Wayne William Reid v R

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999

Elmir v R [2009] NSWCCA 22 Pearce v The Queen (1998) 194 CLR 610 R v El-Arja [2009] NSWCCA 8 CASES CITED : R v Gallagher (1991) 23 NSWLR 220 R v Gu [2006] NSWCCA 104 R v Hammoud (2000) 118 A Crim R 66 R v Zamagias [2002] NSWCCA 17

PARTIES: Wayne William Reid (Applicant) Regina (Respondent)

COUNSEL: Ms S Kluss (Applicant) Ms V Lydiard (Respondent)

SOLICITORS: Homeless Persons Legal Service (Applicant) S Kavanagh (Solicitor for Public Prosecutions)

IN THE COURT OF CRIMINAL APPEAL 2007/13112

McCLELLAN CJ at CL JAMES J BUDDIN J

WEDNESDAY 25 FEBRUARY 2009 WAYNE WILLIAM REID v R Judgment 1 McCLELLAN CJ at CL: I agree with Buddin J. 2 JAMES J: I agree with Buddin J. 3 BUDDIN J: The applicant seeks leave to appeal against sentences imposed upon him in the District Court. The applicant originally pleaded guilty in the Local Court to four separate charges of supplying drugs and adhered to those pleas when he appeared for sentence. 4 Charge 1 involved the deemed supply of MDMA in the form of twenty ecstasy tablets which had a total weight of 4.99 grams. Charge 2 involved the deemed supply of methylamphetamine with a total weight of 3.31 grams. Charge 3 involved the supply of 0.1 - 0.2 grams of crystal methylamphetamine or "ice" and Charge 4 involved the applicant knowingly taking part in the supply of 0.08 grams of methylamphetamine or "base". Each of those offences attracts a maximum penalty of 15 years imprisonment and/or a fine of 2,000 penalty units. 5 The sentencing judge took into account when sentencing the applicant four offences of possessing a prohibited drug and one offence of goods in custody which related to a sum of $396.35 in cash which was found in the applicant's possession. 6 In respect of Charge 4, the applicant was sentenced to a fixed term of 6 months imprisonment to date from 16 May 2008 which was the date he went into custody. In respect of Charge 3, he was sentenced to a fixed term of 6 months imprisonment to date from 16 August 2008. In respect of Charge 2, he was sentenced to a fixed term of 6 months imprisonment to date from 16 November 2008. In respect of Charge 1 and taking into account the Form 1 matters, a non-parole period of 7 months to date from 16 February 2009 and ending on 15 September 2009 was fixed. The total sentence imposed is due to expire on 15 June 2010. The effective non-parole period is thus one of 1 year 4 months (16 months) and the total sentence is 2 years 1 month (25 months). The applicant's release date to parole is accordingly 15 September 2009. 7 The factual background to these offences, which is not in dispute, can be briefly stated. On 5 January 2007 police observed three people sitting in a parked car. The applicant was in the driver's seat. In the front passenger seat was a young woman named Asha Wyles and seated behind her was a man named Matthew Barnes. Mr Barnes was seen to hand a cigarette packet to the applicant. When a police officer approached the vehicle he saw that the applicant was holding a cigarette packet. Ms Wyles was observed holding a set of scales on top of her right leg. Located inside the cigarette packet was a clear plastic bag which was wrapped inside another clear resealable bag containing 20 ecstasy tablets which weighed, as I have said, 4.99 grams (Charge 1). Also located inside the cigarette packet was one small clear resealable bag containing another clear resealable bag which in turn contained 1.83 grams of methylamphetamine (the first of the Form 1 matters). 8 The occupants of the vehicle were removed from it and when police searched the applicant they discovered three ecstasy tablets weighing 0.74 grams inside a container in his top pocket. In the same container police located two clear resealable sachets containing 0.16 grams of methylamphetamine. The applicant's possession of those two quantities of drugs gave rise to the second and third matters on the Form 1 document. The fourth offence on the Form 1 arose from the discovery of an amount of $396.35 which was located in the applicant's back pocket. That money was believed to have been obtained from the supply of drugs. 9 The applicant then directed the attention of police officers to other drugs. He said that "there is base [or methylamphetamine] on the floor". On the floor behind the driver's seat and centre console of the vehicle police located a clear resealable sachet containing 3.31 grams of methylamphetamine (Charge 2). Located on top of the centre console was a set of scales. Police also located 8.7 grams of cannabis in a clear plastic resealable bag which was discovered inside a zippered case that was near the front passenger seat (the possession of those drugs gave rise to the fifth and final matter on the Form 1 document). 10 The applicant was taken to a police station where he was interviewed. He told police that prior to their arrival he and his co-offender had been to an address in Redfern where he had supplied Ms Wyles with about 0.1 - 0.2 grams of crystal methamphetamine or "ice" for which he received $300 (Charge 3). The applicant also informed police that when they arrested him he had been about to supply Mr Barnes with the rock substance known as methylamphetamine or "base" which weighed 0.08 grams (Charge 4). He also said that Ms Wyles had been holding the scales in preparation for him weighing the drugs. 11 The applicant gave evidence that he was going to provide the ecstasy tablets to a friend who would pay him later. He said that the three ecstasy tablets located in his top pocket were for his personal use. 12 The applicant was aged 34 at the time of the offences and is now 36. He had little contact with his biological parents and was adopted when he was 3. However when the applicant was about 10 difficulties arose with his adoptive parents. His adoptive parents made arrangements for the applicant to have contact for the first time with his biological mother and sister. Subsequently his adoptive parents terminated that contact and since that time the applicant has had no contact with his biological family. 13 A report from Mr Watson-Munro, a forensic psychologist, was in evidence. He reported that the applicant told him that the cessation of contact with his biological mother had led him to experience feelings of abandonment and confusion. Those feelings were apparently exacerbated when shortly thereafter the applicant was sent away to boarding school in Bathurst. Upon finishing school the applicant returned to Sydney where he took up employment for about 2 years with his father as an electrician. At various times he has been employed in real estate, security work and the car industry. At the time of the offences he was working in a panel beating shop and was also delivering pizzas. At the time of sentence he was casually employed as a landscape gardener. 14 The applicant has never married and has no children. He informed Mr Watson-Munro that because of his anxiety and depression he found it difficult to maintain employment and also relationships. The sentencing judge accepted that the applicant was addicted to "ice" at the time of these offences and that he was motivated to supply drugs to feed his own habit. Nevertheless his Honour noted that there was some discrepancy in the evidence as to precisely how long the applicant had been addicted to "ice" and the circumstances in which he had acquired a significant dependency upon it. Mr Watson-Munro reported that the offender had told him that he had been addicted to amphetamines which he had started using in his late twenties. In more recent times the applicant told him that he had become addicted to "ice". In evidence the applicant told the sentencing judge that he had begun using "ice" only after moving in to share a house with a woman named Natalie. This had occurred, he said, about 8 months prior to his arrest. The applicant said that he began to deliver drugs for her and in return he received a "couple of points of drugs" a day as well as petrol money. The pre-sentence report also stated that the applicant began heavy amphetamine use only after meeting Natalie (by which time he was of course considerably older than his late twenties). Until then his drug use had been confined to the occasional use of amphetamines, a fact which prompted the author of that report to conclude that the applicant did not appear to have a significant drug history. 15 Since his arrest the applicant had made various endeavours to address his drug problems. To that end, although he did not complete the course, he did spend 2-3 months in The Bridge drug rehabilitation program conducted by William Booth House and thereafter attended Narcotics Anonymous meetings at Matthew Talbot Hostel on a weekly basis. The applicant gave evidence that he had stopped using drugs after attending The Bridge program. 16 The applicant had no criminal record as an adult and accordingly the sentencing judge treated him as a man of prior good character. In all the circumstances his Honour concluded that the applicant had "favourable prospects of rehabilitation". That was one of the factors which led the sentencing judge to make a finding of "special circumstances". 17 It was common ground that the applicant pleaded guilty to these offences at the earliest available opportunity. For that reason, the sentencing judge extended to him a discount "by a figure at the top of the range as identified by the Court of Criminal Appeal in R v Thomson & Houlton". His Honour also found that the applicant was remorseful and that, in respect of some of the offences, he had made a voluntary disclosure to the police, a consideration which entitled him to a further discount on sentence. The sentencing judge also took into account in the applicant's favour that he had provided what was described as "valuable information" to police upon his arrest. That information resulted in a search warrant being executed at premises occupied by the person whom the applicant nominated as his cannabis supplier. A quantity of cannabis was seized from those premises with the result that that offender was placed on a bond in the Local Court for supplying cannabis. The applicant gave evidence that as a result of his disclosures to police he was assaulted in the street by his supplier's associates. The applicant also supplied information about other persons involved in the supply of amphetamine and ecstasy but that information was assessed by police as being of no value. Nor was the applicant prepared to provide information about his amphetamine and ecstasy supplier. An overall discount of 30% was extended to the applicant to reflect the fact that he had both pleaded guilty and had provided assistance to the authorities. 18 The applicant told the author of a pre-sentence report that he had committed the offences solely in order to finance his and his then girlfriend's drug use and that the drugs were supplied only to people within their immediate circle of friends. The sentencing judge was not disposed to accept that claim. Although his Honour found that the applicant was at the lower end of the drug distribution network he nevertheless concluded that "his role was important and essential in that drug distribution network". At one stage during the proceedings the sentencing judge described the applicant as operating a "drug supermarket". 19 Although the sole ground of appeal that was notified in the Notice of Appeal was a contention that the sentences were manifestly excessive, a number of individual complaints were raised both in written submissions and at the hearing of the application. It is convenient to deal with each of those complaints.

Alternatives to full-time imprisonment 20 It is contended that the sentencing judge erred in failing to consider alternatives to full-time imprisonment. The starting point for this submission was the fact that the applicant had been assessed as being suitable for either community service or periodic detention by the author of the pre-sentence report. The complaint is that his Honour must have overlooked those alternatives because there is no reference to them in the Remarks on Sentence. The applicant also placed reliance upon this court's decision in R v Zamagias [2002] NSWCCA 17 in which reference was made to s 5 of the Crimes (Sentencing Procedure) Act 1999 (the Act) which prohibits a court from imposing a sentence of imprisonment unless the court is satisfied, having considered all possible alternatives, that no other penalty is appropriate. It is further contended that the sentencing judge erred in regarding himself as, in effect being bound, in the light of authorities such as R v Gu [2006] NSWCCA 104, to impose a full-time custodial sentence. 21 The sentencing judge referred to Gu as supporting the well-entrenched principle that in the absence of exceptional circumstances a full time custodial sentence ought to be imposed whenever the offender has been substantially involved in the supply of prohibited drugs. His Honour continued: With perhaps the exception of the deemed supply of ecstasy charge, when one considers the supplies the subject of the three other charges before me in isolation, one may not necessarily come to the conclusion that the offender was substantially involved in the supply of prohibited drugs. However, it is impossible to look at each of the four supply charges before me in isolation from each other. When the number of supply offences and the variety of drugs supplied are taken into account, one must inevitably come to the conclusion that the offender was substantially involved in the supply of prohibited drugs, even though he was not to make any financial profit from it. In my view, the fact that he had a disturbed upbringing and the fact that he commenced to use illicit drugs upon [sic] a background of depression and anxiety and the fact that he has favourable prospects of rehabilitation, do not individually or in combination establish exceptional circumstances such that a full time custodial sentence would not be appropriate. I am unable therefore to accept the submission of [counsel] who has appeared on behalf of the offender, that it would be appropriate in this case to suspend the sentence. 22 In that passage his Honour explained with conspicuous clarity precisely why nothing but a full-time custodial sentence was called for. It is thus readily apparent that his Honour did consider what other sentencing options may have been available before deciding that none of them would adequately meet the circumstances of the present case. That conclusion, and the findings which led to that conclusion, were well open to the sentencing judge. I would reject this complaint.

Discount for assistance 23 As I have already said, the sentencing judge allowed a combined discount of 30% for the pleas of guilty and the assistance which the applicant provided to authorities. Although his Honour did not quantify the discount which he allowed for the pleas of guilty he did, as I have said, indicate that he would reduce the otherwise appropriate sentence "by a figure at the top of the range as identified … in R v Thomson and Houlton". From that remark the applicant infers that a discount of 25% was extended to him for the pleas of guilty and that therefore a discount of only 5% was allowed for his assistance to authorities. That discount, it was submitted, was insufficient to reflect the fact that the applicant had provided information which led to the arrest of his cannabis supplier, as a direct result of which, he asserted, he had been assaulted. 24 The sentencing judge's approach in providing a combined discount for the two aspects of the matter, namely the plea of guilty and the assistance to authorities, was not only appropriate but it was in conformity with well-established authority. 25 In R v Gallagher (1991) 23 NSWLR 220 Gleeson CJ said: It must often be the case that an offender's conduct in pleading guilty, his expressions of contrition, his willingness to co-operate with the authorities, and the personal risks to which he thereby exposes himself, will form a complex of inter-related considerations, and an attempt to separate out one or more of those considerations will not only be artificial and contrived, but will also be illogical. (at 228) 26 Accordingly, the ultimate question is thus whether it has been demonstrated that the overall discount of 30% is manifestly excessive. The sentencing judge had careful regard, in assessing the weight to be allowed for the applicant's assistance, to the matters set out in s 23 of the Act. Due allowance had to be made for the fact that the applicant provided information to the police about his cannabis supplier, and that he had apparently suffered retribution for doing so. However, the applicant was not entitled to the type of leniency that he would have attracted had he been prepared to give information about what he also knew concerning the activities of other persons in the drug distribution business. Nor was there any suggestion that he had undertaken to give evidence against any other persons. Nor, as the sentencing judge pointed out, was there any evidence that as a result of providing this information the applicant would be required to serve his sentence in harsher conditions than would normally be the case. In short, the present circumstances were well removed from the type of case in which a combined discount of 40% to 50% is called for. I would reject this complaint.

Special circumstances 27 The complaint which is made is that although the sentencing judge found "special circumstances" his Honour did not "substantially alter" the proportion which the non-parole period bore to the head sentence. It was also contended that a longer period of supervision was called for given the applicant's long standing addiction to drugs and the fact that he had already taken successful steps on the path to rehabilitation. 28 The effective non-parole period of 16 months imposed upon the applicant represents 64% of the overall sentence of 25 months and thus constitutes a departure of more than 10% from the normal statutory ratio. The question of whether or not "special circumstances" are made out essentially involves an exercise of discretion. So also is the associated question of what practical significance a finding that special circumstances exist has upon the relationship that the non-parole period bears to the head sentence: see generally R v El-Arja [2009] NSWCCA 8. I am not persuaded that error of a kind that would warrant appellate intervention has been established. I would reject this complaint.

Accumulation/Totality 29 It is common ground that the sentencing judge had proper regard, in the manner in which he structured the sentences, to the principles enunciated in Pearce v The Queen (1998) 194 CLR 610. What is contended however is that the level of accumulation has led to an aggregate sentence which is manifestly excessive particularly given, it is submitted, that the "offences all occurred in the same event". 30 Although in a sense the offences all occurred during one episode, clearly enough a number of separate offences involving the supply of different kinds of drug were committed by the applicant during that episode. As a consequence, individual sentences which reflected that state of affairs were called for. The sentencing judge sought to accommodate the various sentencing considerations by imposing, in respect of each offence, a sentence which was partly concurrent and partly cumulative. That entailed an exercise of discretion to be made by the sentencing judge in accordance with the relevant principles: see R v Hammoud (2000) 118 A Crim R 66; Elmir v R [2009] NSWCCA 22 at [52]. I do not discern any error in the sentencing judge's approach either in the process which his Honour undertook nor in the result at which he arrived which would warrant appellate intervention. 31 Moreover, and even allowing for his favourable antecedents, his pleas of guilty and assistance to the authorities and his position as a user/dealer, I am not persuaded given the nature and extent of the applicant's involvement in the business of supplying drugs that the sentences imposed upon him were, either individually or in their overall effect, manifestly excessive.

Parity 32 That leaves the question of parity. As I observed earlier, Ms Wyles and Mr Barnes were arrested at the same time as the applicant. Ms Wyles pleaded guilty to knowingly take part in the supply of methylamphetamine or "base". She was convicted and fined $200 and placed on a s 9 bond. That offence arose from her having held the scales in order to assist the applicant in the supply of drugs. Mr Barnes pleaded guilty to two charges of possession of prohibited drugs. He received two concurrent bonds. He was also dealt with for an offence of supplying a small quantity of ecstasy, a matter with which the applicant was not charged. The sentencing judge concluded that the question of parity did not arise because the applicant's level of criminality was "far greater" than that of Ms Wyles and Mr Barnes and that he was "far more deeply entrenched in drug supply" than the others. 33 It was properly conceded on behalf of the applicant that "strict parity considerations" did not apply. It was nevertheless submitted that the sentences imposed upon the applicant were disproportionate to those of the other offenders both of whom had records for drug offences. In this context the applicant also highlighted the sentence which had been imposed upon his cannabis supplier. 34 The nature and extent of the applicant's role in this enterprise entitled the sentencing judge to conclude that his conduct was of a quite different kind from the criminality alleged against the other offenders. That difference was highlighted by the fact that the applicant was the only one of the three offenders to be dealt with in the District Court a factor which exposed him to the much higher penalties available in that jurisdiction. Furthermore, the sheer number and the relative seriousness of the offences of which the applicant was convicted served only to reinforce the difference between his circumstances and that of the other offenders. I would reject this complaint. 35 I propose that leave to appeal be granted but that the appeal be dismissed. **********

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