REGINA v. STEWART [2002] NSWCCA 165

1 GREG JAMES, J: This is an application for leave to appeal in respect of a sentence passed upon the applicant in the District Court of New South Wales, in consequence of his plea of guilty to having knowingly taken part in the supply of a prohibited drug, to wit methylamphetamine. That is an offence constituted under s.25(1) of the Drug Misuse & Trafficking Act 1985, for which the maximum penalty prescribed is 15 years imprisonment. 2 The applicant had pleaded not guilty at trial but was found guilty by the verdict of the jury, and convicted of the offence in consequence thereof. The applicant was sentenced to imprisonment for three years, to commence on 6 December 2001 and expiring on 5 December 2004. A non-parole period of two years, expiring on 5 December 2003 was imposed. The applicant had been on bail, prior to the verdict, which had been reached on 6 December 2001. 3 The usual written submissions on behalf of the applicant, required prior to the matter coming before the court, in support of the application for leave to appeal against sentence, have not been filed. Mr. Simpson, of counsel, appearing on the applicant's behalf this morning, informed us of the reasons why that course had not been taken. With commendable skill and frankness, he has, with the court's leave, made oral submissions on the only ground that he said appeared to him to be of substance, that is that the sentence passed was manifestly excessive. 4 His approach to this matter, in the circumstances of his having received a late brief, and the matter being in the condition he referred to, was entirely realistic and appropriate. He has contended that the learned trial judge fell into error, in that the sentence imposed manifestly exceeded that which was appropriate, having regard to the crime of which the applicant stood convicted. Such a ground requires some examination of what was proved at trial. 5 Shortly, it was the Crown case as apparently accepted by the jury that the applicant knowingly took part in the supply, on the date in question, of some six ounces, that is, 155 grams roughly, of methylamphetamine, being sold by a man named Brett Butcher to an undercover police officer known as "Sam", at the car park at Town Beach at Port Macquarie. 6 The applicant's involvement in that sale was said to have been established in a number of ways particularised by the Crown, that is, providing the amphetamines for sale, providing the premises from which the drugs were uplifted for sale, and standing ready to receive the proceeds of that sale. It was on those bases that his guilt was established before the jury. 7 The trial judge concluded that the jury accepted each of the three ways in which the prisoner's involvement was particularised as being made out beyond reasonable doubt, and that, he himself, was also satisfied beyond reasonable doubt, that the prisoner was engaged in the crime in those ways. 8 The trial judge, in his remarks on sentence, set out in detail the matters relied upon in evidence to support the charge as so particularised, and in particular, that there had been conversations between the applicant and Butcher, referring to a car and tyres, which in the circumstances it was submitted to the jury by the Crown, were coded references to drug transactions. His Honour noted that it was necessary, the jury acting in accordance with his directions at trial, for the jury to be satisfied beyond reasonable doubt that the references in those conversations were, in fact, references to drugs. 9 Having regard to the grounds taken, and the argument in support thereof, it is not necessary for me to go into more detail of the background to the verdict of the jury. It is necessary however, to refer to the fact that there were a continuing series of transactions between Butcher and Sam, but there was no indication whatsoever, in the observations, surveillance or telephone intercepts, of any involvement of the prisoner in any of those other transactions, and that on the prisoner's arrest, there was no discovery of any material suggesting any course of involvement in drug dealings, or the indicia of supply or fingerprints on bags of drugs, or any such matter as might indicate that the prisoner was involved in the other transactions. 10 Indeed, there was none of the money, which had been paid by the undercover officer to Butcher, located in the prisoner's home. The proceeds of Butcher's last transaction with the undercover officer, were located still in Butcher's possession. The culpability of the relevant offence is to be assessed having regard to the conduct of the offender on the occasion charged. However it should be noted, the innocent explanation as to the association between the two at the time of the events charged that the applicant propounded at the trial, was obviously rejected. Thus, the offender's conduct must be assessed in the circumstances of Butcher's conduct with Sam. 11 The conversations between the applicant and Butcher, which are set out by his Honour in the remarks on sentence, are plainly indicative of coded references, which in the circumstantial case made by the Crown at the trial, were plainly capable of being accepted as relating to the drugs. 12 The Crown submitted on sentence, and his Honour accepted, that the offender was not simply allowing his premises to be used as a storage facility for drugs belonging to Mr. Butcher, but his role went beyond that, to the extent that he was substantially and intimately involved in the supply of drugs. 13 His Honour further accepted, that the conclusion was inescapable that Butcher turned to the prisoner, not as some willing repository of the drugs, but as a person who was, in a real sense, intimately involved in the transaction, to the point where he appears to have had, at least in practical, or commercial terms, a controlling say. It was not Butcher, for example, who was apparently able to specify a price. 14 It was Butcher who sought his guidance, or approval, as to a larger transaction, where his Honour held the only rational conclusion open, was that it was on the say so of the applicant that such a transaction might be contemplated. 15 The only rational conclusion, according to his Honour, was that the prisoner took part in the transaction, intending to receive the proceeds of providing the drugs, and providing such control over the circumstances, as to require Butcher to contact him in order to carry out such a significantly larger transaction, than those Butcher had formerly carried out. 16 His Honour's conclusion was that as a central finding "the prisoner was intimately involved in the transaction at a substantial level of culpability", although his Honour was of the view that the evidence did not allow him to make a more precise finding than that. 17 Totally at odds with that picture, were the subjective circumstances of the prisoner, who was a person who had not been previously involved in substantial criminality (unlike Butcher); who was a family man, and who apparently had a strong commitment to his family, providing a stable environment, and a stable educational upbringing for his children. His Honour noted the offender's acts of kindness and compassion, not only to members of his family but to others in need and his participation in charitable activities and assisting those who have been the subject of domestic violence, particularly in women's resource centres. His Honour accepted the offender had encouraged young people to continue with their TAFE courses, and he had assisted children with recreational and educational activities. His Honour found he was well established businessman in the Port Macquarie area. 18 His Honour noted that these characteristics were at odds with the applicant's involvement in this transaction, particularly since, by reason of those activities, that he would have had a good insight into the problems associated with drugs, and particularly into those associated with drugs and youth. 19 His Honour concluded that it was almost impossible to explain the prisoner's involvement in this offence. He noted there was no financial stress or temptation arising from drug addiction, which might provide some mitigation. 20 His Honour noted that the prisoner, at 48 years of age, would be facing his first gaol sentence, and nonetheless concluded, having regard to the other activities of Butcher, that the applicant should be regarded as a person further up the chain of distribution of drugs, but only in relation to this transaction. 21 His Honour concluded that the appropriate course to take was one reflecting his view, that the prisoner's involvement merited a substantial period of imprisonment, and in those circumstances, he should pass sentence as he did, finding factors amounting to special circumstances which require some re-adjustment of the sentence that his Honour would otherwise have been minded to pass, and mitigating the non-parole period. 22 The submission was made that the sentence exceeded what was proportionate to the culpability of the crime, having regard to the fact that there was no evidence the prisoner had participated in the other activities of Butcher. 23 It is trite law that this court will not interfere with a finding of fact, or a failing to find a fact by a trial judge, where the course taken by the trial judge, was open on the evidence. See Regina v. Khouzame [2000] NSWCCA 505, in particular at paragraph 41. 24 The ground that the sentence is manifestly excessive, is a ground which will only be made out in the circumstances set out in that decision, and in accordance with the principles expressed by the High Court in House v. The King (1936) 55 CLR 499 where the sentence as passed, can be seen to be entirely out of accord with the circumstances under which the prisoner comes forward for sentence. 25 In House (supra) at 504-505, in the judgment of Dixon, Evatt and McTiernan, JJ. appears the oft quoted passage concerning such a ground at 505:- "It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred". 26 In the latter circumstance an error of the kind referred to in the former circumstance, but unexpressed, is detected. It is only however, where the conclusion is unreasonable, or unjust, having regard to facts found, that this court may interfere, and indeed, such a conclusion is itself reinforced by the very terms of s.6(3) of the Criminal Appeal Act, which only empowers the court to intervene if some other sentence is warranted in law and should have been passed. 27 Having regard to the sentence passed here, and the facts as found by the learned primary judge, I see no basis upon which it might be concluded that the sentence was, in the relevant sense, unreasonable or unjust. 28 Further, I see no basis upon which it could be concluded that the trial judge erred in his regard to the circumstances of this single offence by the applicant, in failing to find that the offence was isolated, as it was submitted he should have found. What his Honour did was to assess the criminality of the offence charged, while expressly disclaiming that that criminality should be aggravated in any way by any involvement, or any perceived involvement of the applicant in the other offences of Butcher. Such an approach was not only, in my view, not in error, it was patently correct. His Honour did not have to find the offence was isolated or aberrant. 29 I am of the view therefore, that the application for leave to appeal the matter, having been argued to this extent before us, should be granted but the appeal should be dismissed. 30 CARRUTHERS, AJ: I agree. 31 GREG JAMES, J: The orders will be as I have proposed. *******

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