Fogg v R

[2011] NSWCCA 1

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Fogg v Regina [2011] NSWCCA 1

Hearing dates:

8 December 2010

Decision date:

04 February 2011

Before:

Simpson J at 1
Blanch J at 2
Garling J at 3

Decision:

1. Leave to appeal granted.

2. Appeal dismissed.

Catchwords:

CRIMINAL LAW - Sentencing - Supply of methylamphetamine - Where the sentencing judge found that the applicant was the second in command of a drug supply enterprise - Whether sentencing judge erroneously placed the offence above the mid range of objective seriousness - Whether the sentencing judge erroneously took into account aggravating features - Whether the sentencing judge failed to take into account a mitigating feature - Whether sentence manifestly excessive.

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Drug Misuse and Trafficking Act 1985

Cases Cited:

Dinsdale v The Queen (2000) 202 CLR 321
El-Ghourani v R [2009] NSWCCA 140
Mirza v R [2007] NSWCCA 248
Mulato v The Queen [2006] NSWCCA 282
R v Bloomfield (1998) 44 NSWLR 734
R v Hayek [2010] NSWCCA 139
Stewart v R [2009] NSWCCA 152
Vuni v The Queen [2006] NSWCCA 171

Category:

Principal judgment

Parties:

Neville William Fogg (Applicant)
Crown (Respondent)

Representation:

Counsel:
J. Trevallion (Applicant)
V. Lydiard (Crown)
Solicitors:
Archibold Legal (Applicant)
Department of Public Prosecutions (Crown)

File Number(s):

CCA 2008/019432

 Decision under appeal 

Citation:

R v Neville William Fogg

Date of Decision:

2009-09-17 00:00:00

Before:

Frearson J

File Number(s):

2008/00019432

Judgment

1. SIMPSON J: I agree with Garling J.

1. BLANCH J: I agree with Garling J.

1. GARLING J: This is an application for leave to appeal in respect of a sentence imposed in the District Court of NSW by his Honour Judge Frearson on 17 September 2009.

1. The applicant, Mr Neville Fogg, pleaded guilty before Frearson DCJ to one offence contrary to s25(1) of the Drug Misuse and Trafficking Act 1985.

1. The offence related to the supply of methylamphetamines by the applicant to an undercover police officer, on 5 separate occasions in the period between 13 June 2008 and 1 July 2008.

1. The maximum penalty for the offence is 15 years imprisonment and/or a $220,000 fine. No standard non-parole period applies.

1. The sentencing judge imposed an overall sentence of 4 years and 8 months imprisonment, with a non-parole period of 3 years and 6 months, commencing from 9 July 2008, which was the date upon which the applicant was arrested and bail was refused.

Facts

1. A statement of agreed facts was tendered to the sentencing judge. A brief summary of these facts is set out below.

1. In early 2008, Strike Force "Nellinda" was established by Police investigators attached to the Lake Macquarie and Lower Hunter Local Area Commands to investigate the supply of commercial quantities of prohibited drugs in those areas. In the course of that investigation, the Police identified various members of the Fogg family as being responsible for the supply of drugs in the Cessnock area.

1. Those involved in the Cessnock enterprise included the applicant and his wife Helen Fogg, two of their children Krystal-Lee Fogg and Katrina Fogg, as well as the applicant's older brother Raymond Fogg and his wife Gail Fogg.

1. The investigators recorded five drug transactions involving the applicant.

1. Deal 1: On 13 June 2008, an undercover operative purchased 0.03 of a gram of methylamphetamine from the applicant for $100. The transaction was initiated at the TAB at Cessnock and completed outside the applicant's home on Wollombi Road, Cessnock. In the course of the transaction the applicant stated to the operative that he could:

(a) " get anything in this town. Anything you want. Mate, I can even get 'pot' if you want it ";

(b) supply individual grams of methylamphetamine for $400, being a necessary price as they were paying $10,000 an ounce for the drug.

1. Deal 2: On 17 June 2008, the operative purchased 1 gram of methylamphetamine from the applicant for $400. The transaction was once again initiated at the TAB and completed outside the applicant's home. In the course of the transaction the applicant told the operative the following things:

(a) "grams were about the minimum we do";

(b) he would introduce the operative to his brother Ray and the operative could go and see Ray from that point; and

(c) for his role in the enterprise, the applicant receives $200 on Saturdays from his brother Ray to bet with at the TAB.

1. Deal 3: On 18 June 2008, the operative purchased 0.6 of a gram of methylamphetamine from the applicant for $400. The transaction was initiated at the TAB, but the drugs were ultimately delivered to the operative by another man, Russell Payne, at Macquarie Avenue, Cessnock. In the course of the transaction:

(a) the applicant said that he had to be careful as selling to the operative more than twice is " what's called ongoing "; and

(b) Russell Payne said that " he carries the stuff for Neville Fogg so that Neville doesn't get caught dealing ".

1. Deal 4: On 19 June 2008, the operative purchased 0.5 of a gram of methylamphetamine from the applicant for $400. The transaction was initiated at the TAB and completed at Macquarie Avenue. On this occasion, Mr Justin Fogg delivered the drugs to the operative.

1. Deal 5: On 1 July 2008, the operative went directly to the applicant's residence on Wollombi Road and negotiated with the applicant and his wife, Helen Fogg, for the supply of an "eight ball" (3.5 grams) of methylamphetamine for $900. The applicant telephoned his brother Raymond Fogg and negotiated for him to supply the drugs to the applicant for $600, resulting in a profit to the applicant of $300. Raymond Fogg delivered the drugs shortly afterwards to the applicant, who in turn gave the drugs to the operative.

1. On 9 July 2008, the applicant and his wife were arrested at their Wollombi Road residence. The applicant was charged with the supply of a prohibited drug between 12 June 2008 and 9 July 2008.

1. He pleaded guilty to the offence on 3 December 2008.

Applicant's Submissions on Sentence

1. The applicant, as I have said earlier, agreed with the facts set out above. He did not lead or tender any evidence for any purpose on sentence. He relied solely on submissions.

1. During submissions, Mr Bruce, who appeared for the applicant conceded that the applicant's conduct was part of an organised criminal enterprise. He conceded that the applicant's conduct had the effect of shielding his brother, Raymond Fogg, from ready detection by law-enforcement authorities.

1. Mr Bruce accepted that the conduct of the applicant was accompanied by financial gain, by way of profit. He also conceded that, without his client's conduct, " ... much of the criminality would not have occurred."

Subjective Features

1. The applicant was born on 11 September 1956 and was aged 51 years at the time of the offence.

1. He had a very long history of previous offences and convictions, commencing in 1968 when he was 11. The sentencing judge set out some of these convictions in his remarks on sentencing. His record included offences such as stealing, possession of prohibited drugs, assault and offensive behaviour. There is no significant break in the occurrence of offences for the 40 year period from 1968 to 2008.

1. However, with the exception of the matter to which I refer in the next paragraph, those offences on his record which involve drugs, are all for possession of a prohibited drug which have resulted in relatively small penalties. I note that the offence the subject of the appeal is the first occasion upon which the applicant has been convicted of being involved in the supply of drugs.

1. On 21 May 2008, the applicant was given a 12-month good behaviour bond by the Cessnock Local Court, pursuant to s9 of the Crimes (Sentencing Procedure) Act 1999, for possession of a prohibited drug. He was therefore in breach of his bond when, about three weeks afterwards on 13 June 2008, he made the first of the methylamphetamine transactions with the undercover police operative.

1. As I have already noted, there was no evidence led by the applicant at all on the sentencing proceedings which had the result that the judge had no material to show that the applicant was unlikely to re-offend. There was no evidence as to his prospects of rehabilitation nor to prove that he had at any stage shown remorse for his actions, except such inference as was available from the applicant's plea of guilty.

1. His counsel conceded before Frearson DCJ that the applicant's lengthy criminal record disentitled him to any degree of leniency.

1. Most of the other participants in the illegal drug enterprise were members of the applicant's family including his extended family.

Remarks on Sentence

1. The sentencing judge found that the enterprise, although organised, was unsophisticated, with no technology or anti-surveillance mechanisms. He found that the applicant himself received only a modest financial gain from his role in the enterprise.

1. However, the sentencing judge found that the applicant was the second-in-charge of the enterprise, as the Crown had submitted he should. He also found that the organisation operated in such a way as to shield Raymond Fogg, who was in charge of the enterprise, from police detection.

1. The sentencing judge noted the Crown's submission that the applicant, in his dealings with the operative, showed an awareness that to deal in a prohibited drug for more than three times in one month was something he ought avoid.

1. It is unclear what weight his Honour placed on this submission in his determination that the applicant should not receive any reward for the venture being unsophisticated and amateurish. Nor is it clear whether his Honour found that the applicant limited his dealings to three times in one month because it was more likely to draw police attention, as the Crown submitted, or because it would lead to a greater legal sanction if he were caught as the applicant seemingly believed.

1. The sentencing judge made a specific finding that, in all of the circumstances, the applicant's offence was above the mid-range of objective seriousness for an offence of this type.

1. As the applicant had pleaded guilty at the earliest opportunity, the sentencing judge allowed a discount of 25 per cent on the sentence.

Grounds of appeal

1. Five grounds of appeal were relied upon by the applicant:

"(1) The sentencing Judge erred in characterising the offence as above the mid-range of objective gravity for an offence of this type.

(2) The sentencing Judge erred in determining that it was an aggravating feature of the Appellant's offending, that the organisation was operated in such a way as to shield Raymond Fogg.

(3) The sentencing Judge erred in determining that the Appellant's awareness that supplying drugs more than 3 times in a month would constitute a more serious offence was an aggravating feature.

(4) The sentencing Judge erred in not giving sufficient consideration to the lack of sophistication in the appellant's offending.

(5) The sentence was manifestly excessive in all the circumstances."

Grounds 1- 4

1. These grounds can conveniently be considered together because they all deal with a single issue, namely, was there an error in the characterisation of the offence as being above the mid-range of objective gravity for an offence of the particular kind.

1. Shortly put, the applicant says that the sentencing judge erroneously placed the offence above the mid range of objective seriousness because his Honour erroneously took into account two aggravating features, which relate to the way in which the enterprise operated, and also because his Honour failed to take adequately into account a mitigating feature, which relates to the lack of sophistication and amateur nature of the applicant's conduct and the venture generally.

1. It is to be remembered that a sentencing judge's assessment of where a particular instance of offending stands is a matter upon which minds might reasonably differ. Generally this court would not interfere in that assessment unless it was clearly erroneous: Mirza v R [2007] NSWCCA 248 at [16] per Howie J.

1. This Court in Mulato v The Queen [2006] NSWCCA 282 made it plain that the Court ought to be slow to interfere with the assessment made by the sentencing judge of the objective seriousness of the offending conduct. At [37], Spigelman CJ said:

"Characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts. This Court is very slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion. The question must be whether or not the particular characterisation which her Honour gave to the circumstances of the offence was open to her Honour. In my opinion it was open, although I have some hesitation in deciding so and find it to be at the lower end of the range which could reasonably be held to be so characterised."

1. I express, with respect, my agreement with the remarks of Simpson J in Mulato v The Queen [2006] NSWCCA 282 at [46] where her Honour said:

"The assessment of the objective seriousness of an offence is quintessentially for the sentencing judge. It is, if not a finding of fact, then the exercise of an evaluative process akin to fact finding or the exercise of a discretion. As such it is reviewable in this Court only on the principles stated in House v The King [1936] HCA 40; 55CLR 499. The importance of respecting the role of a first instance judge should never be underestimated. It is not the function of this Court to substitute its own view of objective seriousness for that of the first instance judge. That is not because objective seriousness is something determined by reference to the evaluation of the credibility of witnesses, in respect of which it is conventionally held that the first instance judge is in a superior position. It is because it is a fundamental aspect of the appellate system. Each judicial officer in the hierarchy has his or her own function, and those at appellate level need to take care not to trespass upon the role of those at first instance."

1. Frearson DCJ gave careful attention to determining where the offence fell on the range, and determined that the offence was above the mid range of objective gravity.

1. The applicant's submission, referring to Ground 2 of the grounds of appeal, that it was erroneous for the learned sentencing judge to make a determination that the operation of the organisation was effective to shield Mr Raymond Fogg from detection, must be rejected. First, the applicant's counsel expressly conceded that such a finding was not only available but appropriate. Secondly, the nature of the organisation is an indicator of the degree of criminality involved. It was, as the applicant's counsel conceded "... the gravamen of the criminality involved ".

1. In the written submissions on the application, it was submitted that Frearson DCJ also erred by wrongly describing the applicant as the second-in-command of the enterprise. Although not a specific ground of appeal, it is convenient to consider the submissions at this juncture.

1. In considering this ground, it is to be noted that his Honour was considering, together with and at the same time as the sentencing proceedings for the applicant, the sentencing of his brother Raymond Fogg. This concurrent sentencing exercise was done if not with the consent of the applicant, without any demur on his part. It was inevitable that his Honour would thus be in a position of comparing the respective roles of the applicant and Raymond Fogg in the enterprise in which they were both engaged.

1. As well, in the course of the sentencing submissions, the Crown provided to Frearson DCJ, without any objection from the applicant's counsel, a document entitled "Family Dynamics" which described the relationships between six members of the Fogg family, all of whom had been arrested at the same time as the applicant. The document also recorded the offences to which four members of the family had pleaded guilty and for which they had been sentenced.

1. His Honour had been the sentencing judge for each of the members of the family. As his Honour knew what the offences were for the other family members and what sentences had been imposed, it was appropriate for a document summarising this material to be put before him. As I have said, no objection was taken to it.

1. Based on contents of that document, and the facts with which he was provided on the sentence of Raymond Fogg, the judge concluded that the applicant's role was as second in command of the organisation as the Crown submitted. There was abundant material from which his Honour could come to this conclusion. In my opinion, the conclusion was correct.

1. His Honour was also correct to regard it as a factor of aggravation, because it indicated the extent of the criminality involved in the offences with which the applicant was charged. It was also one indicator of the degree of sophistication of the enterprise of which the applicant was a part.

1. With respect to Ground 3, the applicant submits that an error occurred because Frearson DCJ included in his assessment of the objective seriousness of the offence, the fact that the Applicant's knowledge that supplying drugs more than three times in a month would constitute a more serious offence as he recounted to the police undercover operative was an aggravating feature of his conduct.

1. This ground must also be rejected because it is simply not correct to conclude that his Honour did what this ground suggests. His Honour recorded that the Crown submitted that such fact ought to be seen as an aggravating factor, however, in his analysis, on my reading, his Honour did not record either his agreement with the Crown submission, nor his inclusion of the fact as an aggravating factor.

1. His Honour did use the term " ... repetition ... " when referring to aggravating factors which he was including in his assessment of the objective seriousness of the conduct. But I am satisfied, that what was meant by this term was the fact that the applicant had been detected engaging in five separate deals with the police operatives within a short space of time. That was clearly an aggravating factor to which his Honour was entitled to refer and include in his assessment.

1. With respect to Ground 4, the applicant submits that his Honour erred because he failed to adequately take into account the lack of sophistication and amateur nature of the applicant's conduct and the venture generally. His Honour clearly considered these issues. He said: " I do not think that there is any reward for the venture being unsophisticated and amateurish ..." . As well, earlier in that paragraph, his Honour specifically noted that he had regard to the sophistication of the operation. The weight which was accorded to that factor was well within his Honour's discretion. It is not a matter for interference by an appellate Court.

1. In my opinion each of these grounds should be rejected. His Honour's determination that the offence was above the mid range of seriousness was one which was well open to him. It is not susceptible to appellate interference.

Ground 5

1. This ground asserts that the sentence imposed was manifestly excessive.

1. The maximum penalty for the offence was 15 years imprisonment. There is no standard non parole period fixed by the legislation. The sentence imposed for the offence, which was above the mid range of objective seriousness, was an overall sentence of 4 years and 8 months imprisonment, with a non-parole period of 3 years and 6 months

1. The relevant test for the applicant to succeed on this ground requires the applicant to demonstrate that the sentence was unreasonable or plainly unjust: Dinsdale v The Queen (2000) 202 CLR 321 at 325 [6] per Gleeson CJ and Hayne J. In approaching the task of establishing that the sentence is unreasonable or plainly unjust, the context is that there is no one single correct sentence, but the process of sentencing involves due allowance for differences of judicial opinion at first instance whilst still acting in accordance with principle: Vuni v The Queen [2006] NSWCCA 171 at [33] per Hoeben J (Tobias JA and James J agreeing); see also Stewart v R [2009] NSWCCA 152 at [16]-[17] per Hodgson JA (Buddin and Price JJ agreeing); R v Hayek [2010] NSWCCA 139 at [37] per McCallum J (Simpson and Johnson JJ agreeing).

1. The principal submission under this ground is that a review of cases categorised as relating to the supply of less than 30 grams of amphetamine demonstrates that the applicant's sentence is higher than all but three of the sentences is those cases.

1. It is submitted that a review of Judicial Commission Statistics on sentencing also demonstrates that this sentence is at the very high end of the range and is exceeded in only a very small number of cases.

1. The use to which Judicial Commission Statistics can be put, and their limitations have been identified: R v Bloomfield (1998) 44 NSWLR 734 at 739E per Spigelman CJ (Sully and Ireland JJ agreeing). But for many offences, culpability varies over so wide a range that the statistics are of limited utility for a particular case: El-Ghourani v R [2009] NSWCCA 140 at [42] per Spigelman CJ.

1. I accept that the statistics referred to demonstrate that the sentence in this case falls at the high end of the range of sentences imposed for the offence. But the question remains whether it falls within the range of the permissible exercise of the sentencing judge's discretion.

1. In my opinion, having regard to the circumstances outlined earlier, it does.

1. As well, the applicant's submissions on this ground concentrate on the small quantity of drugs involved and the small monetary return from the offence. Those facts may be accepted. On the other hand, the charge related to an activity undertaken for profit and on a number of occasions as part of an organised enterprise. I am quite unable to discern any unreasonableness or injustice in the sentence.

1. In my opinion, the applicant has not shown that the sentence imposed was "unreasonable or plainly unjust" nor that any lesser sentence is warranted in law: s6(3) Criminal Appeal Act 1912.

1. This ground ought also be rejected.

Orders

1. I propose these orders:

(1) Leave to appeal granted.

(2) Appeal dismissed.

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Decision last updated: 04 February 2011