Sant v R [2014] NSWCCA 261 | Case summary

Ground 2 - His Honour erred in his application of the principles of parity 11The submissions for the applicant dealt with these grounds together on the basis that they were interrelated. That is, the approach the judge took in comparing the sentences he had previously imposed upon related offenders assisted in demonstrating the error asserted under the first ground. 12The Court Attendance Notice specified the charge to which the applicant had pleaded as being that between 23 March and 8 June 2010 he supplied an amount of not less than 600 grams of methylamphetamine which was not less than the commercial quantity applicable to this drug (i.e. 250 grams). 13The statement of agreed facts set out other drug dealing activity before the period particularised in the charge. That activity related to the drug supply activity of Delia and his associates and referred to the involvement of the applicant as Delia's supplier. The learned judge summarised some of this in his ex tempore remarks on sentence before referring to the transactions that were the subject of the charge and which I have summarised above. However, it was submitted, his Honour did not explicitly state an awareness that he was only sentencing the applicant for the transactions that occurred within the charged period and not those that preceded it. This supported an inference that his Honour erroneously sentenced the applicant for all of the transactions set out in the statement of facts. The references his Honour made to the offending for which the others were sentenced was said to also support that inference. It was submitted that the error asserted under Ground 1: "affected his Honour's assessment of the applicant's offending vis a vis his co-offenders and the application of principles of parity. The effect of these errors was a mischaracterisation of the applicant's culpability for this offence and a misapplication of parity principles to him." 14To make sense of that it is necessary to say something about the sentencing of the other offenders by the same judge which occurred prior to his sentencing of the applicant. It should be noted that a common feature was that they all received 25 per cent discounts on their sentences on account of early guilty pleas. Sentencing of Manuel Delia 15Manuel Delia pleaded guilty to five offences involving the supply of methylamphetamine and received a total sentence of 9 years. The individual offences and sentences were as follows: Procure minor to supply 12.1.10: 3 years from 8 June 2010 Procure minor to supply 13.1.10: 3 years from 8 June 2010 Supply 21.1.10: 2 years from 8 June 2012 Ongoing supply 17.2.10 - 4.3.10: 3 years from 8 June 2012 Commercial supply 4.3.10 - 8.6.10: 7 years with non-parole period 4 years from 8 June 2012 16According to the judge's remarks on sentence of 29 August 2011, the first four offences involved the supply of the drug in the Dubbo and Wellington region of the State. 17The commercial supply offence involved the nine specific transactions referred to in the agreed facts in the applicant's case. But there was no mention in Delia's case that on the eight occasions he acquired drugs from the applicant and immediately sold them to the undercover officer he also received drugs to take back for supply in the Dubbo-Wellington region. There was mention of Delia attending upon the applicant's home on occasions unrelated to supplies to the undercover officer, but there was only mention of three such occasions as opposed to the more regular attendances described in the applicant's agreed facts. 18Delia had two further offences taken into account at his request on a Form 1 document. They were offences of knowingly dealing with the proceeds of crime ($10,000 in cash) and supplying 2.14 grams of methylamphetamine at Dubbo on 8 June 2010. 19Personal circumstances noted in the sentencing remarks included that he was 42 years of age. He had two sons in a marriage that broke down in 2004. He had been in his current relationship for the past seven years. His partner had a daughter and together they had a two year-old son. He had the benefit of ongoing support from his family. The judge accepted his claim that he had become depressed when he moved to Dubbo following the breakdown of his marriage and his resignation of membership from the Bandidos motor cycle gang, the latter involving fear of retribution for having done so. He had then resorted to using drugs and put that forward as an explanation for his offending. He had expressed remorse to others but there was conjecture as to whether he regretted what he had done as opposed to the predicament in which he had placed himself and his family. Significantly, he had no previous convictions. There were opinions of a prison chaplain and a psychologist that he had a low risk of recidivism but the judge noted that he was vulnerable to some extent because he had resorted to drugs when depressed. 20His Honour regarded Delia's commercial supply offence as being above the "mid-level" of seriousness. The reasons for this assessment were that he was organising others to distribute drugs on his behalf and that it occurred over a period of time. But also taken into account was that there was a police undercover operation and Delia may have been led into committing a more serious form of the offence, or into continuing it and becoming involved in the supply of larger quantities. Sentencing of Anthony McEwan 21It was included in the applicant's statement of agreed facts that the police investigation had established that he had obtained drugs for sale from Anthony McEwan. McEwan was arrested in possession of methylamphetamine on 10 May 2010 after having supplied the applicant that afternoon. He was in possession of $3,785 which he had obtained from the applicant. 22McEwan was sentenced by Blanch CJDC on 9 September 2011. He had pleaded guilty to a charge of supplying a commercial quantity of methylamphetamine between 19 March and 10 May 2010 and received a 25 percent discount for the early plea. He was sentenced to imprisonment for 6 years with a non-parole period of 3 years 6 months. 23The facts recited by the judge in sentencing McEwan were that he had supplied between 267 and 295g of the drug in the stated period to the applicant who had on-supplied them to Delia. The judge remarked that the drugs supplied by Delia exceeded the amount supplied by McEwan "quite significantly" and it was unclear what the source was aside from the fact that Delia was obtaining them from the applicant. He said, "it cannot be said that Mr McEwan ... was involved in all of the operations that Mr Delia was involved in or for that matter, all of the operations that John Sant was involved in". 24The recitation of the facts in the sentencing remarks does not make clear how many transactions between McEwan and the applicant were involved. What is clear, however, is that McEwan supplied less than half the amount that the applicant on-supplied to Delia. 25Offences on a Form 1 document were taken into account but they were not referred to in the sentencing remarks. However, after sentence was imposed, the prosecutor asked in relation to the Form 1 offences for orders that 16.2g of methylamphetamine be destroyed and that $3,785 be forfeited. I assume from this that offences relating to the supply of that drug and dealing with the proceeds of crime were involved. 26Personal circumstances of McEwan that were noted included that he was 36 years of age. His parents were separated and he had a stepfather who had physically abused him. He had become significantly addicted to "ice" by about 2005. He had a conviction in March 2010 for supplying a prohibited drug for which he received a 9 month suspended sentence of imprisonment. The offence in question thereby constituted a breach of that conditional liberty. He was sentenced at the same time for offences of possessing a prohibited weapon without a permit and dealing with property suspected to be the proceeds of crime. He was assessed by a psychologist as having made solid attempts at rehabilitation and his prospects were thought to be "reasonable". A matter specifically taken into account in his favour was his upbringing of his 16 year-old son after his former partner left him when the son was 8 months old. Also taken into account were testimonials as to his good character. 27However, the judge (rightly) found it necessary to impose a sentence "that reflects the objective criminality of a significant drug dealing operation, even if it is over a short period of time". He assessed the seriousness of the offence as being "just below mid-level seriousness, largely because it is only just over the commercial quantity and it is over a short period of time". Special circumstances were found on the basis of his long-standing drug addiction and chronic depression. Sentencing of Kyle Thompson 28Kyle Thompson entered early pleas of guilty to three offences of supplying a prohibited drug (on 25 March, 30 March and 4 June 2010) and an offence of ongoing supply (between 2 February and 4 March 2010). He was also sentenced by Blanch CJDC on 9 September 2011. 29The sentences imposed were 2 years imprisonment for each of the supply charges and 2 years with a non-parole period of 9 months for the ongoing supply charge. With partial accumulation, the total effective sentence was one of 4 years with a non-parole component of 2 years 9 months. The sentences were reduced by 25 percent for early pleas of guilty. 30The judge described "the key to it all" as being Mr Delia who he said ran an operation from Dubbo and who came to Sydney to obtain drugs from the present applicant, on occasions bringing Thompson with him. The evidence disclosed that Thompson and Delia co-operated in the daily distribution of methylamphetamine directly to drug users, using the services of runners. They co-operated with each other but ran different businesses. They usually sold bags of 0.25g for $250 but also sold single deals of 0.1g for $50. 31It seems from the brief description given in the sentencing remarks that the ongoing supply offence involved small street level deals. The three specific supply offences involved Thompson's involvement with Delia in the supply to an undercover officer of about 28g, 56g and 85g respectively. 32Offences listed on a Form 1 document were taken into account. They appear to have concerned relatively minor matters related to the activity the subject of the primary charges. 33The judge readily accepted that Thompson's activity was at a lower level than that of Delia. 34Thompson was 25 years of age. He was a native of the Dubbo-Wellington region. He began to use amphetamines when he was 18 years old and it escalated to a significant habit. He gave evidence that his supply activity was motivated by his need to fund his addiction, but the judge found that this provided no excuse given the harm such drugs cause in the community. A psychologist had assessed his mental capabilities at a lower level and also reported that he had a somewhat antisocial attitude. It was recommended that he receive assistance in resolving his alcohol and substance abuse problems. However a Probation and Parole Service officer had reported less optimistically that his ability to commit to a rehabilitation program was questionable in view of his breach of the suspended sentence good behaviour bond. Support by his partner and family were taken into account. The judge appears to have been dubious about whether Thompson was genuinely remorseful and said there was a question about his rehabilitation prospects. He also noted that Thompson had a criminal history that included offences of supplying a prohibited drug, dealing with the suspected proceeds of crime and possessing a restricted substance. The judge's comparison of the applicant's case with the cases of the others 35The judge said that the applicant's case was: "not strictly a case where the issue of parity with co-offenders is an issue because this is much more a case involving persons involved up the line of supply of a drug. However, it is necessary to bear in mind the sentences passed on the other offenders because the general principles of proportionality of sentencing require that there be some advertence to what are appropriate sentences in drug dealing cases and for the various parts played in them." 36Senior counsel for the applicant took issue with this, arguing that it was a case for the application of parity principles and querying what his Honour meant by his reference to "proportionality" (21.10.14 T3.20). He cited Lowe v The Queen [1984] HCA 46; 154 CLR 606 and Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 and submitted that "the exercise requires a comparison of the offending behaviour, the offender's background, age, criminal history and general character" (AWS [29]). 37Nothing turns on this because I am satisfied that the judge did have regard to all of the objective and subjective facts and circumstances of the cases of Delia, McEwan and Thompson and the sentences that had been imposed. He did not recite every feature of the other cases but he had a transcript of his remarks on sentence in each of the cases before him as part of the Crown tender bundle and, prior to the oral evidence being given in the defence case, he said that he had read "the papers" (POS 4.15). It is apparent that he did not confine his attention to just the objective circumstances of the offending: for example, see in the extract immediately below his reference to Delia not having prior convictions. Moreover, aside from their respective criminal histories, there was not much else in the subjective cases that served to distinguish the offenders. 38The judge said in respect of Delia: "So far as the part played by this offender clearly he is further up the line of supply than Delia, although, of course, Delia was distributing the drug in the Dubbo Wellington area. In Delia's case for the supply charge I sentenced him to seven years with a four year non-parole period. The total sentence for Delia was nine years with a six year non-parole period but in Delia's case a significant factor in increasing the sentence was the fact that he had involved a juvenile in the distribution of the drug. ... I should mention so far as Delia is concerned that he was a person without a prior criminal history." 39In relation to Thompson he said: "In the case of Thompson, I sentenced him to four years with a non-parole period of two years and nine months. He was a person who was an assistant to Delia." 40And in the case of McEwan he said: "I also have sentenced the man [McEwan], who supplied during a short period of time and I sentenced him to six years with a non-parole period of three and a half years. [McEwan] came for sentence in relation to a discrete period between 19 March and 10 May and the amounts of drug involved in his case were 267 grams and 295 grams." (Emphasis added) 41His Honour concluded this segment of his sentencing remarks as follows: "It is clear from a review of those cases that this offender is the most culpable in terms of providing significant quantities of methylamphetamine into the community and, accordingly it would be expected in the ordinary course of events that he would get a more severe penalty than Delia for supply and I repeat so far as the supply was concerned Delia's sentence was seven years with a four year non-parole period. In imposing those sentences I gave discrete sentences for each of the offences." Submissions and response 42I have previously referred (at [13]) to the overarching submission made on behalf of the applicant in relation to these grounds. It was further submitted that in finding that the applicant was "the most culpable" and that he should receive a heavier penalty than the others his Honour must have had regard to the earlier transactions that did not form part of the charge period (AWS [21]-[22]). 43I cannot accept that submission for two reasons. At the very commencement of his sentencing remarks his Honour recited the terms of the charge, including that it was an offence that was committed "between 23 March 2010 and 8 June 2010". I am not prepared to accept the submission when very soon after having said that he referred to some of the transactions set out in the agreed facts that predated this period that he was oblivious to the fact that they were not part of the charged conduct. 44Senior counsel for the applicant queried why the statement of agreed facts included reference to the earlier transactions given they were not relevant to the applicant's offence and had no idea why it was tendered in that form (21.10.14 T2.41). The document was signed by the applicant and it was tendered without objection. The references to the earlier transactions were probably considered to be relevant in explaining how the police came to identify the applicant's involvement in drug dealing. He was not the initial target of the investigation; Delia was. It was through monitoring Delia's activities that police became aware that the applicant was his supplier. It seems to me that the earlier activity described in the agreed facts was intended to provide background information; was understood by counsel then appearing to be there for that purpose; and was also understood by the judge in that way. 45The second reason I cannot accept the applicant's contention is that the judge twice made specific reference to the sentence imposed upon Delia for his commercial supply offence. That offence corresponded with the period and much of the activity involved in the applicant's offence. If the judge had thought that the applicant's offending conduct extended back into February he would have been making a comparison with Delia's ongoing supply offence as well. 46It was submitted that his Honour's comparison with the sentencing of McEwan supported the proposition that he had taken into account the pre-charge supply activity. The analysis was that McEwan was sentenced for an offending period of just under two months whereas the applicant was to be sentenced for an offending period of just under three months. If the earlier supplies were included as part of the offending period, this then increased to just under four months, almost twice the period for which McEwan was sentenced. In the passage extracted above (at [40]) in which his Honour referred to the sentencing of McEwan, he used the words "short" and "discrete". This was said to indicate that his Honour must have believed that the applicant's period was lengthier than the period specified in the charge (AWS [23]-[24]). 47This analysis and comparison is unsound. It ignores the fact that the judge referred to the period of McEwan's offending as being "between 19 March and 10 May" and his recitation not long before of the period of the charge concerning the applicant as being "between 23 March 2010 and 8 June 2010". Any contention that the objective criminality of McEwan's offence was closer to that of the applicant's is unsound as well. My earlier review of McEwan's sentencing indicates that he was not the applicant's sole supplier. Further, he was involved in supplying less than half of the drugs that the applicant supplied to Delia. 48The next submission criticised the judge's assessment that the applicant was more culpable than Delia on the basis that Delia's offending was over a longer period and involved other supply activity, including the involvement of a minor (AWS [25]). This analysis fails as it compares apples with oranges. I have already indicated the judge's specific reference to, and comparison with, the commercial supply offence committed by Delia. It would have been wrong to compare relative culpabilities for the commercial supply charge by including Delia's culpability in relation to other offences with which the applicant was not charged. When the comparison is confined to the commercial supply charge, on any view, as the up-line supplier to Delia the applicant's culpability must have been assessed as greater. 49Oral submissions for the applicant tended to suggest, implicitly, that the eight supplies by Delia to the undercover officer were something of a joint enterprise: "what's happening is this applicant's getting his cut and Delia is getting his cut. They are both making money ... out of a chain of events with people in the hope to make a profit. He is pretty much on a par with Mr Delia in terms of the things for which he is actually sentenced." 50This ignores the agreed facts. They were to the effect that Delia attended upon the applicant and obtained drugs. He immediately proceeded to attend upon and supply the undercover officer and then returned to pay the applicant. At the same time, he was also obtaining drugs for the purpose of supply in Dubbo and Wellington. There is no suggestion that the applicant had any contact with the undercover officer, or that he was even aware who Delia was supplying drugs to. 51Dealing more specifically with Ground 2, it was submitted that Delia and McEwan were "charged with the same offence as the applicant and principles of parity had direct relevance. Merely playing a different role or varying degrees of involvement in an enterprise does not preclude the principles of parity where the co-offenders have been charged with the same offence" (AWS [28]). But Delia was charged with being, in effect, a customer of the applicant and a supplier to customers the applicant had no involvement with and there is no suggestion in the agreed facts that he even knew who they were. The same can be said about the relationship between McEwan and the applicant. And the facts relating to the number of supply transactions and the total quantities involved differed as between the three of them. 52It was submitted that the applicant had a justifiable sense of grievance with the sentence imposed upon Delia (AWS [33]). Delia was sentenced to 7 years imprisonment for the offence in common with the applicant whereas the applicant's sentence was 9 years. The fact that Delia had two offences on a Form 1 to be taken into account does not markedly affect the comparison. But when regard is had to the greater number of transactions for which the applicant was sentenced, and to his more significant role as the supplier to Delia, there can be no legitimate grievance about the difference. 53When subjective features are factored in, the applicant was found to deserve a lesser sentence than would otherwise have been imposed on account of issues relating to his health. A countervailing factor was that Delia had the benefit of being a person with no previous convictions. The applicant had previous convictions including for drug offences although they were quite some time in the past. They included cultivating cannabis and supplying heroin in the 1980s for which he was not imprisoned. In 1993 he received a 3 year sentence of imprisonment for possessing a traffickable quantity of an imported drug. The judge remarked that apart from some driving offences he thereafter remained crime free. Nevertheless, he also said that this prior gaol sentence meant the applicant "should have been alerted to the dangers of becoming involved in dealing in drugs and to have done something to avoid it" (ROS 11). 54A final submission to deal with related to the manner in which Delia's sentences were structured (AWS [30]-[34]). Reference was made to Postiglione v The Queen [1997] HCA 26; 189 CLR 295 at 303 where Dawson and Gaudron JJ discussed the importance of having regard to "the actual period to be served". I accept, of course, that this is a matter of significance, particularly where the sentence an offender is serving is derived from multiple sentencing exercises. But I do not believe it has significance in this case. 55In sentencing Delia, Blanch CJDC complied with the requirements of Pearce v The Queen [1998] HCA 57; 194 CLR 610 by first determining the individual sentences before turning to questions of concurrence and accumulation, guided by the principle of totality. In the course of doing so he determined that the sentence for the commercial supply offence would be one of 7 years but having regard to totality he also determined that it would be concurrent with the supply and ongoing supply sentences which would be accumulated by two years upon the concurrent sentences for the procure minor to supply sentences. 56On the applicant's analysis, this led to a situation in which only 1 year of the non-parole period and 4 years of the total sentence would be solely referrable to the commercial supply offence. But another way of looking at it is to say that Delia received a sentence of 7 years with a 4 year non-parole period for the commercial supply offence. He would only be subject to a further 2 years imprisonment for offending conduct not referrable to that offence. This analysis does not assist the applicant. Conclusion 57I am not persuaded that it is legitimate for the applicant to be aggrieved that he received a greater sentence than did Delia or either of the other offenders. An objective view of the differences between the criminality in their corresponding offences and their subjective circumstances renders explicable the differences in the sentences imposed. I would not uphold either Ground 1 or 2.

Ground 3 - His Honour gave inadequate weight to the applicant's ill health and hardship in custody 58A major focus in the proceedings on sentence was an issue of the applicant's ill health. It is unnecessary for the determination of this ground to summarise the evidence on this subject in detail. In short, there was evidence that the applicant was diagnosed with Hepatitis C in 1995, having contracted it in the 1980s. He had developed advanced liver disease and there were indications of cirrhosis and liver failure. 59There was a contest as to the ability of Justice Health to provide adequate care and treatment for these conditions whilst the applicant was held in custody. Reports by Dr Steven Mistilis, an eminent gastroenterologist and hepatologist, and other specialists in this field were tendered. Dr Mistilis gave oral evidence. The Crown tendered a report by Professor Andrew Lloyd AM, a professor of medicine and consultant infectious diseases physician. The applicant was under the care of Professor Lloyd at Long Bay prison. 60The sentencing judge reviewed the evidence on this subject at relative length in his remarks on sentence (ROS 8.3 - 10.10). He concluded: "There can be no doubt that he would be better treated if he were out of the gaol hospital or out of the prison situation. There can be no doubt that he would receive better treatment if he were allowed to go into a liver unit and I accept the evidence that his chances of survival would be better if he were allowed to do that. That, of course, is looking at the issue entirely from the offender's point of view. It does have to be taken into account and it certainly has to be taken into account on the basis that his time in gaol is going to be a lot more difficult because of his health problems." 61His Honour referred to some more of the evidence on the subject before continuing: "I accept that they will not deal with it as well in the gaol situation as would happen if he were not in a gaol situation but that is not a basis for reducing a sentence to something that would be manifestly inadequate or inadequate bearing in mind the circumstances. Those factors do all have to be weighed together in coming to what is an appropriate sentence. Can I come back then to the question of proportionality and that involves looking at the other persons that I have sentenced as a result of this police operation and in my view as I have already indicated this offender should receive in the ordinary course of events a much heavier penalty than the other offenders. However, what has to be borne in mind is his health situation and the difficulties for him in custody and because of that in my view the sentence should be reduced." (Emphasis added) 62It was submitted that his Honour "failed to give adequate weight to the matter of the applicant's ill health and the adequacy of medical treatment in prison". Further, "it should have been given greater weight in the application of special circumstances. The applicant's ill health in this case was significant and should have been given substantial weight on sentence." 63The short answer to this is that his Honour accepted the state of the applicant's health was as described in the medical evidence; that he would not be treated as well in the custodial environment as he would be in the community; and that his sentence would be reduced as a result. The extent to which such a reduction was made was primarily a matter for the discretion of the sentencing judge. This Court will be slow to intervene when complaints are made about the "weight" that should be given to individual factors in the complex of issues to be considered in a sentencing exercise: see, for example, R v Baker [2000] NSWCCA 85 at [11] (Spigelman CJ) which has been repeatedly cited in this Court for that proposition. 64In Hanania v R [2012] NSWCCA 220 at [33] Button J questioned (without deciding) whether a complaint about weight should be a ground of appeal rather than a particular of a complaint about manifest excess or inadequacy. The judge said that he would reduce the sentence he otherwise would have imposed. I am not prepared to conclude that he did not do so. The sentence is not said to be manifestly excessive. In these circumstances I am not prepared to conclude that "inadequate weight" was given to these matters.

Sant v R

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