Jones v The Queen [2010] HCA 45242 CLR 520
Kentwell v The Queen [2014] HCA 37
Judgment (3 paragraphs)
[1]
Solicitors:
R Zhou - Applicant
Solicitor for Public Prosecutions - Respondent Crown
File Number(s): 2015/2943032015/304017
Decision under appeal Court or tribunal: District Court of NSW
Jurisdiction: Criminal
Date of Decision: 20 April 2017
Before: Berman SC DCJ
File Number(s): 2015/294303
2015/304017
[2]
Judgment
HOEBEN CJ at CL:
Offences and sentence
The applicant pleaded guilty to the following counts:
1. Supply prohibited drug (s 25(1) Drug Misuse and Trafficking Act 1985 (NSW)). The maximum penalty for this offence is imprisonment for 15 years and/or a fine of $200,000. There is no standard non-parole period.
2. Unauthorised possession of a pistol (two counts) (s 7(1) Firearms Act 1996 (NSW)). The maximum penalty for this offence is imprisonment for 14 years. There is a standard non-parole period of 4 years.
3. Possession of a prohibited weapon (s 7(1) Weapons Prohibition Act 1998 (NSW)). The maximum penalty for this offence is imprisonment for 14 years. There is a standard non-parole period of 5 years.
There were four offences taken into account on a Form 1.
1. Possession of a knife in a public place.
2. Unauthorised possession of a pistol (two offences).
3. Possession of a prohibited weapon.
Three offences were dealt with pursuant to s 166 of the Criminal Procedure Act 1986 (NSW).
1. Possess cannabis (s 10(1) Drug Misuse and Trafficking Act).
2. Possess fireworks (s 93FA(2) Crimes Act 1900 (NSW)).
3. Possess amphetamine (s 10(1) Drug Misuse and Trafficking Act).
Judge Berman SC sentenced the applicant for those offences on 20 April 2017. His Honour imposed an aggregate sentence. The applicant was sentenced to imprisonment for 3 years, commencing 19 April 2017 and expiring 18 April 2020, with a non-parole period of 18 months to expire 18 October 2018. In relation to the offences dealt with pursuant to s 166, convictions were entered but no further penalty was imposed.
The indicative sentences were:
Supply prohibited drug, taking into account the offence of possession of a knife in a public place on a Form 1, imprisonment for 2 years.
Unauthorised possession of a pistol, taking into account a similar offence relating to the black metal pistol on a Form 1, imprisonment with a non-parole period of 9 months with a head sentence of 18 months.
Unauthorised possession of a pistol (the black plastic pistol), taking into account a similar offence relating to a black metal pistol on a Form 1, imprisonment with a non-parole of 9 months and a head sentence of 18 months.
Possession of a prohibited weapon (the extendable baton), taking into account possession of knuckle-dusters on a Form 1, imprisonment with a non-parole period of 9 months and a head sentence of 18 months.
The applicant seeks leave to appeal from the aggregate sentence under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) on the following grounds:
Ground 1 - The sentencing judge erred in that the approach he took assumed that the applicant could not be dealt with by way of an intensive correction order unless exceptional circumstances had been established.
Ground 2 - The sentence imposed upon the applicant is manifestly excessive.
Factual background
Until these offences occurred, the applicant was a person who had no previous criminal convictions. On 8 October 2015 police observed him driving a motor vehicle in Lambton Road, Broadmeadow. When the vehicle stopped at a service station, police spoke to the applicant and conducted a search of both him and the motor vehicle. Police located six clear resealable bags containing a white crystal substance which turned out to be 42.97 grams of methylamphetamine. The applicant said that this was for his own use. Police located a number of clear resealable bags in the back of his pants. Further down his pants police located a larger bag containing a clear substance. The applicant's wallet was searched and a piece of paper with names and numerals on it was located. In the boot of the motor vehicle police located a set of digital scales. The applicant was arrested.
While the applicant was in custody, police went to his home and conducted a search. In the rear laundry they found a set of silver-coloured metal knuckle-dusters. In a home office they found a silver metal pistol which was an imitation firearm but had the appearance of one which was fully functional. Also in the home office police discovered a plastic container with 293.7 grams of cannabis. Inside a locked office cupboard police found two black-coloured metal pistols. These were also imitation firearms but had the appearance of ones which were fully functioning. Inside a cabinet next to a desk in the office police found an extendable baton which is a prohibited weapon.
In a storage room off the home office police found a large box containing assorted fireworks which are considered to be explosives. The applicant did not have authorisation to possess these fireworks. When police searched a garage at the rear of the premises, they discovered a further imitation firearm, this time a black plastic one. It also had the appearance of a fully functioning firearm. Police also discovered a small plastic clear resealable bag containing what turned out to be amphetamine weighing .04 grams.
After his arrest, the applicant spent one night in custody. He pleaded guilty at the Newcastle Local Court on 28 July 2016. It was common ground that the applicant pleaded guilty at the earliest time. The matter initially came before Judge Berman SC on 28 October 2016. On that occasion his Honour adjourned the matter under s 11 of the Crimes (Sentencing Procedure) Act 1999 (NSW) until 20 April 2017. As part of his bail conditions, the applicant was required to undergo urine analysis.
Sentence proceedings
The applicant gave evidence. He agreed with the statement of facts which was placed before his Honour. He said that the drugs were for his own use and to share with other acquaintances that he was mixing with at the time. These other acquaintances consisted of 18 persons with whom the applicant regularly played poker. He agreed that he owned the replica firearms which had been found. He agreed that he had possession of the knuckle-dusters and extendable baton. He said that he received the knuckle-dusters 20 years before, that they had been made by a friend and that it was this friend who had given him the extendable baton. When asked the reason for keeping the knuckle-dusters he said that he did not think about it and that he was fascinated by the extendable baton. He agreed that he had a very significant problem with crystal methamphetamine and that he had been addicted for some time.
The applicant agreed that on 28 October 2016 he told his Honour that he had ceased using methamphetamine and that he had agreed to undertake urine analysis on a monthly basis. When asked how many times he had used the substance, he initially said that he had used it on one occasion because he was devastated by the news that his wife had left him. When he was shown the urine analysis test results, which revealed the presence of methamphetamine on two occasions, i.e. 11 February and 10 March 2017, he said that he could only remember the occasion in March but could not remember using drugs in February.
Early in his reasons his Honour posed this question:
"How did the offender, a man of otherwise good character, who had reached his late forties with no breach of the criminal law end up as a man who committed a number of very serious offences?" (Sentence judgment, 3.5)
His Honour noted a possible explanation which was given by the applicant's wife (who also gave evidence) that the applicant was under considerable emotional and financial stress because of his business dealing with a person who had defrauded him of $10,000 and attacked his car and made threats against him. The applicant's wife attributed his possession of the weapons and firearms to immaturity.
In relation to other aspects of the applicant's subjective case his Honour noted that he was educated to year 11 and had obtained an electrical qualification after leaving school. He was self-employed in a carpet cleaning business. His earnings from the business were supplemented by government benefits.
In a presentence report placed before the court, the applicant said that he started using methamphetamine at 45 years of age. In evidence he said that part of his drug use involved sharing drugs with associates, being the 18 names on the list found in his wallet. Although the document contained numerals, his Honour was not satisfied beyond reasonable doubt that it recorded amounts owed for drugs despite the suspicious circumstances surrounding its discovery. His Honour was prepared to accept that it contained poker scores and that the applicant was not selling drugs to his friends.
His Honour concluded that even if one accepted the applicant's explanation that he was sharing drugs with 18 associates and was not receiving money for them, this still amounted to trafficking to a substantial degree. This was particularly so when regard was had to the applicant's possession of plastic bags and a set of scales. His Honour concluded that:
"This is not some isolated instance of one friend supplying a small quantity of
drugs to another at a nightclub on a single occasion. This is very much at the opposite end of the scale of associates sharing drugs amongst themselves." (Sentence judgment, 4.9 - 5.1)
His Honour next considered the objective seriousness of the other offences. He noted that the pistols in each case were imitation firearms, even though the offence to which the applicant pleaded guilty included real firearms capable of killing. His Honour noted that many more serious weapons than imitation firearms can be included in that offence. His Honour also noted that there was no suggestion that the pistol and the weapons were to be used in the applicant's drug supply activities nor was there any suggestion that they were to be used in any illegal activities at all. All in all his Honour found it difficult to understand why the applicant was in possession of those weapons. Ultimately his Honour concluded that whatever the explanation there was a clear failure on the part of the applicant to appreciate the harm that even imitation firearms and a set of knuckle-dusters and an extendable baton could cause.
His Honour accepted that when the applicant first came before him (28 October 2016), he had a genuine desire to overcome his methamphetamine addiction. The urine analysis which had been carried out during the period of the adjournment indicated the use of drugs on at least two occasions. The applicant explained one lapse as due to his upset and depression when his wife left him but could not explain the second. His Honour regarded these test results as significant.
His Honour further noted the submission by the applicant that because of his subjective case, exceptional circumstances existed which would justify the imposition of a non-custodial sentence. This would involve, as his Honour observed, establishing that a sentence of 2 years or less for both the drug offences and firearms offences should be imposed and that such exceptional circumstances existed. His Honour was not satisfied that the applicant had discharged either onus. In particular, his Honour found that there was nothing exceptional in a person beginning to use drugs, turning to drug supply and then once arrested, having a genuine desire to give up drugs. His Honour regarded that as a relatively common scenario.
His Honour found that even if exceptional circumstances had been established the fact that there were firearms and weapons offences, as well as the supply offence, meant that a sentence of 2 years or less would not reflect the objective gravity of the offending. This is despite the fact that there had been an early plea of guilty and his Honour was prepared to grant a discount of 25 per cent for that reason. His Honour then proceeded to impose the sentence previously set out.
The appeal
Ground 1 - The sentencing judge erred in that the approach he took assumed that the applicant could not be dealt with by way of an intensive correction order unless exceptional circumstances had been established.
This ground of appeal has been made out. In Parente v R [2017] NSWCCA 284 a five judge bench (Macfarlan JA; Hoeben CJ at CL; Leeming JA, Johnson and R A Hulme JJ) had occasion to consider the question of whether there was a sentencing principle to the effect that "drug trafficking in any substantial degree should normally lead to a custodial sentence and that only in exceptional circumstances will a non-custodial sentence be appropriate". That principle was said to have been laid down by this Court in R v Peter Michael Clark (Court of Criminal Appeal (NSW), 15 March 1990, unrep) (Hunt J, with whom Sharpe J agreed, Enderby J dissenting).
Parente v R reviewed the authorities, in particular Robertson v R [2017] NSWCCA 205 (Simpson JA, with whom Harrison and Davies JJ agreed). There Simpson JA said:
"69 What has consistently been stated as a "principle" is (in my opinion), no more than and is properly to be seen as a conclusion drawn from a history of sentencing in respect of relevant offences. Without legislative authority, it could not be more. The decisions upon which the "principle" is based are entitled to significant respect as the result of considered decisions and the experience of sentencing judges and appellate courts. Sentences imposed in the past, in relevantly similar circumstances, can and do provide significant guidance to sentencing judges. But they give rise to no binding precedent: The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39 at [29]. They are not statements of principle. Far less are they prescriptions for sentencing judges. The High Court has, more than once, used the metaphor of a "yardstick" constituted by prior sentencing decisions against which a sentencing judge may measure a proposed sentence: see Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [31]; Hili v The Queen; Jones v The Queen (2010) 242 CLR 52; [2010] HCA 45 at [54]; Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [41]."
In Parente the Court said:
"97 The Clark "principle", whether intended or not, has been given an interpretation in its practical application of dictating the particular path that a sentencing judge must follow. It is inconsistent with the flexibility to be afforded to sentencing judges in the exercise of the sentencing discretion."
Having quoted from Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 at [36] - [38] the Court in Parente said:
"101 Precisely the same reasoning is applicable in respect of the Clark "principle". The "principle", that drug trafficking alone in any substantial degree should normally lead to a custodial sentence and it will only be in exceptional circumstances that a non-custodial sentence will be appropriate was not stated in terms that indicate it was descriptive, that is "an observation of what has been done in past cases". Rather, it was prescriptive; "a statement of what ought to be". Crucially, it had no "statutory root". Further, it was expressed as being of "universal application" subject only to there being identified "exceptional circumstances"; and no such circumstances were identified.
102 The "principle" is also apt to mislead in that once it is conceded, or concluded, that there was "trafficking alone in any substantial degree", it suggests that the offender must demonstrate that there are exceptional circumstances before the sentencing discretion can extend to the imposition of a "non-custodial" sentence. (Non-custodial in the sense of not being one of full-time imprisonment: R v Leslie.)
103 The majority judgment in Hili v The Queen; Jones v The Queen rejected the notion of there being a "norm" in relation to the setting of a non-parole period for federal sentences, concluding in part by saying [44] 534):
"It is wrong to begin from some assumed starting point and then seek to identify 'special circumstances'. Rather, a sentencing judge should determine the length of sentence to be served before a recognisance release order takes effect by reference to, and application of, the principles identified by this Court in Power, Deakin and Bugmy."
104 The Clark "principle", in its practical application, has entailed precisely what the majority criticised in that passage. First, it entails a determination whether there has been "trafficking alone in any substantial degree". If that is the case, then there is an assumed starting point of a full-time custodial sentence unless "exceptional circumstances" can be identified. That is how the issue was approached in the present case. The first issue was conceded. It then became a matter of the applicant having an onus of persuading the sentencing judge that there were "exceptional circumstances".
105 Simpson JA was correct to refer in Robertson v R (at [89]) to the "principle" in Clark as one that "crosses the boundary between identifying the 'unifying principles' to be applied in any sentencing decision and imposing an unlegislated judicially created constraint on the sentencing discretion". She explained (at [90]):
"First, there is no statutory warrant for any such prescription. Second, the prescription fails to define 'drug dealing to a substantial degree'. Third, the prescription fails to define what might constitute 'exceptional circumstances'. Fourth, the prescription fails to identify the source of the exception."
106 For these reasons, the "principle" described in Clark - that drug trafficking alone in any substantial degree should normally lead to a custodial sentence and it will only be in exceptional circumstances that a non-custodial sentence will be appropriate - should no longer be applied in sentencing for drug supply cases."
Given the success of the applicant on this ground of appeal, it is not necessary to consider the second ground which asserted that the sentence imposed was manifestly excessive. The submissions in support of that ground, however, have been taken into account as were counsel's oral submissions on the issue of resentence.
As was pointed out by the plurality (French CJ, Hayne, Bell and Keane JJ) in Kentwell v The Queen [2014] HCA 37; 252 CLR 601:
"42 … When a judge acts upon wrong principle, allows extraneous or irrelevant matters to guide or affect the determination, mistakes the facts or does not take into account some material consideration, the Court of Criminal Appeal does not assess whether and to what degree the error influenced the outcome. The discretion in such a case has miscarried and it is the duty of the Court of Criminal Appeal to exercise the discretion afresh taking into account the purposes of sentencing and the factors that the Sentencing Act, and any other Act or rule of law, require or permit. As sentencing is a discretionary judgment that does not yield a single correct result, it follows that a range of sentences in a given case may be said to be "warranted in law". A sentence that happens to be within the range but that has been imposed as the result of a legally flawed determination is not "warranted in law" unless, in the exercise of its independent discretion, the Court of Criminal Appeal determines that it is the appropriate sentence for the offender and the offence. …"
In follows that the resentencing of the applicant should be approached in a manner consistent with general principles of sentencing. Nevertheless, there are some matters that should be emphasised. It is necessary to be mindful of the purposes of sentencing listed in s 3A of the Crimes (Sentencing Procedure) Act which include "(b) to prevent crime by deterring the offender and other persons from committing similar offences" and "(c) to protect the community from the offender". It should also be noted that no challenge has been made to his Honour's fact finding and accordingly, the re-exercise of the sentencing discretion by this Court should proceed on the basis of those facts.
There are important yardsticks to take into account, in particular, the maximum sentence for the offences and in the case of some of the weapons offences, the existence of a standard non-parole period. The maximum sentence for the drug trafficking offence is 15 years and for the weapon offences, 14 years with standard non-parole periods of 4 and 5 years. Although his Honour was not satisfied that the applicant had received any money for his drug supply, he concluded that it did involve drug trafficking to a substantial degree over a substantial period of time. The business like nature of the supply is evident from the finding of the plastic bags and the set of scales. Although the weapon offences were towards the lower end of offences of that kind they remain, as his Honour found, serious offences for which the applicant provided no satisfactory explanation. The same can be said of the Form 1 offences. Given the applicant's failure to remain drug free during the October 2016 - April 2017 period, his prospects of rehabilitation and becoming drug free can only be regarded as uncertain at best. This consideration also impacts upon the issue of the protection of the community from serious criminal activity such as is involved in drug supply.
It is true that the applicant has a relatively strong subjective case. He did not commence his drug supply activities until he became addicted at the age of 45. Thereafter, however, as his Honour pointed out, he followed a regrettably familiar path of moving from using drugs to supplying drugs and experiencing difficulties in becoming and remaining drug free.
Taking all those matters into account on re-sentence, I am satisfied that having considered all of the possible alternatives that no penalty other than a custodial sentence is appropriate. Having regard to the seriousness of the offending, and the guideposts provided by the legislature and in particular, the principles of general deterrence and to a lesser extent personal deterrence, I am not satisfied that a lesser sentence than that which his Honour imposed is warranted in law.
Accordingly, the orders which I propose are as follows:
1. Leave to appeal granted.
2. The appeal is dismissed.
PRICE J: I agree with Hoeben CJ at CL.
FULLERTON J: I agree with Hoeben CJ at CL.
[3]
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: 19 February 2018