Stephen Leslie Newton v R

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985

Douglas v R [2006] NSWCCA 94 Hudson v R [2009] NSWCCA 59 Lowe v The Queen (1994) 154 CLR 606 Postiglione v The Queen (1996-1997) 189 CLR 295 R v Burns [2007] NSWCCA 228 R v cHAN [1999] nswcca 103 CASES CITED : R v Giang [2005] NSWCCA 387 R v Hoon [2000] NSWCCA 137 R v Mastronardi [2000] NSWCCA 12; (2000) 111 A Crim R 306 R v Rushby [1999] NSWCCA 104 R v Smiroldo [2000] NSWCCA 120; (2000) 112 A Crim R 47 R v Swan [2006] NSWCCA 47 R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 at [172] Tuifa v R [2008] NSWCCA 224

PARTIES: Stephen Leslie NEWTON Regina

COUNSEL: W Hunt (Applicant) P Leask (Crown)

SOLICITORS: S O'Connor (Legal Aid Commission) S Kavanagh (Solicitor for Public Prosecutions)

IN THE COURT OF CRIMINAL APPEAL 2008/7683

GROVE J HOWIE J RA HULME J

29 April 2009 Stephen Leslie NEWTON v R Judgment

3 R A HULME J: The applicant seeks leave to appeal against the sentence imposed upon him by Flannery DCJ (the sentencing judge) for an offence of on-going supply of a prohibited drug for financial or material reward. The maximum penalty provided by s 25A(1) of the Drugs Misuse and Trafficking Act 1985 for this offence is imprisonment for 20 years and/or a fine of 3500 penalty units. 4 The applicant was sentenced to imprisonment for 1 year 8 months with a non-parole period of 12 months. The sentence was specified to commence on 4 August 2008 and so he will be released on parole on the expiration of the non-parole period on 3 August 2009. In sentencing the applicant for this offence, and at his request, the judge took into account his guilt in respect of two offences of supplying a prohibited drug and one of possessing a prohibited drug. 5 On an earlier occasion the sentencing judge had sentenced the applicant's co-offender, Mr Lopeti Vulaono. He was sentenced for the same offence of on-going supply of a prohibited drug and he asked that his guilt of two offences of supplying a prohibited drug and one of possessing a prohibited weapon be taken into account. The judge imposed a sentence of 18 months with a non-parole period of 6 months 6 The facts of the matter were that in August 2007 a controlled operation was authorised to investigate a syndicate involved in the supply of drugs in the Sydney metropolitan area. Police identified part of this syndicate supplying prohibited drugs, primarily cocaine and heroin, in Hurlstone Park and surrounding suburbs. It was established that a particular motor vehicle and mobile phone were being used. There were two males conducting a midweek supply run and a different set of males conducting a supply run on weekends. 7 This was the context in which on eight occasions between 5 September and 4 October 2007 an undercover operative purchased drugs from the applicant and his co-offender. On each occasion the amount supplied was less than 0.3 of a gram and payment of $80 was received. The total weight of the drug supplied in the eight transactions was 1.41 grams. 8 The facts concerning the offences of supplying a prohibited drug on the Form 1 document were that on 31 August 2007 and 26 October 2007, an undercover operative organised to meet the offender and his co-offender to purchase cocaine. On each occasion an amount less than the small quantity prescribed for this drug was supplied. The possession offence on the Form 1 concerned a small quantity of cannabis found in the applicant's bedroom when his house was searched on 16 January 2008. 9 The applicant was 35 years at the time of the offences and had no criminal antecedents. He had spent fifteen days in custody before his release to bail. 10 He gave evidence in the sentence proceedings. He had an alcoholic father who apparently was abusive towards his mother. The father, with whom the applicant was living at the time of sentence, was supportive of the applicant although he is now in poor health. The applicant had been particularly close to his mother who died in 1995. 11 The applicant had been involved in event management including work on the Olympic and Commonwealth Games in Australia, and on contract in Qatar for the Asian Games. He had untaken volunteer work. 12 The applicant gave evidence that he commenced using cannabis in 2002 and was using it at the time of the offences but had subsequently ceased using it. Since his release to bail after 15 days in custody the applicant had undertaken work in commercials and as an extra in a television series. He had also undertaken short-term work with the Department of Housing in a call centre. 13 The applicant said that he voluntarily withdrew from the criminal enterprise about two months before his arrest. He gave evidence about his involvement in the supply activities that: "I think that going forward it was something that was completely against my beliefs in so far as getting involved with exactly what I was up to and it tended to eat away at my conscience a bit." 14 The applicant also relied on the report of a psychologist, Ms Anna Maria DeSanta Brigida. She found the applicant evidenced both sexual ambiguity and identity confusion, which she believed might have explained how the applicant could be (as he said in evidence) coerced into aiding two men in the sale of an illicit substance. 15 The sentencing judge accepted a submission made by the applicant's counsel that he was emotionally immature at the time of the commission of the offence. She found that the applicant was most unlikely to re-offend, was remorseful and had good prospects for rehabilitation. 16 The sentencing judge also accepted a submission on behalf of the applicant that while any offence against s 25A was serious, this offence was in the low range of objective seriousness having regard to the small quantities of the drug supplied, the total amount of money that changed hands was $640, that the drug was supplied to an undercover police officer and so not disseminated into the community, and that applicant's role was at a low level compared to others. 17 The applicant relies upon two grounds of appeal, having been granted leave at the hearing to add a second ground. Those grounds are: 1 The applicant has a justifiable sense of grievance by virtue of the disparity between the sentences imposed upon him and his co-offender 2 The learned sentencing judge erred by misdirecting herself as to the correct maximum penalty for the subject offence 18 It is appropriate to deal with the second ground before considering the parity issue. 19 The maximum penalty for an offence against s 25A(1), insofar as it concerns imprisonment, is twenty years. The sentencing judge said at an early stage of her remarks:

"The maximum penalty for the offence is twenty five years" 20 It was submitted on behalf of the applicant that her Honour must, as a consequence of this error, have had regard to an erroneous maximum penalty as a guidepost against which to assess the appropriate sentence to impose. The submission proceeded to contend that the sentencing proceedings miscarried in a fundamental way and a different, less severe sentence is warranted in law. 21 Error in having regard to an incorrect maximum penalty for an offence can, but does not necessarily, lead to the result that this Court will allow an appeal and re-sentence: see the discussion of relevant authorities in the judgment of James J in Smith v R [2007] NSWCCA 138 at [27] - [37]. 22 In this case, however, I am satisfied that the statement I have quoted as to the wrong maximum penalty had no material bearing upon the sentence that was imposed. It may be characterised as an inadvertent misstatement, or a slip, at worst. I say that for these reasons. 23 First, when her Honour earlier sentenced the co-offender she referred correctly to the applicable maximum penalty under s 25A(1). That was on 27 June 2008. At the commencement of the proceedings on the day the applicant was sentenced on 19 August 2008, the solicitor appearing for the Crown correctly informed her Honour of the maximum penalty. In those circumstances, I think it most unlikely that sentencing judge simply forgot and took into account a maximum of 25 years, rather than 20 years, in her assessment of the appropriate sentence to pass. 24 Secondly, the reference by her Honour to the maximum penalty appeared at the beginning of her sentencing remarks and thereafter there was no further reference to it: Cf Baxter v R [2007] NSWCCA 237 where the sentencing judge repeated a reference to the incorrect maximum penalty in the context of appraising the seriousness of the applicant's conduct. 25 Thirdly, her Honour accepted a submission that the objective seriousness of the offence was in the "low range" and the sentence passed was a lenient one, a matter to which I will return. If the sentence was arguably excessive in itself, which it is not contended, then there might be a question as to whether her Honour was influenced by the wrong maximum penalty. However, that is not the case. 26 Fourthly, an overall view of the sentencing remarks makes plain that her Honour was focussed more upon the sentence imposed upon the co-offender so as to achieve due proportion as between the two sentences rather than being strongly influenced by the maximum penalty. She distinguished the sentences she imposed upon them by reference to their different personal circumstances. There is no suggestion that she imposed a longer sentence upon the applicant that the co-offender because of a different maximum penalty. 27 I would reject Ground 2.

28 As to Ground 1, the disparity complained of is in both the two-month difference in the head sentences and the six-month difference in the non-parole periods. 29 The essence of the argument presented on behalf of the applicant was that there were two distinctions of significance between his case and that of the co-offender Vulaono. The first worked in the co-offender's favour; he having been 18 years old at the time of the offences whereas the applicant was aged 35. Both were found by the judge to have been immature but this was markedly more so in the case of Vulaono. The second matter was that the applicant had voluntarily withdrawn from the criminal enterprise some two months before his arrest. This, it was submitted, operated in the applicant's favour. Thus, it was submitted on behalf of the applicant: Although it is accepted that the sentencing judge was entitled to have particular regard to Vulaono's relative youth, the matters taken into consideration by the sentencing judge did not justify the marked disparity in sentences between the applicant and Vulaono. This is particularly so when the applicant had the benefit of the sentencing judge's acceptance of his voluntary cessation of criminal activity, a feature not apparently disclosed in Vulaono's case. It is submitted the distinction in the age of the two offenders alone is not so significant as to warrant the disparity in sentences. The sentence of the applicant should be reduced to relieve the marked disparities identified ( Lowe v The Queen (1994) 154 CLR 606) See also Tuifa v R [2008] NSWCCA 224. 30 Given that the complaint of disparity in this case arises in relation to sentences imposed upon different offenders by the same judge, this Court should be cautious before determining that one of the offenders has a justifiable sense of grievance just because of the different sentencing outcomes: see R v Swan [2006] NSWCCA 47 per Barr and Howie JJ at [71]. In the same case it was said in the preceding paragraph: In our opinion although there was a marked disparity in the sentence imposed between the applicant and Roddom, that disparity was justified, or at least it was within the sentencing judge's discretion to determine that the sentences should differ to the degree that they do. If the applicant has a sense of grievance with the result, it is not justifiable where it is the result of the proper application of sentencing principles to the facts of the matter as found by the Judge. 31 The sentencing judge was alive to the issue of parity. She noted that the primary offence was the same and the facts relating to it were almost identical. Both offenders had no previous convictions and what could be described as a most favourable subjective case. The sentencing judge noted the sentence she had passed in respect of Vulaono and noted that his "youth was a significant reason why the sentence I imposed was such a lenient one". A submission had been made on the applicant's behalf that whilst the chronological difference in age between the two offenders was significant, the difference between them in terms of emotional maturity was not so great. She accepted that the applicant was emotionally immature at the time of the offence. She also accepted that the offender had voluntarily withdrawn from drug supply activity prior to his arrest for the reason that he had given, that is that he was not comfortable continuing to commit offences, knowing that it was not morally right. 32 The sentencing judge was referred to the judgment of Harrison J, with whom Spigelman CJ and Simpson J agreed, in R v Burns [2007] NSWCCA 228, where his Honour said on the subject of voluntary cessation of criminal activity: 29 The respondent cited authority in support of the proposition that voluntary cessation of what is, typically, an ongoing activity, is a significant factor in mitigation for a number of reasons. See, for example, R v Lopez [1999] NSWCCA 245, R v Bacon (2000) 120 A Crim R 28 and R v Hutton [2004] NSWCCA 60. These factors are as follows. First, there is a public policy to be served in providing encouragement to offenders such as the respondent to cease their criminal activities. Secondly, specific deterrence is a matter to be given little or no weight. Thirdly, it provides strong evidence of remorse, contrition and rehabilitation. Finally, in some cases (although not the present case) it may support the proposition that the offence was committed as a result of need rather than greed.

33 Nevertheless, despite accepting that this aspect operated in the applicant's favour and accepting his emotional immaturity at the time of the offence, her Honour stated, "there must be some difference in the sentences I impose on this offender, having regard to the fact that Mr Vulaono was eighteen years of age at the time of its commission". 34 Counsel for the applicant relies upon what was said by the High Court of Australia in Postiglione v The Queen (1996-1997) 189 CLR 295. Blanch J recently summarised what was said in the various judgments in that case in Hudson v R [2009] NSWCCA 59:

14 In Postiglione v The Queen (1996-1997) 189 CLR 295 at 301 in the joint judgment of Dawson and Gaudron JJ it was said: "However, the parity principle, as identified and expounded in Lowe v The Queen , recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to 'a justifiable sense of grievance'."

15 At page 309 McHugh J said: "If a judge wrongly fails to give effect to the parity principle, an appellate court will intervene to correct what is an error in sentencing principle. In Lowe v The Queen , Gibbs CJ, with whom Wilson J agreed, said that an appellate court should intervene where 'the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done'. Mason J stated that an appellate court is entitled to intervene when there is a manifest discrepancy such as to engender a justifiable sense of grievance. Dawson J, with whom Wilson J also agreed, was of the view that '[t]he difference between the sentences must be manifestly excessive and call for the intervention of an appellate court in the interests of justice'."

16 At page 323 Gummow J said: "The principle for which Lowe is authority appears to be that the Court of Criminal Appeal intervenes where the difference between the two sentences is manifestly excessive and such as to engender a justifiable sense of grievance by giving the appearance, in the mind of an objective observer, that justice has not been done. In R v Taudevin, Callaway JA said, in a passage with which I agree: 'The important words are 'manifestly', 'justifiable' and 'objective'. There is much to be said for the view that all three requirements are variations on the same theme, ie that only a manifest discrepancy in the sense of a difference that is clearly excessive will satisfy the other two requirements."

17 And at page 335 Kirby J said: "The removal of serious and unjustifiable disparities in the treatment of like cases is a legitimate goal of the administration of criminal justice." 35 Whilst the terminology used might be slightly different it is apparent that the judges were of one, or at least of similar, mind. To adopt the terminology of Kirby J, the question raised by the applicant in this case could be posed as whether there is a "serious and unjustifiable disparity" between the treatment of the cases of the applicant and Vulaono. 36 In my view the decision of the sentencing judge to distinguish between the cases of the two offenders on the basis of the significant difference in age was one that was open to her. 37 In R v Rushby [1999] NSWCCA 104 the offenders in question were aged 16 years 3 months and 18 years 10 months. Barr J (at [24]) regarded that difference as "large and significant". In Douglas v R [2006] NSWCCA 94 the offenders were "almost 21" as opposed to 17 years 1 month. Latham J regarded that difference as of "some significance". 38 In R v Mastronardi [2000] NSWCCA 12; (2000) 111 A Crim R 306, the sentencing judge had dealt with a man who was aged 27 at the time of offending as though comparable to a young person. Sully J said: 20 In my opinion, and with respect to his Honour, that assessment was fundamentally misconceived. There was, so far as I can see, no evidence that the respondent was, in a precise sense, mentally deficient or retarded. I do not believe that the evidence shows, in any credibly particular sense, that the respondent was notably immature for his age; but, even if the contrary be accepted, there is a world of difference between the proposition that a 27 year old man is immature, and the proposition that the same man is so emotionally retarded that he is fairly to be regarded as a young person in the sense contemplated by the particular authorities, - GDP (1991) 53 A Crim R 112, and Lattouf ; unreported, 12 December 1996, Court of Criminal Appeal, - to which his Honour expressly refers 39 In the same way there is, in my view, a "world of difference" between a 35-year-old man, albeit one regarded by the sentencing judge as "emotionally immature" and an 18 year old, one who had only just past his 18th birthday and who was described in a Pre Sentence Report as demonstrating "a high degree of naivety". I note that the first of the offences on Vulaono's Form 1 was committed just prior to his 18th birthday. The sentencing judge also expressed the view about his offending conduct as "very much a product of his immaturity". She concluded, as a consequence that she did not consider that "the ordinary principles involved in the sentencing of young people need be put to one side". She had earlier referred to those principles as involving emphasis upon rehabilitation and general deterrence having less significance. 40 The sentences imposed upon both the applicant and the co-offender were lenient. As noted earlier, the sentencing judge found that in the case of the applicant the objective seriousness of the offence was in the "low range". In making that finding she took into account, amongst other things, that the quantity of the drug involved on each occasion was less than the small quantity applicable to the drug cocaine. I should not be taken to suggest that the quantity of drug was irrelevant. However it needs to be borne in mind in relation to the offence of on-going supply of prohibited drugs that the offence was created to more appropriately deal with those involved in persistent drug supply where the actual quantities supplied, often small, were not the true measure of the level of criminality: see, for example, R v Smiroldo [2000] NSWCCA 120; (2000) 112 A Crim R 47; R v Hoon [2000] NSWCCA 137; R v Giang [2005] NSWCCA 387. 41 A noteworthy feature of this case was that whilst the offence in s 25A is made out upon proof of three or more supplies within 30 consecutive days, here there were eight supplies within such a period. 42 Another feature taken into account by the sentencing judge in her assessment of objective seriousness was that the drugs were supplied to an undercover police operative and not disseminated into the community. That is a relevant consideration but it is of minimal significance. The applicant had the intention to supply and did so on the understanding that the drugs would find their way into the community. The fact that they did not was not through his doing: see R v Chan [1999] NSWCCA 103 per Smart AJ at [21], approved in R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 at [172]. 43 The voluntary cessation of drug supply activity was a factor taken into account in the applicant's favour in the manner earlier referred to. I note, however, that in respect of both offenders the evidence was that the last drug transaction occurred on 26 October 2007. There was no evidence of the commission of any offence by either of them up until the time they were both arrested on 16 January 2008. Be that as it may, I am of the view that it was open to the sentencing judge to distinguish between the two offenders in terms of the length of both the total term and the non-parole periods in the manner in which she did. I am not of the view that there is a "serious and unjustifiable disparity" when regard is had to the legitimate weight given by the sentencing judge to the youthfulness of the co-offender. The voluntary cessation factor in the applicant's favour did not call for a sentence the same as that imposed upon Vulaono, or a sentence that was less than that which was in fact imposed. 44 I would reject Ground 1. 45 I would grant leave to appeal but dismiss the appeal.

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