REGINA v THOMPSON

Drug Misuse and Trafficking Act 1986 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Criminal Assets Recovery Act 1990

Markarian v R (2005) 215 ALR 213 R v AJP (2004) 150 A Crim R 575 R v GJ Davies [2004] NSWCCA 319 R v Johnson [2004] NSWCCA 140 R v Markarian [2003] NSWCCA 8 CASES CITED: R v Mendez [2005] NSWCCA 246 R v Pham [2005] NSWCCA 94 R v Shi [2004] NSWCCA 135 R v Simpson (2001) 53 NSWLR 704 R v Thompson & Houlton (2000) 49 NSWLR 383 R v Way (2004) 60 NSWLR 168

Applicant: P Byrne SC/ G Bashir COUNSEL: Respondent: P Ingram

Applicant: Michael Croke & Co SOLICITORS: Respondent: S Kavanagh, Public Prosecutions

IN THE COURT OF CRIMINAL APPEAL CCA 2004/2698

MASON P BARR J JOHNSON J

1 MASON P: On 17 June 2003 the applicant pleaded guilty in the Local Court to a charge of deemed supply of not less than a large commercial quantity of a prohibited drug namely methylenedioxymethylamphetamine (also known as MDMA or ecstasy). The applicant was committed to the District Court for sentence. There he repeated his plea of guilty and asked the court to take account of two further charges on a Form 1 document. 2 The offence charged involved supply of not less than a large commercial quantity of the prohibited drug, contrary to s25(2) of the Drug Misuse and Trafficking Act 1986 (the DMT Act) for which the maximum penalty was imprisonment for life and/or a fine of $550,000 (s33(1)(a), (3)(a)). 3 The Form 1 offences also occurred on 17 April 2003 and were very much part and parcel of the criminality caught up in the main charge. They were the supply of a single tablet of ecstasy and the offence of having possession of $10,650 that was reasonably suspected of having been unlawfully obtained. 4 Because the applicant was charged after 1 February 2003 the "standard non-parole period" amendments to the Crimes (Sentencing Procedure) Act 1999 were applicable. Relevantly, s54B(2) speaks of the court being required to set the "standard non-parole period" [fifteen years in the present case] unless the court determined that there were reasons for setting a non-parole period that was longer or shorter than the standard non-parole period. Section 54A(2) states that the standard non-parole period "represents the non-parole period for an offence in the middle of the range of objective seriousness for offences" in the Table. 5 The learned sentencing judge (Judge Nield) sentenced the applicant to imprisonment for 16 years with a non-parole period of 12 years commencing on 17 April 2003, the day the applicant had been arrested and taken into custody. 6 The judge did not, at the time of sentence, have guidance from this Court later provided in R v Way (2004) 60 NSWLR 168, particularly with reference to the scope of s21A of that Act and the application of s54B to a matter where there is a plea of guilty. 7 In this Court, the parties agree that there were consequential errors in the approach of the sentencing judge, although the respondent reminds the Court that its discretion to intervene and re-sentence is not enlivened unless we form the opinion that a lesser sentence is warranted in law (R v Simpson (2001) 53 NSWLR 704).

Circumstances of the offence 8 It was discovered that the applicant owned a mobile telephone registered under an assumed name at a fictitious address. On 16 April 2003 police intercepted a call in which the applicant offered to supply a quantity of ecstasy tablets to a man named Cook at a price of $14.50 each. In a later call the applicant agreed to supply a single tablet as a "tester". 9 On the following day the applicant was observed meeting Cook, who was subsequently found in possession of the tablet. When the applicant was arrested shortly afterwards, his backpack contained eight separate bags of ecstasy tablets with each bag weighing about 249gm. The total weight was 1.983kg (compared to a prescribed "large commercial quantity" of 0.5kg). If the tablets were sold in bulk at the price quoted by the applicant to Cook their value was in excess of $110,000. 10 The applicant was also carrying the $10,650 that became the subject of the Form 1 charge. 11 The applicant was taken into custody and has remained in custody since his arrest. Judge Nield held that his guilty plea in the Local Court on 17 June 2003 was at the earliest appropriate opportunity and that the plea had "the greatest utilitarian value", entitling the applicant to a discount of 25% on that account. 12 The sentencing judge referred to s54B(3) which provides that the reasons for which the court may set a non-parole period that is longer or shorter than the standard non-period are only those referred to in s21A. 13 Adverting to s21A(2), the judge held in effect that the only relevant aggravating factors from the list there set out were: (d) the offender's record of previous convictions; and (n) the fact that the offence was part of a planned or organised criminal activity.

14 Adverting to the list of specific mitigating factors in s21A(3), the judge said that the only relevant factor was: (k) a plea of guilty by the offender (as provided by section 22). 15 His Honour then addressed a number of "subjective features applicable to the offender", namely: 1. The offender's age. The offender was born on 1 March 1969. Accordingly, he was aged 34 years one month when he committed the subject offence and he is aged 34 seven months now. 2. The offender's background and upbringing. The offender is the only child of his parents. His parents separated when he was aged about two years. After the separation of his parents he was cared for by his mother. His mother later remarried. Thereafter, he was cared for by his mother and his step-father. He believed his step-father to be his biological father. His mother and his step-father separated after three years of marriage. Thereafter, he was cared for by his step-father and step-grandparents until he left his step-father's when he was aged about eighteen years. Unfortunately, life with his step-father and step-grandparents was less than fulfilling and satisfying. He met his biological father when he was aged about thirteen years. Unfortunately, a relationship with his biological father and his father's other children did not develop. His mother died when he was aged about eighteen years, just six months before he left his step-father's home. 3. The offender's education. The offender attended primary and secondary schools. He left school at the end of 1985 after completing Year 10 and obtaining the School Certificate. Thereafter, he attended a TAFE college and completed a sheet metal workers course, during which he was apprenticed. 4. The offender's employments. After completing the sheet metal workers apprenticeship, the offender had employment as a sheet metalworker until about 1990. Thereafter, following his desire for a change in lifestyle, he had casual labouring employments from time to time. Unfortunately, he was injured as a result of a motor vehicle accident and he has not had employment since his being injured. 5. The offender's marital status. The offender is single, never having been married. However, he has lived as man and wife with his girlfriend for the five years before his arrest. He is the step-father to his girlfriend's two oldest children and the father of her three youngest children. 6. The offender's health. Insofar as his physical health is concerned, the offender suffers disabilities in his back, right hip and right knee as a consequence of the motor vehicle accident. Insofar as his mental health is concerned, he feels anxious and depressed, perhaps that is due to his situation and his concern for his girlfriend and their children. 7. The offender's drug use. The offender's drug use is referred to in both the pre-sentence report and the psychologist's report and it need not be repeated. Notwithstanding his use of prohibited drugs, the offender does not regard himself as having a "drug problem". 8. The offender's character. The offender does not have an unblemished character. He has a criminal record. It is exhibit D. He has been dealt with for five offences, three of which were offences of supplying cannabis leaf. As his counsel commented, the offences must have been at the bottom of the range in view of the penalty imposed by the magistrate in a Local Court. However, the fact is that he has a criminal record including three offences of supplying a prohibited drug. 9. The offence itself. By any measure the offence committed by the offender is a very serious offence. The prescribed punishment for the offence, and the standard non parole period for it are an indication of the seriousness with which Parliament regards the offence. In the absence of any evidence from the offender, and with knowledge of the offender's accumulated assets, which have been confiscated by the New South Wales Crime Commission, I cannot accept what the offender told the Probation and Parole officer and the psychologist about the circumstances in which he committed the offence. 10. The offender's plea. There cannot be any doubt that the offender pleaded guilty to the subject offence at the earliest appropriate opportunity and his plea, having the greatest utilitarian value, entitles him to a discount of 25 per cent on account of the guilty plea. 11. The offender's remorse. Although I accept that an offender's guilty plea may show remorse on the part of the offender, I doubt, frankly, that the offender has any remorse for his conduct. The offence, for which I am to impose sentence on him, was not his first offence of supplying a prohibited drug. His accumulated assets show that he is not a street dealer of prohibited drugs, rather his accumulated assets show that he is a relatively large scale dealer of prohibited drugs. 12. The offender's loss of accumulated assets. The offender's accumulated assets totalled about $680,000 of which about $630,000 was a share portfolio in yet another assumed name. As I have said already, these assets have been confiscated by the New South Wales Crime Commission. The offender intends to claim the return of some, if not all, of these assets. Whether he loses all or some of these assets is not a mitigating factor. He is not entitled to retain assets which have been acquired by unlawful means. 13. Rehabilitation. I do not know whether or not the offender is likely to re-offend or to cease offending and whether or not the offender is likely to be rehabilitated. I have not heard evidence from the offender. I do not know what plans the offender might have for the future. His history has shown that he is likely to re-offend. He supplied a prohibited drug within three years of having been dealt with earlier supplying a prohibited drug. 14. Finally, deterrence. I must take into account both general and personal deterrence. Neither can be ignored or overlooked. As to the determination of an appropriate non parole period, it is necessary, it seems to me, having regard to the requirement of s54B(3) of the Crimes (Sentencing Procedure Act) that I balance the aggravating factors, and I have referred to them, against the mitigating factor, and I have referred to it. In doing that, I have determined that the standard non parole period should be reduced by 20 per cent. Accordingly, the standard non parole period of fifteen years is reduced by three years to twelve years. As I cannot see any special circumstance, the balance of the term, or non parole period [sic], will be one-third of twelve years, which is four years. Thus, the sentence is imprisonment for sixteen years with a non parole period of twelve years and a parole period or balance of the term of four years.

Ground 1: "The learned sentencing judge erred in his approach to the application of the amendments to the Crimes (Sentencing Procedure) Act, s54A-s54D."

Ground 2: "The learned sentencing judge erred in failing to take into account s21A Crimes (Sentencing Procedure) Act in its entirety."

Ground 3: "The sentencing judge erred in his assessment of the discount for the applicant's plea of guilty: Crimes (Sentencing Procedure) Act s22." 16 It is unnecessary to set out at length the principles stated by this Court in Way. The parties are agreed, correctly, that the sentencing exercise did not conform to those principles in that:

(a) The standard non-parole period and the three identified paragraphs in s21A(2)(d), (n) and (3)(k) were applied in isolation, divorced from applicable common law principles embodied in long-standing sentencing practice. All of the "traditional considerations" remain relevant (see s21A(1)(c) and the concluding portion of the sub-section; R v Johnson [2004] NSWCCA 140 at [54]).

(b) For the reasons stated in Way at [68]-[71], [122] and [131], it was not appropriate for the sentencing process to commence at the standard non-parole period, oscillating about it by reference to the three specified aggravating and mitigating factors. The standard non-parole periods were framed upon the assumption that the case was determined at trial, and not in consequence of a plea of guilty. 17 The applicant submits that an excessive sentence was imposed in consequence of these particular errors. 18 The respondent submits that the sentencing judge ultimately took account of all relevant mitigating features when he addressed the "subjective features applicable to the offender" in the lengthy passage set out above. This adverted to all relevant "traditional considerations", including those touching a guilty plea as expounded in R v Thompson & Houlton (2000) 49 NSWLR 383. The Crown submits that no less a sentence was warranted in law than that imposed. 19 The standard non-parole period, however, can properly take its place as a reference point, or benchmark, or sounding board, or guidepost, along with the other extrinsic aids such as authorities, statistics, guideline judgments and the specified maximum penalty as are applicable and relevant: Way at [122]; R v AJP (2004) 150 A Crim R 575. In AJP, Simpson J set out at [13] the approach to identifying where a particular offence lay within the range of objective seriousness:

The following propositions emerge from Way and subsequent cases:

(i) while s 54B(2) requires, in sentencing in respect of an offence to which Div 1A applies, unless the sentencing court determines that there are reasons not to do so, that it set the standard non-parole period as the non-parole period for the offence, that obligation exists where the offence in question is an offence in the middle of the range of objective seriousness of offences of that kind; one reason permitting departure from the standard non-parole period is that the offence in question falls outside the middle of that range (para [67]);

(ii) the standard non-parole period was intended for a middle range case where the offender is convicted after trial: a plea of guilty might be in itself a reason for departure from the standard non-parole period (para [68]);

(iii) a sentencing judge will be required, in relation to any given case, to hypothesise what is an abstract offence in the middle of the range of objective seriousness in order to determine where the subject offence lies in relation to such an offence; such an exercise is, in reality, little different from the traditional sentencing exercise of evaluating objective seriousness of any offence, and should be approached intuitively and based upon the general experience of courts in sentencing for the particular offence (paras [74] - [77]);

(iv) circumstances that affect the evaluation of the objective seriousness of any offence include (but are not necessarily limited to) the actus reus, the consequences of the conduct, such factors as impinge upon the mens rea of the offender, matters of motivation, mental state, mental illness or disability (where causally related to the commission of the offence). Factors that affect the circumstances of the offender as distinct from the offence (for example, youth or prior sexual abuse) do not affect the evaluation of objective seriousness (paras [85] - [86]);

(v) that an offence is "typical" or "common" does not dictate that it is in the middle of the range of objective seriousness (para [101]);

(vi) the numerical frequency with which an offence of a particular kind is committed is not an indicator of the objective seriousness of any individual instance of that offence: (paras [101] - [102]);

(vii) where a court determines that there are reasons for departing from the standard non-parole period, the standard non-parole period nevertheless remains of relevance in the sentencing determination, as a reference point, benchmark, sounding board or guidepost (para [122]); see also R v GJ Davies [2004] NSWCCA 319. 20 Simpson J's summary has been described as a "helpful distillation" of the principles emerging from Way: R v Mendez [2005] NSWCCA 246 at [34]. 21 A number of considerations may be of particular significance in assessing where a drug supply offence lies in the range of objective seriousness. In Way, the Court said at [159]:

In this regard we would concur with his Honour's assessment that the quantity of the drugs supplied was not determinative of that issue, a view which accords with the decision of the High Court in Wong v R (2001) 207 CLR 584 and of this Court in Regina v Markarian [2003] NSWCCA 8 . Clearly it must be a factor, but it is only one of a number of factors that would be relevant to an assessment of what constitutes, in the abstract, a midrange offence for which the standard non-parole period was set, and whether the subject offence was in that range. 22 In R v Shi [2004] NSWCCA 135, Wood CJ at CL (Spigelman CJ and Simpson J agreeing) said at [35], [37]-[38]:

[35] As was decided in R v Way the determination of the objective seriousness of the offence before the Court is not confined to a consideration of the circumstances which are specifically listed in s 21A(2) and (3). The motive of an offender, or any condition which affects the offender's state of mind which impinges upon the elements comprised within the mens rea is of relevance, although less so in the case of any condition which is self induced through abuse of alcohol or drugs.

[37] I am satisfied, applying the approach that was found to be appropriate in R v Way that error was shown. The offence involved in this case was a serious offence, having regard to the weight and the purity of the drugs involved, and also to the fact that the respondent knowingly, and with his eyes open, lent his aid to those who directed the supply network, in order to feed his habit, and in order to clear a debt.

[38] Clearly the case fell well below the middle range of seriousness, since the respondent was not a principal, and was not shown to have been engaged in the work of a courier on more than one occasion. There is also the fact that his supplier had taken advantage of him.

23 An examination of the role of the applicant in the present offence and the quantity of the drug involved suggests that, if the matter had gone to trial, the applicant would have been a candidate for imposition of the standard non-parole period as the offence may reasonably be characterised as one which lies in the middle of the range of objective seriousness for an offence of this type. 24 The final paragraph of the lengthy passage set out above demonstrates his Honour's approach to s21A in the particular case. He viewed the two identified aggravating factors and the one identified mitigating factor as the only criteria for adjusting the standard non-parole period that was otherwise controlling. 25 There is a degree of uncertainty as to his Honour's approach to the guilty plea. On one reading, he applied the discount only to the non-parole period, and in doing so allowed 20%, overlooking his earlier statement of intention to allow 25%. On another view, he allowed the full 25% in that the ultimate non-parole period of twelve years represents three-quarters of the head sentence of sixteen years that was imposed. On the latter approach, there is little to explain the head sentence other than by its relationship to the non-parole period. 26 Senior counsel for the applicant pointed to some matters that he submitted were given no or inadequate recognition in the judge's list of "subjective features". There is no reference to the fact that this is the first sentence of imprisonment suffered by the applicant. There is also said to be inadequate allowance for the fact that the applicant is the father and step-father of five dependent children. In my opinion, these matters do not establish error in the sentencing exercise. The former is impliedly recognised in the eighth of the "subjective features" and it carries little weight in light of the seriousness of the offence and the inevitability of a custodial sentence. The latter is not a factor for reducing an otherwise appropriate sentence, at least absent proof of exceptional hardship going beyond the inevitable results from incarceration. 27 The judge is also said to have erred in focussing primarily on the quantity of tablets being supplied, such focus contravening the principles expounded in Wong. See also Markarian v R (2005) 215 ALR 213 at [33]. I would reject this criticism. The brevity of his Honour's summary of the circumstances of the offence did not entail this error. The facts were in a small compass, but they revealed that the applicant was armed ready to supply large quantities of ecstasy both singly and in bulk. The weight and street value of the tablets and the mobile phone registered under an assumed name at a fictitious address evidenced the scope of the criminal enterprise at the level of the distribution chain at which the applicant was operating. His Honour's broad survey of the "objective" and "subjective" features of the particular case shows that he did not fall into the type of error discussed in Wong. 28 I would also reject the submission that his Honour's reference to ss21A(2) and (3) shows that he overlooked provisions such as s5(1) (imprisonment as a last resort) and other provisions of a general nature found in the Crime (Sentencing Procedure) Act, but not engaged on the facts of the particular case. 29 But once it is accepted (in light of Way) that the standard non-parole period did not have the controlling force attributed by the primary judge, the sentence must be arrived at having regard to the totality of features identified in the reasons below.

Ground 4: "The learned sentencing judge erred in not finding that there were special circumstances in the applicant's case" 30 The judge found no special circumstances apt to displace s44(2)'s provision of a non-parole period of not less than three-quarters of the term of the sentence. 31 The applicant seeks to rely upon a remark of the sentencing judge made during the proceedings on sentence when he said: I now find that nobody submits special circumstances, because you don't want special circumstances to increase the length of the parole period.

32 There is no basis for inferring that this observation coloured and infected the conclusion. There is no suggestion that the absence of a finding of special circumstances was based on anything other than the matters identified in the remarks on sentence. The applicant's health, family circumstances and prospects of rehabilitation did not suggest, let alone compel, departure from the statutory standard. This Court does not normally find an error of principle from interchanges between the bench and counsel that indicate an apparent incorrect appreciation of the law, since those views do not necessarily reflect a considered decision: R v Pham [2005] NSWCCA 94 at [11].

Ground 5: "The learned sentencing judge erred in taking into account the fact of the applicant's 'accumulated assets'." 33 Under a heading "Financial position of the accused", the statement of agreed facts provided to the sentencing judge referred to assets exceeding $680,000 in relation to which orders were made under s22 of the Criminal Assets Recovery Act 1990 "forfeiting" the applicant's interest in the property to the Crown. The applicant's counsel submitted that these matters could not in any way aggravate the offence because the seizure was to be contested. The judge commented in argument that he would endeavour not to depart from the agreed facts. The Crown agreed with the applicant's submissions that these facts could not aggravate the offence and pointed out that the order for seizure of the money was by consent and without admissions. 34 The sentencing judge referred to the applicant's accumulated assets twice in his findings on sentence. They were taken into account in rejecting the applicant's account of the circumstances of the offence and in finding that his role was "a relatively large scale dealer of prohibited drugs" (RS p7, item 11 in the passage set out above). 35 His Honour also stated that the applicant was "not entitled to retain assets which have been acquired by unlawful means" (RS p8, item 12). 36 The applicant submits in this Court that, while this latter statement is clearly correct, it had nothing to do with the applicant's case. The finding was an exercise in speculation. 37 The respondent submits that in the circumstances the sentencing judge was entitled to have regard to the disputed asset confiscation when considering what weight to give to the unsworn assertions attributed to the applicant in the Pre-Sentence Report concerning circumstances in which the particular offence was committed. The sentencing judge was faced with a situation where the applicant had not given evidence. 38 In the upshot, it is unnecessary to resolve this fifth ground of appeal, because the sentencing exercise must be done afresh. I shall have no regard to these "accumulated assets" in considering the applicant's criminality.

Disposition 39 With the hindsight benefit of Way and the concessions of the Crown as to particular errors of approach it is, I think, necessary to proceed to resentence. 40 The relevant matters were identified by the sentencing judge. 41 It is necessary to weigh all of the relevant factors. These obviously include the three that were highlighted by the sentencing judge. I am content to adopt his Honour's 25% discount having regard to a plea of guilty with maximum "utilitarian value". 42 The nature of the enterprise calls for severe denunciation, particularly having regard to the need for general and specific deterrence. The maximum penalty and the standard non-parole period reflect the seriousness with which the law views offences of this general nature. However, the applicant was not at the apex of the chain of supply. Rather, his criminality was that of a substantial street dealer operating as a principal involved in "wholesale" and "retail" supply of ecstacy, but as a one-man show. I would not, however, adjust the standard non-parole period (if otherwise applicable) upwards on this account, because that would be to risk double counting given that the organised nature of the enterprise is part and parcel of the supply of a "large commercial quantity" in the particular circumstances. 43 The applicant's age generates no ground for particular mitigation, despite the fact that this is his first sentence of imprisonment. Nevertheless, it would appear that his drift into criminality was influenced by his unfortunate family circumstances and the consequences of a motor vehicle accident that caused injury and led to long-term unemployment. The impact of that accident, both physically and psychologically is detailed in par 6 of the passage set out above from the reasons of the sentencing judge. 44 The applicant's list of prior offences is not a lengthy one, but the fact that it includes three offences of supplying a prohibited drug demonstrates that the applicant has forfeited any claim to leniency based on prior good behaviour. The criminal record is also one of the factors amply justifying the sentencing judge's refusal to find special circumstances; likewise, the qualified remorse displayed by the applicant (see par 11 of the passage cited). In all the circumstances, I would not adjust the standard non-parole period (if otherwise applicable) upwards. 45 The following conclusions appear available in this case:

(a) the offence lies in the middle of the range of objective seriousness for offences of this type; (b) there should be no adjustment upwards of this assessment having regard to any aggravating factors within s21A(2); (c) the principle mitigating factor available to the applicant under s21A(3) is his early plea of guilty which the sentencing judge held should attract a 25% discount; (d) the applicant's unfortunate family circumstances and the consequences of a motor vehicle accident that caused injury and led to long-term unemployment are subjective factors which assist the applicant on sentence; (e) there is no basis for a finding of "special circumstances" under s44 Crimes (Sentencing Procedure) Act 1999 . 46 The standard non-parole period remains an important reference point in the imposition of penalty where there is a plea of guilty. In a case such as this where, had the applicant been convicted after trial, the standard non-parole period would probably have had direct application, it is reasonable to bear this factor in mind when imposing sentence. Absent a finding of "special circumstances", imposition of the standard non-parole period of 15 years would attract a head sentence of 20 years' imprisonment. Where a 25% discount operates, a head sentence of 15 years' imprisonment with a non-parole period of 11 years and three months, would result, absent other factors. Here item (d) alone calls for some adjustment in the applicant's favour. 47 Taking all matters into consideration including the Form 1 matters, I propose a sentence of 13 years 4 months with a non-parole period of 10 years and the balance of the term of 3 years and 4 months. Like the primary judge, I see no basis for finding special circumstances. The sentence is to be back-dated to commence from the time when the applicant was taken into custody, namely 17 April 2003. The earliest date upon which the applicant will be eligible for release on parole is 16 April 2013. 48 BARR J: I agree with Mason P. 49 JOHNSON J: I agree with Mason P. **********

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