Valenti v R

The offence

1. The following description of the offence is taken from the sentencing judgment. At about 9.00pm on 20 December 2013, police officers attended a bar in Pitt Street, Sydney. A drug detection dog and its handler identified Mr Valenti. Mr Valenti was questioned by police and he handed them a wallet containing twelve small resealable bags. Each of the bags contained an amount of cocaine. The total amount of cocaine in Mr Valenti's possession was 7.68 grams. On testing it was found to be 53.5% pure. The sentencing judge found that on average each bag had a retail value of approximately $250. When questioned at the scene Mr Valenti denied that he intended to sell the bags and instead stated that he intended to use the drugs himself.
2. As the amount of cocaine seized was in excess of the "trafficable quantity" (3 grams), Mr Valenti was deemed to have the drugs in his possession for the purpose of supply unless he could prove otherwise on the balance of probabilities (DMTA s 29(1)). At his trial Mr Valenti maintained his assertion that the drugs were solely intended for his personal use. The jury did not accept his case. In the sentencing judgment his Honour noted the value of the drugs and also noted that shortly prior to the police attending the bar, Mr Valenti had received an SMS message warning him of their presence. His Honour found that Mr Valenti "had possession of the cocaine divided into twelve separate bags both for his own use, in part, and otherwise for sale, in part".
3. While it was not the subject of a separate ground of appeal, in his oral submissions senior counsel for Mr Valenti, Mr Ramage QC, queried this finding. However, given the quantity and value of the cocaine and the manner in which it was packed, a finding beyond reasonable doubt that at least part of the cocaine was intended for sale by Mr Valenti was clearly open to the sentencing judge.

Sentence proceedings

1. After the jury's verdict was delivered on 3 December 2014, his Honour adjourned the proceedings to 13 February 2015. On that day his Honour received a number of favourable testimonials in support of Mr Valenti, a short report from a psychotherapist stating that Mr Valenti was not in "active addiction", a pre-sentence report and a copy of Mr Valenti's criminal antecedents. Counsel for Mr Valenti made detailed submissions to the effect that his client should receive a non-custodial sentence.
2. During submissions on 13 February 2015 the sentencing judge indicated that a suspended sentence or any lesser sentence "would be inappropriate". His Honour noted that Mr Valenti "was, in fact, a supplier and he has at least a previous matter involving prohibited drugs in his history", and later stated that Mr Valenti was "a person who was actually concerned in the sale of prohibited drugs in a restaurant or nightclub premises". At the conclusion of submissions the sentencing judge stated that "I am of the view that there is no alternative other than a period of imprisonment that can be appropriately ordered". His Honour referred Mr Valenti for assessment for an ICO and adjourned the proceedings to April 2015.
3. As stated, on 2 April 2015 his Honour sentenced Mr Valenti. I have already noted the finding his Honour made concerning the form of Mr Valenti's drug supply. In addition, the following six points should be noted about his Honour's sentencing judgment.
4. First, his Honour noted that Mr Valenti had two previous convictions for driving with the prescribed concentration of alcohol in his blood, and a conviction in 2010 for possession of a prohibited drug. For the drug offence he received a two year bond under s 10 of the Sentencing Act. His Honour found that that drug offence "must have been of a relatively minor nature".
5. Second, his Honour described Mr Valenti's personal circumstances. As at the date he was sentenced Mr Valenti was twenty-eight years old. His Honour noted that Mr Valenti was single and resided with his parents in the Mosman area and that they were supportive of their son. Mr Valenti had worked for a construction company for four years. He worked six days a week including Saturdays.
6. Third, his Honour found that Mr Valenti's conduct "must be considered as a serious offence", but also that given that some of the substance was for personal use, the matter "falls towards the lower end of seriousness for an offence of this nature".
7. Fourth, his Honour noted that Mr Valenti co-operated with the police when he was apprehended, although he falsely claimed that the whole of the cocaine was for his personal use.
8. Fifth, his Honour found that Mr Valenti represented a low risk of re-offending.
9. Sixth, pursuant to s 81(2) of the Crimes (Administration of Sentences) Act 1999 (the "Administration Act") his Honour imposed a number of mandatory obligations as prescribed by the Crimes (Administration of Sentences) Regulation 2014 (the "Administration Regulation"), specifically Reg 186, on the ICO. Those obligations included a requirement that Mr Valenti undertake 32 hours of community service per month (sub-reg 186(o)).

Grounds 1, 2 and 3: Error in imposition of a sentence of imprisonment and failure to consider alternatives to imprisonment

1. Ground 1 of the appeal contends that the sentencing judge erred in imposing a sentence of imprisonment. Ground 2 contends that the sentencing judge erred in failing to consider and sentence Mr Valenti by way of a good behaviour bond. Ground 3 contends, in the alternative, that the sentencing judge erred in failing to consider and sentence Mr Valenti by way of a suspended sentence.
2. To address these grounds it is necessary to briefly note aspects of the statutory regime governing the imposition of an ICO. Subsection 5(1) of the Sentencing Act provides that a sentencing court must not sentence an offender to imprisonment unless satisfied "having considered all possible alternatives, that no penalty other than imprisonment is appropriate". Subsection 7(1) provides that a court that has sentenced an offender to imprisonment for not more than 2 years may make an ICO. Subsection 7(3) provides that s 7 is subject to Part 5 of the Sentencing Act.
3. In R v Zamagias [2002] NSWCCA 17 at [23] to [32] ("Zamagias") Howie J discussed the structure of this part of the Sentencing Act prior to the provisions allowing for the imposition of an ICO. His Honour identified the first step as the application of s 5(1). If the sentencing judge concludes that an alternative to imprisonment is not appropriate the sentencing judge then undertakes a "two step approach". First the judge determines what the term of the sentence should be "without regard to whether the sentence will be immediately served or the manner in which it is to be served" (at [26]), and then they determine whether an "alternative to full-time imprisonment is available in respect of that term and whether any available alternative should be utilised" (at [28]). At the time Zamagias was decided those alternatives included a suspended sentence and periodic detention. Since 2010 they have also included an ICO.
4. The operation of other statutory provisions concerning the imposition of an ICO, including those found within Pt 5 of the Sentencing Act, were outlined and discussed by McClellan CJ at CL and Johnson J in R v Pogson; R v Lapham; R v Martin [2012] NSWCCA 225 at [38] to [72]. Of present relevance is s 69(1) of the Sentencing Act which provides that, before imposing a sentence of imprisonment on an offender, a court may refer the offender for assessment as to their suitability for an ICO. However, s 69(2) precludes the court from referring an offender for such an assessment "unless satisfied, having considered all the alternatives, that no sentence other than imprisonment is appropriate and that the sentence is likely to be for a period of no more than 2 years". Hence, at the time the sentencing court refers an offender for assessment under s 69(1) it must have formed the relevant opinion under s 69(2). This necessarily means it has formed an opinion under s 5(1) of the Sentencing Act adverse to the offender.
5. Ordinarily a conclusion that no alternative to full time imprisonment was warranted would only find its final expression in the sentencing judgment published at the time sentence is imposed. However the procedure for imposition of an ICO has the effect that the sentencing judge will often record the reaching of that conclusion at an earlier point, being prior to the referral of the offender for an assessment as to their suitability for an ICO. As noted, in this case the sentencing judge announced that conclusion after the completion of submissions on 13 February 2015.
6. The written submissions lodged on behalf of Mr Valenti contended that his Honour failed to give reasons for determining that the sentence of full time imprisonment was the only appropriate penalty. They also emphasised Mr Valenti's strong subjective case and the supposedly minor nature of his offence as supportive of the conclusion that it was not open to his Honour to reach that conclusion.
7. I do not accept these contentions. In the sentencing judgment his Honour stated as follows: "The community has indicated that such offences must be regarded seriously by providing for a maximum term of imprisonment of 15 years. The availability of prohibited drugs whether it be cocaine, heroin, methyl amphetamine or cannabis in the community, and particularly in night clubs and bars, is a serious concern to the whole community, which of course is reflected by the maximum penalty available. I am of the opinion that in respect of this particular matter, a sentence of imprisonment is appropriate. Having determined when the matter was last before me on 3 December 2014 that a sentence of imprisonment would be imposed, having considered the available alternatives, I gave consideration to whether any term of imprisonment could be served by way of an Intensive Correction Order and a report was sought and has been provided." (emphasis added) (The reference to 3 December 2014 in this passage appears to be erroneous. Presumably it should be a reference to 13 February 2015.)
8. The above observations reveal that his Honour adopted a staged approach to s 5 and s 7 consistent with what was stated in Zamagias (and Douar v R [2005] NSWCCA 455). Further, in my view it is clear that his Honour considered that the nature of the offending was so serious, especially when one has regard to the maximum penalty available for the offence, that the imposition of anything other than a sentence of full-time imprisonment would not be an appropriate penalty. The comments made by his Honour during the sentencing proceedings on 13 February 2015 are consistent with this.
9. Subsection 5(1) of the Sentencing Act is an important provision designed to direct the attention of the sentencing courts to the need to consider the alternatives to imprisonment (see Martin v R [2013] NSWCCA 24 at [44]). As such, in cases where it is submitted to the Court that a non-custodial sentence is an appropriate penalty, it is at least preferable that sentencing judges explain the basis on which they are satisfied that no penalty other than imprisonment is appropriate. In this case his Honour's reasons for reaching that conclusion are in my view sufficiently evident from the passage set out above (see [34]). Further, while it would have been open to another sentencing judge to reach a different conclusion, there is in my view no basis for concluding that it was not open to his Honour to reach that conclusion given the maximum penalty for the offence, the finding that at least some of the drugs were intended for sale, and Mr Valenti's previous conviction for drug possession, albeit a minor one.
10. It follows that grounds 1 and 2 should be rejected. His Honour provided sufficient reasons for reaching an opinion that was adverse to Mr Valenti under s 5(1) of the Sentencing Act, and that conclusion was not shown to be relevantly affected by error. Otherwise, in rejecting the "available alternatives" (see [34]) the sentencing judge was clearly adverting to the possibility of imposing a suspended sentence. I would reject ground 3.

Grounds 4 and 5: Error in imposing a sentence of twenty months, a sentence which was manifestly excessive

1. Ground 4 of the application contends that the sentencing judge erred in imposing a sentence of imprisonment of twenty months to be served by way of an ICO. Ground 5 contends that the sentence imposed was, in all the circumstances, manifestly excessive.
2. The written submissions in support of these grounds make three related points. First, it is contended that the term of the sentence was unduly harsh and severe, especially when regard is had to the statistics concerning sentences for offences of supplying less than a commercial quantity of cocaine. Second, it is submitted that it is likely that the sentencing judge impermissibly lengthened the term of the sentence to compensate for the perceived leniency of an ICO. Third, it was submitted that the work conditions included in the ICO imposed a particular hardship upon Mr Valenti.
3. The second contention has no substance. A conclusion that a sentencing judge deliberately expanded the term of the sentence to counter some perception that an ICO was lenient is not to be drawn lightly. Nothing in the sentencing judgment suggests that his Honour reasoned in that way.
4. In relation to the third matter, one complaint was that the sentencing judge failed to take into account Mr Valenti's particular circumstances in deciding to impose a work condition as part of the ICO. This contention was ultimately not pressed when it was pointed out that the sentencing judge was obliged to impose the work condition by the operation of s 81(2) of the Administration Act, and subclause 186(o) of the Administration Regulation. Further, the pre-sentence report that was tendered before his Honour reported that Mr Valenti had told the officer who prepared the report that he worked six days per week and performed unpaid work for his family business, but that he "would make Saturdays available to attend community service". In submitting on 13 February 2015 that a community service order should be imposed Mr Valenti's counsel stated that Mr Valenti would attend and comply with any such order despite his work commitments. In addition, as counsel for the Crown submitted on the appeal, a community service order can require an offender to perform up to a maximum of 500 hours community service work. The ICO imposed upon Mr Valenti requires him to perform a total of 640 hours of community service work. The difference between those two figures does not support any argument that the work condition rendered the sentence imposed upon Mr Valenti manifestly excessive.
5. At the hearing of the appeal Mr Ramage QC sought to read an affidavit from Mr Valenti concerning the difficulties he is currently experiencing with complying with the work condition of his ICO. In that affidavit Mr Valenti states that he was initially required to attend community service work on Fridays. To meet that commitment Mr Valenti's employer deducted that time from his annual leave. Thereafter Mr Valenti undertook community service on Saturdays. Mr Valenti states that in May 2015 he obtained a new position as a project manager. In that position he is required to work sixty-five hours a week and currently works from 6.30am to 8.00am on a Saturday before commencing his community service work. Mr Valenti states that the combined effect of his work commitments and his community service is affecting his physical and mental health. Mr Valenti states that he has not told his new employer that he is performing community service because of a sense of embarrassment and shame.
6. The Crown objected to this affidavit on the basis that fresh or new evidence of this kind was not admissible in this application. In Khoury v R [2011] NSWCCA 118 ("Khoury" at [110]) Simpson J noted that "evidence of events or circumstances or facts that had arisen entirely since sentencing cannot be taken into account" by this Court at the point of determining whether a sentence is affected by error such that intervention is warranted "no matter how compelling they may be". However, her Honour also noted (at [113]) that "too rigid" an application of this principle has the potential to cause injustice and "has led to the development of the sub-set of evidentiary propositions peculiar to the admission of additional evidence in applications for leave to appeal against sentence". I described the circumstances in which medical evidence obtained after sentence might be admitted on this basis in Turkmani v R [2014] NSWCCA 186 at [65] to [66] and [81] to [83]. How far the "propositions peculiar" to sentence appeals may extend and, in particular, whether they enable the admission of evidence of hardship in complying with the conditions of an ICO that have only become fully evident after sentence is not entirely clear. In R v Tannous; R v Fahda; R v Dibb [2012] NSWCCA 243 at [25], Basten JA stated that the preferable course was not to receive evidence concerning the operation of an ICO in a particular case.
7. In any event, on any view of the principles concerning the admission of material obtained after sentence, Mr Valenti's affidavit is irrelevant and thus not admissible. The particular hardship that has ensued to him from the necessity to comply with work conditions is a consequence of his decision to accept the position of project manager after he was sentenced and during the term of his ICO. It was otherwise apparent during the course of the sentencing proceedings that one possible, and indeed likely, outcome of the sentence proceedings was that he was required to undertake community service work and that would necessitate a rearrangement of his work commitments or otherwise require him to work long hours. Further, on and after 13 February 2015 it was evident that it was likely he would receive an ICO. In that regard, his counsel is taken to be aware of the effect of s 81(2) of the Administration Act and sub-clause 186(o) of the Administration Regulation. It follows that I would reject Mr Valenti's affidavit.
8. There remains the contention that the sentence was manifestly excessive especially when one has regard to the Judicial Commission statistics concerning the penalties imposed on offenders convicted of supplying cocaine in an amount less than the commercial quantity (250 grams).
9. The statistics are of no assistance to Mr Valenti. Of the 188 sentences imposed for such offences from 2008, 54% were sentenced to either full time imprisonment, home detention, periodic detention or received an ICO. Of the 16 such cases where the offender pleaded not guilty, ten received a sentence of full time imprisonment, periodic detention or an ICO. In any event the limited utility of such statistics has been extensively discussed in the authorities (see Knight v R [2015] NSWCCA 222). Amongst other matters, in drug cases the statistics do not record the weight and purity of the drug, the role of the offender and the nature of the drug supply operation (see R v Chidiac [2015] NSWCCA 241 at [56] per Price J).
10. As for the overall complaint that the sentence was excessive, in Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 at [59] the plurality stated: "As was said in Dinsdale v The Queen ([2000] HCA 54; 202 CLR 321 at 325) …, '[m]anifest inadequacy of sentence, like manifest excess, is a conclusion'. And, as the plurality pointed out … in Wong v The Queen [2001] HCA 64; 207 CLR 584 at 605] appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate 'is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases'. Rather, as the plurality went on to say … in Wong, '[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons'. But, by its very nature, that is a conclusion that does not admit of lengthy exposition." (emphasis added)
11. In circumstances where the maximum penalty for the offence was 15 years and the sentencing judge found that Mr Valenti possessed cocaine intending to sell at least part of the drug then, notwithstanding his strong subjective case, I am not satisfied that there must have been "some misapplication of principle".
12. It follows that I would reject grounds 4 and 5.

Relaxation of work condition

1. In light of the matters addressed at [42] to [44] above, it is appropriate to note the effect of s 85 to s 87 of the Administration Act. Section 85(1) confers on the Commissioner for Corrective Services a discretion to grant permission for an offender not to comply with a work or reporting requirement. The Commissioner may grant that permission either for health reasons, on compassionate grounds, or "for any other reason the Commissioner thinks fit" (s 85(2)). The Commissioner may grant the permission subject to such conditions as the Commissioner determines (s 85(5)). A right of review of the Commissioner's decision is conferred on an offender by s 87. In addition, s 86 provides: "86 Direction to make up for work etc avoided (1) If the Commissioner grants an offender permission to not comply with a work or reporting requirement, the Commissioner may give such directions to the offender as the Commissioner determines to be necessary to ensure that the offender will undertake work or engage in an activity or program to the extent necessary to make up for the work, activity or program avoided as a result of the permission granted. (2) The offender's intensive correction order is subject to a condition that the offender must comply with a direction of the Commissioner under this section. (3) The sentencing court may, on the application of the Commissioner, extend the offender's intensive correction order by such period as the court considers necessary and appropriate for ensuring that the offender complies with a direction of the Commissioner under this section. (4) In determining an application to extend an offender's intensive correction order under this section, the sentencing court is to give consideration to the following: (a) any hardship likely to be experienced by the offender if the order is extended, (b) the likelihood of the offender's intensive correction order being revoked if the order is not extended, and any hardship likely to be experienced by the offender as a result, (c) such other matters as the court considers relevant. (5) An intensive correction order cannot be extended under this section if the term of the sentence to which the order relates has ended. (6) The power of the sentencing court to extend an intensive correction order under this section is limited to one extension of no more than 6 months. (7) If an intensive correction order is extended under this section, the term of the sentence to which the order relates is, by this section, extended by the same period."
2. At the hearing of this application the Court enquired of Mr Ramage QC whether an application had been made under s 85(1) of the Administration Act on behalf of Mr Valenti for permission to not comply with the work requirement attached to his ICO. Mr Ramage QC indicated that no such application had been made. He submitted that it was his understanding that either the legislative provisions or at least the Commissioner's practice was such that if the Commissioner did grant permission under s 85(1) then it automatically followed that an offender would be required to make up the work that was avoided as a result of the permission being granted. However, s 86(1) only confers a discretion on the Commissioner to require that the work avoided be made up; it is not obligatory. It may be that as a general practice the Commissioner usually requires that work so avoided be made up, but no authority is conferred on the Commissioner by these provisions to impose a rule that any work so avoided must be made up. Whether the Commissioner will or will not require that any work so avoided will be made up is ultimately a discretionary matter for him or her to consider having regard to the scheme created by, and objectives of, the Sentencing Act and the Administration Act.
3. It follows that it is open to Mr Valenti to make an application for permission not to comply with his work requirement in part or in whole. Even if the outcome of that application was such that the Commissioner did impose a direction designed to ensure that the work is made up, there may be means by which it could be structured so as to avoid Mr Valenti being subject to the physical and mental stress that he refers to in his affidavit.

Conclusion

1. I would grant leave to appeal but dismiss the appeal. I propose the following orders: 1. Leave to appeal granted; 2. Appeal dismissed.

Amendments 29 February 2016 - Paragraph [43] - change NSCCA to NSWCCA Paragraph [50] - change s 82(5) to s 85(5) 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: 29 February 2016