Robinson v R

10What follows is taken from the Sentencing Judge's finding of the facts: 11On 17 August 2007, police received information that the Applicant was involved in the supply and storage of a large commercial quantity of ecstasy at premises at 131 Ramsgate Road, Ramsgate. On that day the police had that property under surveillance. The Applicant was observed by police prior to her arrest to leave the premises just shortly after 1.15pm. 12At about 1.40pm on 27 August, the Applicant was observed by police to drive a Daihatsu motor sedan on Park Road, Allawah. The Applicant was subsequently stopped and was spoken to by plainclothes police. A short time later the Applicant was taken to Kogarah police station. The Applicant participated in an electronically recorded interview in which she did not make any admissions. 13The Applicant was questioned in relation to the premises at 131 Ramsgate Road, Ramsgate. She stated that the premises belonged to her son and that she and her former husband were in the process of renovating the home. The Applicant told police that two keys were available to gain access to the premises and that one of the keys was in the possession of her son who had been away for a year. The Applicant told police she was in possession of the other key, and that key was found in the possession of the Applicant at the time of her arrest. 14The Applicant told the police in the record of interview that her residential address was 6 Lyle Avenue, Hurstville. 15Police obtained a search warrant for the Ramsgate premises, and at about 8.45pm on 27 August 2007, police executed the search warrant. The Applicant indicated she wished to be present during the search. The search was videotaped and the jury had the opportunity of viewing the offender and the premises during the course of the search. The police search was extensive and it included a police dog handler and his dog being present at the search. 16During the execution of the search warrant police located in various locations in the home the drugs the subject of the offences contained in the indictment. In particular police located in a room which contained clothing and personal papers of the Applicant the ecstasy tablets, which are the subject of the first charge contained in the indictment. Additionally, police located in a various locations in the premises, in a number of containers, the methylamphetamine which is the subject of the second charge in the indictment. In the area where the drugs were found police located the Applicant's passport and birth certificate. 17Police also seized clothing and a toothbrush. The Applicant's DNA profile was found to be on the toothbrush and her DNA profile was found on a pair of pyjamas. The Applicant denied any knowledge of the ecstasy pills and methylamphetamine. The Applicant was conveyed to Kogarah police station. She was again offered the opportunity to participate in an electronically recorded interview which she declined. 18Whilst the Applicant was at the police station, police continued their search of the premises and in two locations in the bedroom located $15,795 in Australian currency. The money was located in close proximity to where the drugs were located by police. 19His Honour was satisfied on those facts that the Applicant's role in relation to the drugs was that of warehouser for commercial gain. His Honour found that the Applicant was not addicted to drugs and that she did not have drugs for dealing to feed any drug habit. 20His Honour then had regard to the amount and purity of the drugs. In relation to the MDMA his Honour noted that the cut off point between the indictable quantity and the commercial quantity was 125 grams and that the total weight of the tablets was 125.42 grams. The purity was in the vicinity of 30%. 21In relation to the methylamphetamine the cut off point for the indictable quantity is five grams and for the commercial quantity the cut off point is 250 grams. The amount of methylamphetamine seized was 115.50 grams and its purity varied between 1.5% and 32.5%. 22His Honour concluded that the Applicant's criminality lay beneath the middle of the range of objective seriousness for each offence. His Honour noted that the Crown conceded that there were no aggravating factors to be considered.

23The grounds of appeal set out in the Notice of Appeal are these:

1. The manner and extent of accumulation is erroneous in the circumstances of this case.
2. The overall sentence is manifestly excessive. 24In the written submissions the Applicant refers to a third ground (numbered Ground 2 in those submissions) as follows: The sentencing judge failed to assert, with a proper indication of degree, the extent to which the objective seriousness of the commercial offence departed from the mid range of objective seriousness. In a supplementary submission the Applicant indicated that this ground was now abandoned because of the decision in Muldrock v The Queen [2011] HCA 39.

25The Applicant was born on 3 April 1949 and was therefore aged 59 years at the time of the sentence. She had a criminal record which included four stealing offences between 1988 and 1993, two offences involving fraud on the Commonwealth in 1990, and two offences for supplying a prohibited drug in 2005. Those drug supply offences were dealt with at the same time. For the first of them the Applicant was sentenced to a period of 21 months imprisonment with a non-parole period of 11 months, and for the second to a fixed term of imprisonment for 11 months entirely concurrent with the first offence. 26The Sentencing Judge had a report from a clinical psychologist Mr John Taylor. He administered a series of tests to her and concluded that she suffered from severe depression. He found that she did not have a significant predisposition to engage in substance abuse and that she had a low to moderate risk of recidivism. He noted that it was the Applicant's view that she had been set up by someone in relation to these offences, and she was very angry about the matter. Further, she was not prepared to acknowledge all of the offences on her record because she claimed that her identity had been stolen many years earlier. She acknowledged that she had committed the offences against the Commonwealth but claimed in relation to the offences of supply prohibited drugs that she did not know they were in the motor vehicle when she was stopped for a traffic violation. 27The Sentencing Judge noted that the Applicant came from a stable family, that she had three relationships, with the second being the longest at twenty-two years and producing two children. The third relationship broke up because the partner was a drug addict and subjected the applicant to violence. 28Until February 2006 the Applicant was in good health. At that time she was assaulted in custody and suffered injuries to her neck and right arm. She also suffered emotional sequelae which appears to have triggered a recurrence of earlier depression from which she had suffered. Ground 1: The manner and extent of accumulation is erroneous in the circumstances of this case Ground 2: The overall sentence is manifestly excessive 29The grounds of appeal were argued together but it will be necessary to decide if there was an error in relation to the accumulation before considering whether the sentence is manifestly excessive. 30Whilst there is no appeal against the sentence for Count 1 a number of submissions on behalf of the Applicant lead to the view that a challenge was being collaterally made to that sentence under cover of the expressed grounds argued. First, reference was made to R v Blair [2005] NSWCCA 78, a case that was provided to the sentencing judge as a guide to the sentence that he should impose. The Applicant submitted that the head sentence imposed by this Court in that case was two years greater "and manifestly excessive in comparison" for one third of the quantity of MDMA that was the subject of the offence in Blair. 31Secondly, the Applicant said that no complaint was made about the way the sentence was structured in that the Applicant was obliged to serve a discrete 3 year non-parole period for Count 1. That appears to be a submission that a 3 year non-parole period was appropriate for Count 1 with some extra period for Count 2, but that the extra period should be set having regard to the sentence in Blair. 32Thirdly, the Applicant submitted that, "after what was considered an appropriate amelioration in penalty on account of the totality principles the (effective) non parole period for the commercial sentence was increased by three years", and that this constituted an error in the exercise of discretion. 33Despite these submissions the appeal must be decided on the grounds in the Notice of Appeal. The Court raised with the Applicant the fact that no appeal had been brought against the severity of the sentence for Count 1 but no application to amend was made. Of course, there was an immediate difficulty for the Applicant in contending that the sentence for Count 1 was manifestly excessive, particularly when there was a standard non-parole period of 10 years, the Applicant was found guilty after a trial, and she had two prior convictions for supplying drugs. Indeed the Applicant's counsel acknowledged that the standard non-parole period would have properly been weighing on his Honour's consideration, and that he may well have felt constrained by what was thought at the time to be the proper approach to standard non-parole periods following R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168. 34No complaint is, or could be, made about the accumulation of the head sentences because they are entirely concurrent. The complaint made is that the partial accumulation of the non-parole period for Count 2 was too great to reflect properly the total criminality of the two offences. That accumulation is also said to result in the manifest excess about which complaint is made.

The sentencing hearing 35The sentencing proceeded in a slightly unusual way. The Sentencing Judge first related the facts giving rise to the offences. His Honour then observed that the offences were serious offences which were reflected in the maximum penalties in the Act. His Honour referred to the fact that a standard non-parole period applied to the first offence, that it was necessary for him to consider the objective seriousness of that offence, and in doing so he needed to look at the Applicant's role together with the quantity and purity of the drugs. 36His Honour was satisfied that the Applicant had the role of a warehouser for commercial gain. He then dealt with the weight and purity of the drugs, as earlier indicated and he made the finding of where in the scale of objective seriousness the offences lay. Noting the Crown's concession of no aggravating features, he said that in the light of the Applicant's criminal history he could not provide her with any leniency. 37His Honour went on to consider subjective matters including the report of the psychologist Mr W J Taylor. 38His Honour then said this: I will stop there. I don't think I can go any further. What do you say? Have I covered everything which has to be covered? 39The Crown Prosecutor said his Honour had, and then indicated that he would like to hand to him the case of Blair. Counsel for the Applicant was apparently waiting for a further report from Mr Taylor. His Honour then indicated that he was going to adjourn, saying: ...I thank you for the judgment and I'll have a look at that judgment. So I'll say again I'll deal with the report when it comes in, I'll then look to the rehabilitation question, the re-offending question, special circumstances question and then deliver my sentences. 40The following exchange then occurred between his Honour and the Prosecutor about Blair: HIS HONOUR: What sentence was imposed here? HUGGETT: I think it was five years minimum term and that offender I think had no previous - and it was an amount not dissimilar to this amount 270-odd grams I think. HIS HONOUR: Of what? HUGGETT: I think it's the same drug your Honour. Sorry I've read it a while ago. I think it's the same drug. HIS HONOUR: I think it's - HUGGETT: It was methylamphetamine. HIS HONOUR: Methylamphetamine yeah. HUGGETT: And it was only one count. HIS HONOUR: Yes. HUGGETT: And he had a previous history but no drug offences. Found that he was sort of a store person effectively. HIS HONOUR: Yes. HUGGETT: And in fact he was just picking the drug up and minding it overnight, not knowing what it was. No evidence of any financial gain. I think the amount was two- HIS HONOUR: Non-parole period of five years, three months. HUGGETT: Yes your Honour. HIS HONOUR: Total term of seven years so that they didn't find special circumstances. HUGGETT: I don't know to be quite honest. HIS HONOUR: What's five sevenths which closer to statutory (sic). HUGGETT: Yes your Honour. HIS HONOUR: Well as you know Madam Crown it's not a mathematical exercise. HUGGETT: No. HIS HONOUR: It's not a scientific skill to apply intuitive synthesis but I thank you for the judgment and I'll have a look at that judgment. So I'll say again I'll deal with the report when it comes in, I'll then look to the rehabilitation question, the re-offending question, special circumstances question and then deliver my sentences. 41Upon resumption there were some short submissions about the further report of Mr Taylor. When they were concluded his Honour continued with his Remarks on Sentence. He found special circumstances in that the Applicant required ongoing rehabilitation in the community. Thereafter the following exchange occurred: HIS HONOUR: In sentencing the offender it is necessary for me to sentence her in respect of each offence and necessary for me to consider the accumulation or partial accumulation of these sentences in order that the sentences I impose today reflects the totality of the criminality of the offender. I have heard no submission in relation to that but it is my intention to partially accumulate the sentences in accordance with the principle contained in Pearce's case. I see no response from the bar table. HUGGETT: No I don't oppose the partial accumulation your Honour. FLOOD: Couldn't do so. HIS HONOUR: Sorry? FLOOD: I couldn't do so. HIS HONOUR: Yes thank you. ... 42Thereafter his Honour imposed the sentences I have set out earlier. As can be seen counsel for the Applicant did not oppose partial accumulation of the sentences to reflect the totality of the criminality.

Submissions on appeal 43The Applicant directed particular attention to Blair and to a comparison of the amount of the drug in that case and the sentence imposed by this Court on appeal. The Applicant submitted that his Honour acted on an understanding (derived from what the Crown said in the exchange I have set out above) that the amount of the drug in Blair was similar to the total amount in the present case. In fact in Blair there was one drug being methylamphetamine with a weight of 371.3 grams described as being of extremely low purity. I have no doubt that his Honour was not misled by what the Crown mistakenly said of Blair. His Honour indicated that he would read the judgment over the luncheon adjournment, and I have no doubt that he did so. 44The applicant in Blair had no prior drug convictions but had what were described as "previous significant convictions" although those convictions were not specified. The Trial Judge sentenced Blair to a non-parole period of 10 years with a total term of 13 years 4 months. The Trial Judge, having found that the offence was in the mid-range of objective seriousness (partly because of an error he made in saying where the amount of the drug fell within the commercial range), felt constrained by the decision in R v Way not to deviate from the standard non-parole period. 45On appeal this Court considered that, because the Appellant was not a principal but in a lesser role as a courier and storeman and because the weight of the prohibited drug was in the lower part of the range and of extremely low purity, the offence did not answer the description of one that fell within the mid-range of seriousness. This Court quashed the sentence and substituted a non-parole period of five years three months with an additional term of one year and nine months. 46The approach the Applicant took in the present case rather suggested that the Court should overlook the fact that there were two different types of drugs and simply consider the two drugs together as a total quantity of some 240 grams. That quantity, the Applicant suggested, is to be compared to the position in Blair which would show that the present sentence was manifestly excessive. 47The Applicant also pointed to the successful appeals to this Court in a series of cases involving co-offenders, being McKellar v R [2010] NSWCCA 295, Locke v R [2010] NSWCCA 296, O'Brien v R [2010] NSWCCA 297 and Ellis v R [2010] NSWCCA 298. The amount of the drug concerned in three of those cases was three times the amount of the combined weight of the drugs in the present case. All of the offenders were aged 19 or 20 at the time of the commission of the offences, one of them had no previous criminal record and the other two had what could only be described as minor criminal convictions. 48The Crown submitted that, subject to established principle, questions of concurrency and accumulation are matters falling within the discretion of the sentencing judge: R v Hammoud (2000) 118 A Crim R 66. The Crown submitted further, and without contention from the Applicant, that possession of two different kinds of drugs is not properly regarded as one episode of criminality: Luu v R [2008] NSWCCA 285.

Consideration 49It is necessary, first, to consider the matter of the accumulation of the sentences. In McKellar, RA Hulme J (with whom Simpson & Hoeben JJ agreed) made reference to the proper approach in relation to whether sentences should be served concurrently or accumulatively. He said: [61] The decision as to whether to order sentences to be served concurrently or accumulatively, either in whole or in part, is clearly discretionary but it is guided by principle. In Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41, Howie J succinctly stated: [27] In any event there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both. [62] In R v MMK [2006] NSWCCA 272; 164 A Crim R 481, the Court (Spigelman CJ, Whealy and Howie JJ) stated: [13] In some cases the fact that a sentence for a particular offence is to be served completely concurrently with another sentence for a different offence will result in a sentence that is erroneously inadequate because it does not reflect the totality of the criminality for which the offender was to be punished for the two acts of offending: see for example R v Brown [1999] NSWCCA 323. This may be so even if the two offences arise from the same precise criminal act, such as the dangerous driving of a motor vehicle on the one occasion: R v Janceski (No 2) [2005] NSWCCA 288. The same principle has been applied to sexual assault offences arising from a single incident of sexual assault: R v Gorman (2002) 137 A Crim R 326. Although, it has been held that a determination of the extent, if any, that a sentence is to be served cumulatively with another sentence is an exercise of discretion on which minds might differ, R v Hammoud (2000) 118 A Crim R 66, that discretion is generally circumscribed by a proper application of the principle of totality. 50In Locke the Applicant was charged with four offences. The first was the ongoing supply of MDMA between 3 and 25 April 2008 of a total of 20.62 grams. The second offence was supplying more than the indictable quantity of MDMA, namely 360.28 grams between 22 April and 29 June 2008. The third was for supplying not less than the commercial quantity of MDMA, namely 296.01 grams on 14 August 2008. The fourth count was of supplying not less than the commercial quantity of MDMA being 83 grams between 21 May and 24 July 2008. The Applicant pleaded guilty at an early opportunity and was given a 25% discount on sentence. 51The Sentencing Judge imposed a 3 year fixed term of imprisonment for the first offence, a 4 year fixed term for the second offence to commence 1 year after the start of the first sentence. For the third offence he was sentenced to a non-parole period of 4 years to commence 1 year after the sentence commenced for the second offence. For the fourth offence he was sentenced to a non-parole period of 4 years and 6 months to commence 1 year after the commencement of the sentence for the third offence. 52On appeal to this Court it was determined that the one year accumulation on each of the sentences should be reduced to 6 months for each of them. It may be accepted that the Applicant in that case was 19 years of age at the time and had only minor prior convictions. Nevertheless, there was much less commonality in the offences charged than in the present case, and this Court considered that the sentences should each be accumulated by only 6 months. 53Similarly, in O'Brien there were four offences charged with three being the offences of supplying not less than a commercial quantity of MDMA, the total amount of the drugs being 748 grams. For an offence of supplying MDMA the Applicant was sentenced to a fixed term of imprisonment for 3 years. Each of the subsequent offences of supplying not less than a commercial quantity was accumulated on the prior sentence to the extent of 12 months, 6 months and 18 months respectively. On appeal, the accumulation in each case was reduced to a 6 month period. There was some but not entire commonality associated with the offences. 54In Ellis, the Applicant was charged with three offences of supplying more than the indictable quantity of MDMA and two offences of supplying not less than a commercial quantity of MDMA. There was some but not entire commonality in the offending. On the first offence of supplying more than the indictable quantity the Applicant was sentenced to a fixed term of imprisonment of 2 years and 6 months. The next count of supplying not less than a commercial quantity was accumulated by 9 months as was the third count of supplying not less than a commercial quantity. Again, this Court reduced the period of accumulation for the two subsequent offences each to 6 months. 55In McKellar, the Applicant was charged with supplying more than an indictable quantity of MDMA being 19.01 grams for which he was sentenced to a fixed term of imprisonment for 18 months. He was also charged with supplying not less than a commercial quantity of MDMA being 190.25 grams in 35 separate transactions at a different period in time from the earlier offence. His sentence of 3 years non-parole was accumulated on the first sentence to the extent of a year. On appeal the period of accumulation of the second offence was reduced to a 3 month period. 56The matter of the appropriate accumulation of those offences was a consideration in McKellar. After discussing the principles involved RA Hulme J went on to say: [64] In my view it was open to his Honour to have considered that there was additional criminality inherent in the s 25(1) offence, particularly having regard to the not insignificant quantity of drug involved (15 times the indictable quantity). There was, however, a significant overlap with the criminality inherent in the s 25(2) offence in the sense that it represented a continuation of the same activity. [65] The appropriateness of the sentencing outcome in terms of the totality principle may be tested in this fashion. The commercial quantity offence was a "rolled up" charge, in that it combined numerous individual supply offences committed over a period of time. It would have been open to the prosecution to include within that "rolling up" the applicant's possession for the purpose of supply of the 19 grams of MDMA on 26 September 2008. That would have extended the period of the commercial quantity offence from about 19 weeks to about 22 weeks and increased the quantity of drug involved from 190 grams to 209 grams. Would the sentence for such a charge be any different from the one in fact imposed? I would answer that question, "Yes, but only marginally so". [66] I accept that it was open to the prosecution to prefer the two charges as they did. However, a proper application of the totality principle should have seen a lesser degree of accumulation. 57 It may be accepted that the notion of instinctive synthesis comes particularly to the fore when questions of partial accumulation and totality are being considered because a discretion is being exercised. A sentencing judge will not necessarily fall into error because he or she does not set out in detail how the precise period of any accumulation is reached. Nevertheless, it is desirable that some remarks should be addressed to the factors which have been taken into account: McKellar at [63]. A failure to do so may result in this Court concluding, where the sentence or the measure of accumulation appears unreasonable or unjust, that there has been a manifest error in the application of principle relevant to the exercise of the discretion: House v The King (1936) 55 CLR 499 at 505. 58In my opinion that is the position in this case. His Honour did not say why he accumulated the sentences in the manner he did, and the overall resulting sentence is unreasonably high. When it is remembered that both drugs were found at the same locations in the same premises at the same time the commonality of these matters highlighted the need for his Honour to explain why he adopted the course he did. His Honour, who is a very experienced trial judge, was mindful of the totality principle - he referred to Pearce - but did not relate the principles to the facts he found. One explanation for the overall sentence (as mentioned earlier ) may be that his Honour felt more constrained by the standard non-parole period in respect of Count 1 than would now be thought necessary: Muldrock v R [2011] HCA 39; (2011) 244 CLR 120 at [17] and [26] - ]28]. 59A proper application of the totality principle would, in my opinion, have resulted in a lesser period of accumulation. Some guidance is available from the four related cases to which I have referred. Two factors tell against the Applicant by comparison with the appellants in those cases. First, they were young (19 to 21). Secondly, they had either no prior convictions or relatively minor convictions, unlike the present Applicant who has two prior convictions for supplying drugs. On the other hand, apart from McKellar, the quantity of the drugs in those cases greatly exceeded the quantity in the present case, and the facts showed a more systematic supply organisation 60When these matters are balanced I consider the sentence in relation to Count 2 should have commenced two years after the sentence for Count 1 commenced. The result is an overall sentence of a non-parole period of five years with no change to the additional term. 61On the basis that this Court came to re-sentence the Applicant she tendered at the hearing of the appeal a further report from Tim Watson-Munro. The report referred to the suicide of one of her children in November 2009, and made reference to the effect this had had on the Applicant whilst in custody. The deceased daughter had a young son who was being cared for by two of the Applicant's other children and her de facto husband. One of these children of the Applicant suffers a range of psychological disabilities and behavioural difficulties. As a result of these matters coupled with her incarceration the Applicant was highly agitated and anxious when seen by Mr Watson-Munro. He considered that she needed a Mental Care Health Plan. 62If the adjustment is made to the accumulation of the sentences that I have proposed it does not appear to me that the overall sentence is manifestly excessive. The Applicant's prior convictions together with her lack of acceptance of responsibility for these offences provide support for that view. Although Mr Watson-Munro's report identifies difficulties that the Applicant is experiencing because of family-related matters I do not consider that it contains anything to warrant any further adjustment to the sentence.

Conclusion 63I propose the following orders: (1) Grant leave to appeal. (2) Quash the sentence of Solomon DCJ of 31 October 2008 in respect of Count 2. (3) In lieu thereof sentence the Appellant to a non-parole period of 3 years commencing 17 August 2009 and expiring 16 August 2012 with an additional term of 3 years to commence at the expiration of the non-parole period and expiring 16 August 2015.

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: 21 May 2012