Shipman v R

1. Mr Shipman ("the applicant") applied for leave to appeal against the aggregate sentence on the following grounds: Ground 1: In relation to count 1, the learned sentencing judge erred in finding the objective criminality at the mid-range. Ground 2: In relation to count 1, the learned sentencing judge erred in taking into account the supply of cocaine and cannabis in assessing the objective criminality of the supply of methylamphetamine. Ground 3: In relation to counts 2 and 3, the learned sentencing judge was obliged to regard the amount of supply as the statutory minimum.
2. At the conclusion of the hearing of the application on 4 May 2016 the Court made an order refusing leave to appeal. The following are my reasons for joining in the making of that order.

Facts

1. There was no dispute about the facts relating to the applicant's offending. His involvement in the supply of drugs came to light in the course of a police investigation into the activities of members and associates of the "Lone Wolves Outlaw Motorcycle Gang" (of which he was not a member). The investigation involved telephone intercepts, listening devices and the use of undercover operatives. The applicant was identified as part of a network of people who were supplying drugs to others. By his pleas of guilty he acknowledged that his supply activities spanned the period 19 August 2011 to 3 April 2012.
2. The applicant acquired methylamphetamine from Michael Why and sold it in small quantities. He sold cocaine to Michael Why and others, including on one occasion to an undercover operative.
3. The applicant worked, and lived, in a panel beating shop in an industrial unit. His teenage son lived with him. He sold drugs from there and when he was away he organised his son to handle the drug supply business.
4. In March 2012, police obtained an authority to conduct a controlled operation using an undercover operative to buy drugs from the applicant. He sold the operative "a weight" (0.68g) of methylamphetamine for $200 on 25 March 2012; an "eight ball" (3.5g) of methylamphetamine for $600 on 26 March; 0.94g of cocaine for $350 on 27 March; and an ounce (28.2g) of methylamphetamine for $4000 on 3 April 2012. On the last occasion the applicant told the operative that he could supply two ounces for $3,700 per ounce.
5. The applicant and others involved in the drug supply network were arrested on 4 April 2012. The applicant's industrial unit was searched and police found 1.54g of methylamphetamine; 26.4g of cannabis; electronic scales; multiple mobile phones; and $4500 in cash.
6. In relation to count 1, the total amount of methylamphetamine the applicant supplied was 495.86g. It was an undisputed fact that the applicant supplied 14g per week over a 33 week period (19 August 2011 to 3 April 2012); he supplied 32.32g in his sales to the undercover operative; and 1.54g was found during a search of the applicant's industrial unit.
7. In relation to count 2, the amount of cocaine sold by the applicant was specified in the facts as being an indictable quantity. The statement of facts set out a number of conversations in which the applicant agreed to supply cocaine to others and there was also a sale to the undercover officer on 27 March 2012.
8. In relation to count 3, the amount of cannabis the applicant sold could not be specified other than being an indictable quantity. There were numerous telephone communications in which there were coded references to cannabis.
9. In relation to count 4, in February 2012 the applicant gave a friend a shoebox to look after without saying what was in it. The friend noticed that it contained ammunition and, he suspected, a gun. In mid-March 2012 the applicant was involved in an altercation at the Lone Wolves clubhouse during which he was seriously assaulted. On 17 March 2012 he called his friend and asked him to bring the box over. He added, "Bring everything". The friend had the good sense not to. When police searched the friend's home on 12 April 2012 they found the shoebox. It contained a pistol which was in working order, an ammunition magazine, and a number of boxes of ammunition. There were 9mm calibre cartridges (399 of them) that were suitable for use with the pistol and .357 Magnum calibre cartridges (40) that were not.

Personal circumstances of the applicant

1. The applicant was born in 1969. He was aged 45 at the time of sentence.
2. He had a criminal record which the judge regard as disentitling him to leniency and to being regarded as a person of prior good character. Her Honour noted, however, that the last offence was in 2007 and the applicant had no prior matters for supplying prohibited drugs.
3. Reports that were before her Honour indicated that the applicant had a positive upbringing and remained close to immediate family members. She said this was confirmed by the presence of family members in court and by references some of them had provided.
4. The applicant had two prior relationships and three children who were aged 28, 20 and 11. It was noted that he got on well with the two oldest children but he had been denied access to the youngest, a daughter, for the past 7 years.
5. Prior to 2000 the applicant was working full-time, predominantly in the spray painting industry. He provided an airbrushing service and through this he came into contact with outlaw motorcycle gang members. His currently stated intention was to avoid any further association with such people.
6. The applicant sustained a chronic back injury through a work accident in 1997 which limited his ability to work. He had commenced using cannabis at about the age of 14 but his drug use escalated following the accident. Her Honour noted that the applicant had used cannabis as a form of pain management. The applicant had also abused prescribed medication, cocaine and methylamphetamine. Alcohol abuse was an issue as well. It was noted that the applicant had never engaged in any intervention or rehabilitation program for substance abuse but, although he considered himself cured of his addiction, he was presently motivated to do so.
7. Her Honour considered that the applicant's back injury had caused chronic severe pain, depression and irritability. It was "in part responsible for his descent into the use and abuse of illicit drugs".
8. Her Honour reviewed a quantity of testimonials from friends and family members. They spoke of him having been a hard working person from a very young age and various other positive aspects of his character were described and noted by her Honour. Some spoke of the heartache caused by the breakdown of his second relationship and his struggle to gain access and have a normal relationship with his youngest child. It was said that this had a negative impact on his morale.
9. The applicant received treatment from a psychologist in 2013 and 2014 for depression and a panic disorder. A forensic psychiatrist noted a history or depression and anxiety. The applicant told the doctor that in the period leading up to the offences he was working hard to get money for legal fees in relation to proceedings to gain access to his daughter.
10. The psychiatrist considered that the applicant was not currently exhibiting symptoms of depressive episodes, nor was he experiencing the same severity of symptoms at the time of the offences, although his use of substances could have masked them. The psychiatrist considered that the applicant had used substances throughout his life to cope with the various adversities he had faced, likely reflecting inadequate coping skills.
11. The judge noted that the applicant had accepted full responsibility for the drug supply charges and had expressed regret and apology. She was satisfied that he had demonstrated remorse, "albeit belatedly".
12. Her Honour considered that the applicant had good prospects of rehabilitation and was unlikely to re-offend.

Other findings relevant to the assessment of sentence

1. The applicant pleaded guilty a few days after the second date the matter was listed for trial. For the utilitarian value of the pleas her Honour allowed a discount of 10 per cent.
2. The judge considered that general deterrence was "an extremely important sentencing consideration". Personal deterrence was also said to be relevant but not thought by her Honour to be crucial given her findings about the applicant's prospects of rehabilitation and unlikelihood of re-offending.
3. She noted the relevance of the prescribed maximum penalties for the offences and, in the case of count 1, the standard non-parole period, as guideposts.
4. Special circumstances pursuant to s 44(2B) of the Crimes (Sentencing Procedure) Act 1999 (NSW) were found so as to allow for the sentence to include a longer period on parole.

Ground 1 - error in finding objective criminality of the offence in count 1 as at the mid-range

1. Her Honour devoted a discrete portion of her judgment to her assessment of the objective seriousness of each of the offences. She prefaced it with the following observation: "It is clear that the offending engaged in by this offender is of a most serious nature. The offender over a period of eight months supplied three different drugs on many occasions. It is clear that the offender must receive significant sentences for his offending, in particular for count 1."
2. In relation to the commercial quantity supply offence in count 1 she said: "In relation to Count 1, I have come to the view that the offending falls squarely into the middle range of seriousness for such offences. I have formed that view in light of the amount supplied being just under 500 grams and placing the offender, by reference to the amount in the middle and, equally important, is the offender's role in what can only be described as an organised and reasonably sophisticated joint criminal enterprise. The offender was clearly a principal in that enterprise, and I accept the Crown's submission that this offender operated at a higher level than most of the others who were charged as a result of this investigation. The phone calls and text messages reveal that the extent of activity is of a high order. There was a system of coded language and covert references used in order to avoid detection. In addition, the offender used his factory, which was also his residence as a base for supplying or storing prohibited drugs. The enterprise was clearly a commercial one and the offender must have made some considerable profit. Whilst I accept Mr Little's submission that the Crown's calculations as disclosed in their submissions do not take account of the cost price, there must still have been a considerable profit. There were many different customers and many instances of supply. I do, however, accept that there is no evidence of enrichment displayed in the offender's industrial unit. The purity disclosed by the drugs that were seized was low, but there is no evidence that this offender had any idea of the purity of the drug and all in all this is a minor factor when it comes to assessing the objective gravity of the offending in relation to Count 1. See Laraway v R [2010] NSWCCA 46 at [32]. In forming my assessment of mid-range, I have placed far more reliance upon the total amounts supplied, as well as the role of this offender as a principal, and the number of supplies over an extended period of time. I do not accept the submission that because the supplies were of smaller discrete quantities, somehow the matter is less serious because of that fact. The role and the level of participation are crucial indicators of the objective seriousness, and this offender played a significant role, and his level of participation was of a high order: see Melikian v R [2008] NSWCCA 156 and R v McDonald [2002] reported at 128 A Crim R 44." (Emphasis added)
3. In relation to the offences in counts 2 and 3 of supplying cocaine and cannabis respectively her Honour said: "As to the further counts of supplying cocaine and supplying cannabis, although the quantities cannot be ascertained beyond being indictable quantities, it is clear that the offender engaged in repeated supplies of both these drugs to a number of different customers. Again, he was a principal supplier of these drugs. Again, his level of participation was high." (Emphasis added)
4. In relation to the firearms offence her Honour said: "In relation to the firearms offence, I accept the submission made by Mr Little on behalf of the offender that, in general, when it comes to possession of firearms, it is hard to rank offences in terms of a scale of seriousness. I do not place much weight, if any, on the fact that the firearm in question was held remotely from where the offender was. There is no evidence before me from the offender as to why he had this firearm, but the facts reveal it was connected with his involvement with Lone Wolves and, by implication, his illegal activity. This is a factor to be taken into account. I find that this offence is a serious one of its kind."
5. Once again speaking about the overall offending, her Honour then said: "Having regard to the material that is before me, it is clear to me that the offender's descent into the use and abuse of drugs and, ultimately, what led to the commission of these offences stemmed in large measure from his unfortunate back injury. It is clear to me that before the back injury and then his abuse of drugs, the offender was a very good worker and made a very positive contribution to the community. However, the commission of these offences was at least in part motivated in order to generate money to use to pay for legal proceedings, which was over and above what he needed to support his own use of the drugs." (Emphasis added)
6. In written submissions for the applicant it was contended that there was "no specific evidence of money being spent on legal fees. The applicant had aspirations to gain contact with his daughter but there is no evidence of money illicitly gained being successfully spent on this."
7. This submission impugns the last sentence of the extract from the remarks on sentence set out above (at [36]). However, there was evidence supporting what her Honour said. The report of the forensic psychiatrist included the following: "He said he had 'spent every cent' getting court orders to allow him to see his daughter. He said he had no money left." "In the twelve months leading up to his arrest for the alleged index offences, Mr Shipman informed me that he was working hard to get money for legal fees. He said he was trying to enforce his right to have contact with his daughter who was in the care of her mother. He said that he was 'depressed about my daughter'. He said he took drugs in order to keep working."
8. Whether the applicant was using profits from drug sales directly to pay legal fees, or using such profits to pay for drugs to use in order to work to pay for legal fees (or a combination of both) makes no real difference. The impugned finding of the sentencing judge was one that was open to her Honour to make.
9. It was submitted that the finding of objective seriousness in the middle of the range was not borne out by the evidence that was said to be the effect that the applicant used whatever gain he made from his drug sales "for his own purposes of ameliorating pain and finding the energy against discomfort to continue working lawfully". In other words his gain from his offending was to enable him to continue to use prohibited drugs. The submission is not soundly based on the evidence. Moreover, counsel appearing for the applicant in the District Court conceded, "no doubt … there would have been some profit".
10. It was submitted that, "in an overall view of his objective criminality … his level of criminality is reduced by reason of his personal consumption of the illegal drug arising from his compulsion to work. The illegal drugs defrayed pain and provided endurance to work." As to this submission the Crown (rightly) pointed to the observations of Spigelman CJ in R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [197]-[198]: "In my opinion drug addicts who commit crime should not be added to the list of victims. Their degree of moral culpability will vary, just as it varies for individuals who are not affected by addiction. There are a number of aspects of the relationship between drug addiction and crime which indicate that moral choices are made. First is the original decision to experiment with drugs which, in the usual case, is a completely free choice. The addictive quality of drugs, together with the anti-social behaviour which so commonly results from addiction, is so widely known that persons who choose a course of addiction must be treated as choosing its consequences."
11. The Crown submitted that the consumption of illicit substances in order to enhance work performance cannot be condoned and that the applicant's consumption of drugs was not "morally praiseworthy" as the applicant asserted. Those submissions are soundly based and I accept them.
12. Submissions were also made to the effect that the quantities supplied by the applicant were relatively small and that the fact that the supplies were made over an extended period of time "actually mitigates the seriousness of the offence in that it demonstrates that the weekly nature of the sale of methylamphetamine was at a moderate level, after taking into account what was consumed by the applicant".
13. The assessment by the primary judge of these matters was a matter for her discretion and her reasoning is set out in the passage I have quoted above (see the last paragraph of the extract at [33]). In my view her findings were well open to be made.
14. It is to be noted that the focus of this ground of appeal, namely the assessment of the objective seriousness of the offence in count 1 being in the middle of the range, was classically within the discretion of the sentencing judge: see Mulato v R [2006] NSWCCA 282 at [37] where Spigelman CJ said: "Characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts. This Court is very slow to determine such matters for itself or to set aside the judgment made by a first instances judge exercising a broadly based discretion. The question must be whether or not the particular characterisation which her Honour gave to the circumstances of the offence was open to her Honour."
15. In the same case, Simpson J (as her Honour then was) said: "[46] The assessment of the objective seriousness of an offence is quintessentially for the sentencing judge. It is, if not a finding of fact, then the exercise of an evaluative process akin to fact finding or the exercise of a discretion. As such it is reviewable in this Court only on the principles stated in House v The King [1936] HCA 40; 55 CLR 499. The importance of respecting the role of a first instance judge should never be underestimated. It is not the function of this Court to substitute its own view of objective seriousness for that of the first instance judge. That is not because objective seriousness is something determined by reference to the evaluation of the credibility of witnesses, in respect of which it is conventionally held that the first instance judge is in a superior position. It is because it is a fundamental aspect of the appellate system. Each judicial officer in the hierarchy has his or her own function, and those at appellate level need to take care not to trespass upon the role of those at first instance."
16. There was no merit in this ground of appeal.

Ground 2 - error in taking into account the supply of cocaine and cannabis in assessing the objective criminality of the supply of methylamphetamine

1. This proposed ground of appeal was solely based upon the preliminary observation made by her Honour before she specifically addressed the objective seriousness of each of the offences: see above at [32]. It was submitted by the applicant that the criminality and related penalty applicable to count 1 ought to have been considered discretely but her Honour had incorporated the criminality in relation to counts 2 and 3 in assessing the criminality applicable to count 1.
2. This assertion must also be rejected. The observation referred to in the submission was an overall one but immediately followed, as the above extract reveals, by a discrete assessment of the objective seriousness of each of the individual sentences.

Ground 3 - the judge was obliged to regard the amount supplied in relation to counts 2 and 3 as the statutory minimum

1. The written submissions in support of this ground were misconceived in that they proceeded upon the mistaken basis that the applicant was being sentenced for offences of commercial quantity supply in counts 2 and 3. It was contended that the judge should have sentenced the applicant on the basis that the quantity involved was at the commercial quantity threshold: 250 grams in the case of cocaine in count 2 and 25 kilograms in the case of cannabis leaf for count 3.
2. Counsel for the applicant acknowledged the error at the hearing of the application. The submission was modified so it became a contention that the judge should have sentenced on the basis of the quantity being at the indictable quantity threshold: 5 grams in the case of cocaine and 1 kilogram in the case of cannabis leaf. But that is precisely how her Honour proceeded: see above at [34].

Conclusion

1. There was no merit in any of the grounds of appeal. For these reasons I joined in the making of the order at the conclusion of the hearing: Leave to appeal against sentence refused.
2. R S HULME AJ: Subject to one matter, I agree with the reasons for judgment of R A Hulme J. My reservation concerns the correctness of the passages quoted from Mulato v R.
3. However they have been followed on many occasions and as there was no argument in this case that they were wrong, now is not the occasion for reconsideration of them.

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