Michael v R
[2011] NSWCCA 122
•06 June 2011
Court of Criminal Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Michael v Regina [2011] NSWCCA 122 Hearing dates: 27 May 2011 Decision date: 06 June 2011 Before: Macfarlan JA at 1
Johnson J at 2
Garling J at 3Decision: (1) Appeal allowed.
(2) Sentence of Finnane DCJ of 11 June 2010 quashed.
(3) In lieu, the applicant is sentenced as follows:
(a) Non-parole period of 15 months commencing on 10 March 2010 which was the date the applicant was taken into custody, and expiring on 9 June 2011;
(b) A balance of term of 15 months commencing on 10 June 2011 and expiring on 9 September 2012;
(c) The applicant is to be released on parole on 9 June 2011.
Catchwords: CRIMINAL LAW - Supply of prohibited drug - Sentencing Appeal - Whether sentencing discretion fettered in assessment of isolated act of supply - Whether sentencing judge erred in not accepting applicant drug user prior to arrest - No appellable error in finding of fact by sentencing judge - Error in giving no weight to the conclusion of two expert reports about ongoing psychological management - Sentence quashed and resentenced Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Criminal Procedure Act 1986
Drug Misuse and Trafficking Act 1985 (NSW)Cases Cited: Baxter v Regina [2007] NSWCCA 237
Dinsdale v The Queen (2000) 202 CLR 321
Furia v Regina [2010] NSWCCA 326
R v Bardo, unreported, NSWCCA (14 July 1992)
R v Clark, unreported, NSWCCA (15 March 1990)
R v Gip (2006) 161 A Crim R 173
R v Gu [2006] NSWCCA 104
R v Ozer, unreported, NSWCCA (9 November 1993)
Scott v R [2010] NSWCCA 103Category: Principal judgment Parties: Glenn David Michael (Applicant)
Crown (Respondent)Representation: Counsel:
D. Barrow (Applicant)
J. Girdham (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Department of Public Prosecution (Respondent)
File Number(s): 2008/067556 Decision under appeal
- Jurisdiction:
- 9101
- Citation:
- R v Glenn David Michael
- Date of Decision:
- 2010-06-11 00:00:00
- Before:
- Finnane DCJ
- File Number(s):
- 2008/67556
Judgment
MACFARLAN JA : I agree with Garling J.
JOHNSON J : I agree with Garling J.
GARLING J : This is an application for leave to appeal in respect of a sentence imposed in the District Court of NSW by his Honour Judge Michael Finnane on 11 June 2010.
The applicant, Glenn David Michael, was found guilty by a jury of supplying 5.87grams of a prohibited drug, namely, 3,4-methylenedioxymethylamphetamine which was not less than an indictable quantity contrary to the provisions of s 25(1) of the Drug Misuse and Trafficking Act 1985.
The maximum penalty for the offence is 15 years imprisonment and/or a fine of 2000 penalty units ($220,000) or both. No standard non-parole period applies.
The sentencing judge imposed an overall sentence of 4 years to commence on 10 March 2010 with a non-parole period of 2 years to commence on 10 March 2010 and expire on 9 March 2012.
The sentencing judge also made an order with respect to the destruction of drugs and the forfeiture of money. No application for leave to appeal is made with respect to these orders.
Facts
Although the trial was conducted before a jury, not all of the facts were in dispute. For the purposes of sentencing, the learned sentencing judge made some findings of fact to which it will be necessary to refer.
On the evening of 19 December 2008, the applicant was at the Plantation Hotel in Coffs Harbour. He was then aged 43.
Police had been called to the Hotel in the course of that evening by security guards who had observed a Mr John Mostyn selling drugs to a hotel patron. In the course of dealing with Mr Mostyn, police received information which suggested that the applicant may have been in possession of drugs.
At about 12.20am on 20 December 2008, police approached the applicant at the Plantation Hotel and arrested him. He was searched. That search revealed that he was carrying 20 tablets on him. Ten of the tablets were contained in a matchbox, the other ten were inside a piece of foil. The applicant was also in possession of $597. Police seized this money.
The tablets were later analysed and were found to weigh a total of 5.87 grams of the prohibited drug, commonly known as ecstasy. The purity of the tablets was 25 per cent.
In addition to the offence for which he was found guilty, the applicant was also charged with an offence of supplying a prohibited drug, namely ten tablets of ecstasy, on 19 December 2008. This referred to the transaction of which Mr Mostyn in due course gave evidence at trial as having occurred on the evening of 19 December 2008 before the police spoke to and arrested the applicant.
The jury found the applicant not guilty of that offence.
A charge of unlawfully obtained goods in custody ($597) was by a certificate under s 166 of the Criminal Procedure Act 1986 put before the sentencing judge. It is not clear precisely how his Honour dealt with this matter nor the basis for any orders which he made. However, the order which he made on this matter formed no part of the present application and accordingly can be put to one side.
Applicant's Submission on the Trial
The applicant gave evidence at the trial. He told the jury that he was then 43 years of age, that he was the father of two children, then aged 20 and 17. He had operated a business in Coffs Harbour between 2001 and 2005, engaged in the servicing and maintaining of boats. The business ceased trading in 2005. His wife left him in that year and although he continued to care for both of his children, after some time his older son went to live with his former wife.
In 2006, the applicant told the jury he had had a particularly difficult year because due to the deterioration of his financial circumstances his matrimonial home was sold, his mother had fallen seriously ill that year and died, he himself had suffered from a serious illness and had been hospitalised, and of course he was unemployed and relied on social security payments throughout the period.
From about mid 2008 onwards the applicant had moved out of a rented home and occupied a rented mobile home with his younger son.
It was the applicant's case before the jury that his possession of the 20 tablets was entirely for his own use.
He gave extensive evidence that regularly on every second weekend throughout 2008, from about June onwards, he had been accustomed to attending at the Plantation Hotel and purchasing four ecstasy tablets at a time. It was then his regular habit to take two of the tablets immediately and then some hours later, as their effect wore off, he would take the remaining two.
According to the applicant's evidence, because he was in possession of more than the usual sum of money from social security in December, and he was intending to travel to Queensland to spend the Christmas period with his sister, and because he could obtain a discount on the individual tablet price if he bought 20 tablets, he had, that evening, purchased 20 tablets from Mr John Mostyn and had them in his possession for his own use.
That account of the applicant was challenged by the Crown in cross-examination during the trial.
It was the Crown's case, and the cross-examination was directed to this end, that the applicant was engaged in selling the tablets to make some extra money over and above his social security payments, and that on the particular evening in question, having supplied Mr Mostyn with 10 ecstasy tablets (about which the jury were not satisfied), that he was at the Hotel because there was a disco underway at which there were a number of young people in attendance. It was said on the Crown case that the applicant was intending to sell the drugs to those attending the disco.
Both the applicant's counsel and the Crown in this Court, accepted that the verdicts of the jury at the trial were explicable upon the basis that the jury had a reasonable doubt about whether the applicant sold any tablets to Mr Mostyn, and conversely, it was clear that the jury were not persuaded on the balance of probabilities that the 20 ecstasy tablets found on the applicant were for his own use.
The relevance of the last matter upon which counsel were agreed is to be found in s 29 of the Drug Misuse and Trafficking Act . That section provides that where a person is found in possession of a traffickable quantity of the prohibited drug, then he or she is deemed to have the drug in their possession for supply unless:
"... the person proves that he or she had the prohibited drug in his or her possession otherwise than for supply ..."
Clearly, if the jury had accepted that the possession of the 20 tablets were for the applicant's personal use, then there would not have been any question of a deemed supply and the jury would not have proceeded to a conviction under s 25(1) of the Drug Misuse and Trafficking Act .
The traffickable quantity of 3,4-methylenedioxymethylanphetamine is 0.75 grams. The indictable quantity is 1.25 grams. The weight of the drug with which the applicant was found was clearly in excess of these amounts. It was significantly less than the commercial quantity of 125 grams: Schedule 1 Drug Misuse and Trafficking Act .
Applicant's Submissions on Sentence
The submissions on sentence were taken on Friday, 4 June 2010.
The applicant did not give any further evidence on the hearing of the sentencing proceedings. The sentencing judge had the benefit of a pre-sentence report, a report of a clinical psychologist, Mr Sam Borenstein, and a letter from the applicant's sister. In addition, the applicant's son, Benjamin, gave sworn evidence. At the commencement of the hearing on that day, Mr Brewer, a lawyer who appeared for the applicant, asked for a short adjournment so that he might have a conference with and speak to the applicant. His Honour granted that request. But before standing the matter down, his Honour made this remark:
"You go and talk to Mr Michael. I might say he's got some problems because he was caught in a hotel actually distributing drugs to people at a dance, so ..."
Unsurprisingly, in light of the apparently erroneous view which these remarks represented, the applicant's lawyer reminded his Honour that that was a matter of a disputed fact and he would be making submissions about it.
After the adjournment, when the proceedings were resumed, it was submitted on behalf of the applicant that the judge would have regard to the fact that whilst he had a criminal record, it was not a serious one and there were no matters relating to the supply of drugs being recorded.
It was also submitted that the learned sentencing judge would have regard to the contents of the report of Mr Borenstein with respect to a number of aspects of the subjective case of the applicant. It was submitted that the report of Mr Borenstein and the report of the Probation and Parole Service were largely in agreement and that his Honour would take those subjective factors about the applicant's social history and psychological state into account.
It was put that the evidence did not suggest that the applicant was a " career drug supplier " and further, that the difficulties in the applicant's life to which I have made reference, were such as to provide the context and background of the applicant's engaging in this one offence.
In its submissions, the Crown merely recorded a submission that the matter was properly one which required the imposition of a sentence which included a period of fulltime custody, but it made no submission to the sentencing judge as to the appropriate length of that fulltime custody period. The Crown said "... as to how long is a matter for you" .
Remarks on Sentence
With respect to the jury's guilty finding, his Honour said this:
"However, they found him guilty of the second count. Again this was not a surprise, to have a man in his forties with a pocket full of ecstasy tablets and cash in a disco for young people at the Plantation Hotel, it was hardly a surprise that they would find him guilty on the basis that he had these drugs in his possession for the purpose of supply".
His Honour recorded, briefly but accurately, the subjective case of the applicant.
He turned to the disputed question of fact as to the purpose for which the applicant was in possession of the 20 ecstasy tablets. His Honour resolved this question because he did not accept the applicant as a truthful witness when the applicant gave evidence that he was a user of ecstasy. In that respect, his Honour said this:
"I do not believe him when he said he had these drugs for his own use and indeed the jury did not believe him because they found him guilty.
It has been put to me by his counsel that he had these drugs partly for his own use and partly for sale so that he could get more money to buy more drugs. That is a fairly common occurrence of drug users. In my opinion there is no evidence that would support such a claim, except his evidence, and in my view, he is not a truthful witness.
In my opinion he was in the Plantation Hotel with the drugs in his possession for the purpose of selling to young people who were at the disco. If he had not been apprehended by police at the time that is what he would have ended up doing. The money that he had in his possession at the time was something over $500 and in my opinion it was proceeds from sales, before he was arrested."
His Honour entirely discounted the report of Mr Borenstein, the clinical psychologist, largely because it was based upon what the applicant had told Mr Borenstein, and his Honour found that he was not satisfied that the applicant was credible.
His Honour then recorded his findings somewhat briefly in the following way:
"People who act to distribute drugs of addiction, such as ecstasy, can expect to receive gaol sentences and that is what he will receive. He will receive a gaol sentence that is tempered by the fact that this is the first time that he will have been to gaol and he could not be regarded as being a long term drug dealer. He should be sentenced on the basis that this is an occasion in which he took the opportunity to get drugs from someone and sell them in the Plantation Hotel for the purpose of making money."
His Honour then imposed the sentence to which I have earlier made reference. His Honour expressed the view that it was: "... a relatively modest one ".
Grounds of Appeal
Four grounds of appeal are relied upon by the applicant:
"1. His Honour erroneously fettered his discretion to impose a sentence other than one of full time custody.
2. His Honour erred in not accepting the applicant had become a drug user in the months before his arrest.
3. His Honour erred in concluding that the applicant did not need continuing psychological assistance.
4. The sentence is manifestly excessive."
Ground 1
It was clear that the applicant had never previously been convicted of supplying a prohibited drug. It was submitted by the applicant that the amounts involved in this case were modest and there was a real question as to whether he could have been said to have been involved in drug trafficking " ... to a substantial degree ".
This submission was based upon a consistent line of authority in this Court that where an offender has been " substantially involved in the supply of a prohibited drug ", unless there are truly exceptional circumstances, a fulltime custodial sentence ought to be imposed: see R v Gu [2006] NSWCCA 104 per Howie J (Grove and Simpson JJ agreeing); Scott v R [2010] NSWCCA 103 at [27]-[29] per Hislop J (Allsop P and Grove J agreeing).
In R v Ozer, unreported, NSWCCA (9 November 1993), Hunt CJ at CL held that where an offence was a limited and isolated event, the offender was not trafficking in the sense in which he had used that expression.
In R v Gip (2006) 161 A Crim R 173, when considering this line of authority McClellan CJ at CL discussed two unreported decisions of this Court, namely R v Clark, unreported, NSWCCA (15 March 1990) and R v Bardo , unreported, NSWCCA (14 July 1992). These were the decisions to which Hunt CJ at CL had referred in Ozer . McClellan CJ at CL said at [13] this:
"My understanding of these various statements is that where a finding can be made that an offender has engaged in repeated offences so that his or her activities can be described as trafficking, a full time custodial sentence should, unless there are exceptional circumstances, be imposed. However, if only one offence can be proved, but the circumstances surrounding that offence indicate that it was the result of a sophisticated commercial arrangement, the objective criminality involved may also require a custodial sentence, unless exceptional circumstances can otherwise be shown."
Rothman J in Gip cautioned that the views expressed in Clark and Bardo ought not be regarded as if they were a legislative enactment. He said that the proper approach for a sentencing judge was to concentrate on the substance of what was revealed by the facts in each case. At [43]-[44] he said:
"43. The ultimate question is whether the accused is involved, in the ordinary sense, in trafficking. The mere fact that a person has been caught on only one occasion does not mean the person is not involved in trafficking. The question for the sentencing judge is whether there are facts, proven beyond a reasonable doubt, which facts give rise to an exercise of discretion consistent with the approach in Clark . Those facts may be an agreement to supply on another occasion, and attempt to supply on another occasion, participation in a process which envisages supply on more than one occasion, participation in a syndicate, or a number of other circumstances.
44. The ultimate question must be whether, on the application of ordinary principles of sentencing, full-time custody is warranted. In any situation where the person has been shown to have been involved (directly or indirectly) in an ongoing arrangement, or intended ongoing arrangement, for the supply of drugs, that person, for the purpose of the sentencing principle, should be taken to have been involved in trafficking. The isolated, one off incident of supply, ... does not include persons who, although charged with one offence, are otherwise shown to have an involvement in a process which contemplates supply on more than one occasion. That could be shown, as already stated, by proving any one of a range of activities which give rise to the inference of past, present or future involvement in trafficking."
I respectfully agree with the statement of Rothman J as to the proper approach by a sentencing judge, in the circumstances of a case such as this.
The remarks of the sentencing judge which I have extracted above at [39] do not make it plain that his Honour gave any consideration to this line of authority in this Court. What his Honour was required to do for the purpose of sentencing was to determine whether this was an isolated act of supply, or whether it could properly be said that the applicant was involved in trafficking to a substantial degree or else involved in a process which contemplated supply on more than one occasion.
The remarks of his Honour do not indicate that he did this. Rather they indicate that he took the view that jail sentences ought automatically be imposed on people who are convicted of offences such as the applicant was. By taking this erroneous approach, the learned sentencing judge eliminated from his consideration a range of penalty options which were open for consideration as part of the proper exercise of his discretion.
It is to be recalled that in this case, the applicant was charged with supplying the prohibited drug upon the basis of the quantity which was in his possession. The sentencing judge made no finding that there were any facts which gave rise to any inference of drug trafficking, he made no finding that there was any drug trafficking nor that this was anything other than a single occasion when the applicant was involved in the offence of supply of drugs. On the contrary, the final sentence of his Honour's remarks seems to suggest that the conduct on the evening of the applicant's arrest was an isolated event.
There was a particular importance in the judge addressing this issue in this case because the jury had found the applicant not guilty of the first count in the indictment which was a count of actual supply to Mr Mostyn earlier during the evening of his arrest. Faced with the jury verdict, a finding by the sentencing judge that the applicant's conduct mandated a full time custodial sentence because he had a substantial involvement in drug trafficking, needed additional proved facts from which that inference could be drawn. They were not found by the sentencing judge and are not readily to be found in the record of the proceedings.
In those circumstances, his Honour was in error to take the view that the facts of this case required sentencing only to a term of fulltime custody. On the contrary, the facts of this case and one of his Honour's findings, suggested that this was an isolated incident and it was open to his Honour to consider the full range of penalty options. His Honour did not do this.
The applicant is entitled to succeed on this ground.
Ground 2
This ground of appeal suggests an error by the sentencing judge in not accepting that the applicant had become a drug user in the months before his arrest.
The evidence that the applicant was using drugs in the months before his arrest was a matter of contest before the jury.
There were a number of sources of evidence that the applicant was a drug user. The applicant gave evidence on his oath to the jury. As well, there were the accounts which the applicant himself gave to Mr Borenstein, the clinical psychologist, to Ms Clements, the Probation and Parole Officer who compiled the pre-sentence report, and to his sister, who recorded that account in her letter to the sentencing judge.
The applicant's son, Benjamin, who gave evidence at the sentence hearing denied any knowledge of his father consuming illicit drugs.
As is plain from the jury's conviction, and as counsel for the applicant accepted, the jury must have rejected the applicant's evidence that he had the drugs in his possession for personal use.
His Honour, having observed the applicant give evidence both in chief and under cross-examination, formed the view that he would not believe the applicant's evidence about his personal usage of drugs. He went further and said that he was satisfied that the applicant's evidence was not truthful or honest. Although expressed in this general way, the context of the sentencing remarks suggest that this finding was directed to the disputed question of whether the applicant himself used drugs.
Because his Honour formed the conclusion that he could not rely upon the applicant as a witness of truth, he made a finding that he did not accept that he used drugs. This is a finding of fact which the applicant seeks to overturn.
This Court is confined in its approach to overturning findings of fact by a sentencing judge. McCallum J (with whom McClellan CJ at CL and Hidden J agreed) said in McBeth v R [2009] NSWSCCA 235 at [30]:
"30 Many of the applicant's grounds concern the sentencing Judge's findings of fact. It must be recalled, however, that the task of this Court is confined to determining whether there was error in the sentencing of the applicant on the principles stated in House v R [1936] HCA 40; 55 CLR 499 at 504-505. This Court's power to substitute its own findings of fact for those of the trial judge arises only if the Judge 'mistakes the facts' in the sense there understood. It is necessary to establish that there is no evidence to support the finding, or that the evidence is 'all one way', or that the Judge has misdirected himself: R v O'Donoghue (1988) 34 A Crim R 397 at 401 per Hunt J, Carruthers and Wood JJ agreeing."
See also Furia v Regina [2010] NSWCCA 326 at [35] per R A Hulme J (Giles JA and Hislop J agreeing).
Particularly where demeanour of a witness while giving evidence has been a central element in the assessment of the credibility of a witness, then the circumstances are likely to be exceptional before this Court would regard itself as being in a position to come to a different factual finding.
The finding of fact subject to this ground of appeal was open to the sentencing judge. It is the view which the Crown contended for, and it is the view which, at least to some extent, the jury accepted.
Importantly, it is a conclusion in which the demeanour and credibility of the applicant was a relevant and central consideration.
I cannot be satisfied that the sentencing judge's finding was one occasioned by misuse of his advantage nor that the decision was the result of an absence of evidence or other error by the sentencing judge, and accordingly it is not a matter upon which this Court should intervene.
This ground of appeal fails.
Ground 3
It is submitted in this ground that his Honour erred in concluding that the applicant did not need continuing psychological assistance.
The applicant submits that even if the learned sentencing judge disbelieved the applicant's evidence as to his personal drug use there remained a body of unchallenged evidence which detailed substantial difficulties encountered by the applicant in his life during the period 2005 to 2006 and in subsequent years which led to the opinions expressed that the applicant needed ongoing psychological counselling and assistance.
The Crown submitted that it was open to the sentencing judge to disregard the two reports as he had done.
The Crown tendered to the Court a Probation and Parole Service Pre-Sentence Report. It was compiled by Ms Clements on 6 May 2010. She concluded:
" Suitability for Supervision
Taking into account all of the above information and incorporating a standardised risk/needs assessment process, the offender is suitable for a medium level of intervention by this Service, commensurate with the assessed risk. The individualised case plan would include strategies to address the following identified areas of criminogenic need:
Drug and Alcohol Issues - referral to appropriate treatment programmes or counselling in regard to his drug use and monitoring of his progress.
Mental Health Issues/Grief Issues - encourage attendance at appropriate programmes and treatment options to address issues connected to his possible depression, unresolved grief issues, and coping skills.
Positive Activities/Employment and Training options - referral to appropriate job training and education programmes. Encourage participation in employment programs such as the personal support programme run by Centrelink."
Ms Clements' report was based on an interview with the applicant, a telephone interview with the applicant's sister, a telephone interview with a friend of the applicant, and a perusal of the relevant service records, court depositions and police facts.
As well, the applicant's son gave evidence which corroborated, albeit in short form, the substance of the history, excluding personal drug use, which the applicant gave the Probation and Parole Service.
His Honour referred to information which had been provided by the applicant to the Probation and Parole Service by way of history and background. He noted that the applicant had told the Probation and Parole Service about his personal drug use which his Honour noted he did not believe. However, his Honour made no other reference to the conclusions of the Probation and Parole Service, gave no indication whether he accepted or rejected the opinions which were expressed and did not indicate whether he regarded the fact that the Probation and Parole Service had taken histories and made inquiries of people other than the applicant merited any consideration. His Honour seemed entirely to disregard the report, and he rejected the recommendation of ongoing counselling and treatment. It seems to be clear that his Honour gave the Probation and Parole Report no weight whatsoever, and only because he disbelieved the applicant on the question of his personal drug use, and found him not to be a truthful witness in that respect.
There was also a report by a clinical psychologist, Mr Sam Borenstein.
Mr Borenstein was a clinical psychologist, well qualified, who had been in practice for over 20 years and was well experienced in consulting patients with a broad spectrum of psychological conditions.
Mr Borenstein interviewed the applicant at length and obtained a detailed history and background. He made observations of the applicant during the examination. For example, he noted that the applicant was "... clearly anxious, tense and agitated. His mood is deemed to be severely depressed. He presented as emotional and teary ".
He expressed this opinion:
"Mr Michael ... developed a significant depressive illness typified by sleep disturbance, appetite disturbance, weight loss, reduced concentration, impaired motivation, distractibility, anhedonia, guilt, nihilistic thinking, withdrawal and isolation.
...
On examination, Mr Michael was clearly depressed and highly emotional. He is uncertain as to how to proceed in life. ...
Mr Michael's decision has had a disastrous effect on him. He now reflects on his life circumstances, and as stated, is in the throws of a Major Depressive Illness.
Mr Michael remains with unresolved grief, particularly as it pertains to his ex-wife and death of his mother. Mr Michael enjoys a very close relationship with his sister, who is twelve months older. He rarely sees his brother who is ten years his senior.
Upon release from gaol, Mr Michael should undertake relevant psychological assistance, not only with regards to helping reconstruct his life but also to deal with his propensity to depression and anxiety. Mr Michael has not properly resolved significant losses sustained within a twelve month period between 2005 and 2006, of the sort documented in the body of this report."
Mr Borenstein went on to recommend that the applicant should undertake 12 sessions with a clinical psychologist to treat his depressive illness.
Mr Borenstein was not required for cross-examination by the Crown, and accordingly, there has been no direct challenge to the contents of his report. When the report was tendered on 4 June 2010, the Crown simply made this submission:
"Woods: I have seen the documents your Honour, no objection to its tender. The findings and conclusions in the report are based on the self reporting of Mr Michael to the psychologist. There is no indication that any tests were administered. Apparently there is something called deemed depression, I'm not sure what that is. What weight your Honour attaches to it is a matter for you."
The fact that his Honour was not inclined to accept Mr Borenstein's report became apparent within a few minutes after it was tendered when, during submissions by the applicant's lawyer, his Honour said:
"His Honour: Mr Borenstein's report is not worth tuppence halfpenny is it? Its not a psychologist's report, all it is the taking of a history and in the history your client apparently told him he was depressed, so he says he's depressed. He carried out no tests on him, he just accepts everything he says. Why would I think it's of any value anyway? Most people in gaol are pretty depressed, a pretty depressing place to be, so what."
The applicant's lawyer submitted to the sentencing judge that in fact he would be wrong to regard Mr Borenstein's report in that way, the history and background which he had was, in fact, corroborated, and that Mr Borenstein's clinical skill and expertise was a matter which should be taken into account in deciding whether to rely upon the report.
In his remarks on sentence, the sentencing judge made reference to this report. He concluded that it was largely based on what the applicant had told Mr Borenstein. He noted that he did not regard the applicant's claim to be a drug user as being true. His Honour then appears to have discounted the entirety of the report without regard to the fact that much of the material in the report was corroborated both by the Probation and Parole Service Report, and also by the evidence of the applicant's son. As well, there was no reason to disbelieve the accuracy of the history which was given. There was nothing about the evidence which the applicant gave during the trial which would have enabled the sentencing judge to disbelieve that material.
Of the report, the sentencing judge said:
"Mr Borenstein is also of the opinion that the offender needed continuing psychological assistance. I am unable to see on what basis that could be so."
As I have said, the Crown did not cross-examine Mr Borenstein with respect to this opinion nor were any submissions made which were directed to this particular conclusion. His Honour clearly gave the report no weight whatsoever. Whatever view his Honour took about the veracity of the applicant with respect to his claim to have used ecstasy tablets in the months leading up to his arrest, I can discern no adequate basis to disregard the entirety of Mr Borenstein's report and give it no weight whatsoever.
Much of the material was corroborated by other reports and evidence before his Honour. As well, his Honour seems to have completely mistaken Mr Borenstein's recommendation for further psychological counselling. He seems to have believed it had something to do with the drug usage which the applicant said that he was engaged in. In fact, what Mr Borenstein recommended was psychological assistance dealing with the applicant's propensity to depression and anxiety and assisting him to resolve grief issues surrounding the significant losses sustained in the period 2005 and 2006.
This ground of appeal is based upon the proposition that the sentencing judge was in error in giving no weight to the conclusion of the two expert reports before him about the need for the applicant to have ongoing psychological care and assistance.
Error has been demonstrated. His Honour was not entitled to give these reports no weight at all. They were entitled to a consideration in the matrix of material before his Honour on the sentencing issue. What weight they ought to have been given was something which his Honour needed to consider and determine. His Honour failed to do this.
The relevance of the recommendations in the report is that they ought lead to a consideration of all of the appropriate sentencing options including the appropriate length of time which the applicant should spend in jail without parole, and the appropriate length of time for which the applicant ought to have been subject to supervision whilst on parole.
This ground of appeal succeeds.
Ground 4
The applicant submits that the sentence was manifestly excessive.
As indicated above, I am of the opinion with respect to grounds 1 and 3 that the exercise of sentencing discretion by the sentencing judge was in error and that it has miscarried, because he ought to have had regard to matters of evidence to which he had no regard, and that he ought to have had regard to a broader range of penalty options than he did. Unless I can be satisfied on the basis of the evidence now before this Court, and having regard to proper sentencing principles, that the sentence imposed, despite the error, was an appropriate one, then the applicant is entitled to have the sentence quashed and to be resentenced: s 6(3) Criminal Appeal Act 1912. See Baxter v Regina [2007] NSWCCA 237.
In those circumstances, it is unnecessary to give detailed consideration to this ground because "manifest excess" is only another kind of error which is sufficient to engage the process required by s 6(3): Dinsdale v The Queen (2000) 202 CLR 321 at [6] per Gleeson CJ and Hayne J, [59]-[60] per Kirby J; Baxter at [14] per Spigelman CJ.
Given the nature of this kind of offence and the variety of factual circumstances which will fall for consideration by a sentencing judge with respect to an offence such as this, it is necessary to be cautious when expressing views as to manifest excessiveness, or manifest inadequacy, of a sentence unless necessary so to do. In this case it is not necessary.
Resentence
It is necessary for this Court to re-exercise the sentencing discretion, having regard to the evidence, relevant statutory requirements, and the principles of sentencing to see if it is of the opinion for the purpose of s 6(3) of the Criminal Appeal Act , that a lesser sentence is warranted in law.
There were particular features of this case including the subjective features of the applicant, which indicate that it is not a typical example of an offence found of this kind.
The offence is a serious one. It is one where the authorities require that general deterrence must be given importance.
On the other hand, on the facts proved, this was a single event, the quantity of the drugs of which the applicant was in possession was towards the low end of the scale, and the Crown did not establish any history of supply or any facts demonstrating ongoing participation to a substantial degree in the supply of drugs.
The criminality of the offence was at the lower end of the scale. The applicant had a strong subjective case and would benefit from appropriate psychological help and assistance.
Having regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999, I would impose the following sentence:
(a) Non-parole period of 15 months commencing on 10 March 2010 which was the date the applicant was taken into custody, and expiring on 9 June 2011;
(b) A balance of term of 15 months commencing on 10 June 2011 and expiring on 9 September 2012;
(c) The applicant is to be released on parole on 9 June 2011.
Orders
(1) Appeal allowed.
(2) Sentence of Finnane DCJ of 11 June 2010 quashed.
(3) In lieu, the applicant is sentenced as follows:
(a) Non-parole period of 15 months commencing on 10 March 2010 which was the date the applicant was taken into custody, and expiring on 9 June 2011;
(b) A balance of term of 15 months commencing on 10 June 2011 and expiring on 9 September 2012;
(c) The applicant is to be released on parole on 9 June 2011.
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Decision last updated: 06 June 2011
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