Ayshow v R
[2011] NSWCCA 240
•11 November 2011
Court of Criminal Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Ayshow v R [2011] NSWCCA 240 Hearing dates: 8 September 2011 Decision date: 11 November 2011 Before: Bathurst CJ at 1
James J at 2
Johnson J at 3Decision: Leave to appeal granted.
Appeal against sentence dismissed.
Catchwords: CRIMINAL LAW - sentence - pleas of guilty - supply commercial quantity of a prohibited drug (ecstasy) - supply a prohibited drug (methylamphetamine) - possession of pistol - Form 1 offences including possession of a Taser-like stun device, possession of a document containing instructions for the manufacture of ecstasy and knowingly dealing in the proceeds of crime ($50,060.85) - whether error in assessment of objective seriousness of ecstasy commercial supply offence - whether error in approach to accumulation and totality - whether total effective sentence manifestly excessive - Applicant involved in significant wholesale drug supply and in possession of substantial sum of money and a loaded pistol - no error established - appeal dismissed Legislation Cited: Drug Misuse and Trafficking Act 1985
Firearms Act 1996
Weapons Prohibition Act 1998
Crimes Act 1900
Confiscation of Proceeds of Crime Act 1989
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912Cases Cited: R v AJP [2004] NSWCCA 434
Buttrose v R [2011] NSWCCA 35
HJWG v R [2011] NSWCCA 50
R v Way [2004] NSWCCA 131; 60 NSWLR 168
R v Dang [2005] NSWCCA 430
R v Shi [2004] NSWCCA 135
R v Sellars [2010] NSWCCA 133
Mulato v R [2006] NSWCCA 282
Melbom v R [2011] NSWCCA 22
R v XX [2009] NSWCCA 115; 195 A Crim R 38
Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
R v AZ [2011] NSWCCA 43; 205 A Crim R 222
R v Thalari [2009] NSWCCA 170; 75 NSWLR 307
Callaghan v R [2006] NSWCCA 58; 160 A Crim R 145
R v Kalache [2000] NSWCCA 2; 111 A Crim R 152
R v Williams [2005] NSWCCA 355; 156 A Crim R 225
Markarian v The Queen [2005] HCA 25; 228 CLR 357
Muldrock v The Queen [2011] HCA 39; 85 ALJR 1154
R v Dodd (1991) 57 A Crim R 349 at 354; Khoury v R [2011] NSWCCA 118
Attorney General's Application Under Section 37 of the Crimes (Sentencing Procedure) Act 1999 (No. 1 of 2002) [2002] NSWCCA 518; 56 NSWLR 146Category: Principal judgment Parties: Adeson Johnson Ayshow (Applicant)
Regina (Respondent)Representation: Mr M Smith (Applicant)
Mr CK Maxwell QC; Ms V Lydiard (Respondent)
Crimlaw (NSW) Pty Ltd (Applicant)
Solicitor for Public Prosecutions (Respondent)
File Number(s): 2009/80150 Decision under appeal
- Date of Decision:
- 2010-08-09 00:00:00
- Before:
- His Honour Judge Sides QC
- File Number(s):
- 2009/80150
Judgment
BATHURST CJ : I agree with the orders proposed by Johnson J and with his Honour's reasons.
JAMES J : I agree with Johnson J.
JOHNSON J : The Applicant, Adeson Johnson Ayshow, seeks leave to appeal against sentences imposed by his Honour Judge Sides QC at the Parramatta District Court on 9 August 2010 for drug supply and firearm offences.
After pleas of guilty, the Applicant was sentenced for the following offences:
| Offence | Maximum Penalty | Sentence Imposed |
| Count 1 - On 21 July 2008, at Smithfield, supplying a commercial quantity of a prohibited drug (194 grams of ecstasy) contrary to s.25(2) Drug Misuse and Trafficking Act 1985 | Imprisonment for 20 years. Standard non-parole period of 10 years | Imprisonment comprising a non-parole period of six years commencing on 21 July 2010 and expiring on 20 July 2016, with a balance of term of six years commencing on 21 July 2016 and expiring on 20 July 2022 |
| Count 2 - On 21 July 2008, at Smithfield, supplying a prohibited drug (94 grams of methylamphetamine) contrary to s.25(1) Drug Misuse and Trafficking Act 1985 | Imprisonment for 15 years | Imprisonment comprising a non-parole period of two years and four months commencing on 21 July 2008 and expiring on 20 November 2010, with a balance of term of two years and two months commencing on 21 November 2010 and expiring on 20 January 2013 |
| Count 3 - On 21 July 2008, at Smithfield, possession of a pistol (a 9 mm Parabellum calibre Deutsche-Waffen Und-Munition self-loading pistol) not being authorised by licence or permit, contrary to s.7(1) Firearms Act 1996 | Imprisonment for 14 years. Standard non-parole period of three years | Imprisonment comprising a non-parole period of four years commencing on 21 July 2009 and expiring on 20 July 2013, with a balance of term of two years and nine months commencing on 21 July 2013 and expiring on 20 April 2016 |
In sentencing the Applicant on the first count, the Applicant requested the sentencing Judge to take into account the following seven offences, all committed at Smithfield on 21 July 2008:
(a) possession of a prohibited weapon (a Taser-like handheld antipersonnel device) contrary to s.7(1) Weapons Prohibition Act 1998 ;
(b) knowingly dealing with the proceeds of crime, $50,060.85 in cash, contrary to s.193B(2) Crimes Act 1900 ;
(c) possession of a prohibited drug (1.64 grams of ecstasy) contrary to s.10 Drug Misuse and Trafficking Act 1985 ;
(d) possession of prohibited drug (5 grams of methylamphetamine) contrary to s.10 Drug Misuse and Trafficking Act 1985 ;
(e) possession of a prohibited drug (5.1 grams of cocaine) contrary to s.10 Drug Misuse and Trafficking Act 1985 ;
(f) possession of instructions to manufacture a prohibited drug (ecstasy) contrary to s.11C Drug Misuse and Trafficking Act 1985 ;
(g) possession of ammunition without authority (seven 9-millimetre bullets) contrary to s.65(3) Firearms Act 1996 .
The total effective sentence imposed upon the Applicant comprised a non-parole period of eight years from 21 July 2008 to 20 July 2016 with a balance of term of six years from 21 July 2016 to 20 July 2022.
In addition, his Honour made an order under s.18(1) Confiscation of Proceeds of Crime Act 1989 that the sum of $50,060.85 be forfeited to the State.
Grounds of Appeal
By Notice of Application For Leave to Appeal filed on 6 May 2011, the Applicant identified the following grounds of appeal:
(a) Ground 1 - the sentencing Judge erred when he characterised Count 1 on the indictment as falling "around" the middle of the range of objective seriousness for offences under that provision.
(b) Ground 2 - the sentencing Judge erred when he characterised Count 3 on the indictment as an offence "well within the upper range of objective seriousness for offences under this particular provision" and in the result the sentence was excessive.
(c) Ground 3 - the degree of accumulation as between Count 1 and Count 2 is excessive.
(d) Ground 4 - the degree of accumulation as between Count 2 and Count 3 on the indictment was excessive.
(e) Ground 5 - the overall sentence was manifestly excessive and did not reflect the mitigating factors found by the sentencing Judge and a lesser sentence is warranted in law.
Mr Smith, counsel for the Applicant, abandoned the second ground at the hearing before this Court on 8 September 2011.
Facts of Offences
The Applicant was arrested and charged with respect to these offences on 21 July 2008. He was committed for trial from the Liverpool Local Court on 24 June 2009.
The Applicant's trial was listed to commence at the Parramatta District Court on 15 March 2010. The Applicant entered pleas of guilty on 17 March 2010 (before the trial commenced) and the sentencing hearing was adjourned and proceeded ultimately before his Honour Judge Sides QC on 9 August 2010. After evidence and submissions, his Honour passed sentence later that day.
A Statement of Agreed Facts was tendered at the sentencing hearing. The Applicant did not give evidence in the sentencing proceedings.
His Honour made the following findings of fact (ROS2-6):
"In March 2008 police attached to the Middle Eastern Organised Crime Squad commenced strike force 'Cartella'. From those enquiries the Offender was identified as having involvement in drug supply activities. During the course of these enquiries police applied a number of covert strategies to monitor movements of the Offender.
On 15 July 2008 pursuant to a lawful warrant, police commenced monitoring a mobile telephone service which the Offender was then using.
During the course of the evening of 21 July 2008 police became aware through monitoring of intercepted telephone conversations that the Offender was going to meet a person identified as Tracy Gresham. It was suspected by police that this meeting was for the purpose of supplying a prohibited drug. During one of the intercepted telephone conversations the Offender told Tracy Gresham that he was delayed in meeting her because he was waiting for something.
At about 7.30pm on that day police attached to the Middle Eastern
Organised Crime Squad commenced surveillance of the Offender's residence in Mount Pritchard. At about 8pm an unknown male attended the premises and dropped off a package and a plastic bag. Shortly thereafter a telephone call between the Offender and Tracy Gresham was intercepted. During this call the Offender told Miss Gresham that he was now ready to leave.
The Offender left the front door of the premises carrying a black backpack. He opened the boot of his mother's Falcon. A police officer observed him place the backpack in the boot of the vehicle and lean into the boot and appeared to shuffle something from the middle of the boot to the rear right side quarter panel area. The Offender then closed the boot, returned to the house for a short time and then came out to the motor vehicle. No one else entered the motor vehicle during his brief absence. The Offender then drove the car and travelled in a northerly direction followed by police.
Sometime after entering Robert Street in Smithfield the vehicle was stopped. At this time the Offender was the only occupant of the vehicle. He was asked to get out of the vehicle and a search of it was conducted. Police found a white sock located wedged between the carpet and centre console near the driver's side foot well. Amongst other things it contained a silver weight that had a screwed top, some tablets were found inside the weight. Also in the sock was what appeared to be prohibited drugs. These were seized by the police and later analysis revealed the following:
· there were seven tablets weighing in net 1.65 grams that contained ecstasy and gives rise to one offence on the Form 1 Schedule;
· there was crystalline substance weighing 1.3 grams and hard crystal substance weighing 3.7 grams, both of which were found to contain methylamphetamine and give rise to another offence on the Form 1 Schedule;
· in a small cellophane packet there was powder that was 1.5 grams in weight and contained cocaine giving rise to another offence on the Form 1 Schedule;
The Offender was arrested and cautioned.
When the police searched the boot area of the car, they looked behind the lining on the rear quarter panel on the right hand side and located the following items:
· one 9 millimetre pistol that was in a loaded state and contained seven 9 millimetre hollow point rounds of ammunition, this gives rise to count 3 on the indictment and the possession of the unauthorised possession of ammunition on the Form 1 Schedule;
· a large quantity of crystalline substance in two separate resealable bags, one containing a pale yellow crystalline substance and the other containing a pinkish crystalline substance. Both of these items were analysed and found to be methylamphetamine with a total weight of 94.6 grams giving rise to count 2;
· a further three plastic bags were located that contained a large quantity of pink tablets identical in appearance to the ones found in the sock, found in the body of the car. When analysed and weighed the tablets came to 194 grams and contained ecstasy giving rise to count 1; and
· in the same area they also found a large quantity of currency coming to $50,060.85 giving rise to one offence on the Form 1 Schedule.
As was his right the Offender declined to participate in an interview.
After the initial items were found a search of the Offender's car was recorded by video camera. During the search police located instructions in the vehicle that contained a list of chemicals used to manufacture ecstasy. This gives rise to another offence on a Form 1 Schedule. There is no evidence that the Offender was involved in the manufacture of ecstasy. However, the piece of paper was tested for fingerprints and prints identical to the Offender's index left thumb, right index and middle finger and the right little finger were found on the piece of paper. The finding for the document was relevant to the state of the Offender's knowledge in relation to the ecstasy found in the boot.
On the driver's seat the police found a Nokia phone and when they used a mobile phone to call the number that the Offender had been using this phone rang.
When the police searched the boot they found the backpack that the accused had been seen to put in it. Inside this backpack they found a Taser-like stun device that gives rise to yet another offence on the Form 1 Schedule. The Taser was fitted with two static electrodes which required it to come on contact with the subject in order to be effective. However, it had sustained damage and was not able to be used.
Police estimate that the ecstasy tablets found in the car, which approximated 700 in number, had a street value of about $28,000 and a wholesale price of about $12,600. The purity of the ecstasy found in the car ranged from 44% to 61%. The value of the 94.6 grams of methylamphetamine is estimated to have a street value of $47,000 and a wholesale value of about $11,000. There is no evidence that the Offender was selling prohibited drugs at a street level.
The pistol that police found in the boot of the car was in working order and it was a self-loading pistol. It had a detachable magazine. The Offender was not licensed to be in possession of the pistol or the Taser-like device. Enquiries failed to locate any owner of the pistol or any record of the pistol ever having been registered."
The sentencing Judge observed that the quantity of ecstasy involved in the first count exceeded the commercial quantity by a little over 55%, and was about 39% of the large commercial quantity for that drug.
With respect to the second count, the quantity of methylamphetamine was about 38% of the commercial quantity, and was 31.5 times the traffickable quantity for that drug, and was well over 18 times the indictable quantity.
The Applicant ' s Subjective Circumstances
Before the sentencing Judge were a presentence report dated 14 May 2010, a report of Dr John Jacmon, psychologist, dated 24 May 2010, a reference and a number of certificates. A handwritten letter from the Applicant was admitted, although he did not give evidence. In addition, oral evidence was given by two persons, Susan Zaiter and Jason Michael, who knew the Applicant and his family.
The Applicant has a prior criminal history. In December 1998, he was fined in the Penrith Local Court for possession of a prohibited drug and possession of an unauthorised firearm (not being a prohibited firearm or pistol).
In August 2005, he was sentenced in the Parramatta District Court for robbery in company and detaining a person in company with intent to obtain advantage. The Applicant was sentenced to a total effective term of imprisonment of five years and three months commencing on 8 January 2004 and expiring on 7 April 2009, with a non-parole period of three years and three months expiring on 7 April 2007.
Accordingly, the present offences were committed whilst the Applicant was on parole. On 7 August 2008, the State Parole Authority revoked his parole, resulting in a term of imprisonment of eight months and 18 days from 22 July 2008 to 8 April 2009.
The sentencing Judge summarised the Applicant's subjective circumstances in the following way (ROS6-8):
"Born in Iraq in 1975, the Offender came to Australia with his mother and brother when he was about seven years old. His father had apparently been killed in the Iraq/Iran war. Sometime after their arrival in this country his mother remarried, producing a blended family. That marriage lasted about five years. According to the Pre-Sentence Report he had the disadvantage of suffering physical abuse at his stepfather's hands. As a result of the separation the Offender was left with the responsibility of caring for his mother and siblings. At the time of his arrest he was single and living with his mother and nephew.
The Court notes that he had been in a relationship for some years prior to his arrest that had ended well before his arrest.
It seems that, after obtaining his Higher School Certificate, the Offender worked in a wide variety of jobs, mostly in the hospitality industry. Whilst in custody between 2004 and 2007 he undertook a large number of courses and, following his release to parole in April 2007, he set up his own excavation and concreting business. However, this business began to fail in the months preceding his arrest because he had neglected it due to his increasing drug abuse.
The Offender developed a poly-substance abuse problem commencing when he was 19 years old and frequently avoided home to hide his drug usage from his family.
The Offender cannot claim the benefit of prior good character. During 1988 [sic - 1998] he was fined for possession of an unauthorised firearm, not a pistol, and possession of drugs. On 26 August 2005 he was sentenced to five years and three months, with three years and three months non-parole for kidnapping, with a concurrent sentence for robbery in company. The sentences commenced on 8 January 2004. He was released to parole on 7 April 2007. During the first 12 months on parole he participated in relapse programs, was subjected to urinalysis and was otherwise compliant with supervision which was suspended after about 12 months. However, parole was revoked because of the current offences. He had eight months and 18 days to serve as a result of the revocation and that sentence expired on 8 April last year.
About six months before his arrest the Offender started using amphetamines and benzodiazepines to assist with 'overwhelming pressures' he was facing. His drug usage quickly got out of hand affecting his daily functioning and family relationships. It seems that part of the pressures he faced were financial in nature. He is eager to participate in intensive drug and alcohol programs in gaol such as the Compulsory Drug Treatment Program in Parklea. However, in the Court's view, he is not eligible for that program. He has already completed the 12 sessions of the 'Getting Smart' program and participates in Narcotics Anonymous. He has actively participated in some educational and vocational programs and apparently now works in the fitness area. He is the Middle Eastern Delegate in Parklea Gaol, a position he discharges effectively. He has not incurred any disciplinary charges. The Court notes that he regularly attends Bible studies.
The Court notes that he suffers from a borderline personality disorder that could reflect itself in poor impulse control, instability in mood, relationships, self confidence and behaviour amongst other things. At times he could suffer bouts of severe depression and/or anxiety. There is no evidence that this disorder has made his time in gaol anymore burdensome than somebody not have such infliction."
Some Further Findings of the Sentencing Judge
As a result of the Applicant pleading guilty when his trial was due to begin, his Honour reduced his sentence by about 10% to reflect the utility of his guilty pleas (ROS2).
The sentencing Judge accepted that the Applicant was "remorseful and has insight into the role his drug usage played in the offending" and that he accepted responsibility for his offences and acknowledged the harm that they caused, so that the Court extended leniency because of remorse (ROS2).
Having regard to submissions made in this Court, it is appropriate to set out his Honour's findings concerning the Applicant's role in the drug supply offences (ROS8-10):
"Counsel for the Offender argued that the Offender's role was limited to being a courier of wholesale quantities of both drugs. He relied on the Offender's departure from his home shortly after he received a delivery and the terms of the phone conversations between him and Tracy Gresham before and after the delivery to the Offender's house and the absence of a police search of the Offender's home. According to exhibit A police suspected that the Offender was going to meet Tracy Gresham for the purposes of supplying her drugs. However, that was no more than suspicion on their part. There is no evidence that what was delivered to the Offender in a plastic [sic] formed any part of what the police found when they stopped his mother's car or what was in the boot at that time. One could not exclude the possibility that some of the things that the police found in his mother's car when they stopped it had been the subject of that delivery. In the Court's view, a combination of circumstances justifies excluding that the Offender's role is limited to delivering the drugs the subject to counts 1 and 2. Those circumstances are as follows:
1. The drugs were divided between five bags, three of which contained ecstasy tablets, the other two bags contained methylamphetamine of different colours with a purity ranging between 44% and 61%.
2. The evidence indicates that the drugs were of significant value.
3. The five bags of drugs were found in the same part of the boot as the money and the loaded firearm. It is unlikely that a mere courier of even that quantity of drugs would also have a large quantity of money on him. If he were a mere courier who wanted to protect the money and/or the drugs he would not have had the gun in the same area of the car as the money and drugs. He told the probation officer that the person who gave him the pistol told him not to lose his money. As the Offender did not give evidence it is not clear if this assertion related to the money that the police found in the car or money he might get from the sale of the drugs. Further, that the Taser was found in that position where the Offender would not have had ready access to it without getting out of the car.
The Court is satisfied beyond reasonable doubt that the Offender was involved in supplying these two drugs at a wholesale level. His exact role is not entirely clear from the evidence presented to the Court, but it was more than merely being a courier or somebody transporting the drug from point A to point B. Whilst he may not have been in the upper echelons of the drug trafficking hierarchy, he was not in the lowest levels either. He had no way of knowing who the ultimate users of the drugs would be. The Court is satisfied beyond a reasonable doubt that these offences were premeditated and, when he became involved, he appreciated that it was becoming and mentioned organised criminal activity.
He had over $50,000 in the car which he has acknowledged was the proceeds of crime. This, combined with the two types of drug and the assertion in paragraph 1 of exhibit A that enquiries revealed the Offender was involved in drug supply activities indicates, that neither count 1 nor count 2 was an isolated aberration.
There is no evidence that the Offender was living beyond his means. He was abusing drugs himself and told the probation officer about financial difficulties, but did not particularise those. His drug use and financial problems may explain but do not excuse his offending. There is evidence that his drug usage and personality disorder impacted upon his cognition and could have done so at the time of the offences. However, there is no credible evidence that he did not know what he was doing and its consequences when he committed these offences or for that matter the possession of the gun offence.
Because of the weight of the drug and he has been involved at a wholesale level the Court found, having considered count 1 in accordance with R v Way 2004 60 NSWLR 168, that it falls around the middle of the range of objective seriousness for offences under this provision. Because of his guilty plea and the finding of special circumstances the Court did not impose the standard non-parole period but used it as a guidepost.
The Court found that count 2 falls just below the mid range."
The sentencing Judge made the following finding concerning the objective seriousness of the firearm offence (ROS10):
"He had no legitimate reason to be in possession of the pistol, his possession of it was clearly related to his drug trafficking activities and the money found in the car. That also explains why it was loaded. It was easily concealable and was self-loading. His possession of it was clearly premeditated and connected with his involvement in organised criminal activity. Having considered this matter in accordance with Way [op cit], the Court concluded that this offence falls well within the upper range of objective seriousness for offences under this particular provision."
Ground 1 - Suggested Error in Assessment of Objective Seriousness of the First Count
Submissions
Mr Smith's written submissions contended that the sentencing Judge erred in two distinct but related ways in considering the first count. Firstly, it was said that his Honour had erroneously confined consideration of the objective seriousness to questions of drug weight and level of involvement, without taking into account the Applicant's mental condition at the time of the offence. Secondly, it was submitted that his Honour had failed to properly articulate where it was that the offence fell in terms of the range of objective seriousness.
In support of the first contention, Mr Smith submitted that the sentencing Judge was required to consider the Applicant's mental state when assessing the objective seriousness of the offence: R v AJP [2004] NSWCCA 434; Buttrose v R [2011] NSWCCA 35. Mr Smith submitted that the Applicant was dealt with on the basis that he had developed a polysubstance abuse at the age of 19 years and that the Applicant suffered from a borderline personality disorder that could reflect itself in poor impulse control, and instability in mood, relationships, self confidence and behaviour. Mr Smith pointed to his Honour's finding that there was "no credible evidence that he did not know what he was doing and its consequences when he committed these offences or for that matter the possession of the gun offence" , but submitted that his Honour had failed to have regard to the Applicant's mental state to reduce the objective seriousness of the offences.
The second contention was that his Honour had erroneously described the first count as being "around the middle" of the range and that this finding did not provide the level of particularity required when making a finding of objective seriousness: HJWG v R [2011] NSWCCA 50 at [8]. Mr Smith submitted that this finding constituted error and that, when taken with the suggested failure to have regard to the Applicant's mental state, error had been demonstrated in accordance with the first ground of appeal.
In oral submissions, Mr Smith refined the challenges in the first ground to contend that his Honour's finding concerning the objective seriousness of this offence was not open.
Mr Smith noted that his Honour's finding that the purity of the ecstasy ranged from 44% to 61% was wrong, with these percentages of purity relating to the methylamphetamine, which was the subject of the second count. Although this issue was not the subject of a precise ground of appeal, Mr Smith sought to rely upon it under the umbrella of the first ground of appeal.
The Crown accepted that an offender's mental illness or intellectual disability may bear upon the objective seriousness of an offence, in the manner described in R v Way [2004] NSWCCA 131; 60 NSWLR 168 at 186-187 [85]-[86].
The Crown submitted that the sentencing Judge had considered this question here, and had found that there was no credible evidence that the Applicant did not know what he was doing and the consequences of his acts.
With respect to an assessment of the range of objective seriousness of drug supply offences, the Crown referred to R v Dang [2005] NSWCCA 430 at [24] where a range of factors were mentioned, including the amount and purity of the drug, the number of occasions on which the drug was supplied, the motivation for the supply, the planning involved and the role of the offender in the supply. Reference was made as well to R v Shi [2004] NSWCCA 135 at [35], where it was said that the motive of an offender, or any condition which affects the offender's state of mind which impinges upon the elements comprised within the mens rea is of relevance, although less so in the case of any condition which is self induced through abuse of alcohol or drugs.
The Crown submitted that the present Applicant was engaged in wholesale supply and was more than a courier. It was submitted that it was open to the sentencing Judge to find that the first count involved an offence around the middle of the range of objective seriousness.
The Crown observed that the prosecution submission in the District Court was that the first count was in the middle range and that no contrary submission had been made by the Applicant's counsel.
The Crown submitted that, although this Court has reiterated on a number of occasions that, when sentencing for standard non-parole period offences, Judges ought specify the extent or degree to which an offence departs from a notional offence in the mid-range of objective seriousness ( R v Sellars [2010] NSWCCA 133 at [11]), his Honour's finding in this case of "around" the middle of the range did not suggest departure either up or down from the middle of the range which required identification.
With respect to the purity of the drugs, the Crown submitted that the passage relied upon by the Applicant (ROS5.8) contained a slip, as his Honour had identified correctly elsewhere in his remarks, the purity levels as attaching to the methylamphetamine (ROS8.9).
The Crown submitted that error had not been demonstrated in accordance with the first ground of appeal.
Decision
This Court has emphasised that characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in finding facts and drawing inferences from those facts: Mulato v R [2006] NSWCCA 282 at [37], [46]. This Court is slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion, and the question must be whether the particular characterisation was open: Mulato v R at [37], [46]-[47].
This appeal was heard before the High Court gave judgment on 5 October 2011 in Muldrock v The Queen [2011] HCA 39; 85 ALJR 1154. That decision changes the law in several respects where sentence is to be passed for an offence carrying a standard non-parole period. To the extent that a question arises whether the Applicant's mental state at the time of the offence may bear upon objective seriousness ( Muldrock at 1162-1163 [27], 1163 [29]), it remains a relevant factor on sentence in an assessment of moral culpability. Accordingly, if there is evidence to support a finding that an offender's moral culpability is reduced by a relevant mental condition, the offender is entitled to have it called in aid on sentence. The present ground of appeal will be considered in this light.
The Applicant's role and the quantity of the drug in the first count were central considerations in an assessment of the seriousness of the offence.
His Honour adverted to the evidence, such as it was, concerning the Applicant's mental state. The Applicant did not give evidence at the sentencing hearing. The evidence relied upon by the Applicant in this respect emanated from a psychological report. There was no psychiatric evidence before the District Court.
I see no error in his Honour's approach to this aspect. It should be kept in mind that the present offences disclose the Applicant being involved in significant wholesale drug supply where he was in possession of a substantial sum of money and a loaded firearm. The evidence did not demonstrate a causal relationship between the Applicant's offences and his mental state arising from polysubstance abuse and his capacity to reason or appreciate fully the rightness or wrongness of his acts or to exercise appropriate powers of control. Even allowing for the Applicant's drug use as shedding some light upon how he came to be involved in serious crime of this type, I am not persuaded that these factors operate to reduce his moral culpability for these offences.
In my view, the misdescription of the purity as applying to the ecstasy (see [13] above) was a slip. His Honour later described (correctly) the purity percentage as applying to the methylamphetamine (see [23] above). In any event, as Mr Smith acknowledged in this Court, the ecstasy was in the form of about 700 tablets designed for supply in that form to end users, without further processing. The issue of purity is of less importance in such a case.
For completeness and with the decision in Muldrock in mind, I observe that his Honour had regard to the standard non-parole period as a "guidepost" . His Honour assessed the objective seriousness of the offence, and made other findings as part of an identification of relevant objective and subjective factors. Of course, assessment of the objective gravity of an offence has traditionally been an essential element of the sentencing process: R v Dodd (1991) 57 A Crim R 349 at 354; Khoury v R [2011] NSWCCA 118 at [71]. His Honour did not engage in a two-stage sentencing process.
It was open to the sentencing Judge to make the finding which he did concerning the objective seriousness of the first count: Mulato v R at [37], [46].
In my view, the first ground ought be rejected.
Ground 2 - The Challenge to the Assessment of Objective Seriousness of the Firearm Offence
This ground of appeal was abandoned at the hearing before this Court. It will still be necessary to refer to the objective seriousness of the firearm offence in considering the remaining grounds of appeal.
Grounds 3, 4 and 5 - Challenges to Accumulation and Totality
It is appropriate to consider these grounds of appeal together.
Submissions
Mr Smith submits that the degree of accumulation of sentences in this case is excessive so that the total effective sentence imposed is excessive.
Whilst accepting that there is no rule or principle that requires sentences for offences committed on the same day, or in the course of the same criminal undertaking, to be served concurrently ( Melbom v R [2011] NSWCCA 22 at [74]), and that the fact that drugs were located in the same place and at the same time, did not necessarily lead to concurrent sentences ( R v XX [2009] NSWCCA 115; 195 A Crim R 38), Mr Smith submits that a greater degree of concurrence was appropriate in this case.
Counsel for the Applicant submits that the sentencing Judge did not identify in what sense the first and second counts were said to be separate, so that concurrent sentences were appropriate as between those counts.
Mr Smith concedes that some degree of accumulation was required as between the second and third counts, but submits that the degree of accumulation is excessive in this case.
He submits that the overall degree of accumulation, which amounted to 25% of the overall non-parole period, was excessive in circumstances where the offences were very closely connected.
Mr Smith submits that the Applicant's subjective case was not appropriately reflected in the overall sentence: Mulato v R at [40]. He pointed to the 10% discount for the pleas of guilty and other subjective features, including the Applicant's family history in Iraq and Australia. He pointed as well to the sentencing Judge's assessment that the Applicant's prospects of rehabilitation were "reasonable to good" .
Mr Smith submitted that the Form 1 offences in this case did not justify a significant increase in the otherwise applicable penalty, and that it was not automatic that the sentence for the first count, to which the Form 1 offences attached, ought be increased: Mulato v R at [68].
He submits that, with one exception, the Form 1 offences were relatively minor offences. He submitted that:
(a) small quantities of drugs were involved in the possession offences;
(b) the Taser in the Applicant's possession was not functioning;
(c) the instructions relating to the manufacture of a prohibited drug were not indicative of any intent to manufacture on the Applicant's part;
(d) possession of the ammunition was closely related to the third count;
(e) the offence of knowingly dealing with the proceeds of crime involved a sum of money which was forfeited as part of the sentencing proceedings.
Mr Smith submitted that the overall sentence was manifestly excessive and that lesser sentences were warranted in law.
The Crown submitted that questions of concurrence or accumulation are discretionary.
The Crown submitted that his Honour applied the principles with respect to accumulation, concurrency and totality and that the levels of accumulation were open to the sentencing Judge in this case.
The Crown submitted that the sentences were not manifestly excessive when taken individually, or when viewed as a total effective sentence, so that the challenge to the sentences in this case ought be rejected.
Decision
The principles to be applied with respect to concurrency, accumulation and totality were stated by Howie J in Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 at 47 [27]:
"In any event there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both."
I do not accept the Applicant's submission that, in some way, concurrent sentences were appropriate for the drug supply offences constituting the first and second counts. Although the drugs in question happened to be in the Applicant's vehicle on the same day and at the same time, different drugs were involved, being a commercial quantity of ecstasy (first count) and a significant quantity of methylamphetamine (second count). The offences were separate because the law of this State identifies these crimes as separate offences.
There is no expectation that a sentencing Judge will treat offences of this type as requiring concurrent sentences because the Applicant committed offences, with respect to two different drugs, at the same time. Of course, there is no rule either that accumulation should always occur in such a case. What is required is the exercise of discretion in the circumstances of the case. That is what happened here. A measure of accumulation was both open and appropriate with respect to the first and second counts.
The firearm offence contained in the third court required, in my view, a significant measure of accumulation and no error has been demonstrated in his Honour's approach in this respect.
It is appropriate to refer to sentencing principles concerning offences under s.7(1) Firearms Act 1996 .
In R v AZ [2011] NSWCCA 43; 205 A Crim R 222, the Court said at 234 [73]:
"The policy of the legislature evinced by the enactment of the offence in s.7(1) is to deter and punish possession of firearms per se: R v Krstic [2005] NSWCCA 391 at [14]. The courts must seek to implement the legislative policy to control the possession of firearms in the community 'by honest citizens and not simply to disarm the criminally minded': R v Tolley [2004] NSWCCA 165 at [53]. As it happens, the Respondent was amongst the ranks of 'the criminally minded' through his drug supply activities."
Like the Respondent in R v AZ , the present Applicant was amongst the ranks of "the criminally minded" through his drug supply activities.
It is pertinent to refer to other features of offences under s.7(1) Firearms Act 1996 which bear upon the objective seriousness of offences under that provision. In R v Thalari [2009] NSWCCA 170; 75 NSWLR 307, this Court said at 320-321 [88]-[89]:
"88 The fact that the pistol was loaded, and that the Appellant possessed other ammunition, bore upon the seriousness of his crimes: R v Mitchell [2002] NSWCCA 270 at [14]; R v Amurao [2005] NSWCCA 32 at [69]; Yang v R [2007] NSWCCA 37 at [18]. The Appellant's claim that he possessed the loaded pistol for his own protection was not a matter of significant, if any, mitigation, since the policy of the legislature evinced by the enactment of the offence under 7(1), with a maximum penalty of 14 years' imprisonment, was to act as a deterrent, and to punish possession of a pistol per se: R v Krstic at [14]. The rule of law, and the authority of courts, depends upon the proposition that persons do not, by illegal means, take their protection into their own hands: R v AA [2006] NSWCCA 55 at [46].
89 The fact that the serial number of the pistol had been obliterated, although explicable by the criminal origin of the weapon, does not assist the Appellant, who possessed the firearm for criminal purposes: Yang v R at [18]. The fact that the Appellant possessed the pistol in a context where he was involved in the supply of drugs also bears on the objective seriousness of the pistol offence: Luu v R at [32]."
The location of the firearm with ammunition, drugs and money in the Applicant's vehicle pointed to a link between the pistol and the other items. As the sentencing Judge found, the fact that the Applicant possessed the pistol, in a context where he was involved in the supply of drugs, bore on the objective seriousness of the s.7(1) offence: R v AZ at 234 [76].
To my mind, the aspects of this case to which the sentencing Judge made reference all pointed to, and supported, a conclusion that the s.7(1) offence was "well within the upper range of objective seriousness for offences" under that section. Even though the second ground of appeal was abandoned, this finding remains important to the determination of the challenge to his Honour's approach to accumulation and totality.
The sentence imposed upon the Applicant in this case was a non-parole period of four years with a balance of term of two years and nine months. This sentence was appropriate in the circumstances of the case.
A further observation may be made concerning the Applicant's submissions in the District Court and before this Court. It was contended that his Honour had given inadequate weight to the evidence that the Applicant suffered from a borderline personality disorder that could reflect itself in poor impulse control and instability in mood. This argument is very much a two-edged sword with respect to the firearm offence. Possession of a loaded pistol by a person with poor impulse control and instability in mood gives rise to issues of public safety, the protection of the community and the need for a significant allowance for personal and general deterrence: R v Thalari at 321 [93]; s.3A(b), (c) Crimes (Sentencing Procedure) Act 1999 .
The Applicant's possession of a loaded pistol required some separate and identifiable penalty for that crime. The sentence on the drug supply offences could not comprehend and reflect the criminality for the firearm offence. The offences involved discrete and independent criminal acts so that a significant measure of accumulation was appropriate for the s.7(1) offence: R v AZ at 235-236 [85].
It should be kept in mind that the sentencing Judge ordered that the sentences for these offences would run concurrently with the balance of parole being served by the Applicant from 22 July 2008 to 8 April 2009, following revocation of his parole by the State Parole Authority. As his Honour explained (ROS11):
"Each offence calls for a substantive sentence. Whilst there is some interrelationship between the three offences, they are separate and require some accumulation. Because the breach of parole has been treated as an aggravating feature for each offence and the overall length of the sentence, the Court considered that these sentences should be served concurrently with the balance of parole."
This discretionary determination was open to the sentencing Judge and operated favourably to the Applicant: Callaghan v R [2006] NSWCCA 58; 160 A Crim R 145 at 149-150 [22]-[25].
However, the fact that the Applicant had committed these offences whilst on parole for robbery in company and kidnapping was a significant factor to be taken into account on the question of accumulation of individual sentences as well. The Applicant was not entitled to have factors operating, by way of double counting, in a manner that was favourable to him on issues of accumulation, concurrency and totality.
In sentencing the Applicant for the first count, it was necessary for the sentencing Judge to have regard to the seven further offences contained in the Form 1. As his Honour observed, these offences were to be taken into account "when considering deterrence and retribution" in passing sentence on the first count (ROS1).
The sentence imposed for the first offence had to reflect the need for personal deterrence and retribution arising from the additional criminality involved in the Form 1 offences: Attorney General's Application Under Section 37 of the Crimes (Sentencing Procedure) Act 1999 (No. 1 of 2002) [2002] NSWCCA 518; 56 NSWLR 146 at 159 [42]-[43]; R v Thalari at 321 [90].
The Form 1 matters involved a variety of crimes. Their seriousness cannot be downplayed so as to suggest that the quantum of sentence on the first count ought not to have been increased to reflect those crimes.
The offence of knowingly dealing in the proceeds of crime involved a substantial sum of $50,060.85. The fact that this sum was forfeited to the State could not be taken into account as a mitigating factor on sentence: R v Kalache [2000] NSWCCA 2; 111 A Crim R 152 at 175-176 [77]; s.24B Crimes (Sentencing Procedure) Act 1999 .
The offence of possession of a Taser-like stun device was not a minor example of an offence under s.7(1) Weapons Prohibition Act 1998 : cf R v Williams [2005] NSWCCA 355; 156 A Crim R 225 at 232-233 [37].
The offence of possession of a document (which the Applicant had touched) containing instructions for the manufacture of ecstasy was an unusual one, which did not assist the Applicant in an overall assessment of his association with drugs.
The sentencing Judge had regard to all relevant objective and subjective factors in passing sentence.
I am not persuaded that a total effective sentence comprising a non-parole period of eight years and an effective head sentence of 14 years is manifestly excessive. A claim of manifest excess requires the Applicant to demonstrate that the sentences were unreasonable or plainly unjust: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 370-371 [25]. Neither the individual sentences, nor their cumulative effect, were unreasonable or plainly unjust. To the contrary, the sentences were well within the proper exercise of sentencing discretion for serious drug supply and firearm offences of this type.
I would reject the third, fourth and fifth grounds of appeal.
Conclusion and Orders
The Applicant has not made good any of the grounds of appeal. Even if error had been demonstrated (and it has not been), I would not be satisfied that some lesser sentence or sentences are warranted in law for the purpose of s.6(3) Criminal Appeal Act 1912 .
I propose the following orders:
(a) leave to appeal granted;
(b) appeal against sentence dismissed.
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Decision last updated: 11 November 2011
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