Burns v R

[2010] NSWCCA 279

New South Wales
Court of Criminal Appeal

CITATION:	Burns v R [2010] NSWCCA 279
HEARING DATE(S):	11 November 2010
JUDGMENT DATE:	30 November 2010
JUDGMENT OF:	Simpson J at 1; Kirby J at 35; Latham J at 36
DECISION:	Leave to appeal granted. Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – particular offences – drug offences – supply prohibited drug (cocaine) – money laundering – CRIMINAL LAW – appeal against severity of sentence – failure properly to assess objective seriousness – no error established – CRIMINAL LAW – appeal against sentence – whether accumulation of sentences excessive – whether starting point for drug supply offence too high – no error established
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985
CATEGORY:	Principal judgment
CASES CITED:	R v Whyte [2002] NSWCCA 343; 55 NSWLR 252
PARTIES:	Michael John Burns (Applicant) Regina (Respondent)
FILE NUMBER(S):	CCA 2009/68523
COUNSEL:	R Jankowski (Applicant) L Lamprati (Respondent)
SOLICITORS:	Bilbie Dan (Applicant) S Kavanagh (Solicitor for Public Prosecutions) (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	2009/68523
LOWER COURT JUDICIAL OFFICER:	Murrell DCJ
LOWER COURT DATE OF DECISION:	11 December 2009

2009/68523

SIMPSON J
KIRBY J
LATHAM J

30 November 2010

Michael John BURNS v R

Judgment

1 SIMPSON J: The applicant seeks leave to appeal against the severity of sentences imposed upon him in the District Court at Newcastle on 11 December 2009 following his pleas of guilty to three charges, one of the supply of not less than the commercial quantity of a prohibited drug (cocaine) and two of knowingly dealing in the proceeds of crime (money laundering). Pursuant to s 25(2) and s 33(2)(a) of the Drug Misuse and Trafficking Act 1985 (“the DMT Act”), the drug supply offence exposed the applicant to a maximum penalty of imprisonment for 20 years. Pursuant to Pt 4 Div 1A of the Crimes (Sentencing Procedure) Act 1999 (“the Sentencing Procedure Act”), a standard non-parole period of 10 years is prescribed. Pursuant to s 193B(2) of the Crimes Act 1900, each money laundering offence exposed the applicant to a maximum penalty of imprisonment for 15 years.

2 Murrell DCJ sentenced the applicant as follows: on the first money laundering offence ($15,000): imprisonment for a fixed term of 2 years to commence on 6 August 2009 and expire on 5 August 2011; on the drug supply offence: imprisonment for 6 years and 9 months, to commence on 6 November 2010 and expire on 5 August 2017, with a non-parole period of 4 years and 9 months to expire on 5 August 2015; on the second money laundering offence ($2350): imprisonment for a fixed term of 6 months to commence on 6 November 2010 and expire on 5 May 2011 (and thus to be served wholly concurrently with the sentence imposed in respect of the drug supply offence).

3 The aggregate sentence imposed was of 8 years commencing on 6 August 2009 and expiring on 6 August 2017, with a non-parole period of 6 years expiring on 5 August 2015.

The facts

4 The facts were put before Murrell DCJ by way of an agreed statement. All offences were committed on 6 August 2009. In the morning of that day the applicant was found to have in his possession, in a motor vehicle, a total of 251.1 grams of cocaine, packaged in nine resealable plastic bags. Each plastic bag contained a similar quantity of the drug, approximately 30 grams, or one ounce. Also in the applicant’s possession were eight mobile telephone SIM cards, several receipts relating to pre-paid mobile telephone vouchers, five mobile telephones (four of which were switched on and active), documents and keys showing that the applicant had access to a number of rented premises, and the sum of $2350 in cash. The applicant was then arrested.

5 Later the same day, at premises occupied by the applicant, police found $15,000 in cash, in three bundles, each consisting of two bundles of $2500, and a money counting machine. Also found in those premises was a certificate of registration of a business name, “Mikayla and Reece”, and a business card for that organisation, showing its business as “Excavations and Carting” and bearing the name of the applicant. Photographs tendered seemed to suggest that an additional quantity of resealable plastic bags, a large quantity of elastic bands, said “commonly used to bind larger quantities of drug and money”, and a quantity of mobile telephone chargers and a power board set up were also found in the premises. The precise status of this evidence is unclear, since it was not mentioned in the agreed statement of facts. Some of the items were referred to during the course of submissions.

6 The cocaine found in the car was, obviously, the subject of the supply charge. That charge, under s 25(2), was the supply of not less than the commercial quantity of cocaine. (By s 29 of the DMT Act, possession of not less than the traffickable quantity (which, in the case of cocaine, is 3.0 grams) is, unless the possessor proves that it is in his/her possession for purposes other than of supply, deemed to be in possession for that purpose.) A commercial quantity of cocaine is 250 grams, and so the quantity within the applicant’s possession barely exceeded that threshold. The cash found in the applicant’s possession at the time of his arrest ($2350) was the subject of the first money laundering count, the cash found at his home ($15,000) was the subject of the second money laundering count.

The applicant’s personal circumstances

7 The applicant did not give or call oral evidence in the sentencing proceedings. It appears that he relied upon the business name search and the business card to permit an inference that he was engaged in legitimate business activity. No pre-sentence report or psychological report was before the court. Very little information about the applicant was made available to the sentencing judge. During the course of sentencing submissions, the judge was told that the applicant had “several” children, the youngest of whom was 15 months of age.

8 The applicant was born in May 1956, and was 53 years of age at the time of the offences. He had a criminal record which includes a number of motor vehicle associated offences, and some offences of dishonesty. Most significantly, in 1995, he was convicted of two counts of knowingly taking part in the supply of a prohibited drug, in respect of each of which he was sentenced to imprisonment for 2 years and 6 months, commencing on 27 January 1995, and an offence of (deemed) supply of a prohibited drug, in respect of which he was sentenced to imprisonment for 5 years, with a non-parole period of 3 years, commencing on 27 July 1997. Appeals against all sentences were dismissed. His counsel told Murrell DCJ that he had been released on parole in 2000.

The remarks on sentence

9 The sentencing judge recounted the facts and the little that was known to her of the applicant’s personal circumstances. She said that she had been informed that the applicant had an excavation and carting business, but had no information about the extent of any such business. She also noted that she had been informed, during the course of sentencing submissions, that the applicant had “several” children, and the age of the youngest. She said that, although she had also been told that the applicant had undertaken some drug and alcohol courses whilst in custody, she had no evidence or information that he was addicted to illicit drugs.

10 She then observed, correctly, that the drug offence was of considerable objective seriousness, and recognised the need, because the offence is one to which Pt 4 Div 1A of the Sentencing Procedure Act applies, to determine where in the range of objective seriousness it lay. In this respect (that is, in determining where on the range of objective seriousness the offence of drug supply lay), she noted, in the applicant’s favour, that the quantity of drug in his possession was “very marginally” over the threshold that constitutes a commercial quantity (250 grams). However, other factors militated against the applicant in this regard. Having considered all of the circumstances, her Honour concluded that it was “very plain” that the applicant had the drug in his possession for the purpose of actual supply, and that the applicant was involved “in the business of drug supply” for profit, and that his possession on this occasion was not an isolated episode. In reaching this conclusion she took into account:

● that the applicant had in his possession numerous mobile telephones, four of them active;

● that the applicant had in his possession a number of SIM cards;

● that the applicant had access to a number of rental properties;

● that the applicant had in his possession a quantity of resealable bags;

● that the applicant had in his possession a large quantity of elastic bands.

11 In a passage that, given that it gives rise to the first ground of appeal, ought to be set out in full, her Honour said:

“The existence of the fifteen thousand is a completely separate matter, but it is certainly consistent with him being involved in the ongoing supply of drugs for profit.”

She then concluded:

“13. In my view, in terms of objective seriousness the matter lies somewhere in the mid range of objective seriousness. I would say that it was certainly middle of the mid range or more, except for the fact that the quantity is right at the very bottom of the range for a commercial quantity of cocaine.”

Her Honour expressed doubt about the applicant’s prospects of rehabilitation.

12 She then turned her attention to s 21A of the Sentencing Procedure Act. The aggravating factors that she took into account were that the applicant has a record of previous convictions for like matters, and that the offence of drug supply was planned and organised and was committed for financial gain.

13 She found little in the way of mitigating factors, repeating her earlier stated doubts about the applicant’s prospects of rehabilitation. She said that the only mitigating factor upon which the applicant could rely was the plea of guilty, by reason of which she allowed a reduction of 25 percent on the sentence she would otherwise have imposed.

14 She dealt then with the first of the money laundering counts, involving the $2350 in the applicant’s possession at the time of his arrest. By reason of the amount of money, she regarded this as “a relatively minor matter”, and determined, in those circumstances, that it would be appropriate to impose a sentence to be served concurrently with that to be imposed in respect of the drug offence.

15 She regarded the second money laundering offence as “of greater seriousness”, because of the amount of money involved. She noted that both parties had invited her to infer that the money was related to the supply of prohibited drugs. She also noted that that money “was packaged in a very professional way”. She held it to be “a matter of significance” as distinct from “of grave seriousness”.

16 She determined that the sentence imposed in respect of that offence would be partially cumulative upon the sentence for the drug offence.

17 She then proceeded to impose the sentences mentioned above. In sentencing in relation to the drug supply offence, she said that the starting point was of 9 years imprisonment, which she reduced by 25 percent to 6 years and 9 months, and which she then accumulated upon the second money laundering offence by 15 months. In the result, the accumulation she mentioned was of 15 months.

The grounds of appeal

18 Three grounds of appeal were pleaded. They are:

“1. The sentence of two years fixed term for the offence against s.193B(2) of the Crimes Act ($15,000) was manifestly too severe.

2. The Learned Sentencing Judge erred in accumulating the sentence for the s.25(2) Drug Misuse and Trafficking Act by a factor of 15 months.

3. The starting point of a sentence of nine years for the s.25(2) Drug Misuse and Trafficking Act offence was disproportionate to the finding that the offence was below the middle of the mid range of objective seriousness.”

Ground 1

19 The central point of the submissions made on behalf of the applicant in support of this ground was that:

“… the $15,000 offence was taken into account by the … Judge when assessing the objective seriousness of … (the drug offence).”

20 Specific reference was made to the passage quoted above in which, in determining the objective seriousness of the drug offence, her Honour firstly said that the money laundering offence was “completely separate”, but added that it was consistent with the applicant being involved in the ongoing supply of drugs.

21 The submission was then made that these references allowed “a strong inference” to be drawn that the “$15,000 offence” was taken into account in assessing the objective seriousness of the drug offence. It was therefore submitted that the money laundering offence had been taken into account twice, firstly as part of the objective seriousness of the drug offence, and secondly as a matter attracting its own discrete sentence.

22 I would reject these submissions. In assessing the objective gravity of the drug supply offence, Murrell DCJ referred to a number of indicia, of which his possession of $15,000 was one, of actual drug dealing as a business for profit. This was entirely unexceptionable. It was not only the possession of that sum of money; also relevant was the manner in which it was packaged in a “very professional” manner. Her Honour was entirely correct in taking this approach. Possession of $15,000 was not used to enhance the objective gravity of the drug supply offence, but rather to ascertain, correctly and inevitably, that the applicant was engaged in a business enterprise. A final submission was made, that, by comparison with the 6 month sentence imposed in respect of the first money laundering offence, the sentence of 2 years in respect of the second was manifestly excessive.

23 I would not accept this submission. It is not suggested that the sentence of 2 years itself bespoke manifest excess – merely that, when contrasted with the earlier sentence, the difference was not warranted. In my opinion this argument is not tenable. There was nothing excessive about the sentence imposed in respect of the second money laundering offence.

Ground 2

24 The next submission made was that the accumulation of 15 months was excessive. The primary submission put in support of this ground of appeal was that, since the sentence for the first money laundering offence was made concurrent with a sentence for the drug supply offence, the same approach should have been taken with respect to the second money laundering offence. Alternatively, it was put that the degree of accumulation was excessive.

25 I would reject both propositions. It was open to her Honour to find that the first money laundering offence was mostly associated with the drug supply offence, but that the second money laundering offence related to money obtained from a different episode of criminality.

26 It was conceded that the only reasonable inference open to her Honour was that the $15,000 represented the proceeds of the sale of drugs. As a matter of logic, had the applicant not been in possession of that amount of money, he would have been in possession of a significantly greater quantity of drugs, which would have projected the drug supply offence into a greater of level of objective gravity.

27 The offence of money laundering is intended to ensure that criminals do not retain the proceeds of their criminality, and are punished for criminality that is represented by the possession of those proceeds. It would be quite wrong for an offender to escape additional punishment in respect of possession of the proceeds of crime.

28 I would reject this ground of appeal.

Ground 3

29 Under this ground it was argued that the starting point of the sentence for the drug supply offence was “disproportionate” to the finding with respect to objective gravity.

30 What her Honour said about that, I repeat, was that the drug supply offence lay “somewhere in the mid range of objective seriousness”; she would have found that it was greater than mid-range, except for the fact that the quantity was right at the bottom of the range for a commercial quantity of cocaine. Her Honour did not say, as is suggested in the ground of appeal as formulated, and repeated in the written submissions, that the offence was “below the middle of the mid range of objective seriousness”.

31 Her Honour correctly applied the provisions of Pt 4 Div 1A of the Sentencing Procedure Act, by which a standard non-parole period for the offence of 10 years is prescribed. It is well established that the standard non-parole period applies to sentencing after conviction following a trial. Her Honour’s starting point of 9 years, before reduction in recognition of the plea of guilty, was 1 year less than the standard non-parole period. The only reason which appears for such a reduction (leaving aside the reduction for the plea of guilty, which came later) was the finding concerning the level of objective gravity.

32 Given that her Honour found that the offence lay “somewhere in the mid range of objective seriousness”, it would have been open to her to begin with the standard non-parole period of 10 years, reduced by reason of the plea of guilty.

33 The submissions went on to raise the question of the principle of proportionality, as stated, inter alia, in R v Whyte [2002] NSWCCA 343; 55 NSWLR 252. Reference was also made to other cases. However, these cases, including Whyte, all pre-date the introduction of Pt 4 Div 1A. The principle of proportionality remains relevant and applicable, but must be applied in the light of the prescription, by the legislature, of standard non-parole periods.

34 I would reject this ground of appeal. It follows that, although I would grant leave to appeal, I would dismiss the appeal.

35 KIRBY J: I agree with Simpson J.

36 LATHAM J: I agree with Simpson J.

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