Lee v The Queen

[2021] NSWCCA 137

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Lee v R [2021] NSWCCA 137

Hearing dates:

21 June 2021

Date of orders:

30 June 2021

Decision date:

30 June 2021

Before:

Basten JA at [1];
Price J at [2];
Garling J at [44]

Decision:

1. Leave to appeal granted. 2. Appeal dismissed.

Catchwords:

CRIME – appeal against sentence – supply of less than commercial quantity of methylamphetamine – whether sentence manifestly excessive

Legislation Cited:

Crimes Act 1900 (NSW), s 193B(1)

Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25A

Firearms Act 1996 (NSW), s 7(1)

Cases Cited:

Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2

Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45

Markarian v R (2005) 228 CLR 357; [2005] HCA 25

Category:

Principal judgment

Parties:

Matthew Lee (Applicant)
Regina (Respondent)

Representation:

Counsel:
T Evers (Applicant)
C Young (Respondent)

Solicitors:
Legal Aid NSW (Applicant)
Solicitor for the Office of the Director of Public Prosecutions (Respondent)

File Number(s):

2019/174790

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

7 July 2020

Before:

Payne DCJ

File Number(s):

2019/174790

Judgment

1. BASTEN JA: I agree with Price J. I agree that there should be a grant of leave because the sentence was, as Price J says, stern. However, no error was identified on the part of the sentencing judge and this Court was merely invited to reassess the same facts and come to a different conclusion. A claim of manifest excess implies either that in some way the sentencing exercise has miscarried or that the available range of sentencing has been exceeded. Neither was demonstrated in this case.

2. PRICE J: The applicant seeks leave to appeal against a sentence imposed upon him by Payne DCJ (“the judge”) in the District Court at Tamworth on 7 July 2020 for the offence of supplying, between 3 February 2019 and 21 March 2019 at South Tamworth, less than the commercial quantity of a prohibited drug; namely, 51.4 g of methylamphetamine contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW) (“DMT Act”).

3. The maximum penalty for the offence is imprisonment for 15 years. There is no standard non-parole period.

4. The applicant had entered a plea of guilty in the Local Court and the judge allowed a 25 per cent discount for his plea. He was sentenced to imprisonment of 4 years 6 months commencing on 6 March 2020 and expiring on 5 September 2024 with a non-parole period of 2 years 10 months.

5. The sole ground of appeal is that the sentence is manifestly excessive.

Factual Background

6. The facts upon which the applicant was sentenced were agreed and may be shortly stated.

7. The charge consists of three separate supplies of methylamphetamine by the applicant during the period 3 February 2019 to 21 March 2019. Between September 2018 and May 2019, Strike Force Radius was investigating Stephen Hanshaw (Hanshaw) in relation to drug and firearm supply in Tamworth. The applicant was identified as “one of several up-line suppliers” used by Hanshaw for methylamphetamine supply. The applicant was in a relationship with Simone Hatch (Hatch) at the time of his offending. Hatch was another person identified in the supply of prohibited drugs.

8. On 4 February 2019, an undercover officer (“UCO”) asked Hanshaw for an ounce of methylamphetamine. Hanshaw contacted the applicant and Hatch to source the drugs. The applicant subsequently confirmed he could supply an ounce of methylamphetamine for a cost of $6,000. It was agreed the supply could occur the next day. The UCO indicated he would purchase two ounces of methylamphetamine. The applicant, who resided in Dubbo, drove to Canberra to source the drugs.

9. At around 11:50am on 5 February 2019, the applicant went to Hanshaw’s unit and the drugs were provided to the UCO who paid $12,000 to Hanshaw, of which the applicant received $9,600. The drugs were later analysed to be 47.9g of methylamphetamine at a purity of 33.5 per cent.

10. On 18 March 2019, Hanshaw called the applicant to confirm he had methylamphetamine. At 3:40pm on that day, Hanshaw and the UCO attended an address at Tamworth and met the applicant. The applicant was asked for a “HB”. He scooped an amount of methylamphetamine from a bag using a plastic spoon. After measuring 1.75g, the applicant provided it to Hanshaw, who gave him $200 in cash.

11. On 20 March 2019, the applicant supplied 1.75g of methylamphetamine to Hanshaw.

12. The agreed facts further referred to Hanshaw contacting the applicant on numerous occasions in February 2019 to complain about the poor quality of methylamphetamine the applicant was supplying him and that he had received a number of complaints from customers. On 20 February 2019, the applicant supplied Hanshaw with an unknown amount of methylamphetamine.

13. The applicant was arrested on 4 June 2019 and bail refused from that date.

Subjective Circumstances

14. He was born on 19 November 1984 and was 34 years old at the time of his offending.

15. The applicant did not give evidence before the judge, however, a report of Dr Furst, a psychiatrist, was tendered which included the applicant’s account of childhood sexual abuse, his drug use from the age of 15, and his completion of various drug treatment programs. The applicant told Dr Furst that he regretted his offending and was selling drugs to support his addiction to methylamphetamine. Dr Furst assessed the applicant’s risk of re-offending as probably “in the moderate range”. Dr Furst concluded that the applicant met the criteria for substance use disorder (methylamphetamine and opiate dependency).

16. A report of Professor Lloyd was also tendered in the applicant’s case.

17. In his report, Professor Lloyd recounted that the applicant had been under his care in relation to “liver disease caused by alcohol chronic hepatitis C and possibly also non-alcohol steato-hepatitis (Nash) (related to obesity)”. This had led to the majority of the applicant’s functioning liver cells being replaced by scar tissue. Professor Lloyd opined that the applicant was receiving “comparable care to the community standard” for his conditions whilst in custody.

18. A sentencing assessment report was also placed before the judge. The author of the report considered that whilst the applicant claimed to be regretful, “his response appeared to be disingenuous”. A further observation was that the applicant showed little respect for his parole obligations. The applicant was assessed as a “medium/high risk of reoffending”.

19. The applicant’s prior criminal history reveals he had committed serious drug and firearm offences in October to December 2012. He pleaded guilty to an indictment containing the following counts:

Count 1: ongoing supply of prohibited drugs (227g of methylamphetamine) contrary to s 25A of the DMT Act;

Count 2: supply prohibited drug (58.46g of methylamphetamine) contrary to s 25(1) of the DMT Act;

Count 3: supply prohibited drug (10 pounds of cannabis) contrary to s 25(1) of the DMT Act;

Count 4: unauthorised possession of a prohibited firearm contrary to s 7(1) of the Firearms Act 1996 (NSW);

Count 5: knowingly deal with proceeds of crime ($7,400) contrary to s 193B(1) of the Crimes Act 1900 (NSW).

20. After successfully appealing his sentence imposed in the District Court on 21 March 2014 to the Court of Criminal Appeal, the applicant received an aggregate sentence of 8 years commencing on 20 December 2012 with a non-parole period of 5 years 4 months.

21. The applicant was released to parole on 19 April 2018. The parole order was revoked on 20 March 2019 for matters unrelated to the subject offence and he re-entered custody on 27 March 2019. This revocation was rescinded and the applicant was released to parole on 17 May 2019. As a consequence of his arrest for the present offence, the parole order was revoked for a second time on 10 July 2019. Accordingly, the balance of the applicant’s parole was 1 year 5 months 1 week and 3 days, commencing on 10 July 2019 and expiring on 19 December 2020.

Some Findings by the Judge

22. The judge’s findings, as to the objective seriousness of the offence and the applicant’s subjective case, may be briefly stated.

23. Her Honour found that the applicant was a “substantial drug user himself” but had the role of a “mid-level drug dealer” in the organisation. Her Honour found the objective seriousness of the offence to be “at the upper end of the low range, towards the mid-range and not at the lower end of the range”. In making that finding, her Honour took into account the amount of the drug supplied, the purity of 33.5 per cent for the supply on 5 February 2019, and the applicant’s role and participation in the supply offence. Her Honour also found the offending was committed for financial reward, but that some of the money would have gone to the applicant’s own drug addiction.

24. The judge found it was an aggravating factor that the applicant was on parole at the time of the offending, having previously received “a significant sentence for supply of Methylamphetamine and cannabis”. [1]

    1. ROS Tcpt, 7 July 2020, p 10.

25. The following further findings were made:

1. The applicant was not a person of prior good character;

2. The applicant’s criminal record disentitled him to leniency;

3. There was no evidence of remorse;

4. The applicant’s prospects of rehabilitation were guarded;

5. His prospects of reoffending were “neutral” and a finding was not made either way; and

6. General and specific deterrence must be a ‘significant feature’ of the sentence imposed.

26. The judge accepted that the applicant’s cirrhosis of the liver made his custodial conditions “more onerous” [2] and her Honour found special circumstances.

    2. ROS Tcpt, 7 July 2020, p 14.

27. After referring to the applicant’s custodial and parole history and that he had been bail refused, the judge determined that the sentence would be back dated approximately 50 per cent into the balance of parole being served, so that the sentence would commence on 6 March 2020. Her Honour expressly considered the principle of totality and observed that the total effective sentence, including the balance of parole, was 5 years 2 months with a non-parole period of 3 years 6 months.

28. The judge stated that the undiscounted starting point of the sentence was six years imprisonment.

Argument

29. Counsel for the applicant submits that the applicant’s sentence is a heavy one and points to the undiscounted starting point of six years. He submits that there is no evidence of the applicant having a large scale or thriving drug business, that he neither had a wider network nor was he a sophisticated dealer. He contends that he was at best a sole operator, who had access to small quantities of drugs, but could, albeit with some difficulty, obtain access to larger amounts on request. He submits that the fact Hanshaw complained about the quality of the drug supplied is consistent with the applicant being towards the bottom of the supply chain and essentially not much above a street level supplier.

30. Counsel for the applicant points out that whilst the amount supplied was 10 times the indictable quantity of the drug, it was well short of the threshold for a commercial quantity of methylamphetamine at 250g. The applicant’s counsel referred to the applicant’s history of childhood sexual abuse which was submitted provided a reason for his drug addiction.

31. Counsel for the applicant also referred in written submissions to sentencing statistics published by the Judicial Information Research System (JIRS) of 872 recorded cases of similar offending and contended that only 27.1 per cent of offenders received a sentence of imprisonment. A JIRS sentencing table was handed to the Court during oral argument.

32. A further argument was that the commencement date of the sentence was nine months and two days after the applicant was arrested and bail refused and the total effective sentence that the applicant was required to serve was 5 years 5 months (and 2 days) with a non-parole period of 3 years 7 months. Counsel for the applicant contends that this adds to the excessive nature of the sentence.

33. The Crown submits that the judge’s undiscounted starting point of six years imprisonment against a maximum penalty of 15 years imprisonment was not unreasonable or plainly unjust.

34. The Crown argues that her Honour correctly found the offence was at the upper end of the low range of objective seriousness and towards the mid-range. The Crown referred to the applicant’s poor subjective case, to the commission of the offence whilst the applicant was on parole for serious drug supply offending, and to the JIRS sentencing statistics which the Crown contends demonstrates that other offenders had received comparable sentences to the applicant or longer.

Consideration

35. This Court has often stated that to succeed on a ground where a complaint of manifest excess is made, the applicant must establish that the sentence was unreasonable or plainly unjust. [3] Consideration of whether a sentence is unreasonable or plainly unjust is undertaken in the context that there is no single correct sentence and that sentencing is not a mathematical exercise. Sentencing judges are required to reach a sentence for an offence by balancing many different and conflicting features. It follows that sentencing judges are to be allowed as much flexibility as is consonant with consistency of approach and applicable sentencing principles. [4]

    3. Markarian v R (2005) 228 CLR 357; [2005] HCA 25 (‘Markarian’) at [25]; Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59].

    4. Markarian at [27]; Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [34].

36. Although there is no ground of appeal which challenges the judge’s assessment of the objective seriousness of the offence, the applicant in submissions seeks to minimise his position in the supply chain with the contention that he was essentially not much above a street level supplier.

37. It was well open to her Honour to find that the applicant was a mid-level drug dealer in the organisation. The agreed facts identified him as an “up-line supplier” and Detective Senior Constable O’Rourke’s evidence in the proceedings on sentence included his opinion that the applicant was a “standalone mid-level supplier”. [5] Furthermore, there was his use of multiple mobile phones, some of which were subscribed with false details. The applicant was able to obtain at short notice in February 2019 47.9g of methylamphetamine for which the UCO paid $12,000. It is plain that the three supplies were not isolated but, as the Crown contends, part of a course of conduct in which the applicant supplied Hanshaw with methylamphetamine. The low purity of the methylamphetamine that was supplied was taken into account by her Honour in assessing the objective seriousness of the offence. In my opinion, her Honour’s assessment that the offence was “at the upper end of the low range, towards the mid-range and not at the lower end of the range” was amply open on the evidence before her Honour.

    5. Tcpt, 7 July 2020, p 4(38).

38. There is little in the applicant’s subjective case that assists him. A significant aggravating factor is that the applicant’s offending took place whilst he was on parole for serious offences which included the supply of methylamphetamine.

39. As her Honour found, general and specific deterrence must be a significant feature in the applicant’s sentence.

40. As to the JIRS sentencing statistics, the limitations on the utility of statistics is well known. This is particularly so when a significant aggravating factor is the commission of a drug supply offence when the applicant was on parole for similar offending.

41. Her Honour carefully took into account the applicant’s balance of parole and considered the principle of totality. It was well open to her Honour to commence the sentence on 6 March 2020.

42. This is a serious offence. The maximum penalty is 15 years imprisonment. Whilst the sentence is a stern sentence, I am not of the opinion that sentence is “unreasonable” or “plainly unjust”.

43. The orders I propose are:

1. Leave to appeal granted;

2. Appeal dismissed.

44. GARLING J: I agree with Price J.

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Endnotes

Decision last updated: 30 June 2021