REGINA v. CROWDEY [1999] NSWCCA 24

GREG JAMES, J: 1 Appeal is brought pursuant to s.5D of the Criminal Appeal Act 1912 by the Commonwealth Director of Public Prosecutions in respect of the sentence passed on the respondent in the District Court of New South Wales by his Honour Judge Solomon, DCJ, of two and a half years imprisonment with a non-parole period of one year and six months, asserting it is manifestly inadequate. 2 The respondent had pleaded guilty before his Honour, adhering to the plea he entered before the magistrate, to one charge of being knowingly concerned in the importation of a quantity of cocaine not less than the traffickable quantity, the maximum penalty for which was a fine not exceeding $100,000 or imprisonment for a period not exceeding 25 years, or both. 3 The traffickable quantity for cocaine is two grams. 4 After a controlled delivery to the respondent's premises, the Australian Federal Police seized cocaine totalling some 37.8 grams pure with a value noted in the papers as approximately $21,600. On arrest, the respondent was apparently cooperative, participating in an interview with the police and confirming that he had played a principal role in Australia distributing to an already established small network of user customers quantities of cocaine imported by mail from his previous partner from the United States, remitting to that partner sums in the vicinity of $85,000 to $100,000. He had thus admitted in addition to the offence charged participation in trafficking and disposing of the proceeds. The duration of his activities was of the order of 15 months and to some degree he profited personally. 5 By his own admission the respondent initially told lies to the police in relation to his own involvement and the role of his former partner. However, he also revealed to the police criminality that would not otherwise have been exposed. He further assisted them and offered further assistance. The evidence was, however, that that assistance was of little actual value in the circumstances to further police investigations. Nonetheless, his Honour had regard to it, as he was required to under s.16A(2)(a) of the Crimes Act 1914 (Commonwealth), coupled with the plea and the revealing of the truth eventually, to support cooperation and contrition to which his Honour was required to have regard under s.16A(2). It appears that the respondent's lies were accepted by his Honour as told under a degree of fear of the former partner. 6 Indeed, a highly important consideration before his Honour was an inquiry during the sentence proceedings into the influence of the former partner upon the respondent and his susceptibility to that influence. Although in that enquiry and in his Honour's reasons the concept of a "defence of duress" was discussed, his Honour accepted, the Crown expressly not disputing it, that medical evidence established in the respondent personality disorders predisposing him to be less likely to resist the influence of others and supporting the conclusion, which his Honour accepted, that the respondent was under the malign influence of the partner whose idea it was to commence the importation and who had set up the operation. Expressly his Honour held:- "I find that he has suffered from psychological and depressive illnesses during his relationship with Tony Garrido. In addition to that, during his family life he has suffered from personality disorder which is, indeed, a serious psychiatric condition and that any threat by Garrido upon him, having regard to those conditions, would have greater force than had it been given to the ordinary everyday man. I am satisfied that his will was overborne and that his reasoning was affected by Garrido's threats, not only the threats to his mother but the threat of the breakdown of the relationship. If that is of any comfort, that is clear to me." 7 He thereafter held:- "I can make a finding and that finding would be that between July 1996 and the day of his arrest, which was 1997, the prisoner dealt in cocaine but that dealing in cocaine was approximately $100,000 worth of cocaine and he dealt with a small group of users. Those users were previous clients of the prisoner's co-offender, Mr Garrido. The prisoner did not seek clients outside Garrido's group and that the prisoner sent the bulk of the proceeds of the sale of the drug to Garrido and used some monies, probably in the order of up to 40 per cent of the sales for his own use. I come to a figure of 40% in the light of his answers that he kept 40%, the question in the record of interview, question 491 and the answer. That is the extent of his dealings. I will indicate the effect of his psychological and depressive illness, his psychiatric condition, they are the basis upon which I can sentence him: $10,000, profit of $40,000, period of dealing about 16 months, dealing with another person's network and dealing with another person's clients. I haven't dealt with any of the subjective matters other than medical condition. I have not dealt with his good record or the Cartwright situation. I haven't dealt with his good character and his community work. In the overall scheme of things this is an irrelevance." 8 Subsequently his Honour held that he was satisfied that the prisoner's role in relation to the importation of the cocaine was as follows:- "1. Between July 1996 and October 1997, the prisoner dealt with cocaine which had a value of approximately $100,000 Australian. 2. The prisoner dealt with a small group of users who were previously the clients of Garrido. 3. The prisoner did not seek clients outside Garrido's group of clients. 4. The prisoner sent the bulk of the proceeds of the sale of drugs to Garrido. 5. That the prisoner kept up to 40% of the proceeds of the sale for his own use. I am satisfied that the prisoner was the local distributor of the cocaine sent to Australia through Garrido and that the prisoner delivered approximately $85,000 by way of telegraphic transfers to Garrido, from the sale of the drugs. Objectively the offence is a serious offence. The seriousness of the offence is reflected in the maximum sentence set out in the Customs Act 1901. It is the role of the courts to protect this community against the devastation which narcotic drugs cause in the community. Having said that, I make the comment that this is a most unusual case. It is an unusual case because I find that the prisoner, prior to the commission of these offences, suffered from two distinct and serious psychiatric conditions. The prisoner was depressed and the prisoner suffered a personality disorder. In that regard I refer to the diagnosis made by a psychiatrist, Dr John Albert Roberts, and by a psychologist, Anna Robilliard. I note that the prisoner in 1991 met Garrido. Garrido was a forceful personality and was able to take advantage of the prisoner in the light of a number of factors, the major factor being the prisoner's personality disorder. I am satisfied that the prisoner was not aware, when he first met Garrido of Garrido's involvement in the drug trade. I am satisfied that Garrido had an overpowering influence on the prisoner and that that influence caused the prisoner to engage in the activities which bring him before this court." 9 Particularly his Honour accepted from the evidence before him that a threat had been made by the partner, Garrido, to the respondent concerning the respondent's mother and that that threat was in the respondent's mind when he dealt with the cocaine. 10 The reference to the matter of duress is not to be understood as though his Honour conducted a trial of a possible defence to the charge to which the prisoner had pleaded guilty. Although the matter was not expressly so stated, I would understand it to have been raised in the context of the respondent abandoning a defence he might have argued at the trial and thus indicating that the plea, notwithstanding that it was entered in the face of a strong Crown case in consequence of the respondent being, as it were, caught red-handed, was nonetheless worth some pragmatic value in that it saved the cost and expense of a trial at which the issue might have been raised. That is, it gave concrete effect in this case to the usual submission that there should be a discount for the plea for saving the cost of a trial. 11 Of course, the matters referred to in this context were also of direct relevance to the prisoner's culpability and his subjective circumstances. The relevance of medical, personality or psychiatric conditions of the kind accepted by his Honour and conceded by the Crown has long been noted in the law. Some of the cases are collected in my judgment in this court in The Queen v. Forster (CCA, unreported 16 October 1998), the principle in the context of drug importation being upheld in this court in Regina v. Soonius (CCA, unreported 29 May 1998) and the particular necessity to afford to the view of the trial judge in such a case real respect so as not "unduly to circumscribe the discretion of sentencing judges" is to be found in the decision in The Queen v. L (CCA, unreported 17 June 1996). His Honour dealt with the conditions not only in this context but also when dealing with the plea, contrition, the unlikelihood of the prisoner to offend and the assistance. 12 His Honour considered all the matters he was required to consider under Part 1B of the Commonwealth Crimes Act which applies to the sentencing of offenders for offences, as this is, under s.233B of the Customs Act. 13 His Honour's attention was invited to a small number of summaries of cases in the Court of Criminal Appeal on sentence by the Crown. It was sought to base on that material a submission as to the precise range available of sentences. It has been sought to challenge his Honour's decision here on a number of bases, notwithstanding the ground of appeal. 14 The argument depends on challenges which fall into two categories. Firstly, challenges to his Honour's determination on the evidence of the respondent's role and the weight given by his Honour to such matters as assistance, guilty plea, good character, the influence of the former partner and the mitigating weight of the respondent's psychiatric conditions. Secondly, that the sentence on its face or by comparison with a "tariff" or range of sentences to be derived from those cases provided was so remarkably lenient as to require adjustment. 15 I have referred in Regina v. King [1999] NSWCCA 16 to the nature and incidents of a Crown appeal. I will not repeat here all of what I have said there. Nonetheless, I reiterate that Regina v. Hallocoglu (1992) 29 NSWLR 67 remains authority for the proposition that mere inadequacy will not found a Crown appeal. It is only in the case of a well documented mistake or a compelling case of manifest inadequacy that the court would intervene. 16 The general principles mitigating against interference with a discretionary judgment, as well as those long held to be applicable to Crown appeals, present considerable hurdles in the way of such an appeal. Generally, it is not open on such an appeal to challenge the trial judge's findings unless it can be established that they were not open on the evidence: Regina v. Kelly (1993) 30 NSWLR 64; or where the judge has in some important matter mistaken or misunderstood the case: Cranssen v. The Queen (1936) 55 CLR 509. It was said in The Queen v. WHS (CCA, unreported 27 March 1995) by McInerney, J. that:- "The court's powers to intervene on a judge's finding of fact are carefully circumscribed. This court can only interfere if it is demonstrated there is no evidence to support a particular finding, or if the evidence is all one way, or if the judge has misdirected himself: R. v. O'Donohue 34 A Crim. R. 397 per Hunt, J. (as he then was); R v. Warfield (1994) 34 NSWLR 200 at 209." 17 All the challenges to the finding of the trial judge in the appellant's submissions either relate to matters of weight or are matters for which there was before his Honour sufficient and adequate evidence, except perhaps the matter of assistance. The allowance for actual assistance might perhaps have been inappropriate, but in the upshot, bearing in mind the view I take as to the ultimate disposition of this appeal, I need make no positive finding on this. 18 The challenge in the written submissions asserting that too much weight was given to the respondent's psychiatric condition and the threats by his former partner particularly disregards his Honour's findings and the concession made by the Crown below. 19 The second ground of challenge that the sentence is manifestly inadequate should not in my view succeed on the "tariff" basis put forward by the applicant. Sentencing (as with the discount for assistance) involves not a rigid or mathematical exercise to be governed by "tariffs" derived from other cases, but the synthesis of matters properly taken into account in accordance with policy and principle in a discretionary exercise requiring due sensitivity towards all the considerations of policy which govern sentencing as an aspect of the administration of justice (see The Queen v. Gallagher (1991) 23 NSWLR 220 in the discussion of Gleeson, CJ. with whom Meagher, JA. and Hunt, J. (as he then was) agreed, in the particular context of the sentence discount). It is this consideration that has given rise to the recent decision of this court in The Queen v. Jurisic (CCA, unreported 12 August 1998) to issue guidelines for the assistance of judges in achieving that balance. The Chief Justice said in Jurisic (supra):- "The existence of multiple objectives in sentencing - rehabilitation, denunciation and deterrence - permits individual judges to reflect quite different penal philosophies. This is not a bad thing in a field in which 'the only golden rule is that there is no golden rule'. (Geddes (1936) 36 SR(NSW) 554, 555 per Jordan, CJ.). Indeed, judges reflect the wide range of differing views on such matters that exists in the community. However, there are limits to the permissible range of variation. The courts must show that they are responsive to public criticism of the outcome of the sentencing process. Guideline judgments are a mechanism for structuring discretion, rather than restricting discretion." 20 There was some debate as to "comparable" cases before us. The limited cases and the limited information about them provided to the trial judge and to us in my view do not assist the Crown's submission. However, notwithstanding this case has many peculiar features, as recognised by the trial judge, I consider the sentence is, in the result, manifestly inadequate. In my view the cases cited are not necessary to assist me drawing that conclusion. 21 Having regard to all the objective circumstances, and accepting his Honour's findings of all the special matters going to leniency and giving them, as they are entitled to in this court, their fullest weight, I am still of the view that the ground of manifest inadequacy has been made out on the face of the sentence, having regard to what Hunt, CJ. at CL. said in Regina v. WHS (supra). 22 This sentence, even though it is necessary in the final product to give full and sufficient weight to the principle that there is limited value for general deterrence in a sentence passed upon a person suffering from the conditions and subject to the frailties of the respondent, failed adequately to embrace the necessity for such general deterrence as to accord with the community's concerns, particularly because of the length of time through which the importation extended and the role performed by the respondent (albeit, as I have noted, as affected by his conditions and his partner's influence). 23 I have given consideration to the material tendered on this appeal, including the report of Dr. Roberts and the evidence in the affidavits of the respondent, Ms. Aitkin and the respondent's solicitor, as well as the matters in the appeal papers on the question of whether there are any discretionary considerations in the instant case which, notwithstanding the manifest inadequacy of the sentence, would appropriately restrain the appeal being upheld: see The Queen v. Hayes (1987) 9 A. Crim. R. 452 and Forster (supra). I note Dr. Roberts' concern for the respondent's future welfare notwithstanding the respondent's present custodial classification and circumstances as confirmed in his affidavit and the respondent's desire for employment and the availability to him of that employment. However, the disparity between this sentence and that which is proper so offends principle that this court must exercise the duty cast on it by the Criminal Appeal Act 1912 to intervene. 24 I therefore consider the sentence cannot stand. Nonetheless, having regard to material tendered on this appeal, the fact that this is a Crown appeal, and affording to the respondent the benefit all those matters by way of mitigation and at their highest, as found by the trial judge, and having in mind that on such an appeal authority constrains the sentence to the bottom of the range appropriate to the individual offender's crime and circumstances, I am constrained to hold that an appropriate sentence is one of no less than four years with a non-parole period of two and a half years, both to date from 15 October 1997. The non-parole period is to expire on 14 April 2000. 25 This sentence is significantly less than that which should have been passed at first instance to accord with the particular circumstances of this unusual case and the expectations for rehabilitation arising from the fresh evidence admitted on the appeal. I would propose the appeal be upheld, the sentence quashed and in lieu that sentence be passed and that pursuant to s 16F of the Commonwealth Crimes Act the legal representatives of the respondent explain to him the effect of the sentence. 26 GROVE J: I agree with the orders proposed by Greg James, J. for the reasons he has given. 27 DUNFORD J: I also agree. 28 GROVE J: The orders of the court therefore will be as proposed by Greg James, J.

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