56 NSWLR 146
Gore v R (2010) 208 A Crim R 353 at [104]).
Kay v R
Ellis v R [2017] NSWCCA 218
Markarian v The Queen [2005] HCA 25
228 CLR 357
Obeid v R [2017] NSWCCA 221
Qutami v R [2001] NSWCCA 353
Source
Original judgment source is linked above.
Catchwords
56 NSWLR 146
Gore v R (2010) 208 A Crim R 353 at [104]).
Kay v REllis v R [2017] NSWCCA 218
Markarian v The Queen [2005] HCA 25228 CLR 357
Obeid v R [2017] NSWCCA 221
Qutami v R [2001] NSWCCA 353
Judgment (3 paragraphs)
[1]
Solicitors:
N Digges - Applicant
Solicitor for Public Prosecutions - Respondent Crown
File Number(s): 2014/262351
Decision under appeal Court or tribunal: District Court of NSW
Jurisdiction: Criminal
Date of Decision: 26 May 2017
Before: Haesler SC DCJ
File Number(s): 2014/262351
[2]
Judgment
HOEBEN CJ at CL:
Offences and sentence
The applicant pleaded guilty in the District Court to the following two
counts:
Count 1 - The deemed supply of 9.18g of heroin, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW) (DMT Act). The maximum penalty is imprisonment for 15 years and/or a 2000 penalty unit fine.
Count 2 - The deemed supply of 13.94g of methylamphetamine, contrary to the DMT Act. The maximum penalty is imprisonment for 15 years and/or a 2000 penalty unit fine.
The applicant sought to have the following further offences taken into account on a Form 1 in relation to Count 2:
1. Knowingly deal with the proceeds of crime, being $41,200 in cash, contrary to s 193B(2) of the Crimes Act 1900 (NSW) for which the maximum penalty is imprisonment for 15 years.
2. Possession of 0.67 g of cannabis leaf, contrary to s 10(1) of the DMT Act which carries a maximum penalty under s 21 of the Act of 20 penalty units and/or imprisonment for 2 years.
Haesler SC DCJ in an ex tempore sentence judgment imposed an aggregate head sentence of 2 years and 3 months with a non-parole period of 1 year. The indicative sentences were:
Count 1 - 1 year and 10 months;
Count 2 - 2 years and 4 months (taking into account the Form 1 matters).
The applicant seeks leave to appeal against that sentence on the following grounds:
Ground 1 - The learned sentencing judge applied the incorrect test in stating that "to give effect to the clear authorities that require custodial penalties for those who supply drugs".
Ground 2 - The learned sentencing judge erred in treating the applicant's criminal record as an aggravating factor.
Ground 3 - His Honour erred in treating as an aggravating factor the fact that the drugs and money were found at the applicant's house, where his wife and children lived.
Ground 4 - In light of the applicant's strong subjective case, the sentence imposed upon the applicant was manifestly excessive.
Factual background
On 5 September 2014 police executed a search warrant at the applicant's home. Heroin, methylamphetamine and cash were found in the home.
The applicant lived there with his wife and two daughters, then aged 13 and 5. The amount of drugs found was, in the scheme of things, relatively modest. There was evidence before the court that the heroin was valued at about $5,000 street value and the methylamphetamine at about $6,500.
A plea of guilty was entered one week before the date fixed for trial. In those circumstances, his Honour applied a discount of 10 per cent to reflect the utilitarian value of the plea of guilty.
Proceedings on sentence
His Honour took into account the large amount of cash, giving rise to the proceeds of crime offence, and noted that he would not be sentencing the applicant in respect of that offence, but would increase the sentence for count 2 in accordance with Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146 and as part of the instinctive synthesis approach to sentencing, set out in Markarian v The Queen [2005] HCA 25; 228 CLR 357.
In relation to the presence of the applicant's wife and children in the home where drugs were found, his Honour said:
"They were present while the drugs and money were in the home. That is a matter that I have to take into account. Where drugs are kept in a family home, where large sums of money are kept in a family home, where someone is supplying drugs, it is not beyond the realms of possibility, in fact, a real likelihood, that others in the community find out about these facts. It is notorious that crimes are committed by those who seek to steal drugs and sums of money held by drug suppliers, putting at real risk the children in the premises.
If Mr Ristovski had thought seriously about the consequences of his actions, I am sure his daughters' lives and wellbeing would have taken precedence. In this case he failed to think. That is a matter that I should and must take into account." (Sentence judgment 2.4)
In relation to the objective seriousness of the offending, his Honour observed that the sale and distribution of illicit drugs caused considerable harm in the community, not just to those who use the drugs but to their families, and to those who are preyed upon by people who steal or engage in other criminal activities to get funds to purchase drugs. It was for this reason that general deterrence played such an important part in sentencing for drug supply offences. His Honour noted that despite the high penalties for drug supply offences, the applicant had continued to engage in that activity. His Honour regarded the offending as serious even though the quantity of drugs was modest.
His Honour examined in some detail the applicant's subjective case and his motivation for offending. The applicant had convictions for previous drug supply offences. This offending, however, had occurred 20 years before the present offences. During that 20 year period, the applicant had no convictions of any kind.
The applicant was diagnosed with IgA neuropathy which requires daily kidney dialysis. There was evidence before the court that the applicant required a kidney transplant but was on a very long waiting list. There was an option of a transplant in Croatia but it would be very expensive. In those circumstances, his Honour was prepared to accept that the applicant turned to drug supply in order to obtain funds to help pay for the proposed operation. Although his Honour gave weight to those considerations, his Honour also accepted the need to be somewhat cautious and sceptical in relation to those matters, having regard to what the Court of Criminal Appeal said in Qutami v R [2001] NSWCCA 353; 127 A Crim R 369 about taking into account untested assertions which go to mitigate penalty. In that regard, no oral evidence was given by the applicant or his wife.
Despite those reservations, his Honour concluded on balance that the motivation put forward for the selling of drugs did have a plausible basis. Even so, his Honour noted that while that explanation provided some assistance to the applicant's subjective case, it could not operate to excuse the offending. His Honour observed:
"The bottom line is that one waits on the waiting list and accepts one's fate; one does not impose harm on the community by supplying drugs in order to mitigate the effects of a serious illness.
For those reasons, to give effect to the clear authorities that require custodial penalties for those who supply drugs, I reject any suggestion of imposing a sentence of a non-custodial nature, despite matters going to hardship presently before the Court." (Sentence judgment 4.4)
His Honour took into account, as part of the applicant's subjective case, that he and his wife had worked hard to make a good home for their daughters and that the youngest of the daughters had significant health problems of her own. His Honour accepted that the family had struggled because of the applicant's health problems and that they had placed stress on the applicant's relationship with his wife. The applicant's illness meant that he had been unable to work for a significant period of time and that his wife has had to care for him, as well as the family.
His Honour noted that although the applicant's psychological condition made him vulnerable to taking short cuts, and his medical condition must attract sympathy, the applicant had placed his own needs above those of the community when he chose to engage in the sale of drugs. His Honour also noted that because of his ill-health, the applicant's time in prison would be much more onerous for him than for the normal prison population. The Court was advised that the applicant spent some hours each day connected to a dialysis machine.
Despite these matters, his Honour determined that the non-parole period to be imposed still had to reflect the seriousness of the offending. His Honour found special circumstances because of the applicant's ill-health and significantly reduced the length of the non-parole period to be imposed.
THE APPEAL
Ground 1 - The learned sentencing judge applied the incorrect test in stating that "to give effect to the clear authorities that require custodial penalties for those who supply drugs".
The applicant submitted that the sentencing judge did not consider the question of whether or not the applicant's medical condition constituted "truly exceptional circumstances" so as to leave open the option of a non-custodial sentence. The applicant submitted that in failing to consider this question, his Honour fell into error.
Consideration
Although not relied upon by the applicant in Ground 1, the Crown correctly drew the Court's attention to recent decisions of this Court which placed doubt on the oft quoted principle set out in R v Clarke (unreported, NSWCCA, 15 March 1990) to the effect that:
"For those who are engaged in substantial drug trafficking, a sentence of fulltime imprisonment must follow unless there are exceptional circumstances."
The Crown referred the Court to the recent decisions of Robertson v R [2017] NSWCCA 205 where Simpson JA concluded that too rigid an application of what was said in Clarke might wrongly involve a two stage sentencing process and wrongly fetter a judge's sentencing discretion. In Kay v R; Ellis v R [2017] NSWCCA 218 at [46] - [47] I expressed a similar opinion with which Davies and Bellew JJ agreed. At the present time, a five member bench of this Court is considering the applicability of the "Clarke principle" (R v Parente, heard 4 October 2017).
Subject to the outcome of the Parente proceedings, Clarke v R remains good law and it was not an error on the part of his Honour to apply it.
In that regard, it cannot be said that his Honour ignored the applicant's medical condition and did not give it appropriate weight. The applicant's medical condition occupied a considerable part of the judgment. It is significant that defence counsel in the sentence proceedings did not submit that the applicant's health problems were such as to constitute exceptional circumstances. Being familiar with Clarke v R as he was, had his Honour considered that exceptional circumstances had been made out, he would have made such a finding and implemented it when imposing sentence. The fact that his Honour did not do so is a strong indication that his Honour was not of that opinion.
In any event, the applicant on appeal is substantially bound by the way in which he ran his case at first instance (Zreika v R [2012] NSWCCA 44). In those circumstances, it is somewhat unfair to assert error on the part of a sentencing judge in not dealing with a matter which was not raised before him or her. This would include the application of the "Clarke principle" and how to treat the applicant's medical condition. As already indicated, when his Honour said "there has to be a custodial sentence" counsel for the applicant did not say anything at that point about the proviso for exceptional circumstances which one would have expected if the applicant was relying on it.
This ground of appeal has not been made out.
Ground 2 - The learned sentencing judge erred in treating the applicant's criminal record as an aggravating factor.
The applicant submitted that in his sentence judgment, his Honour referred to the harm which the sale and distribution of illicit drugs caused to the community and concluded his observation on this subject by referring to the applicant's knowledge of the consequences of drug supply because of his previous convictions for that kind of offence. The applicant submitted that by treating the applicant's prior criminal record as an aggravating factor, his Honour fell into error. This was particularly so when those offences had been committed 20 years before the offences under consideration.
The observation relied upon by the applicant to substantiate this ground of appeal does not support the submission that his Honour treated the applicant's criminal record as an aggravating factor. Looked at in its full context, the impugned observation by his Honour went no further than demonstrating the applicant's moral culpability as a result of being involved in drug supply in that he was a person who was well aware of the harm done by drug supply and the consequences of being apprehended.
This is made clear by an exchange between his Honour and defence counsel, Mr Hallas, in the sentence proceedings:
"HALLAS: On the question of sentence, your Honour, there's two supply matters. Accumulation or concurrency, I would urge on your Honour to concurrency. It's arising from the one event, if you like. He can't expect leniency. 20 years ago he has an entry.
HIS HONOUR: Yes, he knew what he was doing. He knew the consequences." (Sentence proceedings, 26 May 2017, p 8, line 28)
This ground of appeal has not been made out.
Ground 3 - His Honour erred in treating as an aggravating factor the fact that the drugs and money were found at the applicant's house, where his wife and children lived.
The applicant submitted that the way in which Honour referred to this matter was indicative of him using it as an aggravating factor (see [9] hereof). The applicant submitted that in doing so, his Honour erred in at least three ways:
1. He did not find that the applicant had thought about this risk. His Honour made a specific finding to the contrary, i.e. the care and love provided by the applicant and his wife for their children.
2. There was no evidence that the applicant was selling drugs from the house.
3. His Honour was not entitled to take into account the possibility that the applicant and his family would be victims of a crime committed by others. To do so was tantamount to blaming a victim of robbery for owning property.
His Honour did not err in treating the matter raised in Ground 3 as an aggravating factor. His Honour does not appear to be referring to s 21A(2)(ea) of the Crimes (Sentencing Procedure) Act 1999 (NSW) i.e. that the offence was committed in the presence of a child under 18 years of age. His Honour was doing no more than making the common sense observation that by keeping drugs and a large sum of money at his home, the applicant was placing his family at risk for the reasons which his Honour indicated. His Honour's observation was undoubtedly correct and his Honour was entitled to take that matter into account as a matter of aggravation.
This ground of appeal has not been made out.
Ground 4 - In light of the applicant's strong subjective case, the sentence imposed upon the applicant was manifestly excessive.
The applicant submitted that if one did not take into account his health, his Honour was entitled to impose the sentence which he did. In the light of his severe kidney disease, however, the applicant submitted that the sentence imposed on him was, in the circumstances, manifestly excessive.
The relevant principles to be applied when determining whether a sentence is manifestly excessive were recently set out by R A Hulme J in Obeid v R [2017] NSWCCA 221 at [443] (with whom Bathurst CJ, Leeming JA, Hamill and N Adams JJ agreed) namely:
"When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59].
• Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases.
• Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error.
• It is not to the point that this Court might have exercised the sentencing discretion differently.
• There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle.
• It is for the applicant to establish that the sentence was unreasonable or plainly unjust."
Applying those principles, the aggregate sentence in this case is not shown to be unreasonable or plainly unjust for the following reasons.
1. The maximum penalty for each of the offences on the indictment was 15 years imprisonment.
2. The estimated street value of the heroin was about $5,000 and that of the methylamphetamine was $6,500.
3. It was necessary to take into account the serious matters on the Form 1 and the sum of money involved in the knowingly deal with the proceeds of crime offence of $41,200.
4. The applicant did not enter his guilty pleas until shortly before trial and received a 10 per cent discount for them.
5. It is apparent from the indicative sentences that there was a very considerable degree of notional concurrency of the head sentences and by inference the non-parole periods.
6. The applicant's prior convictions, although some time ago, represented similar criminal conduct for which he received periodic detention on some charges and disentitled him to leniency.
7. His Honour clearly took into account the material advanced in the applicant's subjective case. Apart from his medical condition, his subjective case was not particularly strong. His Honour dealt with the issue of his medical condition appropriately and at some length.
8. The applicant received the benefit of a generous adjustment for special circumstances in that the aggregate non-parole period was 43 per cent of the aggregate head sentence.
This ground of appeal has not been made out.
The orders which I propose are:
1. Leave to appeal be granted.
2. The appeal be dismissed.
DAVIES J: I agree with Hoeben CJ at CL.
ADAMSON J: I agree with Hoeben CJ at CL.
[3]
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Decision last updated: 30 November 2017