Roiss v R

Court of Criminal Appeal (NSW)|2021-06-18|Before: McCallum JA, Rothman J, Wright J, Callum JA

Judgment

McCALLUM JA: Sebastian Roiss seeks leave to appeal against the sentence imposed on him in the District Court after he pleaded guilty to 7 charges of supplying a prohibited drug (including one involving a commercial quantity of Lysergide) and one charge of knowingly dealing with proceeds of crime, being $155,255 in cash. Three offences of possession of prohibited drugs were taken into account on a Form 1 on the commercial supply charge. He was sentenced by King SC DCJ to an aggregate sentence of imprisonment for six years with a non-parole period of four years and six months. The sentence was fixed to commence on 26 July 2019 and expires on 25 July 2025, with the non-parole period expiring on 25 January 2024 (since being sentenced in the present matter the applicant has also been sentenced for an offence of possession of child abuse material which takes his first possible release date to 25 July 2025. The only relevance of that sentence is that it will be necessary to consider adjusting its commencement date if the present appeal is successful).
The sentencing judge specified indicative sentences (allowing a discount of 25% to reflect the utilitarian value of the pleas of guilty) as summarised in the following table provided in the Crown's written submissions: Sequence Offence Indicative Sentence Supply prohibited drug (1.78g cocaine) 1 Section 25(1) Drug Misuse and Trafficking Act 1985 6 months Maximum Penalty: 15 years imprisonment and/or 2000 penalty units No Standard Non-Parole Period Supply prohibited drug (358.8g cannabis leaf) 6 Section 25(1) Drug Misuse and Trafficking Act 1985 1 year Maximum Penalty: 10 years imprisonment and/or 2000 penalty units No Standard Non-Parole Period Supply prohibited drug (40.41g cocaine) 7 Section 25(1) Drug Misuse and Trafficking Act 1985 2 years 6 months Maximum Penalty: 15 years imprisonment and/or 2000 penalty units No Standard Non-Parole Period Knowingly deal with proceeds of crime ($155,255) 10 Section 193B(2) Crimes Act 1900 4 years 6 months Maximum Penalty: 15 years imprisonment No Standard Non-Parole Period Supply prohibited drug (76.9g MDMA) 14 Section 25(1) Drug Misuse and Trafficking Act 1985 3 years Maximum Penalty: 15 years imprisonment and/or 2000 penalty units No Standard Non-Parole Period Supply prohibited drug (57.2g ketamine) 15 Section 25(1) Drug Misuse and Trafficking Act 1985 2 years Maximum Penalty: 15 years imprisonment and/or 2000 penalty units No Standard Non-Parole Period Supply prohibited drug (38.8g cannabis resin) 16 Section 25(1) Drug Misuse and Trafficking Act 1985 14 months Maximum Penalty: 15 years imprisonment and/or 2000 penalty units No Standard Non-Parole Period Supply not less than commercial quantity of prohibited drug (0.83g Lysergide) 17 Section 25(2) Drug Misuse and Trafficking Act 1985 (Form 1) Maximum Penalty: 20 years imprisonment and/or 3500 penalty units 4 years, NPP 3 years Standard Non-Parole Period: 10 years

As indicated in the table, the Form 1 matters were taken into account on Sequence 17. They were three offences of possession of a prohibited drug contrary to s 10(1) of the Drug Misuse and Trafficking Act 1985, which carries a maximum penalty of 2 years imprisonment and/or 20 penalty units. The drugs and amounts involved were 0.95 grams of N,N dimethyltryptamine, 1094.1 grams of gamma butyrolactone (GBL) and 0.63 grams of harmine. It may be noted that the quantity of GBL exceeded the commercial quantity of that drug (which is 1 kg). However, in the face of the applicant's frank admissions as to selling the wide variety of drugs found in his possession, police accepted his explanation that he had that particular drug only for personal use.
The applicant seeks leave to appeal against the aggregate sentence imposed.
It is convenient to summarise the relevant facts in the context of the discussion of the individual grounds of appeal.

Ground one: assistance to police

Ground one is: "The sentencing judge erred in failing to have regard to the applicant's assistance to police in accordance with s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW)."
Section 23(1) provides: A court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence.
Section 23(2) prescribes a list of mandatory considerations in the event that the discretionary power in s 23(1) is enlivened. The sentencing judge did not expressly refer to those considerations in his sentencing judgment.
The conduct relied upon by the applicant as amounting to assistance to police in the required sense was not the subject of any separate affidavit but was said to arise from the agreed facts on sentence, which may be summarised as follows.
Police patrolling the Barangaroo area on foot on the evening of 26 July 2009 saw what they correctly suspected to be a drug transaction between the applicant as supplier and another man as buyer. The buyer was stopped and agreed to show police the text exchange by which he had agreed to buy a quantity of cocaine from the applicant. Police also stopped the applicant who was "handcuffed and searched". The agreed statement of facts does not indicate whether he was cautioned at that stage. He was found to be in possession of various separate quantities of MDMA, cannabis and cocaine together with $900 in cash.
The agreed statement of facts records that the applicant then made "admissions" as to where he was living and the fact that he lived at that address by himself. Police went with the applicant to that address where they found further quantities of a wide variety of drugs together with paraphernalia associated with drug supply. Amongst the items found at the premises were a key for "Guardian Vaults" and paperwork associated with that key. It appears to have been common ground at the proceedings on sentence that the applicant provided that paperwork to police. They then went to the premises of Guardian Vaults where the applicant allowed them access to a vault box containing $170,000 in Australian currency.
The applicant was taken back to Kings Cross Police Station where he consented to the taking of a DNA sample and agreed to participate in an interview with police. The statement of facts records that he was "honest and forthright" with police and that he made a number of admissions concerning his possession and supply of the various drugs found on his person and at his premises.
At the proceedings on sentence, counsel then representing the applicant submitted that he was entitled to an "Ellis discount": R v Ellis (1986) 6 NSWLR 603 (Ellis). The submission also invoked s 23 of the Crimes (Sentencing Procedure) Act. It was submitted to the sentencing judge that Mr Roiss provided assistance to police in several ways.
First, it was submitted that, when arrested, the applicant gave police his mobile phone and gave them permission to photograph the incriminating text messages that showed the quantity of drugs supplied to the buyer. That submission may have involved a misapprehension of the facts. According to the statement of agreed facts, it was the buyer who granted access to police to his telephone and gave them permission to photograph his text exchange with the applicant. The point about the phone was not pressed on appeal but the applicant did rely on the fact that, in response to questions from police he provided his address and admitted that he lived there alone. The applicant relied on that admission as a matter that assisted police in that it facilitated proof of possession.
Secondly, the applicant relied on the fact that he advised police of the location of the Guardian vault (presumably knowing it contained $170,000 in cash) and also gave police permission to access the vault. Counsel submitted to the sentencing judge: "It is unknown whether police would have been able to locate the exact location of the vault and its contents. The only evidence police had without Mr Roiss's admissions and permission to access the vault was a set of unmarked keys and a business card and a letter from Guardian vaults".
Thirdly, counsel relied on the fact that the applicant made full admissions in his record of interview as to the supply witnessed by police at Barangaroo, the vault and the cash it contained and the fact that he was a supplier of LSD, ketamine, MDMA and cocaine (all of which were located either on his person at Barangaroo or in his apartment). Counsel submitted that "police may not have been aware of the exact drugs Mr Roiss was supplying in the absence of his fulsome (sic) admissions."
Finally, the applicant relied on the fact that he admitted to police that he had been out of work for about one year and that a good portion of his income came from the sale of drugs, which obviously facilitated proof of the proceeds of crime charge.
In dealing with that submission, the sentencing judge said: "One of the matters raised by Mr Wong on the offender's behalf is that he should be entitled to an Ellis discount. There is no evidence before the court that he provided the police with any information in relation to any other person at all, let alone information that resulted in anyone being charged. Mr Wong's submission seems to rest on the fact that the offender was regarded as being frank during the course of the interview and provided the password to his mobile phone as well as identifying the key to the Guardian vault and paperwork relating to where he had stored the profits. There is no suggestion in this matter that providing his password to his mobile phone or phones led to any other person being arrested or charged and it would appear to be inevitable from the location of a vault key and the paperwork relating to the vault that inevitably investigators would have located his profits. I do however take into account that he was apparently found to be frank in relation to making relevant admissions during the ERISP. Of course, that also had the advantage to him of the prosecution accepting his assertions in respect of the three possession charges contained on the Form 1 as being prohibited drugs for personal use rather than supply, despite the fact in particular that the GBL was more than a commercial quantity."
I was initially concerned that the remark in the last sentence suggested impermissible reasoning in that the judge appeared to be speculating that the true facts supported a more serious charge. Upon reflection, I think his Honour was simply noting the fact that, absent the applicant's admissions and explanations, police may have been inclined to lay a charge of deemed supply in respect of the commercial quantity of GBL. In other words, this was a case in which the applicant's assistance to police (by his frank admissions) was also of assistance to himself because police accepted his explanations.
Although it was not put in these terms, the thrust of the argument in support of ground one was that the sentencing judge mistook the applicant's submission as invoking only the possibility of an Ellis discount resting on disclosure of "otherwise unknown guilt" of an offence (Ellis at 604E), whereas the applicant's submission also invoked s 23 of the Crimes (Sentencing Procedure) Act, which is capable of applying to admissions made to police.
It may be accepted that section 23 is capable of applying to admissions made to police. Relevantly for present purposes, the issue raised by the applicant's reliance on section 23 was "the degree to which (he had) assisted… law enforcement authorities in the… investigation of… the offence concerned". The nature of the assistance relied upon in the present case was the applicant's admissions to police and his assistance in granting them permission to search his apartment and the Guardian vault.
The applicant relied on two decisions of this Court to support the contention that admissions to police can amount to "assistance" within the meaning of s 23(1). The first was the decision in Howard v R [2019] NSWCCA 109. The offender in that case pleaded guilty to throwing an explosive substance (a Molotov cocktail) with intent to burn an unidentified male. The charge arose out of a confrontation at a railway station between rival gangs. There was closed-circuit television footage of the incident. However, as the Court held, it would have been difficult for the prosecution to establish the element of intention specific to the offence in the absence of the information volunteered to police by the applicant that he intended to hit a member of the rival gang. The Court held that the applicant's admissions to police constituted assistance of a kind which fell within s 23(1) (the ground of appeal nonetheless failed because the sentencing judge had not been invited to consider reducing the sentence to be imposed on that basis).
The second decision relied upon by the applicant was Le v R [2019] NSWCCA 181. The charges in that case arose out of a police raid on a house containing an indoor crop of cannabis plants. In a "walk-through" that was recorded by police, the applicant made various admissions including admitting to having been the caretaker of the crop. A ground of appeal alleging error in failing to reduce the sentence imposed having regard to the admissions was rejected, both because it had not been raised at the proceedings on sentence and because the Court held that the applicant had failed to establish the admissions amounted to assistance within the meaning of s 23(1): at [54] (N Adams J, Bathurst CJ and Price J agreeing at [1] and [2]). In reaching that conclusion, N Adams J endorsed the remarks of Garling J (with whom Gleeson JA and Johnson J agreed) in Browning v R [2015] NSWCCA 147 at [123]: "…The mere fact that an applicant participates in an electronically recorded interview about the incident, the subject of the offence, even though not obliged to, is not a matter which is entitled to any weight, of itself, in mitigation of any sentence. If it were otherwise one would, in effect, be running the risk of imposing a punishment upon someone who exercised their right to silence."
The applicant in the present case went slightly beyond participating in an electronically recorded interview in which admissions were made. It may be accepted that he also told police where he lived and, once at his apartment, gave them the letter associated with the Guardian vault. However, the material before this Court does not establish the likelihood or otherwise that police would not have ascertained that information themselves. I am not persuaded that the matters relied upon by the applicant amount to assistance within the meaning of s 23(1). Accordingly, I would reject ground one

Ground two: special circumstances

Ground two is: "The sentencing judge erred in his assessment of special circumstances."
This ground concerns the constraint imposed by s 44(2) of the Crimes (Sentencing Procedure) Act, which provides: (2) The balance of the term of the sentence must not exceed one-third of the non-parole period for the sentence, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision).
In order to succeed on this ground, the applicant must demonstrate error in the sentencing judge's failure to make a decision that entails an evaluative judgment (that there were special circumstances such as to warrant a departure from the ratio otherwise mandated by the statute). The applicant accepted that the court would be slow to intervene in such a case.
The matters relied upon by the applicant's counsel at the proceedings on sentence were the fact that the sentence to be imposed would be the applicant's first sentence of imprisonment and the fact that he requires ongoing and substantial help in overcoming his drug addiction.
The sentencing judge explained his consideration of those submissions in the following remarks: "Although this is the offender's first time in custody, I have not found that that justifies special circumstances, and as I have found he has significantly progressed on the path of rehabilitation and conquered while in custody his consumption of prohibited drugs, noting of course that it is frequently evidenced in matters before this Court that as much as they should not be, New South Wales' prisons are rife with prohibited drugs being available. It is to the offender's credit that he has managed to cease use in those circumstances."
The applicant referred to a number of decisions in which, contrary to the approach taken by the sentencing judge in the present case, the desirability of supporting an offender's efforts to undertake rehabilitation where there is evidence of a long-standing drug addiction has been considered to be a special circumstance justifying departure from the statutory ratio. It is not necessary to consider those authorities as the correctness of such an approach cannot be doubted. However, it does not follow that it is necessarily wrong not to take that approach. The question to be determined in the present case is whether it was open to the sentencing judge to decline to decide that there were special circumstances.
Having regard to the constraints on this Court, I do not think it can be concluded that the sentencing judge fell into error in declining to make a finding of special circumstances in the present case.
The principal reason given by the sentencing judge for not deciding that there were special circumstances was that the applicant had "conquered his consumption of prohibited drugs" whilst on remand. The applicant submitted that it was not open to the sentencing judge to reach the conclusion that the applicant's addiction had been "conquered". While there was evidence that the applicant was highly motivated to abstain from taking drugs whilst on remand and that he had expressed an intention to maintain sobriety in the future, the applicant noted that there was a long-standing addiction to drugs which was "quite severe" in the years leading up to the offences; that the applicant had spiralled into drug addiction against a background of other, untreated mental health conditions which included depression and a previous attempted suicide and that there was also evidence of other addictive behaviours such as gambling.
Separately, the applicant noted the apparent unfairness of the fact that he was disadvantaged in the sentence imposed upon him as a result of the good progress he had made towards rehabilitation.
Finally, the applicant noted that the report of a psychologist tendered at the proceedings on sentence, Ms Godbee, recommended a future program of drug and alcohol rehabilitation treatment.
It may be accepted that the judge's reliance on the applicant's good progress towards rehabilitation as a factor that deprived him of an earlier potential release date operated harshly. However, it is trite that it is not the role of this Court to substitute its own judgment for that of the sentencing judge. While it is not a conclusion I would have reached, I must accept that the finding that the applicant had conquered his consumption of prohibited drugs whilst in custody was open on the evidence.
Separately, as noted by the Crown, the sentencing judge did not find that the applicant no longer required any rehabilitation treatment. He simply rejected the need for future treatment as a basis for adjusting the ratio of the non-parole period to the balance of term otherwise mandated by the statute. I am not persuaded that this ground of appeal has been made out.

Ground three: manifest excess

Ground three is: "The sentence imposed is manifestly excessive."
As noted by the Crown, the essential submission in support of this ground was that the strength of the subjective case was not reflected in the aggregate sentence. The applicant did not challenge the sentencing judge's assessment of the objective seriousness of his offences. He accepted that his offending was not to be viewed as isolated and that some measure of accumulation was appropriate given the various different types of drugs the applicant supplied. However, the applicant submitted that there was a powerful combination of mitigating factors.
There is considerable force in that submission. The applicant relied on the fact that he cooperated with investigating police, entered pleas of guilty in the Local Court, was found to be genuinely remorseful and demonstrated significant insight into his offending, had no prior criminal convictions, was unlikely to reoffend and that he had prospects of rehabilitation and indeed had made progress in that respect whilst on remand.
Turning to more significant factors, the applicant noted evidence of an upbringing marked by parental neglect and abuse from an early age evidently resulting in the applicant turning to drug and alcohol abuse from an early age. The evidence on that issue was that the applicant's mother was a heavy drinker who subjected the applicant to emotional abuse, while his father (a travelling salesman) was frequently absent and "strict" when he was present. The applicant said his mother had told him that she had wanted a daughter and he felt that she rejected him for being a boy. However, it was not suggested that the applicant's upbringing was completely dysfunctional. He spoke to Ms Godbee of experiencing times when he felt loved by his mother and said that she protected the children and enabled him to feel safe.
Perhaps more significantly, the applicant experienced what must have been an extremely traumatic event when he was 21 years old at a time when he was trying to reduce his consumption of drugs. He told Ms Godbee that a friend he was trying to help at that time was sexually assaulted and murdered. The applicant blamed himself for not helping her enough. After that event, he displayed trauma-based behaviour including developing depression and some obsessive-compulsive traits. More recently, the applicant struggled considerably with the breakdown of a long-term relationship. Ms Godbee recorded that "he experienced increasing depressive symptoms in the years prior to his index offence and he attempted to commit suicide by overdosing in early 2019".
Ms Godbee further recorded that, in the period after the breakdown of the long-term relationship, the applicant attempted to rely on his parents for support but "felt they were unhelpful" which led to an argument during which his father called him "a loser" and his mother expressed regret that he had been born. Ms Godbee considered that this led to his feeling further abandoned and contributed (in his mind) to his justification for selling drugs, perceiving that people "liked him for dealing".
I have no difficulty in accepting that the applicant's perception of neglect and abandonment during childhood, the traumatic experience of a friend being sexually assaulted and murdered, the breakdown of a long-term relationship and the subsequent spiral into more severe depression presents a combination of factors that explain the escalation of the applicant's drug use to a point where he felt he had to become a drug supplier in order to meet the increasing cost of his drug and gambling habits. The sentencing judge gave close consideration to those matters. His Honour accepted that the applicant was genuinely remorseful and contrite in relation to his offending.
However, the judge also recorded that he regarded the offences as serious. That was plainly a correct assessment. His Honour noted the scale of the applicant's participation in the distribution of drugs and the variety of different drugs he stored for sale in his apartment. He noted that, while the need to support his own increasing drug habit was a contributing factor, the applicant also used drugs to "show off" and was using them as "a lifestyle".
Having regard to the seriousness of the offences and the extent of the applicant's involvement in the drug trade, I do not think it can be concluded that the aggregate sentence imposed was unreasonable or plainly unjust. As noted by the Crown, the applicant's overall criminality revealed that he was in the business of supplying a "smorgasbord" of prohibited drugs for significant profit. He faced one offence of supplying a commercial quantity of a prohibited drug carrying a maximum penalty of 20 years imprisonment with a standard non-parole period of 10 years. In addition, there were five offences of supply carrying a maximum penalty of 15 years imprisonment and the offence of knowingly dealing with the proceeds of crime which also carried a maximum penalty of 15 years. Ground three must be rejected.
Accordingly, the orders I propose are that leave to appeal be granted but that the appeal be dismissed.
ROTHMAN J: I agree with McCallum JA.
WRIGHT J: I agree with McCallum JA.

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