Stanton v Regina

CATCHWORDS: CRIMINAL LAW - sentencing - co-offenders - parity - disparity between sentences - justifiable sense of grievance - approach by trial judge in co-offender's sentencing - erroneous comparison of number of offences - erroneous consideration by trial judge of offences of which applicant charged - interference by appellate court

Crimes (Sentencing Procedure) Act 1999, s32 LEGISLATION CITED: Criminal Appeal Act 1912, s5 Drug Misuse and Trafficking Act 1985, ss25(1), 25A

Lowe v R [1984] HCA 46; (1984) 154 CLR 606 Mirza v R [2007] NSWCCA 248 Postiglione v R [1997] HCA 26; (1997) 189 CLR 295 Qing An v R [2007] NSWCCA 53 CASES CITED : R v Bavadra (2000) 115 A Crim R 152; [2000] NSWCCA 292 at [37] R v Diamond (NSWCCA, 18 February 1993, unreported) R v Doggett (NSWCCA, 24 March 1997, unreported) R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346; 106 A Crim R 149 Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465 Wong v R [2001] HCA 64; 207 CLR 584

PARTIES: Dennis John Stanton (Applicant) Crown (Respondent)

COUNSEL: C Loukas (Applicant) G Rowling (Respondent)

SOLICITORS: Legal Aid Commission (Applicant) Solicitor for Public Prosecutions (Respondent)

• 14 - IN THE COURT OF CRIMINAL APPEAL CCA 2007/5119

BEAZLEY JA KIRBY J HALL J

17 December 2008 Dennis John STANTON v Regina Judgment 1 BEAZLEY JA: On 7 November 2007, the applicant, Mr Dennis John Stanton, was convicted of one count of supply prohibited drug, being methylamphetamine, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 and three counts of knowingly take part in the supply of a prohibited drug (two counts involving the drug methylamphetamine and one count involving the drug MDMA, or Ecstasy), contrary to the same provision. Three further offences of knowingly take part in the supply of a prohibited drug were included on a Form 1, in accordance with s 32 of the Crimes (Sentencing Procedure) Act 1999. The conviction followed upon a plea of guilty entered by the applicant in the Local Court approximately six weeks prior to his conviction. 2 The maximum penalty for an offence under s 25(1) of the Drug Misuse and Trafficking Act is 15 years imprisonment and/or a fine of $220,000: see ss 32(1)(c) and 32(1)(e) of the Drug Misuse and Trafficking Act and s 17 of the Crimes (Sentencing Procedure) Act. The sentencing judge, her Honour Payne DCJ, imposed on the applicant the following sentences: on each of counts 2 and 3 in respect of the offences of knowingly take part in the supply of a prohibited drug, a term of imprisonment of 18 months commencing on 14 June 2007 and expiring on 13 December 2008; in respect of count 4, also being an offence of knowingly take part in the supply of a prohibited drug, a non-parole period of 15 months, commencing on 14 December 2007 and expiring on 13 March 2009, with a balance of term of 9 months, expiring on 13 December 2009; in respect of count 1, also being the offence of supply prohibited drug (the supply offence), a non-parole period of 18 months imprisonment, commencing on 14 March 2008 and expiring on 13 September 2009, with a balance of term of 18 months, expiring on 13 March 2011. The three matters on the Form 1 were taken into account in the sentencing in respect of the supply offence. 3 The total effective sentence to which the applicant was sentenced was 3 years 9 months, with a total non-parole period of 2 years 3 months. 4 The offences of which the applicant was convicted arose out of a controlled operation conducted by police into the activities of the Rebels Outlaw Motorcycle Gang, Mid North West Chapter (the Motorcycle Gang). The offences occurred over a one month period, in circumstances where there were drug sales to police undercover operatives. Other persons, including David Keen (the co-offender), involved in the drug supplies were also charged and convicted. On 14 June 2007, police executed a search warrant on the applicant's residence, in which he revealed to police a large number of small used resealable bags and a number of used syringes. 5 In her Remarks on Sentence, her Honour stated that in "a summary way", the court was concerned with the applicant's offending over a period between 14 March 2007 and 24 April 2007, when he supplied, or was involved in the supply, of 38.58 g of methylamphetamine and 2.27 g of MDMA, being 11 tablets, the purity of which was 42 per cent. Her Honour noted that although the quantity of MDMA might seem small, it was nearly twice the indictable quantity of 1.25 g. In respect of the methylamphetamine, the amount involved was in excess of seven times the indictable quantity, which is 5 g. The total amount of money which changed hands was $6,100 for the methylamphetamine and $340 for the MDMA. Her Honour noted the amounts involved in each of the transactions, other than for the first supply, were "well above street-level dealing". Her Honour commented that even 1 g of methylamphetamine was not a small amount, as there are frequently street sales for 0.1 g. In his evidence before her Honour, the applicant stated that 0.1 g of methylamphetamine is sold for about $50. 6 Her Honour stated that general deterrence must be a feature of the sentencing exercise she was undertaking. She referred to the frequent statements made by this Court that the dissemination of illegal drugs into the community is a serious matter and that those who participate in that supply commit serious offences. Her Honour accepted, however, that the applicant's role was not the most serious of those involved in the particular supply and that he was a facilitator. Her Honour also accepted that the applicant was somewhat vulnerable, as he had been recruited, or at least made himself available, because he was a drug addict. Her Honour accepted that the applicant's financial gain from the operation was no more than venture money, as well as some cigarettes and methylamphetamine from the dealer. 7 The applicant's personal circumstances revealed a significant degree of sadness and some disadvantage. He is of Aboriginal descent and although his childhood and developmental years were stable and relatively socially advantageous, he began binge drinking from around 13 years on weekends and developed a drug dependency from about the age of 17, when he commenced using cannabis. The applicant commenced using amphetamines in 2001 and this also developed into a dependence, involving intravenous injections several times a day. This dependency arose following his resignation from his employment after being charged with assault. Up until that time, he had consistently engaged in fulltime employment. 8 In a psychological report prepared for the applicant for the purposes of the sentence hearing, Ms Katie Seidler, psychologist, stated that the time following his resignation in 2001, "represent[ed] a period of substantial decompensation for [the applicant] in a range of areas". He has not worked since then. 9 The applicant was aged 42 at the time of sentence and at the time he was taken into custody, he had the care of three of his 10 children. He has maintained a close relationship with his mother, who has continued to provide him with strong support over the years. His mother is presently very ill, having suffered with cancer for about five years. The trial judge accepted that the applicant's mother's illness will make his conditions of custody more onerous for him, because of his concern for her health. 10 Initially, when the applicant was taken into custody for these offences, he was on "limited association" and was in fear there may be some retaliation from the Motorcycle Gang. At the time of sentence, he was under a lower level of protection and her Honour noted that it was always difficult to know what protection status a prisoner would have during any term of imprisonment. Nonetheless, her Honour gave weight to the applicant's custodial conditions thus far.

The issue on the sentence appeal 11 The applicant seeks leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912. If leave is granted, he raises a single ground of appeal, namely, the disparity between his sentence and that of the co-offender is such that he had a justifiable sense of grievance which should be redressed by a lesser sentence being imposed on him than was imposed by Payne DCJ. 12 The co-offender pleaded guilty to two counts of ongoing supply of MDMA contrary to s 25A of the Drug Misuse and Trafficking Act; two counts of supply methylamphetamine contrary to s 25(1) of the Drug Misuse and Trafficking Act and one count of supply MDMA contrary to that section. The offence contrary to s 25A attracts a maximum penalty of 20 years imprisonment. There were taken into account on a Form 1 in relation to the s 25(1) offence, five matters of supply prohibited drug, being variously cannabis, cocaine and methylamphetamine. 13 The offences for which the co-offender was convicted occurred over a period of three months, from 15 March 2007 to 14 June 2007. The total amount of prohibited drugs supplied by him was 157.9 g of methylamphetamine and 85.58 g of MDMA. These amounts did not include the quantity of drugs involved on the Form 1 counts. 14 The co-offender, who also pleaded guilty, was sentenced by his Honour Toner DCJ on 17 April 2008. After allowing a 25 per cent discount for the plea, his Honour sentenced the co-offender to a total sentence of 4 years 4 months, with a non-parole period of 2 years 4 months. He is due for release on 13 October 2009. The effect of the sentence imposed on the co-offender, therefore, was that he was sentenced to an overall sentence 7 months longer than that imposed on the applicant and a non-parole period of 1 month longer than that imposed on the applicant. 15 The applicant complains that he has a justifiable sense of grievance, having regard to the sentence imposed on him compared to that of his co-offender. It was submitted that this was so, given both the relative subjective and objective features of their respective offending. 16 So far as their subjective features were concerned, both men were of Aboriginal descent. The applicant was older, being 42 years of age, whereas the co-offender was 27 at the time of sentence. The applicant's circumstances are such that, notwithstanding a relatively stable family upbringing, he has a number of significant personal problems due to his drug dependency, particularly following his decompensation when he resigned from his job after being charged with assault. The co-offender was the product of an exceptionally dysfunctional family and had been introduced to and encouraged to use various illicit drugs and alcohol from the age of 12. 17 Both offenders had demonstrated remorse and both were considered to have good prospects of rehabilitation. Special circumstances were found in each case. 18 The applicant has a long criminal history, which does not do him much credit. His record commences with a small stealing offence in 1985 and has subsequently involved more serious offences, including assault, malicious damage, goods in custody and two offences for contravening an apprehended violence order. Nonetheless, Payne DJC did not consider that history disentitled him to some leniency. There were no previous drug offences. He has already served one term of imprisonment, in 2002, for offences including the possession of firearms. By contrast, the co-offender had a minor criminal history involving a mid-range PCA, assault and damage to property. Each of those offences was dealt with by way of a fine. 19 The co-offender's role in the particular drug operation out of which these offences arose was more serious than that of the applicant. First, he was involved in a greater number of offences: 10 offences, including those on the Form 1, as compared to the applicant's 7 offences, including those on the Form 1. The co-offender also played a much greater role in the offences than did the applicant. He was the person who supplied the drugs to the applicant in respect of the 3 offences of knowingly take part in supply prohibited drug. He was involved in the supply of approximately four times the amount of methylamphetamine compared to the supply in which the applicant was involved: 157.9 g, compared with 38.58 g; and approximately 37 times the amount of MDMA compared with those in which the applicant was involved: 85.58 g, compared to 2.27 g. The total amounts of money involved in the supply was also substantially greater in the co-offender's case. Further, when a search warrant was executed on the co-offender's residence, an amount of $4,000 was found in his bedroom. A further amount of $13,500 was found in the bedroom belonging to another co-accused. The applicant received $50 for the individual sales, some cigarettes and a small quantity of drugs for his personal use. 20 The following table, helpfully prepared by Ms Loukas, counsel for the applicant, demonstrates the differences in the quantities of drugs and the amounts paid for those drugs by the undercover operatives. The applicant The co-offender Count 1 Supply prohibited drug · 14/03/2007 · Methylamphetamine · $300 · Weight 0.83 g Form 1 Knowingly take part in supply Count 1 (First sale)** Ongoing supply · 15/03/2007 · Methylamphetamine · 15/03/2007 · Methylamphetamine · $650 · Weight 3.27 g · $650 · Weight 3.27 g Form 1 Knowingly take part in supply Count 1 (Second sale) Ongoing supply · 15/03/2007 · Methylamphetamine · 20/03/2007 · Methylamphetamine · $550 · Weight 3.4 g · $550 · Weight 3.4 g Form 1 Knowingly take part in supply Count 1 (Third sale) Ongoing supply · 20/03/2007 · Methylamphetamine · 20/03/2007 · Methylamphetamine · $600 · Weight 3.38 g · $600 · Weight 3.38 g Count 2 Knowingly take part in supply of prohibited drug Count 1 (Fourth sale) Ongoing supply · 03/04/2007 · Methylamphetamine · 03/04/2007 · Methylamphetamine · $2,000 · Weight 13.8 g · $2,000 · Weight 13.8 g Count 3 Knowingly take part in supply of prohibited drug Count 1 (Fifth sale) Ongoing supply · 04/04/2007 · Ecstasy tablets/MDMA · 04/04/2007 · Ecstasy tablets/MDMA · $340 · Weight 2.27 g · $340 · Weight 2.27 g Count 4 Knowingly take part in supply of prohibited drug Count 2 Supply of prohibited drug · 24/04/2007 · Methylamphetamine · 24/04/2007 · Methylamphetamine · $2,000 · Weight 13.9 g · $2,000 · Weight 13.9 g Count 3 Supply of prohibited drug · 04/05/2007 · Methylamphetamine · $4,000 (including $ for count 4) · Weight 15.5 g Count 4 Supply of MDMA · 04/05/2007 · MDMA · $4,000 (including $ for count 3) · Weight 19.52 g Count 5 (First sale) Ongoing supply · 28/05/2007 · Methylamphetamine · $4,000 · Weight 26.9 g Count 5 (Second sale) Ongoing supply · 05/06/2007 · MDMA/Ecstasy · $1,250 · Weight 12.5 g (50 tablets) Count 5 (Third sale) Ongoing supply · 06/06/2007 · MDMA and methylamphetamine · $9.250 · 11.6 g (47 tablets) and 50.9 g Count 5 (Fourth sale) Ongoing supply · 14/06/2007 · MDMA and Methylamphetamine · $2,000 and $6,100 (arrest) · 39.69 g (180 tablets) and 26.85 g ** Taken into account on Form 1, five matters of supply prohibited drug: variously cannabis, cocaine and methylamphetamine

21 As I have mentioned, both the applicant and the co-offender pleaded guilty at the earliest opportunity and full effect was given to the utilitarian value of this plea by each of their Honours Payne DCJ and Toner DCJ, by allowing a 25 per cent reduction in the sentence which otherwise would have been imposed. 22 There is no dispute as to the appropriate principles to be applied when the ground of appeal is that a co-offender has a justifiable sense of grievance, having regard to the sentence imposed upon the co-offender. In Lowe v R [1984] HCA 46; (1984) 154 CLR 606 Mason J stated, at 613, that appellate intervention is called for, not because of error on the part of the sentencing judge, but because: "… disparity engenders a justifiable sense of grievance in the applicant and an appearance of injustice to that impassive representative of the community, the objective bystander." 23 Mason J had earlier in his judgment commented, at 611, that unequal treatment under the law would lead to "an erosion of public confidence in the integrity of the administration of justice". Dawson J, at 623, observed to similar effect, that: "… justice should be even-handed and … any difference between the sentences imposed upon co-offenders for the same offence ought not be such as to give rise to a justifiable sense of grievance on the part of the offender with the heavier sentence or to give the appearance that justice has not been done." 24 These principles were reiterated in Postiglione v R [1997] HCA 26; (1997) 189 CLR 295. In that case, Dawson and Gaudron JJ stated, at 301: "Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them." 25 In R v Doggett (NSWCCA, 24 March 1997, unreported) Sully J, with whom Newman J agreed, stated that to succeed on an appeal under this ground: "What has to be demonstrated by the person complaining … is not that he feels aggrieved, but that a reasonable mind looking overall at what has happened, would see that the offender's grievance is justified." 26 Nevertheless, there are limits concerning the circumstances in which a court will intervene, as explained by Hunt J in R v Diamond (NSWCCA, 18 February 1993, unreported). His Honour, at 6, said: "The issue is whether the particular sense of grievance (or of injustice) is a legitimate one. There is, in my view, a stage at which the inadequacy of the sentence imposed upon the co-offender is so grave that the sense of grievance engendered can no longer be regarded as a legitimate one." 27 I have given consideration to the application of that principle in this case. However, although the sentence imposed on the co-offender, particularly the non-parole period, is somewhat lenient, it could not be said that it was inadequate. Accordingly, the principle in Diamond is not engaged. 28 At the time that the co-offender was sentenced by Toner DCJ, the applicant had already been sentenced and Toner DCJ had available not only the sentence imposed upon him, but also Payne DJC's remarks on sentence. It is apparent from his Honour's remarks that he was conscious of the need to have regard to the principles relating to parity. He was also conscious that there were differences in the circumstances of each offender. His Honour approached the sentencing of the co-offender on the basis that each offence was objectively serious and each involved a degree of planning, although he considered there was some material to suggest the offender's motivation was to finance his drug addiction. However, his Honour correctly observed that this was not an answer to the charge nor did it mitigate the penalty to be imposed: see R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346; 106 A Crim R 149. 29 Toner DCJ then made two comments which are relevant to the question whether of the applicant now has a justifiable sense of grievance, in addition to the matters to which reference has already been made. The first comment related to the number of offences to which each offender had pleaded guilty. His Honour noted that the applicant was charged with 7 counts of supply pursuant to s 25(1) of the Drug Misuse and Trafficking Act, whereas the co-offender had been charged with 2 counts of ongoing supply under s 25A of that Act, and 3 counts of supply contrary to s 25(1). His Honour's comparison of the number of offences was erroneous. In specifying the number of offences committed by the applicant, his Honour included the matters on the Form 1. However, when considering the number of offences committed by the co-offender, his Honour did not include the matters on Form 1. As I have already stated above, the co-offender was in fact charged with 10 offences, not 5. The correct numerical comparison, therefore, was that the applicant was convicted of 4 offences, and charged but not convicted of, an additional 3 offences listed on the Form 1 (a total of 7 offences). The co-offender was convicted of 5 offences, and charged but not convicted of a further 5 offences listed on the Form 1 (a total of 10 offences). 30 It is apparent from Toner DCJ's remarks on sentence that the erroneous comparison of the number of offences was relevant to his Honour's approach in sentencing the co-offender, when comparing the sentences imposed on the applicant. 31 His Honour also noted that sentences under s 25A should be more severe than those imposed for offences against s 25(1): Mirza v R [2007] NSWCCA 248 per Howie J at [14]. His Honour then made the following comment in respect of the applicant: "In the context of [the applicant's] case, however, it is difficult to see why [the applicant] was not charged pursuant to s 25A of the Drug Misuse and Trafficking Act because, on the face of it at least, the facts as revealed in the reasons of her Honour, would have justified such a charge. It would appear that it was only a matter of forensic selection by the Director which resulted in him being charged as he was." 32 This comment gives the appearance that the applicant was fortunate in being charged with the less serious offences under s 25(1) and that it might be thought, therefore, that the sentences imposed on him did not fully reflect his criminality. If that is a correct understanding of his Honour's remarks, then, with respect, they were out of place. If it is not a correct understanding, the comment is irrelevant and should not have been made. Mr Rowling, counsel for the Crown on the appeal, appropriately recognised that having regard to the applicant's lesser role in the offences, it was fairer to charge him with offences under s 25(1), rather than under s 25A. I am of the opinion that this consideration by Toner DCJ was also a factor in his sentencing approach. 33 Ms Loukas, counsel for the applicant, submitted that when regard was had to the greater degree of offending and the more serious role that the co-offender played, the applicant had a justifiable sense of grievance that required redress. She submitted that the more extensive prior criminal record of the applicant and his age did not explain the disparity in his sentence as compared to that of the co-offender. The Crown submitted, however, that Toner DCJ had treated the applicant's criminal record as being a significant factor which differentiated his position from that of the co-offender in accordance with the principles in Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465. 34 In Veen (No 2) Mason CJ, Brennan, Dawson and Toohey JJ commented, at 477, that an offender's prior criminal history was a relevant consideration in determining the sentence to be imposed. In particular, a prior criminal history was relevant to show whether the particular offending with which the court is concerned indicates that such behaviour was aberrant, or whether it demonstrates a continuing attitude of disobedience to the law. 35 In my opinion, notwithstanding Toner DCJ's comparison of the criminal history of each of the applicant and the co-offender his Honour did not treat this case as governed by the principles in Veen (No 2). Nor, in my opinion, does the difference in the offenders' criminal records explain the disparity in the sentences imposed on each of them. I consider that his Honour failed to have proper regard to the co-offender's far more serious offending. With respect to Toner DCJ, I am also of the opinion that his erroneous comparison of the number of offences with which each of the offenders were charged and his comments as to the manner in which the applicant had been charged, that is, with less serious offences, led his Honour to misunderstand the appropriate difference that he, as a matter of law, was required to have regard in order to ensure the principles in Lowe and Postiglione were applied in the sentence he imposed, notwithstanding the differences in the circumstances of each offender. 36 In those circumstances, notwithstanding the fact that the original sentence imposed upon Mr Stanton would not have called for appellate intervention, I am of the opinion that as a result of the sentence imposed by Toner DCJ on the co-offender, the applicant would have a justifiable sense of grievance such as to require this Court to intervene. 37 As I propose to impose different sentences on the appellant, I will take a slightly different approach from Payne DCJ and impose different sentences in respect of counts 2 and 3, so as to reflect the different amounts involved in the transaction. In the case of the transaction in count 2 , an amount of $2,000 was involved, whereas in count 3, an of $340 was involved. Although the drug in each case was different, and notwithstanding that the quantity of drug is not necessarily a determining factor in the objective gravity of the offence: see Wong v R [2001] HCA 64; 207 CLR 584, I consider that the difference in the monetary value of the transaction was substantial and ought to be reflected in the sentences imposed. 38 So far as count 4 is concerned, the drug and the monetary value of the transaction was the same as in count 2. I propose, however, that a slightly heavier sentence be imposed to take account of Mr Stanton's increased offending: see R v Bavadra (2000) 115 A Crim R 152; [2000] NSWCCA 292 at [37]; Qing An v R [2007] NSWCCA 53. 39 Payne DCJ allowed 25 per cent to take account of the utilitarian value of the plea and that is replicated in the sentences I propose. Her Honour also found special circumstances. That should also be replicated in the sentence imposed in respect of count 1 and I have maintained, so far as practical, the ratio between the non-parole period and the additional term as her Honour applied. I have also taken the offences on the Form 1 into account when sentencing in respect of count 1. 40 Accordingly, I would propose the following orders:

The sentences imposed by Payne DCJ be quashed and new sentences imposed as follows:

On Count 2 (knowingly take part in the supply of a prohibited drug on 3 April 2007 contrary to s 25(1) of the Drug Misuse and Trafficking Act ): the appellant is sentenced to a fixed term of imprisonment of 12 months to commence on 14 June 2007 and to expire on 13 June 2008;

On Count 3 (knowingly take part in the supply of a prohibited drug on 4 April 2007 contrary to s 25(1) of the Drug Misuse and Trafficking Act ): the appellant is sentenced to a fixed term of imprisonment of 9 months to commence on 14 June 2007 and to expire on 13 March 2008;

On Count 4 (knowingly take part in the supply of a prohibited drug on 24 April 2007 contrary to s 25(1) of the Drug Misuse and Trafficking Act ): the appellant is sentenced to a fixed term of 13 months commencing on 14 September 2007 and expiring on 13 October 2008;

On Count 1 (supply prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act (and taking into account the 3 offences on the Form 1 of knowingly take part in the supply of a prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act )): the appellant is sentenced to a non-parole period of 16 months commencing on 14 December 2007 and expiring on 13 April 2009 with a balance of term of 11 months commencing on 14 April 2009 and expiring on 13 March 2010.

Accordingly, the applicant is sentenced to a total effective sentence of imprisonment for all offences of 2 years 9 months with an effective period in custody of not less than 1 years 10 months. The earliest date that the applicant is eligible for release on parol is 13 April 2009. 41 KIRBY J: I agree with Beazley JA. 42 HALL J: I agree with Beazley JA. **********

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