REGINA v. SAMA [2005] NSWCCA 191

Thomson & Houlton (2000) 49 NSWLR 386 Carter [2001] NSWCCA 245 Sutton [2004] NSWCCA 225 CASES CITED: Tran [2004] NSWCCA 366 CBK (2002) 135 A. Crim. R. 260 Smiroldo (2000) 112 A. Crim. R. 47 Mandica (1980) 4 A. Crim. R. 34

Crown: W. Dawe, QC. COUNSEL: App: J. Stratton, SC.

Crown: S. Kavanagh SOLICITORS: App: S.E. O'Connor

IN THE COURT OF CRIMINAL APPEAL 2004/2869

JAMES, J. HISLOP, J. HALL, J.

FRIDAY 20 MAY 2005 REGINA v. ADAM SAMA Judgment 1 JAMES, J: I agree with Hall, J. 2 HISLOP, J: I agree with Hall, J. 3 HALL, J: On 24 March 2004, the applicant entered a plea of guilty to one count of ongoing supply of a prohibited drug, being an offence pursuant to s.25A of the Drug (Misuse and Trafficking) Act 1985. 4 The three individual supplies involved one of methadone (18.6 grams) (16 ml) and two supplies of heroin in quantities of 0.05 grams and 0.029 grams respectively. The supplies all occurred on 22 July 2003. 5 The maximum penalty attracted by the offence is 3,500 penalty units or imprisonment for 20 years, or both. 6 On 2 July 2004, Maguire, DCJ. in the District Court of New South Wales, Campbelltown, sentenced the applicant to a total sentence of 30 months imprisonment with a non-parole period of 15 months to commence on 2 July 2004. The non-parole period is to expire on 1 October 2005.

Factual matters 7 The plaintiff was born on 6 February 1972, he therefore being 31 years of age at the date of the offence. 8 On 31 July 2003, the applicant was arrested. He had had prior convictions for possessing prohibited drugs. 9 The sentencing proceedings were conducted by the sentencing judge on 28 May 2004 when the applicant gave evidence, as did his wife. A plea of guilty had been entered on arraignment before his Honour Judge Sides on 26 March 2004. An agreed statement of facts was tendered before his Honour and this was relied upon in the sentencing proceedings. Extracts from the statement of facts were set out in the remarks on sentence. I reproduce the facts as contained within those extracted paragraphs:- "First supply - At about 9.30 am on Tuesday 22 July 2003, a male undercover operative David Low, approached the co-accused Michael Fulcher in the vicinity of The Crescent Park, Fairfield and asked if he knew anyone who could (sic) he could get some 'done' from. Fulcher yelled out to a person Ben from across the park and asked if he had any, however he did not. Fulcher then took the operative over to the offender Adam Sama who was seated in the driver's seat of a Hyundai Excel parked near the railway station car park. Conversation took place between the three and Sama agreed to supply the operative a bottle of methadone. Sama produced a paper bag from within the car and pulled out two dark coloured bottles. He selected one of the bottles, tore the white label off it and then handed it to the operative. The operative handed Sama $100. The liquid from the bottle was later analysed and contained 16 millilitres of methadone. Supply 2 - At about 12.45 pm on the same day, a female operative Michelle Jones went to Crescent Park, Fairfield. The operative approached the offender who was with a female. She inquired about 'done' but was told the guy who was selling methadone was gone and was asked by the female, why don't you get some gear instead. Conversation then took place as to the price and quality of the heroin. Both Sama and the operative walked down into a car park and sat on the kerb between two cars. Sama then removed a foil from his pants pocket and unwrapped it. Sama asked the operative for some packaging for the heroin. The operative handed Sama a chewing gum packet and Sama removed two pieces of chewing gum, placed one in his mouth, the other he held in his hand. He placed a small package on top of the remaining pieces of chewing gum and placed the final piece of chewing gum on top of the package, before closing it tightly and he said, 'This is what you do so the coppers don't find out. When they come and try and search you, you just show them the chewy packet and they won't find the gear'. The operative handed Sama $70 in exchange for the drug. The substance was analysed and found to be heroin, 0.05 grams. Supply 3 - At about 1.25 pm the same day, the same female operative and another female operative Lee attended the vicinity of the Crescent Park at Fairfield. Operative Michelle got the offender Adam Sama's attention and introduce (sic) operative Lee and indicated to him that she was after gear. Operative Lee handed Sama $70 and followed him to a fence adjacent to the car park that the first operative had been in earlier. Sama had a conversation with some workmen and walked back to Lee and sat on a brick wall. Sama asked the operative if she had something to wrap it in. Sama told the operative to move down so no-one could see what they were doing. The operative crouched down. Sama placed a small piece of foil in the operative's hand. He unwrapped another piece of foil which had broken bits of white rock in it. He then tipped some of the white rock substance into the piece of foil being held by the operative. The operative folded up the bit of foil, Sama told her keep it open as he was giving her more. Sama tipped another piece of white rock substance into the foil. The operative folded it and placed it in his pocket. The substance was analysed and found to be 0.02 grams of heroin." 10 The applicant relied upon three grounds and I will deal with each in turn:-

Ground one: his Honour erred in only giving the applicant a limited discount for his plea of guilty because of the strength of the Crown case 11 In the written submissions on behalf of the applicant, attention was given to the following statement in the remarks on sentence (p.6):- "The offender's guilty plea is to be taken into account in his favour but only to a limited extent, having regard to the strength of the Crown case." 12 Mr. John Stratton, SC., on behalf of the applicant, submitted that in only taking the applicant's plea into account to a limited extent, because of the strength of the Crown case, his Honour fell into error. In particular, it was contended, based upon well-known authorities, that the strength of the Crown case is an irrelevant factor in determining the utilitarian value of the plea of guilty. The strength of the Crown case is relevant only to the evaluation of contrition or remorse and what weight should be given to that factor in determining the appropriate sentence: Regina v. Thomson & Houlton (2000) 49 NSWLR 386, 416 per Spigelman, CJ.; Regina v. Carter [2001] NSWCCA 245 (per Howie, J., with whom Barr, J. agreed) (at [13]); Regina v. Sutton [2004] NSWCCA 225 (per Howie, J., with whom the other members of this Court agreed) at [12]) and Regina v. Tran [2004] NSWCCA 366 (per Buddin, J. with whom the other members of this court agreed) (at [13]-[15]). 13 In his oral submissions, Mr. Stratton, SC. contended that the sentencing judge was not limiting the effect of the Crown case upon contrition and that he was discounting it in relation to the plea generally. In this respect, he observed that the sentencing judge dealt with the issue of contrition at the foot of p.5 of the sentence remarks and that he had dealt with the contrition aspect when he moved on to deal with the guilty plea and the fact that it would only be taken into account in favour of the applicant to a limited extent, having regard to the strength of the Crown case. In other words, it was argued that if the sentencing judge had, at this point, moved onto dealing with the utilitarian value of the plea, it was clear that he had fallen into what was contended to be the familiar error of discounting the utilitarian benefit based on the strength of the Crown case. 14 The sentencing judge did not specify precisely what he meant by his statement that he would only take into account the guilty plea to a limited extent. It certainly left open the interpretation contended for by senior counsel for the applicant. 15 In oral submissions for the Crown, it was contended that there is not necessarily a "cut off point" between the sentencing judge's discussion of contrition and the claimed erroneous statement. The point at issue is, of course, not assisted by the fact that his Honour did not quantify what the discount was that he was applying to the sentence, nor did he quantify what portion was going to the issue of contrition and remorse and what portion was going to the utilitarian effect of the plea. As the Crown correctly observes in its written submissions (p.2) this is not indicative of error. However, nonetheless it is helpful for these to be stated, and would have been helpful in this matter, had his Honour done so. The Crown has submitted that the remarks on sentence do not support a conclusion that his Honour contravened the principles stated in the abovementioned authorities. 16 The sentencing judge did not state that he was taking the guilty plea to a limited extent only on the question of contrition. The disputed statement occurs in a portion of the remarks on sentence, as the applicant has contended, in what appears to be a general consideration of the guilty plea without limitation. I have formed the view that his Honour's statement, made without limitation, did reflect that his Honour considered that the strength of the Crown case was relevant in determining the utilitarian value of the plea of guilty. In that respect, his Honour's statement was clearly an erroneous one. 17 I will return to consider the significance of this error in the total context of the other grounds for the application.

Ground two: the learned sentencing judge did not take into account as a mitigating factor that it was a reasonable possibility that had the police not approached the applicant the offence might not have been committed 18 Before turning to the facts of this matter, it is helpful to refer to the general approach to be taken as observed by King, CJ. in Regina v. Mandica (1980) 4 A. Crim. R. 34 at 43. There, it was observed:-

• Any background information which might justify the setting of a trap by undercover police will generally not be available to a sentencing court.

• The court must do the best it can with the facts proved before it by admissible evidence. In deciding whether to extend leniency by reason of entrapment, the sentencing judge should take a common-sense view of the evidence for the purpose of deciding whether there is a reasonable possibility that the convicted person would not have committed the offence but for the encouragement involved in the setting of the trap. 19 The sentencing judge rejected the applicant's evidence that he did not sell drugs and that he had sold the methadone to fund the purchase of heroin for his own use. His Honour pointed to the fact that within hours he was selling heroin. I observe, incidentally, that, as noted in the Crown's written submissions, when the person Fulcher was approached by police and asked whether he knew anybody from whom methadone could be purchased, he took the police immediately to the applicant. The applicant then provided police with the methadone. It is said that this was not merely coincidental. I agree. 20 Whilst the evidence did not establish that the offender was conducting what was described as an established retail operation the sentencing judge referred to the fact that handing out his telephone number indicated that he was prepared to engage in future retail activity. 21 Three and a quarter hours after the first transaction, the applicant was still in the area of The Crescent Park, Fairfield and was then approached by an undercover officer for methadone. The applicant's female companion suggested to the former that the man who was selling methadone had gone but that they might want some heroin instead. The applicant then provided a small packet containing heroin which he put into a chewing gum packet provided by the police officer. He covered it with a piece of chewing gum, explaining at the same time that was done to fool any police who may search her. These facts do support the inference that the applicant was a person prepared to supply heroin, as indeed his female companion had indicated. 22 An hour and a half later, the same undercover police officer, with another female undercover police officer, approached the applicant and purchased more heroin from the applicant. Whilst it is true, as has been submitted on behalf of the applicant, that he was not carrying the paraphernalia as is typical of a supplier of prohibited drugs, I accept, as the Crown has submitted, that the ease with which the police officers obtained prohibited drugs from the applicant contradicts him as to his assertions that he was in the area to purchase prohibited drugs and not to sell them. Taking a common-sense view of the evidence, I do not believe there was a reasonable possibility that the applicant would not have committed the offence but for the encouragement by officers involved in the setting of the trap. I accordingly reject the second ground of the application.

Ground three: the sentence was manifestly excessive. 23 This ground, as senior counsel for the applicant indicated, was the chief ground which was relied upon by the applicant. The submission was that the offence appears to have been an opportunistic crime and not one involving an offence where the applicant appears to have gone to the location ready to deal. In particular, reliance was placed upon the lack of the accoutrements for paraphernalia of a drug dealer. A further factor said to be a significant feature is the very small amount of drug supplied, particularly in relation to heroin. 24 Senior counsel for the applicant also relied upon what he contended was a powerful subjective case, observing that the sentencing judge had made a specific finding that the applicant had made a significant effort to rehabilitate himself. It was contended that his Honour may have been misled by sentencing statistics that were supplied at the sentencing hearing. 25 The Crown, in relation to ground three, observed that it is not unusual for street sellers not to have with them the accoutrements of a drug dealer. It is also pointed out by the Crown that there was no evidence relating to what quantity of heroin was in the possession of the application on 22 July 2003. 26 The Crown contends that the offence was aggravated by the fact that it was committed whilst the applicant was on bail for possessing a prohibited drug at the time he committed the offence in question. 27 As to the quantity of drugs involved, the Crown relied upon observations made by Hulme, J. (with whom Sheller, JA. and Dowd, J.) agreed in Regina v. Smiroldo (2000) 112 A. Crim. R. 47 (at [15]). 28 In Regina v. CBK (2002) 135 A. Crim. R. 260, Bell, J., at 264 (with whom Wood, CJ. at CL. and Dowd, J. agreed) stated:- "While, as Smiroldo makes clear, a consideration of the quantity of drug supplied for the purposes of a s.25A of the DMT Act offence will always have relevance to the exercise of the sentencing discretion, the gravamen of the offence is the fact of ongoing supply of prohibited drugs. The seriousness of the offence is to be gauged by the circumstances that it carries a maximum penalty of 20 years imprisonment." 29 The Crown contends in the present matter that the sentence imposed by the sentencing judge was well within the sentencing discretion and that the third ground of appeal is not made out. 30 Senior counsel for the applicant emphasised the extremely small quantity of drug involved in each sale (in particular the heroin supplied was in one case, 0.05 grams and in the other case, 0.02 grams). 31 On the questioning of sentence statistics, the applicant relies upon Judicial Commission statistics for 2004 in relation to the DMT Act, penalty type, offenders aged 31 to 40 years. It is observed that 12% of that age group received a sentence, which was not a full-time custodial sentence.

Determination 32 The evidence to my mind established that the applicant was engaged in the supply of prohibited drugs and did so as a part of a planned activity rather than through opportunistic circumstances. It will be recalled that the three supplies all occurred on 22 July 2003 at 9.30 am, 12.45 pm and at approximately 1.25 pm in the vicinity of The Crescent Park at Fairfield. The offence with which the applicant was charged is a serious one and although the quantities of the drug were small, the essence or gravamen of the offence is the fact of ongoing supply of prohibited drugs. The seriousness with which the legislature regards such offence is marked out or gauged by the fact that it carries a maximum penalty of 20 years imprisonment as observed by Bell, J. in CBK (ante). 33 The quantity of the drugs supplied is, of course, a relevant fact and the subjective factors must be given due weight. Taking into account all relevant factual matters, I do not consider that the trial judge's erroneous statement (ground one) nor the total sentence imposed of 30 months imprisonment, with a non-parole period of 15 months, warrants this Court's intervention to disturb the sentence. 34 Accordingly, I propose that the application for leave to appeal be granted, but the appeal be dismissed. **********

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