Derley v Regina
[2007] NSWCCA 361
•21 December 2007
New South Wales
Court of Criminal Appeal
CITATION: Derley v Regina [2007] NSWCCA 361
This decision has been amended. Please see the end of the judgment for a list of the amendments.HEARING DATE(S): 01/11/07
JUDGMENT DATE:
21 December 2007JUDGMENT OF: Handley AJA at 1; Hoeben J at 2; Smart AJ at 3 DECISION: See para 59 CATCHWORDS: Supply commercial quantity of MDMA. Evidence sufficient to establish appellant's knowledge. Sentence - regard not had to accumulation of cancelled bond and consequent sentence with sentences for supply of MDMA and three serious break enter and steal type offences. Sentences for latter three offences very light. Lesser non-parole periods and less severe sentences not warranted. LEGISLATION CITED: Drug Misuse and Trafficking Act 1985 CASES CITED: Pereira v DPP 63 ALJR 1 PARTIES: Trevor Alfred Derley v Regina FILE NUMBER(S): CCA 2007/1566 COUNSEL: (A) H Cox
(C) G RowlingSOLICITORS: (A) Michael Blair - The Law Practice Pty Limited
(C) S Kavanagh - Solr for Public ProsecutionsLOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/11/0532 & 04/11/0655 LOWER COURT JUDICIAL OFFICER: Geraghty DCJ LOWER COURT DATE OF DECISION: 19/01/07
IN THE COURT OF
CRIMINAL APPEAL
2007/1566
HANDLEY AJA
HOEBEN J
SMART AJ
JUDGMENTTrevor Alfred DERLEY v The Queen
1. HANDLEY AJA: I agree with Smart AJ.
2. HOEBEN J: I agree with Smart AJ and the orders he proposes.
3. SMART AJ: Trevor Alfred Derley appeals against his conviction, after trial by judge alone, on one count of supplying not less than a commercial quantity of a prohibited drug, namely. 3, 4 methylene dioxymethylamphetamine (MDMA) contrary to sections 25(2) and 29 of the Drug Misuse and Trafficking Act 1985. He also seeks leave to appeal against the asserted severity of the sentences imposed upon him. For the subject offence he was sentenced to an overall term of 4 years with a non-parole period of 3 years. He was also sentenced in respect of three offences of break and enter a warehouse and committing a serious indictable offence. In two instances the offence was stealing and in one instance larceny in circumstances of aggravation. On the trial matter and these three offences he received non-parole periods totalling 5 years and a balance of term of 8 months. The judge revoked a suspended sentence of 18 months imprisonment for the offence of manufacture prohibited drug. months imprisonment. Taking into account the revoked s 12 bond the appellant was sentenced to a total of 7 years 2 months imprisonment with a non-parole period of 6 years 6 months.
The Conviction Appeal
4. There was an agreed statement of facts which read:
"1. At about 21.15 hours on 8 July 2003 the Accused was driving Ford Fairmont registered number XBB921 when it was stopped by police in Pennant Hills Road, West Pennant Hills.
2. Searches of the vehicle by police lead to the discovery within the vehicle of a plastic bag containing 495 off-white tablets.
4. He was interviewed by ERISP early on 9 July 2003 but declined to answer any questions about the tablets."3. The accused was in possession of the tablets. It is not agreed that the Accused was in possession of the substance/s later found on analysis to be in the tablets.
5. There was no other evidence before the Court as to the circumstances of the discovery of the tablets or what was found in the Ford Fairmont upon the search by the police.
6. The agreed statement of facts also provided:
"11. Defence counsel and the Crown Prosecutor agree that the issues to be decided by the Trial Judge are:-
b. Whether the quantity of MDMA was 'not less than the commercial quantity' applicable to that prohibited drug."a. Whether the Accused had in his possession an amount of the prohibited drug MDMA, and if so,
7. The judge answered both questions in the affirmative. On appeal the focus was a little different in that the central issue was whether there was sufficient evidence to warrant a conviction.
8. The tablets had a gross weight of 205 grams. Upon analysis the tablets were found to contain:
(i) MDMA at a purity of between about 0.4% and 0.6% in a composite sample taken from 25 tablets, and
(iii) Trace amounts of Methylamphetamine .(II) Ketamine at a purity of between 0.34 and 0.36%
9. The quantity of MDMA contained in the tablets, being an average of 2.7 milligrams per tablet was quite low, the typical content being 100 to 160 milligrams per tablet. Mr W J Allender, a Forensic Scientist (Medicinal Chemistry) who is highly qualified and experienced, thought that the active constituent MDMA appeared to have been diluted. it would be necessary to ingest at least 30 of the tablets to produce any form of psychosis which would be evident to an observer.
10. At the time MDMA was a prohibited drug within s 25(2) of the Drug Misuse and Trafficking Act 1985 and Ketamine was not. The commercial quantity then applicable to MDMA was 125 grams.
11. There was no issue that the appellant was in physical possession of the tablets. The issue was whether such possession was with the knowledge or belief that the tablet constituted a prohibited drug.
12. After referring to Pereira v DPP 63 ALJR 1 the judge addressed the issue thus:
"I am concerned here with the accused's actual knowledge. I am concerned that, if wilful blindness is to be relied upon, it is only a step in the evidentiary process of reasoning to the accused's state of mind. Wilful blindness cannot be substituted for proof of the accused's state of mind. The Crown must prove, again to my satisfaction beyond reasonable doubt, that the relevant state of mind of the accused was present, namely, that he knew, or that he should have known, that he believed, because the circumstances put him on notice to investigate that these particular tablets contained a prohibited drug. Again, I stress that where knowledge is inferred from the circumstances surrounding the commission of the alleged offence, knowledge must be the only rational inference available."
13. The judge embarked on an analysis of the evidence and concluded that the appellant had the relevant knowledge, namely, that the tablets contained a prohibited substance.
14. The question whether on the facts proved as set out in the agreed Statement of Facts the judge was entitled to so find. The judge held that the circumstances gave rise to real suspicion. Those included that there were 495 tablets altogether in a plastic bag in the appellant's possession, that is in his physical control and custody. He was aware of the existence of the large number of tablets in a plastic bag. Driving around with a large number of tablets in a car with knowledge that they are there and having the physical custody and control of them is very unusual.
15. The judge expressed this view:
"In the circumstances, the only available inference is that the accused knew that the tablets contained a prohibited substance. I am satisfied beyond reasonable doubt that he had physical control of the tablets which contained a prohibited drug, and that he knew, or believed, in the circumstances, that after proper inquiry those tablets would be found to contain a prohibited drug, and he did not enquire. There are only two possible inferences to be drawn: one is that he actually knew; or two, that in the suspicious circumstances he failed to inquire whether". (sic)
16. The judge obviously meant whether the tablets contained a prohibited substance.
17. The appellant challenged the finding quoted. It was submitted that this was not the only reasonable inference available and that the judge failed to adequately consider competing inferences.
18. The appellant placed reliance on the extremely low concentration of MDMA, ketamine and methylamphetamine. It was submitted that given these low concentrations it was a reasonable possibility that the tablets were manufactured in circumstances where contamination occurred and these elements were no more than trace elements or residual from contamination. That possibility is farfetched. Each of the tablets is self contained and the elements appear to be present in the tablets tested. The number of tablets (495) points to this not being a reasonable possibility.
19. The appellant submitted that the evidence was equally capable of supporting an inference that the accused believed that the tablets were one of the following:
(i) Ketamine tablets (not a prohibited drug at the time) or
(iii) tablets being sold as performance enhancing drugs for sale in gymnasiums (or sporting centres) not containing prohibited drugs(ii) vitamin tablets, or
and the tablets had somehow been contaminated in the manufacturing process.
20. There is no evidence as to the effect of MDMA and Ketamine when combined nor whether one heightens the impact of the other.
21. In Blakiston Gould's Medical Dictionary, Fourth Edition, p 723 Ketamine is defined as:
"an anaesthetic given intravenously or intramuscularly as the hydrochloride salt: may produce vivid and sometimes unpleasant dreams:
22. In Mosby's Dictionary of Medicine Nursing & Health Professions ketamine hydrochloride is defined as:
"a potent non-barbiturate general anaesthetic induction agent administered parenterally to achieve dissociative anaesthesia. Ketamine hydrochloride does not cause muscular relaxation. It is a potent somatic analgesic and is particularly useful for brief minor surgical procedures. Hallucinations, confusion and disorientation may occur on emergence from anaesthesia."
23. It seems that the prime function of ketamine is an anaesthetic one. There is no evidence as to the number of tablets that would have to be taken before ketamine acted as an anaesthetic or a potent somatic analgesic. Whereas there was a well known market for MDMA (or ecstasy) it is hard to imagine there being a street type market for ketamine tablets unless taken in conjunction with MDMA. Nor is it easy to accept that any good reason existed for the appellant driving around with 495 ketamine tablets in a plastic bag for disposal by sale or otherwise in West Pennant Hills, assuming such tablets contained Ketamine and nothing else. It is not a reasonably possible explanation that the appellant believed that the tablets were ketamine tablets and did not contain MDMA. Nor is it a reasonably possible explanation that the appellant believed that the tablets were vitamin tablets. Vitamin tablets are freely available over the counter in many health food shops, supermarkets and pharmacies. There would be no point driving in West Pennant Hills or elsewhere with a plastic bag containing 495 vitamin tablets with no adequate description of their properties when they are so readily available.
24. Further, it is not a reasonably possible explanation that the accused believed that the tablets were being or to be sold as performance enhancing drugs for sale in gymnasiums (or sporting centres) not containing prohibited drugs. There appeared to be one type of tablets. Nor did the tablets appear to contain any element that could lead to enhancing either the performance of the consumer, either directly or indirectly, for example, by building up important muscles. If the tablets were to be sold as performance enhancing some indication might be expected of the ways in which the tablets would enhance performance..
25. None of the suggested alternative inferences is reasonably possible. The suggestion that the tablets had "somehow" been contaminated in the manufacturing process is not one that can be accepted as a reasonable possibility. Mr Allender expressed the view that the active constituent MDMA appeared to have been diluted. That would not have happened accidentally.
26. I agree that in cases of this type there is often more material from which to draw inferences. Despite the sparse materials there was sufficient material to enable the judge to be satisfied beyond reasonable doubt that the appellant knew, or believed that the tablets contained a prohibited drug.
27. The appeal against conviction should be dismissed.
Sentence
28. On 1 June 2004 the appellant was arrested while driving a van which contained stolen goods having a value of $66,266.90. He has been in prison ever since.
29. On 14 October 2002 on a charge of manufacture prohibited drug he was sentenced to 18 months imprisonment to start on 14 October 1992, suspended on entering into a bond for 18 months supervised by the NSW Probation Service and with conditions.
30. On 19 January 2007 the judge revoked the bond, for breach, and directed that the 18 months imprisonment be served from 1 June 2004 and expire on 30 November 2005.
31. On the charge of supply not less than the commercial quantity of a prohibited drug, ecstasy, and taking into account that on 8 July 2003 at West Pennant Hills the appellant possessed unlawful or illegally obtained goods in custody $13,000 cash (Form 1) the appellant was sentenced to imprisonment comprising a non-parole period of 3 years expiring on 29 November 2008 and an additional term of 1 year expiring on 29 November 2009. The maximum penalty for this offence was 20 years imprisonment and the standard non-parole period was 10 years.
32. On Count 2, break, enter and steal, the appellant was sentenced to imprisonment comprising a non-parole period of 21 months starting on 28 February 2008 and an additional term of 7 months starting on 29 November 2009. The maximum penalty was 14 years imprisonment.
33. On Count 3, break, enter and steal, the appellant was sentenced to imprisonment comprising a non-parole period of 2 years starting on 30 May 2007 and an additional term of 8 months to start on 30 May 2009. The maximum penalty was 14 years imprisonment.
34. On Count 4, break, enter and steal in circumstances of aggravation, the appellant was sentenced to imprisonment comprising a non-parole period of 2 years starting on 29 November 2008 and expiring on 28 November 2010 and an additional term of 8 months expiring on 28 July 2011. The maximum penalty was 20 years imprisonment.
35. The total of the previously suspended sentence and the non-parole periods amounts to 6 years 6 months (1 June 2004 – 28 November 2010) and the total sentence to 7 years 2 months.
36. The facts of Counts 2, 3 and 4 should be noted.
37. Count 2 – break, enter and steal – Between 2pm on Saturday 25 January 2003 and 7am on Tuesday 28 January 2003 a hole was cut into a brick wall of a warehouse and that warehouse entered. This hole opened to a narrow laneway between that warehouse and another warehouse. Almost directly opposite the first warehouse hole was a rear fire door to the second warehouse. This fire door was cut n half horizontally below the alarm sensor on that door, allowing access to that warehouse. A padlock on the security fence surrounding the first warehouse had been cut and the roller door allowing vehicular access to and from this warehouse had been opened from the inside. A large number of golf clubs were stolen from the second warehouse, passed through the hole in the wall of the first warehouse where they were loaded onto a large vehicle and driven away. The total value of goods stolen was $161,976.
Count 3 – break, enter and steal – Between 7pm on Friday 17 August 2001 and 8am on 18 August 2001 a vehicle was rammed into a roller door at a warehouse which had a common wall with a neighbouring warehouse being used to store large amounts of computer hardware and software. A section of the common wall was cut and lifted up. Electronic equipment having a value of $76,062 was stolen. On 2 August 2004 the appellant was charged with this offence
Count 4 - break, enter and commit serious indictable offence, namely larceny, in circumstances of aggravation, namely, in company. Sometime after 11pm on 30 May 2004 a truck was stolen from the yard of a removal and storage company and driven to a warehouse in the same suburb. The appellant in company with another person or persons gained entry into the warehouse. They cut a hole in a common wall of the warehouse to gain entry into neighbouring business premises from which they stole a large number of cook-tops and other kitchen appliances.
The stolen truck was later recovered.
On 1 June 2004 the appellant was arrested while driving a van which contained cook-tops, irons and toasters The total value of the stolen goods was $66,266.
38. Each of Counts 2, 3 and 4 was a serious offence. Each occasioned substantial loss and damage. Each was the result of professional planning, organisation and execution and part of planned and organised criminal activity of a high order. As was pointed out by the Crown the offences were committed by the appellant while he was at conditional liberty under a bond to be of good behaviour and on bail.
39. The Crown also pointed out that the appellant, having asked that having in his possession unlawful or illegally obtained goods be taken into account, an additional penalty had to be imposed in sentencing him for the offence of supplying a commercial quantity of MDMA by giving grater weight to the need for personal deterrence and society's entitlement to extract retribution for offences for which no punishment had been imposed.
40. The judge concluded that the supply offence was not situated in the mid-range of offences of this kind. He held that this offence was low, even very low on the range of objective seriousness for these reasons:
(i) the tablets had an exceptional and extraordinarily low level of purity
(ii) the tablets were not disseminated in the community
(iv) the appellant's role was limited but not significant. The judge proceeded, apparently, on his statement to the parole officer that he was delivering the tablets on a one-off basis. There was no actual supply to the public. The offence was deemed supply because of the statutory definition of "admixtures".(iii) the effect of even a number of tablets could have been almost negligible; thus there was no, or little, potential damage which could have been caused to the community
41. The appellant, who was born on 6 November 1953, has had a most unfortunate life. The judge found that the appellant came from a family in which there was alcoholism and violence. He experienced some learning difficulties. He was institutionalised at the age of 13 in 1967. For many years he has suffered personal problems. He wrote that for many years he had been struggling with a cocaine and alcohol addiction but that over the previous ten months at Parramatta Prison he had, with assistance, changed his ways and hoped to help his children in the future. The judge noted that the applicant had had to face serious family tragedies.
42. There were references which spoke highly of aspects of the character and work of the applicant. These included painting homes for the elderly who were poor and training young children in water skills and football skills. There was also a reference from a former employer as to his diligence and reliability. The reports from the Alcohol & Other Drugs Officer/Counsellor at Parramatta Correctional Centre were very encouraging as was that of the Chaplain. The appellant holds a position of considerable trust within the prison and discharges his duties in a very satisfactory manner, being regarded as an excellent worker. There have been good reports from Custodial Officers.
43. In the Pre-Sentence Report the appellant is recorded as stating that he does not dispute the facts as presented to the Court as they related to the break and enter charges. He is also recorded as stating that the offences were drug related in that any proceeds of the illegal venture went to supporting his own alcohol and drug addiction and that at the time of the offences he was spending a combined $1000 a day on cocaine and amphetamines and alcohol. If the appellant's assessment is correct such spending requires a very large income.
44. The judge noticed that the appellant had expressed remorse for his offending to the psychologist.
45. The appellant voluntarily co-operated with an induced interview but while he was co-operative the authorities assessed his evidence as being of limited use because it could not be corroborated. The judger stated that her took these matters into account.
46. The judge found that there were no special circumstances, "[b]cause f his age, … his criminal history and … his failure to express under oath his remorse or to speak in some detail as to his attitude now to these offences, and particularly to speak in detail as to his attitude now to these offences, and particularly to speak in detail of his plans for rehabilitation and particularly because of is tendency to re-offend while on conditional liberty."
47. I should add that the Probation and Parole Officer wrote:
"Notwithstanding his re-offending when last at liberty it is considered that Mr Derley would benefit from a further lengthy period of formal supervision to aid him in abstaining from substance abuse and avoiding further adverse contact with the authorities."
48. The appellant has a long history of committing offences. They varied from minor offences to some serious offences. They included a large number of the more serious driving offences, dishonesty offences and drug offences and some assaults.
49. He was also convicted in 1996 of rape, receiving a 6 year sentence comprising a non-parole period of 2 years 6 months. This was a long time ago. It was by far the most serious offence. The judge held that the appellant did not appear to be a career criminal although he had engaged throughout his lifetime in consistent criminal activity.
50. The judge held that there was a considerable utilitarian value in the late pleas of guilt to the break, enter and steal offences and allowed a discount of 15 per cent. He increased the discount to 20 per cent in resect of the offences in August 2001 and January 2003 because the Crown was by no means guaranteed of a conviction on those counts. The Crown queries whether this approach was correct. Should the matter have been approached a little differently.
51. The appellant stressed that the judge did not take into account the accumulation of the sentences and that he should have done so, treated them as a special circumstance reduced the overall length of the non-parole periods and increased the length of the additional term so that it was not less than one-third of the total fixed term/non-parole periods. This was especially so given the problems and difficulties the appellant would have in resisting his alcoholism and drug dependency problems which had become entrenched over many years and avoiding committing offences. In the circumstances of this case these points have force. However, there are other considerations. On the particular facts of each of Counts 1, 2, 3 and 4 the offences on each of Counts 2, 3 and 4 were at least as serious as those on Count 1. Each of the offences on Counts 2, 3 and 4 was particularly serious and each, after making all due allowances, would have warranted a non-parole period of 3 years with an additional term (or balance of term) of 1 year. Each of the crimes involved planning and organisation and goods having a value exceeding $50,000. Each involved initially breaking and entering one set of premises and then breaking and entering nearby or neighbouring premises and stealing a considerable quantity of goods exceeding $50,000 in value. It was breaking, entering and stealing on a grand scale.
52. With the overlapping of the sentences and on the assumption that the non-parole period of 3 years on the drug supply charge stands, the appellant received:
(a) an effective non-parole of 12 months on Count 2 – break and enter
(c) an effective non-parole period of 12 months on Count 4 – it expires on 28 November 2010, 12 months after the non-parole period on Count 2 which expired on 28 November 2009(b) no effective non-parole period on Count 3 – break and enter - it expires on 29 May 2009, that is 6 months before the non-prole period on Count 2 which expires on 28 November 2009
53. Given the three serious break, enter and steal crimes that is a surprising result.
54. An alternative way of looking at the initial overlap would be to hold that the effective non-parole period for the supply charge was 18 months as the on-parole period set on Count 3, (break, enter and steal) was 2 years from 30 May 2007 to 29 May 2009. The non-parole period set on the supply charge was 3 years from 30 November 2005 to 29 November 2008.
55. There has been no Crown appeal against any of the sentences.
56. In my opinion the sentences imposed on the break, enter and steal counts (Counts 2, 3 and 4) including the overlapping were very light and lesser non-parole periods could not be imposed on any of these charges. Much longer non-parole periods and less overlapping of the sentences would not have been erroneous. The sentences imposed by the judge represent a high degree of leniency towards the appellant even when taken in conjunction with the revocation of the bond and the commencement of the suspended sentence.
57. It would not be fair in the absence of Crown appeals or in the interest of the appellant to extend the sentence by extending the period on parole.
58. Lesser non-parole periods on any sentence on any count cannot and should not be imposed. No less severe sentence is warranted in law.
59. The following orders are proposed:
(1) Appeal against conviction on the supply charge dismissed
(2) Leave to appeal against sentences granted
(3) Appeal against sentences dismissed.
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15/01/2008 - question marks deleted - Paragraph(s) 29 & 37
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