Taylor v R

Court of Criminal Appeal (NSW)|2018-10-08|Before: White JA, Walton J, Wilson J

Judgment

WHITE JA: I have had the advantage of reading in draft the reasons for judgment of Wilson J. I agree with her Honour's reasons.
Wilson J's reasons at [52]-[56] on the purposes of remarks on sentence set out important considerations for an appellate court to bear in mind when called on to consider whether a sentencing judge's omission to refer to a particular consideration under s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) connotes error. Whether or not such a conclusion can be drawn will depend on the circumstances of each case, including whether the remarks on sentence are given ex tempore, as they were in this case.
In this case, for the reasons Wilson J gives, the fact that the sentencing judge did not expressly identify as a mitigating factor that the offender did not have a significant record of previous convictions, does not connote that the sentencing judge did not take this mitigating factor into account.

If granted leave, the applicant advances two grounds of appeal. They are: 1. "S21A(3)(e) of the Crimes Sentencing Procedure Act 1999, that is the Court did not take into account that the applicant did not have any record (or any significant record) of previous convictions, that is as opposed to De Simoni principles to which lengthy consideration was given. 2. The Court gave insufficient weight to the personal particulars of the applicant, including that he was of limited intellect."

The Proceedings before the District Court

The matter came before the sentencing judge on 24 March 2017. On that date the evidence for the Crown and the applicant was taken, and submissions heard. Although both parties had submitted that the only possible sentence was a full-time custodial sentence, at the conclusion of the proceedings his Honour suggested that the matter be adjourned to permit the applicant to be assessed as to suitability for admission to a drug rehabilitation facility. The sentence was adjourned to 9 June 2017. Ultimately, the matter was not dealt with until 1 September 2017.
On that date, there was a report available [although never formally tendered] which was said in discussion between the Bench and Bar Table to indicate that the applicant was unsuitable for rehabilitation, due to the firearms offences before the court.
Sentence was imposed that day.

The Crown Case

Two statements of fact were before the sentencing judge, one reflecting the 2013 offences, and the second the 2015 offences. No issue is taken with the facts found by the court, which were in accordance with the Crown's statement of them.
On 30 October 2013 a search warrant was executed at the applicant's home at Doonside in suburban Sydney. The occupants, being the applicant and his girlfriend, did not give entry to the premises, so it was forced by police officers.
The applicant was arrested and searched, with a sum of $1075 found on his person. He was removed to a nearby police station, with the ensuing search conducted in the presence of his girlfriend.
During the search a safe was opened using a key found at the premises. The safe contained an amount of $21,205 in cash, together with 67.25 grams of methylamphetamine contained in three separate clear containers, and various papers in the applicant's name.
Other, smaller, quantities of methylamphetamine were found in various locations throughout the premises. The total amount of the drug seized from the house was 109.5 grams (count 1 - wrongly particularised on the indictment as 109.71, grams, although the sentencing judge proceeded to sentence citing the correct amount of the drug). All but about 35 grams had a purity ranging between 61 - 70%; with the balance very impure, at about 1%. The Crown relied upon the deeming provision at s 29 of the Drug Misuse and Trafficking Act 1985.
A mobile phone in the applicant's possession on arrest was analysed and a number of messages consistent with drug supply activity were noted.
Also found at the applicant's home was a 6mm Airsoft Chinese model G.1 repeating air pistol, located with a magazine on a television cabinet. Although it was not in working order, the gun is a firearm, and a pistol as defined by the Firearms Act 1996 (NSW), which the applicant had no authority to have in his possession (count 2).
A number of other items found during the search formed the basis of further charges, that were before the sentencing court on a Form 1 document, and taken into account when sentence was imposed for count 1. A total amount of $25,405 was reflected by a charge of knowingly dealing with the proceeds of crime; seven different restricted drugs were found, each charged as an offence of possession of a restricted substance; various items of property including a quantity of cigarettes and a quantity of perfume, believed to be illegally obtained, were reflected by four charges of goods in custody. A gaming machine was found, that the applicant was not licensed to possess, and was reflected by a charge of possessing a gaming machine without a licence. There was also a charge that related to an offence committed earlier in time, of dealing with the suspected proceeds of crime, relating to the applicant's possession of a sum of $5,460 on 29 July 2013.
Various weapons were also found by police at the applicant's home, and charges arising from his possession of these items were taken into account when sentence was imposed for count 2. Those charges were possessing a prohibited weapon (a set of knuckle-dusters), possessing a firearm part (a Lithgow manufacture Austeyr rifle barrel), possessing ammunition (a quantity of air pellets), and possessing a quantity of fireworks.
On 1 October 2015, police officers attended the applicant's home, now at Blacktown, to serve him with a Firearms Prohibition Order. Their attendance there resulted in a search of the applicant's car, during which a large number of illicit items were found. The resultant charges were before the sentencing court either on indictment, on a Form 1 document taken into account against sentence for count 8, or on a certificate pursuant to s 166 of the Criminal Procedure Act 1986 (NSW).
The following items were found in the applicant's car and home: 1. a total quantity of 212.3 grams of methylamphetamine, reflected by count 3 on the indictment before the sentencing court; 2. a telescoping expandable baton, being a prohibited weapon (and reflected by count 4); 3. a NSW Police Force baton, being a prohibited weapon (count 5); 4. a quantity of 3.71 grams of 3,4-methylenedioxymethylamphetamine (count 6); 5. an amount of 2.73 grams of Buprenorphine (count 7); 6. an amount of 14.54 grams of 4-Bromo-2,5-dimethoxyphenethylamine (count 8) (with the sentencing judge correctly sentencing the applicant for his possession of 14.5 grams, despite a typographical error in the statement of facts); 7. small amounts of cannabis leaf, gamma butyrolacetone, butanediol, and methandionone, (four counts of possess prohibited drug, taken into account on the Form 1 document when sentence was imposed for count 8); 8. the sum of $9,925 in cash, (an offence of knowingly dealing with the proceeds of crime, on the Form 1 document); 9. two resealable plastic bags containing a total of 3.43 grams of methylamphetamine (count 3);
Items commonly connected with drug supply, such as multiple mobile telephones, digital scales, a notebook containing records of names and amounts - a "tick list", and resealable plastic bags, were located.
When he was interviewed, the applicant denied any association with the car parked in his driveway in which many of the drugs were located, claiming some unknown person had left the car there. He declined to comment on those items found in his house.
The Crown tendered the applicant's criminal history, which was limited. The applicant had been dealt with in February 2005 for two charges of possessing a prohibited drug but, pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999, the sentencing court did not move to conviction, and the charges were dismissed unconditionally. In October 2014, he was convicted and fined with respect to two counts of having goods in custody. There were a number of driving offences from 2010 to 2013, including various entries for driving when his licence was suspended.

The Applicant's Case in the District Court

Although there had been an issue earlier in the proceedings (when the matter was before another judge) as to the tender by the applicant of a psychological report in his case on sentence, ultimately, the only evidence called was his oral evidence.
The applicant deposed to the sentencing judge on 24 March 2017 that his intention was to enter a drug rehabilitation facility as soon as he was released from custody, so that he could address his drug addiction prior to doing anything else that was wrong. He asserted that he was confident of success in attending any future rehabilitation programme because, differently to his three previous admissions to such services, he was now aware of the consequences of "mucking up", being a return to prison, and the disappointment of his family.
The applicant attributed his commission of the crimes before the sentencing court to his drug addiction, asserting that he had been using methylamphetamine at the relevant times. He said that he had in the past seen a psychologist and been told that he had a major drug problem and depression, although no proper diagnosis had been made.
He said that he had not previously been gaoled, and his experience of prison, particularly as the father of a son he now rarely saw, was "killing" him. Referring to his 12 year old son, he said that he had distanced himself from the boy for the three years prior to his arrest, but now wanted to be a good father. He had been in regular telephone contact with his son since arrest, although he did not know what class he was in at school.
The applicant said that he alone of his family members was a drug user, and his father in particular was ashamed of him for his involvement with illicit drugs. Notwithstanding that, his father, whom the applicant said was ill with cancer at the time of sentence, was prepared to offer him work as a concreter, or on a farm owned by the family.
The applicant told the court that, although he could neither read nor write, he had been employed for most of his [adult] life, as a freight handler for a freighting company, having held that position for some 12 years. His position was a responsible one, supervising the organisation of work in his section. The applicant lost the job because of his drug use.
He had undertaken some courses whilst held on remand, including a barista course and a Positive Lifestyle course, but had been unable to complete an English course because of a move between gaols, and had had no access to drug rehabilitation courses.
The applicant denied having used drugs since his admission to custody, although he had been dealt with institutionally for failing to provide a sample.

The Conclusions of the Sentencing Judge

The sentencing judge noted that the (then) 32 year old applicant was to be sentenced for "a veritable raft" of offences. He set out the facts of the offences, consistent with the statements of fact tendered by the Crown, and noted the applicable statutory penalties.
His Honour referred to the pleas entered by the applicant for the 2013 offences on the day fixed for his trial, as entered late, although there remained a degree of utilitarian value to the pleas, to be recognised by a discount in the range of 10 - 12.5% on the sentences that would otherwise have been imposed. The applicant had entered early pleas of guilty to the 2015 offences, and was granted a 25% discount on sentence to recognise the greater utilitarian value of the pre-committal pleas.
Referring to the applicant's testimony, the sentencing judge noted his evidence of having led an "exemplary life" prior to events connected with his drug use. His Honour observed that, "[…] at some stage in his life, having been introduced to drugs at an early stage, he has descended into what can only be presumed to have been a very substantial drug habit […and…] falls within a well-recognised categorisation of persons who, in order to fund their own addiction, themselves become suppliers."
His Honour regarded the applicant's involvement in the supply of drugs as "fairly substantial", offering a "veritable available pharmacy" for supply, and involving amounts of methylamphetamine in particular which took the matter well beyond "paying for one's own addiction". The drug offences from both 2013 and 2015 were concluded to fall within the mid-range of objective seriousness.
Favourably to the applicant, the sentencing judge declined to conclude that the weapons in his possession were part of an "armoury of defensive capabilities of somebody involved in trafficking to a substantial degree". Sentence was imposed on the basis that there was no connection between the applicant's possession of weapons and his activities as a supplier of illegal drugs.
The sentencing judge concluded that the applicant's substantial involvement in crime had to be "tempered" by the favourable impression the applicant gave in his evidence on sentence. The court referred to the applicant's history prior to about September 2010, using the word "exemplary" in that connection. It was accepted by the court that the applicant had gained insight into his criminal lifestyle, and the negative consequences of the choices he had formerly made (including his inability to support his sick father, and his young son) and resolved to undertake rehabilitation. The expressions of remorse from the applicant were concluded to be genuine, and his prospects for the future regarded as reasonable, if guarded. Later, when referring to a finding of special circumstances pursuant to s 44 of the Crimes (Sentencing Procedure) Act 1999 made by the court, his Honour described the applicant's prospects of rehabilitation as "optimistic".
Aggregate sentences were imposed, as noted above. Although standard non-parole periods ("SNPP") applied to counts 2, 4, and 5, no indicative NPP was specified by the sentencing judge. No complaint is made about that aspect of the matter which is, in any event, addressed by s 54B(7) of the Crimes (Sentencing Procedure) Act; see also Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36 at [214] - [218]; JM v R [2014] NSWCCA 297 at [40(15)].
Sentence was backdated, expressly for the purpose of taking into account all periods of pre-sentence custody served by the applicant.

Ground 1: "S21A(3)(e) of the Crimes Sentencing Procedure Act 1999, that is the Court did not take into account that the applicant did not have any record (or any significant record) of previous convictions, that is as opposed to De Simoni principles to which lengthy consideration was given"

In his brief written submissions in support of this proposed ground, the applicant argued that, "[…] it is apparent that His Honour did not take into account that the offender does not have any record (or any significant record) of prior convictions. This is as opposed to the raising of De-Simoni principles to which lengthy consideration was given".
The reference to "any record (or any significant record) of prior convictions" is derived from s 21A(3)(e) of the Crimes (Sentencing Procedure) Act 1999, which provides for a mitigating factor in those terms to be taken into account on sentence. The reference to "De-Simoni principles" is to the decision of R v De Simoni [1981] HCA 31; (1981) 147 CLR 383, which holds that a sentencing judge, in imposing sentence, may not have regard to an aggravating feature referred to in evidence but not charged in the indictment.
The latter issue is quickly dealt with since it appears to have been raised only insofar as it may provide a comparison in the level of attention given by the sentencing judge to the de Simoni issue, and to the question of the applicant's antecedents. It has no other significance.
Even as a comparator, the reference to de Simoni is of no importance, not least because no "lengthy consideration" was given by the sentencing judge to the principle. His Honour referred only in passing to the decision, apparently to qualify his use of the term "ongoing supply" when noting the applicant's lengthy involvement with the supply of drugs. Having referred to the applicant's commission of the 2013 offences, and his release to bail after having been charged, the sentencing judge said, Why in such circumstances one then returns to a very substantial involvement in what must have been ongoing supply, and in making those adjectival descriptions I am very conscious of the specific offences for which he is charged, I steadfastly bear in mind the High Court's observations in R v De Simoni and I do not want my remarks to be somehow misinterpreted as endeavouring to deal with him for offences other than the offences for which he is charged.
That is the only reference in the remarks on sentence to R v De Simoni, and the only reference to the point of principle the decision established. That reference is not connected to, and sheds no light upon, the way in which the sentencing judge dealt with the applicant's antecedents for the purposes of s 21A(3)(e).
The applicant complains that the sentencing judge failed to take into account his limited criminal history in determining the sentence to be imposed, as s 21A(3)(e) required him to do. The applicant seeks to make good that argument by pointing to the absence of a specific reference to the applicant's criminal history, or to s 21A(3)(e) itself in terms.
In oral submissions to this Court, counsel for the applicant submitted that the applicant's relatively insignificant criminal record was an important consideration, in circumstances where the applicant had "little else to put up to the court" on sentence. Although the court clearly had regard to the applicant's formerly "exemplary" life, the applicant submits that this conclusion counts against s 21A(3)(f) of the Crimes (Sentencing Procedure) Act, that the applicant was of good character, and cannot be taken as pointing to his Honour's cognisance of the applicant's insignificant criminal history.
The Crown, conceding that the applicant's criminal history was not one of any significance, submits that, whilst the sentencing judge did not in terms refer to s 21A(3)(e), or set out the details of the applicant's criminal antecedents in his remarks, he was not asked to do so. Further, reading the remarks as a whole, it is argued that the applicant was given the benefit of a conclusion that he was a person without a relevant criminal past. This is evident in the conclusion of the sentencing judge that the applicant's life had been an exemplary one, prior to the escalation of his involvement in drugs.
Having considered the submissions of the parties, I am unable to accept that error is established by the absence of a direct reference in the sentencing judgement to s 21A(3)(e), to the wording of the section, or to the applicant's criminal history.
It should not be necessary for a sentencing judge to structure a sentence judgment as a checklist, in which statutory or common law principles of sentencing are enumerated and then ticked off as having been applied, to avoid the prospect of an "armchair appeal" at a later stage seizing upon any missing reference as evidence of error (see Darwiche v R; El-Zeyat v R; Aouad v R; Osman v R [2011] NSWCCA 62; reported (2011) 209 A Crim R 424 at [170]).
It is important to bear in mind the multiple purposes of a court in giving a sentence judgment, purposes which all point to a requirement for transparency, but not for mere recitation of law and principle. The offender and the Crown must both be enabled to understand how the sentencing judge arrived at the sentence ultimately imposed, and to ascertain whether there has been some misapplication of fact or principle, or some other error, such that there may be an available appeal on a matter of substance. Any appellate court considering whether such error has occurred must be able to determine a claim of error by considering the sentence judgment.
In this regard, the basis of the requirement for reasons in a sentence judgment does not greatly differ from that applicable to any judgment of any court. In criminal cases however, sentencing remarks serve other, important, purposes and, to fulfil those purposes, such judgments must be intelligible to the lay listener or reader, and accessible to the community. The community, a term which encompasses those who have a direct interest in a particular crime, such as any victim of it, have a legitimate interest in the work of the courts, and sentencing judgments are one means by which the community may be informed of that work.
As an overall statement, a sentence judgment in a criminal case must make it clear to those directly involved, and to the community more broadly, why the particular sentence was imposed in the circumstances of that case.
None of those purposes requires a court to refer directly and in terms to every statutory provision considered or applied, and to every principle of sentencing law regarded as relevant. Indeed, where clarity of expression is important, to permit the parties, involved persons, and the community to understand the court proceedings, to do so could only lead to obscurity, and incomprehension.
Whilst specific references in a sentencing judgment to law and principle make the job of an appellate court in determining whether there was some error in the application of principle more straightforward, that by no means dictates a need for the slavish recitation of applicable law by first instance judges. It is enough if, on considering the whole of the sentencing remarks, the appellate court is able to determine what the sentencing court did and why, and determine whether law and principle have been correctly applied.
In this case, the sentencing judge did not refer to the applicant's criminal record, and did not refer to s 21A(3)(e) of the Crimes (Sentencing Procedure) Act. That may be because the applicant made no reference to those features of the case, and no submission to the sentencing judge that his record was insignificant such that sentence should be mitigated. His Honour was not asked to treat it in that way. The applicant faces a difficult task in establishing error in failing to have regard to a feature not pointed to or relied upon before the sentencing judge: Zreika v R [2012] NSWCCA 44 at [80-83].
It is clear, however, that the sentencing judge did treat the applicant as a person with a limited criminal history, and that that feature operated to mitigate sentence.
It is readily apparent from the whole of the remarks on sentence that the sentencing judge, whilst cognisant of the seriousness of the applicant's crimes overall, was impressed by his evidence to the court, and convinced of both the sincerity of his insight into his criminal past and of his wish to rehabilitate himself. A number of conclusions highly favourable to the applicant were made, including acceptance of the applicant's evidence as to the link between his drug addiction and the criminality into which he had descended. His Honour referred uncritically to the applicant's evidence that he had worked continuously as an adult, in a responsible position, and had not been involved in crime until he became addicted to drugs, around 2010. The sentencing judge used the word "exemplary" to describe the applicant's life outside his involvement with drugs. Had his Honour regarded the applicant's criminal history as of anything but insignificant, he could not have made such a finding, particularly encompassing as it did a period during which the applicant was prosecuted for drug and other offences.
On my reading of the judgment, although his Honour did not refer to the applicant's criminal history, or to s 21A(3)(e) in terms, he regarded the former as insignificant, and not detracting overall from the positive impression the applicant made on the court. It is clear that the court gave favourable attention to the applicant's past and antecedents, as a mitigating feature of itself, but also one that contributed to the optimistic conclusions reached by the court as to the applicant's prospects of rehabilitation.
This ground has little substance and, although I would grant leave to advance it, it should be dismissed.

Ground 2: The Court gave insufficient weight to the personal particulars of the applicant, including that he was of limited intellect

In his written submissions the applicant gave very little attention to this proposed ground, submitting only that, "[…] a further error appears to be that there is limited, or insufficient, weight given to the personal particulars of the offender".
It was noted that the sentencing judge did not have the benefit of a pre-sentence report, psychological report, or other evidence as to the applicant's circumstances, beyond that which he himself gave.
In oral submissions, the applicant appeared to stray outside the bounds of this proposed ground as pleaded, seemingly arguing that the failure of the sentencing court to take into account the unavailability to the applicant of a placement in a residential drug rehabilitation facility, presumably as a mitigating feature, was an error.
The ground, as pleaded or as argued, is without merit.
As pleaded, the proposed ground argues that the sentencing judge failed to give adequate weight to the subjective case, including the applicant's "limited intellect".
The subjective case before the court was, as noted above, limited, consisting of the applicant's evidence only. No request had been made for a pre-sentence report to be ordered by the court, and no psychological or other report was tendered by the applicant.
In imposing sentence, his Honour referred to and accepted the evidence given by the applicant. He had regard to the applicant's family circumstances and the support he had from family; the illness of the applicant's father was referred to, together with the applicant's strong desire to be at liberty to support his parent; his Honour considered the separation of the applicant from his son and the grief this occasioned; and the applicant's solid work history over many years in a position of responsibility, a position held despite the applicant's illiteracy. His Honour was impressed by the applicant's insight into his drug addiction and its consequences, and his determination to rehabilitate himself. There was nothing before the court as part of the subjective case that the sentencing judge did not refer to and accept.
If the court did not comment on the applicant's "limited intellect", it was no doubt because there was no evidence whatsoever to suggest that the applicant was of limited intellectual capacity, and nothing was put on that subject to his Honour in submissions. Further, nothing in the applicant's evidence to the sentencing court suggested a level of intellectual disability. The sentencing judge had regard to the applicant's illiteracy, but illiteracy is not necessarily a product of "limited intellect", and it could not have been taken to be evidence of it by the court.
The sentencing judge fully considered all of those matters raised by the applicant in his evidence on sentence, and clearly gave them considerable weight. The error pleaded has not been established.
The applicant's further complaint, raised for the first time in oral submissions to this Court, was that the sentencing judge should have taken into account the applicant's inability to gain access to a residential rehabilitation programme, he having been assessed as unsuitable for admission to such a programme because of the firearms offences of which he had been convicted.
An assessment as to the applicant's suitability for admission to a drug rehabilitation programme had been requested by the sentencing court, and it appears that a report or assessment in some form was available to the court and the parties on the day that sentence was imposed. Although there is no reference to the assessment in the evidence or sentencing judgment, the applicant's solicitor told the court on 1 September 2017, "You will remember he attempted a drug and alcohol programme, Oolong House, failed, but that is not an uncommon thing for a person attempting to get off drugs to fail. Your Honour gave him the chance to try and get into another one. He is not eligible. I should have known that at the time, but I suppose you just hope. Of course, the firearms charges make him ineligible for residential rehab from gaol."
Nothing further was said on the subject.
It was not clear from the submissions of counsel for the applicant before this Court what it was suggested his Honour should have done with the information as to the applicant's unsuitability for a full-time rehabilitation programme, or in what way error is said to have occurred with respect to this material.
Having regard to the concession by the applicant at an early stage in the sentencing proceedings that a full time custodial sentence was the only sentence that could properly be imposed, the availability to the applicant of a place in a rehabilitation facility was a matter of limited significance. If tendered in evidence, any assessment could arguably go to the applicant's prospects of rehabilitation but, if that is the use the applicant contends for, it is clear that he was not disadvantaged by his unsuitability for a residential programme, or the absence of any reference to it in the remarks on sentence. Notwithstanding that feature of the matter, the sentencing judge accepted that the applicant's expressed desire to end his drug use was genuine, and concluded that he had reasonable or optimistic prospects of rehabilitation.
However, neither the Crown nor the applicant tendered the report or assessment as to the applicant's suitability for residential rehabilitation into evidence, and no submissions were made by the applicant about it. His Honour can hardly be in error for failing to refer to information which was not in evidence, and about which he had not been asked to make any finding: Zreika v R at [80-83].
This ground is without merit and should be dismissed.

Proposed Orders

I would grant leave to the applicant to appeal against sentence, but dismiss the appeal.

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: 13 November 2018

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