Sheather v R

Court of Criminal Appeal (NSW)|2020-06-04|Before: Johnson J, Davies J, Ierace J

Judgment

JOHNSON J: I agree with the orders proposed by Davies J and with his Honour's reasons.
DAVIES J: On 19 February 2019 in the Local Court the applicant pleaded guilty to one count of supplying a commercial quantity of a prohibited drug being 308.7 grams of cocaine, contrary to s 25(2) of the Drugs Misuse and Trafficking Act 1985 (NSW). The maximum penalty for this offence is 20 years' imprisonment and/or 3,500 penalty units. There is a standard non-parole period of ten years' imprisonment.
The applicant was committed for sentence to the District Court.
The sentence proceedings for the applicant and two co-offenders, Codie Cowan and Kingston Day, were heard by Judge N Williams. The applicant asked her Honour to take into account on a Form 1 a further offence of participating in a criminal group.
On 25 October 2019 Judge N Williams sentenced the applicant to a non-parole period of three years, two months and two days' imprisonment, commencing on 23 May 2018 and expiring 24 July 2021 with a balance of term of one year, eight months and 13 days' imprisonment expiring 6 April 2023.
The applicant originally sought leave to appeal against the sentence imposed on one ground only as follows: 1. Her Honour imposed a sentence that was unreasonable or plainly unjust (for reasons that may not be able to discern (sic)) and the sentence is manifestly excessive.
Although the sole ground of appeal related to manifest excess, the applicant's written submissions gave considerable attention to the co-offenders and to the sentence that was imposed upon Mr Day. The Crown responded on the basis that parity was being raised as an issue on the appeal despite the lack of a ground of appeal articulated to that effect.
At the outset of the appeal, Ms Kluss of Counsel for the applicant sought leave to add a ground relating to parity with Mr Day. The Crown did not oppose such leave, and it was granted. Subsequently, the applicant filed an Amended Notice of Appeal adding the following ground: 2. The applicant has a legitimate sense of grievance by reference to the sentence imposed upon Kingston Day co-offender.

The offending

The applicant was sentenced on the basis of a statement of agreed facts. Those facts may be summarised as follows.
In October 2017 police commenced Strike Force Boorara, which was an investigation into the supply of cocaine and methylamphetamine within the eastern suburbs of Sydney. During the investigation, Mr Cowan was identified as a large-scale cocaine supplier. Police identified that the applicant and Mr Day were directed by Mr Cowan to conduct a highly organised 'cocaine run' which supplied over 200 customers across the St. George, inner west and eastern suburbs areas of Sydney.
During the investigation, police lawfully intercepted the mobile phone service used by Mr Cowan. Over 2,600 voice calls involving the three offenders were monitored. Police also used physical and electronic surveillance.
Between 19 January 2018 and 6 May 2018 the syndicate, headed by Mr Cowan, followed a distinct modus operandi. Customers contacted the mobile phone XXXX XXX 188 (the "customer phone") which was usually controlled by Mr Cowan, and placed an order for a certain number of bags of cocaine. Each bag contained approximately 0.459 grams of cocaine.
Mr Cowan then contacted either the applicant or Mr Day using a different mobile phone (the ''runner phone") which had false subscriber details. Mr Cowan arranged with either the applicant or Mr Day to meet the customer at a specified address. The applicant or Mr Day then attended upon the customer and supplied the ordered amount of cocaine in exchange for cash. On many occasions they contacted Mr Cowan on the runner phone to tell him the deal was done.
Sometimes Mr Cowan conducted the actual supply himself by meeting with the customer. Sometimes, when Mr Cowan was unavailable, either the applicant or Mr Day controlled the customer phone. In those instances, whoever received the order supplied the cocaine.
In total, Mr Cowan supplied 750 bags containing 367.5 grams of cocaine, the applicant supplied 630 bags containing 308.7 grams and Mr Day supplied 174 bags containing 85.26 grams.
The police identified that the main runner was the applicant, with Mr Day being an additional runner.
At times drugs were provided "on tick" to a customer with payment to occur at a later date. From time to time Mr Cowan would direct the applicant or Mr Day to an address simply to collect the money that was owed for the drug supplied on tick.
On 23 February 2018 police were conducting physical surveillance on the applicant when he met with a customer near the Coogee Bay Hotel. After the drugs had been supplied police stopped the customer, searched him and found a bag containing 0.49 grams of cocaine. As a result of that seizure, Mr Cowan changed the runner phone to a different number. Thereafter police lawfully intercepted the new runner phone.
On 10 May 2018, police conducted search warrants at the homes of each of the offenders. The applicant was away in Bali at the time. Police searched his Volkswagen Golf and discovered that it had a hidden compartment on the interior roof of the glove box. At the time of the search that compartment was empty.

The co-offenders

Mr Cowan was charged with one count of supplying a large commercial quantity of cocaine and knowingly deal with the proceeds of crime being $779,000 in cash. He asked for the offence of knowingly directing the activities of a criminal group to be taken into account on a Form 1.
He was sentenced on the same day as the applicant to the following sentences. For the offence of supplying a large commercial quantity of cocaine he was given a non-parole period of five years, four months and 11 days' imprisonment commencing 10 May 2018 and expiring on 20 September 2023 with a balance of term of two years, ten months and 20 days expiring 9 August 2026. For the offence of knowingly dealing with the proceeds of crime he was sentenced to a non-parole period of one year, five months and 17 days' imprisonment commencing 10 May 2018 and expiring 26 October 2019 with a balance of term of nine months and 14 days expiring 9 August 2020.
Mr Day was charged with supplying an indictable quantity of cocaine. He asked for an offence of participating in a criminal group to be taken into account on a Form 1. He was sentenced to two years' imprisonment to be served by way of an intensive correction order.
It may be noted that in the case of both the applicant and Mr Cowan, the sentencing judge has imposed sentences including days in addition to years and months. This Court has said on a number of occasions that this practice is undesirable: Rios v R [2012] NSWCCA 8 at [42]-[43]. Although a precisely discounted sentence may produce a result involving a number of days less than a month, the sentence should be rounded up or down, in the discretion of the sentencing judge, so that sentences are pronounced in years and months only.

Remarks on Sentence (ROS)

The sentencing judge first set out the agreed facts. Her Honour then dealt with each of the offenders individually including the imposition of the sentence on one before proceeding to the next. Her Honour started with Mr Cowan, and, in the course of so doing, referred to a number of general principles relating to sentencing including specific matters referable to sentencing persons who commit offences by reason of a drug habit or addiction. Her Honour next dealt with the applicant, and finally with Mr Day.
In relation to the applicant, her Honour made the following remarks and findings.
Her Honour noted that the applicant's record did not assist him. She summarised offences for which he had been convicted. These were an offence of reckless wounding for which he received a term of imprisonment of 15 months, suspended under s 12 of the Crimes (Sentencing Procedure) Act. In 2012 there were matters of assault occasioning actual bodily harm in company, armed robbery with an offensive weapon, and dishonestly obtaining a financial advantage, for all of which offences he received sentences of imprisonment. In early 2013 there were matters of possess and attempt to possess an anabolic or antigenic steroidal agent, possess/attempt prescribed restricted substance, and possess or use a prohibited weapon. For those matters he received s 10A convictions with no other penalty. In 2013 there were also offences of common assault and assault occasioning actual bodily harm in company, for which he received sentences of imprisonment each of 18 months to be served concurrently.
Her Honour noted that the applicant had been in custody solely referable to the present drug supply offence since 23 May 2018. Her Honour found a discount of 25% to reflect the utilitarian value of his plea, and said that the plea was also evidence of contrition and remorse.
Her Honour then made reference to the statistics that had been provided to her. She said that the sentences in those statistics ranged from four years to five years' imprisonment with non-parole periods of two and a half to three years. She said that, removing the profile factors, sentences ranged from three and a half years to six years' imprisonment with non-parole periods ranging from two to four years. Her Honour acknowledged what has been said by this Court and the High Court, that statistics are a blunt and opaque tool.
The sentencing judge then dealt with subjective matters concerning the applicant. Although the applicant did not give evidence at the sentence hearing, his mother did. She was not cross-examined by the Crown. In addition, the sentencing judge had a report from Dr Nielssen who had examined the applicant on one occasion. Much of what the applicant told Dr Nielssen concerning his background, drug use and prior offending was effectively corroborated by his mother's evidence.
In summary, problems arose for the applicant at about the age of 15 when his parents separated. It is not necessary to detail the cause of the separation. It is sufficient to note that the applicant was badly affected by the cause of it. His mother said that he subsequently had an unsatisfactory relationship with his father, and that they were not properly reconciled by the time of his father's early death.
The applicant's mother, who also spoke to Dr Nielssen, gave evidence of the applicant's erratic behaviour, his mood swings and his depression. She told Dr Nielssen that her husband suffered from "dreadful anxiety", but also had some periods of abnormally elevated mood lasting for a few weeks. She said both she and her sister suffered from depression.
After being released from prison in 2015, the applicant was prescribed with anti-depressant medication which he took for six months until he started to feel better. He also saw a psychologist for six sessions. He appears to have started using cocaine on a relatively heavy daily basis during that period.
Dr Nielssen diagnosed him with substance use disorder and possible bipolar mood disorder.
Her Honour then considered at some length the submissions for the Crown and on behalf of the applicant. Her Honour acknowledged the applicant's plea of guilty, and found that he was remorseful for his actions both through the plea and from the evidence of his mother. Her Honour was of the view that the planning and organisation was not any greater than what would be expected for offences of the type charged.
Her Honour found that general deterrence was particularly important, and that there was a proper role for specific deterrence with respect to the applicant, which was slightly modified by the opinion of Dr Nielssen that the applicant was addicted to illicit substances at the time. Her Honour said that that might go some little way to explain, but not to excuse, the offending behaviour. Her Honour found special circumstances on the basis of Dr Nielssen's view of the need of the applicant to have a careful structure set up for him in the parole period, and to ensure that he had proper access to psychiatric and psychological counselling.
Her Honour found that the applicant had accepted some responsibility for his offending behaviour. She said that the evidence of his mother in relation to remorse was powerful and compelling, and she found (again) that the applicant was remorseful. She said that she was guarded with respect to his prospects of rehabilitation but noted that he had a supportive family. Ultimately, her Honour found that with the ongoing support of his family, and self-awareness of the triggers of his mental health and emotional wellbeing, the applicant had some positive prospects for rehabilitation.
In relation to objective seriousness, her Honour noted that the Crown submitted it was within the mid-range but that the defence submitted that it was appreciably below the mid-range. Her Honour found that the applicant's role was that of a runner, but the fact that he also manned the customer phone in the absence of Mr Cowan from time to time showed that he was a trusted member of the organisation, prepared to step up and assume a greater role if required. Her Honour noted that the criminality involved was not opportunistic or spur of the moment, and that the criminality of the operation was brazen. In those circumstances her Honour was of the view that the objective seriousness lay in the mid-range.
Her Honour then compared the applicant's role to that of Mr Cowan and Mr Day, having found that the applicant was in the middle position.

Ground 1: Her Honour imposed a sentence that was unreasonable or plainly unjust (for reasons that may not be able to discern (sic)) and the sentence is manifestly excessive.

Submissions

Counsel for the applicant, noting that statistics had been supplied to her Honour, submitted that the sample size was so small as to be unhelpful. She submitted that the offending included too many variable considerations and that the statistics did not provide a sufficiently large sample to indicate a proper "range" of penalty.
Counsel submitted that her Honour had combined the issue of "role in the overall offending" with the assessment of the objective criminality of the discrete offence, and ultimately diminished the impact of the favourable subjective findings that she had made with respect to the applicant. These were said to include his mental health issues and the small financial benefit he received from the supplies. In that way the sentence was said to be excessive.
The Crown submitted that there was no challenge to the finding by the sentencing judge that the objective seriousness of the offence fell in the mid-range. The Crown further noted that the applicant conceded at the sentence proceedings that his criminal history disentitled him to any leniency.
The Crown submitted that the sentencing judge did not misuse the statistics and the range of sentences identified in those statistics. The Crown submitted that the applicant had not demonstrated that the sentence was unreasonable or plainly unjust bearing in mind authorities such as Vaiusu v R [2017] NSWCCA 71 at [28] and Hughes v R [2018] NSWCCA 2 at [86].

Determination

In relation to the complaint about the use of statistics, it is important to set out the entirety of what her Honour said about statistics in her ROS: I have considered the statistics for this matter. For the offence of supply a prohibited drug being a commercial quantity of cocaine post-Muldrock, being s 25 of the Drugs Misuse and Trafficking Act with profile parameters consistent with this offender, that is, an individual, one offence only, Form 1 matter and a plea of guilty, there is a recorded sample of course cases of which all, being 100%, resulted in full-time custody. Sentences ranged from four years to five years imprisonment; non-parole periods were two and a half years and three years. Removing the profile factors resulted in a larger number of seventeen cases of which fifteen, being 88.2%, resulted in full-time imprisonment. Sentences ranged from three and a half years to six years imprisonment. Non-parole periods ranged from two to four years. The higher courts have referred to statistics as a blunt instrument and an opaque tool. They are less useful when there are a smaller number of cases making up the set, such as is the case here. They may serve as a yardstick against which to assess the proposed sentence and I take them into consideration but do not allow them to define the outer bounds of permissible discretion, see Barbaro v R [2014] 253 CLR 58. I have read and considered the above statistics but I am mindful as to the use of those statistics conformably with decisions such as Hili, Jones v R [2010] HCA 45 and Brown v R [2014] NSWCCA 215 at paras 80 to 80 per Garling J and more recently SS v R [2016] NSWCCA 197.
Her Honour made similar remarks concerning the statistics when dealing with each of Mr Cowan and Mr Day. Her Honour made no other reference to the statistics, although it may be accepted that the sentence imposed was consistent with the range of sentences contained in the statistics. Her Honour did not, however, indicate that the range in the statistics was a proper range (as submitted) or that her Honour sentenced by reference to the ranges contained within the statistics. Her Honour appropriately noted the limitations involved in reliance on statistics. No error is shown in this regard.
The applicant submitted that the sentence was manifestly excessive because of the way in which the sentencing judge applied the considerations of the subjective circumstances. The applicant's written submissions said that the sentencing judge ultimately diminished the impact of the favourable subjective findings by combining the issue of the applicant's role in the offending with the assessment of the objective criminality of the offence. The submission is a little difficult to understand because the applicant's role in the offending is always a significant matter in determining where the objective criminality of the offending lies. Further, it is difficult to see how the consideration of the applicant's role in the offending and the assessment of objective criminality diminished the subjective findings. The submission appears to suggest that insufficient weight was given to the subjective matters. It is trite to observe that the weight accorded to various factors is within the discretion of the sentencing judge.
What is clear from an examination of the ROS is that the sentencing judge very comprehensively recorded and considered the applicant's subjective factors. Her Honour modified the weight to be given to specific deterrence because of what Dr Nielssen had said. Her Honour noted that the applicant accepted some responsibility and accepted that he was remorseful. She said that she would mitigate what would otherwise have been her guarded prospects of rehabilitation as a result of what he told Dr Nielssen and what his mother said in evidence. Her Honour found special circumstances because of what was contained in Dr Nielssen's report concerning the need for the applicant to have a careful structure set up for him in the parole period, and to ensure he has proper access to psychiatric and psychological counselling.
Although there was no challenge to the finding of objective seriousness, counsel for the applicant sought to diminish the applicant's role in the enterprise by submitting that he was simply a street dealer and that the financial benefit to him was modest. The sentencing judge appears to have accepted, because of what the applicant told Dr Nielssen, that he received the same amount for each supply of drugs as that received by Mr Day, being $50.00. When it was considered that the offending took place between 19 January and 6 May, and the drugs were supplied on 630 occasions, the total amount received ($31,500 in less than four months) could only be regarded as modest if compared with wholesale drug dealers supplying in quantities of pounds or kilograms.
The applicant's complaints about how her Honour viewed his subjective matters do not demonstrate that the sentence was manifestly excessive.
The principles concerning whether sentences are manifestly excessive have been recently set out in Hughes at [86]. It is not necessary to set them out here. Bearing in mind those principles, that the total amount of cocaine was 308.7 grams where the threshold for commercial quantity is 250 grams, that the maximum penalty is 20 years' imprisonment and the standard non-parole period is ten years' imprisonment, a sentence of a little under four years and eleven months with a non-parole period of three years and two months, from a notional starting point of 6.5 years with a Form 1 count of participating in a criminal group being taken into account, the sentence cannot be said to be manifestly excessive.

Ground 2: The applicant has a legitimate sense of grievance by reference to the sentence imposed upon Kingston Day co-offender

Submissions

The applicant submitted that the issue was not strictly parity, but rather proportionality. That was because it was uncontentious that there was a cascading level of culpability between the offenders with Mr Cowan at the top and Mr Day at the bottom. The applicant acknowledged that many of the comparisons favoured Mr Day. In relation to the applicant's criminal record, Ms Kluss pointed to the fact that there were no prior convictions for drug supply.
The applicant submitted, however, that given he was characterised with Mr Day as a "street dealer", the appropriate penalty lay closer to the ICO imposed upon Mr Day than the penalty imposed upon Mr Cowan. The applicant pointed to the far greater financial benefit that was accruing to Mr Cowan.
The Crown noted that each of the co-offenders was charged with a different principal offence, flowing from the total amount of the drugs supplied by each such offender. Mr Day was charged with supplying an indictable quantity which carried a maximum penalty of 15 years' imprisonment and no standard non-parole period. The sentencing judge found that the objective seriousness of Mr Day's offending was just below the mid-range of objective seriousness for that offence. The Crown pointed to the sentencing judge's finding that it was the applicant who usually took Mr Cowan's place if he was away, and in that way was a trusted member of the organisation prepared to step up and assume a greater role if required.
The Crown submitted that the sentences on all offenders were imposed by the same judge at the same time, a matter that tells against a conclusion of disparity.

Determination

Since the present ground of appeal was not added until the hearing of the appeal, the Court was not provided with the primary material referable to Mr Day. Fortunately, however, by reason of her Honour's comprehensive ROS, there is sufficient information upon which an assessment of the parity issue can be determined.
I set out earlier at [37]-[38] her Honour's assessment of the role of the present applicant.
A useful summary, comparing significant considerations taken into account by the sentencing judge in respect to both the applicant and Mr Day, was contained within the Crown's written submissions. That table is reproduced below: COMPARISON CONSIDERATION APPLICANT KINGSTON DAY Charges Supply commercial quantity prohibited drug (308.7g cocaine) Supply indictable quantity prohibited drug (85.26g cocaine) Number of supplies based on 0.49 g per bags 630 bags (308.7g cocaine) 174 bags (85.26g cocaine) Form 1: Participate in criminal group Participate in criminal group Plea Guilty Guilty Discount for plea: 25% 25% Age During Offending 25 22 Role Lower than Cowan but higher than Day. Trusted runner On conditional liberty No No Prior record Yes, serious with imprisonment. Disentitled him to leniency. No; prior good character Objective seriousness Mid-range Just below mid-range Prospects of rehabilitation/re-offending risk Guarded prospects of rehabilitation are mitigated by ongoing support, self-awareness of triggers of his mental health and emotional wellbeing so does have some positive prospects of rehabilitation. Very optimistic; progressing well with rehabilitation since arrest. Remorse/contrition Some contrition and remorse by plea of guilty and remorse through evidence of his mother Contrition and remorse by plea of guilty and through evidence of his father Addiction Previous ice use; cocaine addiction Past drug use, history of gambling addiction. Mental illness/psychologist or psychiatrist report Substance abuse disorder and possible bipolar mood disorder. Provisional diagnosis of Avoidant Personality Disorder, episodic gambling disorder in remission. Potential high risk for suicide or self-harm. Special circumstances: Yes Yes Parity considered Yes Yes

A few matters in that table should be emphasised. The first is that Mr Day was charged with supplying an indictable quantity of cocaine which carries a lower maximum penalty and no standard non-parole period. Secondly, the sentencing judge found that the objective seriousness of his offending was just below the mid-range whereas the applicant's offending was within the mid-range. Thirdly, Mr Day was a person of prior good character whereas the applicant had a number of prior serious offences on his record, and had been sentenced to periods of imprisonment in respect of some of those offences.
A further significant factor taken into account by her Honour was that Mr Day, who had been on bail up to the time of sentencing, had progressed well with his rehabilitation. Her Honour was of the opinion that an ICO was more likely to address his risks of re-offending than a full time custodial sentence. Her Honour noted that the literature was replete with references to the fact that imprisonment of less than three years may do little to rehabilitate an offender, and present a greater risk of exposure to more hardened criminals which may have a very debilitating effect of future prospects of rehabilitation.
Principles applying to the issue of parity are well-known. They have recently been restated in Chamon v R [2020] NSWCCA 112 at [34]-[37]. In particular, this Court said: [35] This Court has observed that "considerable obstacles" are placed before an applicant contending error on a parity basis where a sentencing judge is fully aware of the sentences imposed upon co-offenders and the reasons for those sentences, and provides reasons for departing from those sentences: Tatana v R [2006] NSWCCA 398 at [28] (Howie J, Sully and Latham JJ agreeing). [36] In Stocco, Gino v R; Stocco, Mark v R [2018] NSWCCA 77 at [173], this Court implicitly endorsed a proposition that it will be cautious and not overly willing to intervene where the same judge sentenced an appellant and the co-offender, recognised the importance of the parity principle and gave effect to it.
In the course of sentencing the applicant, the sentencing judge said this (ROS60): I am most mindful of the need for parity. With this in mind, I have taken particular notice of the discrete roles played by each offender in this criminal operation. Each offender in the operation will be sentenced by me over a very limited timeframe, hopefully all in the space of a day today (sic). I have heard all of the submissions over one day and have had the opportunity to hear all of the evidence presented by the Crown and each offender.
In circumstances where her Honour was particularly mindful of the need for parity and where there were clear differences between the offences charged, the role of each offender, and each offender's subjective circumstances, the applicant can have no justifiable sense of grievance in relation to the sentence he received compared with that of Mr Day or even of Mr Cowan.
I would reject this ground.

Conclusion

I propose the following orders: (1) Leave to appeal granted. (2) Appeal dismissed.
IERACE J: I agree with Davies J.

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: 17 July 2020

Drugs Misuse and Trafficking Act 1985(NSW)s 25

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