Hill v R

[2012] NSWCCA 265

Court of Criminal Appeal

New South Wales

Case Title:	Hill v R
Medium Neutral Citation:	[2012] NSWCCA 265
Hearing Date(s):	5 December 2012
Decision Date:	11 December 2012
Before:	Simpson J at [1]; Harrison J at [2]; Adamson J at [30]
Decision:	1. Grant leave to appeal. 2. Allow the appeal. 3. Quash the sentence imposed by Sorby DCJ on 18 December 2011. 4. In lieu of the sentence imposed by Sorby DCJ sentence the applicant to a non-parole period of 2 years commencing on 7 September 2011 and expiring on 6 September 2013 and a balance of term of 1 year commencing on 7 September 2013 and expiring on 6 September 2014.
Catchwords:	CRIMINAL LAW - sentence - appeal against severity of sentence - whether sentence manifestly excessive
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985
Cases Cited:	House v The King [1936] HCA 40; (1936) 55 CLR 499 Markarian v The Queen (2005) 215 ALR 213; (2000) 228 CLR 357 Mulato v R [2006] NSWCCA 282 R v Dinsdale [2000] HCA 54; (2000) 202 CLR 321 R v KB [2011] NSWCCA 190 R v Koloamatangi [2011] NSWCCA 288
Category:	Principal judgment
Parties:	Kayne Hill (Applicant) Crown (Respondent)
Representation
- Counsel:	Counsel: L Christoff (Applicant) H Wilson (Respondent)
- Solicitors:	Solicitors: Aston Legal Solicitors (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2010/407855
Decision Under Appeal
- Before:	Sorby DCJ
- Date of Decision:	18 November 2011
- Court File Number(s):	2010/407855

JUDGMENT

1. SIMPSON J: I agree with Harrison J.

2. HARRISON J: The applicant seeks leave to appeal from a sentence imposed by his Honour Sorby DCJ in the District Court at Sydney on 18 November 2011. The applicant pleaded guilty to one count of supplying not less than a large commercial quantity of a prohibited drug contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. The maximum penalty for that offence is life imprisonment or a fine of $550,000. The standard non-parole period is 15 years.

3. His Honour sentenced the applicant to an overall term of imprisonment of 6 years comprised of a non-parole period of 4 years to date from 7 September 2011 and to expire on 6 September 2015 with a balance of term of 2 years commencing on 7 September 2015 and expiring on 6 September 2017. His Honour found special circumstances. His Honour gave the applicant a 25 percent discount for his early pleas of guilty. In addition he gave the applicant a combined discount of 25 percent for past and future assistance to authorities.

4. The applicant complains that the sentence is manifestly excessive. He articulates two anterior reasons for that complaint. The first is that the starting point of the sentence, which arithmetically must have been 12 years, was so high that it effectively neutralised or eradicated the benefit of the discounts that were otherwise applied in his favour. The second is that the head sentence of 6 years does not properly or adequately reflect the combined effect of applicant's subjective circumstances and the objective seriousness of the offence.

Background facts

1. His Honour outlined the facts in his sentencing remarks. The following extracts are presently relevant:

   "By way of background and overview, in May 2010 New South Wales Police commenced a controlled operation investigating the criminal offending of a co-accused Paul Robinson. As part of the operation an authorised participant, a previous associate of Robinson, was granted an authorisation to buy prohibited drugs from Robinson. The investigation also authorised the use of telephone intercepts and listening devices, all approved by lawful warrants.

   In late October 2010 the authorised participant made contact with the co-accused Robinson. On 26 October 2010 the authorised participant telephoned Robinson to introduce "Jacob", a lawfully authorised undercover police officer, with the intention that Jacob would now purchase prohibited drugs directly from Robinson...

   ...

   It is alleged that the head of the supply chain was a co-accused Afif Mikael who would hand the drugs to a co-accused Paul Wienand who would then deliver them to the offender's place of business where Robinson would collect them and supply them to Jacob.

   The charge of a large commercial supply is a rolled up charge consisting of the supply of prohibited drugs on 4 November 2010, 11 November 2010, 18 November 2010 and 2 December 2010.

   ...

   Each offence took place at the accused's premises. I note in the supply of 4 November 2010 there was 249 grams of methylamphetamine with a purity of 3.5 percent and the offender received no payment for this supply.

   In the second supply on 11 November 2010 the amount of drug was 248.6 grams of methylamphetamine with 3 percent purity and again the offender received no payment for his role.

   In the supply on 18 November 2010, in which the offender did receive financial reward, there was a total of 487 grams of methylamphetamine with a 4 percent purity.

   For the last supply, an actual supply did not actually take place, the amount of drugs was 864 grams with a purity that ranged from 3.5 percent to 7 percent purity.

   ...

   The offender participated in an ERISP on 8 December 2010. He admitted knowing Robinson and Wienand and stated that he was introduced to them separately and that they would come to the workshop separately with Wienand dropping off the drugs and Robinson collecting them. He claims this exchange took place in the back of the workshop while he remained in the front and he did not receive any money from the transactions. He admits that he knew what was going on and essentially introduced the two co-accused and allowed them to use his premises while standing guard to ensure that no one else walked in during the exchange.

   ...

   The offender admitted that during the supply on 8 November 2010 he passed on the information from Wienand to Robinson indicating that the price would drop if Robinson would purchase the drugs in larger amounts. The offender admits that he was a "go-between" in negotiations and on price but again said that he did not profit financially in any way for his assistance. Telephone intercepts indicated that he received $1,000 for his participation in this particular supply."

2. His Honour also referred to the fact that the applicant had either been, or at least felt that he had been, threatened by Robinson and Wienand. The extent if at all to which his Honour took account of this material as evidence of some form of coercion is unclear. It seems on balance likely that his Honour did take that material into account.

Subjective factors

1. The applicant was born in New Zealand in 1974 and is now 38 years of age. He migrated to Australia when he was 20 years of age but still keeps in close contact with his family in New Zealand who continue to support him. He completed Year 12 at school and later started a dental technician course, which he did not complete. He took up employment as a cosmetic prosthetist, developing a dilating pupil mechanism, which has since been patented. He has been involved extensively in wildlife rescue and surf lifesaving. He operated his own boatbuilding and repair business, which contracted with the Australian Federal Police and the New South Wales Police as well as overseas customers for the repair of inflatables and other craft.

2. The applicant did not give evidence at the sentencing proceedings so that any expression of remorse was made only indirectly. His Honour accepted that the applicant did express remorse to Dr Watson-Munro to whom he had been referred for a pre-sentence report, and he told the Probation and Parole Service that he took "full responsibility for his actions". The applicant's mother gave evidence on his behalf that the applicant had told her that he felt that he had "let everyone down". His Honour expressly found that the applicant was remorseful.

3. The applicant has no criminal record of any kind. He is in a long-term relationship. His Honour accepted that the applicant was a person of prior good character. He found that he had good prospects of rehabilitation and good insight into his offending. His Honour expressly referred to the opinion of Dr Watson-Munro stated in his report as follows:

   "Despite the serious nature of the charge, your client impressed as an intelligent and essentially pro-social individual. In this regard, I believe that with appropriate treatment, which needs to be facilitated in a team environment, with a Medical Practitioner to monitor his medication, in addition to utilising the services of a Clinical Psychologist, his prognosis from a forensic perspective is very positive."

4. His Honour later referred to what he described as "the very strong subjective factors in the [applicant's] favour". His Honour said that he had "considered all relevant factors in mitigation and aggravation under s 21A of the Crimes (Sentencing Procedure) Act1999" although he did not specify what these were in that context. No complaint arises from that fact.

The applicant's role

1. His Honour described the applicant's role in the enterprise as follows:

   "The offender was not the principal in the organisation but a "go-between" between the seller and the buyer whom he did not know. He was also involved in negotiation of the price prior to the sale. His "take" from the offences was not large. He received $1,000 from the third transaction and nothing for the first two. He was to receive $1,500 from the last transaction, which did not occur. He did allow his premises to be used during the operation and he was present when the transactions took place. The amount of the drug was significant, if relatively low purity at mainly three to four percent.

   These factors, when weighed together with the generally unsophisticated nature of the offender's role in the operation, place the offence below, but not far below the mid range of objective seriousness for such offences."

2. None of these matters is controversial.

Applicant's contentions

1. The applicant contended that his Honour erred in adopting a sentence of 12 years as the starting point before the application of the discounts for assistance and the early plea of guilty. The applicant contended that the sentence was manifestly excessive having regard to a comparison between the objective seriousness of the offence and the admittedly strong subjective features favouring him. His Honour described the offence revealed by the agreed facts in these terms:

   "These facts in the Crown brief reveal an objectively serious offence. The amount of the drug and its quality were capable of doing a considerable amount of harm in the community if the tablets had found their way into the general population. General deterrence in particular is of importance in this sentencing exercise to send a message to the community that such illegal activities will be met with condign punishment."

2. It is implicit in the applicant's submissions in this Court that he does not accept his Honour's characterisation of the offences for which the applicant was sentenced as "objectively serious". He does accept that the offence of supplying prohibited drugs is one of inherent seriousness. However, the applicant submitted that his Honour also accepted that his involvement was as a "go-between" and a "lookout". The applicant contended that his level of offending in all of the circumstances of this case ought to be characterised as falling at the lower end of the scale, and represented a level of involvement substantially less than what was often considered as a typical form of offending conduct for this particular offence.

3. Moreover, the applicant contended in effect that his Honour failed to give any proper consideration to the strength of the applicant's subjective circumstances. In summary, the applicant contended that the sentence imposed was discordant with those factors considered in the light of his arguably limited or confined involvement in the criminal conduct charged.

Crown submissions

1. The Crown supported the appropriateness of the sentence with very detailed and helpful written submissions. The Crown contended in particular that his Honour's combined assessment of the objective seriousness of the offence and the applicant's subjective features was clearly open to him on the evidence. The characterisation of the objective seriousness of the crime is a matter "classically within the role of the sentencing judge" and this Court should be "very slow" to interfere with that characterisation: Mulato v R [2006] NSWCCA 282 at [37]. Only where error is established in the proper application of principle can intervention be justified: R v KB [2011] NSWCCA 190 at [53]; R v Koloamatangi [2011] NSWCCA 288. The Crown emphasised the fact that even though this Court might have imposed a different sentence at first instance that is not a relevant consideration.

2. The Crown submitted that the applicant had failed to demonstrate that his Honour had made any relevant error in assessing the objective gravity of the applicant's crime, or in considering his subjective case. The Crown did go as far as to concede, in my view quite properly, that his Honour's sentence might be regarded as "stern". The Crown hastened to emphasise, however, that it did not justify intervention by this Court.

3. In relation to the complaint that the sentence was manifestly excessive, the Crown emphasised that the applicant must demonstrate that the sentence was "unreasonable or plainly unjust": R v Dinsdale[2000] HCA 54; (2000) 202 CLR 321 at 325. That had to be established in a context where there is no single "correct" sentence, and where judges at first instance are to be allowed as much flexibility in sentencing as is consonant with the application of proper principle and consistency of approach. The fact that this Court might have exercised its discretion differently is not sufficient to enliven s 6(3) of the Criminal Appeal Act1912 or a conclusion that some other, lesser, sentence is warranted in law: Markarian v The Queen (2005) 215 ALR 213; (2000) 228 CLR 357 at [26] - [28].

4. The Crown contended that there was nothing advanced by the applicant in this case to establish that the sentence imposed by his Honour was unreasonable or unjust beyond whatever may be suggested by the length of the sentence itself. In that context the Crown stressed that the question for this Court in those circumstances was whether the sentence can be shown to be outside the range of a sound sentencing discretion. In determining whether a sentence is manifestly excessive it is necessary to examine the sentence from at least the perspective of the maximum penalty prescribed for the offence.

5. The Crown submitted that it had not been demonstrated that the sentence imposed upon the applicant was either unreasonable or plainly unjust, and that therefore the sentence could not be characterised as manifestly excessive.

Consideration

1. A comparison between the subjective factors clearly or arguably favouring the applicant with those establishing the true nature of the offence charged is instructive.

2. Each of the four supplies either took place or was intended to take place at the applicant's own premises. These were factory premises from which the applicant conducted his boat business and where he originally met those with whom he ultimately became criminally involved. Although the applicant received nothing for the first two supplies with which he was concerned, he was either paid or expected that he would be paid for the others. The amount that he actually received was limited to $1,000. The total amount of the drug concerned was 1750.73 grams. This was a not insignificant quantity of methylamphetamine with a potential to cause widespread harm. The applicant was a go-between, introducing the buyer to the seller as well as having some involvement in the negotiations for the price. His involvement was however generally unsophisticated. The applicant was physically present at the time of each completed transaction. Search warrants executed at his home did not locate anything connected or associated with the supply of drugs.

3. On the other hand, the applicant only became involved in the supply activities following threats made to him by Robinson and Wienand. The applicant feared that both men were capable of harming both him and his family. He had a strongly supportive family. Since coming to Australia from New Zealand the applicant had always been in employment, much of it of direct benefit to the community. The applicant had been a regular user of small amounts of cannabis prior to his arrest but not since then. The applicant had also been highly traumatised by his arrest and subsequent remand in custody as a result of which he had suffered a significant psychological reaction. The applicant was genuinely remorseful. He was of good character with no prior convictions of any type. He assisted authorities and promised to continue to do so. His prospects of rehabilitation were correspondingly very good.

4. There is in my view much to be said for the contention that the sentence imposed upon the applicant is incongruously at odds with the strong subjective case. Nowhere is this more apparent than from the terms of the applicant's own letter to his Honour for sentencing purposes. That letter chronicles a frightening and rapid descent into an unpredictable involvement with his co-accused, wholly foreign to the life he had lived to that point. He put the safety of himself and his family at risk for no good purpose and for little tangible or other reward or benefit.

5. The applicant was described as having had a prodigious work ethic. The pressures upon him to meet customer demands would appear to a considerable extent to have left him exhausted and vulnerable to influences that he would otherwise have been well armed to resist. Dr Watson-Munro described him in these terms:

   "Your client describes himself as a naïve and gullible individual which was confirmed through separate discussion with his partner. This is of some relevance in terms of the commencement of his involvement in these matters and him becoming involved I suspect initially at a level of considerable emotional vulnerability, with him finding himself in a situation which he was unable to manage."

6. At one point since his incarceration the applicant was placed on suicide watch as his clinical condition rapidly deteriorated.

7. I consider this applicant to have a very strong subjective case, both with respect to his position before the offences were committed and since he has been charged. It seems to me that his Honour has failed in his analysis to incorporate some matters particularly affecting the applicant, and has thereby erroneously given inadequate and correspondingly improper consideration to his subjective case. This has in my view resulted in a failure to take into account some material consideration in the way explained in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504-5.

8. The sentence imposed by his Honour is manifestly excessive having regard to all of the circumstances of this case. I consider that some lesser sentence is warranted in law and should be passed. The discounts for the early guilty plea and assistance to authorities should be applied in the same way as in his Honour's original sentence. His Honour also found special circumstances having regard to the applicant's demonstrated need for continued treatment and monitoring. The sentence that I propose precisely reaffirms his Honour's variation of the s 44(2) ratio.

9. I would make the following orders:

   1. Grant leave to appeal.

   2. Allow the appeal.

   3. Quash the sentence imposed by Sorby DCJ on 18 December 2011.

   4. In lieu of the sentence imposed by Sorby DCJ sentence the applicant to a non-parole period of 2 years commencing on 7 September 2011 and expiring on 6 September 2013 and a balance of term of 1 year commencing on 7 September 2013 and expiring on 6 September 2014.

1. ADAMSON J: I agree with Harrison J.

   **********