Samuel v R

Court of Criminal Appeal (NSW)|2017-09-04|Before: Basten JA, McCallum J, Wilson J, Spigelman CJ

Solicitors: Applicant - C Kapsis Respondent - Solicitor for Public Prosecutions File Number(s): 2007/38410; 2015/83046; 2015/83125 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 30 August 2016 Before: Noman SC DCJ File Number(s): 2007/38410; 2015/83046; 2015/83125

Judgment

BASTEN JA: I agree with Wilson J that the Court should grant leave to appeal against the sentences imposed on the applicant by the District Court on 30 August 2016, but should dismiss the appeal.
As explained by Wilson J, ground 3 identified a mistake in the reasons given by the sentencing judge, but one which did not affect the sentencing process. Ground 2 relied upon one passage in the reasons, taken out of context. Read in context, no error was revealed.
Ground 1 was directed to a discount of 17.5% allowed pursuant to s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW) on account of the applicant entering pleas of guilty to the various charges. The curiously precise figure probably derives from the statement by Spigelman CJ in R v Thomson; R v Houlton [1] that the utilitarian value of a plea "should generally be assessed in the range of 10-25 percent discount on sentence"; the figure adopted is the mid-point of that range. The Chief Justice also stated that in determining the discount in a particular case, the "primary consideration … is the timing of the plea." That is, a higher discount will generally be allowed for early pleas. He added that whether a plea is to be treated as an "early plea" will depend on the circumstances of the case.

The Proceedings in the District Court

The applicant entered pleas of guilty in the Local Court to the three offences against him, and the matter was committed for sentence to the circuit sittings at Goulburn District Court. After some initial delay in readying the matter for sentence, the applicant appeared before her Honour Judge Noman SC on 30 August 2016. He adhered to the pleas of guilty earlier entered, and asked the Court to take into account the offences set out on the three Form 1 documents. He was sentenced the same day.

The Crown Case on Sentence

The Crown tendered a statement of facts which was not disputed by the applicant. The offences dated to 2007, and were discovered as a consequence of a specific police operation targeting the supply of amphetamines in the Bowral area. The applicant was identified as a supplier of prohibited drugs, and telephone services used by him were lawfully intercepted in June and July 2007. In excess of 3500 relevant communications were intercepted in this period.
Form 1 to Offence 1: The first offence in time was the ongoing supply offence which was taken into account on a Form 1 document against the first offence. This charge encompassed four transactions in June 2007. On 5 June 2007 the applicant supplied "an 8-ball", or 3.5 grams of amphetamine, for a price of $500. On 9 June 2007 a gram of the same drug was supplied for $250. A further 3.5 grams of amphetamine at a cost of $500 was supplied on 19 June 2007, and on 20 June 2007 the applicant supplied the same amount at the same price.
Offence 1: The count of ongoing supply which proceeded to sentence occurred over a nine day period, 30 June 2007 to 8 July 2007. It encompassed five separate supplies of amphetamine, on each occasion for 3.5 grams, at a price of $500 or $550. A total of 15 grams was sold, bringing the applicant $2,400.
Offence 2 and the Form 1 offence to Offence 2: In mid-July 2007 investigators became aware that the applicant planned to obtain an amount of amphetamine for the purpose of supply. On 12 July 2007 he was followed by police to Minto, where the car in which he was a passenger was observed to call at premises known for drug related activity. After a brief stop there, the vehicle drove off, and was stopped by police a short distance away. The applicant was searched and an amount of pink coloured paste, being 9.6 grams of methylamphetamine, was found (offence 2). The applicant admitted to police that the substance was "speed". In the car police found a case which contained syringes, swabs, and other drug related paraphernalia, together with a resealable bag containing a white crystalline substance. The applicant acknowledged that the case was his, but denied ownership of the crystal substance. This was later analysed and found to be methylamphetamine in an amount of 3.7 grams (the Form 1 offence to offence 2).
The applicant was arrested.
Offence 3: After arresting the applicant police obtained a search warrant for his home at Welby. The warrant was executed on the evening of 13 July 2007 at which time police found a number of firearms. The s 51D(2) offence as charged particularised "more than three firearms, to wit, six (6) firearms, that were not registered, of which two (2) were prohibited firearms". The facts noted the seizure of six firearms (of which two were prohibited firearms) being a WW sawn off double barrel side by side shotgun which had had its serial number ground off, a Norica .177 calibre air rifle, a Winchester semi-automatic .22 calibre rifle, a Bofors .243 calibre rifle, a Stirling .22 calibre rifle, and a Winchester 30-30 calibre rifle. None of these firearms were registered, and the applicant had no authority to possess them. The majority of them were found unsecured in the bedroom he used.
Offences on a Form 1 to Offence 3: During the course of the search a number of other items were seized, including a crossbow with a pistol grip (reflected by a charge of possess prohibited weapon), a large amount of ammunition (possess ammunition), and small quantities of cannabis (44.6 grams) and methylamphetamine (0.76 grams) (two counts of possess prohibited drug). The offence of possess firearm with defaced identification, which appears as offence 7 on the Form 1 document, relates to the WW sawn off double barrel side by side shotgun also particularised as part of the s 51D(2) offence. The applicant raises no complaint of error in that regard.
The remaining two offences taken into account on the Form 1 document to offence 3 were two counts of not keeping a firearm safely.
A large quantity of resealable plastic bags and a set of digital scales were also located at the applicant's home.
The applicant's criminal history was before her Honour. The applicant had one conviction that pre-dated the present offences, for an offence of assault occasioning actual bodily harm in 1999. He also had a number of convictions from 29 June 2007 for possession of a prohibited drug (2 counts), possessing or attempting to possess a restricted substance, having custody of a knife in a public place, having custody of an offensive implement in a public place, and driving whilst suspended. These matters were all dealt with by way of fine.
A pre-sentence report noted that the applicant was a 35 year old man living with his partner and her child in the Southern Highlands. His home life appeared to be stable and positive. He had grown up in relatively stable circumstances, with his mother and step-father. The applicant had not known anything of his father until his teenage years, but had later developed a strong and supportive relationship with him. The applicant had a good work history and his current employer spoke highly of him.
As to the offences, the applicant reported having been a regular amphetamine user at the time of the commission of the offences. After being charged with the drug offences he had left the state, and ceased all drug use. He said that he had decided to return to New South Wales because of the illness of family members in this state, and from a wish to take responsibility for his past offending. The author of the report observed that the applicant seemed motivated to make amends for his past conduct. It appeared that his life was stable, and his pursuits and associates positive.

The Applicant's Case on Sentence

The applicant gave evidence before the sentencing judge. He deposed that, as at the time of sentence, he had been in a stable relationship with his partner for almost two years, and had held his current job for about 9 months. He confirmed that, as he had told the author of the pre-sentence report, he had not used drugs for many years, stating that he ceased using amphetamines in 2008, and cannabis soon after that.
The applicant said that, just prior to the commission of the offences in 2007, he was using amphetamine and methylamphetamine ("speed and ice") as well as cannabis. He had been through a relationship breakup which had been traumatic, and was using significant amounts of drugs, including up to 7 grams of amphetamine a day. Whilst he had initially supported his habit through his employment, he left his job shortly before June 2007, and thereafter supplied drugs to pay for those he used himself.
After being arrested by police on 12 July 2007 and served with a court attendance notice, the applicant said that he spent a week or so at a friend's house, and then drove to Victoria, and later to Tasmania, where he and his then partner remained for six months. He said that he left New South Wales to get away from the drug scene with which he had been involved, and he did not use any drug other than cannabis when in Tasmania. In early 2008 the applicant moved from Tasmania to Queensland, living and working in that state for about two years, prior to returning to Tasmania. In this period the applicant completed an apprenticeship as a bricklayer, and gained a certificate in scaffolding. He was fully employed.
Although the applicant claimed not to have known that he had been charged by police in 2007, on returning to New South Wales in 2015 he went to see a solicitor with the intention of "sorting things out". He subsequently handed himself in to police. He spent some 6 months or so in custody thereafter, ultimately receiving a grant of bail from the Supreme Court.
Of the offences, the applicant said that they were wrong and stupid. He said he had kept the firearms to "put down sick animals" and for "fox eradication". He agreed in cross-examination that the firearms had been kept in an unlocked room in a house where many people visited. In answer to a question from the sentencing judge he said that he acquired most of the firearms at the same time as he was dealing in drugs. The applicant acknowledged having had a regular clientele to whom he supplied drugs in 2007, and to obtaining and packaging drugs for sale.
After his release to bail the applicant gained employment, and additionally assisted his grandfather with farm work.
A report from Mr Borenstein, clinical psychologist, was tendered and became Exhibit 1 in the proceedings. Mr Borenstein saw the applicant on 15 March 2016 for the purposes of preparing a report for use on sentence. He recorded that the applicant began using amphetamines and cannabis heavily towards the end of a seven year relationship. The applicant reported that he "fell apart" and used drugs as an escape. His drug use became problematic at work, and so he left his job, turning to drug supply to support his habit.
Mr Borenstein administered a personality assessment test, which suggested some mild potential for emotional and behavioural problems. There was no sign of any psychiatric or personality disorder, and no symptoms of depression. The applicant displayed some mild anxiety and stress. With respect to the applicant's current circumstances, Mr Borenstein concluded that he had "self-corrected" and did not require drug and alcohol counselling, or psychological intervention. He regarded him as motivated, resolved, and disciplined to remain drug free.
A certificate of urinalysis tendered by the applicant provided evidence that he had not recently used any drug.
A number of certificates and statements of attainment supported the applicant's evidence as to his qualifications as a bricklayer and scaffolder. He had also undertaken first aid training.
There were a considerable number of testimonials before the sentencing court, including references from the applicant's partner, his grandfather, and many past and present employers. Without exception the authors spoke of the applicant in very positive terms.

The Conclusions of the Sentencing Judge

In her sentencing judgment her Honour set out the facts of the applicant's crimes, noting that each of the three sentence offences were serious, as reflected by the respective maximum penalties. She observed that the ongoing supply offence involved five separate instances of supplying, in circumstances where the offence was completed by three, in quantities which could not be described as small, and over a very short period, much less than the 30 day period referred to in the charge. She concluded that the applicant was a frequent supplier of larger quantities of amphetamine, and that his offence fell at the mid-range of objective seriousness.
The supply offence was regarded by her Honour as falling at the lower end of the range of objective seriousness, and demonstrated the applicant's capacity to supply such amounts of prohibited drugs. She concluded that he was "a supplier of larger quantities to be on-sold".
Of the firearms offence the sentencing judge referred to the fact that the applicant had six firearms, with two of the six being prohibited firearms, in circumstances where the offence was completed with possession of three firearms, of which one was prohibited. She noted that none of the weapons had been securely stored. That ammunition was found with the guns increased the gravity of the offence. Her Honour concluded that "the possession of the firearms was evidently dangerous and there is no legitimate basis advanced" for their possession. She said that the explanation advanced by the applicant for his possession of these weapons, fox eradication and to put down sick animals, was "not persuasively innocent".
The sentencing judge noted, "The fact that the offender was involved in drug supply at the same time as he possessed these firearms serves to increase the seriousness of the offending: R v Amurao [2005] NSWCCA 32."
Her Honour concluded that the offence fell below the mid-range of objective seriousness.
As to the applicant's subjective case, the sentencing judge noted that the 35 year old applicant had been aged 26 at the time of the offending conduct, and "involved in the drug scene", as the convictions from 2007 suggested. He had subsequently extracted himself from that milieu and had not re-offended. She was persuaded that those features of his case demonstrated remorse, and concluded that the period of offending "presents as an aberration".
The history of the matter was regarded by her Honour as relevant to the assessment of the reduction to be awarded on sentence to reflect the utilitarian value of the pleas of guilty. Although the applicant entered pleas of guilty to the offences when brought before the Local Court following the execution of the apprehension warrants in March 2015, some charges were first brought in July 2007, and the applicant absconded. The sentencing judge concluded, "This delay in entering the pleas must have a role to play in determining the benefit that flows from those pleas. I have determined that the offender is entitled to a reduction of 17.5% on sentence to reflect the circumstances and timing of the pleas."
With respect to the delay more generally, her Honour referred to the principles set out in R v Shore (1992) 66 A Crim R 37 and R v Borkowski (2009) 195 A Crim R 1 at [40], wherein it was held that, although it was contrary to the public interest to allow leniency because of delay to an offender who had absconded, a sentencing court could recognise the unhappy condition of the fugitive, and should not entirely ignore rehabilitation. The applicant's case was approached by her Honour consistent with those principles.
The sentencing judge found, favourably to the applicant, that there were special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act 1999, being the need for some adjustment of sentence to reflect the principle of totality, and the fact that the applicant had not previously been imprisoned.
She noted the need for the sentences imposed to play a role in general deterrence and denunciation of the offences.

The Application to this Court

If granted leave, the applicant advances three grounds of appeal: 1. "Her Honour erred in reducing the sentence imposed upon the applicant by 17.5% to reflect the utilitarian value of his pleas of guilty, on the basis that the proceedings had been delayed, because the applicant had absconded on bail, notwithstanding the fact that the applicant was committed for sentence; 2. Her Honour erred in concluding that the fact the applicant was involved in drug supply, at the same time as he possessed firearms, increased the seriousness of offending, notwithstanding her Honour's conclusion that there was no evidence that the applicant used the firearms as part of his role as a supplier of drugs; and 3. When sentencing the applicant in respect of the firearms matter, her Honour erred in taking into account an offence of supplying a prohibited drug, even though the applicant had not asked for such an offence to be taken into account".

Ground 1

The applicant's argument, citing R v Castles (2005) 152 A Crim R 277 at 282 [22], is that, "Having pleaded in the Local Court, and been committed for sentence to the District Court, the utilitarian value of the applicant's pleas of guilty would ordinarily be assessed as being deserving of 'the usual 25%'" (applicant's written submissions at [8]).
The applicant contends that it was an error for her Honour to have regard to the fact that when charged in 2007, the applicant absconded, remaining at large for almost eight years. He submits that a discount on sentence recognises the conservation of the court's resources, and there is no difference in that regard between a plea entered in the Local Court in 2007 and a plea entered in the same court in 2015.
That contention mistakes both the law and authority with respect to the assessment of any reduction to be afforded an offender who enters a plea of guilty to the charge against him or her.
Section 22 of the Crimes (Sentencing Procedure) Act 1999 provides: "22 Guilty plea to be taken into account (1) In passing sentence for an offence on an offender who has pleaded guilty to the offence, a court must take into account: (a) the fact that the offender has pleaded guilty, and (b) when the offender pleaded guilty or indicated an intention to plead guilty, and (c) the circumstances in which the offender indicated an intention to plead guilty, and may accordingly impose a lesser penalty than it would otherwise have imposed. (1A) A lesser penalty imposed under this section must not be unreasonably disproportionate to the nature and circumstances of the offence. (2) When passing sentence on such an offender, a court that does not impose a lesser penalty under this section must indicate to the offender, and make a record of, its reasons for not doing so. (3) Subsection (2) does not limit any other requirement that a court has, apart from that subsection, to record the reasons for its decisions. (4) The failure of a court to comply with this section does not invalidate any sentence imposed by the court."
The section requires a sentencing court to take into account the fact of the plea, its timing, and the circumstances in which it was entered. Having considered those features of the plea, and subject to s 22(1A), the sentencing court may impose a lesser penalty than would otherwise have been the case.
That is, whether or not to allow a reduction in sentence to recognise the plea of guilty is a matter within the discretion of the sentencing court. There is no rule of law that makes a reduction in sentence in such circumstances mandatory; much less is a discount of any particular percentage obligatory.
Neither is it the case that the only relevant feature when assessing the extent of any reduction in sentence is the utilitarian value of a plea of guilty. In R v Thomson & Houlton (2000) 49 NSWLR 383 Spigelman CJ noted (at [160]) that the effect of the plea on sentence can encompass a number of matters to which the plea may be relevant, such as witness vulnerability, and including the utilitarian value of any plea.
As to the quantification of the latter, "The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10-25 per cent discount on sentence. The primary consideration determining where in the range a particular case should fall, is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge (at [160] (iii))."
Having been charged with drug offences in 2007, and wanted for the firearms offences from that time, and then entering pleas of guilty in 2015, the applicant's pleas could only be characterised as "an early plea" if the events of 2007 were entirely ignored. There is no rational reason why, in assessing the relevance of the pleas to the efficiency of the criminal justice system, such an approach should be endorsed.
The applicant's flight in 2007 had consequences for the efficiency and effectiveness of the criminal justice system, and for the utilisation of its resources. Rather than the matter proceeding to committal for sentence on or soon after charges were brought in July 2007, and thereafter progressing expeditiously to the imposition of sentence in the District Court, proceedings against the applicant were left undetermined for many years due solely to his actions. When the applicant failed to appear before the Local Court in 2007 the time allocated to the mention of the matter was wasted. Warrants had to be issued by that court for the applicant's arrest, and those warrants had to be processed and thereafter maintained as current. In 2015 the warrants had to be executed, and the applicant placed before a court to determine the question of bail.
That represents a loss of efficiency, and an expenditure of resources, not present when an offender enters an early plea of guilty, is committed for sentence, and is then quickly dealt with by a sentencing court. Due to the applicant's flight, "There was an obvious absence of benefit to the efficiency and effectiveness of the criminal justice system as a direct result of that delay for which the applicant was solely responsible: Visser v R [2011] NSWCCA 146 at [20]."
It was entirely open to the sentencing judge in assessing the utilitarian value of the applicant's pleas to have regard to the whole history of the matter, and to the delay occasioned by the applicant's flight from the jurisdiction in 2007. She was not obliged to confine that assessment to the committal for sentence in December 2015.
Error has not been established.

Ground 2

The applicant points to the conclusion of the sentencing judge set out above at [41] as evidence of error. It is argued that her Honour wrongly determined that the seriousness of the drug offence was "aggravated" by the fact that the applicant was supplying prohibited drugs at the same time as he possessed firearms.
On a fair reading of her Honour's reasons for sentence, it cannot be concluded that she regarded the contemporaneity of the drugs and firearms offences as aggravating the former. Rather, her comment was directed to the latter offence. The whole of the relevant portion of the reasons is as follows: "The fact that the offender was involved in drug supply at the same time as he possessed these firearms serves to increase the seriousness of the offending: R v Amurao [2005] NSWCCA 32. There is no evidence that the offender used the firearm as part of his role as a supplier of drugs. However, they were housed in premises in which he stored drugs. They were housed by the offender at the time during which he held a significant drug addiction and dealt with other such persons. His action in possessing the firearms was inherently dangerous to the community. Although he has explained why he had a working gun, the acquisition of other firearms is not persuasively innocent. The offence is committed with only three firearms, that there were six increases the seriousness, as does the presence of more than the one required prohibited firearm. The offending, however, falls below the mid-range of objective seriousness. Additionally, I need to have regard to the items on the Form 1."
Rather than concluding that the firearms were the "tools of the trade" of drug supply, as the applicant complains, and thus that the drug offence was more serious, it is clear that it was the dangerousness of the circumstances in which the guns were stored that concerned her Honour, and which she regarded as elevating the seriousness of the firearms offence. That is, the guns were kept unsecured by a drug addicted person in a bedroom to which other drug addicted persons had access, in circumstances where the applicant's explanation for his possession of them was unpersuasive.
That a gun or guns kept unsecured by a drug user in premises to which others had access should be regarded as dangerous ought to surprise no-one, and it was open to her Honour to so find. It was the inherent dangerousness of that act to which the sentencing judge was referring when observing that the firearms offence was thereby made more serious.
That the impugned sentence appears in a section of the judgment that deals specifically with the assessment of the objective seriousness of the firearms offence strengthens that conclusion.
This ground has not been made good.

Ground 3

This ground relies upon what, in my view, is clearly a slip, to contend for error in taking into account on sentence pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 an offence not before the court on a Form 1 document.
The Form 1 document relevant to offence 3, the firearms offence, contained seven offences to be taken into account on sentence, as noted at [20] - [22] above. Of significance to this ground are the two offences of possess prohibited drug, relating to cannabis and methylamphetamine respectively. When setting out the offences before the court for sentence, and referring to the offences to be taken into account in sentencing for offence 3, her Honour said, "In sentencing for the firearms offence, the offender asks that a further seven offences be taken into account. Two offences relate to supplying and possessing prohibited drugs. The maximum penalties are 15 years and two years respectively."
Her Honour went on to list the remaining five offences on the Form 1.
The applicant complains that, as he did not ask the sentencing judge to take an offence of supply prohibited drug into account on sentence, her Honour fell into error.
If attention is confined to the section of her Honour's judgment in which she set out the charges before the court for sentence or to be taken into account, and the applicable maximum penalties, it might be concluded that she mistook the offences on the Form 1 document and that the sentencing process miscarried as a result.
However, on reading beyond those introductory remarks it is clear that the sentencing judge well understood the nature of the offences to be taken into account on sentence for the firearms offence, and that those offences included two offences of possession of a prohibited drug. At a later point in the sentence judgment, her Honour set out the facts of the firearms offence, and of those offences appearing on the Form 1 document, as relevant to an assessment of the seriousness of the offences (and thus of the penalty to be imposed). She said, "During the search [of the applicant's home] police located a number of firearms […] and cannabis residue, being 44.6 grams of cannabis. […] There was also located with the cannabis .76 of a gram of methylamphetamine, that also appearing on the Form 1."
It is clear from her Honour's recitation of the facts at that point that the two small amounts of drugs were simply found by police in the course of a search of the applicant's bedroom, in circumstances where a supply offence of either drug did not arise on the evidence. That is particularly so in circumstances where the quantities involved fell well below the traffickable quantity specified for each in Schedule 1 to the Drug Misuse and Trafficking Act, that being 300 grams of cannabis and 3 grams of methylamphetamine.
If consideration is given to the sentence imposed upon the applicant for the firearms offence, having "regard to the items on the Form 1", as her Honour noted, it cannot be the case that the sentencing judge in fact determined sentence on the basis that an offence of supply prohibited drug was to be taken into account. Had that been the case, a sentence greater than that imposed might have been expected.
It seems likely that in handing down her ex tempore sentencing judgment, in the context of a busy circuit sittings, her Honour simply made a mistake in referring to a supply offence and the statutory maximum penalty for such a crime, in circumstances where that information was before her as part of Ex. A on sentence. That she did not go on to impose sentence on the basis of that initial mistake is clear from what she subsequently said about the facts of the relevant offences, and from the sentence she imposed.
This ground of appeal is not made out.

Conclusion

Whilst I would grant the applicant leave to appeal, and necessarily an extension of time within which to seek leave, I would dismiss the appeal.
The orders I propose are: 1. Time within which the application for leave to appeal is to be filed extended until 5 June 2017; 2. Leave to appeal granted; 3. Appeal dismissed.

Endnotes

(2000) 49 NSWLR 383 at [160]; [2000] NSWCCA 309.
[2003] NSWCCA 213 at [58] (Sheller 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. Decision last updated: 09 October 2017

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