Regina v Meres; Regina v Dineen

Court of Criminal Appeal (NSW)|2003-07-03|Before: Grove J, Ipp JA, Shaw J

CITATION : Regina v Meres; Regina v Dineen [2003] NSWCCA 193 HEARING DATE(S) : Thursday 3 July 2003 JUDGMENT DATE : 14 July 2003

JUDGMENT OF : Grove J at 1; Ipp JA at 46; Shaw J at 47 DECISION : (Meres) Appeal dismissed.; (Dineen) Appeal allowed - new sentence substituted

CATCHWORDS : CRIMINAL LAW AND PROCEDURE - SENTENCE - ONGOING DRUG (AMPHETAMINE) TRAFFICKING - MULTIPLE SMALL SUPPLIES - PROXIMITY OF SCHOOL TO HOUSE WHEREIN DEALING ARRANGED AND CARRIED OUT - PARITY - SENTENCING PATTERNS - NO SPECIAL POINT OF PRINCIPLE LEGISLATION CITED : s25A Drug Misuse & Trafficking Act 1985 R v Bloomfield 1998 44 NSWLR 734 R v CBK [2002] NSWCCA 457 R v Khaled [2001] NSWCCA 169 CASES CITED : Lowe v The Queen 1984 154 CLR 606 Pearce v The Queen 1998 194 CLR 610 Postiglione v The Queen 1997 189 CLR 295 R v Thomson 2000 49 NSWLR 383 PARTIES : Regina v Mark Meres Regina v Kathleen Dineen FILE NUMBER(S) : CCA 60100/03; 60172/03 D. Woodburne (Crown) COUNSEL : P. Nematalla (Applicant Meres) C. Bruce (Applicant Dineen) S.E. O'Connor (Crown) SOLICITORS : M. Dalitz (Meres) D. J. Humphreys (Dineen)

LOWER COURT District Court JURISDICTION : LOWER COURT 02/21/1051; 02/21/1053 FILE NUMBER(S) : LOWER COURT Gibson DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60100/03 60172/03

IPP JA GROVE J SHAW J

Monday 14 July 2003 REGINA v MARK ARTHUR MERES REGINA v KATHLEEN FRANCES DINEEN

1 GROVE J: These two applications for leave to appeal derive from circumstances which are to an extent common however the applicants were separately represented and their arguments were independent of each other. It was convenient to hear argument successively and in the presence of both applicants. 2 In July 2000 following numerous complaints from members of the public a police operation was mounted to investigate supply of prohibited drugs from residential premises at Bidwill. These were located two doors from a primary and pre-school. The operation included the use of electronic surveillance including, pursuit to warrant, telephone intercepts and listening devices. Undercover police were authorized to engage in "controlled operations" seeking to and purchasing illicit drugs. 3 The occupants of the premises included the applicants, Joanne Dineen (a younger sister of the applicant Kathleen Dineen) and several other family members including school aged children. 4 The applicants and Joanne Dineen appeared for sentence before Gibson DCJ at Penrith District Court, and on 27 September 2002 respective impositions of sentence occurred. 5 Mark Arthur Meres pleaded guilty on arraignment to one count of supplying a prohibited drug (methylamphetamine) on an ongoing basis between 20 April and 15 May 2001, contrary to s25A of the Drug Misuse and Trafficking Act, 1985. Unless otherwise stated, section references are to that statute. To be taken into account on sentence for that offence were four charges on a Form 1, two charges of knowingly taking part in the supply of amphetamines, one charge of possession of the same drug and one charge of goods in custody reasonably suspected of having been stolen or unlawfully obtained (a motorcycle). 6 He was sentenced to imprisonment for four years nine months with a non-parole period of three years, both sentence and non-parole period to commence on 6 December 2002, that date coinciding with the expiry of a sentence of twelve months imprisonment which he was required to serve for an unrelated offence. It should be noted that Meres had been in custody for six months prior to the commencement of that unrelated sentence and, as that custody was referrable to the current matters the sentencing judge expressly acknowledged an allowance of six months which was "owed" to the applicant. It is therefore appropriate to attribute a notional assessment of five years and three months to represent the head sentence. 7 Kathleen Dineen was presented on indictment charging one count of supplying a prohibited drug (methylamphetamine) on an ongoing basis between 4 April and 16 May 2001, contrary to s25A and, in the alternative, of supplying that drug on 4 April 2001 contrary to s25(1) and five further counts of similar offences contrary to s25(1) committed on 8, 14, 22 and 30 April and 16 May 2001. The prescribed maximum penalty for an offence in s25(1) is fifteen years imprisonment. The prescribed maximum penalty for an offence in s25A is twenty years imprisonment. 8 She pleaded not guilty to the count of ongoing supply but guilty to the alternative of supply as well as pleading guilty to the five further counts similar to the alternative. The Crown accepted these pleas of guilty in discharge of the indictment. 9 His Honour was asked to take into account nine further offences on a Form 1, eight charged supply of methylamphetamine and one charged supply of cannabis. 10 In the event, Kathleen Dineen stood for sentence on six counts of supplying methylamphetamine contrary to s25(1). On count seven (the offence of 16 May 2001) she was sentenced to six years six months imprisonment with a non-parole period of four years, both to date from 6 June 2001 upon which date she had been taken into custody. The Form 1 offences were taken into account in this imposition. On counts two and three (the offences of 4 and 8 April) she was sentenced to concurrent fixed terms of eighteen months imprisonment. On counts four and five (the offences of 14 and 22 April) to concurrent fixed terms of two years and on count six (the offence of 30 April) to a fixed term of three years. All the fixed terms were directed to commence on 6 June 2001. 11 Joanne Dineen was sentenced upon one count of ongoing supply of amphetamines (between 20 April and 16 May 2001) contrary to s25A and she was sentenced to four years imprisonment with a non-parole period of two years. Four further charges of supplying amphetamines (on dates between 11 April and 16 May 2001) contrary to s25(1) were taken into account on a Form 1. 12 All the offenders were habituated to amphetamines, however, they were suppliers in what his Honour described as "a busy and thriving operation". Some challenge to that observation was offered in a written submission on behalf of Kathleen Dineen when it was stated that it was worthwhile to look at the evidence of the undercover police to appreciate the "fairly loose" operation that it really was. It was contended: "The usual scenario was that an undercover operative would attend at the subject premises and seek to purchase amphetamines from one or more of the offenders. On taking cash from the operative for the amphetamines, on the basis that the offender (s) had no money to purchase the amphetamines, one or more of the offenders would leave the subject premises either by pushbike or car and return a short time later with the amphetamines. It is clear on the evidence that the offenders had a supplier (s) nearby and rarely did they have the drugs required by the operative on the premises." 13 There was no finding about the cash liquidity situation of the offenders nor the source from which the drugs emanated. It may be mentioned for example that on 15 May Meres produced plastic bags of amphetamines from within the premises, one of which he then sold to an undercover operative receiving $170 in exchange. When arrested at the premises on 6 June he was in possession of a small satchel containing amphetamines. The facts are as consistent with the drugs being "warehoused" somewhere or with someone as being supplied by someone else. Be that as it may, I reject the submission that the operation was little different from that of "street dealers". 14 The correctness of his Honour's finding that it was a busy and thriving operation is demonstrated by the sheer quantity of intercepted telephone contacts. I accept that not every call would necessarily relate to drug supply but to a single telephone service in what gave the appearance of being a suburban dwelling about 3,500 calls were monitored in the period between 30 March and 6 June 2001. In particular, Kathleen Dineen was identified as agreeing to supply various quantities of drugs ranging from 1.75 grams to 14 grams. A Sergeant Clarke gave evidence, accepted by his Honour, enabling translation of argot into statements about quantities of particular drug. It was contended that his Honour erroneously referred to single dealings of amounts up to an ounce but, even so, criminality is not always to be measured by quantity (although in some cases, of course, it may be a principal factor and there are statutory scales of traffickable, commercial etc.) but in these cases it is the repetitive nature of illicit dealing, in the case of Meres, charged with ongoing supply and in the case of Kathleen Dineen the multiple instances of her conduct. His Honour's description of the offenders having gone "into business selling or supplying drugs cold bloodedly for reward" was manifestly accurate.

MERES 15 I have mentioned above some of the facts pertaining to the applicant Meres. On occasions he received money from undercover operatives and departed by bicycle (sometimes leaving his watch as an earnest) and returned shortly afterwards with the requested drugs. 16 The first ground of appeal asserts that the applicant has a justifiable sense of grievance arising out of the disparity between sentence received by him and his co-offender Joanne Dineen. The principles of approach concerning such a ground are well established and do not require restatement: Lowe v The Queen 1984 154 CLR 606; Postiglione v The Queen 1997 189 CLR 295. 17 Attention was drawn to a finding of the sentencing judge that: "The main facts in the cases of Joanne Dineen and Meres do not vary to any great extent." 18 That finding may be accepted but there were marked differences in the subjective cases to be taken into account in relation to the respective offenders. Joanne Dineen had pleaded guilty before the Local Court and was committed for sentence pursuant to s51A of the Justices Act. Meres had been the subject of committal proceedings and pleaded guilty some time thereafter when he was presented for arraignment. The "utilitarian" value of their pleas of guilty were assessed by his Honour at 20 percent and 13 percent respectively: R v Thomson 2000 49 NSWLR 383. There is no error in those assessments nor is the difference capable of giving rise to reasonable complaint. 19 In addition his Honour expressly found that the early aspect of Joanne Dineen's plea of guilty was itself some evidence of her remorse. Importantly, there was a stark difference between the offenders on the issue of efforts at rehabilitation. A pre sentence report conveyed the applicant's stated intention to make positive changes but this included what seemed to be a proviso that he "agreed to attend for drug counselling or undertake a residual drug rehabilitation programme if so directed". By way of contrast, Joanne Dineen had entered a methadone program, attended counselling and Narcotics Anonymous meetings and sought to further her general education. Reference was made to Meres having been in custody but both he and Joanne Dineen were in custody between arrest in June 2001 and sentence which was finally imposed on 27 September 2002. 20 The positive effort on the part of Joanne Dineen was noted by his Honour against a background of "a long record for possession of drugs as well as violence and dishonesty" and his comment that she would, at first glance be a bad prospect for rehabilitation is readily understandable. Nevertheless, Joanne Dineen had embarked upon the efforts mentioned. 21 The applicant challenged a finding attributed to the sentencing judge that he had "a bad record in relation to possession" but as the Crown Prosecutor pointed out that does not complete the quote from the remarks on sentence which referred to the applicant having "a bad record in relation to possession, violence, driving offences and dishonesty and his response to supervision has been bad". 22 As above stated the effective sentence received by Meres was four years nine months (notionally five years three months) with a non-parole period of three years, whereas Joanne Dineen received four years with a non-parole period of two years. 23 The applicant's "parity" argument should be rejected. 24 The second ground of appeal related directly to the quantification of the "discount" for the guilty plea (13 percent). This was also raised in connection with contrast of 20 percent received by the co-offender Joanne Dineen. It might be mentioned on this aspect that an assessment of 10 percent was made in relation to the sentence of Kathleen Dineen. 25 In Thomson @ 418 two circumstances were identified as generally affecting the level of discount in a particular case, the timing of the plea and the potential complexity and length of the trial, the need for which is avoided by a plea of guilty. The applicant contends that the second of these required that he receive a discount, at least to the same level as Joanne Dineen. Given the evidence available of the direct dealing by the applicant with the undercover officers, the issues at trial would not seem to fit any category of more than moderate complexity. The length of trial would depend largely upon forensic decision by the Crown as to how much background (particularly surveillance, telephone intercept or listening device evidence) was appropriate to be tendered. 26 This ground is not made out. 27 The third ground asserted that the sentence was manifestly excessive. 28 It needs to be observed that s25A has been recognized to have been introduced to provide a strong deterrent to those who may be tempted to engage in an ongoing trade in drugs: R v Khaled [2001] NSWCCA 169. An obvious target of the legislation is the dealer who might claim that his or her offence (viewed in isolation) is relatively minor but who is, in reality, a persistent trafficker. 29 The applicant's prior record to which the sentencing judge made the reference earlier set out, operated towards disentitlement to lenience. It was a serious matter of aggravation that at the time of the commission of these offences the applicant was currently subject to a term of imprisonment, suspended upon his having entered a recognizance to be of good behaviour. 30 As has become common in these cases, the statistics collated by the Judicial Commission of New South Wales were extracted. It does not seem to me to be of utility to recount the variety of sentences observable in some samples of cases relied upon by the applicant and by the Crown. The head sentence (assuming the notional five years three months) is slightly more than one quarter of the maximum prescribed by statute. That sentence also included a reflection for the matters on the Form 1 which, in the circumstances, would not be merely token. As abovementioned, the applicant's record disentitled him to particular leniency and there was the matter of serious aggravation. The sentence was within discretionary range and not manifestly excessive.

KATHLEEN DINEEN 31 A ground of appeal was simply expressed in an assertion that the sentence imposed was manifestly excessive and that some other sentence was warranted. 32 In support of the ground, counsel for the applicant drew attention to a number of incidental factors. In distinction from both co-offenders Kathleen Dineen was not convicted of an offence against s25A although given the six counts and the nine matters on Form 1, it was not contended that her offences should be regarded as isolated actions. The amount of drug in every case was very small. The reference to as much as an ounce for an individual "deal" in the remarks on sentence was acknowledged to be erroneous. 33 The applicant was a woman of thirty eight years being imprisoned for the first time. She had previously been convicted of possession of drugs once as recently as October 1999, but the two previous occasions were as long ago as thirteen years to 1989 and sixteen years to 1986. On each of the prior occasions she had been dealt with by fine. It may be observed, although parity was not raised as a specific ground, that her record provided a favourable contrast as against those of her co-offenders. 34 The learned sentencing judge found that this applicant was more actively involved than the others. All of her offences were evidenced by agreements to supply made in telephone calls which had been intercepted. The statement of facts tendered revealed that between 20 April and 16 May undercover operatives attended the premises on eight occasions and purchased 3.5 grams of amphetamine on each occasion pursuant to these calls. The statement of facts does not involve the applicant in the physical exchange of money and drugs. I recognize that the total of intercepted calls previously stated refers to a span of time longer than that within which the applicant's offences were committed, and, as I have said, it should be accepted that not every call to the premises related to drugs. However, a flavour of her participation can be obtained from the transcript of an intercepted conversation which gave rise to the first and second (alternative) counts charged against her. A call to the premises was received at about 7.50 am on Wednesday 4 April: "DINEEN: Yeah. CALLER: Hello, is that you Kath? DINEEN: Yep. CALLER: It's Rhonda. DINEEN: Yeah I haven't got nothing right now but after the kids go to school. CALLER: All right, 'cause um he wants sixteen. DINEEN: Yeah. CALLER: All right, and he needs it by nine o'clock. DINEEN: Yeah all right. CALLER: All right? DINEEN: Yep. CALLER: Is that okay? DINEEN: Yep. CALLER: All right darl. Okay, bye-bye." 35 Against that background debate between counsel for the applicant and the Crown focussed upon whether the imposition was so far outside of an established pattern of sentencing to call for intervention and substitution of a lesser term. The argument, as a matter of particularity, was directed to the longest term which had been imposed upon count seven. 36 The Court was invited to look at statistics collated by the Judicial Commission and at sampled particular cases. The Crown called to attention that bald statistics have been said to be of limited use: R v Bloomfield 1998 44 NSWLR 734, but in that case it was also observed that the statistics may provide an indication of general sentencing trends and standards, assist in assuring consistency and be useful in determining whether a sentence is manifestly excessive or manifestly inadequate: @ 739. 37 Statistics compiled up to March 2003 revealed that of 246 offenders charged with supply of amphetamines contrary to s25, the highest head sentence of six years imprisonment was imposed on two offenders only. Of 240 offenders (I do not know why the number is less than the number of head sentences surveyed) the highest non-parole period was four years six months imposed upon a single offender, the next highest three years imposed on nine other offenders. It is to be observed that the statistics are "rounded up" and the highest sentence may actually only be within the twelve month range leading up to the number of years stated. 38 As I have remarked, the Crown accepted a plea of not guilty to an offence against s25A when accepting the pleas of guilty to the offences against s25 in full discharge of the indictment. In R v CBK [2002] NSWCCA 457 Wood CJ at CL observed: "It needs to be clearly understood that section 25A offences are considerably more serious than section 25 offences, as is indicated by the increase in the maximum available penalty. An offender charged with a section 25A offence cannot rely upon an argument that the act of supply was an isolated event, nor can (he or she) expect to receive a sentence of the kind which may be appropriate for a single offence of supply. " 39 There is no question, of course, of the applicant's offences being an isolated event. They were ingredients of a thriving business. Nevertheless, given that an offence against s25A is the more serious, it is instructive to note that a statistical collation of sentences for s25A offenders (as at March 2003 for amphetamines) shows that of forty nine offenders the highest term was five years imprisonment received by two offenders and that the highest non-parole period was three years received by three offenders (out of forty four). S25A is a special enactment targeted at ongoing dealing in drugs, including small repetitive dealing. 40 It must be recognized that the upper extremity of a statistical range does not represent the maximum appropriate for the worst offence and/or the worst offender. A worst case has the potential to attract the statutory maximum. Nor is multiplicity of offences with the inherent possibility of accumulation, to be ignored. Nevertheless the whole of the information before the Court including the sentencing judge's findings as to the facts of these offences and the subjective circumstances of the applicant lead me to conclude that, as against established sentencing patterns, the imposition of six years six months imprisonment with a non-parole period of four years is excessive to a level at which the intervention of this Court and a less severe sentence is warranted. 41 The structure of the sentences for the various counts which I have set out above suggests that the approach to sentencing for multiple counts directed by Pearce v The Queen 1998 194 CLR 610 may not have been implemented. However, the fixed term sentences on counts two, three, four and five have been fully served and the sentences are expired. The only current sentences consist of three years fixed term imposed on count six and on count seven, six years six months imprisonment with a non-parole period of four years. The nine matters on Form 1 were taken into account in fixing the latter sentence. 42 In relation to the fixed term sentences it is apparent that his Honour had increased the term successively to reflect a greater seriousness with which he regarded repetition. I would not vary the sentence on count six. I would assess an appropriate sentence on count seven, taking into account the Form 1 matters, as five years imprisonment. I would find special circumstances similar to his Honour and specify a non-parole period of three years. 43 I propose the following orders:

IN THE APPLICATION OF MERES: 44 Application for leave to appeal against sentence granted, but appeal dismissed.

IN THE APPLICATION BY KATHLEEN FRANCIS DINEEN: 45 (1) Application for leave to appeal against sentence granted. (2) Appeal allowed. (3) Sentence imposed in the District Court on count seven quashed and in lieu thereof, the applicant sentenced on that count to five years imprisonment to date from 6 June 2001 and to expire on 5 June 2006, with a non-parole period of three years to date from 6 June 2001 and to expire on 5 June 2004. (4) Sentences on other counts to stand. (5) First date of eligibility for parole specified as 5 June 2004. 46 IPP JA: I agree with Grove J. 47 SHAW J: I agree with Grove J. **********

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