NSWNSWCCA
Regina v Parkinson
[2001] NSWCCA 244
Court of Criminal Appeal (NSW)|2001-06-27|Before: Barr J, Howie J
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Source factsCourt
Court of Criminal Appeal (NSW)
Decision date
2001-06-27
Before
Barr J, Howie J
Source
Original judgment source is linked above.
Judgment (5 paragraphs)
[1]
- The applicant submits that the learned sentencing judge erred in not considering the issue of circumstances, particularly in the light of the accumulation of the sentence in respect of count 6.
[2]
- The applicant submits that the learned sentencing judge erred in not properly assessing the issue of totality as it arose from a multiplicity of sentences which are in part accumulated.
[3]
- Both the head sentence and non-parole period are manifestly excessive." 9 The facts of the matter can be briefly stated. The police suspected that the applicant and another man, who were both members of the Life and Death Motor Cycle Club, were engaged in the supply of amphetamine. In a controlled investigation undercover operatives were used to target the applicant and the other man by acting as purchasers of the drug. The operation resulted in the arrest and charging of the applicant with the offences for which he was sentenced by Judge Bellear. Both the drug offences and the firearms offences arose in the course of the contact between the undercover operatives and the applicant, and from what was found in the possession of the applicant when his premises were searched by police after his arrest. 10 The first count of supply related to the exchange of 54.8 grams of amphetamine for two compliance plates from a motor vehicle which is said to be valued at $2,000. Although the normal street purity of amphetamine is said to be 3-4%, the purity of the drug the subject of this charge was 7% and, therefore, the drug could be cut down by some other substance to produce 118 grams of amphetamine which could be resold at street level. 11 The second count related to the sale of 53.2 grams of amphetamine for the price of $6,400. The increased price paid for the drug on this occasion was because of its increased purity. The drug was 38% pure which meant that it could be cut seven times to give 371 grams of amphetamine which could be sold at street level. 12 The third count concerned the discovery of amphetamine in the possession of the applicant after his arrest. That drug was 44% pure resulting in 396 grams of normal grade amphetamine. 13 The fourth count related to the supply of 988.2 grams of amphetamine for $24,000. This drug was 8% pure and could have been converted into 1976 grams of street level amphetamine. In total the applicant had supplied to police or had in his possession what amounted to 2,851 grams of street level amphetamine. 14 The fifth count in the indictment related to the fact that on 17 March 2000, following his arrest after the supply which was the subject of the fourth count, the applicant's house was searched and in the laundry a container was found in which was 400 grams of liquid with a white sediment. This finding revealed that the applicant was in the course of extracting pseudoephedrine as part of the manufacture of amphetamine. 15 The sixth count on the indictment related to the sale by the applicant of a semi automatic pistol to an undercover police officer for the sum of $2,500. 16 The supply offences on the Form 1 involved three separate supplies of about 26 grams of amphetamine each at a cost of $3,500. The sale of the automatic pistol netted the applicant $2,500. Another pistol was found in the applicant's kitchen wrapped in cloth. The $2,000 found by police in the applicant's home was believed to be the proceeds of previous drug supplies. 17 A submission was made to his Honour that the sentence ought to be discounted by reason of the fact that during the course of negotiations between the applicant and the undercover police officer, the applicant had been "talked up" to the large amount supplied on 17 March. Judge Bellear determined that no such discount was appropriate on that basis and that finding has not been challenged in this Court. 18 The applicant is aged 37 years. He has no prior convictions. He is in a good relationship with members of his own family and receives strong support from his mother. The applicant has two sons from a previous relationship, one of whom is aged 10 years and has severe developmental and behavioural problems. He is under the care of a psychiatrist and schizophrenia is suspected as the cause of his problems. The applicant has regular contact with his former partner and the children. 19 The applicant had an unremarkable upbringing, except that after his father left them, the family became itinerant. The applicant left school at the age of 14 years. He was until August 1999 working as a crane driver, often up to seven days a week. Unfortunately the applicant was involved in a motor vehicle accident from which he suffered serious injuries which precluded him from continuing with his former occupation. The applicant, thereafter has been unemployed. He told a psychologist, who prepared a report for the sentencing proceedings, that he was in constant pain as a result of the accident. He has never used illegal drugs. 20 In the pre-sentence report the following paragraph is found under the heading "Attitude to the Offence": "The offender appears to see the offence as a business transaction, a means of obtaining money following his accident when he was not able to return to his employment as a crane driver. He describes his part in the offences as 'the courier'. He claims his partner who was drug addicted and needing money, encouraged him to engage in these illegal activities and was instrumental in introducing him to the people who provided the goods. Mr Parkinson was very matter of fact when discussing the offences and did not seem to appreciate the illegality or anti-social nature of his actions." 21 The first ground of appeal is that his Honour erred in relation to the discount granted to the applicant for his pleas of guilty. In sentencing the applicant, Judge Bellear noted that he had pleaded guilty in the Local Court to these offences and referred to a submission made by counsel appearing for the applicant that he was entitled to the benefit of his early pleas in accordance with the guideline judgment of this Court in R v Thompson and Houlton (2000) 49 NSWLR 383. In his remarks on sentence His Honour said: "I am satisfied that the prisoner's pleas of guilty were entered at the earliest available opportunity. I am satisfied that those pleas were entered in the face of an extremely strong case. I do accept however that the enormous money and time saved by this state that would have been spent had this prisoner stood his trial in each matter that must warrant some leniency." 22 Judge Bellear determined that the appropriate discount was 5 per cent for the utilitarian benefit of the pleas on the basis that the Crown case was a strong one and that there was an inevitability about the conviction of the applicant which could not be avoided. His Honour found that the applicant was not entitled to any benefit on the basis of remorse. He noted that the applicant had failed to assist the authorities regarding other members of the motor cycle club and the seriousness of the offences. 23 In my respectful opinion his Honour was clearly in error in the way he approached the determination of the discount for the utilitarian benefit of the pleas of guilty. The range of the discount appropriate for this factor was held in Thompson and Houlton to fall between 10-25 per cent, the primary consideration for determining the extent of the discount being the timing of the plea. After referring to the fact that the actual discount to be given will be a matter for the discretion of the sentencing judge, the Chief Justice said this about the factors to be taken into account when determining the discount at 428 para 154-155: "There are however two circumstances which will generally affect the appropriate level of discount in a particular case: (i) The time at which a plea is entered. A plea entered at committal has a more significant utilitarian benefit than a plea entered at first listing, which in turn has the greater benefit than a plea entered at the beginning of trial. (ii) The complexity of the issues about which evidence will have to be gathered and adduced affects the value of the plea. The greater the difficulty of assembling the relevant evidence and the greater the length and complexity of the trial, the greater the utilitarian value of a plea. The top of the range would be expected to be restricted to pleas at the earliest possible opportunity and should not be given, save in an exceptional case, after a matter has been set down for trial. A discount towards the bottom of the range is appropriate for late pleas, e.g. on the date fixed for trial, unless there are particular benefits arising from the prospective length and complexity of the trial.