Hanna v R

[2015] NSWCCA 326

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Hanna v R [2015] NSWCCA 326
Hearing dates:	2 December 2015
Decision date:	18 December 2015
Before:	Leeming JA at [1] Johnson J at [2] R A Hulme J at [126]
Decision:	1. The tender of the additional evidence relied upon by the Applicant in support of Ground 2 is rejected. 2. Leave to appeal is granted. 3. The appeal is dismissed.
Catchwords:	CRIMINAL LAW – sentencing – Applicant pleaded guilty to a number of drug supply offences and sentenced to aggregate term of imprisonment for five years with a non-parole period of three years – Applicant suffers from significant physical disabilities and depression – whether sentencing Judge failed to sufficiently take into account Applicant’s physical disabilities or depression – open to sentencing Judge to take into account Applicant’s physical and mental conditions in the way that he did – whether sentencing process miscarried as a result of an incorrect understanding of the extent and future physical effects of the Applicant’s physical condition at time of sentence – additional evidence sought to be admitted on appeal – whether miscarriage of justice occasioned by absence of additional evidence at first instance – tender of additional evidence rejected – whether sentence manifestly excessive – sentence not unreasonable or plainly unjust – appeal dismissed
Legislation Cited:	Criminal Appeal Act 1912 Drug Misuse and Trafficking Act 1985
Cases Cited:	Achurch v R (No. 2) [2013] NSWCCA 117; 84 NSWLR 328 Achurch v The Queen [2014] HCA 10; 253 CLR 141 Bland v R [2014] NSWCCA 82; 241 A Crim R 51 Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 Grant v R [2014] NSWCCA 67 Inglesias v R [2006] NSWCCA 261 Khoury v R [2011] NSWCCA 118; 209 A Crim R 509 Markarian v The Queen [2005] HCA 25; 228 CLR 357 R v Achurch [2011] NSWCCA 186; 216 A Crim R 152 R v CBK [2002] NSWCCA 457; 135 A Crim R 260 R v GWM [2012] NSWCCA 240 Turkmani v R [2014] NSWCCA 186
Category:	Principal judgment
Parties:	Raymond Hanna (Applicant) Regina (Respondent)
Representation:	Counsel: Mr MC Ramage QC (Applicant) Mr H Baker (Respondent)   Solicitors: Malouf Criminal Lawyers (Respondent) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2012/300041
Decision under appeal	Court or tribunal: Sydney District Court Date of Decision: 21 March 2014 Before: King SC DCJ File Number(s): 2012/300041

Judgment

1. LEEMING JA: I agree with Johnson J.

2. JOHNSON J: The Applicant, Raymond Hanna, seeks leave to appeal with respect to an aggregate sentence of imprisonment imposed by his Honour Judge King SC in the Sydney District Court on 21 March 2014 for drug supply offences.

Offences and Sentences

3. An aggregate sentence of imprisonment was imposed comprising a non-parole period of three years commencing on 21 March 2014 and expiring on 20 March 2017, with a balance of term of two years commencing on 21 March 2017 and expiring on 20 March 2019.

4. The following table sets out the Applicant’s offences, the maximum penalties and the indicative sentences for each offence:

Offence	Maximum Penalty	Indicative Sentence
Count 1 - Between 26 June 2012 and 11 July 2012, supplying a prohibited drug (cocaine) on an ongoing basis contrary to s.25A(1) Drug Misuse and Trafficking Act 1985 (“DMT Act”) Taken into account on a Form 1 - on 26 September 2012, possession of a prohibited drug (1.16 grams of cocaine) contrary to s.10(1) DMT Act	Imprisonment for 20 years No standard non-parole period (“SNPP”)	Two years’ imprisonment
Count 2 - On 26 September 2012, supplying a prohibited drug (13.97 grams of cocaine) contrary to s.25(1) DMT Act	Imprisonment for 15 years No SNPP	Three years’ imprisonment
Count 3 - Between 27 July 2012 and 22 September 2012, supplying a prohibited drug (50.5 grams of cocaine) contrary to s.25(1) DMT Act	Imprisonment for 15 years No SNPP	Four years’ imprisonment

5. The Applicant had entered pleas of guilty to the charges in the Local Court, and the Court allowed a rolled-up discount in the order of 30% for the Applicant’s early pleas and his past assistance to authorities.

Grounds of Appeal

6. By Notice of Application for Leave to Appeal filed on 15 September 2015, the Applicant identified the following grounds of appeal:

1. Ground 1 - the sentencing Judge failed to sufficiently take into account the effects of the Applicant’s physical disabilities.

2. Ground 2 - the sentencing process miscarried as it proceeded on an erroneous basis, in that the extent of and the future physical effects caused by the disease [from which] the Applicant suffered was not fully appreciated at the time sentence was passed.

3. Ground 3 - the sentencing Judge erred in failing to take into account in mitigation the depression the Applicant was suffering at the time of the commission of the offences.

4. Ground 4 - the sentence imposed in all the circumstances was manifestly excessive.

Facts of Offences

7. An Agreed Statement of Facts was tendered at the sentencing hearing and the following is drawn from that document.

8. During April 2012, a police strike force was formed to investigate the supply of cocaine throughout the Sydney CBD and surrounding suburbs. In late May 2012, authority was granted to conduct a controlled operation in relation to purchasing cocaine.

9. The Applicant was identified as a street-level supplier.

10. On three separate occasions between 26 June 2012 and 11 July 2012, the Applicant (then 52 years old) sold 0.5 grams of cocaine to a police undercover operative (Count 1).

11. During July and August 2012, the Applicant’s phone calls were recorded. On 16 separate days, the Applicant discussed his supply of 101 separate deals of cocaine. This amounted to 50.5 grams of cocaine for a total price of $25,250.00 (Count 3).

12. The Applicant was arrested on 26 September 2012. He was found in possession of 13.97 grams of cocaine (Count 2 - deemed supply) and two resealable bags containing a further 1.16 grams of cocaine (Form 1 on Count 1).

13. Given the issues raised in this Court concerning the Applicant’s health and submissions made on that topic, it is appropriate to set out in some detail, the range and duration of activities of the Applicant in the course of committing the offences.

Count 1 - Supplying Cocaine on an Ongoing Basis Between 26 June 2012 and 11 July 2012

14. On 26 June 2012, a police undercover operative met with the Applicant at Pyrmont. The Applicant attended the meeting, driving a Toyota Corolla sedan. The operative spoke with the Applicant through the driver’s window and negotiated the purchase of cocaine for $300.00. The Applicant supplied the operative with a resealable plastic bag which contained 0.47 grams of cocaine with a purity of 37% (first supply).

15. After the transaction, the Applicant drove away in the vehicle, travelling from Pyrmont to Redfern, and then to Surry Hills where he was pulled over in relation to a minor traffic infringement. The Applicant produced identification in his name.

16. At about 5.00 pm on 3 July 2012, the Applicant and the undercover operative were monitored at Trouton Place, Pyrmont. The Applicant drove to this meeting in a different vehicle, a Toyota Camry sedan. The two persons negotiated the supply of cocaine for $250.00. The Applicant supplied the operative with a resealable plastic bag containing 0.51 grams of cocaine with a purity of 22% (second supply).

17. At about 11.00 am on 11 July 2012, the operative sent a text message to the Applicant and, at about 5.00 pm that day, the operative met the Applicant again at Trouton Place, Pyrmont. The Applicant attended in the Toyota Camry vehicle. The operative entered the vehicle and negotiated the purchase of cocaine from the Applicant for $250.00. Once again, the Applicant supplied the operative with a resealable plastic bag containing 0.51 grams of cocaine with a purity of 33.5% (third supply).

18. Following the Applicant’s arrest, on 26 September 2012, he participated in an electronically recorded interview in which he claimed to have no recollection of supplying cocaine to the undercover operative on the three occasions referred to above, but stated “You’ve obviously got the phone number, you’ve obviously got my voice, so I can’t, I can’t sit here and deny it”. Police then asked the Applicant whether supplying drugs three times in a 30-day period was something that he would normally do. He replied “Not really … Just maybe for a quick buck, maybe, that’s it”.

Count 3 - Supplying Cocaine Between 27 July 2012 and 22 September 2012 (Actual Supply)

19. During investigations, police identified the Applicant supplying prohibited drugs on a regular basis to an extensive customer base, with the assistance of another male referred to as “S”.

20. Between 27 July 2012 and 22 September 2012, the Applicant communicated with “S” and supplied him with cocaine on some 16 occasions. The units of supply involved single bags each weighing about 0.5 grams of cocaine.

21. Consideration of extracts from recorded conversations, between the Applicant and “S”, assist an understanding of the frequency of the Applicant’s drug supply activities and the areas in which he carried on that business.

22. On 27 July 2012, the Applicant, in conversation with “S”, referred to having sold “one in the city” (0.5 grams). At 6.45 pm that day, the Applicant called “S” and indicated that he had sold “another three” (1.5 grams). At 10.38 pm that night, the Applicant again called “S” and told him that he had “done three” that night (1.5 grams).

23. At 5.17 pm on 3 August 2012, “S” and the Applicant spoke by telephone. With respect to the previous evening, the Applicant said that he had been “fucken busy” and that he “did 15” (7.5 grams of cocaine).

24. On the evening of 4 August 2012, during another telephone conversation, the Applicant said that he had done “nine” that night (4.5 grams of cocaine).

25. On the evening of 11 August 2012, the Applicant told “S” that things were “dead” and that “I’ve done one all day” (0.5 grams of cocaine).

26. At 9.15 am on 13 August 2012, during a conversation with “S”, the Applicant said “You did five and I did two. We did seven the whole day”.

27. On the evening of 15 August 2012, the Applicant called an unknown female to arrange a meeting. The Applicant said “I’ll come, I haven’t got many. What are you after?” and the female replied “Um, is three OK?”, with the Applicant stating “Yeah I’ve got enough, yeah”. About 30 minutes later, the Applicant sent a text message to the unknown female stating “Here”, indicating that he had arrived for the purpose of supplying three deals of cocaine to her (1.5 grams).

28. On 19 August 2012, the Applicant called “S”. In response to an enquiry from “S” as to whether he had been busy, the Applicant replied “Nah I probably did Pyrmont then one in the Cross. Two.” (one gram of cocaine).

29. On the evening of 25 August 2012, the Applicant called an unidentified female and arranged a meeting. They discussed quantity and price. After a number of telephone conversations, the Applicant rang the female to say he was there “in the car park”. The Applicant met with the woman for the purpose of supplying her with four deals of cocaine (two grams).

30. On 4 September 2012, police intercepted a series of messages between the Applicant and an unidentified person. The person indicated that “two” were wanted and the Applicant replied “20 mins”. Thereafter, the Applicant sent a text message to the person indicating that he had arrived with the two deals (one gram).

31. On the evening of 7 September 2012, “S” called the Applicant and they discussed how business had been that day. “S” said that he had “done six” and the Applicant replied “I’ve done two” (one gram of cocaine).

32. On 14 September 2012, “S” called the Applicant and they discussed business. The Applicant said “I did South Coogee and Maroubra when I was there. And I sent you Woolloomooloo and Rose Bay”. “S” said “Yeah, I done those two”. Later that evening, the Applicant called “S” and the Applicant said “I just did one at Chippendale myself”.

33. On the evening of 15 September 2012, an unidentified female rang the Applicant and they discussed a meeting. The woman said “I’m nearly at The Oaks. I just have to find out numbers … I’m nearly there, it’s going to be at least three” with the Applicant replying “Yeah, no worries. Don’t talk on the phone”. Soon after, the Applicant met with the woman and supplied three deals of cocaine (1.5 grams).

34. Soon after on the evening of 15 September 2012, the Applicant called “S” and they discussed a job. The Applicant said “I just did one in Crown Street” which involved “five” (2.5 grams).

35. Later that evening, the Applicant called an unidentified male to arrange a meeting. The male said he wanted “two”. Some time later, the Applicant rang the male and met him soon after to supply two deals of cocaine (one gram).

36. That evening, the Applicant received a text message from an unidentified female who was in Manly. She said “Would like three wines if pos? Let me know”. Soon after the Applicant rang the female and confirmed a location to meet with the Applicant, supplying three deals of cocaine (1.5 grams) at the meeting.

37. On 20 September 2012, “S” called the Applicant and they discussed the previous night’s work. The Applicant said “Last night, two to 11 for 40 bucks. I mean who does it? Who would do it?”. In the following discussion, the Applicant said that he had supplied “the two usuals” at “Harlequin and Holt Street”.

38. On the evening of 21 September 2012, the Applicant called “S” and told him “I did 16 last night” (eight grams of cocaine).

39. Later on 21 September 2012, the Applicant called “S” and the Applicant said “I’ve done one in North Sydney now. Miller Street, I’m going to do it … I’ve done three over this side so far. No actually I’ve done four today. St Leonards, Chatswood, Northbridge and now this one”. The Applicant had supplied four deals of cocaine (two grams) in this way.

40. On the morning of 22 September 2012, the Applicant called “S” and they discussed their work that night. The Applicant said “I have 14 to give you” and the Applicant said soon after “Don’t go into the city without me because I have to give you some work”.

41. Later that afternoon, “S” called the Applicant and they arranged to meet. The Applicant said “Meet me at North Parra McDonalds”. The meeting was for the purpose of supplying 14 deals of cocaine (seven grams).

Count 2 - Supplying Cocaine on 26 September 2012 (Deemed Supply)

42. At about 12.55 pm on 26 September 2012, the Applicant parked another motor vehicle (not the Toyota Corolla or Toyota Camry referred to earlier) outside premises at St Leonards, and began walking into his house. He was approached by police and was placed under arrest and cautioned.

43. Police conducted a search of the Applicant and his vehicle. A large clear plastic bag containing a white round ball substance, wrapped in tissue paper, was located inside the Applicant’s jacket. Upon analysis, it was found to contain 13.97 grams of cocaine at 47% purity.

44. During the search, the Applicant took two mobile phones from his jacket and handed them to the police. Later that afternoon, police returned to the Applicant’s premises to execute a search warrant. The police seized four mobile phones and two small resealable plastic bags containing white powder, which were located in a kitchen drawer.

45. During an electronically recorded interview, the Applicant admitted that the drugs in question were located in his pocket and that it was cocaine. He said he had paid $2,500.00 for the drugs and that he “was gunna use it. Just keep it for myself”.

Form 1 Offence Taken Into Account on Count 1 - Possession of Cocaine on 26 September 2012

46. During the search of the Applicant, police seized two clear resealable plastic bags containing white powder that were located inside his wallet. Upon analysis, the substance was confirmed as being 1.16 grams of cocaine. During the electronically recorded interview, the Applicant admitted that the drugs were his and said they were “Just for me. Just party, go out”.

The Applicant’s Subjective Circumstances

47. The Applicant was 52 years old at the time of the offences and 54 years old at the time of sentence.

48. The Applicant had a prior criminal history. On 17 January 1985, he was fined $200.00 at the Lidcombe Local Court for goods in custody. On 28 January 2000, he was placed on a two-year recognisance at the Downing Centre Local Court for making a false statement to obtain money.

49. On 3 July 2009, he was sentenced at the Sydney District Court for offences of conspiracy to defraud the Commonwealth Bank of Australia (in 2003-2004), money laundering in the amount of $494,350.00 (in 2004) and money laundering in the amount of $325,015.54 (in 2004). He was sentenced to suspended terms of imprisonment for a total period of two years for these offences.

50. Before the sentencing court were:

1. a presentence report dated 26 September 2013;

2. reports dated 6 May 2013 and 9 September 2013 from Dr Alastair Corbett, neurologist, concerning his treatment of the Applicant, since 1994, for autosomal recessive Becker-Type myotonia congenita, a condition which results in a combination of muscle stiffness and muscle weakness;

3. a report dated 14 March 2014 from Anita Duffy, psychologist;

4. various statements of service, references and other documents concerning the Applicant.

51. The Applicant did not give evidence at the sentencing proceedings.

52. Given the issues raised on appeal, reference should be made to Dr Corbett’s material. In his report of 9 September 2013, Dr Corbett said:

“Mr Hanna becomes weak after resting with his strength and stiffness improving to a varying extent with activity. This has resulted in him being unsteady on his feet and suffering frequent falls. Mr Hanna has experienced weakness of most muscle groups including his face arms and legs. This makes it difficult for him to walk reliably and difficult to use public transport. His physical incapacity has resulted in frustration and depression. He has always struggled to work and had difficulty with public transport or walking in crowded areas. He has sought psychological assistance on a number of occasions as early as 1999 for assistance with gambling and depression. These problems arise from his chronic medical condition.”

53. Dr Corbett concluded this report:

“He is currently mildly to moderately depressed and is treated with Pristiq 50mg daily to help control this. It is my opinion that he would struggle to manage a custodial sentence due to his muscle weakness, which is very variable, and his muscle stiffness which both result in unsteadiness of gait, frequent falls and discomfort.”

54. In the report of 6 May 2013, Dr Corbett said that the Applicant’s muscle weakness and stiffness had “become progressively more severe over the last 10 years”.

Some Findings of the Sentencing Judge

55. After recounting the facts of the offences, the sentencing Judge observed that it was clear that the Applicant “was substantially involved in the distribution of cocaine, and that he operated in conjunction with another offender ‘S’, directing him to work at least on one occasion, and also supplying ‘S’ with deals for ‘S’ to supply” (ROS11). His Honour found further that the Applicant was “in effect a supplier of ‘half weights’, being 0.5 gram deals of cocaine, on a regular basis from 26 June 2012 through to at least 22 September 2012, and on 26 September 2012 was then located with a bulk supply of 13.97 grams before it might be distributed” (ROS11-12).

56. The sentencing Judge found that the Applicant had been operating “‘on call’ over a substantial area of the Sydney metropolitan area and by providing, in effect, a delivery service” (ROS12). The Court found that “each of the relevant offences in the context of his overall conduct must be regarded as a serious offence” (ROS12).

55. His Honour recounted the material before the Court concerning the Applicant’s subjective circumstances, including medical and psychological reports, references and other documents and the Applicant’s criminal history (ROS12ff).

56. Given the grounds of appeal, it is appropriate to set out that part of the remarks on sentence which addressed the Applicant’s medical condition (ROS16-17):

“His physical disability arises as a result of his suffering from Becker's Myotonia Congenita, which is a rare inherited muscle disorder which results in generalised muscle weakness and stiffness, particularly when he rises in the morning, but improves with activity during the day. He was first diagnosed with that condition in 1994. The weakness and stiffness of his muscles has progressively become more severe over the last 10 years. He is said to have marked leg weakness and unsteadiness, and will fall with no warning. Uneven surfaces may cause him to fall, and hence he is prone to injury. Even simple bumps may destabilise him sufficiently to cause him to fall. The muscle stiffness also involves his face, the muscles of speech and swallowing, as well as his arms and legs, and results in an intermittent inability to speak intelligibly or swallow.

He is treated with Pristiq, 50 milligrams daily. I note that his treating neurologist, a Dr Alastair Corbett, being a senior specialist with the neurology department at Concord Repatriation Hospital, expresses his concern in respect of how the offender might cope with a period of imprisonment. Otherwise, it is noted in the reports from Dr Corbett as well as the report from Anita Duffy, psychologist, that the offender as a result of his physical disability now of a long standing nature, has suffered from depression for a considerable period of time. Anita Duffy indicates that at the time she tested him, he had severe depression. In respect of his ability to move around, she stated, ‘his self consciousness, however, of being perceived as not normal, has resulted in his refusal to use a walking stick, which could aid his balance and stability’. I note today that he has appeared in court making use of a walking stick.”

59. After considering material bearing upon the Applicant’s use of prohibited substances, his Honour returned to the question of the Applicant’s medical condition and disability (ROS18):

“I accept that the offender is subject to a significant disability as a result of the particular health problem that he suffers from. However, he clearly has no problem in relation to driving motor vehicles in relation to what is said to be his current employment [delivering prestige vehicles], and also as can be seen from his conduct in driving around a significant portion of the Sydney metropolitan area at night to conduct his trade.”

60. His Honour moved to issues of remorse and assistance to authorities (ROS18-19):

“The offender has not given evidence on sentence, which may have assisted the Court in relation to the assessment of any possible remorse or contrition. The facts indicate that when arrested by the police, he was not completely frank with them and he appears to have endeavoured to deceive them to the extent that he thought he might have been able to.

The Court has been provided with Exhibit 2, being a confidential letter relating to assistance. Because of the nature of that letter, I will not refer in detail to its contents, however, in my view the contents indicate that while he has purported to assist the authorities, he has provided little more, if any, than what they were already aware of in respect of his offending, or of any other matter that might be regarded as of interest. What has been provided by him is in effect referred to as being ‘intelligence’. That is no doubt of some assistance to the authorities.

Of serious concern however is that there are a number of matters referred to in the report that indicate that to a considerable extent, the offender endeavoured to use the assistance as a way to attempt to convince the police that he had a significantly lesser role than that which he actually did.

Significantly, despite the offender's considerable contacts within the industry of distributing prohibited drugs, it is of note that the offender has provided no information that has led to the arrest of any other person. Nonetheless, even ‘intelligence’ is of some assistance and I propose to allow a total combined discount for the plea of guilty and assistance in the order of 30%.”

61. The sentencing Judge referred to concerns about the Applicant managing in custody (ROS19-20):

“Although there are remarks in his treating neurologist's report and the psychologist's report as to his fears, should he be sentenced to a full term of imprisonment, and accepting that it would appear likely that his condition will continue to deteriorate with age, there is no specific information before me, from any person who would have appropriate knowledge that the term of imprisonment would be significantly harder for him than any other individual, or that Corrective Services would not be able to cope with his particular problems.

I accept that his physical condition has no doubt had a significant effect in relation to depression, which he has suffered from for a lengthy period of time, and I accept that that has a relationship to his ever having embarked on the use, late in life, of cocaine. I do not however accept that it provides any excuse, or mitigates the offences with which he has been charged.

His conduct involves significant breaches of the law over a significant period in respect of offences that are difficult to detect, easy to commit and that there is a significant call to take account of both specific and general deterrence.”

62. His Honour made findings concerning the Applicant’s use of prohibited drugs and the impact of that factor on sentence (ROS20-21):

“I am prepared to accept that the offender was a user and that part of his offending conduct was to enable himself to indulge his own use of prohibited drugs, but of note is that he was dealing in cocaine even though in individual small quantities on a consistent, regular basis, that the intercepted calls relevant to the offence of supply of a prohibited drug (50.5 grams) relate to an assessed total sale of $25,250 within a period of approximately two months. That is a substantial sum of money. I do not accept that his dealing was limited to being only to support his own use.

I will accept, since the offender has no previous history of offending in relation to prohibited drugs, and considering his expressions of remorse, as previously indicated, that he is indeed remorseful and contrite in respect of these offences.

I cannot find that there is a good prospect of rehabilitation, particularly considering the period of his offending, and the nature of it, and the fact that the only source of information as to the offender having ceased using cocaine is self-reporting. In that respect, there must be a question mark over the veracity of the offender, considering the content of the letter of assistance, that is, that he at least appears to have a tendency to attempt to help his position by false representations.

Given his age and his lack of previous history in relation to prohibited drugs I find that there is a reasonable prospect of rehabilitation and certainly a low prospect of re-offending.”

63. His Honour found special circumstances, which included the Applicant’s medical condition (ROS23):

“You are sentenced to a total term of imprisonment of five years. I find special circumstances, particularly since this is really your first period of imprisonment, and noting that I accept that your medical condition may mean that any term of imprisonment will weigh more heavily on you than on a prisoner who does not suffer from your medical condition. I will find special circumstances and adjust the statutory relationship between the non-parole period and the balance of term in your favour.”

Ground 1 - Claim that the Sentencing Judge Failed to Sufficiently Take Into Account the Effects of the Applicant’s Physical Disabilities

Ground 3 - Claim that the Sentencing Judge Erred in Failing to Take Into Account in Mitigation the Depression Suffered by the Applicant at the Time of Commission of the Offences

64. It is convenient to consider these grounds of appeal together.

The Applicant’s Submissions

65. In support of Ground 1, Mr Ramage QC, for the Applicant, drew attention to the evidence before the sentencing Judge concerning the Applicant’s muscular condition, first diagnosed in the Applicant in 1979. He sought to contrast the finding of the sentencing Judge with respect to special circumstances, where his Honour accepted that imprisonment would weigh more heavily on the Applicant because of his medical condition (see [63] above) with his Honour’s observation that there was no specific information before him that the term of imprisonment would be significantly harder for the Applicant, or that custodial authorities would not be able to cope with his particular problems (see [61] above).

66. It was submitted, as well, that there was no mention made by the sentencing Judge of the Applicant’s fears of prison and the risk of attack arising from his physical disabilities.

67. With respect to Ground 3, it was noted that the sentencing Judge had referred to Ms Duffy’s reference to depression, but it was submitted that his Honour had failed to take into account applicable principles where an offender with a mental disorder is to be sentenced for an offence.

68. It was submitted that the sentencing Judge was in error in:

1. failing to make any allowance, by way of mitigation of penalty, for the Applicant’s depression at the time of the commission of the offences; and

2. failing to make any allowance, in mitigation, to the weight to be given to either general or specific deterrence or both.

The Crown Submissions

69. With respect to Ground 1, the Crown submitted that the extent to which the Applicant’s physical disability would cause him hardship in custody was raised and properly considered by the sentencing Judge on the material before him.

70. The Crown noted that his Honour had regard to the reports of Dr Corbett and Ms Duffy. Having done so, it was submitted that his Honour had regard to this subjective feature in finding special circumstances, no doubt to avoid double counting of these features.

71. The Crown submitted that it was clearly open to his Honour to take the Applicant’s ongoing physical problems into account in the way that he did, and that the Applicant had not demonstrated error in this respect.

72. With respect to Ground 3, the Crown submitted that his Honour accepted that the Applicant was suffering from depression. The sentencing Judge had found that there was a relationship between his depression and his use of cocaine.

73. The Crown submitted, however, that the Applicant was being sentenced for his substantial involvement in distribution of cocaine by way of an “on call” supply activity providing a delivery service over a large geographical area, with his offending motivated, in part at least, for financial gain.

74. Given the nature of the offending, the Crown submitted that it was well open to the sentencing Judge to find that the Applicant’s depression did not reduce his moral culpability and that matters such as general and specific deterrence, retribution and denunciation still required attention.

75. The Crown submitted that no error, as claimed in Ground 3, had been demonstrated.

Decision

76. Ground 1 asserts error in failing to sufficiently take a matter into account on sentence. This Court said in Bland v R [2014] NSWCCA 82; 241 A Crim R 51 at 66 [112]-[113]:

“112   The failure of a sentencing Judge to attribute sufficient weight to an issue at sentence will not generally be a material error. Questions of weight in the exercise of a discretion are matters for the first-instance Judge, and the circumstances in which matters of weight will justify intervention by an appellate court are narrowly confined: R v Baker [2000] NSWCCA 85 at [11]; Yang v R [2012] NSWCCA 49 at [25].

113   A ground of appeal asserting that a Judge attributed insufficient weight to an issue has the inherent problem of implicitly acknowledging that some weight has been placed on the issue: DF v R [2012] NSWCCA 171 at [77].”

77. The sentencing Judge had regard to the letters from Dr Corbett, his treating neurologist, as well as the report of Ms Duffy, a consultant psychologist.

78. In relation to the Applicant’s physical disability, the sentencing Judge took into account:

1. the nature of the condition and its symptoms as described by Dr Corbett (ROS16-17);

2. the fact that the Applicant is subject to a significant disability as a result of this condition (ROS18);

3. the fact that Dr Corbett expressed concerns in respect of how the Applicant might cope with a period of punishment (ROS17);

4. the fact that, as a result of the condition, the Applicant suffered depression which Ms Duffy has assessed as severe (ROS17);

5. the fact that the Applicant’s significant disability did not appear to have impeded his driving or his drug supply activities (ROS18);

6. Dr Corbett’s opinion that his condition would continue to deteriorate with age (ROS20);

7. the fact that the Applicant has expressed fears should he be imprisoned - however, there was no specific information before the Court from any person, with appropriate knowledge, that the term of imprisonment would be significantly harder for him or that Corrective Services would not be able to cope with his problems (ROS19-20).

79. Given the nature of the Applicant’s condition, and the material before the sentencing court, it was open to his Honour to take the Applicant’s ongoing physical problems into account in the way in which he did. I do not detect any inconsistency between his Honour’s conclusions as complained of by the Applicant at [65] above.

80. His Honour found that the Applicant had a “significant disability”, but that did not require the Court to find, as well, that a term of imprisonment would be “significantly harder” on the Applicant than another individual (see [61] above).

81. It was open to the sentencing Judge to approach the Applicant’s physical disabilities, by way of a finding of special circumstances, with the imposition of a non-parole period which constituted 60% of the total term. The finding in this respect was that imprisonment would “weigh more heavily” on the Applicant because of his condition (see [63] above). In adopting this approach, his Honour was conscious to avoid inappropriate double counting of subjective factors in passing sentence: R v GWM [2012] NSWCCA 240 at [102]-[107].

82. I am not persuaded that the Applicant has demonstrated error as alleged in Ground 1.

83. In approaching Ground 3, reference should be made to the principles summarised by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 at 43 [177]:

“Where an offender is suffering from a mental illness, intellectual handicap or other mental problems the courts have developed principles to be applied when sentencing: see, eg, R v Engert (1995) 84 A Crim R 67; R v Tsiarias [1996] 1 VR 398 at 400; R v Fahda [1999] NSWCCA 267 at [40] – [48]; Lauritsen v R [2000] WASCA 203; (2000) 114 A Crim R 333 at [43] – [51]; R v Harb [2001] NSWCCA 249 at [35] – [45]; R v Israil [2002] NSWCCA 255; R v Hemsley [2004] NSWCCA 228 at [33] – [36]; R v Verdins [2007] VSCA 102 at [32]; Courtney v R [2007] NSWCCA 195 at [14]-[18]; and R v Henry [2007] NSWCCA 90 at [28]. They can be summarised in the following manner:

●    Where the state of a person’s mental health contributes to the commission of the offence in a material way, the offender’s moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [254]; Miller v R [1999] WASCA 66 at [23]; R v Jiminez [1999] WASCA 7 at [23], [25]; Tsiaras at 400; Lauritsen at [51]; Israil at [23]; R v Pearson [2004] NSWCCA 129 at [43]; Henry [2007] NSWCCA 90 at [28].

●    It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed: Engert at 71; R v Wright (1997) 93 A Crim R 48 at 50 – 51; Israil at [22]; Pearson at [42]; Henry at [28].

●    It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced: Tsiaris at 400; Jiminez at [25]; Israil at [26]; Henry at [28].

●    It may reduce or eliminate the significance of specific deterrence: Courtney at [14]; Tsiaras at 400; Israil at [25]; JW at [192].

●    Conversely, it may be that because of a person’s mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence: Israil at [24]; Henry at [28]. Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public: R v Lawrence [2005] NSWCCA 91 per Spigelman CJ at [23] - [24].”

84. There was evidence before the sentencing Judge that the Applicant suffered from depression, and had done so for some time. His Honour accepted that there was a link between the Applicant’s depression and his use of cocaine.

85. However, his Honour did not find any nexus between the Applicant’s depression and his drug supply offences. These offences revealed a man in his early 50s engaged in persistent and protracted drug supply and operating a delivery business, in various parts of the Sydney metropolitan area, at different times throughout the day and night. There was no impediment to the Applicant driving motor vehicles for the purpose of this business, and communicating with customers (and his co-offender, “S”) on a regular basis.

86. It is understandable, in these circumstances, that his Honour did not find that the Applicant’s moral culpability ought be reduced because of his depression.

87. Once again, given the nature of the Applicant’s serious and persistent offending conduct, no proper basis was demonstrated in this case for reducing the weight to be given to general deterrence and specific deterrence because of his depression.

88. The Applicant has not demonstrated error on the part of the sentencing Judge in the manner complained of in Ground 3. I would reject this ground of appeal.

Ground 2 - Claim that the Sentencing Process Miscarried as a Result of an Incorrect Understanding of the Future Physical Effects of the Applicant’s Disability Arising from Fresh or New Evidence

89. I approach this ground of appeal upon the basis that the Applicant has failed to demonstrate error on the part of the sentencing Judge, in the ways contended for in Grounds 1 and 3. The findings made by the sentencing Judge, in the areas caught by those grounds, were open to his Honour.

90. It is appropriate then to move to Ground 2, which contends that fresh or new evidence (which is available since sentence was passed) indicates that the sentencing Judge imposed sentence on an incomplete understanding of the Applicant’s deteriorating physical condition.

Material Tendered by the Applicant and Objected to by the Crown

91. The Applicant tenders the following material in this Court:

1. an affidavit of Ronny Malouf filed 15 September 2015 - this affidavit annexes various Justice Health and Corrective Services records concerning the Applicant’s imprisonment, which records some falls by the Applicant and a recommendation in May 2015 that he be housed in a “one-out cell” due to his susceptibility to falls, and further medical reports including a report dated 29 July 2015 of Dr Corbett (to which further reference will be made below);

1. a further affidavit of Ronny Malouf filed 27 November 2015 which states that the Applicant is housed at the Kirkconnell Correctional Centre, where he has experienced another fall and where there is limited medical assistance available;

2. an affidavit of the Applicant filed 15 September 2015 in which he recounts falls he had experienced and his fears concerning further falls;

3. an affidavit of Christopher Patino filed 15 September 2015 concerning falls by the Applicant which Mr Patino (a prisoner) had witnessed;

4. an affidavit of Fabian Michael filed 15 September 2015 concerning falls by the Applicant which Mr Michael (a prisoner) had witnessed;

5. an affidavit of Annette Zeaiter filed 15 September 2015 - Ms Zeaiter is the former wife of the Applicant (they separated in 2000) and she states that she is prepared to take care of the Applicant upon his release from custody.

92. In the event that the Court admitted the evidence referred to in the preceding paragraph, the Crown sought to read an affidavit of Jennifer Ramsey filed 25 November 2015, which annexed material concerning the capacity of Justice Health to manage the Applicant’s disability in custody. Other annexed material stated that the Applicant had not applied to be transferred to a metropolitan facility from Kirkconnell Correctional Centre, as he had sought a further reduction in security rating for the purpose of participating in the day/weekend leave program.

93. The principal material relied upon by the Applicant as fresh or new evidence, which was not available at the time of the sentencing hearing, is the report of Dr Corbett of 29 July 2015. Dr Corbett stated that the Applicant’s disease has “progressed more rapidly than I would have anticipated between my review on 23.5.2013 and Mr Hanna’s most recent review 25.6.2015” and that “during that time his leg weakness has progressed rapidly resulting in increasing vulnerability to falling and injuries”. Dr Corbett stated that it is “probable that his disease will continue to progress at a similar rate making him increasingly vulnerable to injury and requiring increasing assistance”. He considered that the Applicant “cannot be adequately accommodated and cared for by a Correctional Services and that a period in prison will have a long term adverse effect on his state of health and physical function”.

Submissions of Parties

94. Mr Ramage QC submitted that this evidence, and in particular the most recent report of Dr Corbett, should be received by this Court as fresh or new evidence. He submitted that the material could also be received by the Court if error was established, and the Court was moving to resentence for the purpose of s.6(3) Criminal Appeal Act 1912. This possible use of the material does not arise at this point, as no error has been established in accordance with Grounds 1 and 3.

95. Mr Ramage QC submitted that the material before this Court demonstrates that the Applicant’s medical condition, and its ongoing increasing progression, was not fully known or fully appreciated at the time sentence was passed. Reliance was placed upon the decision of this Court in Khoury v R [2011] NSWCCA 118; 209 A Crim R 509 at 528-531 [104]-[121].

96. The Crown objected to this evidence, submitting that it does not fall within the principles identified in Khoury v R. The Crown submitted that all of the unfortunate medical conditions and physical limitations that have affected the Applicant were in contemplation at the time of the sentencing hearing: Turkmani v R [2014] NSWCCA 186 at [89].

97. Even if the Court determined to admit the material, the Crown submitted that the Court would not be satisfied that it renders the Applicant’s period of incarceration more onerous than was appreciated when he was sentenced, so as to justify any reduction of his non-parole period: Inglesias v R [2006] NSWCCA 261 at [13];Turkmani v R at [91].

Decision

98. It is recognised in Khoury v R at 528 [105] that the general rule that a person is bound by the way that his or her case was presented at first instance is not absolute, particularly in criminal cases, having regard to the need to accommodate the interests of justice. However, there are limits to the extent to which the Court may legitimately accept additional evidence: Khoury v R at 528 [105]; Grant v R [2014] NSWCCA 67 at [55].

99. This Court has emphasised that caution must be exercised in the admission of evidence of this type. Regard should be had, amongst other things, to the potential significance of the evidence to have affected the outcome at first instance: Khoury v R at 531 [121]; Bland v R at 63 [83].

100. In Bland v R, this Court observed at 63 [86]:

“In R v Fordham, Howie AJ (Hunt CJ at CL and Smart AJ agreeing) stated at 377-378 that, even if the evidence is fresh, it ought not be received by the Court unless it affects the outcome of the case. Generally, it must be shown that the sentencing of the offender, in the absence of the fresh evidence, resulted in a miscarriage of justice. The miscarriage of justice principle in R v Fordham was applied in Norrie v R [2008] NSWCCA 185 at [22].”

101. It was not suggested that this was an exceptional case to which the general rule did not apply. Accordingly, to make good Ground 2, it is necessary for the Applicant to demonstrate that a miscarriage of justice on sentence arose from the absence of the additional evidence.

102. There was substantial evidence before the sentencing Judge concerning the Applicant’s condition, including the expectation that his condition would deteriorate and he would experience falls in custody. The sentencing Judge took these aspects into account on sentence (see [58]-[59], [61], [63] above).

103. I have had regard to the totality of the proffered additional evidence. The high point of this evidence is Dr Corbett’s opinion that the progression of the disease in the Applicant has accelerated. It was expected, at the time of the sentencing hearing, that there would be deterioration.

104. I am not persuaded that the tendered additional evidence should be admitted by this Court. It seems to me that there is no substantial difference between Dr Corbett’s earlier opinion and his latest opinion. The evidence concerning what has happened in custody does not suggest any marked additional deterioration to that which was anticipated at the time of sentence.

105. Nor does the evidence suggest that Justice Health and the Commissioner of Corrective Services is not able to manage the Applicant’s condition in custody, in particular if the Applicant seeks to be housed in facilities considered appropriate by correctional authorities.

106. Even if the threshold for the admission of this material had been met, I would not be satisfied in this case that the material renders the Applicant’s period of incarceration more onerous than was appreciated when he was sentenced so as to justify any reduction of his non-parole period: Inglesias v R at [13]; Turkmani v R at [91].

107. It is necessary to keep in mind the objective seriousness of the Applicant’s offending conduct. The Applicant committed these serious drug supply offences knowing of his medical condition and with a likely expectation that, if convicted, he would be sentenced to a term of imprisonment.

108. Where an offender with health problems engages in serious and protracted criminality, knowing that the consequence of detection is imprisonment, then this consideration is also relevant to the weight to be given to the offender’s medical condition on sentence: R v Achurch [2011] NSWCCA 186; 216 A Crim R 152 at 172 [136]. This statement in R v Achurch is not affected by the later decisions in Achurch v R (No. 2) [2013] NSWCCA 117; 84 NSWLR 328 and Achurch v The Queen [2014] HCA 10; 253 CLR 141.

109. The Applicant has not demonstrated that a miscarriage of justice on sentence arose from the absence of the additional evidence. I would reject Ground 2.

Ground 4 - Claim that the Sentence was Manifestly Excessive

110. The remaining ground of appeal contends that the sentence imposed upon the Applicant was manifestly excessive. Having regard to the conclusions reached with respect to the other grounds, this ground may be dealt with shortly.

The Applicant’s Submissions

111. It was submitted for the Applicant that the total sentence imposed was unduly harsh and severe, and was manifestly excessive when full and proper consideration was given to a number of factors:

1. the Applicant was aged 54 years and it was his first time in custody;

2. his medical condition at the time of the commission of the offences and thereafter;

3. his depression at the time of the commission of the offences and thereafter;

4. his plea of guilty was an early one and, with assistance, a combined discount of 30% was allowed;

5. the Applicant was a user, and part of his offending conduct was to enable himself to indulge his own use of prohibited drugs;

6. there was a finding that the Applicant was remorseful and contrite in respect of the offences;

7. his Honour found there was a reasonable prospect of rehabilitation and a low prospect of reoffending;

8. the Applicant had a very limited criminal record, with no prior offences involving drugs.

The Crown Submissions

112. The Crown submitted that the Applicant had committed serious drug supply offences. It was submitted that this was a serious example of supplying cocaine on an ongoing basis.

113. Taking into account the objective seriousness, and all relevant aspects of the Applicant’s subjective case, together with the statutory guideposts on sentence (maximum penalties of 20 years and 15 years), it was submitted that an aggregate sentence of five years’ imprisonment with a non-parole period of three years could not be regarded as manifestly excessive.

Decision

114. To make good this ground of appeal, it is necessary for the Applicant to establish that the sentence is unreasonable or plainly unjust: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 371 [25]. It is not simply a matter for this Court to substitute its own opinion for that of the sentencing Judge, because it might have exercised discretion in a different manner: Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at 339 [57].

115. The Applicant committed drug supply offences of considerable objective gravity. He was involved heavily in the distribution of cocaine.

116. He operated a cocaine distribution business in conjunction with another offender, whom he directed to work and also supplied with deals for further supply. The Applicant was a street-level supplier on a regular basis for a period of three months and, upon arrest, was found with a bulk supply of 13.97 grams of cocaine before it was distributed. He conducted an “on call” delivery service over a substantial part of the Sydney metropolitan area. Although the Applicant was a drug user, and part of the offending was to enable him to continue that use, there was a substantial financial gain made by the Applicant.

117. With respect to the s.25A offence (Count 1), it is appropriate to bear in mind the observations of Wood CJ at CL (Dowd J agreeing) in R v CBK [2002] NSWCCA 457; 135 A Crim R 260 at 269 [56]-[57]:

“56    … Section 25A of the Drugs Misuse and Trafficking Act 1985 was introduced in order to provide a strong deterrent to those who may be tempted to engage in an ongoing trade in drugs. It needs to be clearly understood that s 25A offences are considerably more serious than s 25 offences, as is indicated by the increase in the maximum available penalty.

57    An offender charged with a s 25A offence cannot rely upon an argument that the act of supply was an isolated event. Nor can [he] expect to receive a sentence of the kind which may be appropriate for a single offence of supply. Significant sentences must be imposed in such cases in order [to] give effect to the clear legislative intention to discourage the ongoing trade in drugs, which depends entirely upon the availability of a person such as the present applicant.”

118. As it happens, the Applicant was to be sentenced, as well, for a most serious s.25(1) offence, involving multiple supplies of cocaine over a two-month period (Count 3). At the time of his arrest, he possessed a bulk quantity of cocaine for further supply (Count 2).

119. The sentencing Judge had proper regard to the Applicant’s subjective circumstances. Although the Applicant had no prior convictions for drug supply, his criminal record included serious offences, in particular those for which he was sentenced in 2009.

120. The Applicant was a man of mature years who chose to become involved in serious and protracted drug supply. Despite his health difficulties, he managed to operate quite effectively in that venture, driving to a variety of places to service his customers.

121. The Applicant’s medical condition was a relevant factor on sentence. However, it was important that this persuasive subjective consideration not overshadow the objective gravity of the Applicant’s offences: R v Achurch at 171 [128].

122. Having regard to the objective gravity of the offences, and the Applicant’s subjective circumstances, the aggregate sentence imposed at first instance lay within the range of sentences reasonably available in the circumstances. I am not persuaded that the aggregate sentence imposed upon the Applicant was manifestly excessive.

123. I would reject Ground 4.

Conclusion

124. The Applicant has failed to make good any of his grounds of appeal.

125. I propose the following orders:

1. Reject the tender of the additional evidence relied upon by the Applicant in support of Ground 2;

2. leave to appeal granted;

3. appeal dismissed.

126. R A HULME J: I agree with Johnson J.

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Decision last updated: 05 February 2016