Veith v R

Court of Criminal Appeal (NSW)|2018-04-20|Before: Fullerton J, Davies J, Lonergan J

Solicitors: John D Weller & Associates (Applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2016/226944 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 13 March 2017 Before: Wells DCJ File Number(s): 2016/226944

Grounds of appeal

The applicant seeks leave to appeal on the following grounds: 1. Her Honour erred in concluding that many of the applicant's subjective circumstances, including her prior good character, were not unusual for people charged with supplying prohibited drugs, and accordingly carried less weight; 2. Her Honour unduly constrained the sentencing exercise by determining whether the applicant had been involved in the trafficking of prohibited drugs to a substantial degree, rather than sentencing the applicant in accordance with the instinctive synthesis approach to sentencing; and 3. The sentence imposed was manifestly excessive.
For the reasons that follow, and despite error on the part of the sentencing judge having been established, I would grant an extension of time but dismiss the appeal under s 6(3) of the Criminal Appeal Act 1912 (NSW) on the ground that no lesser sentence was warranted at law.

The offence

The facts concerning the offence were not disputed.
The applicant came under police notice while attending Splendour in the Grass which is a music festival held annually in Byron Bay. At about 4.40 pm on 23 July 2016, which was the third day of the four-day festival, police observed the applicant entering the festival and apparently weaving her way through the crowd away from a drug detection dog.
She was approached by the drug detection dog, who gave an indication to its handler that drugs were detected. She was stopped by police, appeared nervous, and was fidgeting and placing her hands on her handbag. When questioned, she admitted possession of "30 caps".
The applicant was searched and there was found in a small tan pouch a sandwich sized zip-lock plastic bag containing 31 small capsules filled with a cream coloured substance found to be MDMA. Also in the applicant's wallet, police found a blister back containing three diazepam tablets which were said to be for her personal use. A handheld recorded interview was conducted in which the applicant made admissions to possessing the MDMA capsules which she said were to be supplied but not for money, and that she also intended to take some of the drug.
The police facts observed that the applicant cooperated with police and was remorseful.

Subjective case

A number of very strong character references were tendered by the applicant. She did not give evidence. The applicant was born in 1992 and was the second of five siblings. Her father passed away and there were difficulties and complications associated with that circumstance and her mother's ability to cope with the other children. The applicant took over a mothering role, in particular of her younger brother, who is currently 16, and was 13 at the time they moved away from the applicant's mother.
Character references tendered on the applicant's behalf indicate that in addition to completing a Bachelor of Arts in Media and Communication, she also worked to provide for her siblings and did volunteer work at the Student Youth Network. The authors of the references indicated surprise at the offending conduct and confirm the applicant's extreme remorse and the negative impact her arrest has had on her life. The referees all spoke of the applicant as moral, sensible and kind, and that the offending behaviour seemed to be an error of judgment and out of character.

Findings by the sentencing judge

The sentencing judge clearly accepted the positive references and descriptions of the applicant. Very early in the sentencing remarks, the sentencing judge referred to the fact that the applicant has "an excellent character".
The sentencing judge referred to the applicant's difficult early family circumstances, the applicant's role in assisting the family, and that in her letter to the Court, the applicant described difficulties with anxiety disorder and lapsing to use illicit drugs to escape the realities of her life.
As to the seriousness of the offending, the submissions by the applicant's legal representative to the effect that the 31 capsules were largely for the applicant's own use, or that she was simply giving the drugs away to her friends was received with cynicism by the sentencing judge. This was particularly so given that it was day three of a four-day festival and given the warnings against taking drugs into that particular music festival were conspicuously placed, and the overt presence of both drug detection dogs and police.
The sentencing judge emphasised the purposes of sentencing including general and personal deterrence, and remarked on the relatively significant purity of the capsules in the applicant's possession in the context of the need for protection of the community.
In dealing with the absence of evidence of the applicant making any "substantial profit" from the supply of MDMA, the sentencing judge said: "In looking at the circumstances, it cannot be concluded beyond reasonable doubt that she was engaged in substantial drug trafficking. Nevertheless, in looking at the overall objective seriousness, albeit that it falls in towards the lower bracket of objective seriousness, it should nevertheless be met with a sentence of imprisonment, but that will be fully suspended for the term of the sentence."
Despite the applicant's subjective circumstances, including her prior excellent character and life circumstances, her Honour observed that it is: "not unusual for people who find themselves in this position and carry less weight in relation to the supply of illicit drugs than they might in other types of offences".
These findings, set out in [22]-[23] of the remarks on sentence, were the focus of the applicant's submissions on the appeal to which I will return, and were identified as revealing a reference to the principles in R v Clark (Court of Criminal Appeal (NSW), 15 March 1990, unrep) which had been overruled in Parente v R [2017] NSWCCA 284.
The sentencing judge stated that she had "considered the possibility of a s 9 bond", but took the view that the level of offending was too serious and that to proceed under s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) was "completely inappropriate".
Sections 9 and 10 of the Crimes (Sentencing Procedure) Act provide as follows: 9 Conditional release orders (1) Instead of imposing a sentence of imprisonment or a fine (or both) on an offender, a court that finds a person guilty of an offence may make a conditional release order discharging the offender, if: (a) the court proceeds to conviction, or (b) the court does not proceed to conviction but makes an order under section 10 (1) (b). (2) In deciding whether to make a conditional release order with a conviction, the sentencing court is to have regard to the following factors: (a) the person's character, antecedents, age, health and mental condition, (b) whether the offence is of a trivial nature, (c) the extenuating circumstances in which the offence was committed, (d) any other matter that the court thinks proper to consider. Note. These factors are considered under section 10 in respect of an order under section 10 (1) (b) in connection with a conditional release order without a conviction. (3) To avoid doubt and without limitation: (a) a fine and a conditional release order cannot be imposed in relation to the offender in respect of the same offence, and (b) a conditional release order with a conviction may be made as an alternative to imposing a fine. (4) This section is subject to the provisions of Part 8. 10 Dismissal of charges and conditional discharge of offender (1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders: (a) an order directing that the relevant charge be dismissed, (b) an order discharging the person on condition that the person enter into a good behaviour bond for a term not exceeding 2 years, (c) an order discharging the person on condition that the person enter into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program. (2) An order referred to in subsection (1) (b) may be made if the court is satisfied: (a) that it is inexpedient to inflict any punishment (other than nominal punishment) on the person, or (b) that it is expedient to release the person on a good behaviour bond. (2A) An order referred to in subsection (1) (c) may be made if the court is satisfied that it would reduce the likelihood of the person committing further offences by promoting the treatment or rehabilitation of the person. (2B) Subsection (1) (c) is subject to Part 8C. (3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors: (a) the person's character, antecedents, age, health and mental condition, (b) the trivial nature of the offence, (c) the extenuating circumstances in which the offence was committed, (d) any other matter that the court thinks proper to consider. (4) An order under this section has the same effect as a conviction: (a) for the purposes of any law with respect to the revesting or restoring of stolen property, and (b) for the purpose of enabling a court to give directions for compensation under Part 4 of the Victims Compensation Act 1996, and (c) for the purpose of enabling a court to give orders with respect to the restitution or delivery of property or the payment of money in connection with the restitution or delivery of property. (5) A person with respect to whom an order under this section is made has the same right to appeal on the ground that the person is not guilty of the offence as the person would have had if the person had been convicted of the offence.
Section 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW) at the relevant time provided as follows: 12 Suspended sentences (1) A court that imposes a sentence of imprisonment on an offender (being a sentence for a term of not more than 2 years) may make an order: (a) suspending execution of the whole of the sentence for such period (not exceeding the term of the sentence) as the court may specify in the order, and (b) directing that the offender be released from custody on condition that the offender enters into a good behaviour bond for a term not exceeding the term of the sentence. (2) An order under this section may not be made in relation to a sentence of imprisonment if the offender is subject to some other sentence of imprisonment that is not the subject of such an order. (3) Subject to section 99 (1), Part 4 does not apply to a sentence of imprisonment the subject of an order under this section. (4) An order under this section may be made after a court has decided not to make a home detention order in relation to the sentence of imprisonment.

Ground 1: Submissions

Counsel for the applicant argued that the sentencing judge's treatment of the weight to be given to the applicant's character was in error, because her Honour focused on the type of offence committed, rather than to any particular aspect or aspects of the offending conduct contrary to Athos v R (2013) 233 A Crim R 302; [2013] NSWCCA 205 at [45] where Price J stated: "I am satisfied that the judge erred when he gave less weight to the applicant's good character because he was charged with offences involving the possession of prohibited firearms. It would have been perfectly acceptable for the judge to consider the question of the weight to be given to the applicant's good character in all the circumstances of the offending but, in my respectful opinion, the error occurred when the reduction in weight was tethered to the type of offence."
The applicant also referred to Redfern v R (2012) 228 A Crim R 56; [2012] NSWCCA 178 at [24] where Adams J was said to have correctly characterised the manner in which the sentencing exercise should be approached as follows: "…There is no special class of offence, including drug dealing, which requires a different rule to be applied to the significance of the particular subjective circumstances in an individual case. Each will necessarily depend upon the circumstances, both subjective and objective, to derive the ultimate sentence."
The applicant submitted that the sentencing judge did not identify any particular feature of the offending which would disentitle the applicant to full weight being given to her prior good character. This, it was submitted, was an error. Additionally, there was no evidence or basis upon which to conclude generally, as the sentencing judge did, that "prior good character was often found" for this type of offence.
The Crown submitted that the sentencing judge's approach was in accordance with established principle. Consistently with Ryan v R (2001) 206 CLR 267; 118 A Crim R 538; [2001] HCA 21 the Crown submitted that the sentencing court is obliged to take the good character of the offender into account, but it is a matter for the court to determine the weight to be given to it in a particular case.
Reliance was placed on the statements of Latham J (with whom Hoeben CJ at CL and Price J agreed) in Johnson v R [2017] NSWCCA 43 at [12]: "…Whether or not the absence of prior convictions attracts a more lenient sentence depends upon a multitude of other factors, such as the nature of the offending and the offender's role in the commission of the offence. It is trite to observe that some offences, such as child sexual assault offences and drug importation offences, are invariably committed by persons of otherwise good character because it is that characteristic which enables the commission of those offences." and R S Hulme J in Van Can Ha v R [2008] NSWCCA 141 at [43] with whom Grove and Simpson JJ agreed: "…The Applicant's prior good character and lack of criminal history were matters to be taken into account on sentencing although, given the deliberate and planned criminality involved in his offences, their weight was significantly less than if the Applicant's offending had been much more spur-of-the-moment or spontaneous. Of course, his prior character was clearly relevant to his prospects of rehabilitation."
The Crown submitted that the sentencing judge's assessment of the criminality of the applicant showed proper regard to the scope and nature of the offence, the deliberateness and planned nature of the offending and her role in the offending. There was no error demonstrated, nor was there error demonstrated in the way her Honour took into account the applicant's good character in making her finding that there were excellent prospects of rehabilitation.

Ground 1: Decision

It is abundantly clear from the authorities that the circumstances of the offending are the key factors in determining the weight to be given to good behaviour, rather than the nature of the offence itself.
However her Honour's general remarks regarding character do not mean that she gave less weight to the applicant's prior good character simply because the offence was one of drug supply.
In stating that "good character is not unusual for people who find themselves in this position and carries less weight in relation to the supply of illicit drugs than they might in other types of offences", it may appear that the sentencing judge fell into error of the kind identified in Athos. However, her Honour made other findings that indicate she evaluated factors in the applicant's offending conduct, including expressing scepticism about the truthfulness of the applicant's assertion that the capsules were mainly for her own use. Her Honour also remarked on the number of capsules and their purity. This ground is not made out.

Issue raised regarding potential inconsistency of Lam v R with Athos and/or Parente

Counsel for the applicant raised a side issue regarding Lam v R [2014] NSWCCA 50 stating that to the extent that Lam v R at [32]-[33] stands for the proposition that an offender's good character is entitled to lesser weight where he or she is being sentenced in respect of supplying a prohibited drug on the ground that such offences require general deterrence to be emphasised, then that authority is wrong and ought not be followed.
That argument can be dealt with briefly. The observations of Davies J, (R A Hulme and Adamson JJ agreeing), in [33] of Lam need to be read in the context of the issues being considered in that appeal. There his Honour was dealing with the sentencing judge's observations in respect of an applicant who was involved in trafficking heroin and where there was evidence of the extent of his involvement in the organisation and in a number of instances of supply. In [32]-[33], his Honour was dealing with submissions made regarding both general deterrence and the degree of planning involved in the offending, as had been dealt with by this Court.
Considerations of planning and general deterrence are enshrined in s 21A of the Crimes (Sentencing Procedure) Act 1999 as factors to be taken into account in determining the appropriate sentence for an offence.
It was in this setting that his Honour said the following: "[32] Nothing in the Remarks on Sentence in the present case suggests that no weight was given to the fact that the Applicant was a first time offender nor that she was not accorded some leniency for that fact. [33] As the ground of appeal makes clear, the complaint is one that less weight was accorded to one factor by the Sentencing Judge. The issue of what weight is to be given to factors is a matter peculiarly within the discretion of the Sentencing Judge: R v Baker [2000] NSWCCA 85 at [11]. The Sentencing Judge's statement that less weight is accorded to good character in relation to offences involving drug supply is well supported by authority. There is a variety of reasons for that approach including the importance of both general deterrence as well as planning in drug supply cases: Van Can Ha [2008] NSWCCA 141 at [43]; Sinkovich v R [2011] NSWCCA 90 at [53]."
When considered in context, there is nothing in his Honour's judgment that requires restatement or revision by this Court.

Ground 2: Submissions

The reference by the sentencing judge to "substantial drug trafficking" as set out in [19] above, even to discount it as her Honour clearly did, is a reference to R v Clark (Court of Criminal Appeal (NSW), 15 March 1990, unrep), overruled in Parente v R [2017] NSWCCA 284. The previous line of authority had stood for the proposition that only in exceptional circumstances would a non-custodial sentencing order be appropriate, where the offending involved substantial drug supply.
I accept the applicant's submission that, as reflected in the remarks on sentence, her Honour first examined the question of whether she ought to make a finding that the applicant had been involved in "substantial drug trafficking" and then approached the sentencing task after making that assessment. This was described by the applicant as "an anterior step" introduced by the sentencing judge, and the sentencing process miscarried.
As stated in Parente at [118]: "Despite the fact that the result might not have been affected, it remains that his Honour allowed an extraneous or irrelevant matter to guide him along the path to his determination. In that sense, the sentencing discretion miscarried." The same identified error occurred here.
In response, the Crown argued that the submissions made to the sentencing judge were made prior to Parente. Her Honour rejected the submission that the applicant was "substantially involved in the supply of drugs". She did not sentence according to the Clark approach. In any event, the position here should be distinguished from the situation in Parente where the offender was found to be "substantially involved" in the supply of drugs, as that required a consideration of whether exceptional circumstances could be established in accordance with Clark, and that was not the sentencing analysis her Honour adopted.
Further, her Honour's remarks on sentence make clear she identified and made a value judgment consistent with the approach required by Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 per McHugh J at [51].

Ground 2: Decision

The sentence was imposed on the applicant on 13 March 2017, some months before Parente. That being so, there is no criticism of the sentencing judge for approaching the sentencing exercise in the way that she did. However, I am satisfied that the sentencing judge approached the sentencing task consistently with the approach in R v Clark including the extraneous and now erroneous step of considering whether "substantial trafficking" had occurred before moving to other sentencing considerations.
This ground of appeal is made out for that reason.

Ground 3 - Submissions

Counsel for the applicant submitted that this is a case in which personal deterrence has only a minor role, if any, to play. In addition, it was submitted that inadequate weight was given to the references tendered, the finding that the applicant was of prior good character, and the genuine remorse expressed, even at the time of arrest. The objective gravity of the offending was at the lower end with the amount involved only marginally greater than the indictable quantity specified in Schedule 1 of the Drug Misuse and Trafficking Act 1985 (NSW) for ecstasy, of 1.25g, being only 2.5g, and, significantly below the commercial quantity of 125g.
On the issue of general deterrence the applicant submitted that the sentencing judge determined that the offence here was "too serious" for the imposition of a sentence pursuant to s 9 or s 10 of the Crimes ((Sentencing Procedure) Act. However, such sentences were well within the range for this type of offending demonstrated by this Court's approach in "upholding" the s 10 bond given by the sentencing judge in R v Mauger [2012] NSWCCA 51. There, the quantity charged was almost twice that involved in the present case, yet the sentencing judge determined a s 10 bond was appropriate.
In reply, the Crown submitted that the applicant needs to demonstrate that the sentence passed by the sentencing judge was unreasonable or plainly unjust. Appellate intervention is not justified simply because the result arrived at in the Court below is markedly different from sentences imposed in other cases. There needs to be a misapplication of principle. It is not to the point that this Court might have exercised the sentencing discretion differently.
Matters of weight are for the sentencing judge and the circumstances in which matters of weight will justify appellate intervention are narrowly confined: Yang v R (2012) 219 A Crim R 550; [2012] NSWCCA 49 at [25] (per R A Hulme J); Vaiusu v R [2017] NSWCCA 71 at [19] (per R A Hulme J).
The sentence imposed was not unreasonable or plainly unjust given the quantity of capsules and their purity, and the applicant's claim that most of the 31 capsules were for her own use but it was day three of a four-day music festival. There needed to be weight attributed to both general and personal deterrence, and protection of the community was a factor, particularly given the purity of the tablets. There was nothing unreasonable or plainly unjust in finding that the level of offending was too serious for consideration of a s 9 bond, particularly given that the index offence carries a maximum penalty of 15 years imprisonment.

Decision

There is nothing unreasonable or plainly unjust in the sentence given the number of capsules, their purity and the circumstances of the offending. Manifest excess has not been made out.

Re-sentencing

Given error has been found in respect of ground 2, it falls to this Court to re-exercise the sentencing discretion: Kentwell v The Queen (2014) 252 CLR 601 at 617-618; 238 A Crim R 134; [2014] HCA 37 at [42]. The question for the Court is whether some other sentence, whether more or less severe, is warranted in law, and should have been passed: s 6(3) of the Criminal Appeal Act 1912 (NSW).
Regard should be had to the submissions that were made in relation to the manifest excess ground. The submissions made on behalf of the applicant ignore the substantial quantity of capsules and their purity and seem to assume a low objective gravity, and that the applicant's prior excellent character and her remorse add up to an absence of a necessity to factor personal deterrence into the sentence. The importance of general deterrence was not ignored, but the focus on the overall amount involved betrays an attitude that because there can be more serious breaches of this law, this incidence should be punished on a much more lenient basis because it is a "one off" event.
As stated in Parente at [124], re-sentencing should be approached by accepting the findings made by the sentencing judge, as well as the guideposts of the substantial maximum penalties and any standard non-parole period.
The various favourable findings have been taken into account in terms of subjective matters, her remorse, her excellent prior character, her excellent prospects of rehabilitation, excellent references and absence of previous convictions. The risk of re-offending for this particular offender may well be slight. However, general deterrence and protection of the community are significant factors.
In considering all these matters, I am of the view that a sentence no less than that imposed at first instance is warranted.

Orders

I propose the following orders: 1. The time within which to file a notice of appeal is extended to 6 March 2018. 2. Leave to appeal against sentence allowed. 3. Appeal dismissed.

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: 07 December 2018

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