Riggio v R

Court of Criminal Appeal (NSW)|2015-08-13|Before: Bathurst CJ, Hulme J, Garling J

Judgment

BATHURST CJ: I have had the benefit of reading the judgment of Garling J in draft. I agree with the order proposed by his Honour and with his reasons.
I also agree with the additional remarks of R A Hulme J.
R A HULME J: The first ground of appeal is concerned with the process whereby the learned sentencing judge imposed an aggregate sentence. It asserts an error in the assessment of indicative sentences for the individual offences. But the indicative sentences are not amenable to appeal. Identification of error in the assessment of indicative sentences may be of some utility if it supports a contention that the aggregate sentence is excessive. However, the applicant does not assert that the aggregate sentence is excessive. In any event, I agree with Garling J that the asserted error is not established.

Facts

The following summary is taken from the Summary of Facts which was tendered to the sentencing Judge, and from his Honour's summary.
The applicant was identified by police in the central metropolitan region as being involved in a criminal enterprise to supply quantities of the prohibited drug, 3-4 methylenedioxyamphetamine ("MDA") with two other offenders, Mr Albiciuc and Mr Lai.
The circumstances of the first offence were that the applicant negotiated the purchase of MDA powder from Mr Lai who was living in Melbourne. It was agreed between the applicant and Mr Lai that Mr Albiciuc would travel to Melbourne to meet with Mr Lai where he would collect the MDA powder and then transport it back to Sydney to supply to the applicant.
The applicant and Mr Lai made arrangements for a suitable date for Mr Albiciuc to meet with Mr Lai in Melbourne. On Friday 10 June 2011, Mr Lai telephoned the applicant and informed him that he would be collecting the MDA on the next day, being Saturday 11 June 2011, and that it would be appropriate for Mr Albiciuc to come to Melbourne on Monday 13 June 2011.
In fact, Mr Albiciuc left his home and travelled to Melbourne on 14 June 2011. He met with Mr Lai and they visited a number of places together over a number of days. Eventually, on Friday 17 June 2011, Mr Lai received a telephone call from an unidentified associate who informed him that the drugs were available. Mr Lai obtained the drugs and provided them to Mr Albiciuc who then travelled back to Sydney. As he travelled to Sydney late on the afternoon of Friday 17 June 2011, the applicant telephoned Mr Albiciuc and enquired as to his progress.
Late on the evening of Friday 17 June 2011, Mr Albiciuc was stopped by police on the Hume Highway just north of Marulan.
The police searched the vehicle being driven by Mr Albiciuc and, in a compartment on the rear passenger seat, they located 403.4gms of brown powder packaged in a vacuum-sealed bag, which was later analysed as MDA with a 53% purity. Police also located two large resealable bags containing a white or cream coloured powder, which was later analysed and identified as propoxyphene, with a weight of 410.5gms.
Mr Albiciuc was arrested by the police.
For the purposes of the Trafficking Act, the commercial quantity of MDA is 125gms and the large commercial quantity is 500gms. The indictable quantity for propoxyphene is 50gms, and the commercial quantity is 2.5kg.
The supply of the MDA constituted the first offence on the indictment. The supply of the propoxyphene constituted the offence which was placed on the Form 1.

Second Offence

On the day after Mr Albiciuc was arrested, the applicant spoke with Mr Lai and discussed the fact that Mr Albiciuc had been arrested. The applicant attempted to identify what had gone wrong. He suggested to Mr Lai that something must have happened in Melbourne and asked Mr Lai to come to Sydney so that he could talk with him.
On 23 June 2011, Mr Lai flew to Sydney and met with the applicant at his residence, which was above a restaurant at Leichardt, in which the applicant was involved. Later that evening, Mr Lai boarded a flight and returned to Melbourne.
In the following days there were a number of text messages and conversations between the applicant and Mr Lai, largely dealing with whether there had been any mistake with respect to the previous supply of drugs, and also relating to the supply of a further quantity of MDA tablets.
According to the Facts, sometime between 7 August 2011 and 8 August 2011, the applicant supplied Mr Lai with 1,800 MDA tablets via a courier. On 8 August 2011, the applicant sent a text message to Mr Lai to ask what was happening. Mr Lai replied "I only received 1,800 not 2k". The applicant responded, "I counted myself bro". Mr Lai sent a message "One bag said 300, rest 500 each".
It was agreed in the Statement of Facts that the typical average weight of a tablet found to contain a prohibited drug is 0.25gms. Accordingly, the police calculated that 1,800 tablets would weigh 450gms. As noted earlier, the commercial quantity of MDA is 125gms, and the large commercial quantity for that drug is 500gms.
On 11 August 2011, the applicant was arrested at his residence located above the restaurant in Leichhardt. The premises were searched. A sum of cash was found concealed in a television unit. Two mobile phone handsets and two SIM cards were discovered. One of the SIM cards was found concealed behind a lounge. In another area of the residence, police found a set of electronic scales, a smaller set of electronic scales and an open packet of Glad Resealable Bags.
The applicant was conveyed to the Newtown Police Station where he underwent an electronic interview. He denied to police that he was in any way involved in the supply of prohibited drugs, and denied that he had discussed prohibited drugs with Mr Lai or Mr Albiciuc.
The applicant has been in custody since the day of his arrest on 11 August 2011.

Local Court Proceedings

In the Local Court, the applicant pleaded not guilty. A contested committal hearing was held and he was committed for trial to the District Court in December 2012. The applicant first entered pleas of guilty to the offences on the indictment on 9 August 2013.
By the time that the applicant came to be sentenced in the District Court, the co-offender had been dealt with. However, he was not dealt with by the sentencing Judge in this case.

Sentence Proceedings in the District Court

The sentence proceedings commenced on Friday 2 May 2014, when the Crown tendered, without objection, a series of documents.
Counsel for the applicant tendered a series of documents including a letter from his client to the Court, a report of a Mr Watson Munro, psychologist, and a bundle of references from family members and friends of the applicant.
Statistics from the Judicial Commission of New South Wales were also tendered and became an exhibit.
In his letter, the applicant expressed his remorse and contrition for the offences for which he stood for sentence. He expressed his deep embarrassment and his regret at his circumstances. He informed the Court that, after he had been released from prison in 2005, a matter to which it will be necessary to return, he had acquired a restaurant in Leichardt where he had spent almost every day and night working for six years. He informed the Court that, having moved the business to larger premises in 2011, he had suffered a significant heart attack which required him to be hospitalised.
He asserted in his letter that, upon release from hospital, he was again faced with more pressure "… when I was confronted by a member of an outlaw motorcycle gang (in April 2011) asking me to pay a sum of $25,000 before the doors of the restaurant opened. …".
The applicant claimed he was overwhelmed by the request and although advised by his daughter to go the police, he did not do so. Rather, he claimed that he was introduced to a friend who could obtain a loan of the money for him for a short term period. He then informed the Court that the restaurant had not been as successful as he had anticipated, that he was in a great deal of debt and that, as a consequence, he had resorted to dealing in drugs.
The reference in that letter to his previous offences called up a previous episode of criminality involving the possession, supply and manufacture of prohibited drugs.
On 23 September 2004, Hosking DCJ sentenced the applicant to various terms of imprisonment with respect to five counts upon which he had been convicted. In combination, the applicant was sentenced to a non-parole period of 4 years, commencing on 9 February 2001 and expiring on 8 February 2005, with a balance of term of 18 months.
The five offences consisted of knowingly take part in the manufacture of a prohibited drug (2 offences) and being knowingly concerned in the supply of a prohibited drug (3 offences). As well, the applicant asked for three further offences to be taken into account at the time of that sentencing, one being goods in custody reasonably suspected of being stolen, one being the supply of a prohibited drug in an indictable quantity, and one being possession of a prohibited drug.
These were the only offences of any relevance on the applicant's prior criminal history.
The sentencing Judge received written submissions from both the Crown and counsel for the applicant. They were comprehensive submissions. The Crown submitted that the offences were very serious. It submitted that the applicant was a principal in the enterprise along with Mr Lai. The Crown submitted that the enterprise involved moving reasonably large quantities of prohibited drugs between Melbourne and Sydney.
The Crown pointed to the quantity of drugs as being a relevant consideration to the assessment of objective seriousness. In respect of Count 1, the Crown pointed out that the quantity of drugs was more than three times the commercial quantity, and in respect of Count 2, that the quantity was just under four times the commercial quantity.
The Crown submitted that the only evidence with respect to the motivation for the offences appeared to be a financial one, because it could not be said that the applicant had involved himself in the offences to maintain a drug addiction.
The Crown noted that the offences were part of a planned or organised criminal activity. Ultimately, the Crown submitted that the offences fell above the mid-range of seriousness for the type of offence.
The Crown submitted that there was a particular need for general deterrence in cases involving dealing in, and supplying, prohibited drugs. It also drew attention to the need for specific deterrence to feature in sentencing the applicant in light of the previous convictions for similar offences, and the fact that the applicant had re-offended.
With respect to the applicant's plea of guilty, the Crown set out the history of the committal proceedings, and submitted that the guilty plea was not made at the first available opportunity, and it could not be categorised as an early plea. It submitted that there was a significant delay between the time of committal and the time of the plea, which reduced the utilitarian value of the pleas.
The Crown drew attention to the sentence which had been imposed on the co-offender, Mr Albiciuc, but noted that there was a different number of offences charged, and that the applicant's role and level of participation was significantly different from that of Mr Albiciuc, who could be regarded essentially as a courier.
The applicant's counsel submitted that the objective criminality of the applicant should be considered as being at a mid-range level of objective seriousness. He submitted that it would be an error to treat the applicant's prior criminal record as increasing the objective seriousness of the offence, but conceded that it was available by reference to sentencing principles of retribution, deterrence and protection of society to indicate that a more severe sentence would be warranted.
The applicant's counsel submitted that his plea of guilty indicated an acceptance of responsibility by him for the offences, and a willingness to facilitate the administration of justice. He also submitted that the sentencing Judge should find that the plea of guilty corroborated the applicant's contrition and remorse for the commission of the offences.
The applicant's counsel submitted that an appropriate discount to reflect the utilitarian value of the guilty plea was between 15% and 20%, and that a finding of special circumstances ought be made with a consequent reduction in the otherwise appropriate non‑parole period.

Remarks on Sentence

The Remarks on Sentence were delivered by his Honour on 25 July 2014. They were comprehensive. Of the applicant's role, his Honour found that the material demonstrated that the applicant was the principal in what seemed to him to be a small drug supply network. His Honour said that it was the applicant's role to arrange transactions between himself and Mr Lai using Mr Albiciuc as a courier or go-between.
His Honour then considered the sentence which had been imposed upon Mr Albiciuc. Having described it and the Crown case against Mr Albiciuc, his Honour concluded that the applicant's case differed significantly from that of his co-offender. He held that because the applicant was the principal and the co‑offender was directed in what to do, the applicant's criminality was much more significant and much more serious.
As part of the discussion in which the position of Mr Albiciuc was being distinguished by his Honour, his Honour mentioned that the applicant had a significant past criminal record of relevance. Clearly Mr Albiciuc did not.
His Honour then sketched the applicant's personal background, and his subjective circumstances leading up to the offence. In so doing, his Honour generally recounted the version for which the applicant contended, based upon the material put before his Honour, such as the letter from the applicant. His Honour accepted, in part, the report of the psychologist that the applicant was suffering from depression and anxiety. His Honour concluded that, on the facts before him, that condition was not in any way connected to the offences for which the applicant was to be sentenced.
His Honour rejected the applicant's account that the offences took place in the context that he was stood over for the payment of money. That rejection was based upon an absence of sworn evidence, both from the applicant and from others who would be able to recount the circumstances. Ultimately, his Honour concluded, having rejected the suggestion of duress, that the only finding which was available was that the applicant committed the offences for his own financial gain.
His Honour rejected the findings of the clinical psychologist on this issue because they were not based on a firm factual foundation which had been justified by the admission or acceptable evidence.
His Honour then considered the objective seriousness of the offences. He said that they were objectively very serious and they related to a commercial quantity of prohibited drugs. His Honour, in global terms, referred to the well‑known authorities that people who dealt in commercial quantities of drugs should be dealt with by sentencing courts with the imposition of a condign punishment.
His Honour noted that there were two separate acts of criminality and, as well, the Form 1 offence. He then said: "There has to be a degree of accumulation given, that they occur on different dates, and involve very significant amounts of drugs. They are separate and I intend to accumulate them."
His Honour then said, at page 13 of the Remarks on Sentence, this: "I do not intend to impose a standard non-parole period partly because of the medical condition of the offender, which I find will need significant care whilst in jail and out of jail, partly for the need for supervision, and partly because of issues of accumulation and the need for the offender to be assisted over a long term in terms of rehabilitation."
It is to be remembered that whilst a standard non-parole period of 10 years existed for each of the two offences, it was not directly applicable because the applicant had pleaded guilty. It was to be considered, together with the maximum sentence, as a legislative guidepost: see Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120. This is the approach adopted by the sentencing Judge.
His Honour then expressed himself as taking into account the offender's subjective case. He then said: "As I have indicated, I intend to find special circumstances, in part to assist the rehabilitation of the offender, and part because he will need supervision."
His Honour then went on to set out that he proposed to impose an aggregate sentence. He then moved to address the question of indicative sentences. In respect of each count, he indicated a sentence of 9 years with a 6 year non‑parole period. He then addressed some remarks to issues of totality and also the existence of the Form 1 matter, and proceeded to impose the aggregate sentence of 10 years, with a non-parole period of 6 years and 8 months. He ordered that the sentence commence on 11 August 2011, being the day the applicant was taken into custody.

Grounds of Appeal

A Notice of Application for leave to appeal was filed on 10 April 2015. It included two specific grounds of appeal. They were: 1. the sentencing Judge erred in adopting a blanket assessment by indicating the same sentence for each of the offences for which the applicant was to be sentenced; 2. the sentencing Judge erred in using the applicant's prior offending so as to increase the objective seriousness of the offences.
It is appropriate to consider these grounds separately.

Ground 1 - Blanket Assessment Approach

The applicant submitted that since the sentencing Judge indicated the same sentence for each of the counts, that he had fallen into error which was indicative of his failure to properly assess the objective seriousness of the offending on the part of the applicant.
The applicant then made a series of submissions which fell under this ground, but which seemed to be suggestions of discrete error. The first of these was that there was no real assessment by the sentencing Judge of the objective seriousness of the offending in respect of each the counts. The next was that there was no real determination as to the role of the applicant, including significantly where he was placed on the hierarchy of the drug supply network. There was no evidence of the value of the drugs, nor the amount of the money which the applicant had earned from his involvement in the drug offences.
Finally, the applicant drew attention to the fact that he received the same sentence on each count, notwithstanding that Count 1 had a Form 1 offence attached to it, and that combined with the errors just referred to, could only lead to the conclusion that an impermissible "blanket assessment" approach had been adopted.
With respect to the assessment of the objective seriousness of the offending, the Crown pointed to the concession made in written submissions to the sentencing Judge by counsel for the applicant, that: "… the objective criminality of the offender should be considered to be at mid-range level of objective seriousness."
The Crown submitted that in those circumstances, his Honour did not need to undertake a detailed analysis before reaching this conclusion.
The Crown drew attention to the Remarks on Sentence here his Honour turned to the objective seriousness of the offences, and discussed them. His Honour said that the offences "are objectively very serious". The Crown submitted that the sentencing Judge set out an entirely adequate basis for that finding.
I can see no basis for any error on the part of the sentencing Judge with respect to the objective seriousness of the offences and the role which the applicant played. The applicant's counsel accepted that the offences fell within the mid-range of objective seriousness. His Honour had regard to the objective seriousness of the offences, and found that they were objectively very serious. He carefully took into account the factors relating to the nature of the offences, the conduct of the applicant, the quantity of drugs involved, and the motivation.
I am unpersuaded that the applicant has demonstrated error here.
The second issue to which attention is drawn in the applicant's submissions, is that other than a determination in respect of the first offence - that the applicant was a principal - there was no real determination as to the role of the applicant. It is submitted that there was an absence of evidence in relation to the applicant's role and, more significantly, where he was placed in the hierarchy of any drug supply network.
The Crown submitted that the finding made by the sentencing Judge was adequate and attended to relevant principle.
In R v Olbrich [1999] HCA 54; (1999) 199 CLR 270, the High Court of Australia considered matters relating to the sentence of a person convicted of an importation of a prohibited import. The High Court specifically noted that it did not accept that the identification of the precise nature of an accused's involvement in such an act was an essential aspect of the sentencing process. The High Court also noted that the utility of an exercise of identifying the role of an offender is necessarily limited by the extent to which material facts are known.
Here, the agreed Statement of Facts which was tendered gave a reasonably comprehensive description, for the purposes of sentencing, of the actual activities of the applicant in respect of both offences. The conclusion that he was a principal was well open to the sentencing Judge. To the extent that it may be contended that the Judge's categorisation of the applicant as a principal extended only to the first count, and not to the second count, that does not bespeak error. The criminal conduct of the applicant in the second count was well described. It is clear that the applicant was supplying drugs to Mr Lai, and that he did so. There was no other factual material placed before the Court to suggest that the applicant was other than the principal in that offence.
I am not persuaded that there is any error in the way that the sentencing Judge approached this matter.
Ultimately, this ground was supported by a contention that because the indicative sentence for each of the two counts was the same, the sentencing Judge had erred because he had made a "blanket assessment", and that this approach was erroneous. The applicant relied upon the judgment of RA Hulme J in JM v R [2014] NSWCCA 297 at [39].
The term "blanket assessment" is apt to describe indicative sentences touching upon multiple offences. In the circumstances here, where the applicant was being sentenced for two similar offences, it is not an appropriate description.
The criminality involved in the two offences was serious. The sentencing Judge correctly said so. The quantity of drugs and the nature of the drugs were similar. The conduct of the applicant in respect of each offence was broadly similar. The offences took place in time proximity, one with the other. The role occupied by the applicant in each case was the same. He was the principal involved in the offence.
Obviously, the same subjective factors apply. The difference between the two was that the first offence had a Form 1 offence attached to it. But, it was also the first offence in time. Although one might have thought that the first offence in point of time may, but not necessarily must, have warranted a lesser sentence than a second such offence, that approach was complicated by the need to make proper allowance for the offence on the Form 1.
Here, there was such similarity in all of the factors relating to each offence, both objectively and subjectively, that there was no error in a Judge indicating that the sentences for each of the offences would be the same.
Concentrating on indicative sentences may well reveal error in the aggregate sentence reached: R v Brown [2012] NSWCCA 199 at [17], however it is necessary to keep in mind that the question for consideration by this Court is whether the aggregate sentence which was imposed was erroneous.
Here, the mere fact that identical indicative sentences were described by the sentencing Judge for the two offences does not indicate any error of the kind contended for.
I am not persuaded to uphold Ground 1 of the appeal.

Ground 2 - Error in Use of Prior Offending

The principle by which an offender's prior convictions may be relevantly considered on sentencing is clear.
In Veen v The Queen (No.2) [1988] HCA 14; (1988) 164 CLR 465, at 477 Mason CJ, Brennan, Dawson and Toohey JJ, said: "… The antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: … The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration, or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender, and other offenders, from committing further offences of a like kind."
The applicant submits that the prior criminal history of the applicant was improperly used by the sentencing Judge to warrant the imposition of a higher penalty. The applicant points to the Remarks on Sentence where the sentencing Judge was engaged in a comparison of the role of the applicant and his co‑offender. The applicant cites the following passage in the sentencing Judge's remarks: "The offender's case differs significantly from that of his co-offender. In the offender's case he is the principal. The material demonstrated that he was directing the co-offender in the co-offender's role. Accordingly, his criminality is much more significant and much more serious. In the offender's case he has a significant record for like offences."
The applicant submits that it is clear from a reading of this passage that the sentencing Judge was using the applicant's antecedent history in his assessment of the objective criminality of the applicant's conduct, which was an erroneous approach.
I do not accept that the applicant has demonstrated error. A fair reading of the whole of the sentencing Judge's remarks, which is the appropriate approach on appeal, indicates that the passage relied upon occurred in the context of the sentencing Judge considering an issue of parity with the applicant's co‑offender. The sentencing Judge was drawing attention to the differences between the two offenders, and indicating that he did not regard the sentence imposed on the co-offender as being a constraint on the approach which he was taking to the sentencing of the applicant. No complaint is made in this Court that the sentencing Judge erroneously failed to consider the issue of parity.
The trial Judge later separately addressed the issue of objective criminality and the seriousness of the offending. In that part of his judgment, he made no reference to the applicant's prior criminal history.
Counsel for the applicant accepted that success on this ground depended upon the Court reading that part of the Remarks on Sentence to which I have referred at [92] as being directed to an assessment of objective seriousness. I do not accept that it can, or ought, be read in that way.
I am wholly unpersuaded that the sentencing Judge used the applicant's past record in any inappropriate or erroneous way. I am unpersuaded that error has been established. I would not uphold this ground.

Conclusion

In my opinion, the applicant has not established that the sentencing Judge has erred in any of the ways contended for in the two grounds of appeal. I can see no basis for a grant of leave to appeal in this matter.

Orders

I would propose the following order: 1. Leave to appeal be refused.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 August 2015

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