Vincent v Regina [2006] NSWCCA 78 | Case summary

24 March 2006 Shamus VINCENT v REGINA Judgment 1 SULLY J: On 22 July 2004 the applicant, Mr. Vincent, pleaded guilty before a Local Court Magistrate to two charges. The first charge was that of having knowingly taken part, on 28 November 2002, in the supply of a prohibited drug, namely 3, 4 - methydioxymethylamphetamine, in an amount not less than the commercial quantity. Such an offence contravenes section 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW), and attracts upon conviction a statutory maximum penalty of, relevantly, imprisonment for 20 years. The second charge was that of having supplied, on 30 December 2002, a commercial quantity of a prohibited drug, namely 3, 4 - methydioxymethylamphetamine in an amount not less than the commercial quantity. Such an offence contravenes section 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW), and attracts upon conviction a statutory maximum penalty of, relevantly, imprisonment for 20 years. 2 On 3 December 2004 the applicant was presented before his Honour Judge Nicholson SC at the Sydney District Court. Because of some administrative error respecting the formalities of the applicant's committal by the Local Court to the District Court for sentence upon his pleas of guilty, the applicant was formally indicted upon the charges earlier noted; and he again pleaded guilty to each charge. 3 On 28 January 2005 the applicant stood for sentence. For the knowingly take part offence he was sentenced to a minimum term of 15 months commencing 28 January 2005 and expiring on 27 April 2006; with a balance of term of 5 months commencing on 28 April 2006 and expiring on 27 September 2006. For the supply offence he was sentenced to a non-parole period of 2 years 6 months commencing on 28 April 2006 and expiring on 27 October 2008, with a balance of term of 1 year 3 months commencing on 28 October 2008 and expiring on 27 January 2010. 4 The applicant now seeks leave to appeal against those sentences. One ground was notified and argued in support of the application, namely: "The learned sentencing judge in sentencing the applicant on count one, erred in failing to give effect to his finding that the applicant's participation was substantially less than that which his Honour had found on his earlier mistaken view of the facts." 5 The learned sentencing Judge initially stated as follows his Honour's findings of fact in connection with the applicant's criminal conduct: "5. By way of background the accused is associated with a restaurant known as Lady Jane Korean Restaurant which was at the time operating at 7/2 Market Street, Sydney. New South Wales police suspected illegal activities were occurring at the restaurant and allocated two undercover operatives to visit the restaurant on a regular basis since perhaps as early as July 2002. 6. A feature of the restaurant was on the second floor. The restaurant catered for mainly male clients who were entertained by female dancers performing strips which police noticed would end, that is the strips would end, when all the clothing had been removed but for a G-string and that second floor had subdued lighting. My understanding is that it was a nightclub area. 7. Senior Constable Peter Costello attended this floor on 28 November 2002 and shortly after his arrival he observed the Offender's brother Jamieson Vincent and the Offender seated at a table on an outside balcony. Negotiations were conducted by the undercover operatives who did not include as I understood it Senior Constable Peter Costello, for the purchase of a thousand ecstasy tablets that Jamieson Vincent agreed to supply for $16,250. 8. The police only had, that is the undercover operatives, only had $16,000 on them. Jamieson agreed to accept that sum and the undercover operatives agreed to pay the remaining $250 later. On a tape or cassette of some kind constituting an oral record that was recorded pursuant to a proper authorised listening device, there is an oral record of the negotiations. At page 8 of the transcript there is voice identification of someone (known) only as V6. 9. I am satisfied that voice is the voice of the Offender. Five other participants were identified. The two undercover police operatives who went by the name of Albert and Joe, a female, the man Nick and this Offender's brother Jamieson Vincent. Costello who identified those at the table identified at a time that discussions must have been taking place identifies Jamieson Vincent, this Offender, the two undercover police operatives and Nick who is not present and appears to separate from the undercover police at page 5 of the transcript. 10. Albert in his statement remarks at paragraph 6 that there are two Nicks and neither was at the table when discussions were being had. Both undercover police refer to two conversations as recorded as containing inter alia the voice of this Offender. The relevant passage is to be understood in the context of discussion about the quantity of tablets to be bought. 11. The undercover operatives had nominated 600 tablets to be bought. Shortly after that this conversation occurs. James Vincent first says, "if you were to get a thousand I could give them to you for 16.50 each". One of the police operatives, "okay, yeah, you can't you can't break them up". Jamieson Vincent, "I could possibly do it but". Police Operative, "yeah, so if you can do it". Voice 6, which I as I say am satisfied is the Offender, "the lower the amount the higher the price". Jamieson, "higher the price". 12. Agreement was ultimately reached to purchase one thousand tablets of ecstasy. Those tablets were not on the premises. Jamieson Vincent said he hoped to collect them from Rushcutters Bay however before he left he wanted reassurance that the money was present. 13. Jamieson Vincent took the police to the cooler room in the kitchen where he was shown the money. Thereafter he left the scene. He returned a short time later. The undercover operative Albert describes what then occurred. "Sometime later I saw Jamie walk into the club through the side entry. Jamie walked towards the kitchen area. I made eye contact with Jamie. I notice Jamie raise his right index finger and motion for me to follow him. Joe and I remained seated. A short time later I noticed Shamus walking towards us and indicating with his head to go towards the kitchen area. Joe and I got up and walked to the kitchen area. I noticed Jamie was holding the kitchen door open and appeared to be waiting for us to walk through." 14. It is to be noted firstly in that passage that the man Jamie, that is Jamieson Vincent, first motioned and apparently neither of the undercover operatives moved and it was only, as I interpret it, when they failed to move that this Offender thereafter indicated by nodding his head that they were to follow Jamieson into the kitchen area. 15. Thereafter the transfer of a commercial quantity of ecstasy and money was effected in the cool room. There is no suggestion, as I understand the evidence, that this Offender was present during the transfer. About one month later on 27 December the same two undercover operatives returned to the Lady Jane Restaurant. They asked for Jamieson Vincent but were told by the Offender that he was away for a couple of days. 16. The undercover operatives then asked are you looking after the place to which the Offender said, yes. In the course of conversation with the offender, Joe asked, "you can't get a little bit tonight" but was told by the Offender it was too late to get the "clovers but what about 007's". "Clovers" and "007's" are descriptions as I understand it of various ecstasy tablets. They are identified by some logo imprinted or the shape of them. 17. Undercover operatives asked, "how good are they" meaning the 007's and the Offender replied, "I don't really know. I haven't had a chance to give them to my mate. So go and see the bloke standing", and then there's some unintelligible conversation "come tomorrow early, but if you go. Wait a second, one second, okay, just wait. I'll meet you downstairs". Then there's some further unintelligible conversation. "What I'll do, come in tomorrow night and I'll have the sample for you, be tomorrow early probably around 6." 18. Asked as to his prices he replied, "$17 for a thousand or $16.50 for five thousand". That would have been $750 for a thousand more than his brother had charged the month before. The undercover operatives paid the Offender $250 owing to Jamieson from the prior transaction. The undercover operatives left agreeing to meet the following night. 19. On 30 December at about 5.30 pm one of the undercover operatives rang the Offender and asked whether it was worth coming around for a coffee. The Offender said it was really busy and could he call back in 20 minutes. Nearly an hour later the Offender rang the undercover operative and told him if he wanted to come down at 8.30, "it will be pumping then". 20. I am satisfied this conversation amounts to an arrangement made by the Offender or at least one in which he agreed to his willingness to supply an unspecified but nonetheless substantial quantity of ecstasy to the undercover operatives. 21. At about 8.15 pm that night the undercover operatives arrived at the Lady Jane and went upstairs to the bar in the nightclub area. This Offender arrived; he indicated he had a thousand "clovers" for $17.50 each. That represents a price increase of fifty cents per tab. The police claim to only have $17,250. When I say the police I mean the undercover operatives. The Offender agreed to take that money and supply the tablets provided the outstanding $250 was paid later. 22. The police were taken to the cool room this time by the Offender for the purpose of showing the Offender that they had the sufficient funds. The police suggested that Nick, the floor manager, get the drugs. The Offender opened the top drawer of a two drawer filing cabinet. The police placed the $17,250 into the drawer. The floor manager returned with a thousand ecstasy tablets shaped in a four leaf clover design. These tablets upon analysis were shown to contain 36.5 per cent ecstasy." 6 His Honour then canvassed the topics of objective criminality; of subjective circumstances, of contrition; of antecedent criminal history; and of various other matters which section 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) required his Honour to consider. No present particular complaint is made about any of those aspects of the remarks on sentence. 7 His Honour then spoke at some length about an appropriate discount of sentence on account of the pleas of guilty and about the principle of totality and then said: "67. But for the plea of guilty I would have set a head sentence of two years for the first offence and five years cumulative for the second offence making a total head sentence of seven years. Applying the 25 per cent discount to these figures they become a head sentence of 18 months for the first offence and a head sentence of three years nine months for the second. 68. For the first offence I would set a non parole period of 14 months and a balance of term of four months but of course during that balance of term he will not be released to parole. As to the second offence I will set a non parole period of two years six months and an additional term of one year three months." 8 This led to the following interchanges, Mr. Finlay being the Crown representative: "FINLAY: Your Honour, just before you finalise your sentence there's something I need to bring to your attention if I might. Your Honour, you'll appreciate the Crown's role on the sentence is somewhat different . It's a matter where the Crown has to assist you to avoid any appealable error and I'd like to take you to a finding of fact that you made earlier on, if I might. Your Honour may remember that the Crown case was that Mr. Shamus Vincent was present at the negotiations at the table and that it was actually the indications that he gave by the way of nodding of his head it's the undercover operatives that indicted his role. It was never the Crown case that he actually spoke at the negotiations. HIS HONOUR: Why did you tender the facts? FINLAY: Well your Honour, that was to show what was going on with the undercover operatives present that there was a negotiation going on. The Crown case was that he was always present there. Now your Honour's made a finding in relation to what's referred to as V6. HIS HONOUR: V6? FINLAY: Yes, that that was Mr. Shamus Vincent. HIS HONOUR: I'm satisfied it wasn't Mr. Jamieson Vincent because he speaks almost immediately afterwards. FINLAY: That's right but as I understand from discussions with the officer-in-charge of the matter that V6 was definitely not Shamus Vincent. HIS HONOUR: All right. Then if you're satisfied with that then I will be satisfied. FINLAY: Your Honour, I apologise for the late notice of that but I needed time to confirm it and to advise you. HIS HONOUR: That's the first offence. FINLAY: That's right, your Honour. HIS HONOUR: That would of course reduce his participation you'd agree in the matter substantially. FINLAY: Well your Honour, the Crown - yes well -- HIS HONOUR: Because he's not involved in the negotiations. FINLAY: Well no your Honour, we always said he was present for that and was aware of it. HIS HONOUR: Yes, but present as distinct from participating. FINLAY: Yes, I accept that your Honour. HIS HONOUR: In other words it comes back to the other roles that defined for him. FINLAY: Yes. HIS HONOUR: I had three roles for him that takes one of them out. FINLAY: Yes." 9 His Honour thereupon imposed the sentences noted at paragraph 3 herein. 10 In the foregoing circumstances I do not believe that it can be contended sensibly that his Honour did not make a mistake in the formulation of, in particular, the sentence passed in connection with the knowingly concerned offence. It must follow that this Court is entitled to intervene and to re-sentence should the Court be persuaded that a lesser sentence is warranted in law. 11 The Crown does not dispute any of those propositions; but submits that no lesser sentence is so warranted. 12 I am unable to accept that submission. In my opinion some more lenient sentence is warranted in law because it is warranted ex debito justitiae. It seems to me that any member of the public of ordinary good sense and of reasonable objectivity would reject as manifestly unjust a proposition that an offender, having been told that he would receive a particular sentence based upon particular facts, should be without redress when another and heavier sentence was in fact passed, based upon facts re-stated more favourably to the offender. 13 In my opinion justice would be done by reducing the applicant's sentence on Count 1 from a head sentence of 20 months to one of 16 months with a non-parole period of 12 months. Such an adjustment would correct an obvious injustice, but in a restrained way that did not overlook the real criminality of a correct appreciation of the applicant's admitted conduct. 14 I propose, therefore, the following orders:

Vincent v Regina

At a glance

Court

Decision date

Before

Source

Judgment (11 paragraphs)

Parties

Legislation Cited (2)

Cited By (1)