Herod v The Queen - [2010] NSWCCA 17

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
HEROD v R [2010] NSWCCA 17

FILE NUMBER(S):
2008/10497

HEARING DATE(S):
9 December 2009

JUDGMENT DATE:
22 February 2010

PARTIES:
Wayne Robert HEROD
Regina

JUDGMENT OF:
James J Hulme J Hidden J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2008/10497

LOWER COURT JUDICIAL OFFICER:
King DCJ

COUNSEL:
Applicant: Mr I McLachlan
Respondent: Ms M Cinque

SOLICITORS:
Applicant: S O'Connor
Respondent: S Kavanagh

CATCHWORDS:

LEGISLATION CITED:

CASES CITED:

TEXTS CITED:

DECISION:
Leave to appeal granted.
Appeal dismissed.

JUDGMENT:

- 1 -

IN THE COURT OF
CRIMINAL APPEAL

2008/10497
JAMES J
RS HULME J
HIDDEN J
Monday, 22 February 2010

Wayne Robert HEROD v REGINA

Judgment

JAMES J: I agree with RS Hulme J that, for the reasons given by his Honour, leave to appeal should be granted but the appeal against sentence should be dismissed.
RS HULME J: On 16 December 2008, the above named Applicant for leave to appeal was sentenced by King DCJ in respect of three offences. They and the sentences imposed were:-
1.Knowingly take part, between 14 June 2007 and 6 February 2008 in the supply of a prohibited drug, namely methylamphetamine – imprisonment for 4 years including a non-parole period of 2 years both periods commencing on 14 May 2008.
2.Knowingly deal, between 14 June 2007 and 6 February 2008, with the proceeds of crime – imprisonment for a fixed term of 18 months commencing on 14 May 2008.
3.Possess more then 3 unregistered firearms – imprisonment for a fixed term of 6 months commencing on 14 February 2008.
The offences arise pursuant to, respectively, Section 25(1) of the Drug Misuse and Trafficking Act 1985, Section 193B(1) of the Crimes Act and Section 51D(1) of the Firearms Act. The maximum penalties prescribed in respect of the offences are, respectively, imprisonment for 15 years, imprisonment for 20 years and imprisonment for 10 years.
In sentencing the Applicant in respect of count 1, his Honour took into account an offence of possess ammunition without permit or authority and an offence of not keeping a firearm safely. I refer to his Honour’s remarks as to the significance he gave these matters below.
The Applicant’s arrest occurred in consequence of information the police gained while targeting people selling drugs in Tamworth and Kootingal, a village some 5kms north. On 6 February 2008, police executed a search warrant at premises occupied by the Applicant and his de-facto wife, Sharon Mitchell. There they found, inter alia:-
(i)Between the toilet and vanity unit in the ensuite bathroom a small fridge on the top of which were some small resealable plastic bags, a knife and scales.
(ii)In the fridge a pasty substance which amount to 26.9 grams of methylamphetamine of a purity of 4.5%.
(iii)Elsewhere a small plastic tub containing .18 grams of methylamphetamine powder.
(iv)In the vanity unit, two further sets of small electronic scales and a bottle of liquid containing 28.14 grams of methylamphetamine of less than 1% purity.
(v)Elsewhere in the premises a large number of empty resealable plastic bags some of which contained small amounts of methylamphetamine totalling 1.93 grams.
(vi)In the house approximately $24,000 in cash, most of it in bags under the mattress in the bedroom that the Applicant and Ms Mitchell shared.
(vii)In a vehicle, in Ms Mitchell’s handbag and on the Applicant, further sums of money totalling something in excess of a further $2,000.
In a shed on the premises to which, according to the Applicant, only he and Ms Mitchell had keys, a Sterling .22 calibre rifle with the bolt in it and an open packet of .22 bullets or cartridges beside it, a Lithgow .22 rifle with scope, a dismantled .22 stock and barrel in a brown rifle case, a Gecado brand air rifle, loaded and cocked, and other point 22 calibre ammunition and air rifle pellets.
None of the firearms were registered. The Applicant had previously held a firearms licence but it had been revoked.
It might be mentioned also that some of the money found consisted of marked notes that had been provided by an under cover police officer in the course of purchasing drugs from Ms Mitchell.
The sole ground of appeal relied on in relation to the sentences imposed on both counts 1 and 2 is that “the sentencing judge erred in overstating the role of the Applicant in the ongoing supply of methylamphetamine”.
The circumstances of the Applicant’s offending were set out in a “Facts on Sentence” document which was tendered by consent. It revealed an extensive pattern of dealing by Ms Mitchell with one Gerrard Michell including telephone calls, regular attendance by Michell at the premises occupied by the Applicant and Ms Mitchell and the supply of drugs by Ms Mitchell to Michell. Michell’s activity was as the middleman between Ms Mitchell and street level users.
On at least one occasion Michell spoke to the Applicant who agreed that Michell could drop down to see Sharon and although the statement of facts contains little detail of the Applicant’s involvement, it does contain the statements that he “was an active participant in a joint criminal enterprise” and Sharon Mitchell was “from time to time assisted by her de facto partner Herod”.
During the course of testimony during the sentencing proceedings, the Applicant maintained that he didn’t actually sell any drugs but agreed there were times when he answered the telephone and handed it over to Ms Mitchell. He acknowledged that on occasion persons calling on the phone would indicate they were ringing about drugs. He agreed also that he had told the author of a Probation and Parole report that people coming to and going from the property in relation to drug dealing were older people and that he was aware the business conducted by Ms Mitchell was a fairly substantial one.
The Applicant asserted he had no idea how much Ms Mitchell was making but said that in addition to her own use she was supplying him with about 3 to 4 grams, or $400 to $600 worth, of methylamphetamine a day.
According to the Applicant his use of methylamphetamine commenced many years earlier when he was a truck driver and used it in order to keep awake and keep going. He continued to use it after he stopped driving trucks. He has only two previous convictions, one of which may be ignored but the other, on 28 January 2004 was for three counts of possessing a prohibited drug which in fact was amphetamine of some type.
Other matters to which reference should be made are that the Applicant pleaded guilty at an early stage and his Honour allowed a 25% discount for the utility of the plea and indicated he regarded the Applicant has entitled to some further, unquantified, discount in respect of remorse. He found the Applicant had good prospects of rehabilitation.
In support of the appeal, attention was directed to remarks made by his Honour:-
“… although he was not the active day to day dealer with the amphetamines, making arrangements and supplying them to people, it was however being done effectively as part of a joint enterprise, he supplying the premises from which it could be done more safely that if Ms Mitchell was doing it on her own elsewhere. That is, he was providing premises to assist her in that supply, he was a party to the supply knowing exactly what was the overall scheme, even if he did not deal individually with people that she supplied to. He was also benefiting to a significant extent from the ongoing supply. As I said, approximately $3,500 per week to his own usage. In those circumstances there may be a marginal distinction between his role and the role of Ms Mitchell, however any distinction in terms of sentencing or parity of sentencing is to some extent counterweighted by the second charge on the form one of not keeping the firearms safety, for which there is a specified maximum term of imprisonment of twelve months and/or twenty penalty units.”
Later his Honour remarked that it would be inappropriate to increase the sentence on the first count because of the first matter on the Form 1 and that the second matter on that Form had been taken into account in a “minor way” only.
It was submitted that the sentencing Judge erred in finding that there was only a “marginal distinction” between the role of the Applicant and Ms Mitchell who, it was pointed out, sourced the drugs, effected the deals with others, supplied the drugs, had a mobile telephone registered in a false name and dealt with unhappy users. It was further submitted that the difference in role required lesser sentences than those imposed on Ms Mitchell and that lesser role meant that it could not be said the Applicant benefited equally from the proceeds of the offending.
Ms Mitchell was sentenced by King DCJ on the same day as the Applicant was. One charge against her was the same as the second charge against the Applicant although the second charge was of supplying rather than of being knowingly involved. It carried the same maximum penalty. King DCJ imposed the same sentences as he imposed on the Applicant.
In its response the Crown drew the Court’s attention to remarks of this Court in Tyler v R; Chalmers v R [2007] NSWCCA 247 where the Court made clear that while identification of the role of a participant in a conspiracy is relevant, the fact of agreement and the subject of the agreement are not to be put aside in favour of concentration upon the physical act or acts committed by a particular offender. The Crown submitted that similar considerations apply in the case of a joint enterprise, a proposition with which I agree. The “Facts on Sentence” described the Applicant as “an active participant in a joint criminal enterprise”. His assistance was important and his Honour was well entitled to adopt the view that both offenders should receive the same punishment for the offences the subject of the first and second counts..
Counsel for the Appellant also drew attention to the Judicial Commission statistics, pointing out that most offenders sentenced to imprisonment for offences of being knowingly concerned in the supply of less than a commercial quantity of methylamphetamine received a sentence of between 2½ to 3½ years with 80% of such sentences involving non-parole periods of between 1 and 2 years. In that the statistics for non-consecutive terms for all offenders sentenced between July 2001 and June 2008 show that 35% of offenders received full terms of under 2½ years, 15% received sentences of 2½ years, 30% received sentences of 3 years and 10% received sentences of 3½ years, and the figures for non-parole periods showed 30% received terms of 1 year, 20% received terms of 1½ years and 30% received terms of 2 years the submission is factually correct. However the sample is small involving only 20 offenders and the maximum sentence imposed was for a full term of 6 years. The statistics provide no details of the circumstances of the offending reflected in them and when one adds to this the fact that the maximum of 6 years is vastly less than the statutory maximum of 15 years, one can have no confidence that the statistics are representative of the offending against s25(i) of the Drug (Misuse and Trafficking) Act that may occur. I find the reference to the statistics unhelpful except as an indication that the sentence of 4 years including a non-parole period of 2 years imposed on the first count is within the range of sentences imposed for other offences of the same nature.
What I have said is enough to dismiss the Application for leave to appeal. However, I would go further. The penalty of 15 years gaol that Parliament has provided when the quantity alleged to have been supplied is less than 250 grams indicates that the offence is one regarded as serious. No little experience in the criminal courts is needed to demonstrate the danger that amphetamines can do to some persons who use them, and by those persons, to the public generally. There is much to be said for the view that the sentences imposed on the Applicant and Ms Mitchell go nowhere near far enough to be an active discouragement to those who are minded to indulge week after week in the commercial dealing that the Applicant and Ms Mitchell did and which was profitable enough to feed the Applicant’s habit to the tune of about 25 grams or $3,500 worth a week, to feed Ms Mitchell’s own habit and enable savings of some $25,000 to be accumulated.
I propose that this Court grant leave to appeal but dismiss the appeal.
HIDDEN J: I agree with RS Hulme J that this appeal should be dismissed for the reasons his Honour has given. However, I cannot endorse his Honour’s observation in the penultimate paragraph of his judgment that the sentences were inadequate to reflect general deterrence. Obviously, that issue was not argued in the application and this is not the occasion to examine the pattern of sentence for offences of this kind.

ORDERS
Leave to appeal granted.
Appeal dismissed.

**********

LAST UPDATED:
24 February 2010