Semple v R

Court of Criminal Appeal (NSW)|2019-02-20|Before: Hoeben CJ, Price J, Adamson J

Solicitors: Applicant in Person Solicitor for Public Prosecutions - Respondent Crown File Number(s): 2016/327482 Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 16 March 2018 Before: McClintock SC DCJ File Number(s): 2016/327482

Offences and sentence The applicant, who is self-represented in these proceedings, seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against an aggregate sentence imposed upon him by his Honour Judge McClintock SC at Sydney District Court on 16 March 2018.

On 28 November 2017 the applicant pleaded guilty to two offences of supplying a prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW) (DMTA). The applicant also asked the court to take into account when sentencing him for the second offence a further offence of supplying a prohibited drug (contrary to s 25(1) DMTA) and an offence of possessing a prohibited drug (contrary to s 10(1) DMTA) (the Form 1 matters).

Factual background

The applicant was sentenced on the basis of agreed facts. In brief, on 8 April 2016 the applicant was released on parole in connection with a number of prior offences involving the supply of prohibited drugs.
On 2 November 2016, police attended the applicant's residence and executed a search warrant. During the search of these premises, the police located the following: • A hollow rock containing a bag of 6.0g of methylamphetamine; • A water bottle containing 367.3g of 1,4-butanediol; • A glass vial, shot glass and plastic container containing a total of 77.2g of 1,4-butanediol; and • A box containing an ice pipe, $150 in Australian currency and a resealable bag containing 1.6g of ketamine.
The police also located four mobile phones belonging to the applicant and various drug paraphernalia including a set of scales, plastic resealable bags, small balloons and an apparatus to move liquid. Additionally, a total of $11,335 in cash was located in safes, wallets, bags and other locations throughout the premises.

Sentence proceedings

On 28 November 2017, the applicant entered pleas of guilty during what was referred to as a "super call over" and the trial date of 27 November 2017 was formally vacated. The matter was adjourned to 13 March 2018 for sentence.
Material was tendered by the Crown, including a pre-sentence report, and the sentence judgment of Sweeney DCJ of 13 March 2015 relating to the earlier offences for which the applicant was on parole. Material was tendered by the applicant's counsel, including a psychologist's report and correspondence regarding ASIC's decision to ban the applicant from providing financial services.
On 16 March 2018, the applicant gave evidence. His evidence was that he had been sexually assaulted while in custody and had requested to be moved from his cell as a result of this. He had completed a rehabilitation program during his first sentence. He gave evidence that he had relapsed into drug use whilst on parole due to the traumatic experience of having his financial services licence removed by ASIC.
His Honour observed that the applicant had been in custody since the time of his arrest on 2 November 2016 and noted that the applicant had spent no time in custody solely in relation to the present matter because he had been serving the balance of parole from his earlier sentence.
His Honour found that the applicant was clearly drug dealing on a range of products. His Honour assessed the objective seriousness of the offending at "slightly below the midrange".
His Honour reviewed the applicant's subjective case and in doing so, relied upon a psychologist's report of Mr Borenstein, dated 9 March 2018. The sentencing judge made the following findings: 1. the applicant's criminal record contained an offence involving a similar set of circumstances in which the applicant had been found to be dealing a commercial quantity of drugs. Apart from that entry, his record did not deny him further leniency; 2. in relation to these offences, the applicant had been dealing drugs "partly to finance his habit and probably for financial gain"; 3. in relation to rehabilitation, his Honour found that "one would have to be extremely guarded in relation to [the applicant's] prospects of rehabilitation, given the short period between his release into the community and his committing a further serious offence of supply"; 4. ASIC's decision to ban him from providing financial services had a significant psychological effect upon him, but he was able to retain his business because it was being managed by his brother; 5. the psychologist's report indicated that the applicant had lapsed into a major depressive disorder in 2016 because of the loss of his ability to be registered as a financial planner; 6. the applicant had experienced a number of incidents while in custody, including significant intimidation and a sexual assault. His Honour accepted that the applicant would spend his time in custody in a more onerous way; 7. the applicant had undertaken a series of drug rehabilitation programs and had successfully completed one while in gaol. Nevertheless, his Honour found that it was "obvious that [the applicant] has a significant difficulty as a person addicted to illegal substances and he has made various attempts to deal with that problem unsuccessfully to date"; 8. His Honour had some doubts as to whether the applicant had gained full insight into his own conduct but accepted that the applicant would make a genuine attempt to rehabilitate himself upon release.
His Honour allowed a discount of 20 per cent for the utilitarian value of the plea of guilty. His Honour made a finding of special circumstances, partly due to the applicant's "issues of rehabilitation" and partly because of "issues relating to accumulation". In relation to the latter, his Honour noted that "there obviously has to be a partial accumulation on the breach of parole to give some indication of the fact that he breached parole so early after release" (Sentence judgment 7.4).
His Honour found that it was a significantly aggravating factor that this matter involved repeat offending in the form of a series of supply offences committed within a relatively short time after the applicant had been released from custody. His Honour noted that as a consequence, regard had to be had to both specific and general deterrence in formulating the sentence.
While his Honour took into account the findings of the psychologist as explaining many of the applicant's actions, he did not regard the matters raised therein as having contributed to the commission of the offences in the sense referred to in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 and R v Engert (1995) 84 A Crim R 67.
Because of the applicant's prior offending and the pattern of the present offending, his Honour took into account the need for protection of the community and said: "[t]he laws in relation to drugs supply are in part there in order to protect people from becoming addicted in the way that Mr Semple appears to have been addicted." (Sentence judgment 8.5)

Ground 1 - The sentence in relation to offence two, supply of prohibited drug, is manifestly excessive.

In view of the fact that the applicant was self-represented, some latitude needs to be allowed when considering his submissions. For example, the applicant focused his submissions on the indicated sentence for Count 2 when the proper subject of the appeal should have been the aggregate sentence. Accordingly, I have dealt with the matter in that way.
The applicant submitted that his sentence was excessive by comparison with a sentence imposed in a similar case. The applicant referred the Court to R v Tucakavoic which was a decision of Judge Williams in the District Court, handed down on 25 January 2017. In that case, the offender had been charged with one break enter and steal offence under s 112(1) of the Crimes Act 1900, one offence of perverting the course of justice under s 319 of the Crimes Act and one offence of supply a prohibited drug being 219g of butanediol under s 25(1) of the DMTA. Mr Tucakavoic was addicted to drugs and although he had tried to rehabilitate himself, he had relapsed on a number of occasions. The motivation for the first offence was his need to obtain money to pay for his addiction. Williams DCJ imposed an aggregate sentence of imprisonment for 4 years with a non-parole period of 2 years for all three offences. The indicative sentence for the supply offence was 2 years.
The applicant submitted that he had excellent prospects of rehabilitation, which ought to have been given weight by his Honour. In support of that, he relied upon the presentence report where he was assessed at medium - low risk of re-offending.
The applicant submitted that his Honour had made an erroneous finding that his offending was motivated by financial gain. The applicant submitted that insufficient weight was placed upon his chronic health conditions. On that issue, the applicant relied upon the diagnosis of a major depressive episode as a result of the stress involved in fighting ASIC over its determination to take away his financial services licence. The applicant also relied upon what he described as the chronic nature of his health conditions, which included glaucoma and HIV.

Consideration

The principles relating to "manifest excess" are well established. To succeed in establishing this ground, the applicant must establish that his sentence was "unreasonable or plainly unjust": Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [25]; Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at [6].
As this Court has said on many occasions, a single sentence or even a number of sentences involving the same or similar offences, cannot establish a range of comparable sentences or provide appropriate guidance in cases such as this (Upadhyaya v R [2017] NSWCCA 162 at [75] (Campbell J with whom Leeming JA and Latham J agreed).
Moreover, the particular facts of the case upon which the applicant relied were very different from those relating to him. Mr Tucakovic had pleaded guilty to three offences. In relation to the drug supply offence, Williams DCJ found that the offence was towards the lower end of the range of objective seriousness, whereas here, his Honour found the offences to be just below mid-range. There were no Form 1 matters to be taken into account in Mr Tucakovic's case. Mr Tucakovic was much younger than the applicant. However, the most significant difference is that Mr Tucakovic was not on parole for having supplied prohibited drugs at the times of the offences.
In relation to the applicant's prospects of rehabilitation and his health conditions, it is clear from his Honour's sentence judgment that he took into account the applicant's previous attempts at rehabilitation and his future prospects in that regard. His Honour noted, for example, that the applicant had previously undertaken drug rehabilitation programs and had successfully completed one while in prison. His Honour also noted that there were "prospects of rehabilitation" and accepted that the applicant would "make a genuine attempt to rehabilitate himself" upon release.
To the extent that his Honour concluded that the applicant's prospects of rehabilitation were limited or "guarded", such a finding was well open to his Honour. The applicant had relapsed into drug abuse shortly after his release from custody in 2016. This contributed directly to his commission of the present offences. The presentence report also noted that the applicant's drug dependence was "unresolved". In his own evidence, the applicant described his addiction as an "ongoing issue" (T. 16.3.2018, 8.36)
In respect of the applicant's health conditions, his Honour took into account that he had been diagnosed with HIV and that he had previously suffered from a major depressive episode. His Honour also noted that he had read the report of Mr Borenstein in full in which those conditions were discussed. On that issue, his Honour found that the applicant's time in custody would be more onerous "partly because of his own psychology". His Honour expressly took into account the matters contained in Mr Borenstein's report in his overall synthesis of matters relevant to sentencing.
This Court has said on a number of occasions that the weight to be given to individual factors on sentence is quintessentially a matter for the discretion of the sentencing judge. In Bland v R [2014] NSWCCA 82 at [112], Johnson J (with whom Ward JA and R S Hulme J agreed) said: "[t]he failure of a sentencing Judge to attribute sufficient weight to an issue at sentence will not generally be a material error. Questions of weight in the exercise of a discretion are matters for the first-instance Judge, and the circumstances in which matters of weight will justify intervention by an appellate court are narrowly confined: R v Baker [2000] NSWCCA 85 at [11]; Yang v R [2012] NSWCCA 49 at [25]."
In the present matter, having heard the evidence of the applicant, the sentencing judge made careful findings regarding prospects of rehabilitation and took into account the applicant's physical and mental health problems. He made a finding of special circumstances partly due to "issues of rehabilitation". Given the relationship between the indicative sentences and the aggregate sentence, it can be seen that the two indicated sentences were to be served entirely concurrently, the non-parole period was adjusted to 50 per cent of the head sentence and the backdating of the commencement of the sentence to 2 November 2017, resulted in an 11 months concurrence with the balance of his previous parole period. It is clear, therefore, that his Honour placed significant weight upon matters of rehabilitation and the applicant's health.
His Honour made his finding as to financial gain in the following context: "[t]he offender had undertaken a series of drug rehabilitation programs. He had successfully completed one whilst in gaol. On release he clearly fell back into taking drugs and that alone of course is a factor but it is pretty clear that he was dealing the items for [sic] partly to finance his habit and probably for financial gain." (Sentence judgment, 3.6)
Essentially his Honour found that there were a number of factors contributing to and motivating the applicant's offending. It should also be noted that as well as the drugs, police located drug supply paraphernalia and a considerable amount of cash (over $11,000). It was open to his Honour to infer that part of the applicant's motivation for offending was financial gain. Significantly, in making that finding his Honour did not say that this was an aggravating feature of the offence.
The offence in Count 2 was a serious offence involving the deemed supply of 367.3g of 1,4-butanediol, which was more than 12 times the traffickable quantity for that substance. Such an offence carried a maximum custodial penalty of 15 years imprisonment. The applicant committed the offences 7 months after his release from custody in 2016 while he was on parole for eight previous offences of supplying a prohibited drug. One of those previous offences involved a commercial quantity. The commission of the offence in Count 2 while on parole for those previous offences was a significant aggravating factor. It follows that a sentence of 4 years imprisonment with a non-parole period of 2 years appropriately reflected the objective seriousness of the applicant's offending and, given his repeat offending, made appropriate provision for specific deterrence and protection of the community. This ground of appeal has not been made out.

Ground 2 - His Honour erred by discounting the sentence by only 20 per cent for the utilitarian value of the guilty plea.

Ground 3 - The sentencing proceedings miscarried because his Honour failed to provide procedural fairness to the applicant in relation to the discount on sentence.

Ground 4 - The applicant experienced unfairness and practical injustice.

These three grounds are related and can conveniently be dealt with together. In order to understand the basis for the applicant's complaint, it is necessary to set out the background to the allocation of the discount for the plea of guilty.
This matter was committed to the District Court on 7 March 2017 and was subsequently listed for trial on 27 November 2017. The trial did not proceed on that day and the matter was adjourned until 28 November 2017. The applicant relies upon exchanges which took place between the solicitor appearing on behalf of the Director of Public Prosecutions (DPP) and his Honour on that day in support of these grounds.
On 28 November 2017, the solicitor appearing on behalf of the DPP made the following submission in relation to the plea of guilty to Counts 1 and 2 entered by the applicant on that day: "… there were discussions in relation to the resolution of Mr Semple's matters. Those discussions took place before matters were committed for trial and there have been discussions and offers going backwards and forwards between the Crown and the lawyers for Mr Semple. Having regard to that, having regard to the nature and purpose of the present callover, the Crown's position is that Mr Semple can call in his favour a discount of 25%." (Transcript, 28 November 2017, p 2.37-2.43)
The following exchange then took place: "Mr Semple, we will see you next year where the matter will be finalised. It's noted that you will be getting a quarter off what you would have otherwise been getting if you'd run your trial. FLIEGNER [solicitor for DPP]: If your Honour would formally vacate the trial date which was strictly speaking yesterday, started yesterday. HIS HONOUR: All right. You've got the 25% for pleading the day after the trial was listed. That's interesting. FLIEGNER: There is a history, your Honour." (T, 28 November 2017, p 3.38)
On 13 March 2018, the following exchange occurred: "FLIEGNER: Can the Crown make an indication as to the available discount on the last occasion. HIS HONOUR: I don't know that that occurred. What do you say that is, Mr Crown? FLIEGNER: I think it was 25%. HIS HONOUR: If that's agreed I'll find that. …" (Transcript, 13 March 2018, p 2.3)
At the continuation of the sentence proceedings on 16 March 2018, his Honour foreshadowed to counsel appearing for the applicant that he was intending to allow a discount of 20 per cent for the utilitarian value of the plea. The applicant's counsel did not oppose such a discount as is clear from the following exchange: "HIS HONOUR: I don't know on what basis he was having to run a trial, but are you asking me for a significant utilitarian discount having regard to his plea in this list? GLEESON: Yes, your Honour. HIS HONOUR: 20%? GLEESON: I won't quibble the 20%, your Honour. There were discussions, your Honour, in relation to the resolution of the matter where the Crown -- HIS HONOUR: I'll give him a reduction of one fifth in terms of his sentence." (Transcript, 16 March 2018, p 9.48-10.8)
No further submissions were made in respect of the discount. No material was sought to be tendered or submissions made on the applicant's behalf that he should receive a greater discount than 20 per cent. In sentencing the applicant, his Honour proceeded to apply the 20 per cent discount that he had foreshadowed.
The applicant submitted that the discount on sentence had been agreed in the earlier mentions at 25 per cent. The applicant noted that he had been told by his Honour that he would be getting a quarter off what he would otherwise have been getting if he had run his trial. The applicant submitted that when his Honour specified a discount of 20 per cent in his sentence judgment, he (the applicant) had been denied procedural fairness in that he had not received the benefit of the 25 per cent which both the DPP and his Honour had previously agreed to. The applicant submitted that he had lost the chance of making submissions to remind the Court of the earlier agreement to allow a 25 per cent discount for the plea of guilty. The applicant submitted that this resulted in a practical injustice insofar as he was concerned.

Consideration

I have concluded that the exchanges between his Honour and the solicitor for the DPP and his Honour's comment directed to the applicant, did not give rise to a lack of procedural fairness. In any event, given that the plea of guilty was entered on the day after the matter had been fixed for hearing, a discount of 20 per cent was generous. The usual range in such circumstances would be between 10 and 15 per cent.
There is clear authority to the effect that a sentencing court is not bound by a prosecutor's concession. In DL v The Queen [2018] HCA 32; 92 ALJR 764 the High Court (Bell, Keane, Nettle, Gordon and Eidelman JJ) said at [39]: "39 Leeming JA was right to say that the Court of Criminal Appeal was not bound by the prosecutor's concession. Notwithstanding the adversarial nature of criminal proceedings, the public interest in the sentencing of offenders is such that the sentencing judge (or the appellate court in the case of re-sentencing) is not constrained by any agreement between the parties as to the appropriate range of sentence or by concessions made by the prosecutor. Where, however, the judge (or the appellate court in the case of re-sentencing) is minded not to act on a concession made by the prosecution, the failure to put the offender on notice of that inclination and give him or her an opportunity to deal with the matter by evidence or submissions will ordinarily be a miscarriage of justice. In the absence of such an indication, it will be reasonable for the offender to conduct his or her case upon the understanding that the concession will be accepted and acted upon by the court. …"
In the present matter, while the solicitor appearing for the DPP had earlier indicated that the Crown submitted that 25 per cent was the appropriate discount, this submission was not binding on the sentencing judge. Subsequently, the sentencing judge foreshadowed the course he proposed to take with the applicant's counsel, which departed from the earlier indication of the Crown and by his Honour. Counsel for the applicant did not make any contrary submission.
The position taken by the applicant's counsel not to "quibble" with 20 per cent is not surprising. The primary consideration in determining the utilitarian value of a plea and thus the appropriate discount, is the timing of the plea (Zhao v R [2016] NSWCCA 179 at [56], R v Robert Borkowski [2009] NSWCCA 102 at [32]). A late plea, even where it is made in the context of negotiations with the Crown, will necessarily carry less utilitarian value than a plea made at an early stage (R v Robert Borkowski at [32]).
Even if there were, as the applicant asserts (and as appears consistent with the position taken by the solicitor for the Crown) earlier discussions and attempts to resolve the matter, the plea was not in fact entered until late.
In this case, his Honour was required to determine the appropriate discount for the applicant's plea in circumstances in which the plea was entered on the day after the matter had been listed for trial (albeit in a particular call over), and where there was no evidence before him as to the precise nature of the negotiations between the parties.
The position may have been otherwise if the applicant had not been represented in the sentence proceedings. That, however, was not this case. Mr Gleeson represented the applicant and as appears from the transcript, he no doubt recognised that a discount of 20 per cent for a late plea was generous in the circumstances. Accordingly, there has been no procedural unfairness in the 20 per cent discount for the plea of guilty. This ground of appeal has not been made out.
The orders which I propose are as follows: 1. Leave to appeal is granted. 2. The appeal is dismissed.
PRICE J: I agree with Hoeben CJ at CL.
ADAMSON J: I agree with Hoeben CJ at CL.

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