Regina v Hansel [2004] NSWCCA 436 | Case summary

6 December 2004 REGINA v Detlef Dietmar HANSEL Judgment 1 SULLY J: This is a Crown appeal brought pursuant to section 5D of the Criminal Appeal Act 1912 (NSW) against what is asserted to be the manifest inadequacy of sentences passed on 14 May 2004 by his Honour Judge Woods QC upon Mr. Detlef Hansel, the respondent to the appeal. The respondent was born on 26 May 1944. He was aged, therefore, 59 years and some 10 months when he entered pleas of guilty on 1 March 2004; he was aged 12 days short of his 60th birthday when he stood for sentence on 14 May 2004; and he is now aged a little more than 60 years and 6 months. 2 On 1 March 2004 Mr. Hansel, and a co-accused named Michael Novakovic were called for trial in the District Court at Sydney and before his Honour Judge Dodd. Counsel then appearing for the present respondent told the Judge that there had been "some discussions with the Crown which may have the effect of shortening the matter". The respondent's matter was thereupon stood in the list pending further developments. 3 Later that same day the respondent was formally presented upon an indictment containing four counts. Count 1 charged the respondent with having manufactured between 24 and 28 August 2001 an amount of not less than the prescribed commercial quantity of methylamphetamine, a proscribed drug. Count 2, laid in the alternative to Count 1, charged the respondent with having knowingly taken part in the manufacture of the quantity of methylamphetamine particularised in Count 1. Count 3 was a further charge of manufacture and it was laid in the same terms as those of Count 1. Count 4 was a further charge, laid in the alternative, charging the respondent with having knowingly taken part in the manufacture of the quantity of methylamphetamine particularised in Count 3. 4 The respondent pleaded guilty to Counts 2 and 4, and not guilty to Counts 1 and 3. The Crown accepted the two pleas of guilty in full satisfaction of the indictment. 5 The respondent's sentencing was thereupon adjourned to 8 March 2004. There is no transcript of the proceedings on 8 March 2004; but there is transcript indicating that on 16 April 2004 the respondent, in company with three co-accused: Novakovic, one Frank Panebianco, and one Frank Porreca, appeared before his Honour Judge Woods QC for sentence upon various pleas of guilty that had been earlier entered respectively by each of them. 6 The proceedings on sentence continued more or less simultaneously on 16 April 2004 and on 14 May 2004. On that latter date his Honour passed sentence upon the respondent. On each of Counts 2 and 4 in the indictment his Honour sentenced the respondent to imprisonment for 12 months to commence on 14 May 2004; set a non-parole period of 9 months to commence on 14 May 2004; and thereupon wholly suspended the sentence upon certain conventional conditions. 7 The offences for which the respondent was thus sentenced are contraventions of section 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). Any such contravention attracts upon conviction a statutory maximum penalty of, relevantly, imprisonment for 20 years. 8 It is not controversial that the relevant facts are correctly summarised in the following extract from the remarks on sentence: "The charges were laid following an investigation of suspected drug activity by Frank Panebianco. The overall result of these investigations established that Panebianco had set up an operation that manufactured methylamphetamine, coordinating the acquisition of equipment and chemicals, the manufacture, storage and disposal of the manufactured product. On 22 August 2002 police commenced the interception of calls to and from a mobile telephone number, believed to be used by the offender Panebianco. Calls were monitored and four calls between Mr. Panebianco and Mr. Hansel were intercepted. As a result of these interceptions, 22 Neville Street, Riverstone was identified as a place to be used for the purpose of manufacturing methylamphetamine. Suspicion then arose as to the involvement of Hansel. The police executed a warrant and the premises were searched. At about 7.05 on 27 August Panebianco arrived at the 22 Neville Road address, the premises leased by the accused Hansel. Mr. Panebianco parked on the grass outside the house, got out of the driver's door and went into the house. About seven minutes later Mr. Hansel arrived and the two were seen in each other's company in the garage area of the premises and moving back and forth, taking items from their respective vehicles. After about four hours Panebianco left, carrying a package. He was followed and arrested a short distance from the house. Hansel was observed washing a reaction flask. When the police entered the property a short time later, Hansel ran a short distance before stopping on police demands that he do so. The clothing he wore was taken for analysis and that analysis later confirmed that the clothes had been in contact with methylamphetamine. The property at 22 Neville Street, Riverstone was rented by Hansel but was not occupied by him as at 27 August. The premises contained no furniture other than fixed cupboards and the like. It is agreed that Hansel was present in the garage while two separate lots of methylamphetamine, each containing a commercial quantity, had been manufactured. I so find. Police investigators and the chemists came into the property and various items were found there, including a round vessel, a reaction flask, with brownish liquid boiling at about 120 degrees centigrade in the flask. The chemist formed the opinion that it was a process whereby pseudoephedrine was being converted to methylamphetamine. Analysis confirmed that the contents were a disk of waxy substance weighing 40.8 grams, which was not analysed, and a brown liquid which weighed 1562.2 grams and consisted of 22.3 per cent methylamphetamine P2P iodine and phosphate. Located above the flask was a condenser with a glass vessel below its lower outlet containing a two layer liquid, an oily layer above a milky white layer. Above and to the left of the condenser were connectors suitable for linking the condenser to the flask. The liquid was a product of a steam distillation exercise to purify the methylamphetamine. Analysis confirmed that the contents of the flask, weighing 914.6 grams, was an upper layer of yellow oil weighing 436.8 grams and consisting of 73.5 per cent methylamphetamine and P2P, and a lower layer of a milky substance weighing 477.8 grams containing one per cent methylamphetamine and pseudoephedrine. A later search of the house and its surrounds resulted in the recovery of a large number of items such as the sources of the precursor pseudoephedrine, some precursor in the process of extraction and other items relevant to the manufacture of methylamphetamine. Among the items recovered was a document connected with Hansel, containing the names of some chemicals relevant to the manufacture of methylamphetamine. Those are the essential facts." 9 Having stated thus the material facts, his Honour embarked upon a close analysis of a deal of subjective material, and in particular a deal of material concerning the respondent's medical history and condition. It will be necessary to consider presently some of the detail of that material. 10 Following upon that analysis his Honour said: "The conclusion I draw with respect to those matters is, firstly, in terms of overall moral responsibility for his criminal conduct, it seems to me that the offender's mental state very significantly mitigates it. Frequently, it is said before the Courts and rejected, that somebody committed the crime because he was "easily led". Sometimes, as in this case, that explanation of things is true and in my view the moral responsibility of this man for the objective misconduct is very significantly mitigated by his background and by his mental state at the time of committing the offences. I intend to reflect that in the sentence I will impose." 11 His Honour next considered, and distinguished, the decision of this Court, (Mason P, Sperling J and Smart AJ), in Reg v Burrell [2000] NSWCCA 262. In that connection his Honour said: "In my view, if it were a case of determining whether or not I should impose a future gaol sentence on this offender, I would not regard his medical condition as justifying the avoidance of an otherwise appropriate gaol penalty. I say that with some qualification because the present case is not a situation of anticipating how well or otherwise the prison medical service might be able to deal with his problems: rather, it is a question of looking backwards in time and noting that, at least on the evidence before me, it appears as if the 17 months he spent in custody were particularly difficult for him, because a diagnosis was not made of a swelling on his neck which turned out ultimately to be cancer. I am not being critical of the prison medical service in making these comments, but I simply distinguish it from Burrell's case on that basis." 12 His Honour then referred in general terms to section 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW), and said: "I note that deterrence is a significant matter, which has to be borne in mind in cases such as this. I repeat that this is a serious drug crime and it needs to be dealt with by the imposition of a sentence of imprisonment. However he has in fact already served some sentence of imprisonment. The Crown has submitted that were it a question simply of regarding that time as being adequate punishment for the offence, it would be an error of law for me to conclude that. I note that submission and I intend to take the course of imposing a sentence of imprisonment on this man, but having made that decision I will then take the step of suspending the sentence of imprisonment." 13 His Honour then essayed the following exposition of his process of reasoning in that connection: "Objectively it seems to me that an appropriate penalty for the misconduct, not having regard to the subjective features, would be a sentence in the region of eight years imprisonment. However, for reasons which I have attempted to explain, this man's moral responsibility for that objective misconduct is substantially diminished to the point where for each of the two offences, I would regard a sentence of four years as being appropriate. Then one would take into account, in this notional exercise, the plea of guilty and for that I would, in this hypothetical exercise, reduce the penalty to three years imprisonment. Then in setting a non-parole period, I would take account of his medical position in particular, and I would find special circumstances for varying the usual relationship between a head sentence and the non-parole period. I do not see the need mathematically to calculate precisely what that non-parole period would have been, but I intend to regard the 17 months and one day which he has spent in custody for this matter, as a substantial part of the appropriate sentence I will now impose. For each of the charges to which there has been a plea of guilty I sentence concurrently. Although there are two distinct offences, the criminality in each instance is so closely related in time, place and personnel, that full concurrency is appropriate." 14 It is, in my opinion, trite that the offences admittedly committed by the respondent cannot be characterised, in terms of their objective criminality, as other than serious offences. The statutory maximum penalties, without more, attest to the Legislature's perception of the gravity of such conduct. 15 In the respondent's particular case the objective seriousness in that general sense was aggravated, in my opinion, by the respondent's admitted criminal antecedents. 16 On 15 January 1970, when he was aged about 25 years 8 months, he was fined for possession of LSD. On 30 June 1987 he was fined for possession of a prohibited drug; and he was sentenced to imprisonment for 12 months with a non-parole period of 9 months, for the offence of supplying a prohibited drug. An appeal to the District Court was successful, and a fine of $500 was substituted for that sentence. On 13 December 1989, and at the same sitting of the District Court, the respondent was placed on a 4 year good behaviour bond for an offence of deemed supply of a prohibited drug. On 4 November 1993 the respondent was sentenced in connection with a number of charges of supplying a prohibited drug. He was sentenced, effectively, to imprisonment for a minimum term of 4 years to date from 29 October 1993, with an additional term of 16 months. An appeal to this Court was dismissed on 27 June 1994. 17 It is true that the latest of those antecedent matters was some 8 years in the past as at the dates laid in the indictment of 1 March 2004. It follows, in my opinion, that there was, and is, a need not to give the antecedents an exaggerated importance. It does not follow, however, that the antecedents had no part to play in the consideration at first instance of both the objective and the subjective features of the respondent's case. 18 Also relevant to both the objective and the subjective features of the respondent's case was the evidence placed before the learned sentencing Judge concerning the respondent's relevant medical history and current medical condition. 19 It is convenient to begin the survey with a report from Dr. Wendy-Louise Walker, a highly qualified Clinical and Forensic Psychologist. The report is dated 13 April 2004, and it is thorough and informative. It suffices for present purposes to quote two segments of the report: " THE CURRENT OFFENCE It is clear in interviewing Mr. Hansel that his recall of the events involved in the current offence is very patchy. He told me that he allowed a friend to manufacture amphetamine at his rented home at a time when he and his current lady friend were separated. He said that it was not his idea and that his involvement was minimal. He harbours the somewhat paranoid belief that he was a victim of exploitation and entrapment. He is sincerely remorseful about his involvement and is very angry with himself for being a gullible fool and not being able to say no to friends, who are probably not friends at all. He spent 17 months in remand at Silverwater and during this time, with very high levels of stress, his health failed dramatically. He suffered terrible bouts of abdominal pain for which, he told me, he was not permitted to see a doctor but was told to take a Panadol; he had his gall bladder removed for chronic disease after he was released. He noticed increasing and frightening swelling on his neck, but, he told me, the nurse, Ms Karen Price for some reason would not put him on the list to see the doctor. He communicated this to his sister Judy, who put in huge effort to make a further application for bail, which was successful. The potentially fatal lymphoma condition was diagnosed soon after his release on bail, with medical appointments organised by Judy. He has received treatment and the condition is in remission according to medical reports; he is involved in a clinical trial of treatment and is monitored regularly. He is convinced (not unreasonably) that the further imprisonment would remove him from his medical experts, put him at risk of fatal heart attack and that the stress and fear of imprisonment would likely trigger a resurgence of his lymphoma; he is convinced that he would not come out of prison alive and this fear is reasonable." " OPINION Mr. Hansel is physically and mentally very vulnerable. As documented by his medical experts (organised by his fiercely supportive sister Judy) he suffers serious physical disability from accidents and an attack in 1993, he suffers permanent brain injury from an attack in 1993. He suffers serious and potentially life threatening heart disease. Mr. Hansel does not have a primarily criminal orientation, rather his life focuses on caring for his frail mother and step-father and his main goal in life is to be available to them for the rest of their lives. I believe that he was unduly vulnerable to influence of friends and associates because of his childhood and adolescence, with his development to adulthood distorted with anxiety and low self esteem resulting from never knowing his own father, the extreme stresses of early life in post-war Germany, possible exploitation (according to Judy) in radiation research in Germany at the age of about 5 years, a caring but at times physically violent step-father and association with the "wrong kids" during and after high school. Despite his poor record, Mr. Hansel's value system is benevolent rather than criminal. He life expectancy is already poor. He would be at great risk if sentenced to a further term of imprisonment." 20 Important aspects of the respondent's present and likely future condition are contained in a report, dated 19 March 2004, from Dr. Michael Purcell. Dr. Purcell reports: "Mr. Detlef Hansel has: 1. Spondylosis of his cervical spine due to a neck injury sustained in the 1970's. 2. Spondylosis of his lumbo sacral spine due to several work related injuries sustained in the 1980's. 3. He suffers from ischaemic heart disease. An angiogram in 1993 revealed a 50% stenosis to the left anterior descending artery. 4. Hypercholesterolemia 5. In 1993, he sustained a fractured skull and a neurological examination revealed at that time definite cognitive changes. 6. He has had in the past a fractured lower leg with right patellectomy. 7. In June, 2003, he underwent laparoscopic cholecystectomy for a chronically inflamed gall bladder. 8. In February 2003, he was diagnosed with diffuse B-cell Non-Hodgkin's lymphoma. He underwent chemotherapy for this condition and at the present time is in remission, though under regular surveillance with CT Scans etc. At the present time he suffers from constant neck and lower back discomfort due to the degenerative changes caused by the earlier injuries. His ischemic heart disease has no doubt progressed since the angiogram in 1993, but he at the present time does not have any angina. The cognitive changes demonstrated by the neurologist in 1993 would probably explain some of Mr. Hansel's behaviour and lack of insight." 21 Dr. Purcell furnished, also, brief but clear reports on the respective current medical conditions of the respondent's parents. It suffices to say that both parents are very old people in fragile health. 22 The respondent's cardiac condition is the subject of a report, dated 31 March 2004, from Dr. D. Demetriou, a specialist Cardiologist. Dr. Demetriou reports: "From a cardiac point of view, Mr. Hansel continues to get palpitations with emotional upset, has noted that he becomes quite short of breath on minimal exertion and struggles to keep up with his peers. He hasn't got typical angina but when we did proceed with a stress test, he had definite ischaemic changes at end exercise and only manifested with shortness of breath. Thus his coronary artery disease is largely silent in the sense that it doesn't cause chest pain but is nevertheless present and has progressed over the years. Mr. Hansel was also checked with echocardiography which reveals that the ventricular systolic function (pumping action of his heart) at this stage is normal. Mr. Hansel is at risk, particularly if exposed to physical or emotional stress, to have a heart attack. We know that the vessel involved is the major vessel of his heart and a heart attack would be expected to be quite serious and extensive in this man. To try and prevent this, he is on therapy and will require regular cardiac monitoring. In future he may require more invasive therapy. It would be prudent for him to continue to be attended by his usual medical practitioners, and his usual cardiologist, as I have been following him for seven years and am in the best position to judge any change in his condition. Current therapy consists of Noten (Atenolol) 50 mg daily, a beta-blocker which will try and avoid the heart being stressed when he is exposed to physical or mental stress, Lipitor, a cholesterol-lowering agent and if Dr. Benson allows it, at a later stage we will re-introduce low dose Aspirin. He needs to be monitored at regular intervals by his cardiologist, at least every three months or so and will require regular stress testing and may eventually require more invasive tests which have to be done in hospital." 23 Given the whole of the relevant facts, including the relevant criminal antecedents and the relevant medical evidence, has the Crown demonstrated error in the learned sentencing Judge's approach to the respondent's sentencing? In my opinion there are several clear errors. 24 First, his Honour clearly regarded the evidence before him as establishing facts mitigating the objective seriousness of the offences themselves, as distinct from facts as mitigating an otherwise appropriate sentence. His Honour saw that mitigation of objective gravity as justifying a 50 per cent reduction in an otherwise appropriate sentence. 25 If it be assumed, as I am content to do, that a head sentence of imprisonment for 8 years was a properly available starting point, then I am unpersuaded that the view most favourable to the respondent of the available evidence could reasonably justify such a massive threshold reduction in the level of objective criminality. 26 I would accept that it was reasonably open to his Honour to make some prudently restrained allowance for the respondent's physical, mental and emotional vulnerabilities. So much could be justified by the medical evidence and by the other lay character evidence that was placed before his Honour. 27 It remains the case, however, that the respondent, an offender with a not insignificant antecedent record for drug-related offences, knowingly participated in a massive manufacture of a prohibited drug. Simply to slice a proper sentence in half because the respondent was vulnerable to being "easily led" seems to me to take compassion to an insupportable level. I would myself think that the reduction of a putative sentence of 8 years to a sentence in the order of 6 to 6-1/2 years would give the respondent every just allowance for the mitigation of his objective criminality. 28 Secondly, I am of the opinion that a discount of 25 per cent on account of the pleas of guilty was unjustifiably generous. 29 The pleas were entered on the first day of an expected joint trial of the respondent and Mr. Novakovic. The pleas were entered after what can be assumed safely to have been the usual forensic haggling. Neither of those considerations means that the respondent was not entitled to any discount at all in recognition of his pleas of guilty; but it goes against the grain of relevant authority to say that he was entitled to a full 25 per cent discount. 30 In my opinion an allowance in the order of 9 months on a sentence of 6 to 6-1/2 years would have been just. 31 Thirdly, it is not at all clear what approach his Honour was actually taking in connection with the 17 months, (in rounded figures), that the respondent had served in pre-sentence custody. 32 His Honour notes a Crown submission, mentioned earlier herein at paragraph 12 that it would be erroneous in law simply to regard that 17 months "as being adequate punishment" for the offences. That rather suggests that his Honour had at least entertained the option of so dealing with the setting of a proper sentence, but had decided ultimately not to risk falling into error by taking that option. 33 What has resulted from what his Honour in fact did seems to me to be, with respect, both confused and confusing. 34 It is possible that his Honour was intending to convey a conclusion that an appropriate head sentence was one of imprisonment for 29 months, (17 months plus 12 months); but that the effective non-parole period should be 17 months. If that be so, then what his Honour has in fact done is to set a putative sentence of 29 months and a putative non-parole period of 26 months, (17 months plus 9 months). That result would be so obviously askew that I cannot think that it represents what his Honour was wishing to achieve. 35 It is possible, alternatively, that his Honour really did intend to achieve the end result of a sentence of imprisonment for 17 months, wholly served in pre-sentence custody; that his Honour set the sentence of 12 months and the accompanying non-parole period of 9 months as a theoretical buffer against error of law; and then cemented practically into place the desired end result by the total suspension of the sentence actually passed. There is, surely, no need for an extended explanation of the complete miscarriage that would have been entailed by such an approach. In the end it is, I think, not possible to analyse usefully the way in which his Honour dealt with pre-sentence custody, beyond saying that what was ultimately done suggests overwhelmingly that his Honour went awry, covertly if not overtly, in the way in which he factored into the end result the element of pre-sentence custody. 36 Fourthly, the effect of the sentence in fact cast is, in my respectful opinion, inadequate on its face to deal with the respondent's case. 37 It is indisputable that the respondent's subjective profile was a very powerful one. It entitled the respondent to a real measure of mitigation of an otherwise appropriate sentence. It is fair to acknowledge, also, that periodic detention was not an option in the respondent's case, being excluded by the operation of section 65A of the Crimes (Sentencing Procedure) Act. That is a pity, for I would myself have thought that an appropriate sentence served by way of periodic detention would have provided an acceptably just way of balancing the relevant objective and subjective features of the respondent's particular case. 38 Periodic detention being excluded, however, a wholly suspended sentence of 12 months, passed concurrently for two offences, each of which carries a statutory maximum penalty of imprisonment for 20 years, seems to be on its face insupportable in the present case. A greatly shortened non-parole period, or even a short fixed term, of full-time custody was justifiable and, in my respectful opinion, ought to have been passed upon the respondent. 39 The foregoing concatenation of errors is ample, in my opinion, to empower this Court to intervene and to re-sentence; but subject, of course, to the over-arching power of the Court to decline, as a matter of correctly exercised discretion, in fact so to intervene. 40 Once again, as its seems to me, deficiencies in a primary sentencing exercise place this Court in an invidious position. 41 The respondent has been at liberty since May last. His medical condition and treatment since that time are documented in a report, dated 12 November 2004, from Dr. Walker; and in a report, dated 4 November 2004, from Dr. Demetriou. 42 Dr. Walker's ultimate opinion is this: "OPINION My opinion is the same as that expressed in my earlier report. He is physically and mentally very vulnerable as documented by his medical experts. He suffers lymphoma (currently in remission but requiring three monthly checks with his physician); he will not have any security in hope for long term survival until he has been in remission for five years. The risk posed by imprisonment is that he would not be re-assessed by his own specialist on the required regular basis; lack of attention to the increasing swelling in his neck and feelings of malaise allowed the malignancy to progress for some months until Mr. Hansel was given bail. Mr. Hansel also suffers diagnosed cardiovascular disease and he needs regular ongoing assessment by his cardiologist; stress will increase his risk of fatal or further disabling heart attack. It is also most likely that Mr. Hansel suffers permanent brain injury from an accident in 1993 and that this brain injury has flawed his judgment and made him more likely to yield to social pressure to do wrong things. Mr. Hansel has already spent significant time in prison before bail was achieved. He is not a psychopathic or sociopathic man, he does not have a general criminal orientation and, in my opinion, the likelihood of re-offence is very small indeed. Mr. Hansel focuses his life on caring for his quite frail parents who are in their mid-eighties. He is certainly extremely remorseful about the offences." 43 The ultimate opinion of Dr. Demetriou is this: "Since I lasts reviewed Mr. Hansel, he has had some difficulty tolerating his medication and this has been changed slightly. At this stage we have not yet controlled his lipid profile and he is finding that his cardiac condition is tiring him, to the point where he frequently has to rest in the afternoon. Clearly he has not yet improved and is still at risk, so my assessment in his original letter of the 31st March 2004, is unchanged. He will require regular medical monitoring to ensure his long-term survival." 44 No appellate Court could lightly send now into full-time custody a person with those health conditions and problems. To do so would be, I think, an unacceptably harsh correction even of a primary sentencing exercise that has seriously miscarried. I have considered in that connection the decision of this Court, (Giles JA, Wood CJ at CL, Levine J) in Reg v McGourty [2002] NSWCCA 335; but I think that the decision is distinguishable for the reason that the offender's subjective case was not nearly as powerful as that of the respondent; and because the Court was dealing in the case of McGourty with a crime of great violence. 45 I am, to speak frankly, reluctant to refuse the present appeal upon the basis only of this Court's residual discretion in that behalf. To do so will inevitably provide a launching-pad for further weakly merciful sentencing at first instance. It is, however, trite that even the most justified apprehension of, and irritation at, that prospect cannot be allowed to overwhelm what justice requires in the particular case; and I have come to the conclusion that in the respondent's particular case the balance of justice calls for the refusal of this Court, in its residual discretion, to interfere with the respondent's current sentence. In my opinion the appeal should be dismissed. 46 HIDDEN J: Judge Woods was confronted with a difficult sentencing exercise, particularly in the light of the respondent's unusual subjective case. Nevertheless, I agree that the sentence imposed is manifestly inadequate but that, for the reasons identified by Sully J, the appeal should be dismissed in the exercise of this Court's discretion. 47 HOWIE J: I agree with Sully J. **********

Regina v Hansel

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