CRIMINAL LAW - appeal against sentence - whether manifestly excessive - parity -discretionary nature of sentencing - appeal dismissed
Cases Cited: Dwayhi v R [2011] NSWCCA 67
205 A Crim R 274
Green and Quinn v The Queen [2011] HCA 49
(2011) 244 CLR 462
Muldrock v The Queen [2011] HCA 39
(2011) 244 CLR 120
Parris v R [2013] NSWCCA 5
R v Ehrlich [2012] NSWCCA 38
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW - appeal against sentence - whether manifestly excessive - parity -discretionary nature of sentencing - appeal dismissed
Cases Cited: Dwayhi v R [2011] NSWCCA 67205 A Crim R 274
Green and Quinn v The Queen [2011] HCA 49(2011) 244 CLR 462
Muldrock v The Queen [2011] HCA 39(2011) 244 CLR 120
Parris v R [2013] NSWCCA 5
R v Ehrlich [2012] NSWCCA 38219 A Crim R 415
R v Lipton [2012] NSWDC 201
R v Mahmud [2010] NSWCCA 219
R v Sciberas [2006] NSWCCA 268
Judgment (2 paragraphs)
[1]
Judgment
MACFARLAN JA: I agree with R S Hulme AJ.
JOHNSON J: I agree with R S Hulme AJ.
RS HULME AJ: On 29 August 2013 this Applicant for leave to appeal was sentenced by Lakatos SC DCJ in respect of three offences.
The first offence was that between 20 January 2012 and 7 March 2012 he supplied not less than a large commercial quantity, 1.182.56 kg, of 3,4-methylene-dioximethylamphetamine, commonly known as ecstasy. The minimum large commercial quantity of that drug is 500 g. The maximum penalty for that offence is life imprisonment and a substantial fine and a standard non-parole period of 15 years has been prescribed.
The second offence was of supplying not less than the commercial quantity of methylamphetamine between 15 December 2011 and 22 March 2012. The maximum penalty prescribed for this offence is imprisonment for 20 years and a substantial fine. A standard non-parole period of 10 years has been prescribed. The offence involved the supply of 807.8 g, ie a little more than three times the minimum commercial quantity of 250 g and approaching the upper limit of that quantity and the bottom of the large commercial range.
The third offence was of supplying not less than an indictable quantity of methorphan - an offence carrying a maximum period of imprisonment of 15 years and a substantial fine. The amount supplied was 72.1 g, something over 14 times the minimum indictable quantity of 5 g.
In sentencing the Applicant for the first offence, Lakatos DCJ took into account a further offence being the supply of 0.59 g of ecstasy in the form of 2 tablets.
The sentences imposed were:
For the first offence, imprisonment for a non-parole period of 4 years and 3 months commencing on 1 November 2012 together with a balance of term of 3 years and 3 months.
For the second offence, imprisonment for a non-parole period of 3 years commencing on 1 May 2012 together with a balance of term of 1 year.
For the third offence, imprisonment for a fixed term of 2 years commencing on 1 May 2012.
The effective sentence imposed was thus one of 8 years, including a non-parole period of 4 years and 9 months. The sentence for the third offence was entirely encompassed by the sentence imposed for the second offence. The sentences for the second and third offences extended the periods the subject of the sentence for the first offence by 6 months.
The drugs the subject of the first charge were supplied on six occasions and involved quantities varying between 0.5 g (a sample) and approximately 645 g and a purity varying between about 8 and 21%. Included within the charge was also one quantity that formed an instance of deemed supply.
The second count reflected three occasions of supply, the purity being of the order of 6%. The third count involving the supply of 72.1 g was constituted by the supply on one occasion of 200 tablets, on a second occasion of 5 tablets supplied as a test sample and a third supply of 50 tablets.
The evidence of the Applicant's offending was placed before Lakatos DCJ in the form of a statement of agreed facts. In short, a Police Strike Force was established and initially focussed on a co-offender Remfrey but in due course was extended to surveillance of the Applicant and others. The Applicant obtained his drugs from two persons, Clark and Dodd, the latter being able to supply larger quantities, and then supplied the drugs to Remfrey and an undercover operative who had been introduced to the Applicant by Remfrey in the course of a controlled operation. A search of the Applicant's home after his arrest revealed indicia of drug dealing including a small quantity of white powder and tablets, a running sheet with prices, a number of mobile phones and a large number of plastic resealable bags. The Crown calculated the profit the Applicant had made over the three months covered by some of the charges as $3,400 and his Honour concluded it was not more than $4000. The total amount of purchase money that had passed through the Applicant's hands or in deals facilitated by him was $76,000, none of which was recovered. Although his Honour accepted that the undercover officer was the driving force in inducing the Applicant to supply the quantities he did, and observed that there was nothing to suggest that previously the Applicant had been involved in the supply of quantities similar to those the subject of the charges, he concluded that the Applicant was a willing participant, it being in his interests financially and otherwise to make the drug transactions as profitable an exercise as he could. He described the Applicant as, in effect, a middleman for the supply of large quantities of drugs.
Lakatos DCJ accepted that none of the drugs the subject of the charges reached the community but gave little weight to this fact.
The Applicant was born in October 1991. He had no criminal record and his Honour observed that "he was, until this time a person of good character". After leaving school after year 12 the Applicant had been employed in a family business and regarded as a good employee. He had been living at home with his parents and two siblings in a supportive environment. His Honour accepted that the Applicant on release from custody would continue to have the support of his family and, provided that support structure continued and the Applicant maintained his efforts at rehabilitation, there was little need for specific deterrence. His Honour found that the Applicant was remorseful and observed that he had a very strong subjective case.
Placed before Lakatos DCJ were a number of impressive references including from a counsellor of the GETTINGSMART Program and a probation officer. His Honour quoted from a psychologist's report that he said accorded with his own impression:
The offender's behaviour is best understood within the context of 'a man who was young and immature and was engaging in a hedonistic lifestyle that seemingly normalised his use of illicit drugs'. Moreover, his involvement in a subculture of individuals who engaged in substance abuse seems to have influenced his sense of social power and contributed to his offending behaviour. The combination of his immaturity, hedonistic traits and social power, adversely impacted upon his judgment such that he failed to recognise the long term consequences of offending.
However, prior to his arrest the Applicant had acquired addictions. His alcohol intake was excessive. He was using cannabis on a daily basis, ecstasy each weekend and had started using cocaine just before his arrest. He had a heavy gambling habit. The Applicant explained his dealing as engaged in to support these addictions. His Honour recorded that since his arrest the Applicant had taken significant steps to deal with the factors that had resulted in his offending.
The Applicant was arrested on 1 May 2012 and pleaded guilty at the earliest opportunity for which a 25% discount was allowed.
There are two grounds of appeal:
1. The sentence is manifestly excessive.
2. The sentences imposed on the Applicant give rise to a legitimate sense of grievance when compared with the sentences imposed on his up-line suppliers and co-offenders, Mr Colakoglu and Mr Dodd.
Ground 1
The sentence is manifestly excessive.
The argument in support of the first ground proceeded principally by way of comparison with two previous decisions - R v Ehrlich [2012] NSWCCA 38, 219 A Crim R 415 and R v Lipton [2012] NSWDC 201, a decision of Finnane DCJ referred to by the Court of Criminal Appeal in Parris v R [2013] NSWCCA 5. Lakatos DCJ had remarked that it was useful to compare the circumstances present in R v Ehrlich with those of the Applicant, remarking also that the objective seriousness of the facts in R v Ehrlich was significantly higher than in the present case. His Honour took a similar view of the circumstances in R v Lipton.
The sentence imposed on Ehrlich for the supply of 1.615 kg of methylamphetamine was a non-parole period of 4 years and 10 months with a balance of term of 1 year 8 months. The sentence reflected discounts of 25% for a guilty plea and 10% for assistance. This court dismissed an appeal against the inadequacy of the sentence. Adams J, with whose view in this respect Basten JA agreed, while holding that the sentence was not manifestly inadequate, said that the circumstances would have justified a starting point significantly higher. Johnson J regarded the sentence as manifestly inadequate and the sentence that should have been imposed was one of 9 years and 3 months including a non-parole period of 6 years and 9 months
Lipton was sentenced in respect of two offences - one of supplying a large commercial quantity being 586.9 g (not much more than the minimum large commercial quantity) of ecstasy and one of supplying a large commercial quantity being 1.905 kg (almost double the minimum large commercial quantity) of cocaine. The effective sentence imposed was of a non-parole period of imprisonment of 4 years and 6 months with a balance of term of 3 years and 6 months, these periods being arriving at after a discount of 25% for his plea. Finnane DCJ had remarked that Lipton involved himself in the quantities involved in these offences because a Police Officer had sought that supply.
Counsel for the Applicant conceded that the applicant was not entitled to a lesser sentence simply because he compared favourably to two decided cases where the offender received a lesser sentence. However it was submitted that because Lakatos DCJ had found those cases "of assistance" he must have found they were "sufficiently comparable to assess the appropriate sentencing range". It was further submitted that to impose a more severe sentence upon the Applicant than the sentences imposed on the other offenders whose cases were more unfavourable was demonstrative of error.
I do not agree. To say that two other cases are of assistance does not involve an acceptance that they set a, or as is implicit in the submissions, the standard against which any other sentence is to be judged. Despite the concession to which I have just referred the argument amounts to a simple comparison between two selected cases and the situation of the Applicant. There are innumerable decisions where this Court has repudiated such an approach.
Adding back the discount that the Applicant was given, the commencing point for the total sentence imposed on the first offence was 10 years. Compared against the guide posts of life imprisonment and 15 years as a standard non-parole period, it is not obvious this starting point is unreasonable or plainly unjust. As has been said, the quantity involved was over twice the minimum that brought the Applicant's offence into the large commercial range. And while he undoubtedly had a strong subjective case, his criminality was deliberate, repeated, and done for financial gain even if the need for that gain was the Applicants' own addiction. Against such offending, his prior good character - if that was an accurate assessment given his drug use and knowledge prior to first meeting the undercover officer that he knew "a fair few guys" that can get different drugs cheaply - is of limited weight.
Albeit measured against different guide posts, similar remarks can be made in respect of the sentences imposed for the second and third offences.
Sentencing is a discretionary exercise. There is no single right sentence. The remarks in R v Ehrlich that the circumstances in that case would have justified a significantly higher starting point demonstrate that the sentence imposed on the Applicant was not manifestly excessive. So do numerous other cases including some that were cited in R v Ehrlich such as R v Mahmud [2010] NSWCCA 219, circa [77]. See also R v Sciberras [2006] NSWCCA 268, 165 A Crim R 532 circa [58]. (Lest it be thought that the matter has been overlooked, I acknowledge that to some degree these cases may reflect an approach to the standard non-parole period since rejected by the High Court in Muldrock v The Queen [2011] HCA 39; 244 CLR 120. However they provide sufficient of a guide for present purposes.)
The first ground of appeal fails.
Ground Two
The sentences imposed on the Applicant give rise to a legitimate sense of grievance when compared with the sentences imposed on his up-line suppliers and co-offenders, Mr Colakoglu and Mr Dodd.
An overview of the offending of the three offenders and the sentences imposed on them is as follows:
Mr Whitby was dealt with for three offences, supplying a total of 1,182 g of MDMA, 807 g of methylamphetamine and 72 g of methorphan and sentenced to imprisonment for 8 years including a non-parole period of 4 years and 9 months.
Mr Colakoglu was dealt with for one offence, supplying a total of 1,573 g of MDMA and sentenced to imprisonment for 7 years 6 months including a non-parole period of 4 years and 3 months.
Mr Dodd was dealt with for four offences, supplying 1,288 g of MDMA and 74 g of methorphan and sentenced to imprisonment for 8 years and 3 months including a non-parole period of 5 years.
Mr Whitby's principal offence was, as has been said, supplying 1182.56 g of MDMA. Mr Dodd's principal offence was supplying 944.3 g of MDMA. For these offences both received the same sentence as that imposed on Mr Colakoglu, all three having received a 25% discount for their pleas. The gravamen of the complaint made under this ground is that Lakatos DCJ, who sentenced all three offenders, did not make adequate allowance for the different circumstances of their offending and their subjective characteristics.
Mr Colakoglu's offence was constituted by the supply of approximately 645 g of 16.5% purity on 21 February 2012 and approximately 628 g of 18% purity on 27 March of that year. The first supply was to Mr Dodd who then supplied the drugs to Mr Whitby. The second supply was intended to follow a similar form but was interrupted by police. Taken into account was an offence of supplying on a third occasion a commercial quantity, namely 298.7 g of 21% purity of ecstasy, again to Mr Dodd who on-sold the drug to Mr Whitby. Mr Colakoglu made a profit of approximately $2 - at one stage his Honour said "about $1 to $2 per pill - for each of the pills he sold to Mr Dodd. His Honour recorded that as far as could be calculated, Mr Colakoglu's profit was $8,000.
Mr Colakoglu was 21 at the time of sentence and had no prior convictions, although he had in August 2011 been placed on two section 10 bonds for assault. He had attended school until year 10, completing his secondary education at TAFE, done courses on the Responsible Service of Alcohol and Conduct of Gaming and obtained a Security Licence. During the sentencing hearing Mr Colakoglu was supported by a number of favourable references, including to the effect that he retained the support of his father.
He had experimented with a number of drugs although his drug of choice was 15 to 30 ecstasy tablets a week.
Mr Colakoglu sought to explain his offending by asserting that prior to the offending charged he had not been engaged in any such supply of large quantities and had only done so reluctantly and because of his friendship with Mr Dodd and information from the latter than he had been threatened. His Honour did not find this account convincing but did accept that Mr Colakoglu had been reluctant to supply Mr Dodd on each occasion. His Honour also accepted that Mr Colakoglu was remorseful and expressed the opinion that, with assistance, Mr Colakoglu's prospects of rehabilitation should be "optimistic".
In sentencing Mr Colakoglu, Lakatos DCJ made the point that Mr Colakoglu was not being sentenced for any offence other than that charged. His Honour was conscious of the sentence he had imposed on Mr Whitby, the latter's circumstances and the similarity and differences between the two offenders. His Honour remarked that while both offenders had little or no criminal history, Mr Colakoglu had been on conditional liberty, that the quantities of drugs involved in the charges against him were less and the number of charges faced fewer than in Mr Whitby's case. His Honour accepted that Mr Colakoglu was higher in the hierarchy but said that having regard to the quantities of drugs and that each offender made a modest profit this was not a matter of great significance. At one stage his Honour said that Mr Colakoglu was "one of those at the top of the hierarchy" but given that there was no reference by his Honour to how or those from whom Mr Colakoglu obtained drugs, this remark would appear to relate to only the offenders named in these reasons. His Honour remarked that the objective gravity of Mr Colakoglu's offence and the first of Mr Whitby's was not substantially different and expressed the view that the differences between them largely cancelled each other out except for the greater number of offences to which Mr Whitby had pleaded guilty.
Mr Dodd was sentenced in respect of four offences:
1. supplying between 24 January and 21 February 2012 not less than a large commercial quantity being 944.3 g of ecstasy;
2. between 28 January and 6 February 2012 supplying not less than an indictable quantity being 74 g of methorphan;
3. Between 18 and 25 February 2012 supplying not less than a commercial quantity being 223.02 g of ecstasy;
4. between 16 January and 26 February 2012 supplying not less than an indictable quantity being 111.0608 g of ecstasy.
The sentences imposed were respectively:
1. imprisonment for 7 years and 6 months including a non-parole period of 4 years and 3 months;
2. imprisonment for a fixed term of 2 years;
3. imprisonment for 3 years including a non-parole period of 2 years and 3 months;
4. imprisonment for 3 years including a non-parole period of 2 years and 3 months.
As is apparent from Mr Dodd's effective sentence being one of imprisonment for 8 years and 3 months including a non-parole period of 5 years, there was a deal of concurrency of the sentences.
Mr Dodd's first offence involved supply of drugs on three occasions to Mr Whitby. The fourth offence involved six instances of supply, only one of which was to Mr Whitby. The other offences did not seem to involve Mr Whitby. Mr Dodd had no Form 1 offence to be taken into account.
Lakatos DCJ noted that when arrested Mr Dodd had four phones in false names. His Honour described Mr Dodd as one level above Mr Whitby and a middle man for the supply of large quantities of drugs encouraged by an undercover police officer but also a supplier to consumers. His Honour remarked on Mr Dodd's position in the hierarchy and that he had a wider circle of customers and more extensive network, a fact his Honour said should be reflected in sentence. Mr Dodd's primary motive was found to be financial gain.
Mr Dodd was born in May 1999. He obtained his school certificate and completed a bricklaying apprenticeship and was said to have an excellent work ethic. He retained the support of his family and his previous employer said that he would re-employ Mr Dodd on his release. However Mr Dodd had a significantly worse record than the others, including convictions for mid-range PCA, offensive language and re-entering licensed premises, assault and assault occasioning actual bodily harm, and contravening an apprehended violence order. He had not previously been sentenced to imprisonment. He had become a binge drinker and became addicted to ecstasy, progressing to the habitual use of amphetamines and cocaine.
Lakatos DCJ observed that Mr Dodd was remorseful and with guardedly reasonable prospects of rehabilitation.
In sentencing Mr Dodd, his Honour remarked that the differences between 994, 1182 and 1274 g were perhaps not significant but noted that Mr Dodd was on conditional liberty and faced four charges, albeit over a shorter period than Mr Whitby's offending. His Honour observed that there were significant elements of parity which applied but Mr Dodd's more extensive supply network warranted a slightly greater overall sentence.
The gravamen of the attack on the fact that the Applicant had received for his most serious offence the same sentence that Mr Colakoglu had received was that the Applicant had not been given credit for the favourable findings of naivety and inexperience in dealing with large quantities, his lowly role in the hierarchy, his transient possession of the drugs and money, the undercover police officer's encouraging of the Applicant's offending, his very limited profits, his drug addiction and very strong subjective case.
Some of these matters do argue in the Applicant's favour although Mr Colakoglu had a respectable subjective case and also seems to have had a drug addiction. His Honour concluded that Mr Colakoglu's reward was more than the Applicant's but, given that he would not seem to have been a principal, the fact that he made more per pill is not obviously a factor entitled to significant weight. Certainly Mr Colakoglu would seem to have had freer access than the Applicant to large quantities but the Applicant's statement to the undercover police officer to the effect that knew "a fair few guys that can get different drugs cheaply" cannot be ignored. And while the Applicant seems to have yielded to the persuasion of the undercover officer, Mr Colakoglu seems also to have had some reluctance that was overcome. In any event as Lakatos DCJ made clear when sentencing Mr Colakoglu, the offenders were sentenced for the offences charged, not for the offences they might have been able to effect. In terms of the character of the first offence of the Applicant and that of Mr Colakoglu there was not much difference between the offenders.
As I have said, some of the matters relied on do argue in the Applicant's favour but the weight to be given to them is another matter. For example, his Honour was well entitled to conclude that the different positions of the two offenders in the hierarchy was not a matter of great significance. The "hierarchy" in this case was significantly different from that commonly prevailing where there are principals or bosses or organisers and one or more layers of underlings.
In a comparison with Mr Dodd, attention was drawn to Mr Dodd's more extensive supply network and apparent ease in accommodating the request for larger quantities and greater financial gain. It was pointed out that Mr Dodd had had a significant criminal history and had been on conditional liberty and his Honour's remarks that Mr Dodd's criminal history was "slightly worse" and that their different positions in the hierarchy was "not an overly significant matter" were criticised. It was submitted that the difference in sentences failed to give proper recognition to the difference in their subjective cases.
Again there are undoubtedly some factors that argue in favour of the view that there should have been a difference in the sentences imposed for their first offences and a greater difference in their overall sentences. However the factors relied on on behalf of the Applicant are not the only ones relevant. I would myself have regarded the 25% greater quantity involved in the Applicant's first offence as compared with Mr Dodd's as arguing for some increase in penalty and the difference between the total quantities - in the case of the Applicant 1990 g (albeit of different drugs) and in the case of Mr Dodd 1288 g - as certainly doing so.
As I have said, sentencing is a discretionary exercise. It is not an exact science. Different minds are liable to give different weight to different factors. As Garling J said in Rees v R [2012] NSWCCA 47 at [50]:
Because the function of imposing a sentence on an individual has a discretionary character, an appellate court will ordinarily be reluctant to intervene. There is no such thing as perfect consistency in sentencing. A search for perfect consistency is to look for the unattainable and will frequently be an exercise of academic abstraction: Postiglione at 336-7 per Kirby J, R v M (CA) (1996) 105 CCC (3d) 327 at [92] per Lamer CJ.
His Honour went on to refer to those cases which emphasise that before a court will interfere on parity grounds with a sentence otherwise proper, it requires that there be a "marked" or "clearly unjustifiable" disparity in the sentences under comparison. See also Dwayhi v R [2011] NSWCCA 67, 205 A Crim R 274 at [23] per Johnson J with whom the other members of the Court agreed. Furthermore, ,"A court of criminal appeal deciding an appeal against the severity of a sentence on the ground of unjustified disparity will have regard to the qualitative and discretionary judgments required of the primary judge in drawing distinctions between co-offenders." - Green and Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462 at [32].
In sentencing all three offenders Lakatos DCJ was conscious of their roles, similarities and differences but thought that the same sentence was appropriate for their most serious - in the case of Mr Colakoglu only - offences. While I can accept that other minds might not have taken exactly the same view as his Honour, I am not persuaded that in respect of that matter his Honour erred. Nor do I regard the relativity between the overall sentences as so great as to be erroneous.
Accordingly this second ground also fails.
I propose that the Court make the following orders:
1. Grant leave to appeal.
2. Dismiss the appeal.
[2]
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Decision last updated: 29 May 2015