REGINA v SJD

SJD (Applicant) FILE NUMBER(S) : CCA 60040 OF 2004 P Ingram (Respondent) COUNSEL : R Button (Applicant) S Kavanagh (Respondent) SOLICITORS : SE O'Connor (Applicant)

LOWER COURT District Court JURISDICTION : LOWER COURT 03/11/0058 FILE NUMBER(S) : LOWER COURT Solomon DCJ JUDICIAL OFFICER :

• 1 - IN THE COURT OF CRIMINAL APPEAL 60040 OF 2004

MASON P LEVINE J KIRBY J

THURSDAY 10 JUNE 2004 REGINA v SJD Judgment 1 MASON P: I agree with Levine J. 2 LEVINE J: The applicant seeks leave to appeal against sentences imposed by his Honour Judge Solomon at the Sydney District Court on 23 May 2003. 3 The applicant had been committed for sentence to the District Court when he pleaded guilty to two charges in the Local Court on 30 January 2003. In the District Court, and as a consequence of defects perceived in the committal for sentence documentation, the Crown presented an indictment that pleaded two counts reflecting the offences to which the applicant had originally entered pleas of guilty in the Local Court. 4 Count 1 was an offence of ongoing supply of a prohibited drug, namely "methylenedioxy-methylamphetamine" (i.e. ecstasy or MDMA) between 5 June 2002 and 29 June 2002. 5 This was an offence contrary to s25A(1) of the Drug Misuse and Trafficking Act 1985, the maximum penalty prescribed for which was imprisonment for a term of 20 years and/or a fine of $385,000. 6 Count 2 was an offence of supply a prohibited drug, namely "methylenedioxy-methylamphetamine" (i.e. ecstasy or MDMA) in a quantity not less than the commercial quantity on 6 July 2002. 7 This was an offence contrary to s25(2) of the Drug Misuse and Trafficking Act 1985, the maximum penalty prescribed for which was imprisonment for 20 years and/or a fine of $385,000: s33(2)(a) of the Drug Misuse and Trafficking Act 1985. 8 When sentencing the applicant on count 1 the applicant requested that the Court take into account three further offences pursuant to Part 3 Division 3 of the Crimes (Sentencing Procedure) Act 1999. The three offences were one offence each of goods in custody (cash in the sum of $2250), supply prohibited drug (cannabis, 1.2g) and possess prohibited drug (cannabis leaf, 7.3g). 9 The applicant had been in custody since 6 July 2002. 10 The applicant was sentenced as follows: 11 On count 1: to imprisonment for a fixed term of 1 year to date from 6 July 2002 and expire on 5 July 2003. 12 On count 2: to imprisonment for a term of 2 years and 6 months to date from 5 July 2003 and expire on 4 January 2006. 13 In relation to this sentence a non-parole period of 1 year and 6 months was imposed to date from 5 July 2003 and expire on 4 January 2005. 14 The total effective term of these two sentences is therefore 3 years and 6 months dating from 6 July 2002. The total period without parole is 2 years and 6 months. 15 The facts on which the first offence was based were that between the dates alleged, the applicant provided an undercover detective ("Jennifer") with tablets, which he claimed to be ecstasy, on three occasions. On the first occasion, fifty tablets were provided in return for $1,650. On the second occasion, the same quantity was supplied for the same sum. On the third occasion, ten tablets were supplied for $360. 16 On the final occasion described above, the applicant and the undercover detective discussed the possible supply of up to 1,100 tablets for a price of $27,500. 17 The facts of the second count were that on 6 July, the applicant, accompanied by the co-offender Ellis, met the operative and prepared to effect the large deal described above. Eventually, the co-offender Mahoney arrived at the scene and handed over a large quantity of tablets. All offenders were then arrested. 18 597 tablets were in fact supplied, with a total weight of 221.8 grams. According to the certificate of Ms Chorng-Wen Charng dated 19 July 2002, the substantial majority of the tablets (132.1 grams) did not contain any prohibited drug. The remainder of the tablets, weighing 89.7 grams, contained methylamphetamine at a purity of 1 percent. 19 Because of what he had offered to supply and the combined weight of the tablets that did (and did not) contain a prohibited drug, the applicant was charged with, and pleaded guilty to, supplying not less than a commercial quantity (.125 kilograms or 125 grams) of MDMA or ecstasy. In reality, and this founds the applicant's submissions as to "artificiality", less than the commercial quantity of methylamphetamine (.25 kg or 250 grams) had been supplied, even on the admixture basis that underpins the New South Wales regime, and even including the weight of the tablets handed over that contained no prohibited drug. 20 In the proceedings on sentence, a sealed envelope containing evidence of assistance given by the applicant with regard to the crimes of others was tendered. During the same proceedings, the applicant signed an undertaking to give evidence in proceedings against others, and that document was placed inside the envelope. During the course of submissions and in the remarks on sentence, the sentencing judge made it clear that his Honour was applying a discount of fifty percent for the pleas of guilty and the assistance. 21 The applicant was twenty-two years of age when he came to be sentenced. He had no prior convictions. His mother had died after a long battle with cancer when the applicant was aged fourteen years. Thereafter, the father of the applicant had left the home and the applicant had ended up living alone with his aged and infirm grandmother. The applicant had drifted through various forms of employment. A report from Dr Lucire, psychiatrist, was tendered in the defence case to the effect that, for many years, the applicant had suffered from a form of depression, and had been "self-medicating" with cannabis and ecstasy. There was evidence that the applicant's sisters had come to realise that he needed help, and were prepared to provide it in the future. 22 The applicant gave evidence that he had become involved in the drug trade as a way of paying off his own drug debts. He agreed in cross-examination that he expected to receive four thousand dollars in return for his role in the large supply. 23 There was evidence that the applicant had used his time in custody since arrest constructively by undertaking courses directed at addressing his drug dependence and also vocational training. 24 Two co-offenders have been dealt with. The first, Luke Mahoney, was dealt with by the same sentencing Judge (Judge Solomon) earlier on the day of the sentence of the applicant. This offender had on 3 February 2003 at the Local Court pleaded guilty to five offences, the first four being offences brought under the Firearms Act 1996, particularly under s62(1)(b), s7(1) and s36(1). The fifth offence related to the matter the subject of the second count against the present applicant, namely the supply at Milsons Point. The applicant, it is to be noted, had no connection with the firearms offences and it would appear that there was no evidence that Mahoney had any connection with the first count brought against the applicant. Mahoney had a caution as a juvenile, otherwise he had no recorded antecedents, he had substantial mitigating subjective features, though the firearms offences had been committed whilst on bail. In relation to Mahoney there was also a matter on a Form 1 relating to concealing a serious offence which his Honour took into account when sentencing the offender in relation to the s62(1)(b) of the Firearms Act. 25 For the firearms offences his Honour Judge Solomon sentenced Mahoney to concurrent fixed terms of 12 months; for the drug offence (maximum 15 years) he imposed a wholly cumulative sentence of imprisonment of 2 years and 6 months with a non-parole period of 1 year and 3 months. The aggregate sentence was therefore a head sentence of 3 years and 6 months with a non-parole period of 2 years and 3 months. 26 The other co-offender, Andrew Robert Ellis, was sentenced by his Honour Acting Judge Nash on 25 July 2003 for one offence of supplying methylamphetamine. He pleaded guilty at the earliest opportunity and had no prior convictions. There was no evidence that Ellis had been involved in the first count matter to which the applicant pleaded guilty. Ellis had a profoundly strong subjective case particularly in the area of rehabilitation. Acting Judge Nash imposed a sentence of imprisonment for 12 months and suspended it upon that offender entering into a bond. 27 The applicant contends that there are three bases warranting this Court's intervention. First, that there was an erroneous disparity with regard to the sentence for the second count vis-à-vis Mahoney and Ellis. Secondly, the sentencing Judge failed to reflect totality correctly. Thirdly, the aggregate non-parole period does not reflect the special circumstances found. 28 In relation to the first ground, "the erroneous disparity", it is to be observed that the applicant received an identical head sentence but a longer non-parole period with regard to the second count than that received by the co-offender Mahoney. It is conceded by the applicant that Mahoney had more compelling subjective features. Mahoney was also dealt with, though for somewhat artificial reasons it is said, for an offence that had a lesser maximum penalty than the offence for which the applicant was sentenced, even though each took part in the same supply of the same tablets to the same operative. On the other hand, Mahoney was on bail at the time of the count 2 offence whereas the applicant was not. 29 It is said that "overarching" these matters is the applicant's entitlement to a very substantial discount for the assistance he provided to police; Mahoney was not entitled to any such discount. It is to be borne in mind, however, that the applicant did in fact receive a discount of 50 percent for his plea and his assistance which was applied to the two charges in the indictment. 30 It is otherwise contended that with regard to age, time of plea, contrition, prospects of rehabilitation and the fact that the sentence of each was wholly cumulative upon a sentence for separate criminality, there was little to distinguish the two offenders. 31 As to Ellis, the applicant concedes that the evidence of his rehabilitation was more compelling, that the sentence imposed upon him was unusually lenient and that he was not entitled to that which "overarches" any comparison, namely the discount for assistance. 32 Thus in the senses referred to in Lowe v The Queen (1984) 154 CLR 606 and Postiglione v The Queen (1997) 189 CLR 295 the applicant, it is argued, is left with a justifiable sense of grievance. It is particularly contended that the applicant would be justified in believing that his assistance to the authorities had led to little or no reflection in the sentence that he received on the second count. 33 The respondent Crown also refers to the statements of principle in both Lowe and Postiglione and limitations, it is said, to the operation of the principle of parity by reason of the phrase used by Gibbs CJ "if other things are equal": Lowe at 609. A wide variety of circumstances may lead to "things" being other than "equal" in a given case. 34 It is argued that one of the circumstances is whether the offenders are to be sentenced for the same, or substantially the same, offences or for relevantly different ones. If the offence is not substantially the same, then due discrimination between the sentences would be the norm: Regina v Watson (unreported, NSWCCA, 25 February 1982 per Gleeson CJ); Regina v Howard (1992) 29 NSWLR 242. 35 As the Crown submits, here the applicant was to be sentenced for an offence of more seriousness than that which confronted his co-offenders. Whilst, as was argued for the applicant, some "artificiality" attends the characterisation of the offence when recourse is had to the analyst's certificate, the applicant pleaded guilty to it and his Honour the sentencing Judge was bound to take into account the seriousness of the offence to which the applicant had pleaded. 36 Mahoney and Ellis were prosecuted for the supply of tablets (89.7g) that contained the methylamphetamine on the more limited basis of actual supply of that drug in that quantity. The offence for which the applicant was to be sentenced on count 2 was substantially more serious than the offences arising out of the same incident for which Mahoney and Ellis were to be sentenced.

37 As to the role played by the applicant, his Honour in his remarks on sentence makes no express findings. In his Honour's remarks on sentence in relation to the co-offender Mahoney his Honour described that co-offender as "not involved in any of these discussions and his first involvement with the drugs was involvement on 6 July when he delivered the methylamphetamine. Whilst I cannot make any definitive finding as to the role the offender played it is clear that he was not a principal in the drug transaction". (ROS p 3) 38 For the applicant it was submitted that when one considers the evidence he gave on sentence and the content of the intercepted telephone conversations, it was arguably the case that a finding could have been made that his role was at worst no less significant than Mahoney or indeed Ellis, or at best was, in fact, less significant than Mahoney who could have been found to have been the supplier of the drugs, that is, the wholesaler, as it were, to the applicant for on sale to the undercover police officer. 39 At best, in my view, such evidence as there was before his Honour for the purposes of sentencing this applicant could have attributed to the applicant a status "no less significant than Mahoney". 40 Acting Judge Nash appears to have made no specific finding as to the role of Ellis. As to the co-offender Ellis, the sentence he received was extraordinarily lenient in my view, but not necessarily one that would provoke a Crown appeal. Ellis' involvement and the sentence imposed upon him does not lend the Ellis outcome the more readily available for comparison for parity issues (cf Regina v Diamond (unreported, NSWCCA, 18 February 1993 per Hunt CJ at CL) and Regina v Chen, Siregar, Ismunandar & Lau (2002) 130 A Crim R 300 at 384-385; [2002] NSWCCA 174 at [289]). 41 It is not clear whether his Honour heard evidence in both matters and then proceeded separately to sentence, first, Mahoney and second, this applicant. It seems clear that by the time his Honour sentenced the applicant he had in fact imposed the sentence on Mahoney (ROS p 2 - 3). Nor does it appear from the remarks on sentence in this matter that his Honour was addressed on parity vis-à-vis Mahoney, nor does it otherwise appear from the proceedings. 42 When one has regard to the fact that the applicant was to be sentenced for a more serious offence, it being the second of two drug offences, notwithstanding the maximum discount of fifty percent having been given for the plea of guilty and assistance, and even taking into account the quantification of the sentences absent that discount, there is no erroneous disparity exposed in my opinion. The elements peculiar to Mahoney and Ellis have been noted above.

43 With regard to the second ground of attack upon the sentence, namely that the sentencing Judge failed to reflect totality correctly, the applicant points to the following as indicative of the offences being "very much connected": in each case the purported buyer was the same person; the supply that was the basis of the second count was arranged during the commission of the first count; the drug represented to be supplied was the same, even though that representation was not fully correct with regard to both offences; the major supply was committed only one week after the end of the commission of the first offence. 44 Thus, it is said to have been an error to make the sentence on the second count completely cumulative upon the sentence for the first count. It is argued that considerations of totality "called for" the second sentence to be partially concurrent, reference being made to Pearce v The Queen (1998) 194 CLR 610. 45 For the Crown it was pointed out that the applicant's concession that partial concurrence was called for concedes that partial accumulation was also permissible. The extent of such accumulation ultimately was to be determined having regard to the totality of the criminality for which the applicant was to be sentenced. For the Crown it was argued that the length of the individual "starting point sentences", the quantum of the combined discount for the pleas and assistance to authority, and, thereby, the length of the individual discounted sentences, was determinative of whether there was to be any partial accumulation and if so, the extent of it. 46 I am not persuaded when viewing this basis of attack on the sentence discretely that this Court can be persuaded of any error on the part of the learned sentencing Judge in not making the sentences partially concurrent. His Honour was concerned with the total criminality for which the applicant stood for sentence and I see no error, on this ground, in his Honour fully accumulating the two sentences to achieve totality. 47 This basis for intervention has not been made out. 48 The third basis of attack upon the sentence is that the aggregate non-parole period does not reflect the special circumstances. 49 For the applicant it is pointed out that he was a young man who had involved himself in serious criminality despite an absence of prior convictions. His subjective circumstances, especially the early death of his mother and subsequent isolation from his father, were of particular significance. He has sought to rehabilitate himself and has now proper support from his family. His Honour found special circumstances but that effectively amounted to a reduction of the aggregate non-parole period by a period of but 6 weeks. That period is so "limited" that "it must be erroneous". It is argued that this is a case in which the Court would find that the discretionary decision as to the reduction in the non-parole period miscarried and should intervene to lengthen the parole period on the second count. 50 Here I am of the view that the Court is entitled to intervene. I agree with the submission advanced for the applicant that the reduction of the aggregate non-parole period by a period of a mere 6 weeks can only be explained as erroneous. This is clearly so in the light of the close attention his Honour paid to the subjective circumstances of the applicant, the fact that Dr Lucire's report was given weight, the fact that during imprisonment the applicant had embarked upon a course of self-improvement, the opinion contained in the pre-sentence report that the applicant would benefit from a period of supervised parole and the express finding in the light of all these matters that his Honour was satisfied that the prisoner does require ongoing rehabilitation in the community on his release. Further, the applicant had no prior convictions and his sentences were to be fully cumulative. I am persuaded that the outcome was not that which his Honour must clearly have had in mind by reason of the attention that he paid to this component of the sentencing exercise, and thus the Court can intervene. 51 In my view account can be taken of the contents of the affidavit of the applicant's sister, affirmed on 31 May 2004, and that of the applicant himself, affirmed on 1 June 2004. The former points to there being available to him close family support and employment upon his release; the latter to the success that has attended steps taken by the applicant whilst in custody after sentence by way of education and rehabilitation. 52 Taking these matters into account the reduction of the non-parole period imposed in respect of the second count from 1 year 6 months to 1 year would bring about an appropriate result in the light of the error and an outcome which would not offend the principle that the applicant should still receive a sentence commensurate with his total criminality. 53 Accordingly I propose the following orders:

1. Leave to appeal granted.
2. Appeal allowed.
3. The non-parole period ordered for count 2 be set aside and in lieu, the appellant having been sentenced to a term of imprisonment for a term of 2 years and 6 months to date from 5 July 2003 and to expire on 4 January 2006, be ordered to serve a non-parole period of 1 year to commence on 5 July 2003 and to expire on 4 July 2004. 54 KIRBY J: I agree with Levine J.

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