Hudson v Regina

[2009] NSWCCA 59

New South Wales
Court of Criminal Appeal

CITATION:	Hudson v Regina [2009] NSWCCA 59
HEARING DATE(S):	5 March, 2009
JUDGMENT DATE:	11 March 2009
JUDGMENT OF:	Beazley JA at 1; Blanch J at 2; Howie J at 31
DECISION:	Leave to appeal granted. Appeal dismissed.
CATCHWORDS:	Criminal law - manufacture of prohibited drugs - parity of sentence
LEGISLATION CITED:	Drug Misuse and Trafficking Act 1985, s24(1)
CATEGORY:	Principal judgment
CASES CITED:	Postiglione v The Queen (1996-1997) 189 CLR 295
PARTIES:	Thomas William Hudson (Applicant) Regina (Respondent)
FILE NUMBER(S):	CCA 2006/14728
COUNSEL:	M Ramage QC (Applicant) J Dwyer (Respondent)
SOLICITORS:	Jeffreys and Associates (Applicant) S Kavanagh, Solicitor for Public Prosecutions (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	06/11/0371
LOWER COURT JUDICIAL OFFICER:	Finnane QC DCJ
LOWER COURT DATE OF DECISION:	9 February, 2007
LOWER COURT MEDIUM NEUTRAL CITATION:	Regina v Thomas William Hudson

IN THE COURT OF
CRIMINAL APPEAL

CCA 2006/14728

BEAZLEY JA
BLANCH J
HOWIE J

11 March, 2009

Thomas William HUDSON v Regina

JUDGMENT

1 BEAZLEY JA: I agree with Blanch J.

2 BLANCH J: This is an application for leave to appeal against the severity of sentences imposed on the applicant in the District Court on 9 February, 2007. After a trial which commenced on 11 September and concluded on 26 October, 2006 the applicant was convicted as follows:

1. of an offence contrary to s24(1) of the Drug Misuse and Trafficking Act, 1985 that on or about 7 September, 2004 at Coopernook in the State of New South Wales did attempt to manufacture a prohibited drug, namely ephedrine;

2. not guilty of an offence contrary to s24(1) of the Drug Misuse and Trafficking Act, 1985 that between 7 September, 2004 and 30 September, 2004 at Whiporie in the State of New South Wales to manufacture a prohibited drug, namely methylamphetamine, but guilty of an attempt to do so;

3. of an offence contrary to s24(1) of the Drug Misuse and Trafficking Act, 1985 that between 1 September, 2003 and 5 August, 2005 at Kanwal and elsewhere in the State of New South Wales did conspire with John Henry Griffiths and others to manufacture a prohibited drug, namely ephedrine.

3 Each of the offences carries a maximum penalty of 15 years imprisonment and on 9 February, 2007 the applicant was sentenced to a non-parole period of 3 years with a balance of term of 2 years on each of the offences to be served concurrently. The sentences are to date from 17 August, 2006.

4 In summarising the facts of the case the sentencing judge said that during the relevant years the co-offender Griffiths lived in Dulwich Hill. Bangs and Campbell lived in northern New South Wales and the applicant lived near Wyong. Griffiths knew how to manufacture illegal drugs and the role of the other offenders was to assist him. The applicant provided his house as a place for the chemicals to be sent, he allowed the name of a company to be placed on his letterbox to give the appearance that a chemical company had its headquarters there, he received chemicals sent there in a false name and he allowed Griffiths to use his fax machine and computer to communicate with chemical companies and chemical suppliers. Griffiths had a recipe for the manufacture of ephedrine and how to manufacture methylamphetamine from the ephedrine. That recipe was found in the applicant’s premises.

5 During the course of the trial Campbell and Bangs both gave evidence for the prosecution. Griffiths, on the other hand, gave evidence for the defence supporting the claim of the applicant that they were really interested in making Viagra or diet suppressants for sale in China. Griffiths maintained his innocence in spite of the fact he had earlier entered a plea of guilty to two charges of conspiracy to manufacture ephedrine and he had admitted his guilt in respect of a third matter which was taken into account on a Form 1. This matter was the conspiracy to manufacture amphetamine with Campbell, Bangs, McCosker and the applicant, the subject of the third count.

6 On 7 and 8 September the four men involved were at Coopernook where Griffiths attempted to manufacture ephedrine. Campbell and Bangs gave some unskilled assistance. The applicant’s part was to drive Griffiths to the property, being prepared to help him in the manufacture of the ephedrine. The attempt to make ephedrine failed. This relates to the first count.

7 The second count relates to the applicant going to Campbell’s home at Whiporie. Campbell obtained some glassware and he and the applicant attempted to manufacture methylamphetamine using the recipe provided by Griffiths. The attempt again was unsuccessful.

8 Thereafter until the arrest of Griffiths on 5 August, 2005 the applicant, Griffiths, Campbell and Bangs all participated in attempts to acquire chemicals for the further manufacture of ephedrine.

9 The grounds of appeal argued are a lack of parity with the sentences of Griffiths and Campbell and that the sentence was unduly harsh and severe.

10 Griffiths appeared for sentence before Judge Tupman. He and another co-offender Dodd had earlier been committed for trial and a voir dire was conducted and a second voir dire was arranged to commence on 19 September, 2005. On 21 September, 2005 Griffiths and Dodd entered pleas of guilty to a charge of conspiracy to produce ephedrine between 13 May, 2002 and 9 May, 2003. Griffiths also entered a plea of guilty to a charge that between 10 May, 2004 and 5 August, 2005 at Coopernook and other places he conspired with Thomas Hudson and others to manufacture ephedrine. He also acknowledged his guilt of a charge of knowingly taking part in the manufacture of ephedrine at Coopernook on 31 December, 2004. He had been committed for sentence on the second charge and he adhered to his plea. He was sentenced by Judge Tupman to:

1.a non-parole period of 18 months with a balance of term of 12 months from 5 August, 2005;

2. a non-parole period of 2 years from 5 August, 2006 with a balance of term of 12 months. His total effective sentence was a non-parole period of 3 years with an overall sentence of 4 years.

11 In passing that sentence, her Honour noted she had reduced the first sentence by 15% from an intended 3 years because of the plea and in respect of the second offence, she had intended to impose a sentence of 4 years but reduced it to 3 years giving a discount of 25% for the plea of guilty. Her intention was therefore to impose a head sentence of 5 years in the absence of the pleas of guilty.

12 Campbell appeared for sentence before Judge Black QC at Lismore District Court on 17 August, 2005. He was committed for sentence and entered a plea of guilty to a charge that he knowingly took part in the manufacture of methylamphetamine. He asked that two matters be taken into account on a Form 1. The judge did that but noted that the possession of the rifle charge on the Form 1 had nothing to do with the drug offence. On 17 August, 2005 Campbell was sentenced to a non-parole period of 12 months with a balance of term of 15 months leading to an overall sentence of 2 years and 3 months. The judge noted he would have imposed an overall sentence of 3 years without the plea of guilty.

13 It is in relation to those sentences passed on Griffiths and Campbell that the question of parity is agitated on behalf of the applicant.

The Law

14 In Postiglione v The Queen (1996-1997) 189 CLR 295 at 301 in the joint judgment of Dawson and Gaudron JJ it was said:

“However, the parity principle, as identified and expounded in Lowe v The Queen , recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to ‘a justifiable sense of grievance’.”

15 At page 309 McHugh J said:

“If a judge wrongly fails to give effect to the parity principle, an appellate court will intervene to correct what is an error in sentencing principle. In Lowe v The Queen , Gibbs CJ, with whom Wilson J agreed, said that an appellate court should intervene where ‘the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done’. Mason J stated that an appellate court is entitled to intervene when there is a manifest discrepancy such as to engender a justifiable sense of grievance. Dawson J, with whom Wilson J also agreed, was of the view that ‘[t]he difference between the sentences must be manifestly excessive and call for the intervention of an appellate court in the interests of justice’.”

16 At page 323 Gummow J said:

“The principle for which Lowe is authority appears to be that the Court of Criminal Appeal intervenes where the difference between the two sentences is manifestly excessive and such as to engender a justifiable sense of grievance by giving the appearance, in the mind of an objective observer, that justice has not been done.

In R v Taudevin, Callaway JA said, in a passage with which I agree:

‘The important words are ‘manifestly’, ‘justifiable’ and ‘objective’. There is much to be said for the view that all three requirements are variations on the same theme, ie that only a manifest discrepancy in the sense of a difference that is clearly excessive will satisfy the other two requirements.”

17 And at page 335 Kirby J said:

“The removal of serious and unjustifiable disparities in the treatment of like cases is a legitimate goal of the administration of criminal justice.”

The Applicant’s Contention

18 The applicant points out that the sentencing judge in this case said:

“Griffiths is a man who was a trained pharmacist. The offender is a man of little education and little intellectual training. Griffiths however is a very clever, intelligent and highly educated man.”

19 He also said:

“There is no doubt in my mind that Griffiths was the person who thought up this scheme.”

20 On that basis it is asserted that the sentence given to the applicant should be less than the sentence imposed on Griffiths to reflect their respective roles. It can be seen from the remarks of Judge Tupman noted above that she would, in fact, have given Griffiths an overall sentence of 5 years had it not been for the pleas of guilty, so that the sentences for the two offenders were essentially the same. The sentencing judge was alert to the need to achieve a sentence which did not give rise to a justifiable sense of grievance because of disparity and said that in fixing the sentence he did, he took that into account and whereas he would have fixed a non-parole period of 5 years, he reduced that to 3 years because of the sentence imposed on Griffiths.

21 It is necessary then to look at the other comparative factors pertaining to Griffiths and the applicant. The applicant was 60 at the time of sentencing. Griffiths was 72. Griffiths had a criminal history which involved a conviction for stealing in 1957 for which he received a bond, a fraud conviction in Brisbane in 1994 for which he received a 7 year sentence and recommended for parole after 2 years. He was also convicted of knowingly taking part in the manufacture of a prohibited drug in New South Wales but on 7 June, 2002 that conviction was quashed in the Court of Criminal Appeal although he apparently spent 2 years in custody bail refused prior to the conviction being quashed. It should be noted in his case that he was on bail awaiting his trial for the first offence at the time the second offence and the Form 1 offence were committed.

22 The applicant has 24 convictions on his criminal history including 9 appearances before the Quarter Sessions Court and District Court. His convictions include a conviction for supply prohibited drug in 1987 for which he was sentenced to 5 years imprisonment with a non-parole period of 3 years and he has had 4 subsequent drug related convictions, the last being in 1993 for supplying a prohibited drug for which he was sentenced to 12 months with an additional term of 4 months. It can be said that the applicant’s criminal history was more significant and relevant than that of Griffiths.

23 In sentencing Griffiths the judge took into account his medical conditions including diabetes, high blood pressure and deteriorating arthritis, together with his depression which might amount to post-traumatic stress disorder. His age was taken into account together with his medical conditions which indicated his period in custody would be much more difficult than normal. It was also taken into account that the pleas of guilty indicated contrition and remorse.

24 By contrast when dealing with the applicant, the judge noted his patently false claims during the course of the trial and there was no evidence of contrition. A psychologist report said that he had a low to moderate risk of recidivism but the trial judge rejected that and said “I think there is every chance that Mr Hudson will commit an offence of this nature again. He has committed them before.” That view was open to the sentencing judge who had presided over a long trial during which the applicant’s account of what he was doing and his attempt to raise an alibi were rejected by the jury.

25 Presumably if this applicant had entered pleas of guilty in the same way Griffiths did, he would also have received a discount on his sentence. On that basis he would have received a shorter head sentence and a non-parole period less than the 3 years Griffiths received.

26 It appears to me that taking into account those different factors which exist in the considerations for sentence as between the applicant and Griffiths, there is no marked disparity which gives rise to a justifiable sense of grievance. It should be borne in mind that the relevant disparity should have the characteristic of being “marked” or “manifestly excessive” or “serious and unjustifiable” in accordance with the various judgments in Postiglione v The Queen quoted above.

The Sentencing of Campbell

27 Campbell was sentenced in respect of only one offence and accordingly, it might be expected there would be a significant difference in sentencing between him and the applicant. Campbell also had no prior criminal history. The judge accepted he was remorseful and had good prospects for rehabilitation. The police statement of facts said that he was co-operative. He was not dealt with on the basis that he had offered any assistance but he did, in fact, give evidence on behalf of the prosecution in the applicant’s trial which reinforces the assessment by the police that he was co-operative. In my view, there are very significant differences between the sentencing considerations in the case of Campbell and those relevant in the case of the applicant and I do not believe there is any marked disparity in the sentencing of Campbell which gives rise to a justifiable sense of grievance.

Was the Sentence Unduly Harsh or Severe?

28 It should be noted that the applicant was given the considerable benefit of all three of the sentences being made concurrent. The sentences imposed had to take account of the need for general deterrence to be reflected in sentencing where drugs are being manufactured or attempts are being made to manufacture drugs which are to be sold for profit in the community. There are many statements in this Court to that effect and in my view, it cannot be said that the sentence in this case is in any way excessive. Indeed as the sentencing judge noted it was reduced from what might otherwise have been an appropriate sentence so as to avoid a disparity with the sentence imposed on Griffiths.

29 It is submitted the failure to distinguish the sentence for the attempt counts is an error of law. The judge’s comment that “in terms of sentence it does not matter…” should be understood as referring to the fact that the same maximum penalty applied. An argument has been advanced that the sentencing judge should have imposed a lesser sentence because two of the convictions were for an attempt. In this case I do not believe that is so. The conduct of the applicant throughout the period involving the conspiracy and the attempts were persistent over a significant period of time and although the facts relating to the attempts concerned events in 2004 that was during a period when the conspiracy was in place from September, 2003 to August, 2005. Moreover, the decision of the judge to make the sentences for the attempt counts entirely concurrent makes any debate as to whether there should be a different sentence for the attempt academic. I do not believe any lesser sentence would be justified.

30 I propose the following orders:

1. Leave to appeal be granted;
2. The appeal be dismissed.

31 HOWIE J: I agree with Blanch J.