White v R

Court of Criminal Appeal (NSW)|2013-09-05|Before: Macfarlan JA, Hidden J, Davies J, McCallum J, MacFarlan JA

Judgment 1MACFARLAN JA: I agree with Davies J. 2HIDDEN J: An important part of the argument of senior counsel for the applicant was the low grade quality of the substance in this case. It was described in the statement of facts as "liquid/sludge" and was found in two containers. One container, found in a waste bin, contained 1.083 kilograms of the substance, with a pure methylamphetamine content of 4.5%. The other container, buried in the garden, contained 2.25 kilograms of the substance, with a purity of 6.5%. Nevertheless, as Davies J has recorded, the total weight of the material was 3.333 kilograms and was of substantial value in the drug market. Senior counsel questioned whether, being in the form of a sludge, it was saleable, but there is nothing in the material before this court to suggest that it was not. 3The reference by the sentencing judge to a causal connection between the applicant's offending and his mental health issues appears to be related to an assessment of the applicant's moral culpability: McLaren v R [2012] NSWCCA 284, per McCallum J at [29], but I agree with Davies J that that issue did not bear upon his Honour's assessment of the objective gravity of the offence, as that expression must be understood in the light of Muldrock at [27]. His Honour's approach to the applicant's mental illness was appropriate to the circumstances of the case, and in accordance with authority on that issue. 4I also agree with Davies J that the sentence passed, having regard to the principal offence and to the Form 1 matters, does not convey that his Honour's pre-Muldrock reference to the standard non-parole period has affected it in such a way as to warrant this court's intervention. Nor could it be said to convey a misapprehension by the sentencing judge of the gravity of the offence. Taking into account all the circumstances, objective and subjective, the sentence was within the discretionary range open to his Honour. 5I agree with the orders proposed by Davies J. 6DAVIES J: On 6 December 2010 the Applicant pleaded guilty in Gosford Local Court to supplying a large commercial quantity (3.33kg) of methylamphetamine. The maximum penalty is life imprisonment and/or a fine of $550,000. The offence has a standard non-parole period of 15 years. 7On 12 August 2011 he was sentenced by Judge Ellis in the District Court. He asked Judge Ellis to take into account seven offences on the Form 1 as follows: (1)Possess a prohibited weapon (a Taser) without a permit - maximum penalty 14 years imprisonment; (2) Possess anabolic or androgenic steroidal agent namely Stanazol; (3) Possess restricted substances namely 298 Valium tablets, 150 Xanax tablets, 10 Zolpidem tablets, 1 Mogadon tablet and 2 Viagra tablets; The maximum penalty for these two offences is 2 years imprisonment and/or a fine of $2,200. (4) Possess a precursor (324 Sudafed and Demazin Pseudoephedrine tablets) for use in manufacturing a prohibited drug; (5) Possess drug manufacturing apparatus; (6) Possess a precursor (3038g of Iodine) for use in manufacturing a prohibited drug; (7) Possess a precursor (14.5g Pseudoephedrine) for use in manufacturing a prohibited drug. The maximum penalty for these four offences is 10 years imprisonment and/or a fine of $220,000. 8His Honour, allowing a discount of 25% for an early plea, sentenced the Applicant to a non-parole period of six years and three months commencing 28 May 2010 and expiring 19 August 2016 with an additional term of three years six months expiring 19 February 2020. (The date of 28 May is an error for 20 May and will be corrected.)

The facts 9Strike Force Goderich was an investigation by the State Crime Command Drug Squad in relation to the supply of prohibited drugs on the Central Coast. During that investigation the Applicant was identified as being involved in the supply of prohibited drugs. 10Electronic and physical surveillance showed that the Applicant frequently met with numerous persons at short notice and for short periods of time at his residential address at Terrigal as well as other nearby landmarks and locations nominated by him. When attending those meetings the Applicant always travelled to the location other than his residence in a 2004 Toyota Corolla Hatchback. 11The mobile telephone services used by the Applicant were the subject of lawful telephone interception. They demonstrated an extremely high amount of usage by the Applicant. 12On the evening of 20 May 2010 a search warrant was executed at the Applicant's premises at Terrigal. He was located inside the lounge room at the time of the execution of the warrant. 13All of the objects the subject of the eight charges were found in and around the property. Some of the substances later determined to be amphetamine were found in a plastic tub buried in the garden secreted under leaves. Subsequent analysis identified it as methylamphetamine with a 6.5% purity. Its gross weight was 3.333 kgs and its net weight 2.250kg. Its bulk value was estimated between $300,000 and $400,000 with the street value being more than that amount.

Grounds of appeal 14Although a Notice of Intention to Appeal was filed on 26 September 2011 the Notice of Appeal was not filed until 6 March 2013. The delay is satisfactorily explained in an affidavit by the Applicant's solicitor. The Crown does not oppose an extension of time. An extension should be granted. 15The Applicant appeals upon three grounds as follows: Ground 1: His Honour erred in his application of Div 1A of Pt IV of the Crimes (Sentencing Procedure) Act 1999 (ss 54A-54B) in the manner in which he had regard to the standard non-parole period provided for the offence. Ground 2: His Honour erred in his assessment of the objective seriousness of the offence. Ground 3: The sentence is manifestly excessive.

Subjective features 16The Applicant was born on 25 November 1973. He was aged 37 years at the time of the sentence. He had a minor criminal history in respect of which he had only received non-custodial sentences. There were no drug offences on his record. 17He was examined by Dr Richard Furst, a forensic psychiatrist, in September 2010. He told Dr Furst that he had a history of substance abuse dating back to his teens commencing with binge drinking until he was 19 years of age. He left school in year 11 and studied sheet metal fabrication at TAFE. 18There was mental illness in the family with his mother and sister suffering depression and an uncle and cousin diagnosed with bipolar disorder. The cousin committed suicide in 2008. 19The Applicant was diagnosed with Attention Deficit Hyperactivity Disorder in his childhood. 20Dr Furst diagnosed him as having Bipolar Affective Disorder (Type One - Rapid Cycling) and substance abuse disorder. He noted detrimental effects of alcohol and steroids on his mental state with interpersonal difficulties. 21Dr Furst thought that there were reasonable prospects for his future rehabilitation. He recommended a treatment plan on the basis on a non-custodial sentence. He thought if a custodial sentence was imposed that the Applicant should be referred to a clinical psychologist working within the Department of Corrective Services to deal with the Applicant's childhood maladjustment and his ability to cope with stress without resorting to drugs of abuse. Dr Furst also said the Applicant would benefit from drug and alcohol counselling in custody.

Grounds 1: The standard non-parole period 22In his Remarks on Sentence (ROS) his Honour said this: The standard non parole period and the maximum penalty of life imprisonment reflects the community's attitude to offences of this type. The community expects that condign punishment will be imposed upon those who offend in this way. The standard non parole period does not strictly apply because of the plea of guilty but nevertheless it is a guidepost for this Court's assessment of the appropriate penalty and the reality is that there must be some relativity between that standard non parole period and the non parole period imposed just as there must be some reasonable relativity between the maximum penalty and any total sentence that is imposed. This is not a mathematical sentencing exercise but nevertheless because of the fact that this Court is required to allow percentage discounts as well as to have some relativity to a fixed number such as fifteen it is necessary to consider those aspects although the final sentence to be imposed has been arrived at intuitively as the High Court has said on a number of occasions. ... In the Court's view, the criminality in relation to this matter is just below the mid range. The reason for that is that it appears that he was actually at the coal front in terms of supply rather than somewhere further up the line albeit that he may have been acting a little more independently than the average street dealer. The other issue is that the levels of purity at 4.5 and 6.5 are at the bottom range. There was material which is suggestive of the fact that he was supporting himself by means of his drug sales when one considers that he was unemployed during the months leading up to his arrest and yet was incurring reasonably large rental costs but at the same time there does not appear to be any level of significant high living and unlike some cases large quantities of cash were not located, et cetera. So for those reasons the Court is of the view that the criminality falls just below the mid range. Generally, in applying the standard non parole period, the Court has applied the principles set out by the Court of Criminal Appeal in R v Way, R v Ohar and R v AP and Ors. (emphasis added) 23The Applicant submitted that the Sentencing Judge's Remarks on Sentence demonstrated that he applied the approach to sentencing mandated in R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 contrary to what the High Court had said in Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120. 24In that regard Senior Counsel for the Applicant drew attention to the highlighted passages in the ROS to submit that they demonstrated that the Sentencing Judge felt compelled to follow the dictates of Way as he was then required to do. In that way the need to relate the non-parole period to the SNPP offended the approach now directed by Muldrock. 25The Applicant further submitted that the assessment of objective seriousness made by the Sentencing Judge involved error because, contrary to Muldrock at [27] and [32], it took into account the Applicant's mental condition. 26In Butler v R [2012] NSWCCA 23 I said (with the agreement of Whealy JA and Rothman J) at [26]: ...Merely showing that a sentencing judge sentenced pre-Muldrock following the dictates of Way will not be sufficient to demonstrate error. What should be ascertained in each case is whether a reliance on Way has sufficiently infected a sentence with such error that this Court must intervene. Ordinarily this might occur in cases where an applicant is found guilty by a jury, with the result that the sentencing judge will have considered that a two-stage process must be applied and that the standard non-parole period is mandatory unless factors can be found to justify a variation from it. It is far less likely that intervention will be required from this Court where a sentence has been imposed following a plea of guilty and the sentencing judge has referred to the standard non-parole period as simply a guideline or yardstick. 27As Bellew J (with whom McClellan CJ at CL and Rothman J agreed) said in Trevor Essex v R [2013] NSWCCA 11 at [30]: ...when considering whether or not such an error has been established, it necessary to consider the reasons of the sentencing judge as a whole. 28In Bolt v R [2012] NSWCCA 50 McCallum J (with whom Beazley JA and Harrison J agreed) said: [11] In Muldrock, the High Court held (at [25]) that Way was wrongly decided. Specifically, the court held that it was an error to characterise s 54B(2) as being framed in mandatory terms, requiring the court to take the standard non-parole period as the starting point for an offence assessed as being in the middle of the range. The court held that the correct approach was to identify all the factors relevant to sentence (including any prescribed standard non-parole period) and make a value judgment as to the appropriate sentence given all those factors (at [26]). The court specifically rejected the two-staged approach of beginning with an assessment as to whether the offence fell within the middle of the hypothetical range and, if it did, turning to the inquiry as to matters that justify a longer or a shorter period (at [28]). 29I do not consider that the references to "relativity" in the ROS demonstrate any error by engaging in the two-stage approach disapproved by Muldrock. The reference is no more than an acknowledgement that the SNPP is one of the factors relevant. That is made clear by his Honour's reference to sentencing not being a mathematical exercise and that the final sentence must be arrived at intuitively. 30Moreover, the sentence imposed for an offence said to be "just below the mid-range" had a notional starting point for the non-parole period of 8.33 years against a standard non-parole period of 15 years. Indeed, the notional starting point for the total sentence was 13 years. That is a strong indication not only that the SNPP was not the starting point for the sentencing exercise but also that undue weight was not given to it. 31The matter is not quite so clear when his Honour came to assess the objective seriousness of the offending. 32After setting out the facts and making the comments set out in the first two paragraphs of the extract in [22] above, his Honour turned to discuss the Applicant's subjective features. In relation to the mental health issues his Honour said this: The Court has had the benefit of a report from Dr Furst, psychiatrist, and while I do not propose to extract large portions of that into these remarks, I do note that the doctor reached the conclusion that the offender has a bipolar affective disorder and a substance abuse disorder. The substance abuse disorder relates more particularly to his use of various steroids. The report also sets out what can be described as a reasonably problematic upbringing and it is clear that the combination of that upbringing and the mental illness has meant that Mr White has had many difficult periods in his life. It is noted that part of the disorder is that his moods will move up and down rather like a swell in the ocean and it is clear that there is some causal connection between his offending and his mental health issue, causal in the sense that the mental illness did not cause him to commit the offence but nevertheless the mental illness is such that it inhibited his judgment and it may well be that it contributed significantly to poor decisions that he made both in terms of his own use of substances and abuse of things like alcohol as well as his decision to become involved in the supply of illicit substances. The Court applies the principles set out by the Court of Criminal Appeal in cases such as R v Hemsley [2004] NSWCCA 228 and the subsequent case of R v Pham [2005] NSWCCA 314. (emphasis added) 33His Honour then noted other subjective matters and the issue of statistics of sentences before turning to assess the criminality of the offending. At that point he said: In the Court's view, the criminality in relation to this matter is just below the mid range. The reason for that is that it appears that he was actually at the coal front in terms of supply rather than somewhere further up the line albeit that he may have been acting a little more independently than the average street dealer. The other issue is that the levels of purity at 4.5 and 6.5 are at the bottom range. There was material which is suggestive of the fact that he was supporting himself by means of his drug sales when one considers that he was unemployed during the months leading up to his arrest and yet was incurring reasonably large rental costs but at the same time there does not appear to be any level of significant high living and unlike some cases large quantities of cash were not located, et cetera. So for those reasons the Court is of the view that the criminality falls just below the mid range. 34His Honour put forward two reasons for finding the criminality just below the mid-range. These two matters (the Applicant's position in the supply chain and the purity of the drug) are matters which go to the nature of the offending. Then, before concluding that the criminality falls just below the mid-range, his Honour appears to consider some matters personal to the Applicant although he does not refer to the mental health issues. 35However, a closer analysis suggests that what follows the reference to the purity of the drug is an amplification of his reasons for finding that the Applicant was in the position of a street dealer. As his Honour noted elsewhere in the ROS (at 2): It is to be noted that the purity level ranged between 4.5 per cent and 6.5 per cent which is street level purity level rather than a purity level one might expect to find somewhat further up the chain where purity levels can be and often are above fifty per cent. 36The other place in the ROS that the Sentencing Judge refers to the Applicant's mental health issues is when considering special circumstances. He there said (at 6): I have applied many of the subjective factors to my assessment of the appropriate starting point with some residual application of the mental health issues to the decision to find the special circumstances and slightly change the ratio. 37Although in the passage set out at [32] above the Sentencing Judge makes a generalised reference to a causal link between the mental health issues and the offending, an assessment of the ROS as a whole does not suggest that the Applicant's mental health issues were considered by the Sentencing Judge as part of his assessment of criminality or objective seriousness. Certainly, when giving reasons for his assessment of the criminality his Honour did not refer at all to the mental health issues nor to issues concerning the cause of the Applicant's offending. 38I would reject this ground.

Ground 2 - objective seriousness 39The Applicant correctly acknowledged that the characterisation of the objective seriousness of a crime is a matter classically within the role of the Sentencing Judge and that this Court should be very slow to interfere with that characterisation. The Sentencing Judge exercises a broadly based discretion and the question must be whether or not the particular characterisation was open to his Honour: Mulato v R [2006] NSWCCA 282 at [47]; R v Koloamatangi [2011] NSWCCA 288 at [51]-[52]. 40Three matters were put forward suggesting error on the part of the Sentencing Judge in characterising the objective seriousness as just below the mid-range. They were: (1)the very low purity of the material; (2) the gross weight was well towards the bottom of the range of a large commercial quantity; (3) the absence of evidence to show that the offender was other than a street dealer. 41The Applicant, whilst acknowledging that the total weight of the substance found meant that the offence fell within the range of a large commercial quantity, pointed to the low level of purity which ranged between 4.5% and 6.5%. On that basis the pure form of the drug weighed a fraction under 195g, an amount less than the threshold for a supply of a commercial quantity. This, it was submitted, was a relevant matter for assessing the objective seriousness of the offending. 42I set out at [35] above what the Sentencing Judge said about the purity level. It is clear that the sentencing judge had regard to this matter. However, the total net weight of 3.3kg of the two quantities of sludge containing the drug, was more than three times the weight that constitutes a large commercial quantity. Further, the bulk value was agreed between $300,000 and $400,000 and, even though at that level of purity it could be suggested that those figures also represented street value, the Agreed Facts relevantly said: An estimated bulk value of this amount of amphetamine is between $300,000 to $400,00. The street value of this amount of methylamphetamine is further increased on this monetary amount. 43The Applicant also pointed to the difficulty of characterising the offending as being in the mid-range when the offence of supplying a large commercial quantity has no upper limit. However, that submission falls into the error of according too much significance to the weight of the drug to the exclusion of other considerations: R v MacDonnell [2002] NSWCCA 34; (2002) 128 A Crim R 44 at [33]; Ly v R [2008] NSWCCA 262 at [23]. 44That there is no upper limit of the weight of a drug constituting a large commercial quantity has not been seen to be a problem in assessing the objective seriousness of the offending in other cases: Hamieh v R [2007] NSWCCA 277 at [22] - [23]; Ly at [28]; Efstathiadis v R [2009] NSWCCA 319 at [18]. 45Whilst the purity level suggested the Applicant was a street dealer it was not true to say there was an absence of evidence suggesting that the Applicant was other than a street dealer. Three of the offences on the Form 1 were for possessing precursors of different types and one of the offences involved being in possession of drug manufacturing apparatus. Those matters might have suggested a greater involvement than being a mere street dealer. Nevertheless, the Sentencing Judge characterised the Applicant's role as a street dealer. 46It is necessary to demonstrate an error of the House v The King type to make out this ground. It cannot be said that his Honour's finding of the offence just being below the mid-range was not open to him. Nor was it an error for him to assess the offending in that way as the Applicant suggested: Zreika v R [2012] NSWCCA 44 at [45] - [47]. 47I would reject this ground.

Ground 3: Sentence manifestly excessive 48The Applicant's written submissions in relation to this ground of appeal concentrated in particular on the purity and weight of the drugs and, in the light of those matters, compared sentences in what were said to be comparable cases. The oral submissions concentrated on the diagnosis provided by Dr Furst and the Applicant's subjective features. 49In Hamieh the applicant was charged with supplying a little over 2kgs of methylamphetamine. He was sentenced to a non-parole period of seven years with an additional term of four years. When he was arrested at his home the police found numerous mobile phones and SIM cards, $9,625 in cash, electronic scales and an open box of Glucodin powder [it is not clear what this substance is - it may be an error for glucosin]. The potential street value of the drugs found was between $450,000 and $610,000. A co-offender was sentenced by another judge to a non-parole period of five years with an additional term of two years and nine months. A parity argument on behalf of the Applicant was upheld on appeal and he was sentenced to a non-parole period of five years and two months with an additional term of two years and nine months. 50In Ly the applicant was charged with supplying 1101.22g of methylamphetamine. With a discount of 25% he was sentenced to a non-parole period of eight years with an additional term of four years. The notional starting point was, therefore, 16 years. The purity of the drug was 50.5% and the estimated street value was $550,000. At the time of his arrest he had a significant drug habit. The only appeal ground was that the Sentencing Judge erred by finding that his offence fell within the mid-range of seriousness for offences of the type. The appeal was dismissed. 51In Efstathiadis v R [2009] NSWCCA 319 the applicant was charged with supplying 1.9kgs of methylamphetamine. He was sentenced to a non-parole period of ten years with an additional term of four years. The purity of the drug was 59.5%. He had previously been convicted in December 2000 for ongoing supply of a prohibited drug when two further matters were taken into account on the Form 1. His criminality was found by the Sentencing Judge to be only very slightly below the mid-range of seriousness. He received a 10% discount for his plea. The notional starting point, therefore, was 15 years and six months. He appealed on the basis that the sentence was manifestly excessive. This Court had regard to both Hamieh and Ly and held that they did not provide assistance in showing that the sentence was manifestly excessive. The appeal was dismissed. 52R v Ehrlich [2012] NSWCCA 38; (2012) 219 A Crim R 415 was a Crown appeal. The offender was charged with supplying 1.615kgs of methylamphetamine. He was given a total discount of 35% for his plea and further assistance and was sentenced to a non-parole period of four years and ten months with an additional term of one year and eight months. The notional starting point was, therefore, a little over 15.7 years. The Sentencing Judge concluded that the offender was a principal and was pivotal to the ongoing success of the syndicate. The street value was something over $450,000. There were parity issues that would have come into play had the sentence been increased by this Court. By majority the residual discretion was exercised to dismiss the appeal. 53In Perdija v R [2012] NSWCCA 244 the Applicant was charged with supplying four counts of MDMA. The Applicant was sentenced to a non-parole period of six years with a balance of term of three years and nine months. The sentences were structured so that the practical effect of the sentence for the fourth count was to increase the Applicant's non-parole period from four to six years and to add a year to the balance of his term. This Court held that there was no proper basis for that increase. The sentence for count 4 was reduced so that the overall sentence was a non-parole period of three and a half years with a balance of term of three and a half years. 54These cases provide no support for a submission that the sentence in the present appeal was manifestly excessive. The notional starting point in the present case was 13 years. The sentence is well within the range of the sentences imposed in those cases (Perdija excepted) and although the weight of the drugs is not a determinative factor it is a matter to be taken into account. The weight in the present case exceeded the weight of the drugs in the other cases although the purity was lower. 55Perdija is not an appropriate case to compare with the present. It concerned the supply of a commercial quantity of MDMA, the maximum sentence for which is 20 years imprisonment with a standard non-parole period of ten years. 56I have also had regard to the other cases summarised by Adams J in Ehrlich which were said to be relevant to an assessment of the inadequacy of the sentence in that case. Amongst the cases that Adams J considered were Ly and Hamieh. 57Senior Counsel for the Applicant submitted also that the offence was committed by a man whose life was 'quite chaotic" having "serious mental health problems" that were closely connected to a long history of drug abuse. These subjective features were said to mean that the standard non-parole period had little significance in this case. 58The Applicant certainly had some favourable subjective features which the Sentencing Judge clearly considered and took into account. These included not only his mental health and substance abuse issues but also the fact that he had virtually no prior criminal history. I do not consider that his Honour failed to have regard to any relevant matters. I do not accept that because of these features the standard non-parole period had little significance. I do not consider that undue weight was given to it particularly having regard to the matters referred to in [30] above. 59The other matter that cannot be overlooked when considering whether the present sentence is manifestly excessive is the number and nature of the Form 1 charges that were taken into account. Not only did they not entitle the Applicant to leniency but they might be regarded as having appropriately increased the sentence on the principal offence: Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146 at [43].

60As noted at [8] above the Sentencing Judge said that the sentence was to commence on 28 May 2010. That date does not accord with the dates his Honour gave as the expiry dates of both the non-parole period and the additional term. His Honour earlier noted that the Applicant had been in custody since 20 May 2010 and he proposed to backdate the sentence to that date. It seems likely, therefore, that the reference to commencing the sentence on 28 May was a typographical error in transcription of the judgment since neither counsel raised it with his Honour at the time. The sentence will, therefore commence on 20 May 2010 but will otherwise remain unchanged. 61I propose the following orders: (1) Extend time to file Notice of Application for leave to appeal to 6 March 2013; (2) Grant leave to appeal; (3) Dismiss the appeal.

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: 22 November 2013

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