Regina v Kevin Leslie ALCHIN

CATCHWORDS: Supply of prohibited drug - common mistake that standard non-parole regime applied - error and need to re-sentence - possible error in regard paid to offences on Form 1 - offender re-sentenced.

Attorney General's Application under Section 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; R v Clarke, CCA, 15 March 1990, unreported; CASES CITED: R v Ohar [2004] NSWCCA 83; R v Way (2004) 60 NSWLR 168.

D Woodburne - Crown COUNSEL: R Hulme SC - Appellant

S Kavanagh - Crown SOLICITORS: S E O'Connor - Appellant

IN THE COURT OF CRIMINAL APPEAL CCA 2004/3299 DC 04/11/0001

GILES JA HOEBEN J JOHNSON J

THURSDAY 31 MARCH 2005 R v KEVIN LESLIE ALCHIN Judgment 1 GILES JA: The applicant entered pleas of guilty to two counts on indictment of supply of a prohibited drug. He asked that three offences on a Form 1 be taken into account in his sentencing on the first of the counts. 2 The first of the counts was that between 1 December 2002 and 31 July 2003 the applicant supplied a prohibited drug, namely amphetamine, in an amount of 491.4 gms, being an amount not less than the commercial quantity for that drug. The offence lay under s 25(2) of the Drug Misuse and Trafficking Act 1985 ("the Act"), the commercial quantity for amphetamine being 250 gms. The maximum term of imprisonment for the offence was 20 years imprisonment. 3 The offences on the Form 1 to be taken into account were not formally stated, but according to the descriptions in the form were - · possession of a prohibited drug, being 155.6 gms of cannabis leaf; · goods in custody, being $10,000 in cash; and · goods in custody, being two Discmans and a car stereo. 4 The second count, as stated but incorrectly so, was that between 1 December 2002 and 31 July 2003 the applicant supplied a prohibited drug, namely cannabis leaf, in an amount of 155.6 gms. This offence lay under s 25(1) of the Act, and the maximum period of imprisonment was 10 years. 5 The applicant was convicted and sentenced on the first count to imprisonment for 6 years 6 months with a non-parole period of 4 years 6 months. He was convicted and sentenced on the second count to a concurrent fixed term of 2 years imprisonment. 6 The applicant applied for leave to appeal against the sentences. His submissions focussed on the sentence on the first count, and it was accepted that for practical reasons there was no occasion to address the other sentence. The grounds of appeal were -

(a) that the judge erred in having regard to the standard non-parole period prescribed for the offence the subject of the first count;

(b) that the judge erred in the manner in which he took into account the offences on the Form 1; and

(c) that the sentence was manifestly excessive. 7 The Crown conceded that there had been error in the sentencing proceedings, and that leave to appeal should be granted and the applicant should be re-sentenced. The concession was correct, and in the circumstances only brief reference to the first two grounds of appeal is required. The third ground of appeal is subsumed within the re-sentencing. .

The circumstances of the offences 8 The applicant lived in a Housing Commission home unit in Camperdown. He was in receipt of social security. The home unit was subject to surveillance. The surveillance showed a number of persons entering the home unit, staying a couple of minutes, and then leaving. One of the persons was stopped and found to be in possession of cannabis leaf. 9 On 31 July 2003 a search warrant was executed at the home unit. The applicant was asked if there was anything illegal in the home unit, and he showed the police a shoe box containing cannabis leaf. This was the 155.6 gms of cannabis leaf the subject of the first offence in the Form 1 and incorrectly referred to in the second count in the indictment. 10 In the subsequent search of the home unit the police found more cannabis leaf, electronic scales, a quantity of powder which was later found to be amphetamine, and other implements indicating trafficking in the prohibited drugs. They also found the $10,000 in cash and the two Discmans and car stereo the subject of the second and third offences in the Form 1. 11 The applicant was arrested, and in a formal record of interview made admissions concerning the trafficking in drugs from the home unit. In summary - · some of the 155.6 gms of cannabis leaf was for his personal use and the rest for sale; · the $10,000 was the result of about five weeks trading in drugs, and from the manner it was referred to in the record of interview was profit to the applicant; · the Discmans and car stereo had been taken as part payment for drugs; · the applicant acknowledged that these items may have been stolen; · he had been selling six or eight bags each containing three and a half gms of cannabis leaf per day for eight to twelve months; · he had been selling between two and five one gm bags of amphetamine per day over eight to twelve months. 12 By calculation, and together with the amphetamine found in the home unit, there came as an estimate the 491.4 gms of amphetamine in the first count in the indictment. The gross proceeds to the applicant would have been about $24,000. Again by calculation, there came approximately 5 kilograms of cannabis leaf which should have been in the second count in the indictment. The gross proceeds to the applicant would have been about $72,000.

The error in the sentencing proceedings 13 It should first be noted that, as earlier indicated, the charge as stated in the second count in the indictment was incorrect. The amount of cannabis leaf nominated, 155.6 gms, was the amount found on the search of the applicant's premises and the subject of the first of the offences in the Form 1. As appeared from the summary of facts before the judge, the count related to the supply of small deals of cannabis leaf on a daily basis over the 8 months December 2002 to July 2003, an estimated total quantity of 5.04 kilograms of cannabis leaf. It appears that the judge sentenced on that basis. It should also be noted that the Crown incorrectly informed the judge that the maximum term of imprisonment for the offence in the second count was 15 years. These matters, however, went to the sentencing on the second count in the indictment, and need not be further considered. 14 The conceded error material to the sentence on the first count was as follows. 15 The solicitor representing the Crown informed the judge that, pursuant to s 54B of the Crimes (Sentencing Procedure) Act 1999, the offence in the first count was subject to the standard non-parole period of 10 years set out at item 18 in the Table to Division 1A of that Act. The judge received submissions on whether he should not fix the standard non-parole period, particularly in the light of R v Way (2004) 60 NSWLR 168. He was of the view that he should not fix the standard non-parole period, but took that period into account in saying - "I am of course not free to ignore the fact that the legislature has enacted s 54B. The table provides yet another yardstick against which the ultimate sentence needs to be measured as a check to see that the result arrived at by the intuitive method is not wholly inappropriate." 16 Regrettably, the solicitor representing the Crown was incorrect, and the error was not picked up by the applicant's representative or the judge. The transitional provision in cl 45 of Schedule 2 to the Crimes (Sentencing Procedure) Act provided that the amendments of which the standard non-parole regime was part did not apply to offences committed before the commencement of the amendments. The relevant amendments came into force on 1 February 2003. The first count in the indictment alleged supply between 1 December 2002 and 31 July 2003, and the Crown accepted before us that in those circumstances the offence was not committed before 1 February 2003 and the offence was not subject to the standard non-parole period. 17 Since the judge did pay regard to the standard non-parole period, although of the view that it should not be fixed, he had regard to an irrelevant consideration and the exercise of his sentencing discretion miscarried: R v Ohar [2004] NSWCCA 83 at [84]-[85]. 18 The applicant submitted that the judge also erred in the manner in which he took the offences listed on the Form 1 into account. 19 The judge said - "Finally, there are the matters to be taken into account on the Form 1. They do not simply disappear by reason of the way in which they are dealt with. They are required to produce a significantly increased sentence because those matters represent the criminal context in which the offence of supply amphetamine occurs." 20 The applicant submitted that the offences in the Form 1 did not require a significantly increased sentence. In accordance with Attorney General's Application under Section 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 at [42]-[44], regard to the offences could bring a longer sentence than if the offence in the first count had stood alone, perhaps a substantially longer sentence (see at [18]). But it could do so primarily by their giving greater weight to the need for personal deterrence and to the community's entitlement to exact retribution for serious offences when there were other offences for which no punishment had been imposed (see at [42]-[43]). It is not entirely clear what the judge meant by his reference to representing "the criminal context in which the offence of supply amphetamine occurs", but the applicant submitted that the offences in the Form 1 did not materially add weight to the sentencing considerations abovementioned or materially contribute to the criminality of the applicant's principal offence. He submitted that possession of 155.6 gms of cannabis leaf was insignificant to the supply of nearly half a kilogram of amphetamine over an eight month period, or to the supply of about half a kilogram of cannabis leaf over the same period, and that having $10,000 and some electrical goods received in payment for drugs was an unremarkable adjunct to their supply. 21 While it is unnecessary to express a concluded view upon further sentencing error, it is important that the guidance of Attorney General's Application under Section 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 be, and be seen to be, recognised and followed; there is some doubt whether the judge's expression of his reasons did so.

Re-sentencing 22 The applicant was born on 17 February 1941, and was 62 years old at the time of the offences. He had had what the judge described as "a long history of conflict with the law". In the past he had been an SP bookie, but more recently he had turned to selling drugs in order to support an addiction to alcohol, cannabis and gambling. The judge considered that he had probably reached an age when he would not wish to continue conflict with the law, and for that reason found special circumstances. 23 The applicant had three previous convictions for supplying a prohibited drug. In 1993 he was dealt with in the Local Court, in one instance by a $400 fine and in the other by a fixed term of imprisonment for one month. In 1996 he was dealt with in the District Court, and received a term of imprisonment for 4 years with a non-parole period of 3 years. He also had convictions for street and gambling offences. 24 A number of testimonials were provided to the judge speaking of the applicant's generous nature and his contribution, in money and his time, made to community activities. The report of a probation officer described him as a generous person who had a strong need for acceptance, and said that he presented "as affable, genuine and well-meaning, with no malicious intent". Concern was expressed that he had been unable or unwilling to distance himself from the drug culture. 25 The judge accepted that the applicant entered his pleas at the earliest opportunity, and was prepared to give a 25 per cent discount for the utilitarian value of the pleas. He considered that a further discount was appropriate because the applicant had made admissions without which the charges could not have been brought. He did not quantify the additional discount. The applicant submitted before us that the frankness when interviewed indicated some contrition, although contrition was not otherwise evidenced and I do not think this is a matter of great substance. In my opinion, however, it is appropriate to allow a significant discount for the other considerations. 26 The objective criminality of the offence was considerable. Although the individual quantities were not large, and the applicant was an end-distributor rather than a participant higher in the amphetamine dissemination hierarchy, he engaged in a significant business of supplying amphetamines over a period of 8 months. His motivation was profit, to fund his gambling and lifestyle. The significant maximum term of imprisonment of 20 years for the offence the subject of the first count in the indictment, demonstrates the seriousness with which the legislature views the dissemination of drugs into the community, and amphetamines in their various forms have been regarded as falling in the mid-range of seriousness of prohibited drugs. The deleterious effect of the supply of amphetamine, and other prohibited drugs, to users and, through them the community in general, is well known. In that light, I do not consider that the testimonials to the applicant's good nature and community activities have much weight at all. That is not only because for drug supply offences reduced significance has been attached to matters such as previous good character and absence of significant prior criminal history, it is also because good nature and contribution to the community are hollow when the money was the proceeds of crime and the criminal activity has the significant detrimental effect on the community which the applicant's activity must have had. That the applicant took goods probably stolen in order to acquire drugs shows, if it be necessary to show it, that he must have been alive to that effect. 27 There is a need for substantial general deterrence in order that others might not fall into the dissemination of amphetamine (see R v Clarke, CCA 15 March 1990, unreported). The age of the applicant and the stage of life which he has reached have not caused him to turn away from criminal activity, nor has the term of imprisonment for the supply of amphetamine to which he was sentenced in 1996 turned him away from engaging in the supply of prohibited drugs; it must be concluded, in my view, that personal deterrence is a significant consideration. 28 Some weight should be given to the offences in the Form 1, although I do not think the weight should lead to a substantial increase in penalty. For the offence in the first count in the indictment the starting point should, in my opinion, be a term of imprisonment for eight years. There should be a significant discount, as earlier stated. In my opinion, however, the discount should not exceed 30 per cent, in order that the sentence not fall below that warranted for the offence. 29 The sentence should be for an overall period of 5 years 6 months. For the reasons given by the judge special circumstances should be found, and the sentence should comprise a non-parole period of 3 years 9 months and a further period of 1 year 9 months on parole. 30 I propose the orders -

1. Leave to appeal granted as to the sentence on count 1 in the indictment. 2. Leave to appeal as to the sentence on count 2 in the indictment refused. 3. Appeal allowed and the sentence quashed.

4. Sentence on count 1 in the indictment and talking into account the offences on the Form 1 to imprisonment comprising a non-parole period of 3 years 9 months commencing on 18 May 2004 and to expire on 17 February 2008 and a balance of the term of 1 year 9 months commencing on 18 February 2008 and to expire on 17 November 2009. 31 HOEBEN J: I agree with Giles JA. 32 JOHNSON J: I also agree. 33 GILES JA: Those will, therefore, be the orders.

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