Clapham v The Queen

[2016] NSWCCA 198

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Clapham v R [2016] NSWCCA 198
Hearing dates:	31 August 2016
Date of orders:	31 August 2016
Decision date:	31 August 2016
Before:	Price J; Davies J; Garling J
Decision:	(1) Leave to appeal granted. (2) Appeal allowed. (3) Sentence imposed by Arnott SC DCJ on 12 February 2015 quashed. (4) The matter is remitted to the District Court at Sydney on 9 September 2016 at 9:30am to fix a date for sentence by a judge other than Arnott SC DCJ.
Catchwords:	CRIMINAL LAW – sentence appeal – charged with possession of a loaded firearm in a public place – charged with aggravated possession of an unregistered firearm in a public place without authority to possess the firearm – charged with maliciously damage property by fire – charged with deemed supply of a large commercial quantity of a prohibited drug – whether the sentence miscarried by reason of the failure of the applicant’s counsel and solicitors to adequately prepare for and present his case on sentence
Legislation Cited:	Crimes Act 1900 (NSW), ss 93G, 93I, 195 Drug Misuse and Trafficking Act 1985 (NSW), s 25
Cases Cited:	Pym v R [2014] NSWCCA 182 Zreika v R [2012] NSWCCA 44
Category:	Principal judgment
Parties:	James Clapham (Applicant) Regina (Respondent)
Representation:	Counsel: T Game SC and LC Hutchinson (Applicant) N Adams (Respondent)   Solicitors: Armstrong Legal (Applicant) C Hyland – Solicitor for Public Prosecutions (Respondent)
File Number(s):	2013/341139
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 12 February 2015 Before: Arnott SC DCJ File Number(s): 2013/341139

Judgment

1. THE COURT: In view of the concession by the Crown that Ground 3 of the applicant’s appeal has been established and the agreement by the parties that the applicant should be remitted to the District Court for resentence, the Court agreed to the parties’ request that the appeal be dealt with on the papers.

2. The applicant pleaded guilty to the following charges:

1. Possession of a loaded firearm in a public place contrary to s93G(1)(a)(i) Crimes Act 1900 (NSW) (“Crimes Act”): Maximum penalty – 10 years imprisonment.

2. Aggravated possession of an unregistered firearm in a public place without authority to possess the firearm contrary to s93I(2) Crimes Act: Maximum penalty – 14 years imprisonment.

3. Maliciously damage property by fire contrary to s195(1)(b) Crimes Act: Maximum penalty – 10 years imprisonment.

4. Deemed supply of a large commercial quantity of a prohibited drug contrary to s25(2) Drug Misuse and Trafficking Act 1985 (NSW) (“DMT Act”): Maximum penalty – imprisonment for life and a standard non-parole period of 15 years.

3. The applicant was sentenced by Arnott SC DCJ (“the sentencing judge”) on 12 February 2015 to an aggregate sentence of 16 years with a non-parole period of 10 years. The sentence had been discounted by 25% for the utilitarian value of the pleas of guilty.

4. The notice of appeal identified the following grounds:

1. Ground 1: His Honour erred in his assessment of the appropriate sentence for the charge of supplying a large commercial quantity of a drug.

1. Particular 1: His Honour erred in his assessment of the seriousness of, and offender’s culpability for, the offence.

2. Particular 2: His Honour erred in finding that the applicant had a reasonable suspicion that the drug was illegal.

2. Ground 2: The sentence was manifestly excessive.

3. Ground 3: The sentence miscarried by reason of the failure of the applicant’s counsel and solicitors to adequately prepare for and present his case on sentence.

5. As Ground 3 is conceded by the Crown, the applicant does not press Grounds 1 and 2. The Court considers that the concession is appropriately made and, as a result, the sentence should be quashed and the applicant should be resentenced in the District Court.

6. The focus of the applicant’s complaint was that his case relating to the deemed supply charge was never properly addressed or presented by his legal representatives. The prohibited drug, the subject of this offence, was N-(3-methoxybenzyl)-2, 5-dimethoxy-4-iodophenethylamine otherwise referred to by the abbreviation “251-NBOMe”.

7. While searching the applicant’s unit on 11 November 2013, police found in a cupboard in the main bedroom two bags of what was later confirmed by analysis to be 95.23 grams of 251-NBOMe.

8. During the proceedings on sentence, a statement of what was said to be “agreed facts” was tendered which was repeated by the sentencing judge in his remarks on sentence. Relevantly his Honour said (ROS 3):

“The substance is often purchased online for $13 to $34 per gram in powder form. It is usually dissolved into water and impregnated into blotting paper similar to the packing of LSD. The potential street value of 95.23 grams of this drug in the [applicant’s] possession was $380,920 to $1,428,444 depending upon the quantity of powder in each dosage used and the sale price of each. A typical dosage unit is 0.75 milligrams and he had between 95,230 and 119,037 theoretical doses depending upon the quantity of powder in each dose.”

9. It is evident that the applicant was sentenced on the basis that he had between 95,230 and 119,037 theoretical doses of 251-NBOMe with a street value of between approximately $381,000 and $1.4 million. Unsurprisingly, the sentencing judge considered the high street value of the prohibited drug to be a significant factor in assessing the objective seriousness of the offence. However, it is the applicant’s case that he paid approximately $60 for 3 grams of 251-NBOMe and that the balance of 95.23 located in his unit was sugar. The applicant contends that, if this is accepted, then even if the method of preparation for sale was found to be impregnating into blotting paper, only 3 grams of the substance would have remained after the evaporation process.

10. The applicant says that he conveyed to his lawyers his instructions to his having ‘cut’ the drug and the need for the purity of the substance to be tested. These instructions were repeated to both his solicitor and his counsel. Various affidavits have been filed on behalf of the applicant which the Crown accepts establishes the following:

1. The applicant’s solicitor at first instance received instructions from the applicant’s father regarding the low purity of the drug but informed the applicant’s father that the drug could not be tested for purity.

2. This information was incorrect, as both the National Measurement Institute and the University of NSW did possess the capability to test 251-NBOMe for purity during the relevant period.

3. The applicant denies having been shown the statement of facts upon which he was sentenced. The applicant’s counsel at first instance is unable to confirm that the statement of facts upon which the applicant was sentenced was ever read to the applicant.

4. Counsel at first instance did not take instructions as to the quantity purchased and the purpose for which the drug was purchased.

5. Counsel at first instance did not take instructions as to whether the drug was ‘pure’ or ‘cut’, likely due to counsel’s erroneous belief that the drug could not be ‘cut’.

11. It is neither this Court’s task to determine whether the applicant’s evidence as to the quantity of the prohibited drug that he purchased is to be accepted nor the weight to be attributed to the opinions of Dr Michael Robertson as to the likely purity of the drug. What is abundantly clear is that the applicant had a significant case in mitigation that was not put before the sentencing judge as a result of the conduct of his legal representatives. The applicant’s case was relevant to the sentencing judge’s findings of fact and to his Honour’s assessment of the objective seriousness of the offence.

12. This is one of those exceptional cases where the Court is satisfied that compelling material was available on sentence but neither tendered nor brought to the attention of the sentencing judge. A miscarriage of justice has occurred: Zreika v R [2012] NSWCCA 44; Pym v R [2014] NSWCCA 182.

13. Accordingly, the Court makes the following orders:

1. Leave to appeal granted.

2. Appeal allowed.

3. Sentence imposed by Arnott SC DCJ on 12 February 2015 quashed.

4. The matter is remitted to the District Court at Sydney on 9 September 2016 at 9:30am to fix a date for sentence by a judge other than Arnott SC DCJ.

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Decision last updated: 31 August 2016