Biermann v The Queen

[2009] NSWCCA 165

New South Wales
Court of Criminal Appeal

CITATION:	BIERMANN v R [2009] NSWCCA 165
HEARING DATE(S):	4 June 2009
JUDGMENT DATE:	19 June 2009
JUDGMENT OF:	Campbell JA at 1; Latham J at 2; Harrison J at 34
DECISION:	1. Leave to appeal granted 2. Appeals against sentence dismissed
CATCHWORDS:	CRIMINAL LAW - appeal against sentence - supply commercial quantity MDMA and four counts of supply prohibited drug - whether individual sentences and aggregate sentence manifestly excessive - no question of principle.
LEGISLATION CITED:	Drug Misuse and Trafficking Act 1985
CASES CITED:	Mitchell v R [2008] NSWCCA 192 at [12] R v MacDonnell [2002] NSWCCA 34 R v Hejazi [2003] NSWCCA 383 R v Wheeler [2000] NSWCCA 34 R v Jordan [2002] NSWCCA 228 R v Harmouche 158 A Crim R 357 ; [2005] NSWCCA 398 R v Dang [2005] NSWCCA 430 Stevens v Regina [2007] NSWCCA 252 R v Franklin NSWCCA 11 April 1997 R v Thompson & Falconer [1999] NSWCCA 50 R v Loh [2002] NSWCCA 23 R v Shi [2004] NSWCCA 135 R v Emanuel [2004] NSWCCA 267 R v Attard [2004] NSWCCA 376 Hutton v R [2008] NSWCCA 99 R v Stankovic [2006] NSWCCA 229 R v Sciberras (2006) 165 A Crim R 532 ; [2006] NSWCCA 268 R v Henry (1999) 46 NSWLR 346 House v The King [1936] HCA 40 ; (1936) 55 CLR 499
PARTIES:	Benjamin Luke Biermann - Applicant Regina - Crown respondent
FILE NUMBER(S):	CCA 2007/15646
COUNSEL:	Stephen J Stanton - Applicant V Lydiard - Crown respondent
SOLICITORS:	Jonathon Hassett - Applicant S Kavanagh - Solicitor for Public Prosecutions
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	07/11/0865
LOWER COURT JUDICIAL OFFICER:	Woods QC DCJ
LOWER COURT DATE OF DECISION:	2 May 2008

2007/15646

CAMPBELL JA
LATHAM J
HARRISON J

19 JUNE 2009

BENJAMIN LUKE BIERMANN v REGINA

Judgment

1 CAMPBELL JA : I agree with Latham J.

2 LATHAM J : The applicant, Benjamin Biermann, seeks leave to appeal against the sentences imposed upon him by GD Woods QC DCJ (the Judge) on 2 May 2008. The application for leave to appeal is out of time. The Crown does not oppose the grant of leave in the circumstances of this case.

3 The applicant pleaded guilty in the Local Court to five counts of supply a prohibited drug pursuant to s 25 of the Drug Misuse and Trafficking Act 1985. Four of those offences carried a maximum penalty of 15 years imprisonment, while the remaining offence, constituted by the supply of not less than the commercial quantity of MDMA, carried a maximum penalty of 20 years imprisonment and attracted a standard non-parole period of 10 years imprisonment. Three further offences, namely goods in custody, possess prohibited drug and supply prohibited drug, were taken into account on a Form One when the applicant came to be sentenced for the most serious of the five offences.

4 On each of three supply prohibited drug charges (methylamphetamine, ketamine and crystalline methylamphetamine), carrying a maximum penalty of 15 years, the applicant received a fixed term of imprisonment of 3 years. A non-parole period of 2 years with a balance of term of one year was imposed in respect of the fourth supply prohibited drug (cocaine) charge. A sentence of 5 years, comprising a non-parole period of one year with a balance of term of 4 years, was imposed on the supply commercial quantity offence. The quantity the subject of that charge was 35 grams above the commercial quantity threshold. A measure of accumulation resulted in an aggregate sentence of 9 years, comprising a non-parole period of 5 years with a balance of term of 4 years.

5 The applicant contends that the sentences imposed in respect of the individual counts and the aggregate sentence are manifestly excessive, that the Judge's discretion in accumulating the sentences miscarried, and that the Judge erred in failing to sufficiently reflect a finding of special circumstances in the sentence imposed.

6 It should be observed at the outset that the Judge made certain findings in relation to the objective gravity of the offences as a whole, but at no stage did the Judge attempt to place the supply commercial quantity offence in the range indicated by the maximum penalty, so that a non-parole period bearing some relationship to the standard non-parole period might be identified. There is some difficulty with the contention that the sentence imposed in respect of the supply commercial quantity offence is manifestly excessive, given that notwithstanding the existence of a standard non-parole period of 10 years imprisonment, and the offences on the Form One, the Judge imposed a non-parole period of one year. It is therefore necessary to revisit the circumstances of the offending in some detail in order to ascertain where that offence fell, relative to the midrange of objective gravity.

The Agreed Facts

7 On 8 June 2007 police executed a search warrant on the applicant’s unit at Surry Hills. As they were about to enter the premises, the applicant opened the front door, whereupon the police identified themselves. The applicant started to struggle and kick at the police. He was handcuffed and the police commenced a search of the premises.

8 Police found a large quantity of prohibited drugs in open view throughout the living area of the unit. The applicant was immediately placed under arrest and cautioned. The applicant was taken to Surry Hills police station and entered into custody. He informed the police that he wished to be present during the remainder of the search. About 9:30 p.m. police returned to the unit with the applicant and recommenced the search.

9 A further quantity of numerous prohibited drugs were found in the course of that search. They were :-

(i) 44.46 g of cocaine, contained within 26 small plastic bags and 5 larger plastic bags.
(ii) 19.02 g of methylamphetamine located within 8 small plastic resealable bags and 3 large plastic bags (the latter stored within a safe).
(iii) 155.47 g of ketamine within 46 plastic bags and two larger plastic bags, all contained within a safe.
(iv) 160 g of MDMA (ecstasy), consisting of approximately 142 tablets within 4 plastic bags and a further quantity of tablets in 4 larger plastic bags stored within a safe.
(v) 55.76 g of N, N-dimethylamphetamine within 11 resealable plastic bags
(vi) 13.9 g of N, N-dimethylamphetamine and methylamphetamine in a resealbale plastic bag. (Form One offence)

10 In all, there were three safes in the unit, together with a total of $6,650 in cash. That money is the subject of the goods in custody charge on the Form One. A large plastic bag containing 19 g of cannabis was also found. That is the subject of the possess prohibited drug charge on the Form One.

11 There were other indicia of the packaging and supply of prohibited drugs, namely plastic resealable bags of varying sizes bearing descriptions of different drugs, and numerous large syringes with measurement markings. Police also found two sets of scales, a calculator, and a number of handwritten documents listing names, amounts and terminology consistent with the prohibited drugs found in the premises. During the search, a mobile phone belonging to the applicant rang a number of times.

The Applicant’s Subjective Case

12 The applicant was 26 years of age at the time of sentence. He was brought up in a conventional and loving family environment in western Sydney, obtained his HSC and completed a Diploma in Superannuation and Financial Services before obtaining employment with a superannuation fund. He remained in that employment for 7 years, resigning two weeks before his arrest. He left the family home in 2006 following an argument with his parents concerning his drug use. The applicant described a period during his adolescence when he struggled with the realisation that he was homosexual.

13 In 2006, the applicant’s drug use escalated to the point where he was spending $250 daily on methamphetamines. The applicant had also embarked upon an episode of heavy expenditure on luxury items and travel, necessitating a loan of $120,000 which was guaranteed by his parents. It was in these circumstances that the applicant undertook the supply of drugs to the gay community from his rented accommodation. Thus, he was utilising the proceeds of sale of various drugs towards his living expenses, the cost of his own drug use and repayments under the loan arrangement.

14 A large volume of testimonials and other reference materials attested to the applicant’s prior good character. The applicant expressed his remorse through a letter to the court. There were also positive reports of his progress since his arrest, including his attendance at drug counselling sessions and his employment within the prison system. In short, a compelling subjective case was mounted on the applicant’s behalf.

The Objective Gravity of the Offences

15 The operation was clearly a commercial one and was acknowledged as such by the applicant’s legal representative on sentence. His Honour said :-

It is quite plain that the offender was dealing in drugs. The scale was clearly extensive, in that there were multiple contacts that he had. It is obvious that he was above the level of a street vendor. He does not appear to have been a major importer or otherwise at the top of the drug supply pyramid. The quantities found in the premises were in the scale of these sorts of cases, moderate. There are many cases regrettably, where quantities in the amounts of kilograms are found. This is not such a case. Nonetheless, it is a very serious case of drug dealing because plainly, he was selling to a lot of people, doing a lot of damage to a lot of people and it was repetitive and commercial.

16 This passage in the remarks on sentence represents the Judge's assessment of the objective gravity of the offences as a whole. The Judge then dealt with the applicant’s subjective features. It is not contended that the Judge omitted to take account of any relevant subjective factor or that the Judge took into account an irrelevant consideration. His Honour went on to indicate the penalty he would have imposed on individual counts, after application of the discount for the pleas of guilty. Shortly thereafter, the Judge pronounced sentence.

17 As I have already observed, there was no attempt made to place the individual offences at a point along the continuum of objective gravity, and then to take account of the subjective circumstances so that the sentences ultimately imposed reflected a reasonably transparent synthesis of all the relevant factors. However, in the light of the comments reproduced at [15] and given the applicant’s strong subjective case, it is appropriate to proceed on the basis that the individual sentences indicate that the Judge placed each of the offences below the mid range of objective gravity signalled by the maximum penalty in each case, although just how far below the mid range is a matter of speculation. In my view, the offences were not significantly below the mid range of objective gravity.

The Applicant’s Submissions

18 The gravamen of the applicant's complaint in respect of the individual sentences imposed is that they each appear inconsistent with other sentences imposed for like offences involving greater quantities of the relevant prohibited drug. The applicant relies upon an observation by Blanch J in Mitchell v R [2008] NSWCCA 192 at [12], namely that this Court should strive to achieve some consistency in sentencing, notwithstanding that it is not an exact science. Of the measures available to promote consistency, Blanch J referred to the statistics kept by the Judicial Commission and to the practice of referring to sentences imposed for like offences in other cases.

19 In particular, the applicant complains that the Judge failed to refer to two decisions, namely R v MacDonnell [2002] NSWCCA 34 and R v Hejazi [2003] NSWCCA 383 in the course of his remarks on sentence, where those decisions featured in the course of submissions. As I understand the applicant’s submissions, some comfort is sought to be obtained from the fact that aggregate sentences in the order of 11 years and 9 years, with non parole periods of 7 and 6 years respectively, were imposed for offences involving much greater quantities of various drugs than the applicant’s case. The failure by the Judge to specifically refer to these cases is said to disclose error in his approach to the individual and aggregate sentences.

20 In much the same vein, the applicant referred this Court to a number of decisions relating to supply cocaine and supply amphetamine offences in order to demonstrate that the applicant’s sentences are outside the appropriate range. It is submitted that this conclusion is reinforced when consideration is given to the failure of the Judge to expressly find that the applicant had good prospects of rehabilitation, that the applicant was addicted to drugs, that he was under emotional stress at the time of the offences and that there had been delay in sentencing.

21 The applicant acknowledges that the accumulation of sentences is an exercise of discretion, subject to the principle of totality and to the need to ensure public confidence in the administration of justice : R v Wheeler [2000] NSWCCA 34. It is nonetheless submitted that the Judge failed to take account of the fact that the offences were part of “a singular enterprise”, by which I take the applicant to mean that the offences arose out of his arrest on 8 June 2007 for the possession of the various drugs for the purposes of supply.

22 Lastly, it is submitted that, although a finding of special circumstances was made, the proportion between the aggregate non parole period and the aggregate sentence did not sufficiently reflect the applicant’s need for supervised release into the community in order to further his rehabilitation prospects.

Resolution of the Appeal

23 There is no substance to the contention that the individual sentences or the aggregate sentence are manifestly excessive. The applicant’s reliance on MacDonnell and Hejazi are misplaced, in so far as both decisions related to sentences imposed before the enactment of a standard non parole period for the supply commercial quantity offence, a factor which this Court has held will result in an upward adjustment to sentences for such offences. MacDonnell was a Crown appeal and Hejazi concerned an argument as to disparity with a co-offender, so that very little, if any, assistance can be gained from either case. In these circumstances, it is not surprising that the Judge did not include any reference to them in the remarks on sentence.

24 Of the four decisions of this Court relating to supply cocaine offences cited in the applicant’s written submissions, one (R v Jordan [2002] NSWCCA 228) may be put to one side on the basis that it concerned an argument as to the accumulation of sentences for two offences, one of which was the ongoing supply of cocaine and the other, supply cocaine. No argument was advanced on that appeal that a sentence of 3 years for the supply of 62gms of cocaine, in the sense of possession for supply, was excessive. R v Harmouche 158 A Crim R 357 ; [2005] NSWCCA 398 was a Crown appeal against the inadequacy of a sentence imposed for the supply of 200gms of cocaine where the sentence of 2 years and 4 months imposed by the Court was appreciably less than it should have been. R vDang [2005] NSWCCA 430 was also a Crown appeal against the inadequacy of a sentence of 6 years 6 months for an offence of supply commercial quantity of cocaine (just under 1kg), where Howie J (Studdert and Whealy JJ agreeing) remarked that the least sentence the Judge could have imposed at first instance was a sentence of 9 years with a non parole period of 5 years 6 months. Stevens v Regina [2007] NSWCCA 252 related to an offence of supplying a large commercial quantity of cocaine (just under 2 kgs). This Court did not regard a sentence of 11 years with a non parole period of 7 years as manifestly excessive. All of these decisions have little relevance to the applicant’s case.

25 In relation to sentences for supply methylamphetamine, the decisions of R v Franklin NSWCCA 11 April 1997 and R v Thompson & Falconer [1999] NSWCCA 50 were a bench of two Judges and contain no matter of principle. In the former, a sentence of 4 years imprisonment was considered unexceptional for the supply of 134gms of amphetamine. In the latter, the Court was concerned with charges relating to the manufacture of commercial quantities of methylamphetamine and tetrahydrocannabinol. R v Loh [2002] NSWCCA 23 was a successful Crown appeal against the inadequacy of sentences imposed for four offences, including two offences of supply commercial quantity that pre-dated the introduction of the relevant standard non parole period. R v Shi [2004] NSWCCA 135 was also a successful Crown appeal against an inadequate sentence of 4 years, comprising a non parole period of 2 years, for an offence of supply commercial quantity of methylamphetamine (just under 1 kg). R v Emanuel [2004] NSWCCA 267 was a successful Crown appeal against the inadequacy of a sentence imposed for an offence of supplying a large commercial quantity of the drug. R v Attard [2004] NSWCCA 376 was a severity appeal in relation to an offence of supply commercial quantity of methylamphetamine which pre-dated the introduction of the standard non parole period. None of these decisions allow any meaningful comparison to be drawn with the applicant’s offences.

26 Of some passing relevance is the decision of Huttonv R [2008] NSWCCA 99, although it does not assist the applicant. In Hutton, the applicant had supplied 478 gms of MDMA, just below the large commercial quantity threshold. His role was that of a “bald courier” and he received a sentence of 6 years with a 3 year non parole period after a plea of guilty. Given the applicant’s central involvement in a commercial enterprise, Hutton would seem to suggest that the applicant’s sentence on the equivalent offence is well within the appropriate range.

27 R v Stankovic [2006] NSWCCA 229, another successful Crown appeal, concerned a sentence for the supply of a large commercial quantity of MDMA and does not therefore provide any basis for comparison. Similarly, R v Sciberras (2006) 165 A Crim R 532 ; [2006] NSWCCA 268 was a successful Crown appeal against the inadequacy of sentences imposed for various offences, including two of supply commercial quantity of methylamphetamine. The Court held that sentences of 6 years and 6 months, comprising non parole periods of 4 years were manifestly inadequate on these counts, particularly where the offences could not be said to be below the mid range of objective gravity. Hulme J observed in passing at [44], with the concurrence of Beazley JA and Hislop J, that penalties are not proportionate to the quantities of drug supplied.

28 True it is that there is nothing in the Judge’s remarks that refers to the applicant’s good prospects of rehabilitation, although the Judge spent a considerable portion of the remarks addressing the applicant’s “psychological anguish and pain” as a factor in his offending. The Judge also referred extensively to the opinions expressed by the applicant’s family members and friends, to the effect that the applicant’s behaviour appeared to them to be inconsistent with the person they knew. The Judge accepted that the applicant was very remorseful and contrite. Implicit in these remarks and the finding of special circumstances is a recognition of the applicant’s good prospects of rehabilitation.

29 The fact that the applicant was addicted to drugs, and was under emotional stress at the time of the offences do not entitle him to any leniency. This Court observed in R v Henry (1999) 46 NSWLR 346 that the motivation of feeding addictions is entitled to, at most, limited weight. There was no relevant delay in sentencing. The applicant remained in custody from the date of his arrest, 8 June 2007. Accordingly, the sentences imposed were to date from that day. The passage of 11 months from the date of arrest to the date of sentence is far from excessive and, given the applicant’s pleas of guilty in the Local Court in November 2007, it could not seriously be maintained that he was left in any uncertainty as to his ultimate fate.

30 The applicant has failed to demonstrate that the sentences imposed on individual counts are manifestly excessive by comparison with other decisions of this Court, and that the aggregate sentence and aggregate non parole period are manifestly excessive. The correct application of the principle of totality should result in an aggregate non parole period that reflects the criminality inherent in a number of offences. Here, the Judge was confronted with a deliberate, commercial course of dealing in a variety of drugs. It is not to the point that the applicant’s offences all arose out of the execution of a search warrant. It was never contested that the Judge’s description of the applicant’s conduct was accurate. In these circumstances, I regard a non parole period of 5 years and a balance of term of 4 years as entirely appropriate to the applicant’s offending.

31 It was perhaps unfortunate that the method of accumulation drove the Judge to reduce the non parole period for the only offence carrying a standard non parole period to as little as one year, but there can be no complaint about the final result.

32 The extent to which the aggregate non parole period departed from the statutory ratio was also a matter within the discretion of the Judge. The applicant’s complaint on this ground is not that an error of the House v The King [1936] HCA 40 ; (1936) 55 CLR 499 variety was committed, but that he would have preferred the discretion to have been exercised differently.

33 For the above reasons, I would grant leave to appeal but dismiss the appeals against sentence.

I agree with Latham J.

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