Regina v Lilley

COUNSEL : P G Berman (Crown) W C Terracini SC (Respondent) SOLICITORS : S E O'Connor (Crown) Ward Maxwell & Co (Respondent) CATCHWORDS : Sentencing. - Sentences must reflect objective gravity of offences. LEGISLATION CITED : Suitors' Fund Act 1951, Costs in Criminal Cases Act 1967 DECISION : Appeal allowed; sentences quashed.; In lieu of the sentences imposed, Ronald Stephen Lilley is sentenced:; (i) for the offence of attempt to pervert the course of justice to a minimum term of imprisonment of one year starting on 22 July 1998 and ending on 21 July 1999 and an additional term of 1 year starting on 21 July 1999.; (ii) for the offence of supply prohibited drug in July 1998 to a minimum term of imprisonment of one year starting on 22 July 1998 and ending on 21 July 1999 and an additional term of 1 year starting on 22 July 1999.; (iii) for the offence of on 13 June 1996 knowingly take part in the supply of a commercial quantity of heroin to a minimum term of imprisonment for 2 years starting on 22 July 1999 and ending on 21 July 2001 and an additional term of 2 years starting on 22 July 2001. The refusal of this Court to make the requested recommendation is without prejudice to Mr Lilley's application to the Director-General.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL CCA 60459/99 DC 97/21/3053, 98/21/3325, 98/21/3326

FITZGERALD JA BARR J SMART AJ

1 FITZGERALD JA: The circumstances giving rise to this appeal are set out in the reasons for judgment of Smart AJ. 2 It is unfortunate that what the sentencing judge himself described as an "extremely lenient sentence" should have been supported by an inaccurate description of Mr Lilley's offences and / or personal circumstances as "exceptional and rare" and an insupportable finding "that there should be parity between [Mr Lilley's] case and Hatch's case". Further, the sentencing judge regrettably did not make satisfactory findings, and gave no indication whether he considered that Mr Lilley was unable, or did not intend, to supply the commercial quantity of heroin which he agreed or offered to supply. 3 The circumstances of the offence of supplying a commercial quantity of heroin are confused and Mr Lilley's role and intended role if he had not been arrested are unclear. Unless the sentencing judge considered that Mr Lilley was unable, or did not intend, to supply the commercial quantity of heroin which he had agreed or offered to supply, it is inconceivable that he would have sentenced him to only a period of periodic detention in addition to the term of imprisonment which he had served, less than a year. It is also inconceivable that, in those circumstances, he would have deferred sentencing Mr Lilley for attempting to pervert the course of justice in connection with that offence and another offence of supplying heroin on a subsequent occasion (while he was on bail) on condition that Mr Lilley enter into a recognisance in the sum of $1000 to be of good behaviour for three years and accept the supervision of the Probation and Parole Service. 4 Some of the reasons given by the sentencing judge for the leniency which he extended to Mr Lilley are of minimal weight. For example, support by a marital partner and an employer, his poor health and his inability to tolerate prison at his age are of little significance in relation to an offender who is being sentenced on the basis that he intended to supply a commercial quantity of heroin, had attempted to pervert the course of justice in connection with that offence, and had supplied heroin on a subsequent occasion while on bail. That is particularly so of a middle aged man with an anti-social personality disorder and a long record of criminal behaviour stretching back for decades and involving previous drug offences and previous prison sentences. Indeed, matters relied on by the sentencing judge are difficult to reconcile; for example, the reliability spoken of by his employer sits uneasily with Mr Lilley's long addiction to heroin, "a true addict who does not and possibly cannot make rational decisions about [that drug]." While Mr Lilley's personal circumstances might be tragic, they do not entitle him to escape appropriate punishment for supplying heroin and attempting to pervert the course of justice. The supply of heroin which so often destroys the lives of others is a dreadful offence. 5 I do not doubt that the sentencing judge erred badly. However, the course which this Court should now take on a prosecution appeal against sentence presents considerable difficulty, particularly when Mr Lilley has been serving periodic detention since he was sentenced on 6 August last year, has apparently been of good behaviour, and has been complying satisfactorily with the supervision requirements of the Probation and Parole Service. It seems that this Court is to proceed on the basis that, if Mr Lilley's prison sentence is not increased, he has real prospects of rehabilitation which might be prejudiced if a full-time custodial sentence is imposed. 6 The sentencing judge has created a situation which cannot have a satisfactory outcome. Given that this is a prosecution appeal, the course proposed by Smart AJ is as good as can be achieved. 7 I agree in the orders proposed by Smart AJ. 8 BARR J: I agree with the orders proposed by Smart AJ for the reasons given by his Honour. I agree with the remarks of Fitzgerald JA. 9 SMART AJ: The Director of Public Prosecutions appeals against the sentences imposed by Judge Moore on the ground that they were inadequate. For the offence of knowingly take part in supplying a commercial quantity of a prohibited drug (heroin) Mr Lilley was sentenced to 2 years 6 months imprisonment to be served by way of periodic detention, for those of attempting to pervert the course of justice and supply a prohibited drug (heroin) sentence was deferred upon condition that Mr Lilley enter a recognisance himself in the sum of $1000 to be of good behaviour for 3 years and accept the supervision of the Probation and Parole Service. There was a plea of guilty to each offence. In respect of the first offence, the judge took into account two further offences, one of goods in custody and one of possess cannabis leaf. The judge also took into account that Mr Lilley was in custody from 22 July 1998 until he was sentenced on 6 August 1999. 10 The First Offence - Knowingly take part in supply of a commercial quantity of Heroin - June 1996. "Supply" includes agreeing to supply or offering to supply (S.3 of Drug, Misuse and Trafficking Act 1985). Mr. Lilley and a man known as David Hatch became friends while in Glenn Innes Gaol. Hatch also met Warren MacGregor there. After their release Hatch and MacGregor met on a number of occasions. Both lived in Queensland. In early June 1996 Hatch advised MacGregor that he had a friend from Glen Innes Gaol who had a large amount of heroin for sale which came from overseas. Hatch inquired of MacGregor whether he knew anyone who could buy it. MacGregor contacted the National Crime Authority and encouraged Hatch. The Drug Enforcement Agency mounted an undercover operation against Hatch. He had been in touch with Mr Lilley. 11 On 13 June 1996 Hatch and MacGregor travelled to Sydney by air for the purpose of facilitating the purchase of one pound of heroin from Mr Lilley for $120,000. On arrival at Sydney airport Hatch telephoned Mr Lilley. A rental car was also obtained. Hatch and MacGregor proceeded to the Novotel Hotel, at Brighton Le Sands. MacGregor received the keys to room 738. Hatch was told that his room was not ready. Hatch and MacGregor went to room 738. MacGregor purported to telephone and speak to the ostensible purchaser (an undercover police officer). 12 Hatch telephoned Mr Lilley again and had him repeat his directions. Hatch went to Bondi, and contacted Mr Lilley by telephone. A few minutes later they met. After some discussion and the making of some arrangements they went to Mr Lilley's home unit where Mr Lilley gave Hatch a sample of heroin. 13 Hatch and Mr. Lilley went to the Novotel Hotel. Hatch was allocated room 726 to which the men went. Their conversation was recorded. Hatch went to room 738 where the undercover police officer and MacGregor were waiting. Hatch produced the sample and returned to room 726 with Mr. Lilley opening the door. They had a conversation . Mr. Lilley was advised that the purchaser had gone to get the money. It was a conversation concerned with the supply of heroin for money. A little later Hatch went to room 738. He was shown the money. Hatch returned to room 726 and advised Mr. Lilley that he had seen the money and that the purchaser would not part with it until he had the heroin. 14 Hatch went to room 738 again. Mr. Lilley left the Hotel. He was arrested a short time later driving his car along Southern Cross Drive. He was granted bail that day. 15 Hatch and Mr. Lilley were committed for trial and arraigned on 7 March 1997. They pleaded not guilty and a trial date of 6 June 1997 was set. Hatch contended that Mr. Lilley instructed him not to appear. Mr. Lilley denied this and on this point the Judge accepted Mr. Lilley's denial. Subsequently Mr. Lilley applied for a stay of proceedings but this was refused. The appellant denied that this was pre-planned and the Judge accepted Mr. Lilley's denial. Hatch had died shortly after his release from gaol on about 25 February 1999 16 The Judge accepted Mr. Lilley's evidence that he never had a pound of heroin to supply. The Judge also noted that it was never the intention of the police to allow the heroin to be distributed into the community. 17 Attempting to Pervert The Course of Justice There was some dispute about the facts. Mr. Hatch in a statement suggested that all that happened was at Mr. Lilley's instigation whereas Mr. Lilley indicated that it was a joint effort with Hatch asking for a letter. The judge accepted Mr Lilley's evidence. It was beyond argument and not disputed that Mr. Lilley sent Hatch a letter telling him what false evidence to give. With that letter Mr Lilley enclosed a copy of his draft statement of his which was exculpatory and explained away some comments of his recorded on the listening device tape. The tenor of the letter was unmistakable: "Now you've got to learn this statement off by heart and burn it so nobody gets it (cops) OK. You'll be cross examined about it OK. So please read and remember. The only problem we've got is in the tapes is the 13 line I've marked. What you have to say is Ron was in the bathroom having a piss so I don't think he heard me. I was telling Ron how I was going to rip them off for the money. But if you hand yourself in we'll have to sit down and have a good talk. But make sure you learn that statement of mine. I sent $300 the other day. Tell them you were going to rip them off. You kept trying to separate them from the money. You even tryed (sic) dropping the amount down to get it but they wouldn't part with it. So eventually gave up. You only had Ron there as a decoy he didn't know what I was doing. I tryed (sic) to tell Ron a few times what I was going to do but he cut me off and said he didn't want to know what I was up two (sic). The 2 grams I asked him to score for me were for my own use. …..Make sure you get rid of this letter and my statement ---- …..Another reason you were going to rip them was they couldn't go to the police over a drug deal. Before you hand yourself in ring Simon my solicitor 9267 3922" 18 This was a very serious and concerted attempt to pervert the course of justice in relation to a serious crime. The letter and the accompanying documents were obtained by the police when they executed a search warrant on 23 March 1998 at the home of another man in Brisbane and found a plastic bag containing these and other personal papers of Hatch. The draft statement bore date 28 May 1997. It is probable that the letter and the documents were sent to Hatch some time after the trial was aborted in June 1997 and prior to March 1998. 19 The Second Supply Offence On 22 July 1998 Mr Lilley reported to Bondi Police Station pursuant to his bail conditions. He was arrested in relation to the charge of attempting to pervert the course of justice. He was searched and $450 was found in his wallet. He told the police that he had some heroin in packets in his car which was parked opposite the police station. He showed the police where it was. He agreed that it was packaged for sale. There were 13 packages. Mr. Lilley agreed to accompany the police while they executed a search warrant at his flat. Some cannabis and some heroin was seized. There was also a pair of scales and some white paper using for weighing and wrapping the heroin in small packets. Mr. Lilley agreed that he had sold heroin in the Eastern Suburbs that morning. The total net weight of heroin in the prisoner's vehicle and home was 44 grams, the estimated street value of which was $58,000. 20 Mr. Lilley has a long record with some 29 entries some of which include up to eight offences. His adult record stretches back to 1970. He has been fined and placed on recognisance. He has been gaoled frequently for substantial periods for a variety of offences including many break and enter or break enter and steal offences and other offences of dishonesty. In November 1992 he was sentenced to 2 years for possess unlicensed firearm with a minimum term of 18 months to date from 23 September 1992 and in May 1993 to 2 years for supply prohibited drug with a minimum term of 18 months to date from 23 March 1994. The Judge noted that the second and third offences earlier summarised were committed whilst the appellant was on bail. 21 Mr. Lilley was born on 14 September 1948. The Judge, while not regarding the case as unique, said that it was "so exceptional and rare that it justifies the extremely lenient sentence which I will pass". The Judge identified these matters: (a) Mr Lilley had an anti-social personality disorder and a substance related disorder which have been in evidence over three decades of his life. (b) his record does not feature acts of violence. (c) his long history of heroin dependence was unusual and he was compelled to use the drug in a manner consistent with individuals exhibiting substance dependence disorder. He was a true addict who does not and possibly cannot make rational decisions about heroin. (d) He had gone onto a methadone programme for some considerable time past and was doing well on that and intended to continue (e) The parole officer had taken a favourable view of the applicant who had always responded favourably when under the supervision of the probation service. (f) his employer spoke highly of Mr Lilley's reliability and was keen to continue his employment. (g) He was supported strongly by a marital partner of 15 years.

(h) Mr. Lilley can no longer tolerate prison. His age is important in this respect. (i) His health was not good and he suffers (amongst other things) from moderately severe bilateral lower limb odema and varicose veins and skin changes consistent with a diffuse capillaritis. This aggravates the lower limb swelling which requires continuing treatment and attention. 22 Counsel stressed that Mr. Lilley had real prospects of rehabilitation and that these would be prejudiced if he were returned to custody. Reliance was placed on the pleas of guilty, his frankness (as found by the Judge) and his supervision for four years. 23 Taking all these factors in combination they do not in the face of the three serious offences justify the imposition of other than a full time custodial sentence. The sentences imposed do not reflect the objective gravity of the offences. 24 At pp 5-6 of his remarks the Judge said "The prisoner's objective features are quite different from those of Hatch but nonetheless when I consider them they are sufficiently appropriate (sic) to indicate that there should be parity between the prisoner's case and Hatch's case….." 25 This was not a case where the principle of parity was of consequence. Hatch was younger and had a significantly lesser record. He had only spent 7 months in prison. He was normally not of a criminal bent but was easily led. He was subject to a contract on his life and was going to have to serve his sentence on protection spending 23 hours per day in his cell. He had virtually rehabilitated himself at the time of sentence. One aggravating feature was that he had absconded while on bail. Hatch was sentenced in respect of 2 charges namely, offering to supply not less than the commercial quantity of heroin and supplying heroin. Both offences occurred on 13 June 1996. The Judge thought, and correctly so, that they virtually amounted to one charge. Mr. Lilley has two further serious offences, namely attempting to pervert the course of justice and a separate and later offence of supply in 1998. 26 The Judge found that there were special circumstances. I agree. These are prospects of rehabilitation and Mr. Lilley will need extensive supervision after his release. He does have a significant drug problem. 27 This Court exercises a well recognised restraint in dealing with Crown appeals against sentence. Before it intervenes the sentence or sentences must be manifestly inadequate. It is not sufficient that the sentences are light. They must be markedly outside the permissible range. 28 The Court must also bear in mind the principle of totality, that of double jeopardy, the effect of placing a man who has received periodic detention in full time custody and the breaking of expectations. 29 Notwithstanding these features and Mr. Lilley's subjective features, the objective gravity of the offences compels a full time custodial sentence. There is no sufficient discretionary reason which would lead to the dismissal of the appeal. 30 The Court has taken into account on the first offence, the further offences of goods in custody and possess cannabis leaf. 31 The sentences proposed have been substantially modified because this is a Crown Appeal and they involve returning Mr. Lilley to full time custody some seven months after he was sentenced to periodic detention. There is a further element of leniency in that the effect of sentences is to treat the seven months served by way of periodic detention as part of the full time custodial sentence. The sentences proposed are less than those which should have been imposed at first instance. 32 I propose the following orders: (a) Crown Appeal allowed; sentences quashed (b) In lieu of the sentences imposed, Ronald Stephen Lilley is sentenced: (i) for the offence of attempt to pervert the course of justice to a minimum term of imprisonment of one year starting on 22 July 1998 and ending on 21 July 1999 and an additional term of 1 year starting on 21 July 1999. (ii) for the offence of supply prohibited drug in July 1998 to a minimum term of imprisonment of one year starting on 22 July 1998 and ending on 21 July 1999 and an additional term of 1 year starting on 22 July 1999. (iii) for the offence of on 13 June 1996 knowingly take part in the supply of a commercial quantity of heroin to a minimum term of imprisonment for 2 years starting on 22 July 1999 and ending on 21 July 2001 and an additional term of 2 years starting on 22 July 2001.

Costs 34 Mr Lilley asked this Court, irrespective of the outcome of the Crown Appeal, to make a recommendation to the Director-General of the Attorney-General's Department, and the Attorney-General, that a payment be made out of the Suitors' Fund for the reasonable costs of Mr Lilley of the appeal. It was submitted that this would facilitate his application for such a payment and a favourable decision under s.6C of the Suitors' Fund Act 1951. That section reads: Payment not otherwise authorised by this Act 6C (1) If: (a) a party to an appeal or other proceedings incurs or is liable to pay costs in the appeal or proceedings; (b) the party is not otherwise entitled to a payment from the Fund in respect of the costs; and (c) the Director-General is of the opinion that a payment from the Fund in respect of the costs, although not authorised by section 6, 6A or 6B, would be within the spirit and intent of those sections, the Director-General may, with the concurrence of the Attorney General, pay from the Fund to the party such amount towards the costs as is assessed by the Director-General having regard to the circumstances of the case. 35 The primary decision is that of the Director-General. There is no mention in the section of any court having any role. However, under s.6 and s.6B the Court, as relevantly constituted, does have a role in relation to the proceedings specified. It takes the first step by granting an indemnity certificate where appropriate. Section 6A provides that the Director-General may authorise payment of an accused's costs out of the Fund where criminal proceedings are aborted due to the death or protracted illness of the judge, or a two judge bench fails to agree, or an appeal on a question of law against the conviction of an accused convicted on indictment is upheld and a new trial is ordered. He may also authorise payment if the hearing of any criminal proceeding is discontinued and a new trial is ordered for a reason not attributable in any way to disagreement on the part of the jury or to the act neglect or default of the accused or the accused's counsel and the judge grants a certificate to that effect and stating the reasons why the proceedings were discontinued or a new trail ordered. 36 An examination of the provisions of the Act reveals that there are areas where the Court has a role in that it may grant a certificate and others where it has no role, for example, as under s.6C. The accused makes his application direct to the Director-General supported by the reasons why the Director-General should authorise a payment. 37 Counsel for Mr Lilley submitted that with Crown Appeals there were cogent reasons why an accused should receive his reasonable costs. He has already been dealt with by the Courts below, he faces double jeopardy and it is the Crown which seeks to disturb the finality attaching to a judge's sentence. Counsel pointed out that with Crown Appeals, legal aid is almost invariably granted to an accused who seeks it, and that there should not be an economic penalty (or rather no costs allowance) for those who are privately represented. There is force in these arguments. Those and any others should be advanced to the Director-General. The situation which arises as to an accused's costs in Crown Appeals merits the consideration of the Law Reformers. However, this Court should not make the recommendation sought. There is no statutory warrant for such a course. The Act indicates those cases in which the Court has a role. 38 I would add a reference to the Costs in Criminal Cases Act 1967. Section 2 (b) provides that where on appeal, the conviction of the defendant is quashed and the defendant is discharged as to the indictment upon which he or she was convicted the Court may grant to that defendant a certificate under that Act specifying the matters referred to in section 3. The Act does not refer to sentence appeals whether by an accused or the Crown. 39 The refusal of this Court to make the requested recommendation is without prejudice to Mr Lilley's application to the Director-General.

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