Finch v The Queen

[2014] NSWCCA 278

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Finch v R [2014] NSWCCA 278

Hearing dates:

8 August 2014

Decision date:

24 November 2014

Before:

Simpson J at [1];
Adams J at [2];
R A Hulme J at [3]

Decision:

1. Leave to appeal against sentence granted.

2. Appeal dismissed.

Catchwords:

CRIMINAL LAW - appeal against sentence - possession for purpose of supply of large commercial supply of lysergide and indictable quantity of methylamphetamine - unusual case - possession not by choice but retained possession for the purpose of supply - asserted errors in assessment by trial judge of seriousness of offence and aspects of subjective case - asserted excessive differential between sentences - error not established - sentences imposed reflected differing maximum penalties - manifest excess not established

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Procedure Act 1986 (NSW)
Drugs Misuse and Trafficking Act 1985 (NSW)

Category:

Principal judgment

Parties:

Stephen John Finch (Applicant)
Regina (Respondent)

Representation:

Counsel:
Ms A Francis (Applicant)
Mr N J Adams (Crown)
Solicitors:
Hardinlaw
Solicitor for Public Prosecutions

File Number(s):

2010/291599

 Decision under appeal 

Jurisdiction:

9101

Date of Decision:

2013-04-12 00:00:00

Before:

Berman SC DCJ

File Number(s):

2010/291599

Judgment

1. SIMPSON J: I agree with R A Hulme J.

1. ADMAS J: I agree with R A Hulme J.

1. R A HULME J: Stephen John Finch (the applicant) applied for leave to appeal in respect of sentences imposed upon him in the District Court by his Honour Judge Berman SC on 12 April 2013.

1. For an offence of supplying methylamphetamine contrary to s 25(1) of the Drugs Misuse and Trafficking Act 1985 (NSW) the applicant was sentenced to imprisonment for a fixed term of 2 years dating from 25 November 2012. For an offence of supplying a large commercial quantity of lysergide, commonly known as LSD, contrary to s 25(2) of the same Act, he was sentenced to imprisonment for 8 years with a non-parole period of 5 years dating from 25 November 2013.

1. The overall sentence was one of 9 years with a non-parole period of 6 years.

1. His Honour also dealt with an offence of possession of an unregistered firearm (an air rifle) that was before him on a certificate under s 166 of the Criminal Procedure Act 1986 (NSW). The applicant was convicted but no penalty was imposed pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW). In sentencing the applicant for the offence of supplying LSD, the judge also took into account at the applicant's request four further offences listed on a Form 1 document: possession of cannabis leaf; possession of cannabis resin; not keeping a firearm safely; and possession of ammunition.

Facts

1. The applicant had pleaded not guilty to the drug supply offences but was found guilty after a jury trial.

1. The learned sentencing judge recited the facts and the findings that he made as follows:

"Police went to Mr Finch's [home at Pindimar (Port Stephens)] on 1 September 2010 after having received a tip off from an associate of Mr Finch's. ... [They found] a large number of various types of drugs in various locations throughout Mr Finch's premises. In particular there were substantial quantities of methylamphetamine in four locations and LSD both in liquid form and impregnated into perforated cardboard sheets.

Because of the quantities involved, the jury verdicts on the two counts do not establish necessarily that the offender was in possession for the purposes of supply of all of the methylamphetamine and LSD found in his premises. It is for me to make findings consistent with the jury's verdict as to the factual basis on which I will sentence him. I am satisfied beyond reasonable doubt that Mr Finch was in possession of all of the methylamphetamine and all of the LSD found in his premises and given of course the deeming provision I will sentence him on the basis that he was in possession of those drugs for the purposes of supply.

When police went into Mr Finch's home they saw him in the process of attempting to conceal a plastic container containing 18.6 grams of methylamphetamine behind a bookshelf. Further searching revealed a small quantity of methylamphetamine in a film canister found in the drawer of a coffee table and three separate packages of methylamphetamine found within an ice cream container located by police in Mr Finch's laundry. These separate packages contained methylamphetamine weighing 47 grams, 52.8 grams and 19.2 grams. Thus the total amount of methylamphetamine in Mr Finch's possession for the purposes of supply was well over 100 grams.

The quantities involved in the LSD charge are not as easily determined. This is because some of the LSD was contained in cardboard sheets. Although the cardboard which had been impregnated with LSD was clearly a substance containing a prohibited drug within the meaning of the admixture provisions of the Drugs Misuse and Trafficking Act 1985, in assessing the seriousness of the offender's conduct and when comparing it to other offenders, account must be taken of the weight of the cardboard. There was of course no cardboard involved in the remainder of the LSD which was found. That was found to be in vials or ampoules which contained a liquid with LSD in it, the total weight of the liquid being almost 100 grams or almost fifty times a large commercial quantity. [Counsel for the applicant] relies on the circumstance that the purity of LSD in that liquid was, he said, low, but I simply do not know how much is required to give an effect to a drug user. I simply do not know whether most liquid LSD is of that purity or lower or higher."

1. The judge referred to other matters relevant to an assessment of the seriousness of the offences:

Caution is required in sentencing for drug supply offences in focussing too much on the quantities involved. That is particularly the case where LSD is involved. The large commercial quantity for this drug is about the same as half a teaspoon of sugar. Being in possession for supply of 50 times the large commercial quantity specified by the Drug Misuse and Trafficking Act of LSD cannot be equated with an offence involving 50 times the large commercial quantity prescribed for a drug like heroin (namely 50 kgs).

Despite this, the offences, especially the LSD offence, were "serious indeed".

There were no trappings of excessive wealth.

But there were many things revealed in the trial that were consistent with the applicant being a person who dealt in drugs much more often than he had said in his evidence. There was a video surveillance system at his home. Various notebooks found by the police contained recordings of drug sales.

The applicant said in his evidence at the trial that the drugs had been delivered to him by a person identified as "CJ" shortly before the police executed the search warrant. He claimed that CJ had "loaded him up" because of the criminal charges that CJ was facing.

1. In relation to the last matter, the judge said that he was nevertheless satisfied beyond reasonable doubt that the applicant well knew what CJ had left at his home; the applicant was in possession of all of it; and he intended to supply the drugs, not return them to CJ as he had claimed. His Honour continued:

"In other words, in the offender's favour, I am going to sentence him on the basis that CJ did in effect load him up by maximising the quantities of drugs he left behind with Mr Finch but I repeat yet again Mr Finch well knew about those quantities, was in possession of them and intended to supply all of those drugs."

1. His Honour concluded that the LSD supply offence "was a matter of considerable seriousness".

Personal circumstances of the applicant and other matters relevant to sentence

1. The applicant was aged 45 at the time of the offences and 47 at the time of sentence.

1. The judge noted that he had prior convictions, including for cultivating cannabis and driving whilst under the influence of a drug. There were other offences but nothing approaching the seriousness of the offences for which he stood for sentence.

1. A report by Dr Anthony Slowiaczek, psychiatrist, related how the applicant had been diagnosed with ADHD in February 2003. The doctor thought he had suffered from this condition since childhood. He prescribed Dexamphetamine which the applicant had since taken on a regular basis.

1. The judge noted the evidence that the prison authorities were reluctant to allow an amphetamine-based drug to be prescribed to an inmate: "I have got no doubt that Mr Finch will find it difficult to receive his medication in custody. There may be times when he does but he will find things harder."

1. His Honour also considered that the applicant's mental condition was relevant in assessing the effect of the delay between the applicant's arrest in September 2010 and his sentencing in April 2013. He accepted that uncertainty as to the ultimate outcome must have affected the applicant deeply.

1. There were also reports by Mr Tim Watson-Munro, psychologist, relating to the applicant's three children: twins aged 15 and an older brother aged 18 at the time of sentence. The applicant had been the sole carer for the children since his marriage to their mother broke down in 2003. He had a very close relationship with them and they had been devastated by his arrest. They had been required to move to Sydney to live with their mother. Mr Watson-Munro found that they were experiencing considerable symptoms of depression and anxiety and had been adversely affected in a variety of ways. One had even been moved to consider suicide.

1. There was an impressive array of character references and the applicant's daughter gave oral evidence.

1. The judge had the following to say about the last two mentioned issues:

"He came to Court today supported by many friends and family. Tendered to me was a very impressive list of references attesting to his kindness and concern for others in the community. According to those references Mr Finch was a man of good character in many different ways. Many people in those references spoke of specific examples of kindness that Mr Finch showed to those in need of help. I have to say that not many of us could marshal such an impressive array of references from people who all speak of his character in glowing terms, as I said, in particular his kindness and generosity to others in need of a helping hand. Most of the references also refer to the fact that Mr Finch is a good father to his four children. He has been a single parent to his three sons for most of their lives. He is entitled to be very proud of what he did for his children. They are missing him greatly. What Mr Finch is not entitled to be proud of is the fact that he has risked their welfare by committing these most serious offences.

Tendered today were three reports of Mr Tim Watson-Munro ... [concerning] Mr Finch's three sons. There is no doubt that they will be hurt by the circumstance that Mr Finch must necessarily spend a lengthy time in gaol. Unfortunately, such hardship is commonplace, many single parents are sent to gaol for offences and many people are thus harmed. [Counsel for the applicant] did not suggest that I would find that the hardship to the three boys was exceptional but did ask me to take it into account as part of the general mix of subjective matters which I will do. In particular, I have no doubt that Mr Finch feels deeply ashamed and guilty that it was his misconduct which has hurt his three boys. He knows full well that it is he who has deprived them of his care. He knows full well that he only has himself to blame for the predicament that they now find themselves in.

Sentencing someone from such a close family shows how the devastation of losing a family member to a gaol sentence spreads like a ripple in a pond, but I do have to say that similar devastation occurs when families lose members to the terrible scourge of drug use. That is why these offences are so serious."

1. The judge was satisfied that the applicant had good prospects of rehabilitation. The sentence to be imposed would, however, have "a significant personal deterrent to him ever doing anything like this in the future".

1. His Honour rejected a submission that general deterrence was of less significance in relation to the supply of LSD because there was evidence that the market for this substance in the community was less than for other prohibited drugs: "General deterrence is needed for all drug supplies whether or not a particular drug is supplied commonly or rarely".

1. The judge concluded his sentencing remarks by reiterating the maximum penalties and, in respect of the LSD offence, the standard non-parole period that had been prescribed by Parliament: "the legislature thus gives guidance to sentencing judges which we must not ignore".

Grounds of appeal

1. The sentence is manifestly excessive.

2. The sentencing Judge erred in failing to have regard to relevant mitigating factors in:

(a) Determining the overall penalty; and

(b) in assessing the extent to which he would depart from the standard non-parole period.

Submissions

1. The submissions in support of ground 2 raise matters that are said to support the proposition that the sentence is manifestly excessive. Accordingly there is no need to deal with the grounds separately.

1. Ms Francis, counsel for the applicant in this Court, made plain that the sole focus of the application was the sentence for the large commercial supply of LSD. There was no complaint about the sentence for the methylamphetamine supply offence nor with the one year period of accumulation upon it of the LSD sentence.

1. The submissions for the applicant identified a number of factors, related to both the objective seriousness of the offence and various favourable subjective matters, that supported the proposition that the sentence was manifestly excessive.

1. As to the objective seriousness of the offence, it was submitted that there was an absence of planning, premeditation and organised criminal activity. These are features commonly found in cases of large commercial drug supply and so their absence in this case was a matter of significant mitigation. Allied with the absence of these factors was the fact that the applicant came into possession of the drugs by them being foisted upon him; he did not acquire them by choice and nor did he pay any money for them; and, whilst there was no challenge to the judge's finding that the applicant possessed all of the drugs for the purpose of supply, there was no evidence of how he might have effected such supply or inevitability that he would have supplied them.

1. It was submitted that all of these matters pointed to a lower level of objective seriousness and moral culpability than was reflected in the sentence imposed.

1. As to the applicant's subjective case, the submissions focussed upon the applicant's mental condition, his good character (as established by "the extraordinary character references") and the evidence concerning his children. It was accepted that "the sentencing judge acknowledged that the applicant's mental health frailties would be exacerbated on account of the stress associated with his being estranged from his children". But it was submitted that the impact upon the children was "quite exceptional" and the associated anxiety upon the applicant, being in custody and not receiving his medication, was a very significant factor on sentence. The psychological condition of the children was something that rendered being in custody more onerous.

1. It was included in the written submissions that "the sentencing judge was silent as to the amelioration of the application of general deterrence having regard to the applicant's mental illness". There is no ground of appeal contending that this was erroneous; it may merely have been an observation. If error was contended, the short answer is that the judge was not asked to ameliorate the application of general deterrence on that basis and the evidence did not mandate that he should.

1. The overall submission for the applicant was that, having regard to all of the above matters, "a sentence of nine years imprisonment is manifestly excessive in the circumstances of unpremeditated offending committed in the context of a rash acquiescence in the manipulative conduct of the person who had historically supplied the applicant with drugs".

Consideration

1. Most of the matters to which counsel drew attention were dealt with in one way or another by the judge in the course of his sentencing remarks. He recounted the facts of the applicant's offending in a way that the applicant does not now challenge. Explicit in the narrative is the way the applicant came to be in possession of the drugs and implicit in it is that there was no planning, premeditation or organised criminal activity. The judge did not say anything to suggest how, when, where or to who the applicant might have sought to supply the drugs. He determined that the offences were "serious" simply on the basis of the quantities of the drugs involved, of which the applicant was aware, and that his purpose after he came into possession of them was to supply them. The evidence did not support any further findings and none were made.

1. The judge was also obviously fully cognisant of the favourable aspects of the applicant's subjective case. His Honour was clearly impressed by the force of the evidence as to his prior good character. He acknowledged that the children "will be hurt by the circumstance that [their father] must necessarily spend a lengthy time in gaol". He accepted that the applicant "will find things harder" on account of his ADHD condition and the difficulties in receiving medication in gaol.

1. I am not persuaded that the sentencing judge erred by overlooking some matter that rendered the offences less serious or by falling to have regard to relevant mitigating subjective factors in the assessment of sentence. Ground 2 fails.

1. The applicant's case boils down to the question whether, when regard is had to all of the circumstances of the case, the sentence for the large commercial supply offence is manifestly excessive. Is it unreasonable or plainly unjust?

1. The case is somewhat unusual as Ms Francis sought to characterise it. If there is a precedent for someone being sentenced for a large commercial drug supply offence after having been gifted the drugs and then being informed against by the giver I am unaware of it. However, that is not all there is to it. The applicant tried but failed to persuade the jury at his trial that he was only a temporary custodian of the drugs for CJ. The jury's verdict required that he be sentenced for being in possession of significant quantities of prohibited drugs and that the purpose of such possession was to supply them to another or others.

1. The circumstances could be described as truly exceptional if the offender was an innocent where matters of prohibited drugs are concerned. But that is not a description to which the applicant could aspire. He admitted to having been a regular user of drugs. The judge referred to the police having found written records of past drug transactions, albeit they involved (according to the applicant) small quantities of cannabis. The judge considered that the applicant had sought to minimise the level of his past drug dealing. He noted that the applicant's home was equipped with a video surveillance system.

1. Ms Francis submitted that the criminality involved in the two offences was more comparable than the differential in the individual sentences suggested. In other words, the sentence for the LSD offence should have been closer to that for the methylamphetamine offence. She argued that this indicated that the judge had given inappropriate prominence to the maximum penalty and the standard non-parole period prescribed for large commercial supply offences.

1. I am not persuaded that the sentences disclose error in that respect. There was a significant differential in the maximum penalties for the two offences, life imprisonment for count one and 15 years for count two, and so one might expect that to be reflected in the sentences passed. If there is anything erroneous in the differential, it is equally open to argue that the applicant was fortunate that the sentence for count two was not higher. Two years for possessing for the purpose of supply over 100g of methylamphetamine is a relatively modest sentence.

1. The sentencing judge was conscious of the need for a strong element of general deterrence to be factored into the assessment of drug supply sentences. The quantity of the drugs involved in this case was relevant (although, rightly, the sentencing judge did not regard this as determinative). There was well over 100g of methylamphetamine (the traffickable quantity is 2g and the commercial quantity is 250g) and there was more than 50 times the large commercial quantity of LSD.

1. Notwithstanding that the applicant had quite a compelling subjective case to mitigate the level of punishment to be imposed, I am not persuaded that the sentence of 8 years for the LSD offence and the overall sentence of 9 years for the two offences is manifestly excessive.

Orders

1. I propose the following orders:

1. Leave to appeal against sentence granted.

2. Appeal dismissed.

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Decision last updated: 24 November 2014