Ballard v The Queen

[2017] NSWCCA 310

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Ballard v R [2017] NSWCCA 310
Hearing dates:	22 November 2017
Decision date:	13 December 2017
Before:	Macfarlan JA at [1] Fullerton J at [2] Button J at [28]
Decision:	1. Leave granted to amend the grounds of appeal. 2. Leave to appeal refused.
Catchwords:	CRIMINAL LAW – appeal against sentence - four offences of supply of a prohibited drug contrary – whether sentence is manifestly excessive
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Appeal Act 1912 (NSW) Drug Misuse and Trafficking Act 1985 (NSW)
Category:	Principal judgment
Parties:	Lee Allen Ballard (Applicant) The Crown (Respondent)
Representation:	Counsel: P Lange (Applicant) N Adams (Crown)   Solicitors: Bannisters Lawyers (Applicant) Solicitor for Public Prosecutions (Crown)
File Number(s):	2013/364217
Decision under appeal	Court or tribunal: District Court Date of Decision: 27 May 2016 Before: English DCJ File Number(s): 2013/364217

Judgment

1. MACFARLAN JA: I agree with Fullerton J.

2. FULLERTON J: On 27 May 2016, after being committed for sentence to the District Court for four offences of supply of a prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW), the applicant was sentenced by English DCJ to an effective term of imprisonment of 6 years comprised of a non-parole period of 3 years, 10 months and 24 days.

3. The drug offences were committed on various dates between January 2013 and August 2013 as follows:

• Count 1 – On 25 January 2013 at Jilliby, New South Wales, supply of a prohibited drug, namely 100 grams of methylamphetamine, with a total purchase price of $20,000. This offence attracts a maximum penalty of imprisonment for 15 years.

• Count 2 – Between 4 May 2013 and 8 May 2013 at Ramsgate, supply of a prohibited drug, namely 100 grams of methylamphetamine. This offence attracts a maximum penalty of imprisonment for 15 years.

• Count 3 – Between 7 June and 14 June 2013 at Lithgow, supply of a prohibited drug, namely 28.4 grams (1 ounce) of MDMA, with a total purchase price of $2,500. This offence attracts a maximum penalty of imprisonment for 15 years.

• Count 4 – Between 9 August 2013 and 19 August 2013 at Moorebank, supply of more than the indictable quantity of a prohibited drug, namely 1,000 pills (between 200 and 300 grams) of Methorphan, with a total purchase price of $10,000. This offence attracts a maximum penalty of imprisonment for 15 years.

4. In respect of Count 4, her Honour took into account a further offence on a Form 1 pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW), namely that on 3 December 2013 at Frenchs Forest, New South Wales, he knowingly dealt with proceeds of crime, being $10,800 in cash, contrary to s 193B(2) of the Crimes Act 1900 (NSW).

5. The following sentences were imposed:

• Count 1 – Imprisonment for 3 years and 9 months, commencing 10 February 2016 and expiring 9 November 2019, with a non-parole period of 2 years and 3 months expiring 9 May 2018.

• Count 2 – Imprisonment for 3 years and 9 months, commencing 10 May 2016 and expiring 9 February 2020, with a non-parole period of 2 years and 3 months expiring 9 August 2018.

• Count 3 – A fixed term of 18 months, commencing 10 November 2015 and expiring 9 May 2017.

• Count 4 – Imprisonment for 5 years and 3 months, commencing 10 August 2016 and expiring 9 November 2021, with a non-parole period of 3 years, 1 month and 24 days expiring 3 October 2019.

6. After orders for partial accumulation of the sentence of all counts and a finding of special circumstances, an effective sentence of 6 years with a non-parole period of 3 years, 10 months and 24 days was imposed.

7. The application for leave to appeal under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW), initiated by the filing of a notice of appeal on 15 March 2017, has had a chequered history in this Court. There have been multiple breaches of orders made by the Registrar for the filing and serving of materials in support of the application on what was, at that time, the sole ground of appeal, namely that by reason of the applicant’s medical condition his incarceration has proved more onerous than was appreciated at the time of sentence. There have also been multiple applications before the Registrar for adjournments and an application to vacate the hearing of the appeal before this Court, pending what was said to be the need to obtain updated medical evidence to be relied upon as fresh evidence on the hearing of the appeal.

8. As recently as 9 November 2017, the applicant applied to the Registrar to vacate the hearing date of 22 November 2017. That application was refused. The applicant was advised that he should be ready to proceed on 22 November 2017 and that any application to vacate the date should be made to the Court at the hearing.

9. On the afternoon of 21 November 2017, the applicant’s newly retained counsel advised the Crown and the Court that he intended to abandon the sole ground of appeal upon which leave was to be sought and that he would not be relying upon the detailed written submissions that had been filed by his predecessor. He further advised that on the hearing of the appeal he proposed to seek leave to amend the grounds of appeal and substitute a fresh ground of appeal, namely that the sentence imposed on Count 4 was manifestly excessive.

10. On the hearing of the appeal, the Crown did not oppose leave being granted to amend the grounds of appeal but submitted that leave to appeal should be refused and the appeal dismissed.

11. The Court resolved to permit the applicant’s counsel to advance the arguments foreshadowed in his written submissions filed in support of the contention that the sentence imposed on the fourth count was manifestly excessive, being “unreasonable and plainly unjust”, and to reserve the question whether leave should be granted to amend the notice of appeal until the Court had the opportunity to consider the merits of the application.

12. With some considerable reluctance, I have resolved that leave should be granted to permit the applicant to challenge the sentence on the fourth count as manifestly excessive. I would, however, refuse leave to appeal, there being in my view insufficient merit in the submissions advanced in support of the contention that the sentence on the fourth count is “unreasonable or plainly unjust”. I am of that view irrespective of whether the focus is on the sentence for that discrete drug supply or on the total effective sentence imposed which comprehends the overall criminality constituted by that offending and the three drug supply offences that preceded it in time.

The agreed facts

13. On 25 January 2013, the applicant discussed the supply of 100ml of methylamphetamine oil with a person on a lawfully intercepted telephone call. Thereafter, the applicant met with that person at a freeway service centre at Jilliby where he supplied 100ml (equivalent to 100g) of methylamphetamine oil for the sum of $20,000 (Count 1).

14. On 6 May 2013, the applicant and a co-offender met another person in the carpark at McDonalds in Menai where they discussed the supply of methylamphetamine oil. After a further conversation on 7 May 2013, the applicant met with that person the following day when the applicant supplied him with a bottle of methylamphetamine oil (Count 2).

15. In a recorded conversation on 7 June 2013, the applicant stated he could supply MDMA (referred to as “M”) to a third person. Further communications between the applicant and that person ultimately resulted in that person agreeing to purchase the MDMA.

16. On 10 June 2013, the applicant met him in the vicinity of Lithgow where he supplied at least 28.4g (1 ounce) of MDMA, or a drug being passed off as MDMA for $2,500. The Crown could not discount that the supply was of Methorphan (a facsimile for the drug MDMA but a prohibited drug under the Drug Misuse and Trafficking Act) (Count 3).

17. On 9 August 2013, the applicant met with a fourth person at Moorebank and offered to supply him 1,000 tablets of Methorphan for $10 each.

18. On 19 August 2013, the applicant supplied the same person with a further 1,000 tablets of Methorphan for $10,000 (Count 4).

19. On December 2013, the applicant was arrested. Following his arrest, the applicant told police they would locate money in the kitchen of his home. The police located $10,800 in a kitchen cupboard. (This was the subject of the offence on the Form 1.)

The applicant’s subjective case in summary

20. The applicant was 37 years old at the time of sentence. He was married with three children. He and his wife operated a successful business of loading shipping containers, together with providing casual labour for warehousing and forklift drivers.

21. The applicant had a history of drug abuse dating from his teenage years, associated with episodic “binge drinking”. He commenced the use of ecstasy at the age of 22, later progressing to the use of cocaine. He estimated that at the peak of his drug dependence he was using 2 grams of cocaine per day and self-medicating with the antidepressant Xanax. He continued to use illicit drugs until his arrest. He told the sentencing judge that as a result of his drug addiction he accumulated a drug debt in excess of $50,000 which he claimed precipitated his involvement in the supply of prohibited drugs. (In the extract at [25] which follows, her Honour rejected this account.)

22. Since his release to bail pending sentence, the applicant claims to have been drug free and to have finally acknowledged the deleterious impact of drug dependence on his own health and that of his family.

23. The applicant relied upon medical evidence on sentence detailing a combination of significant health problems in support of a submission that this would render his time in custody as a serving prisoner more onerous. Her Honour considered that material and found:

The department is aware of the needs of this particular offender and give the evidence of Dr Ette, there is no reason why the dietary needs of this offender cannot be met as recommended by his treating medical practitioners and indeed, Justice Health. A duty of care is owed to inmates and must be observed to the best of the ability of corrective services.

24. In considering the applicant’s subjective circumstances and other matters relied upon in mitigation of sentence, her Honour found:

[The applicant] has of course entered pleas of guilty and he is entitled to a 25% discount in respect of each plea. His pleas demonstrate contrition and they have significant utilitarian value. I do find he is truly remorseful and contrite and he has expressed his remorse at the harm done not only to himself and his family but to the community at large. No doubt his time in custody would have brought home to him just how destructive drugs are in the community and that he was someone who was actively engaged in distributing large quantities of these substances into the community causing considerable harm to others.

25. Her Honour made the following further factual findings which are, in my view, well supported by the evidence adduced on sentence:

There can be no doubt that this offender was actively involved in the supply of significant quantities of illicit substances for financial reward. The offender’s telephone calls were intercepted, demonstrating that he was consistently engaged with others in conversations relating to the supply of prohibited drugs. He was actively engaged in conversations regarding the purification process for turning methylamphetamine oil into a marketable form. He was readily able to access large quantities of prohibited drugs.

The sums involved were not insignificant. They were not small street deals. These sums ranged from $2000 to $20,000. The four charges span a period of January to August, not isolated incidents. A sophisticated operation involving him travelling significant distances in order to carry out this hideous trade. It is not in dispute that nothing other than a custodial penalty is appropriate. It is submitted on his behalf that he was supplying in order to support his habit, that his wife managed the accounts and would have been aware if sums of money were being used for other than business purposes.

… Accounting material tendered demonstrated considerable sums of money being transacted through the business accounts from unexplained sources. In an earlier period, the sum of approximately $350,000. In the period relating to his offending in the period 2012 to 2014, funds from unknown sources were also deposited. But in addition, this offender owned a fleet of vehicles, 11 in all, and trailers registered in his name. Amongst his collection were a Porsche, a vintage Chevrolet sedan, a Jeep Wrangler convertible and a Harley Davidson motorcycle.

He was overheard in recorded conversations demonstrating willingness to purchase a Maserati. Clearly he was someone displaying what could be best described as the trappings of wealth, rather than someone struggling to pay a drug debt as has been suggested by him. He would have clearly, on the information tendered, have had sufficient income to fund his habit without the necessity to deal drugs at the level he had involved himself in. What I find extraordinary is that he was actively dealing in significant quantities of drugs at the very time he was undergoing surgery for obesity and suffering significant post-operatively, if his evidence is to be believed.

It is clear he was not suffering so significantly that he could not carry out his illegal activity within weeks of undergoing his stomach reduction surgery. Similarly, at the time of his first offence for which he is facing sentence, he was consulting Dr Kuo and was immobilised in a cast, non-weight bearing and under constant review up until March 2013. Once again, obviously able to conduct his illegal activities undeterred by the regular attendance at the medical appointments and partially incapacitated by having ongoing treatment for a left ankle instability.

There can be no doubt he is someone with business acumen who chose not only to use it legitimately but to put it to advantage to do so illegitimately as well, not only to his detriment but to the detriment of the whole community. This was not a one off transaction but a number of significant transactions over several months, only ceasing his illegal activity because he was arrested, not ceasing voluntarily. When he was arrested, he was found with a large sum of cash in premises occupied by himself, all matters which demonstrate that this offender was trafficking to a substantial degree and hence only sentences in full time custody will suffice.

26. In summary, it is my view that an effective non-parole period of 3 years, 10 months and 24 days with a head sentence of 6 years for a committed course of drug supply over a period of seven months, increasing in magnitude over that period, and with the only count the subject of challenge being the last in time, was a sentence of considerable leniency. To the extent that counsel submitted the applicant had a strong subjective case (as to which I have some reservations), the maximum leniency that his subjective circumstances might have attracted is more than sufficiently reflected in the sentence imposed on the fourth account which has translated, after application of totality principles, into a sentence that the applicant has not established to be unreasonable or plainly unjust.

27. The orders I propose are:

1. Leave granted to amend the grounds of appeal.

2. Leave to appeal refused.

28. BUTTON J: I agree with Fullerton J.

29. In my opinion, neither the length of the impugned sentence, nor its place in the sentencing structure, nor any other factor, demonstrates that the sentence imposed is beyond the discretion reposed in the learned sentencing judge.

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Decision last updated: 13 December 2017