Lago v R

[2015] NSWCCA 296

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Lago v R [2015] NSWCCA 296
Hearing dates:	26 October 2015
Decision date:	27 November 2015
Before:	Gleeson JA at [1]; Button J at [70]; Fagan J at [71]
Decision:	(1)   Grant leave to appeal. (2)   Appeal dismissed.
Catchwords:	CRIMINAL LAW – appeals – sentencing – whether uncharged criminal conduct treated as an aggravating factor – whether unfair disparity between applicant’s and co-offender’s sentences
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW) s 32 Criminal Procedure Act 1986 (NSW) Ch 3, Pt 3 Drug Misuse and Trafficking Act 1985 (NSW) ss 25(1), 32(1), Sch 1
Cases Cited:	Dwayhi v R; Bechara v R [2011] NSWCCA 67; 205 A Crim R 274 Einfeld v R [2010] NSWCCA 87; 200 A Crim R 1 England v R; Phanith v R [2009] NSWCCA 274 Green v The Queen [2011] HCA 49; 244 CLR 462 House v The King [1936] HCA 40; 55 CLR 499 Lewins v R [2007] NSWCCA 189; 175 A Crim R 40 Peiris v R [2014] NSWCCA 58 R v Wei Pan [2005] NSWCCA 114 Rae v R [2011] NSWCCA 211 SBF v R [2009] NSWCCA 231; 198 A Crim R 219 Sills v R [2011] NSWCCA 271 The Queen v De Simoni [1981] HCA 31; 147 CLR 383 The Queen v Olbrich [1999] HCA 54; 199 CLR 270 Velez v R [2015] NSWCCA 177
Category:	Principal judgment
Parties:	Michael Lago (Applicant) Regina (Crown)
Representation:	Counsel: G Wendler (Applicant) N Noman SC (Crown)   Solicitors: Van Houten Law Solicitor (Applicant) Solicitor for Public Prosecutions (Crown)
File Number(s):	2013/109952
Publication restriction:	No
Decision under appeal	Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 18 December 2014 Before: Payne DCJ File Number(s): 2013/109952

Judgment

1. GLEESON JA: The applicant, Michael Lago, seeks leave to appeal against a sentence imposed upon him in the District Court at Parramatta by Payne DCJ on 18 December 2014 for the offence of supplying a prohibited drug, namely, 55.6 grams of methylamphetamine, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW).

2. The offence occurred on 10 April 2013. The applicant entered a plea of not guilty. After an eight day trial the jury returned a verdict of guilty on the supply charge and the applicant was convicted on 1 September 2014.

3. The maximum penalty for the offence is imprisonment for 15 years, a $220,000 fine, or both: s 32(1). No standard non-parole period is prescribed.

4. Her Honour imposed a sentence of 4 years imprisonment with a non-parole period of 2 years and 6 months to date from 31 August 2014 and to expire on 28 February 2017.

Relevant facts

5. The applicant did not give evidence during the trial or the proceedings on sentence. The following summary is taken from her Honour’s findings on sentence, which were not challenged on appeal except in one respect. This concerned the respective roles of the applicant and a co-offender.

6. In early April 2013, telephone intercepts and surveillance conducted by the police revealed that Mr David Scott requested the applicant to provide two ounces of the drug saying that he would “like to catch up with your mate for a game of pool or two”. Evidence was given at trial that this was consistent with a code for drugs.

7. Money or “paperwork” was provided prior to the delivery of the drugs. The payment for the drugs was made on 8 April 2013 when the applicant met Mr Scott at Ballina Depot. (Mr Scott was an interstate truck driver.) A telephone conversation between the applicant and Mr Scott was intercepted, in which Mr Scott said “You take your bit out and that way a few expenses are covered”. The judge accepted that this conversation described the applicant taking for himself some of that money.

8. On 10 April 2013 the applicant supplied the methylamphetamine to Mr Scott at around 10.40 am on Roberts Road, Eastern Creek. Mr Scott then concealed the drugs inside an area near the landing legs of the first trailer of his Kenworth B-double truck, which was parked at the side of the road. A short time after the applicant left the scene, police located the drugs in Mr Scott’s truck.

9. The quantity of drugs supplied (55.6 grams) is a little over ten times the indictable quantity, the indictable quantity being 5 grams and the traffickable quantity being 3 grams. The “traffickable quantity” and “indictable quantity” of a prohibited drug, including methylamphetamine, are set out in columns 1 and 3 of Schedule 1 to the Drug Misuse and Trafficking Act.

10. The purity of the methylamphetamine supplied by the applicant was 7.5%. The evidence was that this was consistent with a street level of purity for that kind of drug and the drugs would be expected to be consumed at that level of purity. There was also evidence that the value of methylamphetamine depends on a variety of factors and that an ounce of methylamphetamine could cost between $7,000 and $13,500.

11. Both the applicant and Mr Scott were arrested on 10 April 2013.

12. There was evidence at trial of an earlier drug supply transaction in which the applicant supplied the same prohibited drug, ice or methylamphetamine, to Mr Scott on 30 January 2013. The quantity of the drug and the price was unknown. Evidence of this transaction had been allowed at the trial as tendency evidence following a pre-trial ruling by the judge.

The co-offender’s sentence

13. On 22 May 2014, Mr Scott together with his wife, Susan Scott, were sentenced in the District Court at Lismore, having pleaded guilty to a number of offences. After a discount of 25% for the guilty pleas, the sentences of imprisonment imposed on Mr Scott were as follows:

Take part in the supply of methylamphetamine on 10 April 2013	3 years 9 months with a non-parole period of 2 years 9 months
Supply methylamphetamine between 24 January 2013 and 10 April 2013 (on 30 occasions)	3 years 9 months with a non-parole period of 2 years 9 months
Deal with proceeds of crime	Fixed term of 6 months
Supply methylamphetamine (2.84 grams) on 10 April 2013	Fixed term of 6 months
Breach of s 9 bond	Fixed term of 9 months

14. The sentences imposed on Mr Scott were substantially concurrent. The sentence for breach of the s 9 bond was to date from 10 April 2013 and the other sentences were to date from 10 July 2013.

The applicant’s subjective case

15. The applicant was aged 41 at the time of the offence and aged 42 at the time of sentence. He left school in year 9. The presentence report from Community Corrections described the applicant’s highly dysfunctional upbringing, marred by his father’s alcoholism and domestic violence.

16. The applicant worked in a number of labouring type jobs prior to a serious motorbike accident in 2002. He was the victim of a stabbing attack at a McDonald’s restaurant sometime between 2002-2003.

17. Following the stabbing incident and the injuries sustained from several motorbike accidents, the applicant was placed on a disability support pension in 2004 and has been unemployed since that time.

18. The applicant has two children aged 22 and 14 years at the time of sentence. He was in a stable relationship with his current partner of five years at the time of sentence.

19. Dr Furst diagnosed the applicant as having the following mental disorders: post-traumatic stress disorder (PTSD); chronic pain disorder; and cannabis abuse.

20. The applicant was undergoing psychiatric and psychological care prior to the offence for his emotional problems, anxiety and depression. Dr Furst considered that these factors and the applicant’s underlying PTSD and medical problems were likely to make a custodial sentence weigh more heavily on the applicant than the average inmate.

21. The presentence report by Community Corrections recorded that the applicant agreed with the facts as presented by the police but would not elaborate further other than stating “a mate asked me to help him out, I initially refused and arranged for someone else to drop off the drugs, but that fell through so I did it and got caught”.

22. The psychiatric report recorded that the applicant had given a similar explanation to Dr Furst. The applicant claimed that “It was the only time. I didn’t mean to do it.”

23. The applicant had previously been sentenced to a 2 year good behaviour bond in the District Court at Penrith on 20 June 2008 for the offence of supplying a prohibited drug, being an indictable quantity (not cannabis). The applicant had also asked on that occasion that three further matters on a Form 1 be taken into account by the Court on sentence pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW), namely, offences involving goods in custody; possession of equipment for administering prohibited drugs; and possession of a prohibited weapon.

The judge’s reasons

24. With respect to the subject offence, her Honour found that the drug was obtained by the applicant from a person unknown and provided to Mr Scott whom the applicant knew was an interstate truck driver and also knew that he at least was consuming the drug whilst he was continuing to drive.

25. Her Honour rejected the applicant’s account given to Community Corrections, that in delivering the drugs to Mr Scott he was just helping out a mate who had asked him to drop off the drugs. Her Honour also rejected the applicant’s account to similar effect given to Dr Furst. Her Honour found that clearly it was not the only time the applicant had supplied a prohibited drug, and that the applicant’s explanation was not consistent with the content of the telephone intercepts.

26. With respect to the evidence of the earlier drug supply on 30 January 2013, her Honour found, beyond reasonable doubt, that the applicant supplied ice or methylamphetamine to Mr Scott on that date, although the quantity and the price paid were unknown. Her Honour continued (at ROS 3-4):

In any event, the relevance of that I accept is that, as the Crown said, and indeed defence counsel submitted, the Crown submitted I would find beyond reasonable doubt the supply which I have said I have and that I can use that evidence when determining the level of involvement that the prisoner had in a drug supply network and in finding that the supply on 10 April 2013 was not an isolated incident.

27. Her Honour found that the subject offence could not be regarded as an isolated occurrence, or conduct that is out of character for the applicant, noting that the applicant’s counsel had acknowledged that neither proposition was advanced on behalf of the applicant. Nonetheless, her Honour accepted the submission of the applicant’s counsel that the earlier drug supply did not reflect any greater involvement of the applicant in the drug supply network.

28. Her Honour found that the applicant had engaged in the offending on a commercial basis rather than a social basis. The judge found that the applicant had obtained some financial gain but was unable to quantify the gain.

29. Her Honour observed that the applicant and Mr Scott had different roles in terms of the drug supply. The judge continued (ROS 7):

Mr Scott clearly had a considerable number of customers or a number of customers and he was at a lower level than Mr Lago, and I say “lower” because he is one step down, and Mr Lago was closer to the original dealer. But it is very difficult to classify which person is more serious or less serious because each play a role.

30. Her Honour found that the offending was an objectively serious example of the drug supply offence given:

the amount of the drug, and that it was not an isolated occasion, and that [the applicant] was above Mr Scott in the chain, not that I am saying this is the only consideration, but I do accept that it is so... (ROS 7-8)

31. Her Honour referred to the need for general deterrence and the fact that the applicant must have well known that some of the recipients of the drug were going to be interstate truck drivers.

32. Her Honour then turned to the issue of parity between the applicant and Mr Scott. The judge noted that the starting point for Mr Scott’s sentence for taking part in supply of methylamphetamine on 10 April 2013 was 5 years, taking into account the 25% discount for his guilty plea. Her Honour also noted that Mr Scott was sentenced for other offences to which he had pleaded guilty as indicated above. Her Honour referred to relevant differences between the applicant and Mr Scott including: that there was no finding of special circumstances with respect to Mr Scott; and that Mr Scott was also on a s 9 bond for 2 years and a further bond for a number of drug related offences at the time of his offending.

33. Her Honour referred to the applicant’s prior criminal history, in particular his conviction on a drug supply offence in June 2008.

34. Her Honour referred to the applicant’s subjective circumstances outlined in the presentence report and the psychiatrist’s report and to his health problems (which pre-dated the offending) which was making his time in prison more difficult. Her Honour accepted that a custodial sentence would weigh more heavily on the applicant than perhaps another inmate.

35. Her Honour was guarded as to the applicant’s prospects of rehabilitation, and accepted that he had some prospects for rehabilitation.

36. Her Honour found special circumstances in light of the medical evidence concerning the applicant’s depressive condition and other disorders. Her Honour then proceeded to impose the sentence already indicated, with the non-parole period being 62.5% of the head sentence.

Grounds of appeal

37. The applicant seeks leave to appeal against sentence on three proposed grounds. Grounds 1 and 2 are related and may be considered together.

Ground 1: The Court erred in law by finding beyond reasonable doubt that the applicant was criminally responsible for a non-charged previous discrete offence of supplying methylamphetamine on 30 January 2013

Ground 2: The Court erred in law by taking into account as a circumstance of aggravation the uncharged offence of supplying methylamphetamine on 30 January 2013

38. Ground 1 asserts that there was an irregularity in the sentencing process because the sentencing judge had made a finding with respect to uncharged conduct, namely the supply of methylamphetamine by the applicant to Mr Scott on 30 January 2013. The complaint is that her Honour made a finding of guilt on an offence which had not been charged on indictment and not prosecuted in accordance with the mandatory requirements of Ch 3, Pt 3 of the Criminal Procedure Act 1986 (NSW).

39. Ground 2 draws on ground 1 and asserts that the sentencing judge used her finding concerning the uncharged conduct as a circumstance of aggravation for the subject offence. It was contended that the applicant was punished for an earlier offence in respect of which he had not been convicted and sentenced, contrary to the principle in The Queen v De Simoni [1981] HCA 31; 147 CLR 383 (De Simoni).

De Simoni principle

40. In De Simoni, Gibbs CJ (Mason and Murphy JJ agreeing) explained at 389:

… the general principle that the sentence imposed on an offender should take account of all the circumstances of the offence is subject to a more fundamental and important principle, that no one should be punished for an offence of which he has not been convicted ... The combined effect of the two principles, so far as is relevant for present purposes, is that a judge, in imposing sentence is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence.

41. The De Simoni principle is breached only if the offender is actually punished for the conduct constituting the uncharged offence or aggravating circumstance. Accordingly, “[a]n assessment whether a breach of the R v De Simoni principle has occurred ought involve consideration of the substance of what was said, in the context of the case, and not merely the form of words used”: SBF v R [2009] NSWCCA 231; 198 A Crim R 219 at [128] (Johnson J; Spigelman CJ and McClellan CJ at CL agreeing).

Decision

42. In my view, the applicant’s contentions are misconceived.

43. First, the judge did not make a finding leading to a conviction in respect of the applicant’s uncharged conduct on 30 January 2013. In oral argument, counsel for the applicant ultimately accepted so much.

44. Secondly, it might be thought, in light of the concessions by the applicant’s counsel, that the applicant accepted on the sentencing hearing that he was involved in the earlier drug supply on 30 January 2013. However, consistently with The Queen v Olbrich [1999] HCA 54; 199 CLR 270 at [27], the sentencing judge took the approach that she could not take facts into account in a way that was adverse to the interests of the applicant unless those facts had been established beyond reasonable doubt. The judge was so satisfied.

45. The real issue is whether the judge’s finding relating to the uncharged conduct was used in a manner contrary to the principle in De Simoni.

46. Her Honour was careful not to treat the finding in relation to the uncharged conduct as an aggravating factor. She expressly stated the particular relevance and limited use of the applicant’s earlier conduct on sentence.

47. First, her Honour relied upon the earlier conduct to find that the subject offence was not an isolated offence. It is entirely orthodox for the sentencing judge to admit context evidence to displace a submission that the offences were single, isolated events: Peiris v R [2014] NSWCCA 58 at [64] (Leeming JA; Button J and R S Hulme AJ agreeing). That is what her Honour expressly said she was doing in the passage in her remarks on sentence extracted at [26] above.

48. Next and related to the first matter, her Honour relied upon the earlier conduct when rejecting the applicant’s assertions recorded in the presentence report and the psychiatrist’s report, that he was only delivering the drugs for a mate, and “It was the only time. I didn’t mean to do it”. Evidence may be used “to assess the veracity and reliability of the applicant … not … as a circumstance of aggravation to be taken into account when sentencing the applicant”: Sills v R [2011] NSWCCA 271 at [57] (Hoeben J; Meagher JA and Rothman J agreeing).

49. Finally, her Honour also used the earlier conduct as informing the seriousness of the subject offence (in what was not an isolated offence), as the passage in her remarks on sentence extracted at [30] above demonstrates. There is no breach of the De Simoni principle when the uncharged conduct is used to inform the seriousness of an offence for which the offender is to be sentenced. As Basten JA explained (Hulme and Latham JJ agreeing) in Einfeld v R [2010] NSWCCA 87; 200 A Crim R 1 at [146]:

a course of unlawful conduct may well give rise to a number of possible charges. If the prosecution proceeds on one count only, it does not follow that the surrounding conduct cannot be taken into account in sentencing. The surrounding conduct cannot give rise to a more serious offence, but it can demonstrate the degree of seriousness with which the charged offence should be viewed.

50. For these reasons, the approach taken by her Honour did not breach the De Simoni principle.

51. Grounds 1 and 2 are not made out.

Ground 3: The Court erred by finding that the offender David Scott was at a lower level of objective criminality than the applicant and thereby the sentence imposed upon the applicant was manifestly excessive

52. Although expressed as a complaint that the applicant’s sentence is manifestly excessive, in oral argument counsel for the applicant confirmed that the essential complaint is that there is an erroneous disparity between sentences imposed on the applicant and his co-offender, Mr Scott.

53. As already mentioned, Mr Scott pleaded guilty to a number of drug (methylamphetamine) supply and related charges and was sentenced by Wells SC DCJ on 22 May 2014 in the District Court at Lismore. This was prior to the commencement of the applicant’s trial, following his plea of not guilty, on 21 August 2014. The remarks on sentence of Wells DCJ were before her Honour.

The parity principle

54. The relevant principles are well known and are conveniently summarised by Johnson J (McClellan CJ at CL and Hidden J agreeing) in Rae v R [2011] NSWCCA 211 at [59]-[63]. For the purposes of this appeal it is sufficient to note the following.

55. The “parity principle” requires that like offenders should be treated in a like manner. Accordingly the principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances: Green v The Queen [2011] HCA 49; 244 CLR 462 (Green) at [28] (French CJ, Crennan and Kiefel JJ).

56. The test for determining whether there is a justifiable sense of grievance is objective: Green at [31]. The question is whether a reasonable mind looking overall at what has happened would see that the applicant’s grievance is justified: R v Wei Pan [2005] NSWCCA 114 at [34]; Dwayhi v R; Bechara v R [2011] NSWCCA 67; 205 A Crim R 274 (Dwayhi) at [21].

57. What is required to be shown is a marked disparity between sentences giving rise to the appearance of injustice because one offender has been unfairly treated having regard to the sentence passed upon the other offender: Green at [31]-[32]. Other descriptors of what is required include gross, glaring or manifest disparity: England v R; Phanith v R [2009] NSWCCA 274 at [61]-[67]; Dwayhi at [24].

58. It is also necessary to keep in mind that it is the sentence imposed upon a co-offender which is said to give rise to a sense of injustice, not the sentence imposed upon the offender: Lewins v R [2007] NSWCCA 189; 175 A Crim R 40 at [7]; Dwayhi at [26].

Decision

59. In the present case, the applicant points to the difference between the sentence of 4 years imposed on the applicant and that of 3 years 9 months imposed on Mr Scott, and contends that her Honour found that Mr Scott was at a lower level of objective criminality, when the contrary should have been found.

60. There are two difficulties with this argument. The first is that it does not involve a comparison of like sentences because it ignores Mr Scott’s guilty plea. As her Honour correctly observed, the notional starting point of Mr Scott’s sentence on the offence of taking part in the drug supply on 10 April 2013 was 5 years imprisonment. The differentiation of 3 months in the head sentences in favour of the co-offender is readily explained by the 25% discount for the co-offender’s guilty plea.

61. The second difficulty is that the applicant’s argument misstates her Honour’s finding as to the part played by each of the applicant and Mr Scott in the offending. What her Honour found was that the applicant and Mr Scott had different roles in terms of the supply of prohibited drugs on 10 April 2013. Although she described Mr Scott as being at a “lower” level than the applicant, her Honour was careful to explain what she meant by this characterisation. As the passage in her Honour’s remarks on sentence (extracted at [29] above) makes clear, the judge was referring to Mr Scott being one step down in the chain of supply (Mr Scott having a considerable number of customers) and the applicant being closer to the original dealer.

62. Further, her Honour expressly acknowledged that it was very difficult to determine which person’s offending was more serious or less serious, because each played an important role in the distribution of drugs into the community. Contrary to the applicant’s submissions, her Honour did not find that Mr Scott’s offending was objectively less serious than the applicant’s.

63. Her Honour may be taken to have accepted, favourably to the applicant, that there were relevant differences between the applicant and Mr Scott which explained the one year differential, in favour of the applicant, between the applicant’s sentence and the notional starting point of Mr Scott’s sentence. Those differences included: the applicant was found to have some prospects of rehabilitation; Wells DCJ found that Mr Scott’s prospects of rehabilitation could not be regarded as high. Mr Scott was a drug user with a habit who was also a supplier to others. The applicant was a supplier. Mr Scott committed his offences whilst subject to a s 9 bond for earlier drug offences. He was also sentenced for other offences. The applicant was not on conditional liberty at the time of his offending.

64. The differential, again in the applicant’s favour, between the applicant’s non-parole period of 2 years 6 months (being 62.5% of the head sentence) and Mr Scott’s non-parole of 2 years 9 months (being 73%, or with the accumulation, 75% of the head sentence), is readily explained by her Honour’s finding of special circumstances in relation to the applicant, and there being no such finding by Wells DCJ in relation to Mr Scott.

65. Contrary to the applicant’s submissions, her Honour did not find that the applicant played a greater role than Mr Scott in the offending. The effective differentiation of 12 months in favour of the applicant in circumstances where the gravity of the co-offender’s conduct was aggravated by reason of being committed whilst the co-offender was subject to a bond for the offence of supplying drugs, and where the applicant had a stronger subjective case than his co-offender is not, in my view, indicative of an unfair disparity between the sentences of the applicant and Mr Scott.

66. This is not a case where the sentencing judge mistook the facts in assessing the criminality of the applicant and his co-offender, being the third kind of error in House v The King [1936] HCA 40; 55 CLR 499 at 505. Nor is it a case where the nature of the error may not be discoverable, but the result on the facts is plainly unreasonable or unjust, being error of the last kind referred to in House v The King: cf Velez v R [2015] NSWCCA 177 at [25]. On the contrary, her Honour’s recognition of the higher notional starting point of the co-offender’s sentence and the other relevant differences is fatal to the complaint of unfair disparity.

67. Ground 3 has not been made out.

Conclusion

68. In my view, the applicant has not established error in the sentencing process in accordance with grounds 1 and 2. Nor has the applicant established an objective justifiable sense of grievance under ground 3.

69. I propose the following orders:

(1)   Grant leave to appeal.

(2)   Appeal dismissed.

70. BUTTON J: I agree with Gleeson JA.

71. FAGAN J: I agree with Gleeson JA.

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Decision last updated: 27 November 2015