Further ground of appeal
38 I turn now to a further ground of appeal which was raised for the first time in counsel for the applicant's oral submissions. The further ground of appeal was not precisely formulated by counsel but was to the effect that the sentencing judge had failed to take into account a relevant matter, namely the applicant's motivation for entering into the attempt to obtain possession of the drugs.
39 Counsel referred to evidence given by the applicant in the proceedings on sentence that he had developed a drug habit, that his business as a mechanic had suffered because he started selling tools and equipment to finance his habit and that "then I was threatened to pay my debt to my supplier, which I couldn't pay straight away, so I was asked to do this job and my debt would be cleared. At the time I had lost control of what right and wrong was and I didn't want to bring any trouble to my home".
40 Counsel also referred to passages in a report by Dr Niellsen, a forensic psychiatrist who had interviewed the applicant, in which Dr Niellsen recorded a history he had been given by the applicant, including that the applicant had come under increased pressure to repay the money he owed for drugs and had committed the offence in an attempt to wipe out his debt.
41 It was submitted by counsel for the applicant that it was apparent from Judge Solomon's remarks on sentence that his Honour had generally accepted the evidence given by the applicant in the proceedings on sentence and that his Honour should have made a finding in accordance with the applicant's evidence about the applicant's motivation for committing the offence and then regarded the applicant's motivation as a matter of mitigation. However, in the passage of his Honour's remarks on sentence which I have already quoted, his Honour had merely found that at the time of committing the offence the applicant had a drug habit and that the offence had been committed "whilst the offender was under the influence of drugs" but that that circumstance did not excuse the offence. I interpose that it seems clear that in saying that the offence was committed while the applicant was "under the influence of drugs", Judge Solomon was not making a finding that the applicant was actually under the influence of drugs at the time he committed the offence but was merely making a finding that the applicant was subject to a drug habit at the time of committing the offence.
42 In support of his submissions counsel for the applicant referred to R v Selim (unreported NSWCCA 19 May 1998) and a decision of the Court of Appeal of the Supreme Court of Victoria R v Bernath [1997] 1 VR 271 especially at 275-276.
43 In R v Selim the offender had been sentenced for precisely the same offence as the present applicant was sentenced, that is attempting to obtain possession of a prohibited import (cocaine) in contravention of s 233B(1)(c) of the Act. The sentencing judge made a finding that it was the applicant's addiction to cocaine which had motivated her offence. She was using at least 3 grams of cocaine per day and she was to be rewarded for her participation in the importation of the cocaine by being given some of the drug for her own use. However, the sentencing judge said in his remarks on sentence "I do not mitigate the prisoner's criminality because she was addicted to drugs…".
44 At p 5 of the judgment of the Court of Criminal Appeal in Selim Studdert J, with whom the other members of the Court agreed, said:-
"Since his Honour had found that there was a link between the applicant's addiction and her participation in this crime, that was a circumstance which, on the authorities, entitled the applicant to have her criminality regarded as on a lower level than had she been committing the offence purely for monetary gain: see Tulloh (unreported, Court of Criminal Appeal, 16 September 1993, and in particular the judgment of Hunt CJ at CL). See also R v Bernath , and in particular the judgment of Callaway JA at 275-276. To what extent a penalty otherwise appropriate should be adjusted if the offender commits the offence to feed an addiction calls for close assessment of all the relevant circumstances. However, his Honour's remarks in this case indicate that he did not take into account the applicant's particular motivation and in this respect, in my opinion, he fell into error".
45 The passage in the judgment of Callaway JA in Bernath at pp 275-276 is as follows:-
"Mr Gyorffy, who appeared for the Crown before us, did not contest that it is sometimes a very significant factor in sentencing that an offender engaged in trafficking, especially at street level, in order to gain the wherewithal to satisfy his own craving, rather than purely for reasons of greed in callous disregard of the grave harm that offence does to its victims. But as McGarvie J said in R v Nagy [1992] 1 VR 637 at 640, the regard to be paid to this factor depends on the circumstances of each case. The weight to be attributed to it is greatly diminished, often to vanishing point, when one is considering operations above street level".
46 In Tulloh Hunt CJ at CL, who delivered the principal judgment, said at p 2 that a user/dealer who sells primarily only to feed his own habit is at a lower level of criminality than a trafficker for greed.
47 I do not consider that this ground of appeal should be upheld.
48 In the present case, unlike Selim , the sentencing judge did not make any finding that it was the applicant's drug addiction which motivated the offence. Even if Judge Solomon did accept or should have accepted the applicant's evidence that the applicant had entered into the drug transaction in order to pay a debt he owed to a person who had supplied drugs to him while he was addicted, this evidence would not have supported a finding of a link between the commission of the offence and the offender's drug addiction of the kind referred to in Selim and Bernath , that is that the offence was committed in order to satisfy an immediate need for drugs to satisfy the offender's addiction or, as it was expressed in Bernath , "in order to gain the wherewithal to satisfy his own craving".
49 Although the drug transaction in Selim was clearly above street level, I would adopt what Callaway JA said in Bernath that the weight which should be given to any link between the commission of an offence and the drug addiction of the offender depends on the circumstances in each case and the weight which should be attributed to it is likely to be less, if the transaction is above street level. The remarks made by Hunt CJ at CL in Tulloh , a case in which the offender had sold half a gram of heroin for $50 and was found in possession of another 2·11 grams of heroin, were made in the context of a discussion by his Honour of whether a custodial sentence was necessarily required in every case of a trafficking in drugs and it can be inferred that the kind of user/dealer his Honour had in mind was a person dealing at a very low or street level. In the present case, the transaction was, of course, well above street level.
50 On the evidence given by the applicant in the proceedings on sentence the applicant was not destitute at the time of committing the offence. He was not in the position of having no alternative lawful means of paying the debt he owed to his supplier.
51 In argument on the application the Crown referred the Court to the discussion of drug addiction in the judgment of Wood CJ at CL in R v Henry (1999) 46 NSWLR 346 at 397-398 (273-274). Although R v Henry was a guidelines judgment for offences of armed robbery, I consider, as counsel for the Crown submitted, that Wood CJ at CL's discussion can properly be applied to offences other than armed robbery.
52 The general principle stated by Wood CJ at CL in R v Henry was that the need to acquire funds to support a drug habit, even a severe habit, is not a matter of mitigation in sentencing an offender. His Honour then stated various qualifications to this general principle. It would not appear to me that the present case fits within any of the qualifications stated by his Honour. One qualification stated by his Honour, to which reference was made in argument on this application, was that "the state of mind or capacity of the offender to exercise judgment, for example, if he or she was in the grips of an extreme state of withdrawal of the kind that may have led to a frank disorder of thought processes or to the act being other than a willed act". However, the applicant's evidence in the proceedings on sentence fell far short of establishing that the applicant's state of mind or capacity at the time of committing the offence fitted within this qualification.
53 I have concluded that all the grounds of appeal should be rejected. In my opinion, while leave to appeal against sentence should be granted, the appeal against sentence should be dismissed.
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