Briggs v R
[2010] NSWCCA 250
•5 November 2010
NEW SOUTH WALES COURT OF CRIMINAL APPEAL
CITATION:
Briggs v R [2010] NSWCCA 250
This decision has been amended. Please see the end of the judgment for a list of the amendments.
FILE NUMBER(S):
2009/9281
HEARING DATE(S):
10 Sep 2010
JUDGMENT DATE:
5 November 2010
PARTIES:
Kurt Gregory Briggs (App)
The Crown (Resp)
JUDGMENT OF:
Hodgson JA Price J Fullerton J
LOWER COURT JURISDICTION:
District Court
LOWER COURT FILE NUMBER(S):
2009/11/0520
LOWER COURT JUDICIAL OFFICER:
McLauchlan ADCJ
COUNSEL:
G Turnbull SC (App)
S Dowling (Resp)
SOLICITORS:
G Murray (App)
Director of Public Prosecutions (Resp)
CATCHWORDS:
CRIMINAL LAW
appeal against sentence
supplying commercial quantity of prohibited drug
whether sentencing judge erred by failing to consider and find special circumstances
whether sentencing judge erred by failing to impose a non-parole period
LEGISLATION CITED:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985
Firearms Act 1996
CATEGORY:
Principal judgment
CASES CITED:
Ayoub v R; El Masri v R [2010] NSWCCA 196
Clarke v R [2009] NSWCCA 49
Markarian v R [2005] HCA 25; 228 CLR 357
R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1
R v Fidow [2004] NSWCCA 172
R v Pevy [2004] NSWCCA 414
R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
Wakefield v R [2010] NSWCCA 12
TEXTS CITED:
DECISION:
1. Leave to appeal against sentence is granted.
2. Appeal allowed.
3. The sentence imposed in the District Court is quashed and in lieu thereof a term of imprisonment of 9 years and 9 months is imposed comprised of a non-parole period of 7 years and 3 months to commence on 21 September 2008 and to expire on 20 December 2015 with a balance of term of 2 years and 6 months to expire of 20 June 2018.
JUDGMENT:
- 1 -
IN THE COURT OF
CRIMINAL APPEAL
2009/9281
HODGSON JA
PRICE J
FULLERTON J5 NOVEMBER 2010
KURT GREGORY BRIGGS v R
JUDGMENT
HODGSON JA: I agree with Fullerton J.
PRICE J: I agree with Fullerton J.
FULLERTON J: The applicant seeks leave to appeal against sentences imposed in the District Court on 30 October 2009 after pleading guilty at Central Local Court on 21 May 2009 to one count of supplying a large commercial quantity of the prohibited drug methylamphetamine contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (“the supply count”), attracting a maximum penalty of life imprisonment and a standard non-parole period of 15 years.
The applicant also pleaded guilty in the Local Court to a number of related summary offences, including the possession of a tablet press contrary to s 11B(1) of the Drug Misuse and Trafficking Act, dealing with property suspected of being the proceeds of crime contrary to s 193C(1) of the Crimes Act 1900, and possession of ammunition without a licence contrary to s 65(3) of the Firearms Act 1996. These offences were before the sentencing judge pursuant to a s 166 certificate.
On the supply count the applicant was sentenced to imprisonment for a non-parole period of 8 years with a balance of term of 1 year and 9 months. The ratio of non-parole period to total term was 82 per cent, an increase on the 75 per cent ratio provided for under s 44 of the Crimes (Sentencing Procedure) Act 1999. In respect of the offences on the s 166 certificate, the applicant was sentenced to concurrent terms of imprisonment for 1 month for possession of the tablet press and the proceeds of crime charges, each to be served concurrently with the supply count. No penalty was imposed in respect of his possession of the ammunition.
The appeal is limited to the sentence imposed on the supply count.
The agreed facts for sentencing purposes
At 10.30am on 28 September 2008, police attended at the applicant’s business premises at Castle Hill where the applicant was found asleep in his vehicle under the effects of a prohibited drug.
Upon a search of the vehicle police located a briefcase containing $295,100 and a suitcase containing, inter alia, plastic re-sealable bags, electronic scales, rubber gloves, an empty packet of Glucodin, scissors with powder residue on the blades, and a diary containing a list of 34 names with numerals written beside them. A further $8000 was found in the applicant’s trouser pocket. A toiletries bag containing various implements for drug use and a small quantity of powder was also located.
Later that evening police executed a search warrant at the applicant’s residence where police found a range of crystalline substances in plastic bags in a freezer which was later analysed and confirmed to comprise 4284.5 grams of methylamphetamine, over four times the threshold for a large commercial quantity of that drug under Schedule 1 of the Drug Misuse and Trafficking Act. The potential value of the drug if supplied to end users was between $248,450 and $642,675, and $405,560 if sold on a wholesale basis.
Police also located electronic scales, a smoking pipe and plastic re-sealable bags. The pill press, the subject of the s 166 certificate, was located in the laundry and 23 rounds of .22 calibre ammunition were located in the garage. The pill press was operational but apparently not ready for immediate use.
On the basis of both the very large amount of prohibited drugs in the applicant’s possession, and the various indicia of drug supply, the sentencing judge was satisfied that the applicant was involved in trafficking in drugs to a very substantial degree.
The applicant’s subjective circumstances
A report from Dr Stephen Allnutt, forensic psychiatrist, and a report from Reverend Tim Wilson, chaplain at Parklea Correctional Centre, were tendered, together with a number of testimonials, including one from his wife who continues to support him. Evidence was called from the applicant’s sister.
The applicant was 30 years of age at the time of sentence. He had an unremarkable upbringing and high school education before commencing and completing an apprenticeship as a panel beater. It would appear he was employed in that trade for a number of years both before and after his marriage in 2002. He was not employed at the time his arrest.
Although he had a criminal record consistent with his use of prohibited drugs as a young man, first in 1998 and then later in 2001 (neither of which attracted a custodial sentence), it would appear that his drug and alcohol use escalated sharply in July 2008 following the death of his first child at 20 weeks gestation as a result of a terminal condition diagnosed in utero.
The sentencing judge quoted extensively from Dr Allnutt’s report concerning the onset and extent of the applicant’s chronic addiction to cocaine and the devastating impact this had upon his family and work life. His Honour accepted Dr Allnutt’s view that the applicant was suffering a mild drug-induced psychosis at the time of the offending. Because of the scale of the drug operation and the applicant’s financial motives, his Honour was not persuaded that the offending was within the user/dealer paradigm even if the applicant’s drug dealing in amphetamines apparently funded his use of cocaine.
His Honour also quoted extensively from Reverend Wilson’s report which focused upon the applicant’s successful participation in various custody-based rehabilitation programs following his arrest in September 2008. Reverend Wilson described his contribution to those programs as both reflective and thoughtful, constructive and sincere. His Honour concluded that the applicant was genuinely remorseful and contrite. He was also satisfied that he had good prospects of rehabilitation given his relative youth and the significant degree of rehabilitation which had been achieved prior to the sentencing proceedings. He also took into account that the applicant accepted responsibility for his actions and acknowledged the harm that his own family and the community generally have suffered by his conduct.
The sentence imposed
After taking into account factors relevant to the assessment of the level of objective seriousness, in particular, what the sentencing judge accepted was a proven causal connection between the applicant’s psychiatric state at the time of the commission of the offences and his offending by reason of his drug addiction, he found that the level of objective seriousness was below mid range, albeit close to it. He was not persuaded of the Crown’s submission that the offending was aggravated by being a sophisticated, profitable or ongoing operation as provided for in s 21A(2)(n) of the Crimes (Sentencing Procedure) Act.
His Honour was, however, satisfied that a number of matters operated in mitigation of sentence under s 21A(3) of the Crimes (Sentencing Procedure) Act, including the fact that the applicant pleaded guilty, that he did not have a significant criminal record, that he had good prospects of rehabilitation and that he has taken responsibility for his actions.
In the result, his Honour was satisfied that a departure from the standard non-parole period of 15 years was justified.
His Honour then discounted the sentence by 35 per cent to take into account the utilitarian value in the plea of guilty and what he described as:
“…the other matters favouring the offender, notably his prospects of rehabilitation, the remorse and contrition which he has expressed and the likelihood that he was mildly psychotic at the time of his offending. This produces a total term, after the discount, of 9 years and 9 months.”
Neither the Crown nor the applicant challenged the correctness of this approach on the appeal. It was in accordance with settled sentencing principles for his Honour to have specified the discount value of the plea of guilty in the calculation of sentence (see R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1), but for his Honour to have quantified the value of the plea in combination with the other factors to which he referred, and to notionally appoint a discount of something in the order of 10 per cent for them (assuming the full allowance of 25 per cent for the early plea) before arriving at the total sentence, was contrary the approach to sentence for which the High Court in Markarian v R [2005] HCA 25; 228 CLR 357 is authority. In Ayoub v R; El Masri v R [2010] NSWCCA 196, Rothman J had occasion to refer to the joint judgment of Gleeson CJ, Gummow, Hayne and Callinan JJ in Markarian where their Honours emphasised the need to identify all relevant factors to the sentence under consideration to ensure transparency and accessible reasoning in the published reasons which are the final product in the sentencing process but that absent specific statutory requirements, a process by which a sentencer adds or subtracts passages of time, item by item, from some subliminally derived figure should not be adopted. Rothman J also noted that in Markarian at [51] McHugh J regarded the concept of instinctive synthesis in sentencing practice as:
“…the method of sentencing by which the judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case. Only at the end of the process does the judge determine the sentence.”
Consistent with that approach, McHugh J went on to observe that, in effect, while greater and lesser weight will be allocated to some factors depending on their relevance, the determination of an appropriate sentence taking account of all relevant factors is intuitive, not a matter of calculus.
The sole ground of appeal
There was no challenge to the (discounted) total term of 9 years and 9 months. The applicant submitted however that the sentencing judge erred in setting the non-parole period for the supply count in two alternative respects, namely by failing to consider, and consequently by failing to find special circumstances in setting the non-parole period; or, alternatively, by failing to impose a non-parole period which reflected the statutory ratio provided for under s 44 of the Crimes (Sentencing Procedure) Act.
The applicant submitted that there were a combination of matters which should have qualified as special circumstances, and which would have resulted in the exercise of the discretion to alter the statutory ratio with a resultant lengthening of the period spent on parole, namely:
(a) It was the applicant’s first time in custody;
(b) The applicant’s mental capacity was detrimentally affected at the time of the offences by a chronic state of drug induced intoxication, which was directly linked to a pathological grief reaction consistent with a depressive episode consequent upon his daughter’s death for which, to some extent, he self medicated through the use of drugs. This condition was manifest in the circumstances in which he came to the attention of the police;
(c) The applicant had good prospects of rehabilitation with sound prospects of his returning to the workforce in a productive capacity;
(d) The applicant had already achieved some degree of rehabilitation prior to sentencing;
(e) The applicant was undergoing drug and alcohol counselling with positive results, and at the time of sentence was drug-free; and
(f) The applicant had a very supportive family to assist him upon his release. In particular he has a young daughter who was born whilst he was in custody.
The Crown submitted that his Honour referred to the applicant’s subjective circumstances in detail when imposing sentence, and more particularly the matters identified in (c), (d) and (e) above. Despite the fact that he made favourable findings in respect of these matters, on a fair reading of his Honour’s sentencing remarks the conclusion he reached was to consider their weight in the calculation of sentence such that they were not then available to be taken into account as special circumstances justifying an alteration in the statutory ratio between the non-parole period and the total term under s 44 of the Crimes (Sentencing Procedure) Act as to do so would constitute double counting (see R v Fidow [2004] NSWCCA 172 at [18]).
It is ironic that the error in his Honour’s approach to which I have earlier referred makes it clear beyond doubt that he expressly took into account some of the features the applicant relied upon as constituting special circumstances in the calculation of sentence (including necessarily the non-parole period) by affording them a discount factor of 10 per cent. This leads to the irresistible conclusion that at least the matters identified in (c), (d), (e) and (f) above were factored into the sentence and that there would have been impermissible double counting were his Honour to have relied upon them as a basis for further reducing the non-parole period by an alternation to the statutory ratio.
In so far as matters (a) and (f) are concerned, the Crown accepted that while they were both capable of constituting special circumstances, it is open to conclude from the sentencing remarks that his Honour considered the issue of whether they should have the effect of altering the statutory ratio and that he declined to exercise his discretion without recording his reason.
It was appropriate for the Crown to emphasise that a sentencing judge is under no obligation to give reasons for not finding special circumstances, and that the question of whether or not a fact (or a combination of facts) is sufficiently special to justify a lower proportionate relationship between the non-parole period and the total sentence is a matter for discretionary judgment in the particular case. It was also appropriate for the Crown to emphasise that this Court should be slow to intervene where it is submitted that special circumstances should have been found in the court below unless it is satisfied that the non-parole period imposed by the sentencing judge is manifestly excessive (see R v Fidow).
That said, in the present case his Honour made no reference at all to whether the statutory ratio should be varied, with or without reference to special circumstances, before varying it so as to increase the statutory ratio, and that this occurred despite the fact that argument was directed to the question of special circumstances in the sentence hearing. For that reason I am of the view that the question whether there was error in failing to find special circumstances is a legitimate inquiry in this case (see R v Pevy [2004] NSWCCA 414 per Santow JA at [21]). I am also satisfied that it is appropriate to inquire into whether the sentencing judge’s failure to apply the statutory ratio in s 44 of the Crimes (Sentencing Procedure) Act was due to oversight - the alternate basis upon which the applicant seeks the intervention of this Court. As Grove J observed in Wakefield v R [2010] NSWCCA 12 at [26]:
“…It is true that, whilst the statute requires reasons to be stated for reducing the non-parole period against the stated formulation, no such requirement has been legislated if it is increased. However it has been stated in this Court more than once that it is expected that in circumstances where there is such an increase some reasons should be provided if only to forestall a conclusion that the specification was the result of error or oversight. In R v Dunn [2007] NSWCCA 312 it was said that this was especially the case where cumulation had taken place. Other examples of intervention by this Court in similar circumstances can be found in R v Lyndon [2003] NSWCCA 152; R v Ibraham [2005] NSWCCA 43.”
Was his Honour in error in failing to find special circumstances?
At the sentence hearing senior counsel, who also appeared on the appeal, invited his Honour to find special circumstances, inter alia, on the basis that his client would be serving his first prison sentence and, that in the circumstances, it was likely to be a lengthy non-parole period. The prosecution then drew his Honour’s attention to the observations of McClellan CJ at CL in Clarke v R [2009] NSWCCA 49 at [12] where his Honour said:
“… Reservations have been expressed in this Court as to whether the fact that a person will be in custody for the first time is capable of constituting special circumstances R v Kama (2000) 110 A Crim R 47 (per Spigelman CJ at [10]); R v Kaliti [2001] NSWCCA 268. I have similar reservations. There will be many persons facing a court for sentence who will receive a custodial term for the first time. No doubt where appropriate that fact will be reflected in the sentence which is imposed. But whether for that reason alone a finding of special circumstances is appropriate is doubtful. Most people who have been incarcerated for any period will need assistance in re-establishing themselves in the community and it may be that a repeat offender is in greater need than some one incarcerated for the first time.”
There was, however, no submission advanced by the prosecution or the applicant’s counsel at the sentence hearing as to how his Honour ought to treat the reservations expressed by this Court and identified by McClellan CJ at CL in the passage quoted above in the context of the particular circumstances of the applicant’s sentence. In fact, as the applicant sought to emphasise on the appeal, his Honour made no reference at all to the issue of special circumstances in his remarks on sentence. This, it was submitted, lent weight to the submission that his Honour’s failure to find special circumstances, and to vary the statutory ratio in favour of a longer period under supervision, was simply an oversight.
The Crown did not submit, either in the sentence hearing or on the appeal, that this was a wholly inappropriate case for altering the statutory ratio whether because it was the applicant’s first committal into custody or because of the need for supervised adjustment upon his release, or for any other reason. Neither was it submitted that the applicant’s young family and supportive partner and sister, and his sound future employment prospects could not operate as a stabilising force upon his eventual release and which, in conjunction with a period of supervision on parole, might qualify as a special circumstance thereby enlivening the discretion to extend the non-parole period. What the Crown submitted was that in setting the non-parole period his Honour was constrained by the need for the period in custody to appropriately reflect the criminality involved in the commission of the offence (using the standard non-parole period of 15 years as a relevant guide), and that a finding of special circumstances would have offended against the principle that the non-parole period not be ameliorated below that level (see R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 per Spigelman CJ at [59]). The Crown submitted that it is implicit in the sentencing remarks, and his Honour’s overall approach to the structure of the sentence, that he was satisfied that a non-parole period of 8 years was the minimum period of full-time custody that the applicant should be required to serve in all the circumstances, in particular where a commercial supply of drugs was involved, and that no error has been shown to justify overturning that discretionary judgment.
It is not to the point that some lesser non-parole period may have been imposed. What the applicant must establish if this Court is to intervene is that his Honour erred in not finding special circumstances and that, in the result, a non-parole period of 8 years is excessive. I am not persuaded that is the case. I do not consider that his Honour was obliged to find special circumstances or that his discretion in fixing the non-parole period at 8 years miscarried for that reason.
However, and despite the clarity of his Honour’s sentencing remarks and his express finding that the non-parole period should be 8 years, his silence as to the reason for increasing the proportion of the minimum period in custody relative to the total term above 75 per cent leaves me with a sense of disquiet that he may have overlooked giving appropriate focus to the statutory ratio provided for in s 44 of the Crimes (Sentencing Procedure) Act. In the result, I am persuaded that error is demonstrated in this limited respect and that an adjustment to the non-parole period should be permitted.
Accordingly, I propose the following orders:
1. Leave to appeal against sentence is granted.
2. Appeal allowed.
3. The sentence imposed in the District Court is quashed and in lieu thereof a term of imprisonment of 9 years and 9 months is imposed comprised of a non-parole period of 7 years and 3 months to commence on 21 September 2008 and to expire on 20 December 2015 with a balance of term of 2 years and 6 months to expire of 20 June 2018.
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AMENDMENTS:
08/07/2011 - Typographical error - Paragraph(s) 7
LAST UPDATED:
8 July 2011
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