Sande v R

Circumstances of the offences

1. According to a set of agreed facts that was adopted by the sentencing judge, the circumstances of the offences were to the following effect. On 5 October 2020 at about 5pm, police officers who were conducting a patrol in Guildford observed the applicant parked in the driveway of an address that was known to police. The vehicle drove off and executed a turn without indicating, at which point police activated their vehicle's lights and sirens. The applicant initially slowed down and was seen to look back at the police vehicle through his rear vision mirror, and then lean towards and look into the centre console of his vehicle. The officers shouted to the applicant to pull over. The applicant continued to drive slowly, at times pulling to the side, but then continuing again.
2. When the applicant finally pulled over and was approached by police, he appeared "nervous and flustered and was sweating from his forehead". The officers noticed a "scrunched-up piece of foil" in the passenger footwell. On searching the vehicle, they located a bag on the driver's seat that contained $1,300 in cash and a piece of foil, within which was a clear resealable bag with a red seal. It contained powder that, when later analysed, was found to be 1.20g of heroin. The cash and heroin are the bases of the two Form 1 offences. In the glovebox, police found a set of digital scales and a sheet of paper with handwritten entries of names and numbers which was consistent with it being "a handwritten drug ledger" of street dealing. Police also located three mobile phones in the bag. One recorded two messages in code, received at 4:53pm and 4:54pm that day, that were consistent with the sender arranging a drug deal. The messages were from a contact named "JC". Police were aware that a resident of the address at which the applicant was observed to be parked was named "Jean Claude". Also in the bag were four resealable bags with a purple seal.
3. Secreted in a cover on the handbrake, police located 42.95g of methylamphetamine in two resealable plastic bags and a third bag with a large number of smaller resealable bags with purple seals.
4. The applicant admitted ownership of the heroin, stating that it was for his own use. He entered a plea of guilty while the matter was still in the Local Court.

A forensic psychologist's report

1. At the time of the offences, the applicant was aged 48. He provided a personal history to a forensic psychologist, Kris North, which she reproduced in a report that was tendered at the sentence hearing. The applicant was born in Australia and is one of five children. He described a relatively stable family background, except for his father consuming alcohol and using "harsh physical punishment" on him and, as a child, witnessing domestic violence between his parents. He continued to have a close relationship with his siblings.
2. The applicant's history of use of prescribed and prohibited drugs featured prominently in Ms North's account of his personal history. I record this together with his criminal history, which is clearly interrelated.
3. The applicant has a criminal history that commenced in his late teens. Between the ages of 19 and 21, he was convicted of driving while his licence was cancelled, driving whilst disqualified, driving in a manner dangerous, assault, possess firearm and not keep a firearm safe. The penalties imposed for those offences, which were fines and community service orders, suggest that they were relatively minor. An exception is that when aged 20, he was convicted a second time for driving while disqualified and driving in a manner dangerous, for which he received a 3 year recognizance, fines totalling $1,750 and a 2 year disqualification from driving.
4. From his early twenties, for about five years, the applicant used ecstasy on a weekly basis. I note that when he was aged 25, he was charged with supplying a commercial quantity of a prohibited drug and sentenced to imprisonment for a period of 5 years with a non-parole period of 2 years 6 months, conditional upon him attending treatment and other programs that would be recommended to him by a doctor. Three other drug offences were taken into account on a Form 1. Three months after those charges, he was charged with firing a firearm in or near a public place, for which he received a sentence of 4 months periodic detention.
5. From his mid-twenties until the age of 29, the applicant used heroin, which ceased with his participation in an outpatient detoxification program and a naltrexone implant. His drug use escalated in his early thirties as a result of the impact on him of the death of his father. In his thirties, for about five years, he regularly used cocaine. I note that when aged 35, the applicant was convicted and fined for possessing a prohibited drug and failing to appear in accordance with a bail undertaking. Within the next two years he was convicted of two further counts of possessing a prohibited drug, for which he received good behaviour bonds.
6. In June 2011, when he was aged 38, the applicant was charged with resisting an officer in the execution of their duty, for which he was convicted and fined. The following month, the applicant was shot in the chest outside his home. He was prescribed Oxycontin over three months for pain management, following which he experienced both pain and withdrawal symptoms. He resumed using heroin and considered that within a month of doing so he had become addicted. I note that in October 2011, that is, three months after he was shot, the applicant was charged with possessing a prohibited drug, for which in February 2012 he received a suspended sentence of 9 months imprisonment. In November 2011, he was charged with driving while his licence was suspended, for which he was convicted, fined and disqualified from driving for 12 months, and in December 2012, he was charged with driving while his licence was cancelled and driving while using a mobile phone. He was convicted and received fines and a further 2 year disqualification from driving.
7. In about June 2012, the applicant obtained a further naltrexone implant, but again relapsed between 2013 and 2015. I note that in October 2013, he was charged with possessing a prohibited drug, for which he was fined.
8. On 1 February 2017, when aged 44, the applicant was charged with supplying a large commercial quantity of ecstasy. In September 2018, he received a sentence of imprisonment of 4 years 6 months with a non-parole period of 3 years, backdated to commence on the date of his arrest and to conclude on 31 January 2020. On 1 August 2019, the applicant was released to parole on a "reintegration home detention" order, pursuant to s 124I of the Crimes (Administration of Sentences) Act 1999 (NSW). The applicant's arrest in respect of the charges that ultimately gave rise to this application for leave to appeal, on 5 October 2020, was thus eight months after his transition to parole, which was revoked a fortnight later.
9. On 26 April 2021, the applicant was granted bail by the Supreme Court, conditional upon him attending a residential drug and alcohol rehabilitation program, known as Niagara Lodge. He remained in custody until he entered that program on 17 May 2021. On 31 July 2021, Niagara Lodge ceased to operate and on 20 August 2021, the applicant was returned to custody. On 15 September 2021, the applicant was again granted bail, this time conditional upon him attending another residential drug and alcohol rehabilitation program, known as Connect Global, which he was due to complete on 21 January 2022. The sentence hearing was adjourned until that date, expressly to enable the applicant to complete that program.
10. Ms North related other aspects of the applicant's account of his history. He left school after obtaining his School Certificate in Year 10 and completed a spray-painting apprenticeship, maintaining stable employment in that industry thereafter, when not in prison. He was married at age 20. He said that he and his wife amicably separated after approximately three years. I note that when he was aged 32, the applicant was convicted and fined for offences of destroying or damaging property and stalk or intimidate with intent to cause fear ("stalk/intimidate"). In his late thirties, he commenced a relationship that he described as becoming "toxic" over time and which lasted for about four years. They had a daughter, who at the time of Ms North's report, was aged 9 years. In October 2013, when he was aged 40, he was charged with counts of contravening an apprehended domestic violence order ("an ADVO") and stalk/intimidate, for which he received good behaviour bonds for a period of 12 months. When he was aged 42, he was again convicted of contravening an ADVO. The applicant gained custody of his daughter in 2017. At the time of Ms North's report, she was being cared for by a sister of the applicant.
11. Ms North was provided with past psychological and psychiatric reports. She noted that five months after the shooting incident, a clinical psychologist described the applicant as presenting with symptoms of depression, anxiety and post-traumatic stress disorder ("PTSD"). The applicant's resumption of heroin use at that time was considered to be avoidance behaviour, which was characteristic of a post-traumatic stress response. In 2017, another psychologist also diagnosed the applicant with PTSD. She noted symptoms of depression and anxiety, which Ms North thought were more likely related to the diagnosis of PTSD rather than a separate underlying mood or anxiety-related disorder.
12. Ms North's own assessment of the applicant was that he continued to present with symptoms of PTSD. She applied an assessment tool that is designed to detect the level and severity of depressive symptoms (the Beck Depression Inventory 2nd ed) and scored him in the minimal range for depressive symptoms. She assessed him as satisfying the criteria for an "Opioid Use Disorder, Moderate, In sustained remission, In a controlled environment". She concluded that it was a major contributing factor to his offending behaviour since 1998. Ms North recommended that the applicant be permitted to complete a minimum of three months in the Connect Global program and that, upon his release into the community, he engage a psychologist to provide ongoing monitoring of his mood, including symptoms associated with his underlying PTSD, and to provide further assessments and treatment as required. I note that the applicant informed Ms North that he had the benefit of a strong support network in the community, which included stable accommodation with his family and work as a spray painter with past employers.

Other material tendered by the applicant

1. The applicant tendered a letter expressing remorse. Letters were also tendered by his sister and brother-in-law which related expressions of remorse by the applicant and in which they expressed their confidence that the applicant had benefitted from the first period of time he spent in a residential rehabilitation facility. They both said that the applicant was strongly motivated to lead a law-abiding life on his release because of his desire to resume a parental role with his daughter. The contents of both letters were replicated in affidavits that were read at the sentence hearing. Reports from Niagara Lodge and Connect Global were tendered, which attested to the applicant's progress in their respective programs. A letter from Connect Global, authored by a person described as the "Program Founder", requested that in the interests of the applicant's further rehabilitation, he not be returned to custody. The applicant also tendered certificates of completion of programs conducted by the High Intensity Program Unit of Corrective Services.

The case for the Crown

1. The material tendered by the Crown included a sentencing assessment report prepared by a Community Corrections Officer that was dated 17 September 2021, a month before Ms North's report. The Community Corrections Officer noted that the supervision of the applicant's parole had been suspended "due to his calculated risk rating", which was not elaborated upon. She said that the applicant had been assessed with a risk assessment tool, the Level of Service Inventory-Revised ("LSI-R"), which resulted in a finding that he has a "medium risk of reoffending".
2. A breach of parole report dated 7 October 2020 was tendered, which recommended that the applicant's parole be revoked in view of his arrest for the instant matters. The author stated that the applicant's "reoffence indicates a lack of genuine engagement in the supervision and behavioural change process". The report noted that, prior to his arrest, the applicant's supervision had been satisfactory and that, following his completion of the reintegration home detention period, "his supervision was suspended as a result of his low risk rating, in accordance with policy".
3. The Crown tendered the agreed facts and remarks on sentence in respect of the applicant's conviction in 2018 for supplying a large commercial quantity of methylenedioxymethamphetamine ("MDMA"). The amount involved was 852.3g. A large commercial quantity was 500g. The MDMA was in tablet form, in two actual supplies of 1,000 and 2,056 tablets. The applicant entered an early plea of guilty. The sentencing judge, Haesler SC DCJ, found that the applicant's role in both supplies was as an up-line supplier, which had the advantage of distancing him from the ultimate supply to the users. His Honour was unable to find that they were isolated supplies. The intermediary to whom the applicant supplied the tablets was the mother of his daughter.
4. His Honour referred to a report that had been tendered by the applicant, by forensic psychiatrist Dr Allnutt, who diagnosed the applicant as suffering from PTSD, which may have contributed to his drug use and reduced his capacity to think clearly about the consequences of his actions. The applicant had previously engaged in cognitive behaviour therapy. His Honour found that the offence fell "much closer to the bottom" of the range of objective seriousness than the mid-range, for such offences. His Honour found special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) based on the need for supervision and monitoring when the time came for the applicant to be released on parole.

Submissions by the parties

1. The essential thrust of the applicant's submissions at the sentence hearing was the evidence of the applicant's rehabilitation. There were no indicators of him having resorted to prohibited drug use since his arrest and there was positive evidence of abstention in the form of regular urinalysis tests while he was attending the two residential rehabilitation centres. The applicant's progress towards rehabilitation was evidenced in the reports from those organisations and the affidavits of his sibling and her husband.
2. Counsel for the applicant submitted that, in view of the applicant's early plea of guilty, the period of pre-sentence custody and the quasi-custody involved in the residential rehabilitation programs, a realistic sentencing option was an intensive correction order ("an ICO").
3. The Crown submitted that in view of the applicant's status as a parolee for a like offence at the time of the offences and the applicant's past failed attempts at therapy, specific deterrence was a significant factor in the sentencing exercise, to a point that a sentence of full-time imprisonment was unavoidable.

The remarks on sentence

1. The sentencing judge noted that the maximum penalty for the principal offence was a sentence of imprisonment for 15 years and/or a fine of up to $220,000. His Honour accepted that the applicant's role was no greater than that which was apparent from the circumstances of his arrest, and that he was a user of heroin as well as a dealer of methylamphetamine. There was no evidence of profit beyond what would be expected at his level of engagement in the process of supply and his involvement in the offending is to be understood in the context of him being subject to "entrenched drug addiction". The sentencing judge accepted that the evidence was consistent with the applicant's motivation being predominantly directed to sustaining his drug use, which placed him in a "less heinous category than that of a person merely operating for the motive of profit".
2. The sentencing judge noted the aggravating factor of the applicant being on parole for a like offence at the time of these offences and that he had not had the opportunity of assessing the applicant giving evidence, although that was not a matter that was adverse to his interests. His Honour extensively reviewed the material that had been tendered on the applicant's behalf and noted the "strong thread of consistency" in the accounts of the applicant's steps towards rehabilitation.
3. The sentencing judge found that the principal offence "falls towards the lower end of the scale of objective seriousness" for that type of offending.
4. In relation to the case for the applicant, the sentencing judge related Ms North's account of the applicant's exposure to violence and his father's alcohol abuse, observing: "I do not diminish the fact that such a background is harmful and shakes the foundations that should otherwise have been laid down in childhood for a stable, law-abiding attitude to life as an adult. Those matters are taken into account. They do not dilute with time."
5. His Honour found as follows: "The case presented on [the applicant's] behalf amounts to an argument that he has reached a crossroad. Although he has not given evidence, I find it more probable than not that [the applicant] is at least approaching that crossroad and [is] highly motivated to reform before he wastes anymore of his life, or indeed further tests and strains the bonds of family loyalty. He is fortunate, in that he is very well supported in the community, most particularly by his immediate family. He will have employment upon his release. However, his brother-in-law's letter to the Court indicates that [the applicant] has come close to exhausting the capacity for further support should [he] reoffend. I give full weight to that letter, however I do otherwise note the remarkable patience and forbearance of [the applicant's] family, which really has been quite extraordinary. [The applicant] has provided, however, a practical basis for some cautious optimism, both by his attendance at the full time residential programs, and also when in custody by his embrace of the high intensity program he entered in custody. I have noted the certificate and the attendance in that quite lengthy program. The Court [is], in light of past performance, cautious about [the applicant's] prospects of rehabilitation. I presently regard them as fair. They may, however, improve, in particular with effective supervision, support and commitment on his part."
6. The sentencing judge concluded that a sentence of full-time imprisonment was necessary, in which specific deterrence was warranted by the applicant's "repeated breaching of the law related to illicit drugs and supply". His Honour said: "I have come to the view that the inescapable requirements of punishment, of general deterrence and specific deterrence with denunciation, will entail some further period of imprisonment. That is regrettably the case. In coming to that conclusion I am also mindful that this may have a deleterious effect upon [the applicant's] ongoing rehabilitation. Whilst taking that into account, the Court must not lose sight of the principle that even a strong subjective case must not result in a sentence that is so disproportionate to the offending as to represent in effect a weakly merciful outcome by the Court."
7. The sentencing judge found "a powerful case for special circumstances" for extended supervision, given that the instant offences were committed while on parole.
8. The sentencing judge allowed a 25 per cent discount for the applicant's early plea of guilty and explained that he took into account the following factors in determining the commencement date of the sentence. First, that the initial period of custody following the applicant's arrest on 5 October 2020 of 214 days was served by way of balance of parole, which expired on 30 July 2021, following his release on bail to Niagara Lodge. Second, that the total period of 222 days that the applicant spent in residential rehabilitation was treated as quasi-custody for half that period, being 111 days. Third, that his return to custody following the closure of Niagara Lodge was for 26 days. Fourth, that the sentence of 3 years 6 months, with a non-parole period of 1 year 8 months, commenced on 24 February 2021, which his Honour noted subsumed a part of the balance of parole of the sentence imposed for the 2017 offence. Fifth, that the ratio of the non-parole period to the total sentence is approximately 48 per cent.

The ground of appeal: the sentence imposed is manifestly excessive

Submissions by the parties

1. The applicant submitted that, allowing for the discount for the applicant's early plea of guilty, the starting point for the sentence imposed by the sentencing judge was calculated to be 4 years and 8 months. In view of the findings made by the sentencing judge as to the objective seriousness of the principal offence, the circumstances of the offending and in respect of the applicant's subjective case which were favourable to the applicant, this was manifestly excessive.
2. The applicant submitted that it was apparent from the sentencing judge's finding, extracted at [33] above, that his Honour was applying "Bugmy principles": Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37, at [43]. Further, his Honour's findings as to the applicant's motivation for engaging in the offending behaviour suggested a low level of moral culpability.
3. The applicant accepted that a non-custodial sentence was not within range for the offence, but submitted that the sentence imposed was unreasonable, due to the sentencing judge's finding as to objective seriousness and the strength of the subjective case. He sought to demonstrate this by reference to statistics published by the Judicial Commission of New South Wales ("Judicial Commission") to illustrate where the imposed sentence lay in the pattern of like sentences. A graph depicted sentences of imprisonment for a cohort of 21 sentences for a supply of less than a commercial quantity of amphetamine with the criteria of "priors - same type with custody, guilty plea, offender 41-50 years of age". 90.5 per cent of the cohort received a lower head sentence than the applicant.
4. The applicant also relied upon a table of 11 sentences imposed for the supply of amphetamines or methylamphetamine that were the subject of appeal between 1993 to 2021, with a range of objective and subjective features, in which the offender had either pleaded guilty or was convicted following a hearing. None involved a sentence equal to or higher than that imposed on the applicant.
5. The Crown noted that the applicant did not contend that the sentencing judge had erred in any particular respect and submitted that his Honour gave appropriate weight to the applicant's childhood disadvantage. The Crown cautioned against the applicant's reliance upon statistical analysis of sentences for like offences and comparative sentences, and noted the danger of suggesting a sentence was outside an appropriate "range". The Crown relied upon observations made by Adamson J (McClellan CJ at CL and Rothman J agreeing) in Vandeventer v R [2013] NSWCCA 33, at [45], where her Honour stated: "One cannot adjudge whether a sentence falls within an appropriate range by reasoning from particular instances. Applicants will always be able to find cases where offenders appear to have been dealt with more leniently. So, too, will the Crown be able to find cases where offenders have apparently been dealt with more severely than the applicant for leave to appeal on sentence. This is not, however, the way in which this Court determines whether a sentence is manifestly excessive."

Consideration

1. The principles that apply to a determination of whether a sentence is manifestly excessive are uncontroversial. In Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 R A Hulme J (as his Honour then was) succinctly stated those principles, at [443]: "When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]: • Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases. • Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error. • It is not to the point that this court might have exercised the sentencing discretion differently. • There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle. • It is for the applicant to establish that the sentence was unreasonable or plainly unjust."
2. A central feature of the case for the Crown on sentence was the applicant's significant history involving drugs, past failed attempts at rehabilitation, the fact that he was a mature-aged offender with an entrenched drug addiction and the fact that the instant offences were committed whilst he was on parole for the supply of a large commercial quantity of a prohibited drug. In relation to the table of 11 like cases, I note that only three involved offenders who had prior convictions involving "drugs". One was in 1994, which I disregard because of its limited utility due to its age. The other two are Donaghey v R [2015] NSWCCA 119 and the related cases of Sahyoun v R [2020] NSWCCA 87 and Sahyoun v R (No 2) [2020] NSWCCA 95.
3. The cases of Sahyoun and Sahyoun (No 2) are of limited assistance, since the only prior drug offence was possession of a prohibited drug that was committed 12 years before the offence for which the offender was sentenced, he was not on conditional liberty at the time of the offence and the appeal involved considerations of parity. The appeal was upheld and the fresh sentence imposed was imprisonment for a period of 2 years 6 months with a non-parole period of 15 months.
4. The circumstances of Donaghey were strikingly similar to the instant case, albeit involving a third of the quantity of the prohibited drug. The offender was apprehended in his vehicle while street dealing and convicted of supplying 13.46g of methylamphetamine. Two other offences were taken into account on a Form 1, being a supply of 4.46g of heroin and dealing with property suspected of being the proceeds of crime. The offender was on parole at the time, for an offence of supplying a prohibited drug. The sentence imposed at first instance was imprisonment for 2 years and 4 months with a non-parole period of 21 months. The sentence for the earlier supply conviction was a suspended sentence for 2 years, which he breached, resulting in a sentence of 2 years with a non-parole period of 12 months. The quantity and type of drug was not specified. The sentence imposed suggests that the offence was significantly less serious than the applicant's prior supply. The appeal was upheld on the grounds that the sentencing judge misstated the maximum penalty and overlooked a submission that special circumstances should be found. The fresh sentence was 2 years with a non-parole period of 1 year 4 months.
5. In assessing the relevance of Donaghey to the application, allowance must be made for the dissimilarities between the two cases and the fact that the sentence imposed in Donaghey was not the subject of appellate consideration in terms of its leniency or excessiveness. Accordingly, the Judicial Commission statistics and the table of comparable sentences do not assist the applicant in demonstrating that the sentence imposed was manifestly excessive.
6. The applicant could not have done more to demonstrate that, since his arrest, he had taken every opportunity to engage in rehabilitation of his entrenched abuse of a range of prohibited drugs and his resorting to supply to finance that addiction. Nevertheless, the sentencing exercise that confronted the sentencing judge called for attention to specific and general deterrence in the form of a sentence of imprisonment, which the applicant does not contest in this application. The manner in which the sentencing judge addressed those conflicting concerns, by the imposition of a salutary sentence but moderated by an allowance for quasi-custody in residential rehabilitation and a generous non-parole period that constituted only 48 per cent of that sentence, was sensible and appropriate in the circumstances.
7. In my view, there was not a tenable basis upon which the sentence could have been challenged, so that the appropriate order was to refuse leave: Pham v R [2017] NSWCCA 75 at [20].

Orders

1. The following order was made by the Court on 6 July 2022: 1. The application for leave to appeal is refused.

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