subsequently, the applicant rang the operative and arranged for a meeting at Town Beach. The applicant informed the undercover operative he was in possession of eight ounces which was available at a purchase price of $7,000. The transaction was completed and in due course that amphetamine after seizure was weighed at 263.2 grams. 12 The applicant was followed from that transaction to his home address where he was arrested and the other amphetamines and the cannabis, the subject of the matters on the Form 1, located. 13 He indicated to police that the money he had received was secreted under the lounge and an inspection of that lounge located $6,700 in cash and some $290 inside his wallet. 14 He was interviewed at the scene and then at the Port Macquarie Police Station where intercepted telephone conversations between himself and a man called Stewart were played to him. He identified his own voice but otherwise elected to exercise his right to silence. 15 Having recounted the facts I have summarised, his Honour observed that the offences were most serious. 16 He then turned to the applicant's personal circumstances and noted that the prior antecedents of the applicant indicated he had nothing in his record associated with supply of drugs. 17 The applicant was 37 years of age. He had worked as a miner and his Honour accepted he was a hardworking man. He has a 14 year old son by one relationship and a nine year old son by another. 18 After having worked in various places, he had come to Port Macquarie where a domestic relationship in which he was then involved had developed severe problems following his partner's miscarriages. His Honour referred to the applicant's evidence before him that it was in these troubled times that he was led to start experimenting with amphetamines, he having given up alcohol in deference to problems his partner had had in relationships with men who had had a problem with alcohol. 19 He had obtained intermittent work but his evidence was that at this point his life began to fall apart. It was whilst "under the fog of his involvement with amphetamines that he became involved in these offences", he said. 20 His Honour noted that the applicant said that he did not really make any money out of these offences, "basically all he got out of it was some amphetamines for his own use". His Honour referred to the applicant's assertion that all the money was there when he was arrested and that all he had anticipated getting was some $300. 21 His Honour referred to the applicant's experiences in custody as given by him in evidence and his determination to rehabilitate himself by drug and alcohol counselling in due course. 22 His Honour accepted that the applicant asserted that what he had done was wrong and that it was only after his arrest and having got out of his drug involvement that he realised just how serious his conduct had been. In referring to the submissions of counsel for the applicant, his Honour referred to the evidence of the applicant's contrition. 23 The listening device tapes were before his Honour. The applicant's counsel submitted that on a review of those tapes, his Honour would draw the conclusion that the applicant was not a terribly experienced drug dealer and that the undercover operative, Sam, seemed to be making all the arrangements. The applicant's counsel invited his Honour to conclude that the undercover operative "heavied" him, "to try and talk up the quantity all the time". Illustrations were given of portions of the tapes which were said to support that submission. It was put to his Honour that he should conclude that the applicant was not a principal in the exercise but was merely seeking to continue to get the amphetamine to support his own habit. 24 Reliance was placed on the applicant's plea for a submission there should be a substantial discount to the sentence, although it was submitted by the Crown that the plea was entered on the day of trial and that there was a strong Crown case. His Honour did accept that it was difficult for counsel on circuit to be able to advise their clients adequately in advance and that it was asserted that the trial was to be a trial only on the basis of a legal question that might otherwise have been argued. 25 His Honour accepted from the Crown that it was an overwhelming case, but does seem to have had regard to what was put by the applicant's counsel in favour of the applicant being given, to some extent, the benefit of having entered a plea of guilty at the first reasonable opportunity, obviating a lengthy trial. Such a conclusion might be thought to be generous but it was open to his Honour who also accepted the submission of the applicant's counsel that the year spent on remand should be regarded as having been a difficult time in the sense that it would be more onerous to the prisoner than would serving a sentence already imposed. He accepted the applicant was contrite and that there were good prospects for his rehabilitation. 26 His Honour recognised both specific and general deterrence needed to play a part in the sentence. He gave specific attention to the serious social problem constituted by the proliferation of drugs in the community and the pronouncements of the courts in respect of that matter. He had regard to the difficulties of detection and the cost to the community of seeking to detect those engaged in this pernicious trade. 27 His Honour held that these were offences over a period of ever increasing severity, albeit, that the offences were committed in what was virtually one enterprise. His Honour concluded that in those circumstances he should exercise his discretion not to cumulate sentence. His Honour had regard in these matters to the requirements of Pearce v. The Queen (1988) 194 CLR 610. 28 His Honour noted the applicant's counsel's submission that there were special circumstances and, in particular, the submission that the offences were brought about by the applicant seeking to obtain drugs in support of his own habit and he accepted that the special circumstances to which she referred, should include both that matter and that the applicant would need some significant amount of supervision to readjust after he emerges from what must be a lengthy sentence. 29 He advised counsel of the sentences he intended to pass. The learned Crown Prosecutor saw no problem with the structure of those sentences and counsel for the applicant said that there was nothing she wished to say. 30 Counsel for the applicant had made two crucial submissions. First, that the course on which the applicant had embarked was "not simply a commercial enterprise to make money and that there was nothing in the evidence that he was making a lot of money out of it in any event". That is one of the matters his Honour appears to have accepted, at least as relevant to special circumstances. 31 Second, the contention was made by the applicant's counsel that the undercover operative had been "heavying" the applicant, who was "talked up" into greater criminality. 32 The submission that the applicant was "heavied" was opposed by the Crown Prosecutor who drew attention to aspects of the transcript which, it was submitted, showed that at all times the applicant was willing to continue the relationship and showed an ability to obtain substantial quantities of amphetamines at little notice. 33 The Crown Prosecutor drew attention to the recorded conversations and the telephone calls made by the applicant to the operative wanting to promote more sales between the first and second transactions. 34 His Honour dealt with those two crucial submissions only in the context of considering the first, when dealing with special circumstances, and the second, when considering concurrency, on the basis that there was one continuing enterprise escalating in seriousness. His Honour expressly found the escalating criminality but, except so far as the submission overlaps that which he found supported the finding of special circumstances, does not appear to have evaluated the roles of the applicant and the operative. It was accepted by both counsel that his Honour had failed to make specific findings defining those roles, count by count, notwithstanding that he had found they were offences over a period of ever increasing severity. 35 On the hearing of the application for leave to appeal, written submissions were filed. It was contended on behalf of the applicant, that his Honour fell into error in two respects. Firstly, he failed to give the plea of guilty due and proper weight, and, secondly, he placed too much emphasis on the applicant's role in the enterprise and the objective gravity of that role without making proper allowance for the role of the undercover operative. 36 That second matter raised the correctness of the two crucial submissions I have referred to as made before the trial judge and the lack of any finding for any wider purpose than I have referred to. 37 The plea of guilty and the fact of contrition were expressly referred to by his Honour. He plainly intended to give some substantial discount for those matters. It was contended that his Honour must have erred in failing to do so when one had regard to the Judicial Commission statistics for offences of this type which, it was submitted, showed that seven years was at the top of or outside the range of sentences previously imposed. It was submitted that if one had regard for a discount of 10% to 25%, as might have been appropriate for the plea of guilty (see The Queen v. Thomson (2000) 49 NSWLR 383) the sentence, as it was eventually passed, was well in excess of other sentences shown in the statistics for offences of the same kind, notwithstanding the comparatively young age of the applicant, the lack of a drug criminal record, his addiction to the drug, his contrition and his personal circumstances and commitment to rehabilitation. 38 It was contended again before us that the applicant's role must have been over-estimated by his Honour. Further, it was submitted that on a reading of the transcript of the listening device recorded conversations, the applicant was revealed to be a naïve dealer who was not making cash out of the exercise except such as might supplement or replace the dole, that he was selling mainly or only to Sam and taking the risk for what was comparatively nothing, that the benefit involved to him were $200 to $300. 39 It was said that the severity of the sentence and the lack of an express finding showed his Honour failed to have regard to the role of the undercover operative in seeking to persuade or induce the applicant to commit himself into increasing criminality he would not otherwise have embarked on. This is a relevant matter: see Regina v. Taouk (1992) 65 A. Crim. R. 387 at 396, 403; Regina v. Anderson (1987) 32 A. Crim. R. 146. The severity and structure of the sentences does indicate that his Honour had allowed for substantial culpability in the applicant's continued escalating crimes although referring to that matter in the limited way I have referred to. His Honour has certainly not found in favour of any mitigation for over-zealous inducement by the operative. 40 The principle to be applied in such matters is clear. The culpability of the offender may be diminished if the actions of the police or the authorities operate to induce the offender to commit an offence which otherwise might not have been committed, but it remains the fundamental task of the court to evaluate the criminality involved: Taouk (supra); Regina v. Leung (CCA, unreported 21 July 1994). It may be accepted that it may be a mitigating factor for an offender to be led by the police or by authorities into committing a more serious offence than otherwise might have been committed: see Regina v. Rahme (1991) 53 A. Crim. R. 8 but it remains necessary to assess the degree of criminality by defining the applicant's role: Olbrich (1999) 199 CLR 270. That such a course of conduct by the police is to be treated as serious is clear from s.7 of the Law Enforcement (Controlled Operations) Act 1997, s.7(1)(a), which provides that:- "An authority to conduct a controlled operation must not be granted in relation to a proposed operation that involves any participant in the operation:- (a) inducing or encouraging another person to engage in criminal activity or corrupt conduct of a kind that the other person could not reasonably be expected to engage in unless so induced or encouraged." 41 In this provision, the legislature has made it clear that the protection of the law will not be extended to those who so act. The case law makes clear that those whose culpability is increased by such conduct will not receive sentences which ignore that conduct. 42 A useful illustration of the application of these principles to a similar situation occurred in Regina v. Roach (CCA, unreported 28 April 1997), where Hidden, J. embarked on an analysis of the evidence in that case to ascertain whether the applicant had been "prevailed upon" to "undertake the supply of the amphetamines". He concluded that the applicant was initially unwilling to become involved, had no prior drug offences, the undercover operative initiated the dealing on each occasion, and talked up the applicant from small amounts to more substantial quantities which the applicant had greater and greater difficulty supplying. He held these were circumstances that created a probability that the offences "might not have been committed had the police not in some way facilitated" them: Taouk (supra) at 396-403. 43 His Honour also noted, in respect of the statistics for supplying amphetamine, that sentences of four years or more are at the upper end of the range. His Honour held in that case that the simple findings below left the matter of the undercover operative's involvement and the applicant's role properly to be considered and that more was encompassed in that consideration than concluding that the applicant might have been prevailed upon to become involved in the dealings. 44 Simpson, J. agreed with his Honour's views and the sentence that he proposed, which encompassed a considerable reduction, in respect of the four charges of supplying amphetamine, from the sentence of four years and one month comprising a minimum term of three years and one month and the balance by way of additional term. 45 Here, as in Roach (supra), it was contended that it was the operative who dictated when the various sales would occur and thus made the applicant liable to the offence of continual supply since it was the operative who had the control over the number of occasions on which supply would occur and thus was able to bring the three occasions within the 30 day period necessary for the offence to be committed. Further, that it was the operative who attempted to have the applicant supply the much larger amount involved in the last count and the applicant's inability to do so clearly showed his subordinate role. 46 It was asserted by the applicant's counsel that the applicant's objective criminality had to be assessed by considering the influence by operatives of the State as induced the applicant to commit crimes he would not otherwise have been minded to commit. It was submitted the applicant was entrapped and the trial judge failed to mitigate sentence in that regard. 47 Lastly, it was submitted that the sentences imposed were, in all the circumstances, excessive. 48 In response, the Crown pointed out that the use of sentencing statistics must always be approached with caution and referred to The Queen v. Prior (CCA, unreported 7 October 1997). Further, that the statistics to which reference had been made in this case indicated that in respect of one count of supply the relevant prohibited drug in a commercial quantity, six percent of offenders received a sentence of seven years or higher. It was acknowledged that the applicant was entitled to a reduction for the guilty plea, although the Crown submitted the applicant was only entitled to that reduction because the plea evidenced contrition and had utilitarian value. It was contended that his Honour had regard to and gave relevant weight to all matters and that the applicant's addiction was not a factor warranting a reduction. It was contended that the sentence was entirely appropriate. 49 Further, in relation to the applicant's role in the enterprise and that of the undercover operative, it was submitted that his Honour had given due regard, at least when considering special circumstances, to those matters and that his Honour had properly evaluated the role of the applicant and the level of encouragement by the police officer even if he had not made, expressly, any relevant finding. 50 An examination of his Honour's remarks on sentence does not disclose that his Honour has made affirmative or definitive findings of the applicant's role in respect of each count otherwise than in the limited sense to which I have referred. This was necessary: see Olbrich (supra). Both counsel's concession of the lack of appropriate specific and express findings is correct. It is not possible to determine what weight his Honour may have given to this relevant matter or whether he did weigh it at all in the absence of such a finding. It was therefore necessary for us to consider the evidence to ascertain what findings might be made and to ascertain whether the sentence was in error. 51 Both parties asked us to do so and not to remit the matter for further hearing in the District Court. That would involve delay, stress on the applicant and significant extra expense. In consequence, the parties were invited to put before the court by way of further submission any particular references in the large volume of transcripts of intercepted conversations to which they might wish to refer. In due course, further written submissions were provided on that question, and on the issue of whether there was more than utilitarian value in the plea. 52 As to that latter, although I note the submissions, I am of the view that his Honour did have regard to matters to which the applicant refers and did take into account properly the plea made as and when it was. 53 As to the question of the applicant's role, I have referred to the substantial further references which were provided both by the applicant's counsel and by the learned Crown Prosecutor and to the matters expressly referred to in the argument on the plea in an attempt to decide this issue to ascertain whether the sentence for lack of appropriate findings on this question was in error and, if so, what findings should be made on re-sentencing. 54 On the applicant's behalf, it is contended that the applicant was a naïve, small-time dealer lured and persuaded by the undercover operative into increasing criminality into which he would not have fallen without that persuasion. It is not disputed that he engaged with that operative in increasingly more serious drug supplies. But it is asserted:- "However, it defies commonsense to say that the escalation was at the applicant's bidding." 55 It is argued that the police were attempting to get at the applicant's principals and hence he should not pay the price in his sentence of their extended investigation which had the consequences of luring him into greater criminality. It was asserted that the evidence does not support that the applicant was a regular supplier of drugs but was a person who, having been targeted by the operative, became increasingly enmeshed in supply to that operative and, as a result of the operative's persuasion, supplying ever increasing amounts. 56 That seems to be a submission, that the police over-zealously exploited the applicant's willingness to commit the crime and his willingness to commit ever more serious crimes. 57 In support, the applicant's additional submissions referred to some 21 specific references in the transcript and concluded:- "What is clear, however, (is) this relationship shows that Butcher was new to the game not making profit." 58 It was said that it was the undercover operative who controlled the relationship, who was interested in the bigger and bigger amounts, but the applicant was a mere intermediary on behalf of principals who controlled his access to the drug. This was supported by the fact that from time to time he could not meet the operative's demands either for more frequent supplies or more substantial supplies. 59 In reply, the Crown submitted that the trial judge did not take the view that the applicant was a naïve, inexperienced and weak person substantially manipulated into criminality by Sam and that this court should not take that view. The Crown further submitted that the applicant was actively seeking to promote sales of the drugs to the undercover operative and that it was the applicant more so than that operative who was encouraging the escalation of the criminal activity, referring to numerous passages in the tapes. 60 As I have noted, the decision in Olbrich (supra) requires an assessment of the applicant's role in the matters charged and his degree of criminality. That assessment should be made in accordance with those principles as to role of the applicant and the authorities to which I have referred. Should the applicant have escalated his criminality by a readiness to commit increasingly culpable crimes, such would be a matter of aggravation. If he is induced to commit crimes he otherwise probably would not have committed but for the persuasion of the authorities, such would be a matter of mitigation. When considering what may be aggravating and mitigating features, it is necessary to have regard to the principle that mitigating features are to be proved by the applicant on the balance of probabilities, aggravating features by the Crown beyond reasonable doubt. 61 In attempting to perform this exercise with the materials that have been supplied and having regard to those portions of the materials to which reference has been made, I have become convinced of the difficulty of seeking to reach, on the respective onuses, a conclusion, either that the conversations showed significant matter of mitigation or, more importantly, that the conversations showed any such matter of aggravation as the Crown contended should be considered as established. I consider that his Honour must have found some such matter in finding the circumstances were such as to have merited the sentence which his Honour did pass, having regard to the matters of contrition, plea of guilty, rehabilitation and limited prior record to which his Honour referred. Such a view is supported, notwithstanding the absence of an express finding, particularly because his Honour did, to an extent, accept the two crucial submissions. The sentence appears most severe, even taking into account the multiplicity of offences but having regard to the sentencing statistics and the other relevant matters. It would seem his Honour must have allowed the escalating seriousness of the offences to weigh heavily without having adverted to what was, at least the encouragement, if not incitement, of the undercover officer. 62 However, I conclude from the examination of all the materials that, although the applicant, from time to time, seemed unable to comply with the requests from the undercover operative immediately, I should not conclude the applicant was at any point unwilling to seek to make the supplies the undercover operative held himself out as wanting to receive or was overborne by the operative. 63 I do conclude, however, as the trial judge found, that the offences were brought about by the applicant seeking to obtain drugs in support of his own habit and not simply in a commercial enterprise to make money. There was, in any event, nothing in the evidence that he was making a lot of money out of it. 64 As to the asserted role of the operative, I conclude the applicant was deliberately tempted to deal and to escalate his dealings. But that, in my view, is a different thing to those considerations which would significantly mitigate his culpability, having regard to the authorities to which I have referred. I conclude that the role of the operative was such that no substantial circumstance of aggravation such as would require a more severe sentence than that appropriate to the continued enterprise to which his Honour expressly referred can be found. 65 Having regard to those findings, the sentence passed by his Honour exceeded that which was appropriate to the criminality divulged by the applicant's activities in this extended enterprise and reflecting the other considerations I have noted. Hence it falls to this court to re-sentence the applicant. On a re-sentence it will be necessary to have regard to the matters referred to in the findings which his Honour made on the limited question of special circumstances and to consider such matters in relation to both the head sentence and the non-parole period. 66 I would accept that there are special circumstances to be found in the necessity for a significant period of supervision to readjust after what must be a lengthy sentence, the applicant's willingness to combat his drug addiction; this being the first occasion on which the applicant has been sentenced to imprisonment; that he has spent a significant portion of the non-parole period of the sentence on remand or awaiting appeal; and that he is a person with strong prospects for rehabilitation. 67 In my view the appropriate course to take is to grant leave to appeal and allow the appeal. I propose that we should vary the sentences on counts one and four to provide for a sentence of four years imprisonment on count one to commence 21 May 1999; for fixed terms of three years imprisonment to remain on counts two and three; on count four, a sentence of five years imprisonment and to impose a non-parole period of three years to date from 21 May 1999. 68 I would deem it inappropriate to impose a non-parole period in respect of the sentence on count one in consequence of the non-parole period being imposed on the sentence imposed on count four. All sentences should date from 21 May 1999 and be served concurrently. 69 I propose the following orders:-

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