Sponberg v R

Court of Criminal Appeal (NSW)|2017-03-17|Before: Macfarlan JA, Latham J, Campbell J, MacFarlan JA

[2012] NSWCCA 95; R v Urriola [2012] NSWSC 1634 Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 Category: Principal judgment Parties: Peter William Sponberg (Applicant) Regina (Respondent) Representation: Counsel: S Boland (Applicant) S Hughes (Respondent)

Solicitors: R Boyd (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2015/61071 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 17 May 2016 Before: Garling ADCJ File Number(s): 2015/61071

Judgment

MACFARLAN JA: On 17 May 2016 Mr Peter Sponberg, the applicant, was sentenced in respect of two offences to which he pleaded guilty.

Factual circumstances

The following factual circumstances were not in issue.
At some time in 2014 the applicant visited the snow fields and met a person who asked him to engage in the supply of prohibited drugs. After declining several times, the applicant eventually agreed to do so.
The arrangement made was that the applicant would supply drugs to a particular individual. It transpired that this person was an undercover police officer. There was no evidence that the applicant supplied drugs to any other person.
On six separate occasions between 4 December 2014 and 26 February 2015, the applicant was involved in the supply of cocaine to that officer. The amounts of the supplies were 13.84, 55.5, 55.1, 56.1, 55.4 and 141.7 grams, totalling 377.64 grams. This represented a "commercial quantity" of cocaine, which is a category that relates to supplies between 250 and 1000 grams (Drug Misuse and Trafficking Act Schedule 1).
The applicant effected the supply personally on each occasion, save that on 5 February 2015 he arranged for his brother-in-law to make the delivery.
The applicant had 219.8 grams of cannabis in his possession when he was arrested on 26 February 2015. A search of his home pursuant to a search warrant led to the discovery of a Stirling self-loading rifle in working order, a .177 calibre Haenel single shot air rifle in working order and 15 cartridges of ammunition suitable for use in the Stirling rifle. The applicant did not hold a firearms licence and the firearms were not registered.
The applicant gave evidence that he found the Stirling rifle and the ammunition at a work site during the course of his employment as a carpenter. He said that he thought the rifle was "definitely inoperative" because it had a "ball of rust around it". The sentencing judge said in relation to this evidence: "Photos confirm what he said about rust … I can understand why he thought it did not work". His Honour found that the firearms played no role in relation to the applicant's supply of prohibited drugs.
The evidence of the applicant's subjective circumstances included the following.
At the time of the offence, the applicant was 42 years of age and had no criminal record. He had a consistent work history as a carpenter conducting his own business.
His illicit drug use commenced at the age of 28, and he began consistent use of cocaine approximately two years prior to his arrest. Dr Olav Nielssen diagnosed the applicant as having a "substance use disorder" on the basis of his cocaine use.
About three months before the offence, Dr Lim of the Caringbah Family Practice made the following notes after a consultation with the applicant: "Marriage break up … low mood … insomnia … occasional suicide thoughts but no idea or intent".
The applicant has been medicated for depression while in custody. He has obtained a position as "leading hand" with a ground maintenance team.

The sentencing judgment

The sentencing judge recorded that the applicant said he made a profit of $2,000 in respect of each deal, totalling $10,000 for the five separate deals he completed (he was arrested on the sixth occasion of supply). The total price of the cocaine for the five completed occasions of supply was $75,000. In cross-examination the applicant said that he made $1,000 an ounce but often sold at a discount, which came out of his pocket. His Honour said that the applicant had been drawn into the supply of drugs by a promise of "big profits".
His Honour noted that the applicant had no criminal record and described him as a "hard-working man" who had done well in custody and had a low to medium risk of re-offending.
His Honour's conclusions on sentencing were as follows: "His plea of guilty was at an early time, he is entitled to a discount of 25% for his plea. The firearm was not involved in the drug offences. Charge 1 is a very serious, large amount of drugs involved. It was committed for profit; it is above the commercial quantity of cocaine; it had quite a high purity; he was able to supply at short notice; obviously had access to drugs; he was supplying to an undercover officer, which meant it did not find its way into the community, but he did not know that. He must be sentenced in such a way that he understands that he cannot offend in this way, but most importantly that others in the community understand that if they offend in this way they will be sentenced to terms of imprisonment, and lengthy terms of imprisonment. There are clearly special circumstances. He has no criminal record; he has spent no time in custody before his arrest on this matter; and he needs help to be rehabilitated. The firearm offence is near the bottom of seriousness for these type of offences. He did not believe it worked, and photos confirm what he said about rust. However, it did work; but I can understand why he thought it did not work, and it was not involved in the drug deals nor in involvement of crime. It is still a serious offence to have a firearm in the community. Judicial Commission statistics relate to about 50 cases with a large range of sentences, the most common is 15% which is five years; 13% six years; and 13% seven years. I take into account the 25% discount and have reached the sentence which I previously expressed."

Ground 1: whether the sentencing judge failed to take into account the applicant's lack of a criminal record as a matter affecting leniency

This ground of appeal must be rejected as the sentencing judge clearly had regard to the fact that the applicant had no criminal record and was of prior good character. His Honour referred to the absence of a criminal record both in his general description of the applicant's personal circumstances and when considering "special circumstances" for the purposes of fixing a non-parole period. As well, his Honour referred to the applicant as "a hard-working man" and to the letters in his support that were in evidence.
As McHugh J said in Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21 at [33], "[s]entencing is not a mathematical process". The sentencing judge was obliged to identify the factors relevant to the applicant's sentencing and then undertake "an instinctive synthesis" to determine an appropriate sentence (Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [50]-[51]). It is not necessary, and indeed is not appropriate, to quantify the impact of the various factors (except for the discount for a guilty plea and assistance to the authorities). Whilst the significance of a factor will often need to be discussed, I do not consider that any discussion of the applicant's lack of a criminal record was required in the present case. It was obvious that his prior good record was, and was regarded by his Honour as, a factor favouring the applicant in the sentencing process.

Ground 2: whether the sentencing judge failed properly to assess the "objective seriousness" of Count 1

As Simpson J said in R v Campbell [2014] NSWCCA 102 at 27, "[t]he assessment of objective seriousness is, and has always been, a critical component of the sentencing process". This remains the position notwithstanding the High Court decision in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39.
As Latham J said in R v Cage [2006] NSWCCA 304 at [17], "[a] bare recitation of the facts constituting the offences and a reference to the 'objective features of the offences' does not satisfy the requirements of sentencing" (see also R v Van Ryn [2016] NSWCCA 1 at [129]). Where an offence is "not so grave as to warrant the imposition of the maximum prescribed penalty", a sentencing judge "is bound to consider where the facts of the particular offence and offender lie on the 'spectrum' that extends from the least serious instances of the offence to the worst category, properly so called" (R v Kilic (2016) 91 ALJR 131; [2016] HCA 48 at [19]; and see Ibbs v The Queen (1987) 163 CLR 447; [1987] HCA 46 at 452). As R A Hulme J said in Van Ryn, "[i]t is one thing to refer to the general proposition that child sexual assault is a serious crime; it is another to identify the relative seriousness of the case at hand" (at [137]). This observation can be applied outside of the sexual crime context in which it was made.
In the present case, the sentencing judge did not indicate where the applicant's Count 1 offence lay in the spectrum of offences, nor did he make any assessment at all of its objective seriousness (see Van Ryn at [133]). As indicated in [20] above, his Honour was recorded as saying "Charge 1 is a very serious, large amount of drugs involved". It is possible that his Honour was intending to make a statement in that sentence about the seriousness of the applicant's offending. Nevertheless, this Court can do no more than act upon the words recorded which, read literally, relate to the amount of drugs involved, and not to an assessment of the objective seriousness of the offence. Whilst the weight of the drug involved is a relevant factor in assessing the objective seriousness of an offence, it is not the only, or even chief, factor (Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [67]-[70]). The language that the sentencing judge used in relation to the Count 1 offence is to be contrasted with the language he used in relation to the Count 2 offence, which he described as "near the bottom of seriousness for these type of offences" ([20] above).
It is to be expected that there will be infelicities of expression in judgments given by judges who are subject to the demands and pressures of busy lists, and the focus of this Court should be on substance rather than form (as to the latter proposition see Delaney v R (2013) 230 A Crim R 581; [2013] NSWCCA 150 at [56]). Nonetheless, the inescapable conclusion in the present case is that his Honour's sentencing judgment does not contain an assessment of the objective seriousness of the Count 1 offence, either relative to other offences of its type or at all.
Accordingly Ground 2 has been established and the applicant must be re-sentenced for the Count 1 offence.

Count 3: whether the sentencing judge failed to consider s 5 of the Crimes (Sentencing Procedure) Act in relation to Count 2

Section 5(1) of the Crimes (Sentencing Procedure) Act is in the following terms: "5 Penalties of imprisonment (1) A court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate."
The sentencing judge did not expressly state that he was satisfied that no penalty other than imprisonment was appropriate, or that he had considered all possible alternatives. Although it was unnecessary for his Honour to do so, it was necessary for him in fact to undertake the relevant consideration and be relevantly satisfied (R v Zamagias [2002] NSWCCA 17 at [30]; Douar v The Queen (2005) 159 A Crim R 154; [2005] NSWCCA 455 at [74]). In my view it can be inferred that this consideration and satisfaction occurred for the following reasons.
First, although his Honour described the firearm offence as "near the bottom of seriousness", he added that it was still a serious offence. Secondly, his Honour was required to take into account the additional offences on the relevant Form 1. Thirdly, and most importantly, at the joint sentencing hearing relating to the applicant and his co-offender, his Honour engaged in discussion with the co-offender's counsel concerning the various alternatives to imprisonment that might be applicable to the co-offender for his drugs offence. The limitation of this discussion to the position of the co-offender indicates that his Honour had in mind at the sentencing hearing the question of whether imprisonment was necessary and, in the case of the applicant but not in the case of the co-offender, clearly thought that there was no question but that it was.
For these reasons I would reject Ground 3.
I add that on appeal both parties proceeded on the assumption that the applicant's solicitor had conceded, in both oral and written submissions at the sentencing hearing, that a sentence of imprisonment was appropriate in respect of Count 2. On my reading however, the concessions related to Count 1, or perhaps to the two Counts taken together, but did not relate to the sentence for Count 2 taken alone.

Re-sentencing on Count 1

On re-sentencing following the establishment of error, an appellate court "does not assess whether and to what degree the error influenced the outcome" (Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42]). Rather, its obligation is to exercise the discretion afresh. The re-sentencing court must make its own assessment of the appropriate sentence, without allowing the original sentence to dictate or guide the exercise of its discretion (see Thammavongsa v R (2015) 251 A Crim R 342; [2015] NSWCCA 107 at [4]-[7], [21]-[25] and [44]). When it has done this, the court must compare the appropriate sentence with that originally imposed and, if it is less than the latter, substitute it for the latter (Criminal Appeal Act 1912 (NSW), s 6(3)). If findings of fact made when a sentence was first imposed are not challenged on appeal, there is no reason why the court should not adopt them for the purposes of re-sentencing (ibid at [23]).
I take into account the following factors as relevant to the objective seriousness of the offence.
First, there was a substantial quantity of drugs involved. The quantity was 377.64 grams compared to the minimum amount of 250 grams that constitutes a commercial quantity of cocaine, although it was well below the top of the range for a commercial quantity (up to 999.9 grams).
Secondly, supply occurred on a number of occasions (six occasions over a period of three months).
Thirdly, the applicant appeared to be able to supply substantial quantities of the drug at short notice. His discussions with the undercover police operative indicated that he was also able to negotiate the price of the drugs.
Fourthly, the motivation for the applicant's supply of drugs was profit, although he gave evidence that he used that profit in part to support his own drug habit.
Fifthly, the applicant arranged for someone else to effect a delivery when he was unavailable. This indicated his desire to service and retain a regular client.
Sixthly, there was no evidence that the applicant supplied drugs to any person other than the undercover police operative. Although the drugs were therefore not disseminated into the community, that did not reduce the applicant's moral culpability (AB v R [2013] NSWCCA 273 at [92]). This is not a case where an inference was available that the offender was in effect lured by an undercover operative into offending that would not otherwise have occurred (compare R v Taouk (1992) 65 A Crim R 387 at 403, Parris v R [2013] NSWCCA 5 at [24]-[28]). Here, the applicant's involvement resulted from his yielding to the persuasion of another person, presumably the person who supplied the drugs to him. The applicant then sold these drugs to the undercover operative.
Taking these matters into account, I assess the objective seriousness of the applicant's offence to be mid-range compared to other offences of its type.
In re-sentencing, I take into account the importance of general deterrence in sentencing for offences of supplying prohibited drugs (see R v Sciberras (2006) 165 A Crim R 532; [2006] NSWCCA 268 at [48]). I also take into account the applicant's expressions of remorse, his depressive illness and, like the sentencing judge, find that he has good prospects of rehabilitation. I further take into account the updated evidence of the applicant's good behaviour in custody and his completion of and enrolment in various courses. In these circumstances, I give only limited weight to the need for specific deterrence.
I also take into account as guideposts the maximum penalty and standard non-parole period referred to in [2] above and allow a 25% discount for the applicant's early guilty plea.
After considering other possible sentencing options, I have concluded that no sentence other than imprisonment is appropriate in respect of the applicant's offence. In relation to the standard non-parole period, I conclude that there are special circumstances warranting departure from the statutory ratio, being the applicant's conduct in custody, his otherwise good character and his drug dependence and depression. These circumstances indicate that an extended period of parole would be likely to assist in his rehabilitation.
Whilst appreciating the limited utility of examining sentences imposed in other cases (see Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [53]-[55]; R v Kilic at [22]-[24]), I have had regard to the following decisions of this Court concerned with offences involving the supply of a commercial quantity of cocaine: Auon v R [2011] NSWCCA 284, Tapai v R [2009] NSWCCA 246, Parris v R [2013] NSWCCA 5 and Urriola v R [2012] NSWCCA 95 (see also R v Urriola [2012] NSWSC 1634). Although the facts and circumstances of these cases necessarily differ from those in the present case, they have provided some general guidance, as have Judicial Commission statistics relating to the supply of commercial quantities of cocaine where the offender had no prior record and pleaded guilty. In respect of the latter, the highest sentences imposed (as shown in the statistics) were 7 years imprisonment after application of the discount for the guilty pleas. The sample being small (11 cases), the statistics are of limited value.
Taking all these considerations into account, I conclude that the appropriate sentence on Count 1, before a discount is made for the plea of guilty, is imprisonment for 7 years. After the discount of 25% for the guilty plea is made, the head sentence becomes 5 years 3 months. Application of the statutory ratio would produce a non-parole period of about 4 years. Giving effect to my finding of special circumstances, I would fix the non-parole period at 3 years 6 months.
This is a lesser sentence than that imposed in the District Court. Accordingly the District Court sentence must be quashed and the lower sentence imposed (s 6(3) Criminal Appeal Act 1912 (NSW)).
For these reasons, I propose the following orders: 1. Grant leave to appeal in respect of the sentence imposed on Count 1 of the Indictment. 2. Allow the appeal. 3. Quash the sentence imposed by the District Court on 17 May 2016 in respect of Count 1 of the Indictment, namely the offence pursuant to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). 4. In respect of the Count 1 offence, and taking into account the offence on the Form 1, sentence the applicant to a term of imprisonment of 5 years and 3 months commencing on 26 February 2015 and concluding on 25 May 2020, comprising a non-parole period of 3 years and 6 months and a balance of term of 1 year and 9 months. 5. Taking into account the sentence imposed in the District Court on Count 2, which remains effective and is wholly concurrent with the above sentence on Count 1, the applicant's total term of imprisonment in respect of the two Counts is as stated in respect of Count 1. 6. The applicant is eligible to be released on parole on 26 August 2018.
LATHAM J: I agree with Macfarlan JA.
CAMPBELL J: I agree with Macfarlan JA.

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