Yondjo v R

Court of Criminal Appeal (NSW)|2018-10-22|Before: Hoeben CJ, Davies J, Button J

Judgment

HOEBEN CJ AT CL: I agree with the reasons of Button J and the order which he proposes. Far from being excessive, I consider that the aggregate sentence was lenient in the circumstances.
DAVIES J: I agree with Button J.
BUTTON J:

Introduction

This application for leave to appeal against sentence is, in my respectful opinion, devoid of merit, and should be the subject of a refusal of leave. For that reason, my recitation of the relevant facts and circumstances, my discussion of the submissions of the applicant, and my analysis of those submissions, will be shorter than they would have been if I had felt that leave should be granted. To do otherwise would be to render the refusal of leave fruitless.

Grounds of appeal

In support of the application for leave to appeal against sentence, the following grounds were notified and pressed at the hearing before us by the applicant, who was unrepresented:
Based on official statistics and comparable cases, the Sentencing Judge made an error in principle in the exercise of his discretionary prerogatives in determining the range of sentence to impose.
The sentencing Judge made material error of law and facts by both omitting to consider some salient features of the evidence and allowing extraneous material to influence the final order.
The Sentencing Judge made not only an error of law but also erred in principle in treating criminal record as an aggravating factor, and in determining the degree of criminality involved as well as the range of sentence to impose.
Miscarriage of justice occurred due to counsels' incompetence and carelessness during the Lower Court's proceedings, arraignment and sentence hearings in the District Court.
An error was made as to the objective seriousness of the offending resulting in failure to give a proper discount for the utilitarian aspect of the guilty plea. Both the objective and subjective features in the case sufficiently show the bases for a conclusion that the sentence is manifestly excessive and that other sentence is warranted in law and should have been passed.

Objective features, and objective seriousness

The following is derived from the agreed statement of facts placed before the sentencing judge.
At 4 am on 7 June 2015, a police officer noticed a car parked at the curb with its engine still running on the Princes Highway in a suburb of Sydney. The only occupant of the car was the applicant. The officer had a short conversation with the applicant, and noted that his eyes were bloodshot, and that he appeared nervous and was moving around in his seat. A breath test for alcohol returned a negative result.
The applicant was asked to step out of the car. The officer noticed a small clear bag on the floor mat of the driver's side of the vehicle. The applicant stated "I don't know what it is but I haven't had any. I sell gemstones. It's my business". On analysis, the substance was determined to be 5.01 grams of methylamphetamine, with a purity of 79.5%. It underpinned count 1 on the indictment.
The applicant was subsequently searched by the officer. The applicant dropped a black satchel wallet, and a large sum of money fell from it, totalling $3,909.50. The applicant's explanation was that the money was proceeds from his business "loading containers full of machinery". A number of other items were found in the vehicle. They included an orange cylindrical pipe and some black scales. The applicant was arrested and charged, and was subsequently released on conditional bail.
On 15 June 2015 (that is, 8 days later), on receipt of intelligence that the applicant was involved in the supply of prohibited drugs and was nearby, police travelled to his location. Officers noticed the applicant arriving by car at a car park, and leaving the vehicle with a black laptop bag. He walked towards a block of apartments.
Two minutes later, the applicant left the unit block with the laptop bag. At the rear door of the car, the applicant removed what appeared to be a large machete. He got into the car and drove towards the City West Link in the inner west of Sydney, with the police officers following.
The applicant began moving around the driver's seat, and a police officer saw the applicant look at him through the rear vision mirror. The applicant's vehicle turned suddenly, and police activated the lights and sirens of their vehicle. The applicant thereafter drove recklessly. He accelerated, threw an object out of the car window, swerved harshly, collided with the curb, exited the car, and ran on foot into a grocery store. All of this underpinned the driving offence that was count 3 on the indictment.
The officers stopped the vehicle and pursued the applicant into the store. The officers caught up with the applicant, and told him to get on the ground but the applicant refused. Shortly thereafter, he was arrested.
An officer went back to where the applicant had thrown the object out of the window, and located a "clam style lock safe" and three plastic bags containing a white crystal substance. The three bags contained 95.7 grams of methylamphetamine with a purity of 80%. This underpinned count 2 on the indictment.
A search of the applicant resulted in the discovery on his person of two bundles of $50 notes totalling $9,000. Separately, inside the safe, a set of scales was located. The applicant's DNA was later found inside the safe.
Later, at the location where the safe was found, police found a plastic bag containing a sandy coloured granular substance. It was determined to be 2.29 grams of heroin.
A search of the applicant's car located, amongst other items, a machete with the name "Musa Pene Okele" inscribed into it.
In addition, a number of documents relating to shipping containers at an address in the Sydney suburb of Kirrawee were located in the applicant's vehicle. The applicant was a sub-lessee at those premises.
A search warrant for the Kirrawee address was applied for that same day. Numerous items were discovered within a shipping container, some of which were identified as stolen goods from premises and cars in the inner west of Sydney. These underpinned count 4 on the indictment.
The following further findings about objective gravity were made in the remarks on sentence.
The applicant was found to be acting alone, and was involved in drug "trafficking in a substantial degree".
In addition, the police pursuit offence was said to be a serious example of that type of offending, due to its degree of recklessness and associated danger.
At page 5 of the remarks on sentence, the sentencing judge concluded with regard to the recklessly dealing with proceeds of crime offence: "No issue was taken with the submission that this offending is toward the lower end of the spectrum of conduct that might be caught by this offence. I accept that submission, but having regard to the extent of the property it could not be described as being at the lowest end of the spectrum."

Subjective features

The following are matters generally accepted by the sentencing judge in the remarks on sentence, many of them based upon things that the applicant had told a psychologist, and whose report was tendered in evidence.

General background

The applicant was born in the Democratic Republic of Congo (DRC), and at the time of sentence was aged 53 years. He described a normal childhood. However, his parents separated after he was born, and his father remarried.
The applicant attended university in that country, and completed a two year degree in industry sociology. He was also involved in a demonstration calling for democratic reform. This led to the then-President ordering commandos to raid the university student residence. The applicant recalled soldiers coming into the dormitories at night and stabbing people. He witnessed people being "shot and bombed". The applicant fled, whilst one of his companions was killed by land mines placed in the surrounding area.
Soon thereafter, the applicant fled the DRC to Zambia, and spent three and a half years in a refugee camp.
In 1993, the applicant was sponsored to re-settle in Australia. His first wife and three children were unable to join him.
In 1999, the applicant discovered he was HIV positive. He and his wife decided to separate after his diagnosis.

Employment, and failure of business

As for his employment history, in Australia the applicant had been employed at various times as a printer's assistant, a storeman and as a security officer. Later, he worked as a forklift operator. The applicant also enrolled in an enterprise incentive scheme, and developed a business of importing gemstones and other artefacts from Africa. This business was not successful, and its funding was withdrawn.

Criminal record

The criminal history of the applicant was found by the sentencing judge to deny him the leniency that might otherwise be extended. It can be summarised as follows.
In 1997, he was convicted of stealing, and he was also placed on a two year good behaviour bond for obtaining a financial benefit by deception.
In 2003, he was sentenced to 12 months' imprisonment for fraud.
In 2004, he was sentenced for 12 months' imprisonment for obtaining money by deception.
At the time of committing those offences, the applicant was on bail for maliciously inflicting grievous bodily harm in 2003. That offence involved him having been diagnosed with HIV, but sexually transmitting that disease to another person. The applicant pleaded guilty to that offence and received a sentence of imprisonment for 12 years with a non-parole period of 9 years commencing in April 2004.
The applicant was released on parole in April 2013 at the conclusion of his non-parole period. He engaged with a psychologist for ten sessions and attended a Probation and Parole course.
His head sentence expired in its entirety in April 2016. All offences the subject of this application were therefore committed whilst the applicant was on parole.
Inevitably, the sentencing judge adversely took into account that the applicant was on that conditional liberty at the time of all of the offending, and, for the latter offences, was also on bail for the offending eight days before.

Drug dependence, and psychological state at time of sentence

After the failure of the business venture to do with importing gemstones, the applicant turned to alcohol, methylamphetamine, cocaine, and other drugs. Eventually, he "would just sleep, eat and smoke ice". His drug use increased over time, to the point where he was smoking methylamphetamine "three to five times a day".
The sentencing judge also noted that the observations of police at the time of the earlier offence gave "substantial support to the conclusion that he was well affected by illicit substances, in particular likely methylamphetamine."
The sentencing judge also accepted that, at the time of the commission of all offences, the applicant was a heavy user of illicit drugs. As was stated at remarks on sentence page 3: "He was a polysubstance abuser, the substances concerned including heroin and predominantly crystal methylamphetamine or ice. As was conceded by the offender, this provides no excuse for his conduct but does provide some context for an assessment of the objective gravity of the two supply offences in particular."
The offending was found to be motivated to some extent by a need to support his own habit.
The applicant was diagnosed with post-traumatic stress disorder arising from the incident at university. The applicant reported to the psychologist that "the fear is still in him all the time and that he experienced anxiety attacks with sweating during sleep". He was also "very distressed about the lack of capacity to support his family in Africa". The psychologist stated that "it is likely that Mr Yondjo's drug addiction and underlying mental health problems played a significant part in the index offences."

Prospects for rehabilitation

The applicant indicated that he would like to finish his MBA. The sentencing judge remarked at page 11: "It serves as a further reflection of the foregoing sentiments and both of the offender's remorse and of the insight into the harm associated with offending of this character, not only to persons directly concerned including the offender but to the community at large."
His Honour concluded that the applicant had shown insight and remorse for his conduct and a "desire that he never again reoffend". The sentencing judge concluded that "the enduring consequences of this offender's background warrant some favourable account in this sentencing exercise by the extension to him of a degree of leniency".

Aspects of sentence structure

His Honour stated that, due to the relative lack of seriousness of the related offences on the certificate, they would not have a significant impact upon the aggregate sentence.
Further, the sentencing judge accepted that there should be some implicit concurrence between the sentences for the first and second offences, despite their separation in time, due to the ongoing course of criminal conduct that they reflected.
Having provided that thumbnail sketch of the objective features, the assessment of objective seriousness by the sentencing judge, the subjective features, and aspects of the sentence structure, I turn to consider whether any of the proposed grounds of appeal against sentence should be the subject of a grant of leave.

Ground 1 Based on official statistics and comparable cases, the Sentencing Judge made an error in principle in the exercise of his discretionary prerogatives in determining the range of sentence to impose.

Submissions

In written and oral submissions, the applicant put forward general propositions about the jurisdiction of this Court to intervene when a sentence is manifestly excessive. He did not take us to comparable cases, sentencing statistics, or any other resource in an effort to demonstrate that the aggregate sentence actually imposed was manifestly excessive, or to suggest that one could infer error from any of the individual indicative sentences provided by the sentencing judge.
Separately, he submitted that there should have been far more implicit concurrence between the indicative sentences, leading to a shorter aggregate sentence.
The applicant also contended that, in the absence of reasons for the discrepancy in the discounts for guilty pleas provided for the s 166 offences (25%) and the offences on the indictment (15%), the discrepancy amounted to a denial of procedural fairness.

Determination for the purposes of leave

In my opinion, this ground has no merit.
These were quite serious offences committed by a person who was by no means free of criminal convictions; indeed, he had served eight years in prison for a very grave offence. The offending underpinning count 2 was of particular gravity. The fact that the applicant reoffended, seriously, eight days after having been granted conditional bail, inevitably called for reflection in the aggregate sentence. So did the fact that all offences were committed whilst the applicant was on parole. A significant degree of implicit cumulation was also inevitable. The reduction from the "statutory ratio" between the aggregate head sentence and the aggregate non-parole period was quite substantial.
As for the discrepancy in the discounts for the utilitarian value of the pleas of guilty, it is readily explained by the fact that the applicant pleaded guilty to the offences on the certificate in the Local Court, but pleaded guilty to the offences on the indictment in the District Court.
In my opinion, there is nothing to suggest that either the aggregate sentence, or any indicative sentence, went beyond the discretion reposed in the sentencing judge. They cannot be characterised as manifestly excessive.
I would refuse leave on this ground.

Ground 2 The sentencing Judge made material error of law and facts by both omitting to consider some salient features of the evidence and allowing extraneous material to influence the final order.

Submissions

In written and oral submissions, the applicant contended that the sentencing judge failed to properly take into account various mitigating circumstances, such as what I have called "the other matter" leading to a percentage discount, and the deterioration of the applicant's health.
Further, it was argued that the sentencing judge took into account irrelevant material - specifically, that the sentencing judge gave undue weight to the applicant's prior offences, for which he had already been punished.
The applicant also stated that, had the applicant's mitigating and special circumstances been properly taken into account, the ratio between the non-parole period and the head sentence would have been further reduced.

Determination for the purposes of leave

In my respectful opinion, the remarks on sentence are a comprehensive reflection upon all of the objective and subjective factors emphasised before the sentencing judge. There is no sign of an irrelevant factor being taken into account, nor of a relevant factor having been overlooked.
To the extent that the complaint underpinning this ground focuses on evaluation of weight, that underpins ground one; I have already explained why I would reject that ground.
For reasons that I will explain shortly, I reject the proposition that the sentencing judge misused the previous criminal convictions of the applicant.
Finally, in all the circumstances, the reduction in the ratio between the aggregate head sentence and the aggregate non-parole period must be seen as a generous one.
I would refuse leave on this ground.

Ground 3 The Sentencing Judge made not only an error of law but also erred in principle in treating criminal record as an aggravating factor, and in determining the degree of criminality involved as well as the range of sentence to impose.

Submissions

In written submissions, the applicant argued that the sentencing judge erred in taking into account the criminality of previous offences committed by the applicant.
In oral submissions, whilst the applicant at first suggested that in effect his sentence amounted to "double punishment", the applicant subsequently appeared to abandon this ground.

Determination for the purposes of leave

In the remarks on sentence, the sentencing judge simply said the following about the criminal record of the applicant: "He has a criminal history. That history does not, of itself, aggravate the present offending but it denies him some leniency that might otherwise have been extended to him". That was the only reference in the remarks on sentence to that topic.
In my opinion, that portion of the remarks on sentence is completely contrary to the submission underpinning this ground. It is also, with respect, an unimpeachably correct approach to the issue.
I would refuse leave on this ground.

Ground 4 Miscarriage of justice occurred due to counsels' incompetence and carelessness during the Lower Court's proceedings, arraignment and sentence hearings in the District Court.

Submissions

In a nutshell, this ground was based on the proposition of the applicant that, in truth, he wished to plead guilty to the matters on the indictment at a much earlier stage than when he actually did; that is, some time after they had been committed for trial the District Court.
Indeed, his evidence on oath before this Court was that he wished to plead guilty in the Local Court to all matters. His contention was that it was the indolence or incompetence of two solicitors who appeared for him when his matters on the indictment were in the Local Court that caused that not to occur, with the result that he received a 15% discount on the indictment matters, rather than the 25% discount to which he would have been entitled if the pleas of guilty had been entered at that earlier stage.
Those factual contentions of the applicant were not accepted by the Crown, with the result that he and the two impugned solicitors gave oral evidence in this Court. A third solicitor, who had appeared for the applicant at the District Court, provided an affidavit that was read by the Crown in this Court, but the applicant did not require her for cross-examination.

Determination

In my opinion, this ground is devoid of merit, for the following reasons.
First, two solicitors of this Court gave evidence on oath that, far from wishing to plead guilty promptly to all matters in the Local Court, the applicant wished to engage in a process of negotiation with the prosecution at that stage. The cross-examination of those solicitors by the applicant before us, seeking to show that they were not being truthful about that topic, was ineffectual.
Secondly, as I have said, the proposition of the applicant is that he wished to plead guilty to all matters in the Local Court, and was forestalled by his then legal representatives from doing so. But as I have indicated above, he did not dispute the affidavit of the solicitor who appeared for him in the District Court. That affidavit is to the effect that the applicant did not wish to plead guilty to all matters in the District Court until after a period of time had passed. That uncontradicted evidence of the third solicitor, about the time taken by the applicant to decide to plead guilty at that stage, to my mind refutes the proposition that the applicant had been ready and willing, but unable, to plead guilty to all matters at an earlier stage in the Local Court.
Thirdly, in my opinion it is very unlikely that any experienced criminal solicitor would or should have been prepared to enter pleas in the Local Court with regard to serious matters that in the circumstances were inevitably going to be committed to the District Court, in the absence of a complete prosecution brief. Such a step could constitute incompetence, in my opinion. Nevertheless, the thesis of the applicant is that that is what the two impugned solicitors should have done. And the evidence before us was that, at the times when they were interacting with the applicant, the two impugned solicitors did not have the complete prosecution brief.
Fourthly, it is significant that affidavits of the applicant sworn for the hearing in this Court did not contain the central contention about when it was that he sought to have his legal representative enter pleas of guilty.
Fifthly, without descending to a level of detail on this rejected leave application, documents from the time in question, some of them prepared by the applicant himself, do not support the proposition that he desired to plead guilty to all matters in the Local Court without further ado, and that it was his solicitors who stood in the way of achieving that.
Sixthly and finally, in his evidence before this Court, the applicant confirmed that, in both the Local Court and the District Court, he was seeking to negotiate a plea of possession to the first count of supplying the smaller quantity of a prohibited drug (appeal transcript 13.40; appeal transcript 23.12-23.27). And yet that is quite inconsistent with the central submission that he was denied a greater utilitarian discount because of his readiness to plead guilty to all of the matters in the Local Court that were ultimately on the indictment in the District Court.
In my opinion, the central factual proposition cannot be accepted. Indeed, the contrary proposition is far more likely; namely, that the applicant did not enter pleas of guilty in the Local Court because he was seeking to negotiate a better outcome at that stage.
In those circumstances, I believe that leave should be refused on this ground.

Ground 5 An error was made as to the objective seriousness of the offending resulting in failure to give a proper discount for the utilitarian aspect of the guilty plea. Both the objective and subjective features in the case sufficiently show the bases for a conclusion that the sentence is manifestly excessive and that other sentence is warranted in law and should have been passed.

Submissions

In written submissions, some of which are, with respect, not easy to understand, the applicant made the following main points.
First, the applicant again contended that the aggregate sentence was manifestly excessive.
Secondly, the applicant submitted that he was entitled to have his sentence backdated to the date he was taken into custody, or at least entitled to a partial backdate.
Thirdly, the applicant submitted that the sentence did not reflect the objective gravity of offences which, he asserted, were at the lower end of objective seriousness. The applicant emphasised the following in support: the applicant had committed the offences to support his addiction, rather than out of greed; no actual supply was evidenced; and no ledgers or electronic communication were intercepted or found.
Fourthly, the applicant accepted the seriousness of the offending and the need for general deterrence, but also pointed to his remorse, strong prospects of rehabilitation, and the burden of a lengthy custodial sentence, in support of the proposition that a lesser sentence was warranted in law.
In oral submissions, the applicant added that the sentencing judge should have taken into account the applicant's own drug use during the commission of the offences as it impaired his decision-making ability.

Determination for the purposes of leave

Dealing with the components of this ground a little out of order for convenience: to the extent that the latter part of it asserts a manifestly excessive sentence, it is a re-agitation of ground one, and has no merit.
To the extent that an earlier part of the ground complains about the utilitarian discount provided for the pleas of guilty, it is a re-agitation of grounds 1 and 4, and is also devoid of merit. And thinking more generally about the utilitarian discounts as a whole, they were soundly open with regard to the pleas that had been entered in the District Court.
As for the first part of the ground, the findings about objective gravity made by the sentencing judge were perfectly open to the evaluative judgement of his Honour, as follows.
With regard to the supply offences, especially the latter one, and notwithstanding his personal use: the amount of prohibited drugs, their purity, the quantities of cash found, and the presence of scales, all soundly supported the finding of trafficking to a substantial degree.
With regard to the pursuit offence, the offending was indeed a serious example of the offence, and it was aggravated by the fact that the applicant was unlicensed at the time.
In relation to the proceeds of crime offence, the sentencing judge found the offending was at the lower end of objective seriousness, but not the lowest end, having regard to the extent of property seized. That finding simply cannot be impugned.
As for the backdate provided, it is well known that that is a matter for the discretion of a sentencing judge. And in any event, a backdate to the date upon which the balance of parole expired cannot, in the circumstances of this case, be the subject of complaint.
Finally, speaking generally, it is impossible to deny, based upon all of the undisputed evidence on sentence that I have briefly recounted, that the applicant was engaged in drug dealing for financial gain at quite a high level whilst on parole, on bail, and after having been convicted of a very grave offence.
No component of this ground has merit, with the result that no component of it should be the subject of a grant of leave.

Conclusion and proposed orders

In short, in my opinion it can be seen without the need for deep analysis that all proposed grounds of appeal are devoid of merit.
I therefore propose the following order: (1) Leave to appeal against sentence refused. Yondjo sentence diagram (8.45 KB, pdf)

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