Amado v R

[2011] NSWCCA 197

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Ismael Amado v R [2011] NSWCCA 197

Hearing dates:

28/07/2011

Decision date:

02 September 2011

Jurisdiction:

Criminal

Before:

Basten JA at 1
Simpson J at 26
Garling J at 27

Decision:

(1) Grant the applicant an extension of time to 19 May 2011 to file a notice of application for leave to appeal.

(2) Grant leave to appeal against the sentence imposed for the offence of possessing a prohibited drug, namely, 14.95 grams of 3,4-MDMA.

(3) Appeal allowed.

(4) Quash the sentence imposed by Lakatos DCJ on 23 October 2009 and in lieu thereof order that the applicant enter into a good behaviour bond pursuant to s 9 of the Crimes (Sentencing Procedure) Act for a term of nine months commencing on 23 October 2009.

Catchwords:

CRIMINAL LAW - Possession of prohibited drug - Whether a penalty other than imprisonment appropriate - Whether decision to impose sentence of imprisonment elided with decision to impose suspended sentence - Whether quantity of drug in supply range significant - Whether futile to impose sentence effectively served - Suspended sentence quashed - Direction to enter good behaviour bond for same period as suspended sentence

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Criminal Procedure Act 1986
Drug Misuse and Trafficking Act 1985

Cases Cited:

Dinsdale v The Queen (2000) 202 CLR 321
Elliot v Harris (No 2) (1976) 13 SASR
O'Keefe v The Queen [1969] 2 QB 29
R v Blackman and Walters [2001] NSWCCA 121
R v Blackman and Walters [2001] NSWCCA 121
R v Foster [2001] NSWCCA 215
R v Zamagias [2002] NSWCCA 17
Regina v Foster [2001] NSWCCA 215
Regina v Gillan (1991) 54 A Crim R 475
Regina v P (1992) 39 FCR 276
Regina v Percy [1975] Tas SR 62
Regina v Zamagias [2002] NSWCCA 17
Stevens v Giersh (1976) 14 SASR 81

Category:

Principal judgment

Parties:

The Crown
Ismael Emilio Avalos Amado

File Number(s):

CCA 2009/10990

 Decision under appeal 

Date of Decision:

2009-10-23 00:00:00

Before:

Lakatos DCJ

File Number(s):

2009/10990

Judgment

1. BASTEN JA: The circumstances in which the applicant is before the Court have been fully set out in the judgment of Garling J and need not be repeated. Subject to the issues addressed below, I adopt his Honour's reasoning.

Suspension of sentence of imprisonment

1. Courts, rightly, place great weight on the need to understand and apply statutory powers, with careful attention to limitations implicit in the language by which they are conferred. Further, courts, rightly, place great weight on maintaining procedural regularity. Nevertheless, a proper understanding of the power being exercised, or the function being performed, should inform both exercises. An example of the difficulties which can arise from a literal, step-by-step approach to a statutory requirement may be seen in the exercise under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Procedure Act ") for a court, when sentencing an offender to imprisonment, to first set a non-parole period, being the minimum period for which the offender must be kept in detention, and then to set the balance of the term of the sentence, which must not exceed one-third of the non-parole period unless special circumstances permit the balance to be increased. Read in splendid isolation, that provision would seem to require that special circumstances would give rise to a longer sentence than otherwise. That is not current practice.

1. A similar issue arises in respect of suspended sentences. Section 12 of the Sentencing Procedure Act relevantly provides:

" 12 Suspended sentences

(1) A court that imposes a sentence of imprisonment on an offender (being a sentence for a term of not more than 2 years) may make an order:

(a) suspending execution of the whole of the sentence for such period (not exceeding the term of the sentence) as the court may specify in the order, and

(b) directing that the offender be released from custody on condition that the offender enters into a good behaviour bond for a term not exceeding the term of the sentence."

1. Two features of this provision are immediately apparent: first, what is suspended is not the sentence, but the "execution" of the sentence and, consequentially, s 12 cannot operate unless the Court imposes a sentence of imprisonment. Logically, suspension is therefore seen as dependent upon an earlier step in the process, namely the imposition of a sentence of imprisonment. That step, however, is subject to the following constraint:

" 5 Penalties of imprisonment

(1) A court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate."

1. There is, of course, a perfectly sound abstract logic to the proposition that a person may be sentenced to imprisonment, without ever having to go to prison. On the other hand, what mental exercise is the Court required to undertake in deciding that imprisonment is the only available option? If, at the first step (described as the "preliminary question" by Howie J in R v Zamagias [2002] NSWCCA 17 at [25] ), the Court decides that imprisonment is appropriate, that, in a practical sense, would involve the conclusion that the offender should spend a period in custody. Step two in this process involves the specification of the relevant period of imprisonment including, it must at that point be assumed, the specification of a non-parole period, being the minimum term for which the offender must be kept in detention. (If a fixed term is deemed appropriate, either because the term of the sentence is less than six months (s 46) or because the court considers it is not appropriate to fix a non-parole period (s 45), the term will nevertheless reflect the minimum period for which the court considers the offender must be kept in custody.) If, after earnestly making the determinations required at steps one and two, the Court, as step three, then suspends the execution of the sentence, so the person is under no immediate liability to serve the specified period in custody, the result appears incongruous. Even such an appearance tends to undermine the purposes of sentencing set out in s 3A of the Sentencing Procedure Act . The incongruity, however, is not merely an appearance, but a reality. Furthermore, it is unrealistic to suppose that the Court actually reaches its conclusion by proceeding mechanically from step one to step three.

1. The incongruity just identified arises from the assumption that sentences may be divided into two groups, being sentences of imprisonment on the one hand and other possible options on the other, together with the assumption that a suspended sentence falls into the first category.

1. At one point it may have been open to this Court to hold that a suspended sentence of imprisonment did not fall within the first category, having regard to the structure of Part 2 of the Sentencing Procedure Act . Division 2, headed "Custodial sentences", included (at the time of sentencing in the court below) penalties of imprisonment, compulsory drug treatment detention, periodic detention and home detention. (In 2010, 'periodic detention' was replaced by "intensive correction orders".) Division 3, headed "Non-custodial alternatives", included community service orders, various forms of bond and conditional discharge and suspended sentences. These headings form part of the Act: Interpretation Act 1987 (NSW), s 35(1). However, this course was rejected in Zamagias at [25].

1. None of this is to say that sentencing judges must not be acutely aware of the fact that a suspended sentence of imprisonment, while not imposing a liability to immediate detention, involves a contingent liability to detention. In Regina v Percy [1975] Tas SR 62 at 72-73, Neasey J described a suspended sentence as "the penultimate weapon in the extensive armoury of graduated penalties". He also cited with approval the view that a suspended sentence should not be imposed as a "soft option" in circumstances where "but for the power to give a suspended sentence, a probation order was the proper order to make": O'Keefe v The Queen [1969] 2 QB 29 at 32F. There is the further important consideration that a sentence should not be increased in length because there has been a decision to suspend its operation: Stevens v Giersh (1976) 14 SASR 81 at 82 (Bray CJ); Zamagias at [27] and Percy at 73.

1. Equally, it would be misguided to treat a suspended sentence as not involving a sentence of imprisonment at all. As stated by Bray CJ (Bright and Zelling JJ agreeing) in Elliot v Harris (No 2) (1976) 13 SASR 516 at 527, that view:

"... reveals an entirely mistaken and wrong-headed approach to the question of suspended sentences. So far from being no punishment at all, a suspended sentence is a sentence to imprisonment with all the consequences such a sentence involves on the defendant's record and his future, and it is one which can be called automatically into effect on the slightest breach of the terms of the bond during its currency."

1. These remarks were quoted with approval by this Court in Regina v Foster [2001] NSWCCA 215; 33 MVR 565 at [36] (Badgery-Parker AJ, Giles JA and Greg James J agreeing), and by the Full Court of the Federal Court in Regina v Gillan (1991) 54 A Crim R 475 at 480, and Regina v P (1992) 39 FCR 276 at 285-286; 64 A Crim R 381 at 391. (In Foster there is a mis-quotation, substituting "dramatically" for " automatically" in the penultimate line quoted above.) The remarks of Bray CJ may overstate the risks faced by the offender in respect of trivial breaches - Sentencing Procedure Act , s 98(3); nevertheless, the point is well made. None of these considerations, however, require the adoption of an inflexible step-by-step approach to the exercise of sentencing involving a suspended sentence. Indeed, there are considerations which suggest otherwise.

1. First, as noted above, if the Court were to proceed methodically, as if from one hermetically-sealed room to another, the Court would need, at step two, to undertake the exercise described, involving the fixing of a non-parole period or explaining reasons why that course was not to be taken. However, if the sentence were to be suspended, that course would be inappropriate, because Part 4 of the Sentencing Procedure Act, dealing with setting non-parole periods, does not apply until the Court revokes the good behaviour bond: ss 12(3) and 99(1). Secondly, reliance is regularly placed upon the remarks of Kirby J in Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 in support of the view that a staged approach is required and that the steps "should not be elided": at [79]. References to Dinsdale in this Court tend to be accompanied by the statement that the Western Australian legislation is "analogous" - see Foster at [31] - or that the approach is equally applicable here: see R v Blackman and Walters [2001] NSWCCA 121 at [50] (Wood CJ at CL).

1. While it is true that the Sentencing Act 1995 (WA), s 76, required that the offender be sentenced to a term of imprisonment, before the sentence was suspended, it also contained s 76(2), in the following terms:

"Suspended imprisonment is not to be imposed unless imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances."

1. There is no equivalent provision in the Sentencing Procedure Act. Further, s 39(2) of the WA Act provided for six categories of sentence, identifying suspended imprisonment as less serious than imprisonment and requiring that the court not use any option unless satisfied that it is not appropriate to use a lesser option: see Dinsdale , at [11] (Gleeson CJ and Hayne J). It may be inferred that the purpose underlying the legislative scheme in Western Australia is the same as that in this State, but the language is clearly different. Reliance on Dinsdale therefore supports the view that a purposive approach should be taken to the relevant provisions in Part 2 of the Sentencing Procedure Act so that, to the extent possible, sentencing takes place in a structured way, but one which does not create incongruous results likely to undermine the important public purposes set out in s 3A.

1. Taking these principles into account, there are three factors appearing from the reasons of the sentencing judge which must be assessed. First, it is clear that his Honour was minded to accord a degree of leniency to the applicant. Secondly, and consequentially, it should be inferred that he would not, absent a power of suspension, have imposed a sentence of nine months imprisonment. Given the early acknowledgment of guilt in respect of possession, that would involve a first sentence of imprisonment calculated by reference to a starting point of approximately one year, in respect of an offence carrying a maximum penalty of two years. Such a sentence would have been manifestly excessive. Accordingly, it must be inferred that his Honour increased the appropriate sentence of imprisonment, if any period were appropriate, because he was suspending the sentence. That course was impermissible.

1. Thirdly, his Honour was satisfied that some substantial sanction was called for to ensure that the applicant maintained his new-found rejection of illicit drug-taking. That approach, which may have had much to recommend it in practical terms (and may indeed have achieved its intended result in the present case), is only permissible in accordance with current principles if actual imprisonment for the specified period is the only appropriate option. It was not an appropriate option in this case. Unless a suspended penalty is treated as another possible option, it is unclear on what basis (there being no additional or different criteria to be taken into account) suspension is ever available. That is the result of the two (or three) step approach mandated by this Court.

Relevance of immigration status

1. Although it may not have been the only consideration, it seems clear that one significant motivating factor underlying the application for leave to appeal was the potential consequences of the sentence for the applicant's claim for permanent residence in this country. There were references to it by his counsel in submissions before the sentencing judge: see [22**]-[25] below. It was also a factor referred to in his affidavit of 20 July 2011, referred to at [51**] below.

1. There was no evidence before this Court as to the current practice of the Commonwealth department in dealing with applications for permanent residence, in circumstances where the applicant has one or more criminal convictions. Furthermore, the extent to which such circumstances could be properly taken into account as some form of "extra-curial punishment" is by no means straightforward: see Einfeld v Regina [2010] NSWCCA 87; 200 A Crim R 1 at [85]-[97]. The law in this regard was not addressed in submissions.

1. In these circumstances, reference to the applicant's immigration status should be treated as irrelevant.

Re-sentencing

1. The error identified above, namely that the sentencing judge imposed a sentence of imprisonment significantly in excess of that which should properly have been imposed had the applicant been facing immediate detention, constitutes error requiring that the sentence be set aside. It is therefore necessary to re-sentence the applicant.

1. I would infer that the period of imprisonment imposed by the sentencing judge, and then suspended, was partly a reflection of the period during which his Honour considered that the applicant should be subject to a bond. A longer period could well have been justified, but could not have been imposed because the term of the bond under s 12(1) could not exceed the term of the sentence.

1. On one view, it would be possible to fix a shorter term of imprisonment. But, unless the applicant is to serve it, which would in effect increase the penalty, it would have to be suspended. However, its suspension would render the bond largely inutile. Further, it is clear that no sentence involving immediate detention was contemplated by the sentencing judge. The appropriate course is, as explained by Garling J, to remove the suspended sentence and impose, independently, a bond.

1. That course too involves difficulties. It is by no means self-evident that the applicant can now be required to enter into a bond to be of good behaviour in respect of a period which has already long since elapsed. Nor would it be appropriate to require him to be of good behaviour for a period in the future (thereby increasing the penalty).

1. The precise order made by the sentencing judge is not before this Court. The language used in the judgment is imprecise. However, it may be assumed that the order involved four parts, in accordance with s 12(1), namely:

(a) the imposition of a sentence of imprisonment of nine months;

(b) an order suspending execution of the sentence for a period of nine months;

(c) an order that the offender be released from custody upon the specified condition, and

(d) a direction that the condition require the applicant to enter into a good behaviour bond for a term of nine months.

1. The appropriate course is to set aside orders in terms of (a) and (b) in the preceding paragraph. Order (c) may or may not have been made, depending on whether the applicant was briefly detained pending execution of the bond. In any event, it is clear that order (d) was carried into effect, the applicant entering into a bond, and that order should be allowed to stand.

Conclusions

1. In my view, the Court should make the following orders:

(1) Extend the time for filing notice of application for leave to appeal to 19 May 2011.

(2) Grant the applicant leave to appeal against the sentence imposed on him by Lakatos DCJ on 23 October 2009 for the offence of possessing a prohibited drug, namely 14.95 grams of 3,4-MDMA.

(3) Allow the appeal and set aside the sentence of 9 months imprisonment, together with the order suspending the execution of the sentence.

(4) Otherwise dismiss the appeal, thereby leaving in force the good behaviour bond entered into by the applicant as a condition of his release from detention.

1. SIMPSON J: I agree with the orders proposed by Garling J.

1. GARLING J: This is an application for an extension of time and, if granted, for leave to appeal in respect of a sentence imposed in the District Court of New South Wales by his Honour Judge Lakatos on 23 October 2009.

1. The applicant, Mr Ismael Emilio Avalos Amado, pleaded guilty before Lakatos DCJ to two offences. The first was that in March 2009 he had in his possession a prohibited drug, namely 2.68 grams of cannabis. The second was that at the same time he also had in his possession 14.95 grams of MDMA.

1. Both of these offences were contrary to s 10(1) of the Drug Misuse and Trafficking Act 1985.

1. In respect of the offence involving the possession of cannabis, the applicant was fined $500. No application is made with respect to this sentence and accordingly, it requires no further consideration.

1. In respect of the second offence, the applicant was sentenced to imprisonment for nine months, wholly suspended under the provisions of s 12 of the Crimes (Sentencing Procedure) Act 1999. It is in respect of this sentence for which the applicant seeks an extension of time and leave to appeal.

1. The maximum sentence for an offence against s 10(1) of the Drug Misuse and Trafficking Act is a penalty of two years' imprisonment or a fine of 20 penalty units or both. No standard non-parole period applies.

Facts

1. On 28 March 2009 the applicant who was then nearly 44 years old was detected travelling on a train whilst there was in his possession the drugs. The MDMA offence related to him being found in possession of 49 tablets of ecstasy.

1. The applicant was indicted before a jury on a count of deemed supply of a prohibited drug, namely the MDMA, contrary to the provisions of ss 25(1) and 29 of the Drug Misuse and Trafficking Act . The jury found the applicant not guilty of that offence.

1. As a consequence, the Court was called upon to deal with the two back-up or related charges which had been referred to the Court pursuant to s 166 of the Criminal Procedure Act 1986.

1. The relevant facts of those two offences were described in short compass by the trial judge and are not challenged on this application. He said:

"...the accused in the trial gave evidence that ecstasy was his drug of choice. He did not drink. When he went to parties he used ecstasy quite commonly. My recollection of the evidence is that he went to a party in Roslyn Street Kings Cross. He tasted one tablet of ecstasy provided by a person called Sam or Boney. He thought the grade of the ecstasy was higher than normal and therefore made an arrangement to acquire a further quantity. That occurred about a week later at the town hall. Payment was in the order of $1,000.

The offender got onto the train, was stopped near Thornleigh by a sniffer dog and ultimately disclosed to police that he was carrying ecstasy and gave an explanation of personal use then and there to the police officers. That was obviously a version accepted by the jury and if I might say, was a version which was one of a number of reasonable options which might have been accepted. Where the truth lies does not matter, the jury verdict binds me and I accept it."

1. The applicant's trial on the count of supply took place between 7 and 9 October 2009. The applicant came to be dealt with for both of the backup charges, only one of which is the subject of this application, on 23 October 2009 when he pleaded guilty before Lakatos DCJ.

Applicant's submissions on sentence

1. The applicant's submissions on sentence were, as one might reasonably expect, relatively brief.

1. Importantly the evidence included two reports of Dr John Albert Roberts, a specialist psychiatrist. Dr Roberts' reports of 24 June 2009 and 19 October 2009 demonstrated that prior to sentencing, Mr Armado had ceased taking ecstasy and had ceased marijuana except for an occasional relapse. The applicant provided urine specimens to Dr Roberts on three occasions in August 2009 which were tested. Those tests disclosed no evidence of substance use.

1. Dr Roberts concluded in October 2009:

"This is in accordance with his assertions and consistent with his clinical presentation.

In summary, Mr Amado's arrest in relation to this matter appears to have been a turning point in his lifestyle and substance abuse.

He is determined to be successful and there are substantial grounds for optimism in regards to his prognosis."

1. The submissions on behalf of the applicant accepted that he had one previous conviction for possessing a prohibited drug that was dealt with in 2007 at the Downing Centre Local Court when he was given the benefit of a dismissal under s 10 of the Crimes (Sentencing Procedure) Act with the result that no conviction was recorded.

1. The learned sentencing judge enquired of the Crown Prosecutor whether a sentence which was a non-custodial sentence for the two matters, would fall outside the range of available and appropriate sentences. The Crown replied in the negative.

1. Counsel for the applicant in addressing his Honour shortly after the exchange to which I have just referred, then said this:

"Perhaps in response to your Honour's question to Mr Crown, I think Mr Crown, and I am not verballing here, it would not be inappropriate if your Honour were to impose a section 12 bond for the possess and a modest fine for the ... cannabis. In my submission that would be the appropriate sentence that I would submit in this matter in any case your Honour."

1. As the later submissions make clear, the reference to a " s 12 bond " in this extract, was intended to be to a bond of good behaviour under s 9 of the Crimes (Sentencing Procedure) Act . On the hearing of this application, the parties accepted that the Court should read this as a submission that the imposition of a s 9 bond was an appropriate penalty.

1. His Honour then said this after reading the material that was tendered to him and asking some questions about the facts:

"Gentlemen, this is the provisional sentence that I propose to impose and I'll hear you if anybody wishes to debate any aspect of it. I propose a 12 months suspended sentence for the ecstasy tablets and a $500 fine for the cannabis."

1. The Crown Prosecutor indicated that he did not wish to be heard in respect of that suggested " provisional " sentence.

1. Counsel for the applicant then said this:

"Your Honour in relation to why I submit that a bond would be appropriate for the ecstasy and the possession and I realise immediately that a suspended sentence would be a lenient sentence as well, where there's a two year maximum, the submissions are that since this has happened, the arrest, the reports of Dr Roberts, in particular the first one says he desires entering treatment and he does that and he says what he wants to do in relation to work and so forth. ..."

1. Counsel for the applicant continued to make submissions pointing to the subjective circumstances of his client and placing particular emphasis on the fact that he had taken considerable steps to rehabilitate himself. He then put this:

"A second factor is that if a sentence of imprisonment, albeit suspended, is imposed upon him, even for a possession charge, that could impact upon his - he's a temporary resident currently, from I think May this year he was granted - and that's one of the exhibits, temporary residency."

1. His Honour enquired about whether there was evidence which suggested that if a prison term, suspended or otherwise, was imposed it would affect his visa status. He received this response from the applicant's counsel:

"I can only submit that it is something that he would disclose obviously. He intends to apply for Australian citizenship, that's where he wishes to live. It is definitely something, a term of imprisonment, suspended, which would be a factor to be considered. That's all I could say. I don't have any evidence that it would result in, it'd be inevitable or - certainly I'd submit that we might need a - that's why he obtained the record as well, his Mexican record was actually for immigration purposes, he obtained that, he has nothing in Mexico because that's what he was advised he needed."

1. There was then further discussion about the question of whether any one or other sentence which the Court might impose would affect his residency status.

1. The applicant's counsel concluded with this submission:

"I think I can only say that the fact that the court, if it characterises it as such a serious offence that a period of imprisonment, albeit suspended, it's obviously going to be something that immigration will look at in deciding whether temporary residency goes to further residency."

1. The applicant's counsel then drew the Court's attention to a sentence which had been imposed by Lakatos DCJ in another matter and sought to draw a favourable comparison for his client in respect of the criminality involved in that other matter where a period of imprisonment of 18 months wholly suspended upon entry into a s 12 bond had been imposed.

1. There was then finally a submission about whether 12 months was an appropriate period.

Subjective features

1. The applicant was 44 years at the time of sentencing and is now 46 years old. It appears that the applicant, who was born in Mexico, commenced using marijuana when he was about 22 years old. By the time he came to live in Australia, he continued to use it but on rare occasions only.

1. He was educated at high school and university. He worked in a number of occupations and for a time he owned his own business involving the distribution of oil in Mexico.

1. He had had a short marriage lasting about 12 months whilst in Mexico.

1. The applicant came to Australia in 2004 and since that time he has been employed and has also undertaken study and was completing a Masters in Information Technology at Central Queensland University. His subjective circumstances including his state of health and psychiatric history were largely unremarkable. He had had some features of depression that required some low level treatment.

Remarks on sentence

1. His Honour's remarks on sentence were brief. Having recounted the facts and evidence of Dr Roberts and the submissions with respect to the imposition of a penalty, his Honour said this:

"It is often said in these courts that the taking of illegal drugs is a lifestyle choice. It may well be that people think that to be so, but when lifestyle choices intersect with the breaking of the law, the law has to deal with them. This of course is the second time in a short space of time that the offender comes before these courts. I do not suggest that the history is an extremely serious one but it is a continuous one and I can only say to [the applicant] that at forty-four if he is to relapse into using recreational drugs there is only one alternative left and that will be a prison term. That is not to be recommended to anybody. It is a scary proposition and it is one which does nobody, including the State or yourself any good at all.

You have a decision to make and the decision really is, do you continue your lifestyle or not? You have made, I think, good and constructive efforts for which you should be congratulated. I am sure this has caused you much stress but if you ever think about relapsing, think of being arrested and think of being taken downstairs. It is not a thought which is worthy of thinking about. You have a good career and obviously an intelligent mind. You should put that to good use. If you need chemical recreation, choose the legal kind."

Grounds of appeal

1. There are two grounds of appeal which appear in the application in these terms:

"1. The sentencing judge erred in his approach to the imposition of a term of imprisonment by failing to conclude that full time custody was the only appropriate option in the circumstances of this case.

2. The sentence is, in all the circumstances, manifestly excessive."

1. Ground 1 would be better expressed if the word "not" were inserted before the words "only appropriate". This is the way in which the parties understood it and the basis upon which the application was argued.

1. It will be convenient to deal with both these grounds together.

1. The principal submission is that in his remarks on sentence, the learned sentencing judge provided

"...no explanation as to why no penalty other than imprisonment was appropriate; s 5 Crimes (Sentencing Procedure) Act 1999."

1. Section 5 of that Act says:

"(1) A court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate."

1. Where a court sentences an offender to imprisonment for six months or less, then s 5(2) Crimes (Sentencing Procedure) Act requires it to both indicate to the offender why it is doing so and to make a record of its reasons for so doing. That subsection was not applicable here.

1. The applicant's submissions contend that the appropriate penalty was a bond under s 9 Crimes (Sentencing Procedure) Act , to be of good behaviour.

Disposition

1. The context within which this Court has to deal with this matter is important. This is an application for an extension of time and, if granted, for leave to appeal. The sentence of imprisonment, suspended by entry into the bond under s 12 imposed by the sentencing judge, expired on 22 July 2010, that is, over 12 months ago. No suggestion is made that the applicant has not complied with the bond.

1. Although a Notice of Intention to Apply for Leave to Appeal was filed promptly after the applicant was sentenced, namely on 17 November 2009, there was an extensive delay, through no fault of the applicant, in obtaining a transcript of the proceedings and obtaining appropriate advice and a grant of legal aid. The Notice of Grounds of Appeal was filed together with an application for an extension of time on 12 May 2011. By that time, the six month period allowed for the Notice of Intention had expired, and by a period of about 12 months.

1. Whilst the necessity for the applicant's legal advisers to have a copy of the transcript of the trial, upon which the applicant was acquitted, before proceeding with the hearing of the application for leave to appeal does not emerge with any clarity from the evidence, the fact remains that the delay in this application for leave to appeal being brought on for hearing is no fault of the applicant, and is attributable to the need to take steps thought to be relevant by his legal advisers. An extension of time should in my view be granted.

1. What is sought by this appeal, if leave be granted is that the sentence imposed by Lakatos DCJ be quashed although it has expired, and instead a bond under s 9 of the Crimes (Sentencing Procedure) Act requiring the applicant to be of good behaviour be imposed for the same period of nine months.

1. The remarks on sentence of his Honour, as I have earlier said, were brief. The offence with which his Honour was dealing was, whilst an offence of being in possession of prohibited drugs for personal use, one which involved a quantity of drugs which would ordinarily fall to be dealt with as an offence supplying the drugs. The quantity merited careful consideration as to whether, in light of the fact that the jury had accepted that the applicant was found in possession of the drugs for his personal use, a term of imprisonment was either warranted at all, let alone whether it was the only appropriate option in the circumstances of the case.

1. It is not apparent from the mere nature and circumstances of the offence that a sentence of imprisonment was automatically called for. Nor, when one adds to the nature and circumstances of the offence, the particular subjective of circumstances of the applicant, is it at all obvious why a sentence of imprisonment would be the only appropriate option in the circumstances of the case.

1. In those circumstances, what was required of the learned sentencing judge was that he carefully consider and give reasons for his determination of each of the steps required in imposing a sentence of the kind which he did: R v Foster [2001] NSWCCA 215 at [30] per Badgery-Parker AJ (Giles JA and Greg James J agreeing); R v Blackman and Walters [2001] NSWCCA 121 at [50]-[52] per Wood CJ at CL (Stein JA and Studdert J agreeing). In Dinsdale v The Queen (2000) 202 CLR 321, Kirby J in dealing with West Australian legislation, said this at [79]:

"The starting point ...is the need to recognise that two distinct steps are involved. The first is the primary determination that a sentence of imprisonment, and not some lesser sentence, is called for. The second is the determination that such term of imprisonment should be suspended for a period set by the court. The two steps should not be elided. Unless the first is taken, the second does not arise. It follows that imposition of a suspended term of imprisonment should not be imposed as a 'soft option' when the court with the responsibility of sentencing is 'not quite certain what to do': [ R v O'Keefe [1969] 2 QB 29 at [32]]."

1. This Court has held that the remarks of Kirby J in Dinsdale articulate an approach which is consistent with the correct approach in New South Wales: R v Zanagias [2002] NSWCCA 17 at [27] per Howie J (Hodgson JA and Levine J agreeing).

1. The remarks on sentence do not demonstrate that the learned sentencing judge followed the two-step process described by Kirby J. On the contrary it seems entirely clear that he elided them.

1. Where, notwithstanding an elision of the two steps, the learned sentencing judge has made findings about the relevant circumstances including the seriousness of the offence, the subjective circumstances of the offender and has addressed at least the basal question, that a sentence of imprisonment is the only appropriate sentence as required by s 5 of the Crimes (Sentencing Procedure) Act , then this Court would need to carefully consider those findings to determine whether the sentence is erroneous: see Foster at [35].

1. However, it is not possible to discern from the remarks on sentence what conclusions the learned sentencing judge reached with respect to seriousness, nor is it possible to discern what subjective circumstances, other than that the applicant had a previous offence, the sentencing judge took into account. It is not possible to identify what discount, if any, the learned sentencing judge allowed for the plea of guilty.

1. In those circumstances, particularly in the absence of any consideration of, and finding that a term of imprisonment was the only available alternative, the reasons bespeak error and it is necessary for the Court to consider what sentence ought be imposed.

Re-sentence

1. The applicant relied upon an affidavit of 20 July 2011 to provide further evidence to put before the court in the event that it was necessary for the application to be re-sentenced. There was no cross-examination upon that affidavit.

1. The applicant's evidence disclosed that he has remained fully employed since October 2009 with the firm with which he then had an internship. He works in the IT industry. He says this:

"5. I am a Mexican citizen but have applied for permanent residency in Australia. I am currently a temporary resident and have recently been informed by my Migration Agent that the Department of Immigration is awaiting the outcome of these proceedings before finalising my application for permanent residency.

6. Since my arrest for this matter in March 2009, I have not been arrested nor charged with any criminal or traffic offences.

7. Furthermore, since my arrest, I have continued to abstain from consuming illicit drugs of all kinds. I have continued training to keep fit and live a healthy and productive lifestyle."

1. As is apparent from the discussion earlier in these reasons, the offence of possession where the drugs are for personal use is generally regarded as being towards the low end of the range of criminal offences in New South Wales. We were informed, and accept, that the great majority of cases of possession of drugs for personal use are dealt with in the Local Court.

1. In dealing with this offence, it is necessary to recognise the quantity of drugs in the applicant's possession. Here it was 49 tablets. But it also needs to be recognised that the jury was satisfied, and this is the basis upon which the sentence correctly proceeded, that the applicant had possession of those drugs for his personal use. In imposing a sentence, the court should also do so on a basis consistent with the jury's verdict.

1. The applicant, when first interviewed by the police, admitted that he had the drugs in his possession and asserted that they were for his personal use. On appeal the Crown accepted that this was the version ultimately accepted by the jury and that the applicant had all along asserted this to be the case. No occasion arose for an early plea of guilty because the offences to which the applicant pleaded guilty were back-up offences and the Crown indicated an intention, at all relevant times, to proceed with the indictable offence of supplying the drug.

1. On the hearing of the application the Crown accepted that the applicant ought be given the benefit of his early indication that the drugs were in his possession and for his personal use. An appropriate discount is therefore warranted with respect to his plea of guilty and the early indication of his possession with respect to these offences: s 22 Crimes (Sentencing Procedure) Act .

1. Importantly, the applicant had significant subjective circumstances which merit careful consideration.

1. I have referred earlier to some of the subjective features of the applicant.

1. The expert reports of Dr John Albert Roberts are entitled to significant weight in considering the appropriate sentence to be imposed on the applicant. In particular, Dr Roberts' opinion and his recounting of the applicant's history and conduct were of assistance.

1. Initially, when seen by Dr Roberts, the applicant was prescribed a trial of an anti-depressant medication to assist with his coping with anxiety and depressive symptomatology that Dr Roberts associated with illicit substance use.

1. In his second report of October 2009, Dr Roberts said this:

"On 14 August 09, Mr Amado informed me that the medication prescribed ...did not agree with him and that as a result of taking such medication he experienced a sensation of feeling upset in the stomach and dizziness.

Mr Amado decided to discontinue medication and attempt to achieve progress by means of self discipline and exercise.

...

Mr Amado attended for further review on 1.10.09. He commented on continuing to do well, of him working, and attending the gym, that he had while using drugs lived in a fantasy world, that he was now engaged in the real world.

As of 1.10.09 he remained on no medication."

1. Dr Roberts recorded that the three specimens of urine provided and tested all showed no evidence of substance use.

1. He then said this:

"This is in accordance with his assertions and consistent with his clinical presentation.

In summary, Mr Amado's arrest in relation to this matter appears to have been a turning point in his lifestyle and substance use.

He is determined to be successful and there are substantial grounds for optimism in regard to his prognosis.

Should he continue with the proposed treatment plan and remain abstinent as I believe is his wish, his potential to re-offend must be deemed to be minimal."

1. The further evidence from the applicant supports Dr Roberts' optimistic view of the applicant's future.

1. In all of those circumstances, I would not be prepared to conclude that a sentence of imprisonment is the only appropriate penalty to be imposed: s 5 Crimes (Sentencing Procedure) Act . On the contrary, the appropriate penalty to be imposed is a bond pursuant to s 9 of the Crimes (Sentencing Procedure) Act for the applicant to be of good behaviour.

1. This adequately reflects the circumstances which are presented for sentence, the conviction taken with this bond provides a condemnation of the criminality involved and a reflection of the subjective circumstances, in particular, the applicant's refraining from further illicit drug use, such as to encourage his further rehabilitation. This is the sentence that in my opinion ought to have been imposed upon the applicant in October 2009. He would then have had a conviction for the offence and he would have been obliged by the bond to be of good behaviour for a period of nine months.

1. A question arises, having regard to the date upon which this Court is imposing the sentence, what is the appropriate order?

1. In my view it is not an exercise in futility to impose the sentence that ought to have been imposed in the first place, notwithstanding the elapse of time.

1. Section 6(3) of the Criminal Appeal Act 1912 requires this Court, if it is satisfied that a less severe sentence is warranted in law and should have been passed, to " pass such other sentence in substitution therefor ".

1. In those circumstances the orders which I propose are;

(1)   Grant the applicant an extension of time to 19 May 2011 to file a notice of application for leave to appeal.

(2)   Grant leave to appeal against the sentence imposed for the offence of possessing a prohibited drug, namely, 14.95 grams of 3,4-MDMA.

(3)   Appeal allowed.

(4) Quash the sentence imposed by Lakatos DCJ on 23 October 2009 and in lieu thereof order that the applicant enter into a good behaviour bond pursuant to s 9 of the Crimes (Sentencing Procedure) Act for a term of nine months commencing on 23 October 2009.

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Amendments

05 September 2011 - Incorrect reference

Amended paragraphs: [73]

Decision last updated: 05 September 2011