Watkins v R

Court of Criminal Appeal (NSW)|2018-02-05|Before: Payne JA, Garling J, Hidden AJ

Judgment

PAYNE JA: I agree with Garling J.
GARLING J: The applicant, Marcus James Watkins, seeks leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 against an aggregate sentence imposed upon him by Ellis DCJ on 11 March 2016 in the District Court of New South Wales.
The sole ground relied upon by the applicant is that the sentencing Judge erred in failing to properly assess the objective seriousness of the offences.

Charges and Sentence

The applicant entered a plea of guilty to two sets of offences, which related to the supply of prohibited drugs, possession of an unauthorised pistol and knowingly dealing with proceeds of crime. These sets of offences consisted firstly of three counts on an indictment dated 25 August 2015 with one matter on a Form 1 ("the first set of offences"), and secondly, a further three counts to which pleas were entered in the Local Court prior to committal for sentence with six related matters on a Form 1 ("the second set of offences").

Second Set of Offences Charge Description Indicative Sentence 4 Supply prohibited drug ongoing basis (methylamphetamine): s 25A(1) DMT Act 4 years 6 months 5 Supply prohibited drug (29.59g of methylamphetamine): s 25(1) DMT Act 4 years 6 months 6 Knowingly deal with proceeds of crime ($35,000): s 193B(2) Crimes Act 1900 4 years

The applicant asked the sentencing Judge to take into account when sentencing for the first charge, the offence of supplying Fentanyl, which is a prohibited drug. This was done by the Form 1 procedure.
There were six related offences for the second set of offences with which the applicant had been charged, and which the Court was asked to take into account on a Form 1 with respect to Charge 4. These involved possession of relatively small quantities of anabolic steroid, cannabis and restricted medications.
The applicant was also sentenced for 10 related matters which were before the Court on a s 166 certificate. On each of those charges, he was sentenced to concurrent 6 month fixed terms, each of which commenced on 18 March 2015 and expired on 17 September 2015. No complaint is made with respect to these fixed term sentences.

Facts

The applicant was sentenced on the basis of a statement of Agreed Facts. The facts of the offending can be divided into two parts to reflect the two sets of offences.

First Set of Offences

The first set of offences was committed by the applicant at a rental property at Horace Street, Shoal Bay. The Agreed Facts state that the offender had received notice that his tenancy would be terminated due to non-payment of rent and complaints about the applicant's activities in the house.
On 24 January 2014, police executed a search warrant at the applicant's premises and found a number of items, including $5,000 in cash, which led to the applicant being charged with the first set of offences.
The applicant was arrested for this first set of offences on 24 January 2015. The applicant remanded in custody until 25 June 2015 when he was granted conditional bail.
The applicant initially denied knowledge and ownership of the black, plastic .177 calibre pistol, methylamphetamine, cannabis and ammunition. He was arrested and declined to participate in a recorded interview with police.
The applicant's DNA was located on the zippers of the Esky bag containing the set of scales, one bundle of the cash, the methylamphetamine, the black pistol and some re-sealable bags. The applicant's DNA was also located on a tin containing pellets and on the pistol trigger.

Second Set of Offences

The second set of offences was committed while the applicant was on conditional bail. These offences were generally similar in nature to the first set of offences. The Agreed Facts note that Police obtained a telephone intercept warrant for the applicant's phone and found evidence that the applicant was engaged in the ongoing supply of illicit drugs.
The applicant had a series of telephone calls with a person named Sammut for the purposes of supplying drugs between 4 August 2015 and 16 August 2015. Sammut visited the applicant's premises on a number of occasions to collect drugs. There were four occurrences of supply of 0.1g of methylamphetamine (each for $50) and one instance of supply of 0.42g methylamphetamine. The total amount supplied was 0.82g.
On 16 August 2015 police arrested the applicant and later executed a search warrant at his premises in Shoal Bay. Police located a number of items, including: 1. a satchel bag in the laundry, in which there were two plastic re-sealable bags containing 25.5 g of methylamphetamine; 2. $35,000 cash bundled in $5000 amounts, mainly in $50 notes, located in a cooler bag in a walk-in robe; 3. 28.8 g of cannabis leaf, 13 Valium tablets, 60 diazepam tablets and partly filled 10ml vials of testosterone and nandrolone; 4. property in the sum of $250 and a $75 gift card which was also the proceeds of crime; 5. four sets of digital scales, plastic re-sealable bags, aluminium foil and numerous glass pipes found in the kitchen; and 6. drug paraphernalia including a water pipe, grinder and "hundreds of unused syringes and a large amount of used syringes".

Remarks on Sentence

His Honour's Remarks on Sentence were delivered ex tempore late on the afternoon of the day when he heard the submissions on sentence.
His Honour commenced his Remarks by recording the offences to which the applicant had pleaded guilty, and setting out the applicable maximum sentences and, in the case of the firearm offence, the applicable standard non-parole period.
His Honour indicated that the criminality of the matter on the Form 1, namely supply Fentanyl, would be reflected in the penalty imposed on the first charge.
In sentencing the applicant for the first set of offences, his Honour acknowledged that the applicant was entitled to a discount for his pleas, which occurred after committal for trial. His Honour allocated a discount of 10-15% for the value of these pleas.
His Honour noted that the second set of offences occurred whilst the applicant was on bail, just prior to his trial date for the first set of offences. His Honour acknowledged the applicant's early plea in the Local Court for this second set of offences, and allocated the full discount of 25%.
His Honour also indicated that the criminality of the matters on the Form 1, namely supply cannabis, possess various prohibited drugs and knowingly deal with proceeds of crime, would be taken into account and reflected in the penalty imposed on Charge 4 of ongoing supply.
His Honour noted that the applicant had been in custody for a period of 360 days at the time of sentence. He therefore backdated the sentences to 18 March 2015.
His Honour noted the applicant's subjective circumstances. At the time of offending, he was between 26 and 27 years old, and had relevant prior convictions, including a sentence of 3 years with a non-parole period of 15 months in 2009 for numerous counts of supply prohibited substance, supply prohibited drug (cannabis) and possession of prohibited items.
His Honour again referred to the fact that the applicant was on conditional liberty at the time of the second set of offences, being on bail for the first set of offences.
His Honour stated that he had taken into account ss 3A, 5 and 21A of the Crimes (Sentencing Procedure) Act 1999, and in accordance with s 5, he determined that no sentence other than a sentence of imprisonment would be appropriate in the circumstances. No complaint has been made about this finding.
With respect to the nature of the sentence imposed, his Honour stated that he proposed to comply with the principles set out by the High Court in Pearce v R [1998] HCA 57; (1998) 194 CLR 610 and the principle of totality by imposing upon the applicant an aggregate sentence. His Honour noted that he would indicate the particular sentences on each count, as well as the non-parole period in relation to the offence of possess unauthorised pistol, which carried a standard non-parole period.
His Honour referred to the report of Dr Westmore, a psychiatrist, who detailed the applicant's history of substance abuse and mental health issues, but ultimately found no causal connection between any mental health conditions and the applicant's offending. His Honour noted that the applicant's mental health issues were nevertheless relevant to his assessment of the appropriate penalty: R v Hemsley [2004] NSWCCA 228.
His Honour referred to the line of authority in this Court in cases such as R v Peter Michael Clark (Court of Criminal Appeal (NSW), 15 March 1990, unreported), indicating that offenders involved in the commercial supply of drugs, that is, the supply of illicit substances for profit, can expect condign punishment in the form of a sentence of full-time imprisonment. His Honour referred to the "very important" need for general deterrence in this case, as well as the importance of specific deterrence.
A finding of special circumstances was made on the basis of the accumulation which would be imposed as between sentences. His Honour noted that the applicant would need a "longer than normal" period on parole to address substance abuse relapse prevention and the mental health issues addressed in Dr Westmore's report.
His Honour noted the applicant's desire to attend a full-time residential rehabilitation program once paroled, and recommended such a course. However, he declined to make attendance at such a program a condition of the applicant's parole, and instead imposed supervision in relation to preventing the applicant from substance abuse relapse and monitoring his mental health issues.
His Honour concluded by pronouncing the indicative sentences which are set out at [7] above, and the aggregate sentence he imposed upon the applicant. He also granted the Crown's application for a forfeiture order for the cash and gift card found in the two premises at Shoal Bay pursuant to ss 18(1) and 19(3)(a) of the Confiscation of Proceeds of Crime Act 1989.

The Applicant's Subjective Case

The personal circumstances of the applicant were only briefly addressed in his Honour's Remarks on Sentence and in the submissions of each party on appeal.
Dr Westmore's report outlines some of the history of the applicant in the period preceding his offending behaviour. The report's findings may be summarised as follows.
The applicant's parents separated when he was 18 years old. He maintains a close relationship with both parents and his brother and sister, although he did not speak to his mother for some time after his parents separated. He was close with an uncle, who struggled with drug problems and subsequently committed suicide in prison.
He reported that he had a normal childhood in Sydney and Nelson Bay, and that he had no exposure to early childhood trauma.
He completed Year 10 and reported being an average student with no disciplinary problems. He had no contact with the police as a juvenile.
After he finished school, the applicant commenced a carpentry apprenticeship, but left the trade after three months. He worked intermittently over the next few years in other fields, including labouring, but his ability to maintain a job and form positive relationships with colleagues was impacted by his drug use.
The applicant started smoking cannabis at the age of 16 and began using ecstasy and amphetamines at the age of 17. He first used Ice before the age of 18. The applicant also experienced problems with gambling.
In July 2010, the applicant attended a ten-month drug rehabilitation program, through the Salvation Army. This was followed by an eight-month term of imprisonment for drug-related offences. He was released in April 2011 and commenced working for his mother, as well as playing football. During this period, the applicant maintained his sobriety.
He relapsed into using Ice sometime in 2012 after a relationship breakdown with his girlfriend of seven years, purportedly due to her infidelity with his close friend. His ex-girlfriend subsequently became engaged to this friend.
The applicant moved back to live with his mother and in August or September 2012 he became involved in a new relationship with a woman who had a young son. His partner subsequently fell pregnant and gave birth to their daughter. The applicant continued using drugs during this period. His partner had also been using drugs, but ceased in the lead up to the birth.
He continued to use drugs including Ice and steroids whilst out on bail because he discovered that his partner had been unfaithful to him.
At the time of Dr Westmore's interview in October 2015, the applicant had been working in the upholstery section in prison. He had not yet attended any prison-run rehabilitation programs. He stated that he had not used drugs in prison, despite their availability.
The applicant has no general medical history of relevance. He was at the time of interview taking anti-depressant medication. He told Dr Westmore that he overdosed in December 2012 on a cocktail of alcohol and illicit and prescription drugs. He was an in-patient in hospital for two days. The applicant stated that this overdose was accidental.
He reported improvements in his mood and outlook after achieving sobriety in prison. He also attributed this shift in perspective to a sense of purpose he has developed since his daughter was born.
Dr Westmore concluded that his rehabilitation prognosis was "extremely good" in the short to medium term, but that in the long term the applicant will likely struggle with a vulnerability to certain emotional triggers. Dr Westmore recommended that this issue would need to be addressed in a future rehabilitation program.

Submissions of the Applicant on Appeal

The applicant seeks leave to appeal against the severity of his sentence. As I have noted above, he relied upon a single ground of appeal, namely that Ellis DCJ failed to properly assess the objective seriousness of the offences.
It was submitted that his Honour erred in failing to adopt an approach consistent with authorities on drug offending, which require an assessment not just of the quantity of drugs possessed by the offender and the role of the offender, but of all relevant facts and matters: R v Blair (2005) 152 A Crim R 462 at [42]; Paxton v R (2011) 219 A Crim R 104 at [135].
Although the applicant accepted the principle in Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [29], whereby the High Court held that there is no "need to classify the objective seriousness of the offending", the applicant referred this Court to Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 472 and R v Scott [2005] NSWCCA 152 at [15] as authority for the proposition that some assessment of objective seriousness is required to give effect to the proportionality principle.
The applicant noted his Honour's referral in his Remarks to the factors listed in ss 21A(2) and 21A(3) of the Crime (Sentencing Procedure) Act ("the s 21A factors"). It was submitted that his Honour's statement by itself was an "insufficient discharge of the obligation to gauge objective seriousness". The applicant also contended that in accordance with this Court's decision in Blair at [42], the sentencing Judge's determination of objective seriousness is not to be confined to consideration of the matters listed in those sections.
Further, with respect to the role of the applicant and scale of the operation, the applicant submitted that his Honour made no assessment of the role of the offender or the magnitude of the supply operation. The role of the offender is a matter which is "germane to the assessment of the objective seriousness of the offence, and its location in the notional range of seriousness": Blair at [42].
It was contended that his Honour failed to consider the following factors, which are closely associated with an assessment of the applicant's role in the supply operation: that the applicant was a drug user; that there was no evidence he employed others; that the packaging of the drugs was "suggestive of street level dealing"; that there was no evidence of ledgers recording drug debts nor cutting agents; nor evidence of a "lavish lifestyle", despite the significant quantities of cash found in the applicant's premises, being over $40,000 in total.
With respect to the quantity of drugs supplied, the applicant submitted that his Honour's recitation of the particular weights and types of drug was not a sufficient assessment of the quantity of the drugs involved: R v Van Ryn [2016] NSWCCA 1 at [133]-[134]; R v Cage [2006] NSWCCA 304 at [17]. The applicant relied upon a passage in R v Nguyen; R v Pham [2010] NSWCCA 238; 205 A Crim R at 237 [72], where the Court said that the weight of drugs is a: "…highly relevant factor in determining the objective seriousness of the offence, even to the extent of assessing that a particular offence is in the worst category of its type."
It was further argued that all drugs supplied by the applicant fell "well short" of commercial quantities of the relevant drug as set out in Schedule 1 of the DMT Act. The applicant submitted that the failure of the sentencing Judge to deal with this factor, as well as the s 21A factors, is indicative of error in his Honour's determination of the objective seriousness of the offending.
The applicant's submissions concluded by referring to five examples of sentences imposed in other factually similar cases in order to support the contention that the sentence imposed on the applicant was "unduly severe". I note that, in fact, several of these sentences have similar aggregate head sentences and non-parole periods to the sentence imposed upon the applicant. In two of the cases, Huckstadt v R [2016] NSWCCA 22 and Grills v R [2016] NSWCCA 46, the applicant's appeals against the severity of their sentences were dismissed.

Crown Submissions on Appeal

The Crown submitted that the sentencing Judge had not erred in sentencing the applicant, and that leave to appeal should accordingly be refused and the appeal dismissed.
The Crown rejected the applicant's submission that the sentencing Judge failed to adequately assess the objective seriousness of the offending. Evidence of objective seriousness was relied upon by the Crown in its written submissions throughout the proceedings on sentence. Some of the issues addressed in these submissions included: 1. That the ongoing supply offence encompassed a series of criminal acts committed whilst on conditional bail; 2. That indicia of drug supply including resealable plastic bags and sets of scales were found in the applicant's residence; 3. That the applicant was in possession of various restricted substances and a Doctor's prescription pad; and 4. That only upon the applicant's arrest did he cease offending.
Further, the Crown submitted that possession of a pistol and ammunition entails additional criminality in context of drug dealing: Luu v R [2008] NSWCCA 285. It was submitted that this weapon was "doubtless" a means for threatening others in context of drug supply business where necessary.
The Crown submitted that the quantities of the drugs and large sums of cash seized negate the applicant's contention that the profits from supply were used largely to finance the applicant's own use of methylamphetamines.
The Crown submitted that this Court has recognised that, on occasions, proceedings on sentence can inform the content of the sentencing judgment, particularly in cases such as this where judgments are delivered ex tempore immediately following sentencing submissions: R v Dashti [2016] NSWCCA 251 at [54]-[55]; Biles v R [2014] NSWCCA 170 at [14]-[17]; Butters v R [2010] NSWCCA 1 at [26]. The Crown contended that those authorities clearly demarcate the limited circumstances in which an appeal Court may have resort to comments made during the course of the sentencing hearing. It was submitted that in the present case, the proceedings on sentence can legitimately be utilised to inform and supplement his Honour's sentencing judgment. It was submitted that his Honour's statements in the proceedings on sentence were clear and specific, and were not contested by senior counsel for the applicant.
The Crown further noted that senior counsel for the applicant did not make submissions to the sentencing Judge that referred directly to objective seriousness in terms of the nature and extent of the dealing. Rather, senior counsel's submissions focused mainly upon the applicant's addiction and the need for rehabilitation.
The Crown also drew this Court's attention to the fact that, in the proceedings upon sentence, senior counsel had specifically agreed with the aggregate sentence that his Honour was preparing to impose, and made no further submissions on this point even after requesting to speak to the applicant (no doubt to obtain instructions). That exchange is recorded in the transcript in this way: "HIS HONOUR: Well, subject to what either of you want to say about the range, at the moment I have in mind an aggregate sentence seven years with a non-parole period of four years and six months and a parole period of two years and six months. ROSSER: I've nothing to say about that your Honour. CROWN: Your Honour in my submission I am trying to find his criminal history. (The Crown made further submissions) HIS HONOUR: Mr Rosser, I don't want to fall into appealable error and [it] probably doesn't do your client much good either if I impose a sentence that's going to be appealed. ROSSER: No. HIS HONOUR: I mean even a sentence of eight years with a non-parole period of five, it's for the sake of another six months. ROSSER: My client will hate me for this but I would think that's probably a safer sentence for him. … HIS HONOUR: Yes I mean there is no point, which is why I always ask Crown and Madam Crown's good, she doesn't rise to her feet unless she has some concerns. ROSSER: In effect, your Honour would be - the effect of an overall non-parole for the first set of two and an accumulative overall non-parole for the second set of three, that's about right I would have thought. (emphasis added) HIS HONOUR: Yes I think so when you add - you look at those. All right. ROSSER: Could I just speak to him?"
Counsel apparently spoke to his client and then did not raise any further matter with the Court.
The Crown pointed to the well-settled position that an appeal is not the occasion to reformulate the offender's case: Zreika v R [2012] NSWCCA 44 at [80]-[81], Johnson J. Ultimately, the Crown contended that in the context of an ex tempore judgment given at "five past 4 on a Friday afternoon", his Honour's reference to the commercial nature of the illicit drug supply sufficiently indicated his findings in relation to the objective gravity of the offences: Hurst v R [2017] NSWCCA 114 at [98]-[110]. His Honour's reference to "commercial supply of drugs", with the immediate clarification that he was referring to "the supply of illicit substances for profit" (i.e. not the supply of not less than the commercial quantity of a prohibited drug) demonstrates that he considered this to be a serious instance of such offending.In oral submissions before this Court, the Crown reiterated this position by stating that, consistently with the principle identified in Eldridge v R; Mackay v R [2015] NSWCCA 127 at [93]-[95] and [102]-[105], this Court should be cautious in finding error through the absence of reference to a sentencing factor in ex tempore remarks on sentence.
In response, Counsel for the applicant submitted orally that "referring to proceedings on sentence to fill in the blanks on what is otherwise a very brief remarks on sentence is dangerous". He cited Dashti at [54]-[55] for the proposition that resort should only be had to proceedings on sentence in two limited circumstances: firstly, to explain an observation, and secondly, where the proceedings reveal that an apparent mistake in the reasons is merely typographical or otherwise irrelevant.
On the issue of the five comparative cases provided by the applicant in his submissions, the Crown concluded its written submissions by submitting that these cases offered limited assistance. The Crown noted that courts, including the High Court, have repeatedly adopted the position that comparing cases is often fruitless due to the highly fact specific nature of sentencing. Relevant considerations will necessarily differ in each individual case: Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; (2017) 349 ALR 37. The Crown also noted that this was a small sample with clearly distinguishable features from the applicant's case. The Crown ultimately submitted that the cases provided by the applicant do not suffice to indicate that any lesser sentence is warranted in law.

Discernment

It is necessary, in the particular circumstances of this case, to have regard to what occurred in the process of sentencing because it indicates why his Honour's Remarks on Sentence were so concise.
In the first place, the facts were agreed. They were not complex and were readily understood. Secondly, there were clear pleas of guilty. The somewhat complex matrix of which charges were being dealt with on sentence, which charges had been placed on a Form 1 and which charges were being dealt with on a s 166 Certificate, needed to be clarified for the Court. This was done at an early stage of the proceedings on sentence.
Thirdly, the applicant gave evidence and was cross-examined. The evidence was relatively brief and predominantly addressed the applicant's subjective circumstances, including the motivation surrounding his offending.
Fourthly, the Crown placed written submissions before the sentencing Judge. Senior counsel for the applicant did not, but relied upon brief oral submissions.
At the end of the applicant's evidence there was a short discussion about the appropriateness of the use of an aggregate sentence, and if it was used, what the statute required of the sentencing Judge with respect to indicative sentences. This discussion proceeded particularly with respect to Charge 3, the lone charge which carried a standard non-parole period. Once those matters were clarified, senior counsel for the applicant made submissions.
I do not intend to be critical of senior counsel for the applicant, however it is fair to say that his submissions were brief, perhaps to the point of being cryptic, and appear to be rather conversational in their style. The submissions occupied about two pages of transcript and essentially concentrated upon the applicant's subjective case. Senior counsel for the applicant did not engage with the Crown's written submissions which were quite detailed in pointing to the relevant facts, matters and circumstances underlying the seriousness of the offences to which the applicant had pleaded guilty. The Crown has also drawn attention to the importance of general and specific deterrence in the applicant's case. No doubt, senior counsel judged that it was the best approach in the circumstances to avoid any detailed submission dealing with evaluation by the sentencing Judge of the seriousness of the offending.
The short exchange between senior counsel for the applicant and the sentencing Judge did not include any reference to the objective seriousness of the offences, although there was a clear statement by senior counsel for the applicant that the second set of offences, which were committed whilst the applicant was on bail, would need "to a very significant degree [to be] accumulated …".
At the conclusion of the submissions by the applicant's senior counsel, the Crown was asked if she wished to make any further submissions and indicated to the Court that she relied upon her written submissions. It was immediately after that that the exchange which is set out at [66] above occurred. Immediately following that exchange, his Honour commenced to deliver his short Remarks on Sentence, and to impose the sentence.
In that context, the applicant's ground of appeal is without merit. That is so for three reasons. First, the Judge's recitation of the facts, including the various aggravating factors, together with the sentence ultimately imposed, make it plain that his Honour regarded these offences as being of greater seriousness than the applicant contended, in general terms, to this Court.
Secondly, the conduct of senior counsel for the applicant in not making any submission about a specific level of objective seriousness of the offences, or the totality of the offending, aside from the concession about accumulation, means that a complaint now that the Judge did not assess the level of objective seriousness cannot be upheld. There was no attempt by senior counsel for the applicant to identify matters that were relevant to assist the sentencing Judge, as has been done in the submissions to this Court.
Thirdly, the Court in this case discussed the sentence which it was considering and invited the legal representatives present to make any further submissions with respect to all of the facts, matters and circumstances of the offences together with any relevant legal principle so that the Judge may be assisted in the process of instinctive synthesis necessary to be undertaken to arrive at an appropriate sentence.
In this instance, the applicant's senior counsel had the opportunity to make further submissions and consult with his client. The sentencing Judge was accordingly entitled to proceed with the delivery of his succinct Remarks on Sentence in the clear understanding that he was proceeding correctly on the basis of the submissions including the interchange between the Bench and counsel, coupled with the absence of submissions indicating error, potential error, or failure to consider matters appropriately, if he imposed the aggregate sentence which he had exposed.
That is all that occurred here. The ground of appeal now advanced by the applicant, by different counsel to the senior and experienced counsel who appeared on sentence, has all the hallmarks of an armchair criticism of the succinct Remarks on Sentence which were entirely appropriate in all the circumstances.
The ground of any proposed appeal has no merit.
Particularly in light of the exchange between senior counsel for the applicant and the Judge about the appropriateness of the sentence which was imposed, I would decline leave to the applicant to appeal.
I should also remark that, had error been shown, taking in account all of the relevant circumstances, I would have concluded that no lesser sentence than was imposed was warranted.

Orders

I propose the following order: 1. Leave to appeal refused.
HIDDEN AJ: I agree with Garling J.

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: 20 March 2018

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Judgment (14 paragraphs)

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Cases Cited (22)

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