Locke v R
[2010] NSWCCA 296
•17 December 2010
Reported Decision: 207 A Crim R 34
New South Wales
Court of Criminal Appeal
CITATION: Locke v R [2010] NSWCCA 296 HEARING DATE(S): 20 October 2010
JUDGMENT DATE:
17 December 2010JUDGMENT OF: Simpson J at 1; Hoeben J at 2; RA Hulme J at 3 DECISION: 1. Leave to appeal granted.
2. Appeal allowed.
3. The sentence for the offence of ongoing supply (from 3 to 25 April 2008) of imprisonment for 3 years to date from 1 October 2008 and expire on 30 September 2011 is confirmed.
4. The remaining sentences imposed in the District Court are quashed and in lieu, the following sentences are imposed:
Supply (indictable quantity – 22 April to 29 June 2008): Sentenced to a fixed term of imprisonment for 4 years to date from 1 April 2009 and expire on 31 March 2013.
Supply commercial quantity (14 August 2008): Sentenced to imprisonment comprising a non-parole period of 4 years and a balance of the term of 2 years. The sentence is to date from 1 October 2009. The non-parole period is to expire on 30 September 2013. The total term is to expire on 30 September 2015.
Supply commercial quantity (21 May to 24 July 2008): Sentenced to imprisonment comprising a non-parole period of 4 years and a balance of the term of 3 years 6 months. The sentence is to date from 1 April 2010. The applicant will be eligible for release on parole upon the expiration of the non-parole period on 31 March 2014. The total term is to expire on 30 September 2017.CATCHWORDS: CRIMINAL LAW - appeal against severity of sentence - commercial supply of ecstasy - whether error in treatment of previous convictions - whether error in assessment of rehabilitation prospects - youth - whether a mitigating factor that drugs supplied to undercover police officer - error in assessment of role of offender - error in assessment of objective seriousness of offence - adequacy of reasons relating to aggravating and mitigating factors taken into account - totality principle - less severe sentence warranted LEGISLATION CITED: Drugs Misuse and Trafficking Act 1985
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912CATEGORY: Principal judgment CASES CITED: Braithwaite v Regina [2005] NSWCCA 451
DBW v Regina [2007] NSWCCA 236
Georgopolous v R [2010] NSWCCA 246
Mulato v R [2006] NSWCCA 282
R v GDP (1991) 53 A Crim R 112
R v Hearne [2001] NSWCCA 37; 124 A Crim R 451
R v Kama [2000] NSWCCA 23; 110 A Crim R 47
R v Knight; R v Biuvanua [2007] NSWCCA 283; 176 A Crim R 338
R v McEvoy [2010] NSWCCA 110
R v Wilson [2005] NSWCCA 20; NSWLR 346
Regina v Chan [1999] NSWCCA 103
Regina v Taylor [2005] NSWCCA 242
Regina v Way [2004] NSWCCA 131; 60 NSWLR 168
Sivell v R [2009] NSWCCA 286PARTIES: Mark William Locke (Applicant)
Regina (Respondent)FILE NUMBER(S): CCA 2009/8623 COUNSEL: Mr M Paish (Applicant)
Mr P Ingram SC (Respondent)SOLICITORS: Tully & Co Solicitors
Solicitor for Public ProsecutionsLOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2009/8623 LOWER COURT JUDICIAL OFFICER: King DCJ LOWER COURT DATE OF DECISION: 20 October 2009
2009/8623
17 December 2010SIMPSON J
HOEBEN J
R A HULME J
1 SIMPSON J: I agree with R A Hulme J.
2 HOEBEN J: I agree with R A Hulme J and the orders he proposes.
3 R A HULME J: On 20 October 2009, the applicant, Mark William Locke, was sentenced in the District Court by his Honour Judge King SC in respect of the following four offences.
4 For an offence of supplying (between 3 and 25 April 2008) a prohibited drug, namely 3,4 methylenedioxymethylamphetamine (MDMA) on an on-going basis, the applicant was sentenced to a fixed term of imprisonment for 3 years to date from 1 October 2008.
5 For an offence of supplying (between 22 April and 29 June 2008) more than the indictable quantity of MDMA there was a sentence of a fixed term of imprisonment for 4 years to date from 1 October 2009.
6 For an offence of supplying (on 14 August 2008) not less than the commercial quantity of MDMA, there was a sentence of 7 years 6 months, with a non-parole period of 4 years, to date from 1 October 2010.
7 For an offence of supplying (between 21 May and 24 July 2008) not less than the commercial quantity of MDMA, there was a sentence of 8 years 6 months, with a non-parole period of 4 years 6 months, to date from 1 October 2011.
8 The overall sentence was one of 11 years 6 months, with a non-parole component of 7 years 6 months, with effect from 1 October 2008.
9 An offence of supplying a prohibited drug, which is contrary to s 25(1) Drugs Misuse and Trafficking Act 1985 (the Act), attracts a maximum penalty of imprisonment for 15 years and/or a fine of $220,000.
10 Offences of supplying not less than the commercial quantity of a prohibited drug (s 25(2) of the Act), and supplying a prohibited drug on an on-going basis (s 25A of the Act), both attract a maximum penalty of imprisonment for 20 years and/or a fine of $385,000. A standard non-parole period of 10 years is also prescribed in Div 1A of Part 4 Crimes (Sentencing Procedure) Act 1999 for the s 25(2) offence.
11 The judge also sentenced a number of other offenders who were involved in the same drug supply network as the applicant. Three of them also applied for leave to appeal against the sentences imposed. Although they were dealt with on separate occasions by his Honour, the applications were heard together by consent. However, as no issue of parity was raised in any of the grounds of appeal, it is convenient to deal with each application in a separate judgment. The other applications are the subject of the following judgments: McKellar v R [2010] NSWCCA 295; O’Brien v R [2010] NSWCCA 297; Ellis v R [2010] NSWCCA 298.
Facts
12 There were agreed facts before his Honour in each of the four cases which began with general observations to the following effect. The applicants (and others) were involved in a drug distribution network on the Central Coast of New South Wales. The applicant and Cameron Ellis were said to be primarily responsible for street level distribution within the network, frequently conducting their supplies as a joint criminal enterprise. They generally operated from a hotel in Toukley. At times they would use ‘runners’ who worked for them.
13 The applicant initially sourced his drugs from others, including Ryan McKellar, who had a number of customers. At a later stage the applicant was sourcing his drugs from Ben O’Brien. Cameron Ellis and another offender (Michael Streater) sourced their drugs primarily from Ben O’Brien who, in turn, obtained them from his older brother.
14 From that point the agreed facts focussed upon the offences committed by the individual offenders. In relation to the present applicant, the on-going supply offence concerned the supply of a total of 82 MDMA tablets (20.62 grams) to police undercover operatives in 5 separate transactions between 3 and 25 April 2008.
15 One of the commercial supply offences occurred between 21 May and 24 July 2008. It involved 5 separate transactions in which a total of 1,376 MDMA tablets (and some fragments) (360.28 grams) were supplied to undercover operatives.
16 The other commercial quantity offence occurred on 14 August 2008 and involved the supply of 1,000 MDMA tablets (296.1 grams) to an undercover operative.
17 The indictable quantity supply offence occurred between 22 April and 29 June 2008. It concerned 24 separate transactions in which a total of 332 MDMA tablets (estimated weight of 83 grams) were supplied to a variety of different people.
18 The applicant was arrested on 1 October 2008. The agreed facts refer to his house being searched but there is no reference to anything of significance having been found. He was taken to a police station where he exercised his right to silence and was charged.
19 Because of the prescription of a standard non-parole period for the commercial supply offences it was necessary for the judge to make an assessment as to the objective seriousness of the offences. He found that each was “at least at the high end of the mid-range”.
20 Although it was unnecessary because of the absence of a prescribed standard non-parole period, the judge made a similar assessment in respect of the other offences. He found that the on-going supply offence was “within the mid-range and towards the higher end of that broad range” and that the indictable quantity supply offence was “at least at the high end of the mid-range”.
Subjective circumstances
21 The applicant did not give evidence on sentence. Information as to his background was before his Honour in the form of a Pre Sentence Report together with a number of testimonials and certificates.
22 The applicant was aged 19 at the time of the offences, 20 when arrested and 21 at the time of sentence. He was born in the Gosford area and was the youngest of three siblings. His family moved to various locations in New South Wales when he was young. This necessitated him commencing at a new school every few years which was the source of some difficulties for him. Despite this his home life was described as positive and supportive.
23 At the age of 13 he commenced working part-time after school in a supermarket and this continued until the age of 16. He left school after completing Year 10 and continued to work in that supermarket for a further year. He then worked casually for one year in two positions. One of his employers provided a testimonial describing him as extremely reliable, hard working and honest. There were also testimonials and certificates before his Honour attesting to the work that the applicant had been doing since going into custody. He was described as a valued employee who was quick to learn and who applied himself to the task at hand.
24 The applicant informed the author of the Pre Sentence Report that he commenced binge drinking of alcohol at the age of 13 or 14 and in the 12 months leading up to the offences he was drinking up to 1½ cartons of beer and 1 bottle of rum per day. He commenced using ecstasy at the age of 18 and that continued up to his arrest. His consumption was reported to be 12 tablets every 12 hours and he said that he was addicted. He also said that he had used cannabis, cocaine and crystal methamphetamine on occasions in the two years leading up to his arrest. The applicant further claimed that from the age of 18 he was gambling on poker machines and spending “thousands of dollars a week if he had the money”.
25 The applicant pleaded guilty in the Local Court and for this the judge reduced the sentences he would otherwise have imposed by 25 percent.
26 The sentencing judge found there was no evidence before him which would support a finding that the applicant was remorseful. No complaint is raised in relation to that matter.
27 There was no significant record of previous convictions but there is an issue as to the judge’s approach to this topic which I will deal with under the relevant ground of appeal.
28 The judge also declined to make a finding that the applicant had good prospects of rehabilitation and I will say something further about that in the context of another ground of appeal.
29 Special circumstances for reducing the proportion of two of the sentences represented by their non-parole periods were found, they being the applicant’s youth, that he had not previously been imprisoned and that he would have a “substantial need for supervision for a significant period to assist him in rehabilitating himself into ordinary society” following release from prison after having served at least 7 years 6 months.
Ground 1 – The sentencing Judge erred in sentencing the appellant on the basis that his criminal record was “irrelevant to determining the sentences for the offences before the court”.
30 The applicant’s prior record comprised a matter of destroying/damaging property, which was dealt with in May 2007 and dismissed pursuant to s 10 Crimes (Sentencing Procedure) Act, and a matter of driving whilst suspended which was dealt with in August 2007 by way of fine and licence disqualification.
31 The solicitor then appearing for the applicant referred the judge to these matters but submitted that it was a mitigating factor pursuant to s 21A(3)(e) of the Crimes (Sentencing Procedure) Act that there was no significant record of previous convictions. The solicitor appearing for the prosecution conceded that to be the case.
32 The judge referred in his sentencing remarks to the two entries in the applicant’s criminal history and said:
Other than noting those matters on his record, they are irrelevant to determining the sentences for the offences before the court.
33 The submission before this Court was, in essence, that the judge failed to give any mitigating weight to this feature of the case. I reject that submission. His Honour was simply saying that whilst the applicant had prior matters, they could be ignored. I would not readily conclude, in the absence of anything definitive to the contrary, that his Honour did anything other than deal with the applicant as if he was a person with no (significant) previous convictions.
Ground 2 – The sentencing judge erred in finding the only hope of rehabilitation was the increasing age of the applicant could bring greater maturity.
34 The applicant’s solicitor submitted that the judge should find that he had good prospects of rehabilitation, “not only by reason of his age … but also by … his conduct that he’s demonstrated whilst he’s been in prison”. The judge was taken to the evidence concerning how well the applicant was regarded in terms of his employment and the skills that he was acquiring to befit him for future employment.
35 The prosecution solicitor opposed the making of such a finding. She pointed to a number of matters in the Pre Sentence Report, including that the applicant had indicated a willingness to undergo drug and alcohol rehabilitation whilst in custody but not upon his release. There were also statements in that report to the effect that the applicant attempted to minimise his role and did not fully grasp the serious nature of his offending.
36 In dealing with this topic in his sentencing remarks the judge noted that aspect of the Pre Sentence Report and then said:
There is no evidence before the court that would permit a finding that there is a good prospect of rehabilitation in respect of the offending behaviour. It can only be hoped that increasing age will bring with it a greater maturity and understanding that might facilitate rehabilitation and lower the prospect of re-offending.
37 It was submitted that the judge was wrong to have said there was “no evidence” that would permit such a finding. Counsel referred to the evidence of the lack of any significant previous convictions; that the applicant had kept out of trouble and been gainfully employed whilst on remand; and the positive comments that had been made about the applicant’s attitude to employment, both before going into custody and whilst in custody. It was submitted that the absence of mention of any of these matters in the context of the consideration of rehabilitation prospects meant that the judge either failed to take into account such matters, or took them into account and rejected them without giving reasons.
38 Each of the matters to which counsel referred was mentioned by the judge when dealing with the applicant’s general subjective case. That appears in the transcript of the sentencing remarks only a few pages before the reference to rehabilitation prospects. Clearly his Honour was aware of such matters. If the judge had said that there was no evidence as to the applicant’s rehabilitation prospects he would have been wrong. But that is not what he said. He said there was “no evidence … that would permit a finding that there is a good prospect of rehabilitation” which is an entirely different matter.
39 The applicant sought to make a connection between his drug and alcohol abuse and his offending behaviour. There was no objection to, or contradiction of, the portion of the Pre Sentence Report in which it was stated that the applicant was unwilling to engage in drug and alcohol rehabilitation following release. The applicant bore the onus of proof in establishing that he had good prospects of rehabilitation. He did not give evidence. In these circumstances it was entirely open to his Honour to come to the view that he expressed in the passage above. I would reject this ground.
Ground 3 – The sentencing judge erred in his assessment that Section 3A together with Section 21A dictated that general deterrence must have a significant role to play in the determination of sentence without balancing the applicant’s youth and immaturity as having significant weight in the determination of sentence as well.
40 It was submitted in relation to this ground that the judge should have found that the applicant’s youth was relevant to the assessment of the individual and overall sentences and not just to a finding of special circumstances.
41 The judge indicated in the course of his remarks that he was well aware of the age of the applicant, both at the time of the offences and when he stood for sentence. However, the only manner in which he applied this factor in the applicant’s favour was including it as one of three matters which justified a finding of special circumstances for the purposes of s 44 Crimes (Sentencing Procedure) Act.
42 Counsel for the applicant drew the Court’s attention to the following in the judgment of Hodgson JA in Braithwaite v Regina [2005] NSWCCA 451:
[24] However, in my opinion the sentencing judge was in error in indicating that she would not give significant weight to the applicant’s youth and immaturity. … In my opinion, the authorities referred to by Ms. Bashir indicate that youth and immaturity should be given significant weight, and that considerations of general deterrence, while they may also be significant, do not justify disregarding or discounting the offender’s youth and immaturity. In circumstances where, for reasons I will give, the sentence was in my opinion excessive, I consider this was a material error justifying appellate intervention.
43 The authorities alluded to by Hodgson JA were R v. GDP (1991) 53 A Crim R 112; R v Hearne [2001] NSWCCA 37; 124 A Crim R 451 at [23]; and R v Kama [2000] NSWCCA 23; 110 A Crim R 47 at [14].
44 In GDP, Mathews J reviewed a number of authorities dealing with the issue of sentencing young offenders. They were generally to the effect that rehabilitation should receive greater emphasis at the expense of general deterrence. It must be noted, however, that the type of offender the Court had in mind in GDP was a 15 year old who had no previous involvement in the criminal justice system.
45 The judgment in Hearne also includes a review of authorities on this topic. The Court (Powell JA, Hulme and Dowd JJ) was concerned with a sentence for murder committed by an 18 year old. Reference was made to the rationale for making an allowance for youth as being “the immaturity which is usually involved”. They continued (at [25]):
Where that immaturity is a significant contributing factor to an offence, then it may fairly be said that the criminality involved is less than it would be in the case of an adult of more mature years. Thus it was that Hunt CJ at CL in R v Allam (unreported, CCA, 13 April 1993), in a passage quoted by Sully J in R v WKR (1993) 32 NSWLR 447 at 460 said:-
“If, in a particular case, a crime has been committed and it is a crime which is, in its nature and incidents, an adult crime rather than a crime which can be conceptualised sensibly as deriving from the offender’s ‘ … state of dependency and immaturity …, then that factor is, in my opinion, strong warrant for the exercise of the relevant discretion in favour of dealing with the offender according to law.”
involved a “vicious” assault by a 17 year old upon a defenceless victim which caused permanent brain damage. A Crown appeal against a sentence of imprisonment to be served by way of periodic detention was allowed but only to the extent of increasing the non-parole period. The passage of the judgment of Spigelman CJ referred to in Braithwaite was as follows:
[14] In my opinion, his Honour was entitled to identify "emotional immaturity" as a matter justifying greater weight to rehabilitation and less weight to general deterrence. His Honour was entitled to take into account age and lack of prior convictions as justifying the selection of periodic detention rather than a full-time custodial sentence. These were all factors relevant to be taken into account by the sentencing judge, in the general way he did. The weight to be given to such matter was, within broad limits, a matter for him. In my opinion, this case is concerned with those limits.
47 The significant difference between Braithwaite and the present case is the finding by the sentencing judge in Braithwaite that the offender’s “age and immaturity contributed to him finding himself dealing in illegal substances” (Hodgson JA at [12]). The age of that offender at the time of his offences is not expressly stated in the judgment but it is stated that he was 21 at the time of sentencing so he must have been either 20 or 21 when the offences were committed 9 months earlier. There was no such finding in the present case, but nor, it would seem, was any consideration given to the issue. No submission was made to the judge that he should make the type of finding made in Braithwaite but there was repeated reference to the applicant’s young age throughout his solicitor’s oral submissions.
48 The Crown noted in written submissions the use of the offender’s age in the judge’s finding of special circumstances. However, it was then submitted that, “It would perhaps have been more appropriate for his Honour to take the youth of the applicant fully into account when setting the terms of the individual and aggregate sentences”. That submission was reiterated and confirmed in oral submissions.
49 In my view the youthfulness of the applicant was relevant to the setting of not only the non-parole periods but also the overall terms of the sentences. But whether it warranted less severe sentences (s 6(3) Criminal Appeal Act 1912) is a matter I will consider after dealing with the remaining grounds.
Ground 4 – The sentencing Judge erred in failing to sentence the applicant on the basis that no “injury, emotional harm, loss or damage” was caused by the offences constituted by the first, second and third counts.
50 The transactions involved in the on-going and commercial supply offences all concerned undercover police operatives. The judge was addressed on behalf of the applicant about the mitigating factors in s 21A(3) Crimes (Sentencing Procedure) Act that might apply but was not asked to find that there was no “injury, emotional harm, loss or damage”. There is little to wonder about that. The following from the joint judgment of Spigelman CJ, Wood CJ at CL and Simpson J in Regina v Way [2004] NSWCCA 131; 60 NSWLR 168 (which concerned drugs supplied to an undercover operative) is apposite:
[172] We also consider that it was appropriate for his Honour to have regarded the offence as one committed without regard for public safety (another s 21A(2) factor). The applicant was not to know that the buyer was an undercover operative and that the drugs would be seized and destroyed. What was relevant in this context was his motivation or understanding, so far as that went to an assessment of his moral culpability. He undertook the transaction expecting a considerable personal profit, and in the understanding that the drugs would be resold, heedless of the consequences to those who purchased and consumed them, or of the fact that users commonly resort to property offences to feed a habit, leaving other victims in their wake. The observations of Smart AJ in R v Chan [1999] NSWCCA 103 at [21] as to the limited relevance of the fact that drugs which are supplied to undercover agents will not reach the community, apply. As his Honour pointed out, that circumstance was not due to any act of the offender.
51 In relation to the supply of drugs to a police undercover operative, Smart AJ said in Regina v Chan at [21] that, “Of itself this is usually unlikely to lead to other than a very minor diminution of culpability”. Any “very minor diminution of culpability” in the present case was counter balanced by the other factor referred to in the above passage from Way, that is, the disregard for public safety. There is no merit in this ground.
Ground 5 – The Sentencing Judge erred in finding the objective criminality of the applicant falls at least at the high end of the mid-range of objective seriousness in relation to Count 3.
52 The essence of this ground is the contention that the judge failed to have regard to the role played by the applicant in the transaction with the undercover operative on 14 August 2008.
53 Cameron Ellis and Ben O’Brien were also involved in relation to this transaction. The judge did not say anything to indicate he had taken into account any comparison of the respective roles that the three had played. In the separate sentencing judgments for each, he made precisely the same finding, that is, that the objective seriousness of the offence was “at least at the high end of the mid-range”.
54 What the judge said in announcing his finding as to the objective seriousness of this offence in relation to the applicant was:
Offence 3 – Supply commercial quantity of MDMA.
A single supply of 1,000 tablets weighing 296.1 grams in exchange for a payment of $15,000. The offender, Ellis and Ben O’Brien were all present for the exchange.
The court finds that this offence falls at least at the high end of the mid-range of objective seriousness.
55 In his earlier recitation of the facts the judge described this offence as follows:
3. Supply a commercial quantity of MDMA – 296.1 grams.
4 (sic) August 2008 – 1,000 MDMA tablets. Weight: 296.1 grams, with a purity of 39%.
The operative negotiated the supply of 1,000 MDMA tablets with Ellis. Within three hours, the offender, Ellis, and Ben O’Brien met with the operative at Lake Haven Recreation Centre car park and exchanged the tablets for $15,000, at $15 each.
56 The statement of agreed facts provides further detail. All of the events occurred on the evening of 14 August 2008. An undercover operative contacted Ellis by telephone at 5.24pm and inquired if he could supply 1,000 tablets. 13 minutes later, Ellis rang back and told him he could. Two hours later Ellis left his home in the company of the applicant and Ben O’Brien and travelled to the meeting place. The applicant and Ellis sat in the rear seat of the operative’s car while O’Brien remained nearby. Ellis handed over the tablets and the operative gave him $15,000. The applicant and Ellis then left the car. They met up with O’Brien and he was given “some of the money”. Other evidence established that O’Brien had sourced the drugs from his older brother.
57 Counsel for the applicant submitted that there was no evidence that he had any involvement in the transaction apart from being willing to assist if required. The deal was negotiated by Ellis. The drugs were sourced by O’Brien. There was no evidence of the applicant receiving any of the proceeds.
58 The Crown did not really contest this ground but argued that any error in the assessment of the objective seriousness of this offence was not reflected in the sentence actually imposed. It was submitted that the sentence of 7 years 6 months would ordinarily attract a non-parole period of about 5 years 7 months. With a standard non-parole period of 10 years applying to the offence, that would indicate a sentence consistent with an offence of less objective seriousness.
59 Counsel for the applicant accepted that there are limits on appellate review of a sentencing judge’s assessment of the objective seriousness of an offence: see, for example, Mulato v R [2006] NSWCCA 282 per Spigelman CJ at [37]. However, in this case I am satisfied that the finding by the sentencing judge was not one that was open to him. The applicant’s counsel conceded that the quantity of the drug involved, being more than twice the commercial quantity threshold, was a significant matter and submitted that the overall offence may fall into the category described by the judge. But when regard is had to the role played by the applicant in comparison to the roles of Ellis and O’Brien, I am of the view the offence is slightly below mid-range.
60 There is a further aspect of the judge’s findings in relation to this offence. The expression, “at least at the high end of the mid-range” implies that he considered the offence was somewhere between the top of that range and beyond but did not feel that it was necessary to make a more precise finding: R v Knight; R v Biuvanua [2007] NSWCCA 283; 176 A Crim R 338 per McClellan CJ at CL at [4] and Howie J at [39]. As I have mentioned in the course of dealing with a similar aspect in the application by Ellis, findings of this character are not required to be made with absolute precision but there should be some indication of degree, such as “slightly above”, “significantly above” or “substantially above” (terms suggested by Simpson J in R v McEvoy [2010] NSWCCA 110 at [90]).
61 Whether a less severe sentence is warrant (s 6(3)) remains to be seen.
Ground 6 – The Sentencing Judge erred in describing the offending behaviour in Count 4 as falling at least at the high end of the mid-range of objective seriousness.
62 As I observed earlier, it was not necessary for the judge to have made such a finding in relation to this offence, given that no standard non-parole period applies to the supply of an indictable quantity of a prohibited drug: Sivell v R [2009] NSWCCA 286 McClellan CJ at CL at [5]; Georgopolous v R [2010] NSWCCA 246 per Howie AJ at [30] – [32].
63 Moreover, the same can be said about the expression “at least” as was said in connection with the previous ground.
64 The submissions made in support of this ground were twofold. First, that the assessment overstated the seriousness of the offence. Neither the quantity of drug involved (83 grams) nor the period of offending (2 months) “could take this offence above mid-range at the highest”. (The latter serves to highlight the uncertainty about what the judge meant by the use of “at least”).
65 Secondly, it was submitted that the judge may have allowed an extraneous consideration to affect his assessment. After referring to the period, the number of transactions and the quantity of drug supplied, the judge said:
The agreed facts could readily have justified the prosecution in proceeding with two separate charges of ongoing supply with a five year or 33% greater maximum penalty applying. Appropriately, because the substantial evidence relies on similar telephone intercepts and interpretation of codes, the 24 incidents have been grouped as a single charge.
66 I am at a loss to understand the purpose in referring in the first sentence of that passage to the possibility of the applicant being charged with a single but more serious offence. It seems to me most likely to have simply been an observation that was made and then put aside. The second sentence clearly demonstrates a correct understanding that there was a single charge. The judge had correctly identified at the commencement of his sentencing remarks the correct charge and the correct maximum penalty. I am not prepared to conclude that this observation had a bearing upon the assessment of the seriousness of the offence.
67 The real essence of the judge’s assessment appears in the paragraphs immediately before and after the one extracted above. He identified the dates in the charge, that there were 24 separate transactions involving “a number of different persons”, and that they entailed the supply of a total of 332 tablets with an estimated weight of 83 grams. Subsequently, he said:
The large number of individual supplies over approximately a two month period, ranging from 1 to 100 tablets, evidences the significant role that the offender played in the overall drug distribution network …
68 Once again, the Crown did not contest this ground except to make the same submission as it made in relation to the previous ground. That is, that “despite any failure by the learned sentencing judge to appropriately assess the objective seriousness of the offence in charge 4, the sentence imposed does not actually reflect any overestimation of the objective seriousness of the offence but rather is within the range of sentencing discretion assuming an appropriate assessment of the relative objective seriousness of the offences and allowing appropriately for any relevant section 21A factors and/or other subjective circumstances of the Applicant”.
69 I am not prepared to accept that the judge’s finding was not one that was open to him, assuming that the finding was at the level of high end of mid-range. I would have assessed it, if such an assessment was required, at a slightly lower level but that is not the point. Repetitive drug supply over a two month period of a total amount that greatly exceeded the indictable quantity bespeaks a serious example of the offence. I would reject this ground.
Ground 7 – The sentencing judge erred in not expressing what Section 21A(2) and Section 21A(3) factors that he took into account.
70 In support of this ground the applicant’s counsel referred the Court to a submission made by the solicitor representing the Crown that the aggravating factor listed in s 21A(2)(m) of the Crimes (Sentencing Procedure) Act was present, that is, “the offence involved multiple victims or a series of criminal acts”.
71 The submission was made in response to what the applicant’s solicitor had earlier said:
[SOLICITOR]: … Your Honour in regards to the aggravating features before you. In s 21A.
HIS HONOUR: 21A(2).
[SOLICITOR]; Yes your honour, that certainly is a fact that we cannot escape.
HIS HONOUR: Well which particular factors are you suggesting?
[SOLICITOR]: Subsection M your Honour in relation to a multiple series of criminal acts. Certainly are present and I would submit, in relation to my client’s prior history –
[SOLICITOR]: Yes that’s the case your Honour.HIS HONOUR: That would already be taken into account in relation to the offence of an ongoing supply.
72 The following page of the transcript records the Crown submission. After conceding that the aggravating factor in s 21A(2)(e) (“the offence was committed in company”) was not applicable, she continued:
[CROWN]: ... but your Honour I also agree that (m) applies, there’s multiple victims in relation to the telephone intercept supplies. Certainly that could not be submitted in relation to the other supplies but there are a series of criminal acts in relation to probably all of them except for ongoing supply which contemplates obviously multiple criminal acts.
73 When giving reasons for his assessment of the objective seriousness of the offences the judge did not mention this aggravating factor. It would, if applicable, have been relevant to that issue.
74 Shortly before announcing the sentences at the conclusion of his judgment, the judge said (in somewhat formulaic or ritualistic terms):
I must take into account such of the aggravating factors outlined in Section 21A subs (2) of that Act as are present, and such mitigating factors referred to in subs (3) of that section as are present, and any other relevant factor.
75 With respect, these are not reasons. Did the judge accept the joint position of the parties that the aggravating factor in s 21A(2)(m) applied to the offences other than the on-going supply? If he did, it was quite obviously wrong to do so in respect of the commercial supply offence that involved a single transaction. It would also have been wrong to take it into account in relation to the other offences because their objective gravity was established by the multiplicity of transactions. It was not further aggravated for precisely the same reason. The Crown conceded that this was so.
76 There have been a number of cases dealing with inadequacy of reasons in relation to aggravating and mitigating factors listed in s 21A Crimes (Sentencing Procedure) Act. For example, in R v Wilson [2005] NSWCCA 20; 62 NSWLR 346, the sentencing judge referred to certain matters of aggravation in s 21A(2) without either accepting or rejecting them expressly. Hunt AJA commented:
[42] … Sentencing judges should be careful to make it clear whether or not they accept the Crown’s submissions: R v Wickham [2004] NSWCCA 193 at [31]. It will usually be the case that, if a judge does not expressly reject the matters to which reference is made, it will be taken on appeal that the judge accepted them.
77 In Regina v Taylor [2005] NSWCCA 242, the sentencing judge had merely said, “As to the second offence, the following aggravating factors are established: sub paras (b), (c) and (g)”. Grove J referred (at [10]) to such language as “totally incomprehensible to the offender who should be the prime recipient of remarks on sentence”.
78 In DBW v Regina [2007] NSWCCA 236, the sentencing judge, in a similar fashion to the judge in the present case, had simply said, “I am mindful of the provisions of s 21A and have taken them into account”. Spigelman CJ said:
[33] The obligation to give reasons requires a sentencing judge to identify which matters have been taken into account. However, a general reference of the character made by his Honour to the effect that he had generally taken into account s21A may indicate no more than that he had considered the whole list of aggravating and mitigating factors but had given weight to those identified in his remarks on sentence.
[34] The Applicant referred to observations in this Court in R v Wickham [2004] NSWCCA 193 at [31] and R v Wilson (2005) 62 NSWLR 346 at [42] where the sentencing judge or the Crown in submissions made reference to specific matters of aggravation but made no express finding about those matters. In the present case the Applicant submits that his Honour’s reasons were defective by failing to identify which matters of aggravation he had considered. It was also submitted, perhaps in the alternative, that the Court should infer that he had accepted the Crown submissions on the substantial degree of harm.
[35] Again the Applicant relies on the same observations made in the course of submissions, but on this occasion by the Crown, rather than by his Honour. Particular reliance was placed on the Crown submissions that substantial harm would be caused to the victims. This is an aggravating factor within s21A(2)(g).
[37] But in my opinion, there is no proper basis for the inference in this case that his Honour must have accepted the Crown submissions of substantial harm. I am not minded to follow the observations of Hunt AJA said in Wilson at [42] what would “usually” occur in an appellate court in this regard. This Court should not infer that his Honour did act on the basis of the submissions of substantial harm but failed to state his reasons.[36] The obligation to give reasons requires a sentencing judge to identify which matters have been taken into account. I have already indicated that.
79 In the present case it is difficult to say whether the judge did impermissibly take into account the aggravating factor in s 21A(2)(m). Given that it was the submission of both prosecution and defence solicitors that he should, the safer course would be to assume from the absence of express rejection of the submission that he did take it into account.
80 The Crown conceded the point but stated the crucial question as being whether a less severe sentence was warranted (s 6(3) Criminal Appeal Act).
Ground 8 – The totality of the accumulated sentences is manifestly excessive.
81 I have indicated that I am satisfied that error has been established in relation to grounds 3, 5 and 7. Strictly speaking that means consideration of this ground is unnecessary, the question being one of whether a less severe sentence was warranted and should have been passed: s 6(3) Criminal Appeal Act. I believe the answer to that question is in the affirmative.
82 An affidavit by the applicant was read in the event the Court came to consider re-sentencing. It confirms that he has continued his conduct in gaol in a similar vein as the material before the District Court indicated. He has completed further courses relevant to rehabilitation and the acquisition of employment skills. These are appropriate matters to take into account. On the basis of this, and the evidence before the court below, I would assess the applicant as having reasonable prospects of rehabilitation.
83 Other relevant matters to be taken into account include the applicant’s youth, which I am prepared to infer from all of the circumstances of the case involved a degree of immaturity, and the lack of any significant previous convictions. There was evidence that the applicant had been of good behaviour and had applied himself industriously whilst on remand. There were favourable reports about the latter. There is also, of course, the applicant’s pleas of guilty. The finding of special circumstances should be maintained.
84 I have earlier set out the findings made by the sentencing judge as to the seriousness of each of the offences. I have indicated that the finding in respect of the commercial supply offence of 14 August 2008 which involved the single transaction was not open to him. I reiterate my assessment that this offence was slightly below the middle of the range. As to the two other offences where the finding included the words “at least”, I would act upon the finding with the deletion of those words.
85 The standard non-parole period prescribed for the commercial quantity supply offences does not apply because of the applicant’s pleas of guilty. It remains, of course, as a benchmark. The departure from the standard non-parole period is explained on the basis of the pleas of guilty and the other aspects of the applicant’s subjective case I have mentioned. The finding of special circumstances is an additional factor which will require even further departure in relation to the last of the sentences to be imposed.
86 I would maintain the fixed terms of 3 years for the ongoing supply offence and 4 years for the indictable supply offence. The reason no non-parole period was set in respect of those offences is that there would be no utility in doing so. The sentence for each of the commercial supply offences should be less, 7½ years in the case of the offence involving multiple supplies and 6 years in the case of the single supply offence.
87 As to totality, the one year accumulation of each of the sentences should be less. The total term should be one of nine years with an overall non-parole period of six years.
Orders
I propose the following orders:
1 Leave to appeal granted.
2 Appeal allowed.
3 The sentence for the offence of ongoing supply (from 3 to 25 April 2008) of imprisonment for 3 years to date from 1 October 2008 and expire on 30 September 2011 is confirmed.
4 The remaining sentences imposed in the District Court are quashed and in lieu, the following sentences are imposed:
Supply (indictable quantity – 22 April to 29 June 2008) : Sentenced to a fixed term of imprisonment for 4 years to date from 1 April 2009 and expire on 31 March 2013.
Supply commercial quantity (14 August 2008) : Sentenced to imprisonment comprising a non-parole period of 4 years and a balance of the term of 2 years. The sentence is to date from 1 October 2009. The non-parole period is to expire on 30 September 2013. The total term is to expire on 30 September 2015.
Supply commercial quantity (21 May to 24 July 2008) : Sentenced to imprisonment comprising a non-parole period of 4 years and a balance of the term of 3 years 6 months. The sentence is to date from 1 April 2010. The applicant will be eligible for release on parole upon the expiration of the non-parole period on 31 March 2014. The total term is to expire on 30 September 2017.
The total term is one of 9 years with a non-parole component of 5 years 6 months.
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