Mitchell v R

[2008] NSWCCA 192

New South Wales
Court of Criminal Appeal

CITATION:	Shane Bradley Mitchell v R [2008] NSWCCA 192
HEARING DATE(S):	8 August 2008
JUDGMENT DATE:	8 August 2008
JUDGMENT OF:	McClellan CJ at CL at 23; Grove J at 25; Blanch AJ at 1
DECISION:	Application for leave to appeal granted. Appeal allowed. Sentence imposed in the District Court quashed. On each offence the applicant is sentenced to a non-parole period of 18 months and a balance of term of six months to be served concurrently, the head sentence and the non parole periods to commence on 3 July 2008. Order his release to parole on 2 January 2009 under the terms of supervision specified in the Schedule to the Crimes (Sentencing Procedure) Act 1999.
CATCHWORDS:	Appeal against severity of sentence - supply prohibited drug - consideration of principles of consistent sentencing as opposed to parity of sentencing
LEGISLATION CITED:	Drug Misuse and Trafficking Act 1985 s25 Crimes (Sentencing Procedure) Act 1999 s44
CATEGORY:	Principal judgment
CASES CITED:	Lowe v The Queen (1984) 154 CLR 606 R v Clark unreported NSWCCA 15 March 1990 R v Emery unreported NSWCCA 7 November 1997
PARTIES:	Shane Bradley Mitchell (Applicant) Regina (Respondent)
FILE NUMBER(S):	CCA 2007/3468002
COUNSEL:	P Hamill SC (Applicant) N Noman (Crown)
SOLICITORS:	Intercept Law (Applicant) S Kavanagh Solicitor for Public Prosecutions (Crown)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	07/31/0023
LOWER COURT JUDICIAL OFFICER:	English DCJ
LOWER COURT DATE OF DECISION:	2 August 2007
LOWER COURT MEDIUM NEUTRAL CITATION:	R v Shane Bradley Mitchell

1 BLANCH J: By notice of appeal dated 6 March 2008 the applicant seeks leave to appeal against a sentence imposed at East Maitland District Court on 2 August 2007 in respect of two charges of supplying a prohibited drug contrary to s 25 of the Drug Misuse and Trafficking Act which carries a maximum penalty of 15 years imprisonment.

2 The offences occurred on 11 October 2006 and the applicant was sentenced on each count to a head sentence of three years and four months and a non-parole period of two years and six months commencing on 3 July 2007. The non-parole period was set to expire on 2 November 2010. He was sentenced to the same sentence on each of the two offences and the sentences were to be served concurrently.

3 On 11 October 2006 Police and Customs investigators went to premises in Hannell Street, Newcastle where the applicant was living, as were two of his friends, Trent Parker and Jason McAllister. It was indicated drug detection dogs would be brought in and the applicant was asked whether he had any drugs. He told police he did have some drugs because he was going away on a "bucks weekend". In plastic bags, indicated by the applicant, police found 14.36 grams of cocaine at a purity of 50% and 26.9 grams of methylamphetamine at 16.5% purity.

4 At the premises police also located a total of $34,861.50 in cash and three mobile phones. This gave rise to a question at the sentencing proceedings as to whether or not the applicant was dealing commercially in drugs. He said he was not and that he and nine friends were going to Queensland for a wedding and the drugs were to be distributed amongst at least six of those men who were flying to Queensland.

5 The sentencing Judge inquired into this question and concluded that it was "... a one-off purchase of cocaine and amphetamines, purchased with pooled funds from six friends, intended to be consumed on the Gold Coast in accordance with the version given to police on the date of his arrest". The Judge found that the money represented legitimate proceeds of a business. That finding was open to her Honour and it is not challenged.

6 There are two major thrusts to the application for leave to appeal lodged in this case. The first is the existence of a justifiable sense of grievance arising from the disparity between this sentence and the sentence imposed on Trent Parker. The second is that the Judge erred in applying sentencing principles relating to drug supply and consequently imposed a manifestly excessive sentence.

7 Trent Parker appeared for sentence at the East Maitland Courthouse on the following day 3 August 2007. He pleaded guilty to one count of supplying methylamphetamine on 11 October 2006 and one count of supplying methylene dioxymethylamphetamine (ecstasy) on the same day. When the police went to the premises occupied by both offenders in Hannell Street, Newcastle on 11 October 2006 Parker admitted he did have possession of drugs. He gave to the police two packages, one contained 48.6 grams of methylamphetamine at a purity of 30%, the other bag contained 100 tablets weighing 29.9 grams of methylene dioxymethylamphetamine (ecstasy). Police also found another small quantity of ecstasy and 0.06 grams of cocaine. The total weight of drugs in his case was 30.61 grams of ecstasy, 48.6 grams of methylamphetamine and 0.06 grams of cocaine.

8 The first ground of appeal seeks to raise the question of a justifiable sense of grievance and reliance is placed on the line of authorities following Lowe v The Queen (1984) 154 CLR 606. In that case Mason J said at page 613:

"... a court of appeal is entitled to intervene when there is a manifest discrepancy such as to engender a justifiable sense of grievance, by reducing a sentence, which is not excessive or inappropriate considered apart from the discrepancy, to the point where it might be regarded as inadequate."

9 That case was a case involving co-offenders and this issue normally arises in cases where sentences have been imposed on co-offenders. This is not such a case because the applicant and Parker purchased the drugs individually although with the purpose of going to the same function in Queensland and distributing the drugs to the other members of their party. Parker also said he was aware Mitchell had the drugs.

10 Although not a case of discrepancy in sentencing of co-offenders, this is a case of markedly different sentences imposed on two men who were living in the same house, who were each engaged in the same activity for the same purpose on the same day.

11 In Lowe v The Queen supra Mason J said at 610:

"Just as consistency in punishment - a reflection of the notion of equal justice - is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community."

12 The truth of his Honour's remarks can be illustrated in this jurisdiction by the keeping of sentencing statistics by the Judicial Commission which allows some broad picture to be gained of the types of sentences imposed for offenders of varying types in respect of various offences. In this jurisdiction this Court also provides guideline sentences in respect of particular offences. It is also common in this Court for a number of other like cases to be quoted as demonstrating that the sentence under review lacks consistency with sentences for like offences. All of this is directed at attempting to achieve some consistency in sentencing. It cannot be said that achieving consistency in sentencing is an exact science because there are so many variable factors relating to both offenders and offences. That does not relieve this Court of the task of attempting to apply an important principle of sentencing law.

13 In this particular case the man Parker was sentenced to a non-parole period of 12 months and a total term of two years and six months on one offence and a non-parole period of 12 months and a total term of 18 months on the second offence. Those sentences were ordered to be served by way of periodic detention.

14 There is in consequence a significant difference in the sentences imposed by the same judge when the sentences were imposed on two consecutive days. This applicant is required to serve a minimum of two years six months full-time custody whereas Parker is required to serve a minimum period of 12 months periodic detention. I believe it is necessary therefore to examine the respective cases with a view to ensuring there is a general sense of consistency in the sentencing.

15 This applicant was born on 29 July 1981 and at the time of the offence he was 25. He had appeared only once before in the criminal courts on 5 February 2004 at Newcastle District Court where he received a two-year bond on three counts of possessing a prohibited drug, a sentence of two years and three months with a non-parole period of 12 months on a charge of supplying a prohibited drug and a sentence of six months fixed term on a further charge of supplying a prohibited drug.

16 Parker was described as a young man but from the remarks on sentence he appears to have been over 20. Parker had no prior criminal history. Parker had also suffered the loss of the family business as a result of his arrest and the sentencing Judge assessed him as having good prospects of rehabilitation.

17 As to the nature of the offences committed, it appears both men adopted the same approach of purchasing drugs from a supplier with a view to sharing amongst their friends attending the wedding in Queensland. They were each found in possession of a similar amount of methylamphetamine. Parker was found to have 30.6 grams of ecstasy whereas Mitchell had 14.39 grams of cocaine. In respect of ecstasy, the indictable quantity is five grams and the commercial quantity is 250 grams. In respect of methylamphetamine, the indictable quantity is five grams and the commercial quantity is 250 grams. In respect to cocaine, the indictable quantity is five grams and the commercial quantity is 250 grams. In the case of the offender Parker there were matters taken into account on the Form 1. The offences on the Form 1 related to possession of anabolic steroids and possession of a small quantity of cocaine.

18 A comparison of the offences committed by each offender would indicate there should be no significant difference in the sentence imposed. The fact that this applicant had served a gaol sentence for a prior offence, which the Judge described as of the same character, does indicate however, that a more significant sentence should be imposed on him than that imposed on the man Parker. The question for determination is what that different sentence should be. It is contended by the applicant that the Judge erred in principle when she said:

"There is a clear line of consistent authority that, unless there exist
exceptional circumstances, a full time custodial sentence ought to be imposed wherever an offender has been involved in the supply of prohibited drugs. That principle applies whether or not a profit has been made.”

19 That statement by her Honour, however, accords with statements in this Court in R v Clark unreported NSWCCA 15 March 1990 and R v Emery unreported NSWCCA 7 November 1997.

20 In attempting to achieve some consistency in sentencing, there is benefit to be obtained in looking at the statistics produced by the Judicial Commission which indicate that less than half of offenders dealt with for supplying amphetamines of less than the commercial quantity are sent to prison in cases where there is more than one count and where the offender has a prior conviction for a similar offence. In respect of the offenders sentenced for supplying cocaine, again less than the commercial quantity, less than half of all offenders are sentenced to terms of full-time imprisonment. In this case another matter to be considered is that the amounts of drug involved are in all cases less than 20 per cent of what is prescribed as the commercial quantity. This all supports the finding of the sentencing Judge that this was a one-off purchase for the purposes specified by both this applicant and the offender Parker.

21 Her Honour has appropriately identified the case as one where a sentence should be imposed reflecting the principles of general deterrence, and in order to do that in this applicant's case, a sentence of full-time imprisonment is necessary because it is a repetition of an offence committed by him in 2004 when he received a sentence which expired in its entirety on 4 May 2006. The offences under appeal were just over six months later. However, in view of the sentencing statistics which are available and bearing in mind the need identified by Mason J in Lowe v The Queen to demonstrate consistency in punishment, in my view a lesser sentence than that imposed on the applicant would be appropriate.

22 Taking into account the plea of guilty and the other matters I have referred to, I propose that the application for leave to appeal be granted, the appeal be allowed, and the sentence imposed in the District Court quashed, and that on each offence the applicant be sentenced to a non-parole period of 18 months and a balance of term of six months to be served concurrently, the head sentence and the non-parole periods to commence on 3 July 2007, and I would order his release to parole on 2 January 2009 under the terms of supervision specified in the Schedule to the Sentencing Act.

23 MCCLELLAN CJ at CL: Justice Blanch is of the opinion this Court should grant leave to appeal. I agree that it is necessary to take this course. I do so because I am persuaded the sentence imposed was excessive to an extent which requires this Court to intervene. Although consideration of the sentence imposed on Parker is not irrelevant to the exercise in relation to the applicant, the fact that Parker received a lesser sentence than the applicant would not of itself require an intervention by this Court. The appropriateness of the sentence for the applicant is to be assessed having regard to the range of sentences imposed on the offences which the applicant committed, and in particular that sentence is to be assessed having regard to the fact that the applicant has previously served a prison term for a drug related matter.

24 I agree with the orders proposed by Justice Blanch.

25 GROVE J: I agree with Justice Blanch.

26 MCCLELLAN CJ at CL: Accordingly the orders of the Court are as proposed by Justice Blanch.

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