Williams v R

Judgment 1WARD JA: I agree with RS Hulme AJ 2JOHNSON J: I agree with RS Hulme AJ 3RS HULME AJ: On 11 September 2012 this Applicant for leave to appeal was sentenced by Wells SC DCJ to imprisonment for 6 years, including a non-parole period of 3 years and 9 months, in respect of an offence of supplying a commercial quantity of cocaine. 4The offence carries a maximum penalty of 20 years' imprisonment and is one for which a standard non-parole period of 10 years' imprisonment has been prescribed. The Applicant pleaded guilty and was awarded a discount of 40%, being 25% for his plea and the balance for what her Honour described as extensive assistance resulting in some danger to himself. 5The offence was constituted by the Applicant selling to an undercover police officer at the Rose Bay Hotel on 6 occasions between 18 March 2010 and 1 July 2010 a total of some 392.7 gm of cocaine worth $107,000. Following the Applicant's arrest, police executed a search warrant at his premises, finding there or in his car, inter alia:-

• a further 144.5 gm of cocaine
• 594.9 gm of cannabis
• small quantities of other drugs being methylamphetamine, ketamine and cannabis resin
• two sets of scales and numerous small plastic resealable bags
• $23,000

6These items were the subject of charges placed on a Form 1. * 7The Applicant gave evidence which appears to have been accepted by the Crown and her Honour that he had been selling the cocaine as a favour for a friend, his reward being allowed for his personal use a small proportion of the cocaine supplied to him. Her Honour observed that the Applicant was more than a mere street runner, was trusted to handle substantial quantities of drugs and cash, and his offending occurred over a substantial period. 8The Applicant was born in October 1954. He had had a stable upbringing, was a high average student and school captain, completed year 12 and after leaving school completed a 4 year study course. He played soccer at a professional level from age 16 to age 22. He had two marriages, two children and two de facto relationships, the last of which ceased in October 2011 leaving the Applicant feeling lonely and depressed. 9He has had a substantial history of enterprise and employment, including some self-employment in a number of fields for most of his adult life. In the six years before sentence he was involved in event management and marketing of international celebrity tours and, at least up until March 2012, earning about $1,000 per week. 10The Applicant has been a long-term user of illicit drugs, mainly cocaine and cannabis. The evidence is not all consistent as to the extent of, particularly the cocaine, use but for most of the time since it commenced in 1980 the Applicant's usage seems to have been substantial, escalating in times of stress such as a car accident in 2006, heart problems in 2007, attempted suicide by his son, three miscarriages suffered by a partner and her consequent emotional problems. He also has abused alcohol for many years which, combined with his drug use, has led to liver and kidney damage. 11The July 2006 car accident was significant. Although his general practitioner had no awareness in this regard, Dr Hardy, a specialist in addiction medicine who commenced to treat the Applicant for his addiction problems in February 2012, diagnosed the Applicant as suffering from frontal lobe damage attributable to alcohol intake and head injuries sustained in the 2006 car accident. Dr Hardy diagnosed the Applicant as also suffering from a number of other conditions including Post Traumatic Stress Disorder. Dr Hardy's report of 7 May 2012 included the following :- Mr Williams reported to me that the incident which led to his arrest occurred with one person over a number of interactions. He mistakenly believed that he was helping a friend in a time of need. Whilst we all accept that the provision of any illicit drug to any individual is harmful, the following points need to be made. Firstly, Mr Williams had a significant history of low mood, resulting in social contraction, loss of meaningful friendships and an underlying need to help others. Secondly, his PTSD and frontal lobe syndrome had profoundly affected his judgment, such that he found himself trying to assist a police officer in obtaining cocaine. 12A report from a Dr Hepner, a neuropsychologist to whom the Applicant was referred by Dr Hardy, was also tendered during the sentencing proceedings. In it Dr Hepner stated - I quote from her Honour's summary that was not the subject of criticism - that there was:- ... no evidence of impairment to (the Applicant's) current intellectual functioning nor was there impairment to his basic attention, speed of information processing and high level frontal executive functions that include verbal reasoning, social reasoning, verbal generate activity and speed and flexibility of thinking. She does indicate though that there is some deficit in parts of frontal executive functioning, in particular in the Applicant's ability to adapt and regulate his behaviour when given feedback." 13Her Honour recorded Dr Hepner's view that what had been detected in cognitive testing and his self reporting did indicate or was consistent with frontal lobe dysfunction. 14The Applicant has a small criminal history including possession of cannabis in 1982, three counts of possession and two of administration of a drug in 1987, and in 2000 one count of supplying greater than an indictable quantity of cannabis and another count of supplying a small quantity of some other drug. On each of these charges a 2 year suspended sentence was ordered. 15Her Honour accepted that the Applicant was remorseful and had made significant efforts to rehabilitate himself, including undergoing weekly drug screening, spending a month in a residential rehabilitation program at Kedesh House and participating in therapy sessions with Dr Hardy. Her Honour accepted that the Applicant had positive prospects of rehabilitation. 16Her Honour observed that the Applicant had serious mental and physical health problems which would deteriorate with time and found special circumstances in the fact that it was the Applicant's first time in custody and he would need a longer period on parole under supervision. Earlier, her Honour had accepted that the Applicant's mental condition affected his judgment but only to a limited extent. She did not accept that the Applicant's judgment was so affected that it substantially reduced his moral culpability. Her Honour remarked that the Applicant chose not to do anything about his drug problems until after his arrest. 17The grounds of Appeal are:- The sentencing judge erred in the assessment of the objective seriousness of the offending in [finding] that the objective seriousness of the offence was increased by: (i) taking into account the fact that there were six separate supplies of cocaine to the undercover officer over the relevant period; and (ii taking into account motivation for financial gain. 18In her assessment of the objective seriousness of the Applicant's offending, her Honour certainly did take into account that there were six separate occasions of supply over a significant period observing that:- In that sense this is not an isolated act. His actions cannot be regarded then as impulsive. His conduct necessarily involved premeditation and planning. That is not to suggest that he had a role in planning it but he certainly had the opportunity to have regard to what he was doing in carrying out the acts that made up this offence six times between 18 March and 1 July 2010. 19On the topic of financial gain, her Honour said:- The fourth matter is that as the offender is a drug user himself, in particular of cocaine, the offences could not be said to be purely motivated by financial gain which can aggravate an offence such as this. However, unlike many user dealers he had available to him legitimate income or assets that could have funded his personal use, increasing and eating into his finances though it (sic) was. He nevertheless could have done that by lawful means. He had a car, a house and the ability to make a reasonable income. He was making an income according to what he said on the pre-sentence report. He was most certainly not in the class of offender who was destitute or desperate like so many drug addicts who sell drugs to finance their habit. 20There was no challenge to her Honour's account of primary facts referred to in these remarks. Otherwise the remarks themselves are unexceptionable. The Applicant chose crime, and repeated crime, as a way of supporting his cocaine use. The choice and the Applicant's implementation of it were factors very relevant to sentencing him. 21In support of the first complaint, reference was made to Cicciarello v R [2009] NSWCCA 272 at [19] where it was said:- 19 Ground 3 concerned the way the sentencing judge took into account as an aggravating factor the fact that there was a series of criminal acts: the Crimes Sentencing Procedure Act (1999) (NSW), s 21A(2)(m). The difficulty with this is that those multiple criminal acts were the foundation for the more serious offence with which he was charged, namely supply of not less than a commercial quantity of the drug for which a maximum penalty of 20 years imprisonment was provided. They were not strictly elements of the offence charged, as for example they would have been in an offence of on-going supply under the Drug Misuse and Trafficking Act, s 25A. In such a case, the Crimes (Sentencing Procedure) Act, s 21A would expressly prohibit a sentencing court from having additional regard to such matters as an aggravating factor. The risk of double counting in the assessment of objective seriousness in that case would thereby be avoided. Here, when the series of criminal acts leads to the more serious criminal charge being properly laid against the applicant, the prohibition against double counting is undermined if the same series of criminal acts is taken into account as an additional aggravating factor, in turn leading to an erroneous characterisation of the offence as one of mid-range seriousness. The above is consistent with Tadrosse [2005] NSWCCA 145; 65 NSWLR 740 at 747 [29]. 22The report of the case is very short and contains but a summary of the remarks of the original sentencing judge. However, reading the passage cited, it is clear that what the Court was concerned to criticise was the use of the series of criminal acts as an "additional aggravating factor", not the use of them as an indication of the objective criminality. That view is reinforced by the reference to Tadrosse v R where an offender was being sentenced for multiple offences and the sentencing judge had taken into account the multiple instances of criminality as aggravating conduct under s 21A(2)(m) of the Crimes (Sentencing Procedure) Act. There is nothing in either of the cases mentioned to suggest that the number of incidents making up the criminal conduct cannot be taken into account at all. 23Cicciarello v R was also referred to in support of the second aspect of the ground of appeal. At [17] of that case it was said:- 17 Whilst one should be careful about generalising in relation to such factors outside the circumstances of any particular case, here, quite clearly, when one understands the background of this young man and what he was doing, he was not selling for greed or for financial gain, he was selling to feed a drug habit that he had acquired. This does not detract from the fact that he committed a serious offence, but what it does mean is that it was an error, and an important one, to characterise this as selling for financial gain and thus to characterise it as an offence falling within the mid-range. In our view, that latter conclusion must clearly have been affected by the finding of financial gain because no other basis in the facts could found such a conclusion. 24Her Honour's remarks recognise and reflect the distinction drawn in the passage just cited and, contrary to submissions of the Applicant's counsel, her Honour's recognition of the fact that the Applicant was not a destitute drug addict, was something that it was proper for her Honour to take into account. 25In what was a blatant attempt to expand the grounds of appeal beyond their terms and beyond anything advanced in written submissions, the experienced counsel for the Applicant submitted that in taking into account motivation for financial gain, her Honour misunderstood some of the medical evidence that was before her, conflating issues of intellect and impairment. In that connection, counsel referred the Court to some of the evidence given by Dr Hardy. 26It is unnecessary for the purposes of these reasons to refer to all of that evidence. I have quoted from Dr Hardy's report. In oral evidence, Dr Hardy was taken to that portion of Dr Hepner's report wherein she referred to there being no evidence of impairment in the Applicant's level of intellectual function and other matters, and asked whether he disagreed. Dr Hardy's response was: Well I can't because you know I commissioned the report on the basis that I didn't know the answers and this is the answer. 27Asked how he could reconcile his opinion that the Applicant did not understand how right or wrong his drug dealing was with the opinion of Dr Hepner his response in a number of answers was to the effect: On the basis that when one's frontal lobes are basically removed .... He has no discernment at all about right and wrong, good or bad ... I am presenting to your Honour a - I guess a menu of possibilities that exist within this man from being normal, consenting and fully culpable to having ... no culpability at all. Now I'm not suggesting to your Honour that he has no culpability in this matter. However, I am suggesting that his culpability has been attenuated to some degree and I'm unable to express to you exactly to what percentage that is ... ... There aren't many explanations for continuing to do this other than criminality. You know criminality with full culpability apart from having diminished frontal lobe. 28Asked how the Applicant's conditions affected his culpability Dr Hardy replied: .... This is a very, very complex area of neurology but the removal of one's frontal lobes in entirety takes away higher judgment and discernment entirely. Now the issue comes back to degree in this man's case and we can't just simply measure it ... he's somewhere between normal and none and I can't tell you exactly where it is but it certainly is reduced. It's clear from my conversations with him. It's clear from the way he has described the events. He's minimally sort of engaged in what had happened and that this goes hand in hand with a loss of emotional engagement in the actual crime itself initially when he was describing it to me when he was still raw in rehab. 29It is apparent from her Honour's questioning of Dr Hardy and in her remarks on sentence that she was conscious and sceptical of his evidence. In those remarks she adverted to the Applicant's mental condition as bearing on the objective seriousness of the offending and referred to the disorders that had been diagnosed. Her Honour continued: The sixth matter in regard to the objective seriousness is in relation to (the Applicant's) mental condition. There is material in the form of the psychological and psychiatric material that suggests that at the time of committing the offences he was operating under a mental disorder or illness, including major depression, post traumatic stress disorder, an acquired brain injury and/or a combination of those matters and that there was a causal link between them in that the commission of the offence, in that those matters affected his judgment in the commission of the offence. While the existence of those problems cannot be denied and in many cases will reduce the objective seriousness of an offence, here there is a limited causal link between the existence of those problems and the commission of the offences. I base that view on consideration of a combination of the neuropsychologist's report and the factual material in relation to the commission of the offences, and all of the other material in relation to his psychological condition. 30Her Honour went on to record that the Applicant's view was that he suffered no long-term effects of the car accident and it was reasonable to take that opinion into account to a limited extent. Her Honour referred to the fact he was still working and to the fact that the Applicant commenced using cocaine at about the age of 30. She continued :- His problem with drug addiction in this particular matter does not excuse his involvement in the offence, nor does it diminish the objective seriousness of the matter. I do accept though that his mental condition did affect his judgment but to a limited extent. Certainly he had undergone a difficult personal period ... some of this was self-inflicted ... However, large parts of it were the product of a round of difficult events outside his control. However, despite these matters, I do not accept that his judgment was so affected that it substantially reduced his moral culpability ... ... At least one of his friends gave evidence that he had told [the Applicant] many times prior to his arrest to get help and to stop using drugs ... He chose not to do anything about his drug problems until after his arrest. The matters concerning his mental condition though, whilst of limited significance in terms of reducing the objective seriousness of the offence, do merit weight in regard as well to his subjective circumstances. 31The evidence to which I have referred demonstrates that there were substantial bases for her Honour not to accept all of the evidence of Dr Hardy. Furthermore, her Honour's reasons make it clear that there is no basis for the suggestion that her Honour did not properly understand the evidence before her and conflated issues of intellect and impairment. 32I would grant leave to appeal against sentence but dismiss the appeal.