RITTER v REGINA

Court of Criminal Appeal (NSW)|2012-05-03|Before: Hoeben JA, Hulme J, Fullerton J

Judgment 1HOEBEN JA: I agree with RS Hulme J and the orders which he proposes. 2RS HULME J: On 24 May 2011, the abovenamed Applicant for leave to appeal was sentenced by Sides DCJ in respect of two offences of supplying heroin on three or more separate occasions during a period of 30 consecutive days. One charge related to the period between 1 and 30 March 2010. The second related to the period between 1 and 30 April 2010. The amount of heroin supplied during each of the periods was particularised as 80 grams. 3The offences alleged fell within s 25A(1) of the Drug Misuse and Trafficking Act 1985 and each carried a maximum penalty of imprisonment for 20 years and a fine of 3,500 penalty units. 4Taken into account in connection with what I shall refer to as the first offence was a further offence of the deemed supply of 22.1 grams of heroin found after the Applicant's arrest during the execution of a search warrant at his home. The 22.1 grams included 14 grams in a plastic bag, 3.5 grams in one piece of plastic and 21 further pieces of plastic each containing between 0.2 and 0.5 grams. 5The sentences imposed were:- Offence 1: Imprisonment for 6½ years including a non-parole period of 3 years, both such periods commencing on 6 May 2013. Offence 2: Imprisonment for 6 years including a non-parole period of 4 years, both such periods commencing on 6 May 2010. 6The effective sentence thus imposed was one of 9½ years imprisonment including a non-parole period of 6 years. 7The evidence established that the Applicant, in his Honour's words, was "conducting a thriving drug trafficking business selling to users" albeit he was "in terms of the drug trafficking hierarchy ... in the lower echelons". The business was conducted from his residence, his motor vehicle and for a short period from an hotel. In connection with his activities, he used a number of phone numbers, changed from time to time and registered in fictitious names. Individual transactions commonly involved deals of 0.5 of a gram for each of which the Applicant received something of the order of $150 to $180. It may thus be inferred that each charge encompassed well over 80 instances of supply and receipt by the Applicant of something over $12,000 and approaching $24,000 per month for each of the two months covered by the charges. 8In a two hour period shortly after the Applicant's arrest, police counted in excess of 60 missed calls to two of the phones found in the Applicant's car. (In his Honour's remarks on sentence he refers to the number of these calls as 16, but this is obviously a typographical error for the 60 referred to in the Statement of Agreed Facts upon which the sentencing proceedings were conducted.) In the period 19 March to 14 April, police intercepted over 2,900 calls on the phone number then being used by the Applicant, the majority of which related to the Applicant's supply of heroin. 9The Applicant was 39 at the time of the offences. He was born in Romania, coming to Australia when he was 12 in about 1982. He has returned to Romania on a number of occasions since. 10Sides DCJ recorded that the Applicant had had a dysfunctional upbringing because of his father's alcoholism and physical abuse of family members, that the Applicant's first wife died in 1997 and a second marriage, which occurred in 1999, had broken down. His Honour also noted that, according to a report from a psychologist, Mr Watson-Munro, the Applicant had an adjustment disorder and exhibits symptoms of depression and anxiety. His Honour recorded that the Applicant's level of depression had been increased in consequence of being placed on protection a fact which, while it increased the time that the Applicant spends in his cell, would seem not to have limited his visits or access to education or rehabilitation programmes. The Applicant has a criminal history consisting of relatively minor offences and traffic matters, the last of which was in 1995. 11His Honour remarked that the Applicant seemed to have started abusing Panadeine drugs in 2009, then graduated to heroin and "it is probable that he started abusing these substances to deal with psychological problems he had because of various traumas in his life". His Honour concluded that it was probable that the Applicant had become involved in offending because of his own addiction to heroin. 12The Applicant pleaded guilty at the earliest opportunity and was given a discount of the order of 25% for this, a figure which his Honour said would be increased because the Applicant was remorseful. His Honour found that the Applicant's prospects of rehabilitation were good. 13His Honour also observed:- In the Court's view, each offence calls for a sentence of imprisonment. There is no basis to distinguish a criminality as between the two offences. (The first charge) carries with it the matter on a Form 1 schedule, that has been taken into account to some extent in assessing the criminality in both offences in terms of assessing the nature of the business that was being conducted and which is reflected in those two offences. Because it has been reflected in assessing the criminality, the length of the sentence in connection with (the first charge) is moderate. In the Court's view, totality requires a substantial degree of accumulation to reflect the totality of criminality. Because of the accumulation and his need for an extended period of time on parole, the Court found special circumstances. 14His Honour did not otherwise explain why he imposed a lesser non-parole period in the case of what I have referred to as the first offence and for which, presumably on account of the Form 1 offences, he imposed the longer total sentence. However, although the matter is not expressed as clearly as it might be, I take his Honour's decision to impose only a 3 year non-parole period on the first offence as designed to ensure that in assessing the Applicant's criminality, his overall operation was not counted twice. Such an approach was of course perfectly proper. 15One matter to which I have not so far adverted is the fact that the Applicant was extensively assisted in some of his offending by a co-offender, Jorgelina Capra, with whom he had established a de facto relationship in mid-March. His Honour recorded that:- At times, she held the drug and the money relating to the business. Her voice was heard on the intercepted telephone conversations arranging the supply of heroin with customers. During these conversations she displayed in considerable detail in relation to quantity, preparation, costs and use of heroin (sic) and that she had provided 'active assistance' and that both would deliver heroin on a regular basis. 16His Honour came to sentence Ms Capra approximately a month after he had sentenced the Applicant. She faced only one charge, of supplying heroin on an ongoing basis between 19 March 2010 and 11 April 2010. There was taken into account one charge on a Form 1, viz, possession of some 30 ml of methadone. The sentence imposed on Ms Capra was of imprisonment for 30 months including a non-parole period of 15 months, both such periods commencing on 6 May 2010. 17His Honour recorded that Ms Capra had pleaded guilty at the earliest opportunity, but she had also indicated a preparedness to assist the police. That preparedness was not conveyed to the police in a timely fashion through no fault of Ms Capra and his Honour allowed a discount for the guilty plea and assistance of about 37.5%. 18There were also, according to remarks made by his Honour when sentencing Ms Capra, other reasons for distinguishing the two. In those remarks, his Honour said:- She assisted her partner in a significant drug supply business but it is important to understand that she did not instigate that business. It was already operating when she commenced her relationship with him. He was obviously the organiser of the business. He was the one making the purchases of the drugs, cutting the drugs and packing them for resupply. He was the one purchasing the mobile phones and registering them in fictitious names. During the period covered by the charge, she was assisting him to supply up to twenty grams a week to an established customer base. There is no evidence that she had any involvement in establishing that customer base. They were operating as street dealers rather than wholesalers. Her involvement was limited to assisting in taking orders, making arrangements for their delivery and assisting when she was in the car with the co-offender in delivering the drugs. But for her relationship with the co-offender, in the context of drug abuse, she would not have become involved in the offence. The Court is satisfied that he would have continued with his drug dealing activities regardless of whether she was assisting him or not. However, she did continue to some extent to be involved in his activities in connection with supplying drugs after the end of the period covered by the charge and cannot therefore claim that her activities are isolated to the discrete period covered by the charge. The offence, in the Court's view, is a serious offence but her criminality bearing in mind her role in the matter, is towards the lower end of the range. ... So far as the evidence discloses, the relevant differences between the co-offender and this Offender are as follows:- · this Offender has only one count which covers a different period than the two counts to which the co-offender pleaded guilty. The evidence disclose (sic) that the co-offender was involved in supply well before 1 March 2010. The offence on the Form 1 Schedule covered 22.9 grams of heroin found in his house and which was reflected by an offence of possession for the purposes of supply on the Form 1 Schedule; · it would be obvious from the Court's recitation of the facts that the co-offender's role in the offence was greater in the sense that he was the instigator, was involved in purchasing and cutting the drugs and otherwise running the business via purchase of phones to assist in running the business. This Offender played a subsidiary or secondary role to assist him. The Court is satisfied that he would have continued his illicit activities regardless of whether or not this Offender assisted him in any way. Therefore in relation to each of the two counts, his criminality was substantially greater than this Offender's criminality; · the Court notes that the co-offender was on protection; and · the co-offender made no admissions and did not receive a discount for assistance to the authorities. 19The grounds of appeal are:-

Grounds 1 and 2 21The bases advanced under these grounds for criticising the sentences imposed were, firstly, the Judicial Commission statistics and, secondly, a reference to sentences imposed in some eight cases with which this Court has been concerned. It was said that the statistics showed that, of a total of 242 offenders convicted of supplying heroin on an ongoing basis, only two received head sentences in excess of 6 years for individual offences and that the cases demonstrated that something more than simply being a s 25A offender, e.g. a bad record or being manager or head of a syndicate, was required to justify a sentence of 6 years or more. The cases referred to were Ali Osman v R [2008] NSWCCA 157; R v Ladocki [2004] NSWCCA 336; Le Huynh v R [2006] NSWCCA 77; Hanza v R [2008] NSWCCA 288; R v Preston [2005] NSWCCA 177; R v Radford [2002] NSWCCA 122; R v Farah [2005] NSWCCA 67; R v Siljanovski & Kostadinovic [2003] NSWCCA 38. 22Noticeably absent from the argument of counsel for the Applicant was any, I repeat any, attempt to suggest that by reference to the maximum penalty of 20 years imprisonment provided for by Parliament and the basic purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 or in Veen v The Queen (No 2) (1987-1988) 164 CLR 465 at 476 the sentences were excessive. 23The cases are legion where this Court has stressed the limitations which arguments based on the sentencing statistics impose - see e.g. R v Lao [2003] NSWCCA 315 at [32]; R v Nikolovska [2010] NSWCCA 169; (2010) 209 A Crim R 218 at [70]; Windle v R [2011] NSWCCA 277 at [62]-[65]. 24Similar criticisms may be made when an attempt is made to argue from what happened in one or a limited number of cases, what should happen in an instant case under consideration. Rarely is there an incentive in counsel arguing for a particular result to search for a fair or representative sample and rarely is such a sample produced. It was not in this case. Indeed, when regard is had to the cases referred to in a schedule to these reasons, only two of which were referred to, it is fair to say that the sample to which the Court was referred is positively misleading. 25The issue where the ground of appeal is that a sentence is manifestly excessive is whether it is unreasonable or plainly unjust - Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [25] - whether it is outside the appropriate range of sentences open in the exercise of a sentencing discretion as to demonstrate error. It is not enough simply to show that the sentencing judge could have taken a different course or that the appellate judges would have done so - House v The King (1936) 55 CLR 499 at 504-505. 26The second of the sentences under appeal, a sentence uncomplicated by a Form 1, was of 6 years including a non-parole period of 4 years and arrived at after a discount of 25% for the applicant's plea and an unquantified amount for remorse. The sentence corresponds to a notional starting point of something over 8 years. The quantity supplied was specified as 80 grams and, as I have said, indicates well over 80 instances of supply and receipt of proceeds of over $12,000 and approaching $24,000. The Applicant had a thriving retail business and the evidence of phone calls suggests far more instances of supply in the periods covered by the charges. Comparison with the cases referred to in the Schedule inspires the following remarks. (i) The deduced starting point for Hoete of 5 years is significantly less than in the case of the Applicant but was regarded as lenient and Hoete was only a runner; (ii) The deduced starting point for the sentence imposed in respect of SZ's second offence of 7½ years is only slightly below that under consideration here. SZ was supplying in individual quantities similar to those supplied by the Applicant but the offence charged involved far fewer instances of supply. On the other hand he had been on bail and had a significant criminal record. (iii) This Court's decision in Smith v R [2007] to adopt a starting point of 6 years considered in isolation tends to support the Applicant's contention here as does the fact that Smith had been on conditional liberty. However the quantity supplied by Smith that was the subject of the charge, regarded by the Court as relevant, was less than half of that here and the number of instances of supply, about 12, vastly less. (iv) The starting point in Mirza v R may be deduced to have been 10 years. He was a commercial rather than a retail supplier. However, the quantity supplied was only a little higher than the 80 grams charged against the Applicant and the Court's remarks about there having been only three instances of supply argues strongly against the decision being of any comfort to the Applicant. (v) The starting point in Chen v R may be deduced to have been 8 years and 4 months. The fact that Chen's role was higher up the usual chain of drug suppliers than the Applicant argues in the Applicant's favour although in light of the fact that the quantities were comparable and the Applicant supplied on far more occasions effectively nullifies the weight to be given to that argument. I would not infer that the Court, inconsistently with the principles of Pearce v The Queen (1998) 194 CLR 610 allowed the other offences to influence its approach to the proper sentence for the on-going supply offence. (vi) In Fong v R, the quantity suppled and the number of occasions of supply were vastly less than in the case of the Applicant's offending although no doubt the offender's activities included other occasions of supply. The moneys shown to have been received were also appreciably less. The notional starting point of 7 years for Fong's sentence - which the Court did not suggest was at the extreme of the available range - is not greatly less than the 8 years that is to be deduced from the Applicant's sentence (vii) Given that Sides DCJ in Eap took into account in arriving at the sentence he imposed - which corresponded to a notional starting point of 8 years - the offence of the deemed supply of 201.9 grams of heroin, the sentence imposed by his Honour provides some support for the Applicant here. The fact that Eap was higher up the drug dealing scale and had offences on a Form 1 taken into account argue in the same direction. However, the quantity, the number of instances of supply which were vastly less than in the case of the Applicant here, and the money involved in the dealing that was the subject of the on-going supply charge argue in the opposite direction. (viii) Ellis DCJ's decisions in King and Smith (where the sentences correspond to starting points of 8 and 9 years respectively) operate to deny the validity of the Applicant's argument. 27In totality, the cases referred to in the schedule demonstrate that the Appellant's proposition that something more than simply being a s 25A offender, e.g. a bad record or being manager or head of a syndicate, was required to justify a sentence of 6 years or more is wrong and, insofar as the individual sentences imposed on the Applicant are to be judged by sentences imposed in other cases those sentences were not manifestly excessive. 28The seriousness of offending against which s 25A is directed has been the subject of remark in numerous cases - see for example R v Khaled [2001] NSWCCA 169; R v Kairouz [2005] NSWCCA 247; R v CBK [2002] NSWCCA 457; (2002) 128 A Crim R 29 and in R v Cheikh & Hoete [2004] NSWCCA 448. It is sufficient to quote from one of these. In R v Khalad [2001] NSWCCA 169, Wood CJ at CL remarked:- 18 It is precisely to the dealers who engage in this kind of conduct, that s 25A is directed, since it is those persons who keep the pernicious trade in heroin rolling. It may well be that an important part of the policy behind this legislation was to impose significant penalties which exist for those offenders who see it as profitable or prudent to immunise themselves from the significant penalties which exist for dealing in single large quantities, and in particular, by selling small enough deals from a stock warehoused elsewhere. I am unable, however, to accept that the section is to be confined to them. It applies equally to dealers such as the present applicant, who engage in an ongoing trade within the meaning of the section. 19 An appropriate differentiation can be drawn between the various classes of offenders to whom the section applies, by reflecting that in sentences towards the upper end of range within the available maximum of twenty years, for the bigger and more organised dealers, and by imposing lesser sentences for those who are at the bottom of the distribution chain. What is important is to give full effect to the legislative policy that this section operate so as to provide strong deterrent to those who may be tempted to engage in an ongoing trade in heroin and, in particular, to deter those who are minded to stand in their shoes once they are apprehended and sentenced to imprisonment. This is necessary to combat the unfortunate reality that there seems to have been an almost endless supply of street sellers willing to move in once others of their ilk are taken off the streets. 29In this connection it may not be inappropriate to refer again to the survey of imprisoned burglars reported in "The Stolen Goods Market in New South Wales" conducted by the New South Wales Bureau of Crime Statistics and Research in 1998 and which indicated a median expenditure by heroin users of $1,500 per week and the need to steal goods worth a number of times this amount to feed their habit. On average each such offender is thus costing the community through property losses and the like $200,000 per year. If conduct such as that engaged in by the Applicant does not encourage such offending, it at least takes advantage of it. In each of the periods which were the subject of charges against the Applicant, he offended against s 25A in a premeditated, organised, and major way. In the circumstances, the individual sentences imposed for his offences were not manifestly excessive.

Grounds 3 and 4 30The formulation of the third ground appeal is somewhat misleading. Given that the sentence on the second count was expressed to be the first to operate, the degree of accumulation was 2 years. However, the gravamen of the Applicant's complaint is that sentences with non-parole periods totalling 7 years were so structured that the Applicant has an effective non-parole period of 6 years and a total sentence of 9½ years. Given the sorts of considerations to which I have referred in [28] et seq, I do not regard that sentence as in any way manifestly excessive for someone who chooses, as is demonstrated by the number of phone calls that the Applicant received, to become a major drug supplier. 31In formulating the terms of s 25A as it has, the legislature has defined the offence by reference to a defined and confined period of 30 days. Repetition of offending outside that period forms no part of the criminality involved in the offence as defined. If repeated with the frequency envisaged by the section that further offending constitutes a different offence and, depending on circumstances, including frequency and quantity of drug, may well amount to a doubling of an offender's criminality. 32The Applicant chose by his conduct to commit two offences. Given the nature of his activities, the benefits he received and the damage he did to the community by his actions may be inferred to have, approximately doubled. Certainly, considerations of totality argue against a simple doubling of the penalty but, taking the sentence on the second charge (uncomplicated as it is by the Form 1 offences) as the starting point, the accumulation involved in what his Honour did was to increase the total term from 6 years to 9½ years and the non-parole period from 4 years to 6½ years. Looked at another way, there was a reduction of the total term from 12½ years to 9½ years. In my view, these figures demonstrate that the accumulation which his Honour ordered was not excessive. 33It must not be forgotten that the seriousness with which Parliament regards offending of the nature of that indulged in by the Applicant is indicated by a maximum penalty of 20 years imprisonment for one offence. A non-parole period corresponding to that period could be expected to be of the order of 15 years. The sentence of 9½ years with a non-parole period of 6 years - for two offences - is appreciably less than this. These grounds also fail.

Ground 5 34A comparison of the two sentences imposed on the Applicant in light of his Honour's remarks indicates that the 6 months difference between them is accounted for by the Form 1 offence. A sentence of 6 years after allowing a discount of 25% for a plea, reflects a starting point of 8 years, though his Honour's remark that the sentence would be further reduced because of remorse indicates the actual or notional starting point must have been higher than 8 years by some unknown amount. 35The head sentence of imprisonment for 30 months imposed on Ms Capra after a discount of 37½% reflects a pre-discount actual or notional starting point of 48 months or 4 years, half or somewhat less than half apparently adopted in the case of the Applicant. The disparity becomes greater if one considers the non-parole period of 15 months imposed on Ms Capra and the 4 year longest individual non-parole period imposed on the Applicant. Did the difference in their offending justify so great a difference in the sentences? 36My mind has vacillated on this issue but, in the end, I have concluded that his Honour was entitled to take the view that the difference in roles and activities justified the difference in penalties. Traditionally, in the drug field the criminality of organisers has been regarded as substantially more serious than that of minions they employ to carry out more mechanical tasks. The relative positions of the Applicant and Ms Capra might fairly be regarded as echoing this sort of difference.

Conclusion 37In the result, the orders which I would propose are:-

Grant leave to appeal.
Dismiss the appeal. 38FULLERTON J: I am unable to agree in its entirety with the way RS Hulme J has dealt with grounds 1 and 2 of the appeal although I agree that they should be dismissed. I agree that ground 5 should be dismissed. I respectfully disagree with his Honour's disposition of grounds 3 and 4 of the appeal. I would have allowed the appeal on those grounds and to have moved to resentence.

Grounds 1 and 2 39Whilst I agree that the applicant has not made good his contention that the individual sentences imposed on each of the on-going drug supply counts were manifestly excessive, and that for that reason grounds 1 and 2 should be dismissed, I am unable to endorse RS Hulme J's criticisms of counsel's formulation of the argument directed to persuading the Court of that fact. 40I did not understand Mr Boulten's oral submissions to have been advanced without reference to the maximum penalty provided for by the Parliament for an offence against 25 A being a term of imprisonment of 20 years. His written submissions make specific reference it and, as the Crown acknowledged in her oral submissions, correctly. While Mr Boulten did not refer to the statutory maximum again in oral submissions, I have no doubt that he was at all times conscious that it fixed the upper limit of the trial judge's sentencing discretion. 41I am also unable to endorse the criticism implicit in his Honour review of the cases in the schedule to his judgment that the sample from which Mr Boulten sought to mount his argument was unrepresentative of the range of sentences imposed either at first instance or after the intervention of this Court, or that his those cases to which he made specific reference had the potential to mislead the Court, much less that it did so. There are well recognised limitations on the utility of referring to sentences imposed in other cases to support an argument that a particular sentence is manifestly excessive. In Hili v The Queen (2010) 242 CLR 520 at [48] the High Court had occasion to emphasise again that consistency in sentencing is not demonstrated by numerical equivalence and does not require it in order for the objective of reasonable consistency in sentencing to be achieved. 42They also regarded Simpson J identification in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 at [303]-[305] of the use to which information about other cases might legitimately be put as accurate. They said: "303. ... A history of sentencing can establish a range of sentences that have in fact been imposed. Such a history does not establish that the range is the correct range, nor that the upper or lower limits to the range are the correct upper and lower limits. Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts." 43But the range of sentences that have been imposed in the past does not fix "the boundaries within which future judges must, or even ought, to sentence". Past sentences "are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence"(emphasis added). When considering past sentences, "it is only by examination of the whole of the circumstances that have given rise to the sentence that 'unifying principles' may be discerned". 44While senior counsel's approach may not have been particularly productive, it was nevertheless open to him to endeavour to exemplify, by reference to other cases, what he contended was a marked inconsistency between the way his client was sentenced and the sentences imposed on other offenders whose offending was said to be comparable and whose subjective circumstances were said not widely different. 45Having regard to the seriousness of the offending against which s25 A is directed, I would dismiss the first and second grounds of appeal but on that basis that I am not persuaded that the sentences imposed were "unreasonable or plainly unjust". This is principled test in to be applied where a sentences is said to be manifestly excessive. (see Hoeben JA in R v Windle [2011] NSWCCA 227 at [55] where his Honour noted the statement of principle in R v Vuni [2006] NSWCCA 171 and its endorsement by this Court)

Grounds 3 and 4 46I am however persuaded that the degree of accumulation of the two sentences, which increased the total term from 6 years to 9 ½ years and the non parole period from 4 years to 6 ½ years, has been productive of a total effective sentence that is manifestly excessive in the relevant sense and, accordingly, that grounds 3 and 4 have been made out. 47Self evidently the sentencing judge was obligated to impose a sentence for two discrete 25A offences. Since the offender's established drug dealing business continued unabated over two consecutive months it was also appropriate that the sentences should be partially accumulated to reflect that fact. However, save for the offence on the Form 1 which was taken into account in the calculation of the sentence on first count, the same objective features defined the operation of the drug business and the offender's role within it on each count. 48In my view, the total effective sentence has failed to reflect that fact and that application of the principle of totality warranted a more moderated degree of accumulation. I would regard a period of two years accumulation as sufficient to address the totality of offending. 49I agree with RS Hulme J that ground 5 should be dismissed. SCHEDULE 50In R v Cheikh & Hoete [2004] NSWCCA 448, Cheikh was regarded as a manager of a substantial commercial operation of methylamphetamine supply which had continued for something in excess of nine months. Hoete was one of the runners employed in that operation. There were four counts preferred against Cheikh, each covering the period of 30 days and five charges, each dealing with another 30 days of supply, were placed on a Form 1. Hoete also faced four counts of ongoing supply. His Form 1 included four similar charges (for other months) and six counts of supplying drugs. In the periods, the subject of the charges, he worked between 8 and 31 shifts. 51This Court allowed Crown appeals in the case of both offenders who were held entitled to a discount of 15% for their pleas. In the case of Cheikh, the Court held that fixed terms of 4 years imposed on three of the counts were manifestly inadequate and increased each of those terms to 8 years. The effective sentence imposed on Cheikh was one of imprisonment for 15 years including a non-parole period of 11 years. The sentence reflect the constraints then existing in the case of Crown appeals and was regarded as lower than his offending merited. Of course, Cheikh's criminality not only extended for a longer period than did the Applicants but because of the nature of the operation in which he was engaged and his role in it was substantially worse than the Applicant's. 52For three of the counts against him, Hoete had been sentenced to fixed terms of imprisonment of 3 years. On the fourth count, after taking into account the offences of the Form 1, he was sentenced to imprisonment for 4 years including a non-parole period of 1 year and 6 months. The total effective sentence imposed was 6 years including a non-parole period of 3 years and 6 months. With the concurrence of Levine J, I remarked that the 3 years sentences imposed on Hoete were lenient and perhaps manifestly so but that a decision on that issue was unnecessary because the manifest inadequacy found in the overall sentence could be dealt with by changing the extent of concurrency that the first instance judge had allowed. The effective overall sentence was increased to one of 8 years including a non-parole period of 5 years, a result that reflected leniency that had been extended to Cheikh and other runners and the constraints in a Crown appeal. 53Hoete had no prior convictions of significance and the sentencing judge doubted he would re-offend. It is to be inferred from the report that he was not addicted to drugs. Hoete's criminality also went for much longer than did the Applicant's, though this was of at most limited relevance in relation to individual counts. More significantly, he was only a runner and his role thus significantly less. 54By working back from the sentence imposed for individual counts, one can deduce a starting point of the order of 5 years which, as I have indicated, was regarded as lenient and perhaps manifestly so. 55In SZ v The Queen [2007] NSWCCA 19; (2007) 168 A Crim R 249, the offender had been sentenced for four offences only two of which, for ongoing supply are presently relevant. The first of these involved five instances of supply totalling 0.9 grams of amphetamine and the second offence involved six instances of supply totalling 3.6 grams. However, the circumstances including the fortified nature of the premises, a dwelling house, and the goods in custody contributed to a finding that the offender was a "well established and well organised commercial supplier of amphetamines ... on a continuing basis". In connection with the first offence, there were taken into account 13 charges of goods in custody and three charges of receiving. The value of the property the subject of those offences was some hundreds of thousands of dollars. The offender had been on bail at the time of offending. Other sentences were made concurrent. 56The sentences imposed for two offences of ongoing supply were imprisonment for 4½ years including a non-parole period of 2½ years and 3 years and 9 months including a non-parole period of 2 years. The judge's starting point for these sentences had been, respectively, 12 years and 10 years. 57This Court held that the starting points were excessive but so was a discount for an early plea and assistance but that when a proper discount of 50% was used no lesser sentences were warranted in law. Thus, for the second offence mentioned, the Court regarded a starting point of 7½ years as acceptable. 58The offender was aged 52 and during the preceding 10 years had acquired a significant criminal record. He was a drug addict but this was not accepted as the sole reason for his offending. 59In Smith v R [2007] NSWCCA 138, sentences imposed included one for ongoing supply and was of imprisonment for 4 years including a non-parole period of 2 years. The basis for the charge were about a dozen supplies of amphetamine totalling about 35 grams. Offences on a Form 1 being four of supplying cannabis, one of supplying amphetamine, one of goods in custody and one of possession of cannabis were taken into account. 60The offender who was on a bond at the time, had a minor criminal record and was entitled to a 50% discount for his plea and assistance. He was assessed as having reasonable prospects of rehabilitation and unlikely to re-offend. The sentencing judge had adopted a starting point of 8 years. 61The Court held that the starting point of 8 years was excessive and should have been 6 years. In arriving at this conclusion, the Court observed that the offender's activities involved repetition, system and organisation but at a level much below that of some other offenders and that the fact that the offender had supplied only 35 grams was a factor of some relevance as was the fact of conditional liberty. The Court was influenced by the fact that, as it said, the statistics showed that between July 1999 and June 2006, there was only one sentence exceeding 6 years for ongoing supply of amphetamine. 62In Mirza v R [2007] NSWCCA 248, this Court dismissed an appeal from a sentence of 6 years including a non-parole period of 3½ years on an offender who had no prior criminal record and a strong subjective case and who had pleaded guilty to one count of on-going supply. The sentence reflected a discount of 40% for the plea and assistance, indicating a starting point of 10 years. The offender had supplied 3 parcels of cocaine to an undercover officer, each for a price of $7,500. One parcel involved 29.8 grams of 49% purity, a second of 28.7 grams of 47% and the third 28.4 grams of a purity of 27%. 63The size of each parcel was regarded as an important factor in judging the seriousness of the offending, Howie J remarking that it would have been obvious to the offender that the undercover officer appeared to be a trafficker who would on-sell. His Honour also made the point that the offender was not a street dealer but that the quantity of drug was an important fact in judging the seriousness of the offending. However, the number of occasions of supply, only 3, was a factor regarded as arguing for the offence being less serious than otherwise. 64In Chen v R [2009] NSWCCA 157, on a charge of ongoing supply of methylamphetamine (ice), the offender was sentenced to imprisonment for 6 years and 3 months including a non-parole period of 4 years. Two offences of supply of a total of 17 grams outside the 30 day period the subject of the ongoing supply charge were taken into account. The offender was a drug addict who had started to use ice to deal with depression. He had no relevant criminal record, was serving and was likely to continue serving his sentence in protective custody and received a discount of 25% for his plea. 65In this Court he was described as "not a mere 'street dealer'" and "part of an organised commercial operation". It was said that the seriousness of his offending was apparent from the length of his involvement in the enterprise - it was about 6 months although he was under police surveillance for only about 38 days - the number of individual transactions in which he participated, and from the overall quantity of drugs that he suppled - in the 30 days this was 90 grams in the course of 24 occasions. He had a number of alternative supply chains and an established customer base which he dealt with from his residential address. 66It is possible, though the Court did not say so, that the fact that sentences imposed at the same time on other offences were wholly subsumed within the sentence for ongoing supply may have influenced the Court to dismiss the appeal. 67In Fong v R [2011] NSWCCA 283 this Court reduced a sentence of imprisonment of 5 years and 3 months including a non-parole period of 3 years to one of imprisonment for 5 years and 3 months including a non-parole period of 2 years and 6 months imposed on an offender who pleaded guilty to a charge of on-going supply of heroin. The ground of the Courts' interference was proportionality with a co-offender, the Court saying that the original sentence was not manifestly excessive. The offence was constituted by five occasions of supply. 68The amounts supplied were 0.83 grams, 3.41 grams, 3.28 grams, 3.3 grams and 1.13 grams, a total of just under 12 grams. The purity varied between 65 and 67.5%. The amounts received for the heroin supplied were respectively $750, $2,150, $2,150, $2,150 and $950, a total of $ $8,150. The supplies were incidents in the course of a large scale commercial operation principally conducted by co-offenders and in which the offender had participated in for some 12 months. Taken into account were two offences, one of supplying heroin and one of possessing heroin. The sentencing judge had remarked that these merited a measurable but not significant increase in penalty. 69The Applicant had pleaded guilty in the Local Court and was held entitled to a discount of 25%. He was aged 30, was a heroin addict and committed the offences to fund his addiction. His prospects of rehabilitation were regarded as good, provided he remained abstinent of drugs. 70In R v Ek Huoy Eap (unreported, Sides DCJ, 4 March 2009) the offender was sentenced to imprisonment for 6 years including a non-parole period of 4 years on a charge of on-going supply of heroin and to imprisonment for 5 years including a non-parole period of 40 months for an offence of the deemed supply of 201.9 grams of heroin. Both sentences were ordered to commence on the same day. The foundations of the on-going supply charge were 5 instances of supply to an undercover operative, the amounts being 0.46 grams, 3.3 grams, 6.5 grams, 6.5 grams and 13.4 grams, a total of a little over 20 grams. The purity was commonly about 22.5%. The amounts received were $200, $1,000, $2,000, $2,000 and $4,000, a total of $9,200. His Honour recorded that the offender operated a highly organized syndicate supplying illegal drugs to street dealers to on-sell. 71Taken into account in the on-going supply charge were 3 offences of supplying heroin, one of conducting drug premises, possession of 9 grams of cannabis and goods in custody. The supply offences were each of about 0.45 gram committed in the month before the period specified for the ongoing supply offence. The other 3 offences arose from matters discovered in a search of the offender's home after her arrest. The goods in custody were an amount of $12,280. On that occasion the police also found 201.9 grams of heroin which was the subject of the second charge. His Honour said that those drugs were part of the business the subject of the on-going supply charge and took them into account in assessing the criminality of the first charge. 72His Honour allowed a discount of approximately 25% for the offender's plea and allowed more for remorse and the fact that the plea meant that the undercover operative's identity did not have to be revealed. The offender was 36 at the time of sentence, had an unhappy childhood, poor self-esteem, a history of depression and self-harm, a gambling problem and was herself addicted to heroin. She had a minor criminal history. His Honour concluded that it was likely that the profits of the enterprise were consumed by the offender's own addiction. Her prospects of rehabilitation were regarded as reasonable. 73In R v King (unreported, Ellis DCJ, 17 September 2009), the offender was sentenced to imprisonment of 6 years including a non-parole period of 3 years and 3 months for an offence of the on-going supply of ecstasy. There were four occasions of supply, all to an undercover operative - 20 tablets for $700, on two occasions 525 tablets for $10,000, and 390 tablets for $7,400. Ellis DCJ observed that s 25A was enacted to deal with those who regularly supplied small quantities and the quantities involved in King's offence were significantly higher than will often be the case in offences under the section. His Honour recorded that King's motivation was money, he standing to gain about $2,500. 74Taken into account were five charges on a Form 1, being possession of less than 1 gram of methylamphetamine, possession of 15 grams of cannabis leaf, possession of three ecstasy tablets, cultivation of three cannabis plants and goods in custody in the sum of $200. These items were found on King when he was arrested and his home then searched. 75A discount of the order of 25% was allowed for the offender's plea. He had a criminal record of one instance of assault and two of possess or use illicit substances. He was 28 at the time of offending, had a dysfunctional family background, some gambling issues and a major depressive disorder which Ellis regarded as a mitigating factor. His Honour accepted that the offender was remorseful and had prospects of rehabilitation although his Honour felt unable to say that the offender was unlikely to re-offend. 76In R v Smith (unreported, Ellis DCJ, 18 August 2010) the offender was sentenced to imprisonment for 6 years and 9 months including a non-parole period of 4 years for an offence of on-going supply of ecstasy and imprisonment for 5 years and 3 months including a non-parole period of 3 years for an offence of supplying a commercial quantity of ecstasy (which was of a similar nature but outside the 30 day period for the first offence). The sentences had the same commencing date. The ongoing supply offence involved three occasions of supply, each of 1000 tablets weighing approximately 223 grams for a price of $10,000. The offender's own return for participating in each of the transactions was $400. The Crown conceded that there was no evidence that the offender had participated in other occasions of supply. Two offences were taken into account on a Form 1. 77A discount of 25% was allowed for the offender's plea, Judge Ellis noting that his starting point was 9 years. The offender had no prior record and was regarded as unlikely to re-offend. He had been diagnosed with a major depressive disorder and/or post traumatic stress disorder.

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: 07 June 2012

At a glance

Court

Decision date

Before

Source

Judgment (8 paragraphs)

Parties

Cases Cited (28)

Cited By (6)