S v R

Court of Criminal Appeal (NSW)|2008-03-14|Before: Bell JA, Adams J, Latham J, Mr P, As Adams J

Introduction 15 The applicant pleaded guilty in the District Court on 26 April 2007 to an indictment containing two counts. Count 1 alleged that between 31 August 2005 and 14 June 2006 he supplied not less than the commercial quantity of methylamphetamine and Count 2 alleged that on 14 June 2006 he was in possession of a prohibited firearm, namely a .22 calibre pen gun. The effect of s 25(2) and s 33(2) of the Drug Misuse and Trafficking Act 1985 is that the maximum penalty for the Count 1 offence is twenty years' imprisonment and a substantial fine. It attracts a standard non-parole period of ten years. The maximum penalty for the offence in Count 2 is fourteen years' imprisonment: s 71 of the Firearms Act 1996. It attracts a standard non-parole period of three years. The sentencing judge took into account on a Form 1 a further five matters. These were having in possession money that was suspected of being stolen or otherwise unlawfully obtained, comprising slightly over $8,000.00, receiving stolen property comprising a large amount of property found in his premises which he had taken in payment for drugs, the possession of a Taser, a replica Beretta pistol and a home made numchuka. So far as the first of these charges is concerned, it is so closely linked to the supply of amphetamines comprising the principal offence against the applicant that the possession of the money, in my view, should not result in any significantly heavier penalty. As to the second, it is notorious that addicts steal property to pay for their drugs. The charge of supply necessarily involves buying and selling drugs; the fact that the stolen property itself is the "currency" as distinct from having first been converted into cash is not a difference in substance. In my view the illicit character of the elements of the trade is already factored into the heavy penalties provided for drug dealing offences and it is double punishment to add significantly to the punishment for the dealing offence in respect of these matters. The same cannot be said for the other two offences, though I rather think that possession of the numchuka is relatively trivial. 16 The applicant was sentenced on 9 May 2007 to a fixed term of eighteen months' imprisonment on the second count, commencing 14 June 2006 and expiring on 13 December 2007 and, in respect of the first count, to a non-parole period of four years commencing on 14 December 2006 and expiring 13 December 2010, the balance of term of two years and six months expiring 13 June 2013. It will be seen, therefore, that the sentences for these offences involved an accumulation of six months imprisonment. The overall sentence was accordingly seven years with a non-parole period of four years. On the face of it, this appears to be a lenient sentence and certainly far from excessive. However, as will be seen, it is necessary to take into account, in the public interest, a very significant discount. 17 The applicant seeks leave to appeal from the sentence imposed on Count 2.

The facts 18 The facts were not in dispute and the following summary is taken largely from the judgment of the sentencing judge. During an authorised control operation police arranged for an undercover operative to purchase amphetamine on the applicant on four occasions: 2, 3 and 6 March and 14 June 2006. The details of the quantities involved are regrettably omitted from the Statement of Facts and not the subject of evidence. All that appears is that on each of the four occasions the applicant supplied an amount of methylamphetamine, the purity of which ranged from 36% to 56.5%. In respect to the last transaction, the facts allege that the amount purchased was half an ounce (near enough to 14 grams) of amphetamine for $2,100.00. It appears to be common ground that the total quantity of the drugs supplied on these occasions was less than the commercial quantity of 250gm. Following the final transaction, police arrested the applicant at his home. The cash which comprised the first charge on the Form 1 was found in his pockets and the applicant said it was the proceeds of supplying amphetamine. There is no basis for disbelieving this admission. The weapons were also found during this search together with a number of satchels and a resealable plastic bag containing amphetamine. Again, there is no evidence as to the quantity of these drugs. Indeed, that they were amphetamines rests entirely upon the admission of the applicant; for some reason no certificates of analysis were tendered. 19 Following his arrest, the applicant was interviewed by police and candidly admitted that he had been supplying significant amounts of amphetamine for about eight months. These admissions, it is accepted, were the only evidence possessed by the police as to his drug dealing in addition to the four transactions which I have already mentioned. The applicant told police that he would occasionally supply twenty or twenty-five persons a day with amphetamines, sometimes much less, depending on how much money or goods the buyers were able to offer. He admitted that he might sell half an ounce a day. So far as a single transaction is concerned, he said the largest amount he had sold was the half-ounce which was sold to the police undercover operative. The applicant told police also that he used about 2 grams of amphetamines a day. 20 The sentencing judge (rightly, in my respectful opinion) characterised the applicant's dealing as involving more than mere street level supplying. His Honour found that the applicant was not only able to maintain his own habit but also was able to live off the proceeds but commented that there was no suggestion that the applicant's "lifestyle was extravagant". 21 The commercial quantity prescribed in respect of amphetamines is 250 grams or more up to less than 1 kilogram at which point the quantity is a large commercial quantity. Although the amount of drugs supplied is by no means the only matter to be taken into account in determining the objective seriousness of the offence, it is perhaps the most significant feature. Furthermore, since the objective seriousness of the offence increases with the quantity, the standard of proof of the supply of a greater amount than the minimum prescribed by the offence must be beyond reasonable doubt. The admission implicit in the plea is just that the applicant supplied more than 250 grams and less than 1 kilogram. The admission by the applicant that he "might sell half an ounce per day", obviously does not permit the conclusion that he sold half an ounce per day. The eight-month period of dealing comprises 240 days. On the assumption that the applicant dealt every day, the sale of 4 to 5 grams a day would total a kilogram or thereabouts. On the other hand, if the applicant sold on average even 10 grams a day, the amount involved would be a total of 2.4 kilograms, more than twice the large commercial quantity. Clearly enough the applicant could not - whatever the facts tendered might have established - be punished for selling any quantity greater than 1 kilogram. 22 It is necessary to approach the question of quantity realistically whilst accepting that the evidence is very uncertain and not losing sight of the fundamental importance of applying the standard of poof to the issue. 23 The sentencing judge did not attempt to quantify the amount of drugs sold but, rather, took an overall view of the level of objective seriousness, which must have comprehended, as the most significant features, the quantity of drugs dealt, the period of dealing and the level in the hierarchy at which the dealing occurred. His Honour said, in respect of Count 1, that "bearing in mind that the offence was committed apparently over an eight month period, I am of the view that this should be assessed, objectively speaking, as being not quite at the mid-range of seriousness …" adding that, in respect of both matters, "there are findings of special circumstances". This would suggest a non-parole period of something less than ten years to be further diminished by virtue of the special circumstances. 24 In addition to special circumstances were what his Honour described as "strong subjective features", which would have suggested a further reduction in the significance of the indicative non-parole period. (I have expressed it this way because it is wrong to start with the standard non-parole period and then reduce or add to it as the subjective features are brought to bear.) 25 Of course, it is not appropriate to approach the question of sentencing arithmetically. But that is not to say that the process of sentencing is should not be systematic and logically coherent. I do not doubt, if I may respectfully say so, that the sentencing judge approached his Honour's sentencing task in this case in that way. The above analysis is undertaken for the purpose of appreciating the elements of that approach and the way in which they interacted to produce the ultimate outcome. 26 Also of considerable importance for the purpose of assessing objective seriousness in respect of a drug dealing offence is the place of the offender in the hierarchy of supply. As the sentencing judge observed, the applicant was not a street level supplier but, as I understand his Honour's reasons, he thought the applicant was one rung above that level. As far as this aspect of objective seriousness is concerned, accordingly, the applicant's drug dealing was significantly less than in the mid-range of seriousness. It seems to me that this is the view taken by the sentencing judge as, having regard to the quantity of drugs dealt by the applicant, it would be otherwise difficult to see his Honour's view that, overall, the objective seriousness was something less than the middle of the range. 27 If this interpretation of the sentencing judge's reasons is a fair one - and I believe it is - I would not be prepared to depart from his Honour's assessment of objective seriousness as something less than the middle of the range although, as must already be apparent, the evidentiary basis for that finding is somewhat exiguous.

The utilitarian discounts 28 Three significant features quite apart from the ordinary subjective factors were of great importance in sentencing this applicant. The first is that by virtue of his early plea, a utilitarian discount of 25% was given. The trial judge also took into account information provided by police warranting a significant further reduction to the applicant's sentence pursuant to s 23 of the Crimes (Sentencing Procedure) Act 1999. The applicant had made full disclosures to the police, as I have said, of the scale of his dealing without which he certainly could not have been charged with the offence in the first count: The police had evidence (it seems, though as I have said, the quantities sold to the undercover operative are unknown except for the last deal) that could have justified a charge only in relation to an indictable quantity. In this respect a further discount of the kind to which R v Ellis (1986) 6 NSWLR 603 referred of 15% was allowed. The total of the discounts applied to the sentence in Count 1 was 65%. The Crown in this Court did not submit that any of these discounts were inappropriate. Although the total discount allowed is exceptionally high, I think it fair to say that this was an exceptional case having regard to the extent of the disclosures. 29 I have had the benefit of reading the judgment of Bell JA in draft and wish to comment briefly upon her Honour's observations concerning the Ellis discount with which (with unfeigned respect) I am unable to completely agree. Her Honour referred to Ellis as representing "a useful shorthand way of describing the significant element of leniency that may be extended in a case in which an offender voluntarily discloses his or her guilt of an offence which he or she was not suspected of committing" and being "a powerful factor justifying leniency" in an appropriate case. Ellis certainly was a remarkable case in which the appellant, who had, because of religious convictions, confessed his hitherto unknown involvement in a series of armed robberies. But the significant reduction in sentence that this conduct entails was not confined to the disclosure of unknown offences or unsuspected involvement. Street CJ said (6 NSWLR at 604) - "When the conviction follows upon a plea of guilty, that itself is the result of a voluntary disclosure of guilt by the person concerned, a further element of leniency enters into the sentencing decision. Where it was unlikely that guilt would be discovered and established were it not for the disclosure by the person coming forward for sentence, then a considerable element of leniency should properly be extended by the sentencing judge. It is part of the policy of the criminal law to encourage a guilty person to come forward and disclose both the fact of an offence having been committed and confession of guilt of that offence. The leniency that follows a confession of guilt in the form of a plea of guilty is a well recognized part of the body of principles that cover sentencing. Although less well recognized, because less frequently encountered, the disclosure of an otherwise unknown guilt of an offence merits a significant added element of leniency, the degree of which will vary according to the degree of likelihood of that guilt being discovered by the law enforcement authorities, as well as guilt being established against the person concerned."

In the present case, although it may well be that the police suspected that the applicant had been trading in drugs well before they mounted the covert operation that culminated in his arrest, the only conclusion from the evidence is that there was no proof - and, realistically could be no proof - of that prior trading except for the applicant's own candid admissions. That confession provided the crucial evidentiary foundation for the charges to which he pleaded guilty and for which he was sentenced. 30 With respect, I am unable to see the relevance of the possibility that the applicant might, on the evidence of the covert officers and quite apart from his confession, have been charged with ongoing supply of drugs under s 25A of the Drug Misuse and Trafficking Act 1985. In such a case, the most important feature would remain the scale of his trading. Had the prosecution had no more than the evidence of the police, that element would necessarily have been less by a very substantial margin indeed than that which he voluntarily admitted. Furthermore, it could not have been concluded that he was more, or much more, than a street level supplier. 31 Accordingly, the Ellis factor (whether quantified or not) must have been a very significant, certainly far more than marginal, feature in sentencing the applicant. The trial judge's assessment of the appropriate discount was 15%. I think it must inevitably be concluded that this figure was compacted somewhat because of the other discounts (particularly for assistance) and would have been greater but for them. At all events, the Crown did not submit in this Court that this discount was in the slightest degree excessive. 32 Regrettably, the sentencing judge's reasons did not explain whether he applied the combined discount of 65% to the initial sentence which he, absent the discounts, would have imposed or that he applied them serially in the way described by Hodgson JA in R v MP [2003] NSWCCA 195. It now seems to be accepted that both methods may be used but, given the different outcomes, it is important that the sentencing judge makes it clear which method is adopted: R v Frank Waqa [No 2] (2005) 156 Crim App Rep 454. The reason why this is important in this appeal is that if the sentencing judge applied a combined discount a starting point of 18½ years would be implied which, the Crown concedes rightly, would be an undoubtedly excessive sentence and entirely inconsistent with the finding accepted by the Crown as appropriate, that the applicant's offence was "not quite at the mid-range of seriousness". On the other hand, had the sentencing judge applied the discounts serially, that would have implied a starting point of about thirteen years and four months. In other words, the arithmetic result of serial calculation leads to a discount to the overall sentence of about 50%. 33 Although, the sentencing judge did not explicitly state which method he used, I am of the view that he did apply the discounts serially, principally because I do not believe that his Honour could have thought that a starting point of the order of eighteen years was appropriate. Furthermore, such a sentence would have implied a non-parole period well in excess of the standard non-parole period, and far greater than would have been appropriate in light of his Honour's finding that the offence was "not quite at the mid-range of seriousness". Considering the count 2 offence in isolation, the "signpost" would point to a non-parole period of about eight or nine years, which would, in turn, point to a head sentence of about eleven to twelve years. To this must be added some period for the Form 1 offences. On the other hand, there must be some allowance also for subjective features.

Subjective features 34 In addition to the discounts to which I have referred and leaving aside a relatively unremarkable life history, the most material subjective features were that the applicant was genuinely remorseful and probably had good prospects for rehabilitation. The applicant was 43 at the time of the offences. His criminal history disclosed convictions in 1990 for supplying prohibited drug. He was sentenced to concurrent terms of imprisonment of eighteen months plus additional terms of six months for 17 counts of supply and 29 other counts were taken into account in what was then a Form 2. These offences constituted a breach of a three-year recognisance which had been earlier imposed that year for supplying a prohibited drug. In February 2007 the applicant was fined for possessing a prohibited weapon without a permit and possessing a prohibited drug. These convictions were by no means insignificant, yet they revealed offences which had occurred a considerable time before the current offences. There was evidence which, I think, was accepted by the sentencing judge, that the applicant's drug dealing commenced when workers compensation payments for a work injury ceased and he needed the income from dealing mainly to provide financial support but also to pay for his own amphetamine addiction.

Discussion 35 The fundamental question to be determined on this appeal is whether in regard to all the objective and subjective features and, in particular, the discounts which were given, the applicant's sentence is manifestly excessive. 36 In my view, the sentence on Count 1 (taking into account the Form 1 offences) is manifestly excessive. The sentencing judge's assessment, in effect, of a non-parole period of somewhat less than ten years as a signpost relating to objective seriousness should be accepted for present purposes. I would hold that the starting point of thirteen years and three months before application of the discounts is manifestly excessive, accepting that there was no error in the serial application of the discounts. In reaching this conclusion, I am doing little more than applying the sentencing judge's own (uncontroversial) conclusions as to the significance of the various relevant elements going into the sentencing process. It seems to me, with respect, that it is not appropriate to evaluate them on some different basis. 37 I have already mentioned the sentence to which the signpost of a non-parole period of eight or nine years points. There must be some increase for the Form 1 offences (which, for the reasons I have already given, I think should not be substantial). It is necessary nevertheless to assess the objective seriousness in a general way, bearing in mind that the process is not arithmetical and the standard non-parole period is but one material factor. Read for the applicant on the appeal is an affidavit to be used in the event of resentencing. That affidavit shows that the applicant's rehabilitation is proceeding well. When taking into account the subjective features, in particular the genuine remorse, of the applicant my view is that the appropriate starting point before discounting is ten years. Applying the sentencing judge's mode of calculating the discounts, this would yield an overall sentence of four years and nine months and result in a non-parole period of three years and six months (rounding down slightly). Accepting the sentencing judge's view of the applicant's rehabilitation prospects, I would find special circumstances and reduce the non-parole period to three years. 38 It is necessary to consider whether this sentence is "unreasonably disproportionate to the nature and circumstances of the offence". I do not believe that it is. Of course, it is disproportionate to the nature and circumstances of the offence but it is not unreasonably so to my mind, firstly because I consider that the sentence is a substantial one and, secondly because it is necessary in the public interest to give the significant discounts that apply to the circumstances here. Nor do I see how it is in the public interest to break faith with the applicant who would rightly have been advised that he would receive a discount of roughly that which was afforded him.

I propose the following orders - 1. Leave to appeal is granted. 2. The sentence for Count 1 is quashed. In lieu thereof the appellant is sentenced to a non-parole period of three years commencing on 14 December 2006 and ending on 13 December 2009; the balance of his sentence is one year and nine months ending on 13 August 2011. The earliest date upon which the appellant is eligible to be released on parole is 13 December 2009. 39 LATHAM J: I agree with Bell JA.

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.

Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002); [2002] NSWCCA 518; 56 NSWLR 146 Lewins v R [2007] NSWCCA 189 R v Ellis (1986) 6 NSWLR 603 R v Frank Waqa [No 2] (2005) 156 Crim App Rep 454 CASES CITED : R v Gallagher (1991) 23 NSWLR 220 at 227-228 R v MP [2003] NSWCCA 195 R v Thomson and Houlton [2000] NSWCCA 309; 49 NSWLR 383 R v Sukkar (2006) 172 A Crim R 151; [2006] NSWCCA 92 Ryan v R [2001] HCA 21; 206 CLR 267 SZ v R [2007] NSWCCA 19; 168 A Crim R 249

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