Regina v Robert Brian Grbin

LOWER COURT District Court JURISDICTION : LOWER COURT 03/21/3097 FILE NUMBER(S) : LOWER COURT Maguire DCJ JUDICIAL OFFICER :

• 9 - IN THE COURT OF CRIMINAL APPEAL 60097/04

LEVINE J DUNFORD J HOWIE J

TUESDAY, 29 JUNE 2004 REGINA v ROBERT BRIAN GRBIN Judgment 1 DUNFORD J: This is an application for leave to appeal by Robert Brian Grbin against the sentence imposed on him by his Honour Judge B R Maguire QC in the District Court at Campbelltown following his plea of guilty to one count of ongoing supply of methylamphetamine contrary to s 25A(1) of the Drug Misuse and Trafficking Act 1985, which offence carries a maximum penalty of 20 years imprisonment and/or a fine of $385,000.

2 After taking into account a number of matters on a Form 1, his Honour sentenced the applicant to imprisonment for two years and eight months and fixed a non-parole period of two years.

3 The further offences taken into account on the Form 1 were deemed supply of ecstasy, possession of methylamphetamine for the purpose of supply, deemed supply of methylamphetamine, deemed supply of ecstasy and unlawful possession of testosterone steroid tablets.

4 The applicant performed security duties at the entrance gate to Holsworthy Army Barracks. I note that he was a security guard and not a member of the Armed Forces.

5 On the late afternoon of Friday 29 November 2002, an undercover police officer using the name of "Sean" passed through the security gates staffed by the applicant and another security officer. Sean took the applicant aside and indicated he wanted to buy some "whizza". After the applicant had satisfied himself there was nothing untoward, he led Sean to a nearby car from which he took two small resealable plastic bags containing 1.19 grams of methylamphetamine which he handed to Sean in exchange for $80. Before parting and referring to their earlier conversation between the two of them before the applicant supplied the drug, the applicant said, "Sorry for running you through the third degree but I didn't know if you were an MP or not."

6 On the late afternoon of Monday 2 December 2002, Sean drove to the security gates at Holsworthy Army Barracks where the applicant was working. Upon asking the applicant if there was "any chance of scoring the same today?" he was ushered into the security booth of the gates. There the applicant handed him two resealable plastic bags containing 1.11 grams of methylamphetamine in exchange for $80.

7 During the course of their conversation, the applicant said: "Mate, I can get you whatever you want, Eccy's or grass. I can get you as much speed as you want, I get it straight from the maker, I'm not gonna bullshit ya, it's cut with glucose, what you get is a third of the real stuff."

8 It was agreed that Sean would return the next day and obtain another $70 worth of drugs. The applicant gave Sean his mobile telephone number and told him to send an SMS message before coming because "there's been some guys from here have been smashed."

9 The following afternoon, Tuesday 3 December, Sean drove to the gate at the barracks where the applicant was working. Inside the security booth near the boom gate the applicant gave Sean a resealable plastic bag containing 1.70 grams of methylamphetamine in exchange for $70. The applicant said he had more if he wanted it, but Sean said he did not have the money. The applicant also said that he could get grass and ecstasy if Sean wanted it in the future, that it was good and came from The Netherlands.

10 Later that afternoon at about 7pm the applicant was arrested. Inside his security booth were found four white ecstasy tablets in the shape of four-leaf clovers and a bottle containing testosterone steroid tablets. In a small pouch attached to his car key ring, a small resealable bag with .51 grams of methylamphetamine was found. 11 At the same time as his arrest, other police went to his house at Albion Park with a search warrant where they found three resealable bags containing four grams of methylamphetamine in the refrigerator and sixteen ecstasy tablets totalling 3.85 grams in two plastic bags in a sunglasses case in the bedroom.

12 On his arrest the applicant told the police where to look for drugs in his house during the search and following his arrest he took part in a recorded interview in which he admitted the offences, although he claimed he was only supplying a few mates, a statement which his Honour did not accept, and there was evidence which justified his Honour's attitude in that regard.

13 He pleaded guilty in the Local Court and was committed for sentence where he adhered to his plea. Both he and his wife gave evidence on sentence. The applicant admitted his guilt and expressed remorse for his actions.

14 In his Remarks on Sentence, his Honour noted that the applicant was born on 7 August 1965 and was, at the time of sentencing, aged thirty-eight years. He had been married for eighteen years. He had three children, aged 18, 15 and 8. The oldest was in part-time work and studying, the second was at school and the third was also at school but had problems, which I will refer to shortly.

15 The applicant had previous convictions more than twenty years ago for serious offences, namely, armed robbery, two counts of break enter and steal and two counts of larceny of a motor vehicle. He had spent some time in juvenile institutions and with remissions had served eight months in an adult gaol before being released to parole. Those offences were in 1982 and 1983. Since then the applicant had married and with his wife was raising his family.

16 His Honour also accepted that his wife suffered from clinical depression and was receiving treatment for it.

17 The applicant had been in regular employment but had lost his job at the Holsworthy Barracks when arrested. He had, however, obtained other work in the meantime. Apart from a Mr Bedoe, who gave evidence before his Honour as to the applicant's good character, there were a number of testimonials before the sentencing judge attesting to his character and generosity.

18 His Honour noted that the applicant pleaded guilty at the earliest opportunity but went on to observe that the prosecution case against him was a strong one and noted he had not identified his suppliers or his other customers.

19 This suggests that his Honour failed to regard the utilitarian value of the plea as something separate from the value of the plea as evidencing remorse and contrition.

20 While the strength of the prosecution case is relevant to the plea of guilty as evidence of contrition, authority establishes that it is not relevant to the utilitarian value of the plea: R v Thomson and Houlton [2000] NSWCCA 309, 49 NSWLR 383 at [137] and see also R v Way [2004] NSWCCA 131 at [18] and [149]. Moreover, his Honour made no express reference to a discount for the plea of guilty, particularly for its utilitarian value nor did he quantify it in any way.

21 In R v Thomson and Houlton at [160], Spiegelman CJ, with whom the other members of the Court agreed, drew a distinction between the utilitarian value of such a plea and its relevance to evidence of contrition, and witness vulnerability and other considerations, and laid down the following guidelines: "(1) A sentencing judge should explicitly state that a plea of guilty has been taken into account. Failure to do so will generally be taken to indicate that the plea was not given weight.

(2) Sentencing judges are encouraged to quantify the effect of the plea on the sentence insofar as they believe it appropriate to do so. This effect can encompass any or all of the matters to which the plea may be relevant ... ... but particular encouragement is given to the quantification of the (utilitarian value) ...

(3) The utilitarian value of the plea to the criminal justice system should generally be assessed in the range of ten to twenty-five per cent discount on sentence. The primary consideration determining where in the range of a particular case you fall is the timing of the plea." 22 Previously, when dealing specifically with the utilitarian value of the plea, his Honour had said, at [153]-[154]: "The determination of where within such a range the discount should fall in a particular case is a matter for the discretion of the sentencing judge. There are, however, two circumstances which will generally affect the appropriate level of discount in a particular case: (i) The time at which the 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 a 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." His Honour concluded his judgment by saying at para 162: "The purpose of identifying a discount range is to improve the transparency of the (sentencing) process and to alter the widespread perception that there is no benefit from an early plea." 23 In the present case, not only does his Honour appear to have confused the strength of the Crown case with the utilitarian value of the plea, but he has not indicated that any discount has been allowed for the utilitarian value of the plea or the extent of any such discount. In these circumstances, I am satisfied that his Honour fell into error.

24 The other ground relied on by the applicant is his Honour's failure to find special circumstances justifying a variation in the ratio between the head sentence and the non-parole period indicated by s 44(2) of the Crimes (Sentencing Procedure) Act 1999, particularly having regard to the hardship occasioned to the applicant's young son and the rest of the family by reason of the son's disabilities.

25 There was evidence before his Honour that the son Jed, now aged eight years, has been diagnosed as suffering with autism, attention deficit hyperactivity disorder and a moderate developmental disability.

26 The child is under medical supervision and takes medication for his disorder. This is a clinical autism and not one of the milder forms that are currently recognised. His form of autism is not that the child is passive and inactive, but rather the opposite and he requires constant supervision and management. He was, for a time in a satellite school but has now been admitted to a special class at the local public school. Persons with his disorder have a disconcerting habit of running away without notice and have little or no comprehension of social rules and normal road rule behaviour, and he requires constant supervision.

27 There was also evidence before his Honour that there was a special bond between the applicant and his son which was of great benefit to the management and supervision of the son, and evidence filed for the hearing of the appeal indicates that his son is missing his father and his father's absence is making him more difficult to manage. This evidence, of course, is only relevant in the event that the Court comes to re-sentence.

28 The general rule is that hardship to members of an offender's family is generally irrelevant and can only be taken into account in highly exceptional circumstances, and the care of young children is not normally an exceptional circumstance: R v Edwards (1996) 90 A Crim R 510 at 516 where Gleeson CJ said: "The real difficulty about a case such as the present, as many other cases in which imprisonment of an offender causes hardship to a third party, is to identify a ground upon which they can properly and relevantly be regarded as exceptional. Regrettably, causing hardship to third parties by imprisonment of an offender is only too common." 29 However, there are cases where having regard to the particular circumstances the case has been held to be exceptional, for example R v Maslen (1995) 79 A Crim R 199 where the child was grossly disabled, and R v Bednarz [2000] NSWCCA 533 where, once again, the child was disabled and it was held that the particular difficulties of the child constituted exceptional circumstances justifying a finding of special circumstances and reduction in the non-parole period.

30 His Honour accepted the medical evidence in relation to the son's condition and referred to the fact that it is only in a case of exceptional circumstances that a crime of this nature can go unpunished by a full-time custodial sentence, but said that he found no such exceptional circumstances existed here and made no specific reference to special circumstances although the issue had been raised in submission.

31 In my view, the circumstances here were not sufficiently exceptional to justify a non-custodial sentence, I consider that it was sufficiently exceptional to justify some consideration being given to it, and a suitable case to justify a finding of special circumstances.

32 As I say, his Honour did not refer specifically to special circumstances, and although there is no obligation to do so, R v Simpson (2001) 53 NSWLR 704, it is desirable that judges at first instance do refer specifically to whether they have considered special circumstances, whether they find them established, and if so, whether or not they find such special circumstances sufficient to justify a variation of the ratio referred to in s 44(2): R v Brindley (1993) 66 A Crim R 204.

33 As I say in this case I consider that the son's condition, and the need for his father's assistance in his supervision and management constituted an exceptional circumstance such as to justify a finding of special circumstances and a reduction in what would otherwise have been the non-parole period.

34 There is, in my view, another matter which is relevant to a finding of special circumstances in this case and that is the fact that, having committed a number of serious offences when young, aged seventeen and eighteen, and having served a gaol sentence in respect of those offences, the applicant has apparently led an honest and law-abiding life for over twenty years since then, during which time he has married and had been raising a family, and throughout that time has been in regular employment. Such rehabilitation is to be encouraged even if he ultimately falls, as he has done on this case.

35 In my view, the errors disclosed by his Honour render it appropriate for this Court to re-sentence.

36 In my view, an appropriate starting point for this offence was a sentence of three and a half years imprisonment. From that I would allow a discount of twenty-five per cent for the utilitarian value of the early plea of guilty and also referable to the other elements of remorse and so on. This would reduce the sentence to thirty-one-and-a-half months, which is almost the same as the head sentence imposed by his Honour of two years and eight months, which I would not vary. However, in my view, the son's condition and the applicant's rehabilitation over 20 years constitutes special circumstances, and I would reduce the non-parole period to one year.

37 I would, therefore, propose that the Court grant the applicant leave to appeal. I would confirm the head sentence of two years and eight months, but I would quash the non-parole period and in lieu thereof I would fix a non-parole period of one year, commencing on 29 August 2003 and expiring on 28 August 2004.

38 I would further order that on that date the applicant be released on parole subject to the conditions prescribed by the Regulations.

39 LEVINE J: I agree with the orders proposed by Dunford J and his reasons therefore.

41 LEVINE J: The orders will be as proposed by his Honour.

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