REGINA v. D'ALENCON [2003] NSWCCA 269

1 HIDDEN J: We are in a position to give judgment and I will invite Greg James J to give the first judgment. 2 GREG JAMES, J: This is an application for leave to appeal against sentences imposed on the applicant in the District Court of New South Wales by his Honour Freeman, DCJ. for three offences. The applicant was charged, firstly, with one count of making an ongoing supply of methylamphetamine between 14 June 2001 and 5 July 2001; one count of supplying a prohibited drug, namely, methylamphetamine, on 26 July 2001 and one count of supplying not less than the commercial quantity of a prohibited drug, namely, methylamphetamine. That last offence was committed on 26 July 2001. 3 The applicant pleaded guilty to all three counts. He had come forward for sentence in the District Court in respect of two of the charges pursuant to the provisions of s.51A of the Justices Act 1902, his initial pleas to those charges having been entered before a magistrate at Port Macquarie on 21 February 2002. When he appeared before the District Court for sentence on 11 June 2002, for the first time a further indictment was presented charging the offence of 26 July 2001 and the applicant pleaded guilty to that offence. That offence was constituted by an offer to supply, the other offences by actual supplies. 4 The ongoing supply offence is an offence under s.25A(1) of the Drug (Misuse and Trafficking) Act 1985 punishable by a maximum penalty of 20 years imprisonment or a fine of $385,000, or both. The offence of supply a prohibited drug is an offence under s.25(1) of the Drug Misuse and Trafficking Act 1985 punishable by a maximum penalty of 15 years imprisonment or a fine of $225,000, or both. The offence of supply not less than the commercial quantity of a prohibited drug is an offence under s.25(2) of the Drug Misuse and Trafficking Act 1985 punishable by a maximum penalty of 20 years imprisonment or a fine of $385,000, or both. The applicant has been in continuous custody referable to these offences from his arrest on 26 July 2001. 5 The applicant came forward for sentence with a minor prior record for driving offences, in particular drink driving offences. One of those offences, driving with a high range PCA, was committed on 15 February 2000. The applicant received a recognisance for 12 months and was disqualified for a further two years, which disqualification expired on 26 December 2001. During the period of the disqualification the applicant offended again against the traffic laws, driving whilst disqualified, for which on 19 February 2001 he received a penalty which is described in the papers provided to us as a penalty of imprisonment for three years, suspended upon his entering into a bond for three years. 6 Entirely properly the Crown has drawn to our attention that on its face this sentence seems to exceed the jurisdiction available to the Local Court, firstly, as to the maximum sentence available and, secondly, as to the length of suspension that might be ordered. Nonetheless, the Crown submits that the applicant was at liberty conditionally, although it may be that there were problems with that sentence and the suspension of it. In any event, in my view, that makes little difference to this appeal. Since the learned trial judge specifically adverted to the drink driving offences in the context of referring to the applicant never having been in custody before, in my view the trial judge must have been aware of these matters and of the penalty that had been passed upon the applicant for them but he considered that that record was "not particularly relevant". That is not a conclusion with which I would disagree in the special circumstances of this appeal. 7 The applicant received by way of sentence from the trial judge on the first count a sentence of imprisonment which the trial judge expressed as being a sentence of three years imprisonment from 26 July 2001. The sentence on the second count was a sentence of two years from 26 July 2001. In respect of neither sentence did the trial judge impose a non-parole period. In respect of neither sentence did the trial judge make a record of his reasons for declining to set a non-parole period, notwithstanding s.45 of the Crimes (Sentencing Procedure) Act 1999. Nevertheless, on the third count the trial judge imposed a sentence of five years imprisonment to commence on 26 July 2003 but fixed a non-parole period of three years so that the applicant would be eligible for parole on 26 July 2006. 8 Section 45 provides:- "A court may decline to set a non-parole period for an offence if it appears to the Court that it is appropriate to do so:- ... (b) Because of any penalty previously imposed on the offender; or (c) For any other reason that the Court considers sufficient." 9 It may well be that the trial judge, having imposed those sentences, considered that in the general structure of sentence that he was minded to impose for the totality of criminality, it was expedient not to impose a non-parole period for the sentences passed in respect of counts one and two. In any event, what the trial judge did was to produce a sentence, which, for the totality of the criminality and the totality of sentence (as he referred to it) provided for a seven-and-a-half year total sentence with an associated period in custody the offender would have to serve of five years. That period comprised the non-parole period imposed on the third count, and the sentences imposed on counts one and two on which that non-parole period was cumulated. His Honour dealt with these matters in a passage which commenced on p.13 of his remarks on sentence:- "Withal, the sentence or sentences must reflect not only totality of sentence but totality of criminality. They must reflect the Court's ambitions to deter not only this offender from further offending, given his age, the length of time that he will be in custody I suppose I would regard that as unlikely but importantly it is to deter others who would engage in this unholy traffic. There are some calculations which are difficult but which must be spelled out. For that reason I will sketch out the sentences before formally informing the offender of them. I propose, in respect of the count under s.25A to impose a term of three years; in respect of the count under s.25(1) to impose a term of two years, running concurrently. At the end of that two-year term I would have imposed a sentence of eight years in respect of the supply of commercial quantity, being the offer, however, the offender pleaded early to two counts and the Crown is content to have his plea on arraignment also regarded as a plea at the earliest opportunity. It is perfectly true, as Miss Flannery observed, that the running of a trial involving these listening device tapes and possibly the intervention of some Spanish interpretation, if that need arose, would have been not short and quite awkward. I propose, therefore, to apply the utilitarian discount of a full 25%. Since the eight, running consecutively with the two, would have produced an overall head sentence of 10 years, 25% discount brings that down to seven-and-a-half. That seven-and-a-half total is comprised of two plus five-and-a-half on the last charge. Ordinarily that would have produced a particular non-parole period. As I said, I have made an adjustment which means that that sentence will itself be subdivided into a non-parole of three years and a parole period of two-and-a half." 10 His Honour had noted, in a very careful examination of the factual material, that the applicant had supplied to a police undercover operative initially six small bags of white powder, later identified as amphetamine, which totalled in quantity approximately one gram and which involved a price of some $265; secondly, 12 small plastic bags of amphetamine which apparently totalled about 1.5 grams and which involved the sum of $540; thirdly, some 20 grams of amphetamine involving a sum of $7000 and, in respect of the count of supply on 26 July, some 37 grams of amphetamine for which the offender was paid the sum of $12,000. 11 His Honour noted that it was at the time of the first encounter between the undercover operative, Peter and the offender that it was the offender who enquired what further supplies Peter might require and assured Peter he could supply any quantity "from one cap to one kilo". The discussions between the offender and Peter had been recorded by a listening device. In addition, after there had been, at a number of earlier meetings, conversations about the possibility of the offender making good his initial promise to supply a considerable quantity of drugs, negotiations concerning the supply of up to 400 grams. On 26 July there was apparently in pursuit of that arrangement a discussion involving a supply at a cost of $250 per gram. That led to the offender coming forward to be dealt with on the final count on the basis that he had offered to supply a commercial quantity of the prohibited drug. The trial judge was of the view that the actual supplies, mounting as they did in quantity, gave credence to the Crown contention that not only did the offender commit the crime charged in the fourth count by making the offer to supply, but was in a position to actually supply a considerable quantity of 400 grams. This proposition was disputed. 12 His Honour rejected the explanations given by the offender who had given evidence before him. He rejected the suggestion it was the importunings of the undercover officer which led to the greater quantities being supplied and the offer to supply a still greater quantity. He rejected the account given by the offender that he was, in effect, helping out friends and on the other hand rejected the suggestion that he should take into account observations by a registered police informant as to the general quantity of drugs the offender had in his possession. His Honour accepted that the applicant had a source of supply which could be depended upon for the applicant's ability to have supplied the undercover police officer with the amount charged in the fourth count. He held that the applicant was "in fact a willing and I find able supplier of considerable quantities of amphetamine". His Honour held:- "That the offender had been a relatively small-time dealer before the undercover operative came on the scene but that is not definitive of the question of what role he was playing and prepared to play on this occasion." 13 It is apparent his Honour held that the activities of the applicant were not simply opportunistic when confronted with a willing buyer. 14 His Honour, having examined the evidence concerning the source of the applicant's drugs, concluded:- "It follows that the offender is, in my view, a man who was close to the centre of major drug manufacture and distribution." 15 That statement has to be viewed in the context of the quantities actually supplied by the applicant and the attempts to ascertain precisely who and in what circumstances supplied the applicant with the drugs with which he dealt. Those attempts yielded little information to suggest other than that the applicant was obtaining the material from some shadowy figure in Sydney. The trial judge held he was willing and in the circumstances in contact with somebody who provided him with drugs in the past and who the trial judge held was capable of providing the applicant with a considerable quantity in the future. This is what the trial judge was referring to when he said the applicant was "close to the centre of things". In my view, that term "close to the centre of things" should be understood as meaning the applicant had contact with a person who could supply him with drugs, not that he was involved in manufacture or distribution more widely than as was referred to in the facts supporting the charges. 16 The trial judge concluded that the applicant had committed serious crimes and had been engaged with an ongoing operation which was frustrated only by the intervention of the police. In the applicant's favour, the trial judge looked at matters which might tend to mitigate the overall sentence, that is to say, that the ongoing supplies of the offence under s.25A and the supply offence under s.25(1) were all part of a continuing course of dealing with the undercover operative. I interpolate, so, of course, was the matter charged in the third count. 17 His Honour concluded that he should deal with the offences charged in the first two counts and the sentences to be imposed for them by way of a concurrent sentence for that reason. In order to pay respect to the principle of totality, his Honour determined therefore that the sentences for counts one and two should run partly concurrently and partly cumulatively. His Honour concluded that the sentence for the offer to supply offence should be a consecutive sentence, notwithstanding that it was one which could be properly characterised as being part of the continuing course of dealing with the undercover operative, but concluded that it should be consecutive only based on the shorter of the two sentences on the first two counts so that it would run partly concurrently and partly cumulatively. 18 It was only after considering these questions of concurrence or cumulation that his Honour then turned to some of the subjective and mitigating features of the applicant's case. Such an approach does not sit well with the approach the High Court referred to in Pearce v. The Queen (1998) 194 CLR 610. 19 His Honour, having regard to certain of those mitigating features and, in particular, the absence of a particularly relevant prior record, the offender's age and the fact he had never been in custody before, was of the view those matters would entitle him to extend a longer than usual parole period, thus to provide a shorter than usual non-parole period and his Honour concluded that he should provide for that shorter period by way of a diminution in what he referred to as the statutory proportion which was significant but not radical. It is apparent that here his Honour had regard to the overall sentences he had to impose and their combination rather than following the precise focus on the individual sentence for which s.44 and s.45 of the Crimes (Sentencing Procedure) Act 1999 at that time provided. 20 It was after his Honour had regard to these matters which he found as special circumstances that he turned to the applicant's physical disability, he having had a hip replacement having sustained two broken hips in the course of his employment, and the fact that the applicant had been induced to use amphetamine to which he was introduced in consequence of its ability to assist as a painkiller with that medical condition. The trial judge noted, and I do not conceive this was to the detriment of the applicant, that notwithstanding his disability the applicant had continued to do long hours of work. 21 It was in consequence of proceeding in that fashion that his Honour concluded his reasons and reached the conclusion that the sentences to which I have already referred should be imposed, expressing the substance of those reasons in the passage that I have already quoted. 22 Having regard to those matters it does appear that there are some technical errors in the approach his Honour took. Putting them aside, however, as being merely technical, I still remain to be persuaded that, so far as the length of each sentence and the length of the non-parole period as imposed is concerned, even, when one comes to look at the totality of sentence imposed for the totality of criminality and having regard to the circumstances of the offender, of his Honour having fallen into error such that this court should intervene having regard to s.6(3) of the Criminal Appeal Act 1912 so that another sentence or other sentences are warranted in law and should have been passed. But in my view the total effective sentence and the total period the offender must remain in custody by reason of the fixing of the commencement dates of the sentences in total effect exceed that which was appropriate in all the circumstances. This is because his Honour focused on totality when considering concurrence and the cumulation of individual sentences and in particular when approaching totality as he did he failed to afford sufficient regard to the third offence also being part of the one series of transactions. 23 That being said, it seems to me that an appropriate sentence to meet the criminality and to accord with the provisions of the Criminal Appeal Act would merely require an examination of the appropriate starting points of the third sentence and thus the present partial concurrence of the three component sentences. In my view, the sentences on counts one and two and their commencement dates might properly stand but an appropriate course in respect of the sentence on count three, which his Honour expressed to commence from the 26 July 2003, would be for that sentence itself to stand but to commence on the 26 July 2002. 24 In my view the non-parole period should similarly commence on that day and thus the sentences in their overall effect and the non-parole period or at least the time the applicant must remain in custody in its overall effect, when the non-parole period is taken in conjunction with the sentences upon which no non-parole period was imposed, would be one year shorter. This is a substantial reduction in percentage terms. I would be minded that no non-parole period should be imposed on counts one and two in order that the applicant should serve until the expiry of the non-parole period to which I have referred as the minimum period that he should spend in custody for the totality of his criminality and having regard to the sentences for each matter otherwise imposed in this total complex of sentencing. 25 The release date then that would be provided for the applicant and the earliest day upon which the applicant could be released would be the 25 July 2005. I am particularly minded in the case of the non-parole period to consider that period appropriate because of the applicant's somewhat advanced age and the overall length of sentence which would mean that he would not be released from custody at the earliest until a time in which he will, for a prisoner in this State at least, have a somewhat advanced age. 26 HIDDEN, J: I agree. 27 SMART, AJ: I also agree. 28 HIDDEN, J: The orders of the court then are that the sentences in respect of counts one and two are confirmed. In respect of count three, the sentence and non-parole period are confirmed but are to date from 26 July 2002. In that event the applicant will be eligible for release on parole on 25 July 2005. **********

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