Adams v Regina

[2006] NSWCCA 150

CITATION:	ADAMS v REGINA [2006] NSWCCA 150
HEARING DATE(S):	27 April 2006
JUDGMENT OF:	McClellan CJ at CL at 1; James J at 43; Hall J at 44
EX TEMPORE JUDGMENT DATE:	04/27/2006
DECISION:	Appeal dismissed
CATCHWORDS:	CRIMINAL LAW - appeal against sentence - methylamphetamine - knowingly take part in manufacture - not less than the commercial quantity - supply - parity - degree of involvement - personal circumstances - guilty plea - backdating of term of imprisonment - influence of prior convictions - having regard to whole criminal enterprise
CASES CITED:	Pearce v The Queen (1998) 194 CLR 610
PARTIES:	Haik Aramice Adams (Appl) The Crown
FILE NUMBER(S):	CCA 2006/61
COUNSEL:	Appl in person Dr P Power (Crown)
SOLICITORS:	Appl in person Director for Public Prosecutions (Crown)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	02/21/1218
LOWER COURT JUDICIAL OFFICER:	Armitage DCJ
LOWER COURT DATE OF DECISION:	11/19/2004

2006/61

McCLELLAN CJ at CL
JAMES J
HALL J

THURSDAY 27 APRIL 2006

ADAMS, Haik Aramice v REGINA

Judgment

1 McCLELLAN CJ at CL: The applicant pleaded guilty to two counts: firstly, that between 4 April 2001 and 5 May 2001 at South Penrith in the State of New South Wales, he did knowingly take part in the manufacture of a prohibited drug, namely methylamphetamine, of an amount being not less than the commercial quantity for such drug; secondly, that he, on 4 May 2001 at St Marys in the State of New South Wales, did supply a prohibited drug, namely, methylamphetamine.

2 The applicant was charged and sentenced with two other offenders. John Christou pleaded guilty to a charge that he, between 4 April 2001 and 5 May 2001, did knowingly take part in the manufacture of methylamphetamine in an amount being not less than the commercial quantity for such drug.

3 The other offender, Geoffrey Steven Hottes, pleaded guilty to a charge that he, before the offence of knowingly take part in the manufacture of not less than the commercial quantity of a prohibited drug was committed by Haik Aramice Adams and John Christou, aided in the commission of this offence.

4 The maximum penalty for the offence of knowingly take part in the manufacture of not less than the commercial quantity of a prohibited drug is imprisonment for twenty years. The maximum penalty for the offence of supplying the prohibited drug is imprisonment for fifteen years. The maximum penalty for the offence of aiding and knowingly take part in the manufacture of a prohibited drug of an amount not less than the commercial quantity is imprisonment for twenty years.

5 The sentencing judge had before him an agreed statement of facts. It is not necessary, for the purposes of this application, to set out all of the facts. However, in summary, his Honour found that the applicant and Mr Christou had, together, made arrangements to obtain the necessary materials and equipment to manufacture methylamphetamine.

6 Mr Hottes’ involvement in the enterprise was, as the charge to which he had pleaded indicates, to lend support to the operation before the manufacture took place and, in that respect, he provided the appropriate facilities.

7 His Honour found that Mr Hottes made available his garage in South Penrith to be used by the applicant and Mr Christou to set up a laboratory and “cook” and do the necessary extraction. He also provided assistance in the purchase of airline tickets and organised another person to collect drums of methylated spirits. As the charges indicate, the applicant pleaded guilty to the further offence of supplying methylamphetamine.

8 When considering the appropriate sentences his Honour, having considered the relevant facts, was careful to identify that in relation to the applicant he was required to be sentenced not only for his involvement in the manufacture, but also his involvement in supply. This, of course, distinguished his criminal activity from that of the other two offenders.

9 His Honour related the personal circumstances of each of the offenders and drew attention to the fact that the applicant had apparently been suffering financial distress because of the failure of a motor car accessory business which he had entered upon. It would seem that, at least in part, his motivation for these offences, was an endeavour to make a profit to retrieve his financial position.

10 When determining the sentence which he would impose his Honour found that the offences to which each of the offenders had pleaded guilty were serious. In relation to the applicant his Honour noted that his counsel conceded that the applicant’s conduct amounted to trafficking in a substantial degree and that the only appropriate penalty was a period of full-time imprisonment.

11 The applicant’s counsel apparently made submissions that a finding of special circumstances should be made and a relatively short non-parole period imposed.

12 His counsel submitted that the amount of methylamphetamine found in the applicant’s possession at the time of his arrest was something less than the commercial quantity of 250 grams, although it was conceded on behalf of the applicant that his criminality lies in the fact that he was knowingly concerned in the manufacture of 331.7 grams, the wholesale value of that quantity, based on its purity, which was found to vary from pure to 31.3%. It was agreed, and his Honour found that the wholesale value of the substance seized was $31,000.

13 Apparently, it was the applicant’s intention to sell the drugs wholesale and, accordingly, the wholesale value was a relevant consideration in relation to the offence of supply a prohibited drug. The applicant’s counsel submitted to the sentencing judge that, having regard to the nature of the manufacture, that the fact that he also has committed a “supply” offence was an inevitable consequence of the initial offending.

14 It was submitted to his Honour that the term of imprisonment for the supply offence should be wholly concurrent with the term of imprisonment imposed in relation to the manufacture offence which was described as the primary offence.

15 His Honour noted that the applicant had no prior convictions and found that his prospects of rehabilitation were excellent, and then said:

“In coming to that decision [in relation to the applicant], I bear in mind that the evidence before me, such as it is, discloses that Haik Adams’ involvement was, to some extent, more significant than his co-offenders’.”

16 The agreed statement of facts contains this statement:

“The totality of the conversations involving all three offenders and others establish that the offenders were engaged in the manufacture for sale (and planned distribution in Adams’ case) of methylamphetamine.”

17 His Honour continued:

“I accept the Crown Prosecutor’s submission that it was Adams who organised the sale. In the case of Mr Adams the only aggravating factors referred to in s 21A of the Crimes (Sentencing Procedure) Act 1999 are referred to in subs (2(m), (n). The offence involved a series of criminal acts and it was part of a planned and organised criminal activity.”

18 His Honour then identified the relevant mitigating factors and considered whether or not it was necessary to backdate the sentence which he would impose. He said:

“I note that Haik Adams has been in custody since 2 July 2004 and that that custody is partly referable to these offences. I also note that prior to that he spent sixty-one days in custody, totally referable to these offences. In my view it is appropriate that the sentence I impose be backdated to 1 May 2004.”

19 The solicitor who appeared for the applicant today drew the Court’s attention to the indication in the particulars of trial that the applicant had been in continuous custody since 13 March 2004. It was suggested that, accordingly, the remark by his Honour that the applicant had been in custody since 2 July 2004 may not be correct.

20 I am satisfied his Honour’s statement was correct, although not clear because his Honour did not identify when that period of custody in fact commenced. It was conceded that what occurred was that the applicant was taken into custody for other matters on 13 March 2004, and an application for bail in relation to the present offences was refused on 2 July 2004. This would appear to be the origin of that date in his Honour’s remarks on sentence.

21 I also note that in the transcript of the sentencing hearing, the applicant’s counsel conceded to his Honour that it would be appropriate to have regard to the fact that bail was refused in relation to the present matters on 2 July 2004.

22 Thus, the approach which his Honour took when ultimately sentencing the applicant appears to be explained by those dates and the concession made by counsel.

23 In this appeal, the solicitor appearing for the applicant urged upon the Court that by taking the course which his Honour did, in the passage I have quoted, his Honour has misused his discretion in relation to the back-dating of the sentence. I do not believe this to be the case. His Honour had to make a decision as to the allowance which he should make when back-dating the sentence, having regard to the fact that the applicant was held in custody in relation to other matters. By allowing, as he did, for the sentence in relation to these matters to be back-dated to 1 May, and bearing in mind his Honour passed sentence on 19 November, I am of the view that an appropriate, if not generous, allowance was made when the sentence was back-dated.

24 His Honour imposed sentences on the applicant as follows: for the offence of being concerned with the manufacture, he imposed a sentence of four years to date from 1 May 2004 and to expire on 30 April 2008. He imposed a non-parole period of two years to date from 1 May 2004 and to expire on 30 April 2006.

25 In relation to the offence of supply prohibited drug his Honour imposed a fixed term of imprisonment of nine months to date from 1 May 2004 and to expire on 31 January 2005. His Honour said, after having pronounced the sentences:

“In imposing those sentences I have regard to the totality of the offender’s criminality.”

26 In relation to Christou his Honour received submissions that his position could be distinguished from that of the applicant on the basis that it was the applicant who organised the sale of the end product and who co-ordinated the enterprise. His Honour said that he accepted that the applicant’s involvement was, to some extent, more significant than that of his co-offenders. He then said:

“However, the fact remains that Mr Christou was heavily involved in what was going on and had been from the outset. Any difference in his involvement and Mr Adams’ involvement is not such as would entitle him to a penalty different in nature from that imposed upon Mr Adams.”

27 His Honour then gives further consideration to the appropriate penalty for Christou, making plain that he was giving consideration to a submission that by reason of the difference between the applicant’s and Mr Christou’s involvement, Mr Christou should be sentenced to a term of periodic detention.

28 His Honour rejected that submission and in my opinion, his reference to a penalty different in nature in the passage which I have quoted, was a reference to the submission that the sentence for Christou might be by way of periodic detention.

29 Accordingly, his Honour’s findings should be understood as identifying the applicant as a more significant offender than his co-offenders and should be sentenced on the basis that he was the person who organised the sale of the end product and co-ordinated the enterprise.

30 His Honour noted that Christou had already spent eighty-three days in custody referable to the charge to which he had pleaded guilty. His Honour made a finding of special circumstances and sentenced Christou to a total term of imprisonment of three years and four months to commence on 26 August 2004 and to expire on 25 December 2007.

31 He was sentenced to a non-parole period of one year and eight months to commence on 26 August 2004 and expire on 25 April 2006. In relation to Hottes I have already described the circumstances of his offending.

32 His Honour noted that Hottes had been in custody from 4 May 2001 to 2 August 2001 in relation to the relevant offence. His Honour had regard to that matter and imposed a sentence of a term of imprisonment of three years to date from 23 August 2004 and expire on 22 August 2007. His Honour fixed a non-parole period of eighteen months to date from 23 August 2004.

33 The applicant filed written submissions in which three grounds of appeal were suggested. The solicitor appearing for him today rightly conceded that ground two could not respectably be advanced and it was withdrawn. The solicitor accepted that in effect the submission which the applicant sought to advance was that the sentencing discretion miscarried by reason of the discrepancy of the sentence between the applicant and Christou.

34 I have already addressed the submission which was advanced in relation to the way in which his Honour backdated the sentence for the applicant. The applicant's solicitor also submitted in relation to the matter of parity that there was a discrete issue arising from the failure of his Honour to mark out the influence which the prior convictions of Christou, in particular, but also of Hottes, had in the sentences which his Honour imposed.

35 The criminal histories to which reference is made were in my opinion minor. His Honour correctly noted the existence of prior convictions and correctly identified that the applicant had no prior record. Beyond noting those matters, in my opinion, their significance was of little moment in the exercise of the sentencing discretion and no further explanation was required.

36 That leaves the substantial ground argued in the written submissions and supported orally today. To my mind, having regard to the findings of the sentencing judge, to which I have referred, there were sound reasons for the imposition of a greater sentence on the applicant in relation to the charge of manufacture than on the other offenders. His Honour's finding that the applicant was effectively in command of the criminal activities is sufficient to put the matter to rest.

37 It must also be borne in mind that the applicant pleaded guilty to two offences, one was the manufacture of a commercial quantity of methylamphetamine and the other supply. He pleaded guilty to both matters.

38 The applicant drew attention to a submission made by the Crown at the sentencing hearing, to the effect that "although Mr Adams obviously organised this sale in terms of the charge of knowingly involved in the manufacture that they are equally culpable." The applicant complained that his Honour's sentence, when recounting this submission, does not reflect what is said to be the concession of equal culpability.

39 It is important to understand that that concession was made exclusively in relation to manufacture but was not made in relation to the overall criminal enterprise. It was because of the applicant's part in the overall activity that, in my opinion, his Honour imposed a greater sentence on the applicant in relation to the manufacture offence.

40 I have already noted that the applicant's solicitor today abandoned the second ground originally advanced by the applicant in his written submissions. That ground referred to the principles provided by the High Court when sentencing offenders in Pearce v The Queen (1998) 194 CLR 610. It may be that in the approach which his Honour took when relating the sentences which he imposed that some problems existed in the application of the Pearce principle. However, if there is a problem the consequence would likely be, in my opinion, that a separate and discrete term of imprisonment may have been imposed in relation to the supply offence and that that term may have been required at least in part to be provided cumulatively rather than concurrently as his Honour did.

41 Having regard to the matters to which I have referred, I am satisfied that the criminal enterprise in which the applicant played the central role was well organised and sophisticated. The crimes were committed for profit and born in part from the need for the applicant to meet the financial straits in which he found himself.

42 When considered against the maximum term for the relevant offences, I am satisfied that no lesser sentence could have been imposed in relation to each matter. Although I would grant leave to appeal, in my opinion, the appeal should be dismissed.

43 JAMES J: I agree with the Chief Judge.

44 HALL J: I also agree with the Chief Judge.

45 McCLELLAN CJ at CL: Accordingly, the orders of the Court are as I have indicated.

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