Newman (a pseudonym) v R

[2019] NSWCCA 157

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Newman (a pseudonym) v R [2019] NSWCCA 157

Hearing dates:

3 June 2019

Date of orders:

17 July 2019

Decision date:

17 July 2019

Before:

Basten JA at [1];
Hamill J at [70];
Lonergan J at [78]

Decision:

(1)   Grant the applicant an extension of time until 21 December 2018 to file his application for leave to appeal the sentence imposed by the District Court on 23 November 2015.

 

(2)   Grant the applicant leave to appeal.

 

(3)   Allow the appeal and set aside the sentence imposed in the District Court.

 

(4)   Resentence the offender to an aggregate sentence of 6½ years with a non-parole period of 4 years commencing on 19 September 2015. The non-parole period will expire on 18 September 2019; the total sentence will expire on 18 March 2022.

 (5)   The earliest day on which the applicant is eligible for release on parole is 18 September 2019.

Catchwords:

CRIMINAL LAW – appeal against sentence – offender convicted of multiple drug supply offences –sentencing judge inferred from prior conviction that offender had previously used growth hormone – error conceded – whether error sufficient to warrant resentencing – agreement between parties – effect of Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 considered

  CRIMINAL LAW – appeal against sentence – resentencing – nature of remorse – offender did not testify – limited reliance on self-serving statements to psychologist – need for transparency in accumulation of sentences – appropriateness of aggregate sentence – special circumstances

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 23, 44, 53A
Drug Misuse and Trafficking Act 1985 (NSW). s 25

Cases Cited:

Baxter v The Queen (2007) 173 A Crim R 284; [2007] NSWCCA 237
Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
Carroll v The Queen [2009] HCA 13; 83 ALJR 579
DL v The Queen [2018] HCA 32; 92 ALJR 764
House v The King (1936) 55 CLR 499
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Roberts (a Pseudonym) v R [2019] NSWCCA 102

Category:

Principal judgment

Parties:

John Newman (a pseudonym) (Applicant)
Regina (Respondent)

Representation:

Counsel:
Ms M Cinque SC (Applicant)
Mr D Barrow (Respondent)

  Solicitors:
The Law Practice (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2012/201934

Publication restriction:

1. The Court makes an order pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) that: (a) the applicant be identified in connection with these proceedings by a pseudonym;(b) publication of any information tending to reveal the identity of the applicant or the identity of the applicant’s father be prohibited. 2. This order shall apply for a period of 20 years from the date of this order. 3. The reasons for making these orders are that they are necessary to protect the safety of the applicant and the applicant’s father. 4. The applicant is to be known as John Newman (a pseudonym).

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

23 November 2015

Before:

English DCJ

File Number(s):

2012/201934

Judgment

1. BASTEN JA: On 23 November 2015 the applicant was sentenced in the District Court on three counts involving offences under the Drug Misuse and Trafficking Act 1985 (NSW), with nine further matters listed on a Form 1, to be taken into account with respect to the most serious offence.

2. The overall sentence of imprisonment was 6 years 11 months with an effective non-parole period of 4 years 6 months, which will expire on 18 March 2020. There was a minor element of back-dating (of 2 months).

Procedural background

3. There are three procedural matters to be noted before considering the merit of the application for leave to appeal against the sentences.

4. First, at the commencement of the hearing in this Court an order was made pursuant to the Court Suppression and Non-publication Orders Act 2010 (NSW) providing that there should be a non-publication order with respect to information tending to reveal the identity of the applicant or the applicant’s father and that the applicant be identified by a pseudonym. The order was made on the basis that it was necessary to protect the safety of those persons.

5. Secondly, the applicant required an extension of time within which to make his application for leave to appeal. Although it appears that a notice of intention to appeal was filed on 24 November 2015, that is the day following the sentencing, and extensions for filing a notice of appeal were granted until 25 May 2018, a notice of appeal was not filed until 21 December 2018.

6. The reason for the serious delay given by the applicant’s solicitor was that it took until mid-2018 to obtain funds from the sale of property seized by the NSW Crime Commission to pay the costs of an appeal in this Court. The consent orders provided that an amount of $125,000, including $25,000 payable to a barrister who apparently gave an initial advice but did not appear and $75,000 to The Law Practice on account of the proceedings in this Court. Nothing need be said about the propriety of the payments revealed in the evidence. Further, because the Director did not oppose an extension of time, it is not necessary to consider whether the reason given for the delay (namely attempts to raise money to fund the proceedings) would otherwise warrant a lengthy extension of time. The extension should be granted up to and including 21 December 2018, when the notice of application for leave to appeal was filed.

7. Thirdly, it is convenient to refer at the outset to the grounds of appeal. Ground 1 alleged that the sentencing judge had erred “in concluding that the applicant had untruthfully told [a psychologist] he had never previously used growth hormones.”

8. Counsel for the Director accepted that, even if the error was “immaterial”, this Court was required to resentence the offender. [1] That proposition was said to derive from a recent decision of this Court in Roberts (a Pseudonym) v R, delivered on 29 May 2019. [2]

   1.    Tcpt, 03/06/19, p 3(1)-(7).

   2. [2019] NSWCCA 102.

9. The concession was based on the proposition which appears in the following passage:

“[9]   The Crown concedes Ground 1 …. The Crown also concedes that it follows from this that it is necessary for the Court to re-exercise the sentencing discretion in accordance with Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42]; whether or not the error is material. The sentencing ‘discretion in such a case has miscarried and it is the duty of the Court of Criminal Appeal to exercise the discretion afresh taking into account the purposes of sentencing and the factors that the Sentencing Act, and any other Act or rule of law, require or permit’ (Kentwell, [42]).”

10. In that case, the proposition that resentencing was required, “whether or not the error is material” is arguably obiter and also ambiguous. Ground 1 alleged that the sentencing judge “erred on principle by mistaking the threshold quantity for a large commercial quantity of methylamphetamine for count 2 as 500 grams, rather than 1 kilogram”. The amount of the drug in count 2 was 1,087.7 grams. Clearly the error could have affected the sentencing: there is a significant difference between a quantity which is only marginally above the threshold and a quantity which is more than twice the threshold.

11. The ambiguity lies in the unfortunate use of the term “material”; if material referred to an actual effect on the sentence imposed, then the statement was correct – that did not need to be established. If it meant that the error did not need to have the capacity to influence the sentence, that would have been clearly wrong. The joint reasons in Kentwell v The Queen [3] established the opposite of the latter meaning. The first statement in Kentwell at [42] was to uphold the analysis of Spigelman CJ in Baxter v The Queen,[4] to the effect that the Court had to re-exercise the sentencing discretion “when the Court has determined that the exercise of the discretion had miscarried”. An immaterial error does not lead to a conclusion that the exercise of the discretion has miscarried. The High Court in Kentwell at [42] continued:

“When a judge acts upon wrong principle, allows extraneous or irrelevant matters to guide or affect the determination, mistakes the facts or does not take into account some material consideration,[5] the Court of Criminal Appeal does not assess whether and to what degree the error influenced the outcome. The discretion in such a case has miscarried and it is the duty of the Court of Criminal Appeal to exercise the discretion afresh …. This is not to say that all errors in the sentencing of offenders vitiate the exercise of the sentencer's discretion. By way of example, s 44(1) of the Sentencing Act requires the court when sentencing an offender to imprisonment to first set the non-parole period and then set the balance of the term. Prior to 1 February 2003, a court was required to first set the term of the sentence and then specify the non-parole period. A court which sentences an offender to imprisonment after 1 February 2003 by first setting the term of the sentence commits legal error. Without more, the error does not affect the exercise of the sentencer's discretion.”

3. (2014) 252 CLR 601; [2014] HCA 37.

4. [2007] NSWCCA 237; 173 A Crim R 284 at [19].

5. House v The King (1936) 55 CLR 499 at 505 per Dixon, Evatt and McTiernan JJ.

12. The first limb of the passage states that this Court does not assess, as a matter of fact, whether the error has influenced the outcome; what it does assess is the capacity of the error to have such an effect. An extraneous factor which does not “guide or affect the determination” involves no miscarriage. It is true that Kentwell referred to a statement by Latham J in Baxter that “confined error to those that are material in the sense that they have the capacity to infect the exercise of the sentencing discretion, regardless of whether it can be demonstrated that the error has in fact influenced the outcome”, as differing from the reasoning of the Chief Justice,[6] but did not dismiss it as erroneous. It appears to conform to the High Court’s own statement of principle, although the term “material” is avoided.

    6. Kentwell at [41].

13. In stating that the error need not be “material”, Roberts should be understood as eschewing the analysis of effect, rather than capacity to affect. On that understanding, counsel for the Director misread Roberts as saying something different; but the error is understandable and language of materiality is readily open to such a misunderstanding. Following Kentwell, it is best avoided.

14. In contrast to the circumstances in Roberts, where the error was clearly capable of affecting the outcome in a significant manner, the present case raised a question as to whether that was so. Counsel for the applicant, apparently assuming that the Director’s concession would warrant this Court setting aside the sentence imposed in the District Court and resentencing the applicant, did not press his ground 2, which alleged that the total sentence was manifestly excessive.

15. No doubt there will be cases where all one can say is that the error appears to be “all but inconsequential” (presumably allowing a margin for doubt). [7] If it were necessary to decide the point, it would be difficult to accept that the factual error identified in this case had any bearing on the sentences imposed. Indeed, there is reason to suppose that it was entirely ignored in circumstances where it might have been significant.

    7. Turnbull v R [2019] NSWCCA 97 at [36] (Simpson AJA).

16. In a lengthy extract from a report by a psychologist, Ms Wakely, about which more will be said below, the following passage appeared under the heading “Background to the Offences”.

“36.   [The offender] said he had obtained the human growth hormone around two weeks before his arrest with the intention of using this to assist with his training and muscle repair due to his advancing age. He said he had not yet used the substance and had never used this previously.”

17. In the course of a lengthy passage in the sentencing judgment setting out much of the information reportedly supplied to the psychologist by the applicant, otherwise without criticism, the judge identified the passage set out above in the following terms:

“He says he obtained the human growth hormones to assist him with his training and muscle repair due to his advancing age. He informed Ms Wakely that he had never previously used growth hormones. That of course does not appear to be true, there is the conviction back in 2000 for possessing restricted substances. He says now he realises that his offending behaviour cannot be justified.”

18. The submission which the Director accepted was in the following terms: [8]

“It was not open to her Honour to conclude that the applicant had been dishonest in this way when speaking with Ms Wakely. The particulars for the conviction in 2000 for unlawfully possessing a prescribed restricted substance were not before the Court. There was no evidence that the 2000 offence involved human growth hormone. [9] Even if that offence had involved the possession of human growth hormone, there would still have been no evidence that the applicant had ever used it.”

8.    Applicant’s written submissions on leave application, 13 December 2018, par 70.

9.    [Footnote in original]: It is noted that the Form 1 to be taken into account in this matter involved seven discrete offences involving seven different prescribed restricted substances: human growth hormone, lignocaine, trenbolone, methandieone, nandrolone, stanozolol and testosterone.

19. The error was correctly identified and the Director was correct to accept that there was an error. The submission which was withdrawn was that this was “not a material error of fact which would engage the principles in House v The King”, relying (correctly) on the passage in Kentwell at [42] set out above. That submission was withdrawn, as was the submission that the error “cannot reasonably be said to have been capable of infecting the exercise of her Honour’s sentencing discretion.” The test was correctly stated; the factual proposition may have been contestable, but was certainly open.

20. In the present case, the concession having been made, this Court has no choice but to resentence the offender in the exercise of its discretion.

21. A party appealing against a sentence is unlikely to challenge findings favourable to him or her. Accordingly, applying DL v The Queen,[10] the only room for reviewing factual findings will be with respect to those which are unfavourable to the applicant or appellant, whether the prosecutor or the offender. Further, it may be necessary to draw a distinction between findings of primary fact and inferences drawn from those findings, where the characterisation of objective seriousness and culpability are open to reassessment. [11]

    10. [2018] HCA 32; 92 ALJR 764.

    11.    Turnbull at [44] (Simpson AJA).

22. In these circumstances, the Court will usually be assisted by careful submissions from both counsel, identifying the scope of the issues to be addressed on resentencing, where that is the outcome sought. In this case, as is not uncommon, little attention was paid to that exercise.

Resentencing – legal principles

23. Kentwell did not suggest that there were specific limitations on the resentencing exercise; indeed it required the discretion to be exercised afresh in accordance with relevant directions in the Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Act). It stated that the court was to take into account “the purposes of sentencing[12] and the factors that the Sentencing Act[13] , and another other Act or rule of law, require or permit.”[14]

    12. Sentencing Act, s 3A.

    13. Sentencing Act, s 21A.

    14. Kentwell at [42].

24. Five years earlier, in Carroll v The Queen,[15] the High Court stated, dealing with a prosecution appeal against sentence:

“[24]   In deciding whether the sentence passed by the primary judge was manifestly inadequate it was open to the Court of Criminal Appeal to consider how the appellant's offending was properly to be characterised. In particular, it was open to the Court of Criminal Appeal to form a view different from the primary judge about where, on an objective scale of offending, the appellant's conduct stood. But in the absence of any challenge to the primary judge's findings of fact, it was not open to the Court of Criminal Appeal to evaluate the adequacy of the sentence by discarding reference to why the appellant had acted as he had, or by attributing to him the ability to foresee that his conduct could cause not just serious injury, but severe injury or the possibility of death. Both these steps being erroneous, the majority of the Court of Criminal Appeal erred in reasoning to the conclusion that the sentence passed was manifestly inadequate. The appeal to this Court must then be allowed.”

15. [2009] HCA 13; 83 ALJR 579 at [24].

25. In Betts v The Queen,[16] the High Court rejected the proposition that this Court had erred in refusing to accept evidence proffered by the offender on appeal which was inconsistent with the case he ran before the sentencing judge. The purpose of the evidence was not to establish error, but was proffered on the limited basis that it could be taken into account in resentencing. The Court held:

“[14]   Forensic choices are made in the conduct of the offender's case at the sentence hearing. These include the material that is to be relied upon in mitigation of penalty and whether any of the facts are to be contested. The circumstance that the sentencing judge's discretion is vitiated by House error does not, without more, provide a reason for not holding the offender to these forensic choices. Justice does not miscarry by reason of the refusal to allow an appellant to run a new and different case on the question of re-sentence. Exceptional cases apart, the question of whether some other sentence is warranted in law is answered by consideration of the material that was before the sentencing court and any relevant evidence of post-sentence conduct.”

16. (2016) 258 CLR 420; [2016] HCA 25.

26. In DL v The Queen, [17] in circumstances where neither party had submitted in this Court that “any of the new evidence was relevant to the assessment of the appellant’s culpability for his offence”,[18] the Court erred in taking into account factual circumstances as they existed at the date of appeal, and not as they were at the date of the sentencing. Although the High Court accepted that there had been a challenge to the sentencing judge’s assessment of the objective seriousness of the offending, it concluded that neither party had invited this Court “to depart from the factual findings below.”[19] The High Court held that the new evidence had been admitted on “the usual basis”, namely as evidence of the offender’s progress towards rehabilitation in the period since sentencing. [20] The Court continued:

“[38]   Betts allows that in an exceptional case new evidence may be received for the purpose of revisiting the findings of primary fact. For the reasons there explained, the interests of justice will generally not be served by permitting either party to make a new or different case on the hearing of the appeal. [21] Here neither party invited the Court of Criminal Appeal to re-sentence the appellant upon a factual basis that differed from the primary judge's findings, much less to use the new evidence to impugn those findings.”

17.    See fn 10 above.

18. DL at [23].

19. DL at [34].

20. DL at [37].

21. Betts v The Queen (2016) 258 CLR 420 at [16].

27. The approach approved in DL was summarised in the following terms:

“[9]   … As explained in Kentwell v The Queen, the Court of Criminal Appeal exercises an independent sentencing discretion in that it is required to form its own view of the appropriate sentence, rather than confining itself to the determination of whether the identified error infected the sentence imposed below. [22] Exceptional cases apart, the Court of Criminal Appeal's determination of the appropriate sentence is determined on the material that was before the sentencing judge, the sentencing judge's unchallenged factual findings, and any relevant evidence of the offender's post-sentence conduct. [23] ”

22. Kentwell v The Queen (2014) 252 CLR 601 at [35] per French CJ, Hayne, Bell and Keane JJ.

23. Carroll v The Queen (2009) 83 ALJR 579 at [24]; Betts v The Queen (2016) 258 CLR 420 at [14].

28. It may be noted that the last sentence reflects the language in Betts, subject to the addition of the requirement to act upon “unchallenged factual findings” of the sentencing judge.

Resentencing – application of principles defining scope

29. The resentencing exercise can readily be undertaken by this Court in circumstances where:

1. the sentencing judge had not conducted a trial, but was sentencing on a plea of guilty;

2. the judge was not required to assess the credibility of the offender as he did not make a sworn statement or give oral evidence before her;

3. the only oral evidence was that given by a pastor in the Baptist Church, which the offender attended as a member of the congregation after his arrest, and by a police officer with respect to events subsequent to his arrest.

This Court is therefore in as good a position as a sentencing judge to assess an appropriate sentence, subject to the identification of unchallenged “facts”.

30. Apart from the error engaging the power to resentence, no factual errors adverse to the offender were identified in the written submissions on the abandoned ground of manifest excess. Rather the submission stated:

“75.   English DCJ came to a number of conclusions favourable to the applicant, that warranted much lower starting points for counts 1 and 3 and a significantly lower starting point for the total term.

76.   These findings included: the shambolic nature of the supply offences, the applicant’s judgment was affected by grief and depression at the time of the offending after the untimely death of his mother, his impressive steps at rehabilitation over a period exceeding three years on bail, his remorse, his excellent prospects of rehabilitation and the fact that his health conditions would make custody more than usually onerous.

77.   Shambolic aspects of the applicant’s conduct included that there were various types of drugs and cash secreted in a large number of places in both [homes], the CCTV cameras at [his father’s house] did not work and the CCTV cameras at [his own home] recorded the applicant selling drugs and permitting a customer to consume drugs in his home. The drug transactions were carried out at [his home] and he took no measures to insulate himself from detection, such as the use of runners.”

31. The sentencing judge provided an unremarkable discount of 25% for early pleas, and an additional discount of 35% pursuant to s 23 of the Sentencing Act for assistance to law enforcement authorities. The Director accepted that both discounts were appropriate. Accordingly, in circumstances where neither party sought a higher or lower discount, the discount adopted by the sentencing judge must be applied.

32. Dealing with the subjective aspects of remorse and prospects of rehabilitation, the judge stated: [24]

“I do find that he is truly remorseful and contrite. I am satisfied that he has excellent prospects for rehabilitation and the subjective material points positively to the real likelihood of the offender in the future making a substantial, law-abiding contribution to the community once again as he has previously done.”

24.    Sentencing judgment, p 18.

33. The Director dealt with these observations tersely, noting that “the sentencing judge was well-apprised of the applicant’s generally favourable subjective case, and addressed it in significant detail…. Her Honour was required to balance that subjective case against what was objectively serious offending…. The notional starting points properly reflected the gravity of the applicant’s conduct….” [25]

    25.    Respondent’s written submissions, 24 May 2019, par 33.

34. Remorse tends to be, at least in part, a product of self-interest and self-pity, resulting from arrest, conviction and the threat of a lengthy prison sentence, and in part a belated acceptance of the anti-social nature of the conduct and some level of regret for the harm done to victims. It is not a binary condition, but falls on a range both as to the predominant cause and as to the strength of the emotion.

35. In setting out the subjective material, before making the finding referred to above, the judge noted: [26]

“In a letter written to the Court the offender says he is remorseful for what he has done and harm he has caused to others by his offending.

Despite having told others he was intending to cease his illegal activities in his letter to the Court he says he does not think he would have stopped unless he had been arrested, … he had tried to do so in the past but he had failed.”

26.    Sentencing judgment, p 16.

36. The reference to what he “told others” presumably encompassed his statements to the psychologist. From the manner in which this description is framed it may be inferred that the judge accepted his statement in his letter that he would not have been able to stop unless arrested. On that inference, the finding that he was “truly remorseful and contrite” takes on a slightly different flavour from that phrase viewed in the abstract. On one view, this Court is bound to accept the finding of remorse, although it is an inference drawn from material which it is equally open to this Court to evaluate for itself. If entitled to reconsider the finding, I would not express it in the same terms as the sentencing judge; if not entitled to reassess the finding, I would give it limited weight in the overall evaluative process.

37. With respect to the objective seriousness of the offending, it will be necessary to set out the nature of the offending in some greater detail below. The only finding by the sentencing judge relied upon as favourable to the offender was the description of his business as “shambolic”. As will be seen below, if entitled to make one’s own assessment of the business operation, I would not adopt that description. If not entitled to adopt a different view of the facts, I would agree with the Director’s submission that the description of the business as “somewhat shambolic” “does not significantly reduce the seriousness of his offending”. [27]

    27.    Written submissions, par 31(iv).

Resentencing – considerations

38. The Court was not greatly assisted by submissions. The applicant was largely content to rely upon his written submissions as to why the sentence was manifestly excessive; the Director adopted written submissions prepared in response to the applicant’s submissions on manifest excess and added little orally.

39. The charges to which the applicant pleaded were:

1. Supplying 169 grams of methylamphetamine, contrary to s 25(1) of the Drug Misuse and Trafficking Act, carrying a maximum penalty of 15 years imprisonment. (A traffickable quantity is 3 grams; the commercial quantity was 250 grams.)

2. Supplying a commercial quantity of MDMA (196.13 grams) contrary to s 25(2) of the Act, an offence attracting a maximum penalty of 20 years imprisonment with a standard non-parole period of 10 years. (The traffickable quantity is 0.75 grams; a commercial quantity is 125 grams and the large commercial quantity is 500 grams.)

3. Supplying a large commercial quantity of cocaine (1,693.13 grams) contrary to s 25(2) of the Act, an offence carrying a maximum penalty of life imprisonment and a standard non-parole period of 15 years. (The large commercial quantity is 1 kg.)

40. There were nine further offences contained on a Form 1 to be taken into account in sentencing for the large commercial quantity of cocaine (the most serious offence). These included possession of human growth hormone, lignocaine, trenbolone, methandieone, nandrolone, stanozolol and testosterone. There was also an offence of supplying 2.4 grams of amphetamine and dealing with proceeds of crime ($44,450 cash).

41. A statement of facts outlined the discovery of the drugs and money, during a search of the offender’s car and the home of the offender’s father, and a later search at his own home. In searching the car, the police located $7,000 in cash under the floor mat on the driver’s side. In the offender’s father’s house, the police discovered numerous knotted plastic bags containing cocaine and totalling some 1.3 kgs. They were located in a range of places in the dining room, kitchen pantry and garage. A further quantity of 5.6 grams of methylamphetamine was located in the kitchen and the dining room; $43,200 in cash was located in various places including the fireplace in the lounge room, the kitchen and an envelope on the TV unit in the lounge room. Vials of human growth hormones were located in the refrigerator door in the kitchen and 2.4 grams of amphetamine were found in the butter compartment. One gram of MDMA was found in the dining room.

42. The search of the applicant’s home located 110 grams of methylamphetamine, similarly contained in knotted and resealable plastic bags in the kitchen, lounge room and garage of the premises. The search of his premises also located 185 grams of MDMA, again broken into small quantities kept in different places, together with 308 grams of cocaine on the desk in the study, in resealable bags in the kitchen, in an ice-making machine in the lounge room, and in the garage. The items in the garage involved three resealable bags hidden in a tub of rice and a knotted plastic bag inside a shoe.

43. CCTV cameras had been mounted both at the applicant’s home and at his father’s residence. The latter were not functioning; the former had been installed the previous day. The CCTV footage at his home recorded a drug deal undertaken in the applicant’s study whilst he sat at a desk.

44. The statement of agreed facts contained the following description of the applicant’s role:

“The offender ran and controlled his own drug business. The drugs were obtained by the offender and he stored a variety of drugs at his own home or his father’s home. He had a rapport with his customers and spoke to them directly. Customers would ring or text message the accused asking such things as ‘Can I meet you for a beer?’ The offender would then organise a suitable time. The customer would then attend the offender’s home or the offender’s father’s home and the offender would supply them with drugs. The offender had no other income other than his drug business. The offender was the sole operator of this drug business. There is no evidence that the offender hired ‘runners’ (other people to supply the drugs for him).”

45. Reference was made in the course of submissions in this Court to the sentencing judge’s description of the applicant’s business: [28]

“Despite the offender being quite entrepreneurial in his legitimate business life his drug trafficking activities appear to me to have been somewhat shambolic in nature, what could best be described as a hapless enterprise. What can be said is that he was distributing significant quantities of drugs for profit and that his activities were such that he attracted the attention of the police at some time presently indeterminate.”

28.    Sentencing judgment, p 17.

46. In the course of submissions at the sentencing hearing, senior counsel for the offender had suggested that it “did not look like a particularly well organised venture”; that the location of the drugs suggested that “much of his activity was haphazard and messy”, and that it was a “relatively unsophisticated operation”. [29]

    29.    Tcpt, 16/10/15, p 13.

47. The prosecutor noted that, while it was not suggested that anybody else was involved in the enterprise, the fact that the offender was the “sole operator” meant that he was culpable as such. [30] He was dealing in a range of drugs, clearly for financial gain. The prosecutor submitted that the offending would fall “within the mid-range for these types of offences.” [31]

    30.    Tcpt, p 17(7).

    31.    Tcpt, p 17(4).

48. Although there were elements of the business which appeared disorganised, the scattering of drugs between two premises and between different locations within the premises may well have been a protection against the drugs being discovered by others, whether police or thieves. The fact that the CCTV camera in the offender’s home was internal and recorded the drug transaction, suggests that the intention was to provide a degree of security. If by “hapless” the judge was implying that the operation was unlucky, in the sense of being destined for discovery, that would not have mitigated the objective serious of the offending. Although the police facts did not reveal the period over which the business had operated, it was clearly well established.

49. So far as the objective seriousness of the offending was concerned, the most serious offence of supplying cocaine should be assessed as below the middle of the range. Although 1.7 kgs was a sizeable quantity, found on the premises from which he operated, the large commercial range commences at 1kg and more serious offending may involve many times that figure. A similar assessment applies to the count of supplying a commercial quantity of MDMA. The quantity of methylamphetamine was two-thirds of the commercial quantity.

50. Too much weight should not be placed upon the amounts of the drugs discovered by the police as the carrying on of a business will no doubt mean that the quantity held at any one time may vary significantly. The amounts discovered give a picture of the operations at a particular point in time.

51. An assessment of the personal circumstances of the applicant is difficult because of his failure to go into the witness box and give an account of the offending and his current state of mind. There were three documents before the sentencing judge and this Court, none of which provided any detailed or coherent history. The first was the report dated 13 October 2014, prepared for the purposes of a sentencing (then listed for 16 October 2014) by Ms Wakely, a forensic psychologist, which recorded some history provided by the applicant in August 2014. Secondly, there was a letter provided by the applicant’s father, dated 25 July 2014 and, thirdly, a letter provided by the applicant bearing the same date.

52. The applicant told the psychologist that he “did not want the crystal methamphetamine (ice) that was in his possession at the time of arrest however he had felt pressured to take this.” He also told the psychologist that on the night before his arrest “half a kilogram of cocaine was dropped to his house and again he did not want this as he was intending to leave.” [32] The judge did not make a finding accepting this evidence and, indeed, his statements were inconsistent with his later admission that, but for his arrest, he would not have ceased dealing in drugs. It is impossible to know how much of these untested self-serving statements was true; the claims set out above provide no basis for a finding favourable to the offender.

    32.    Report, par 38.

53. The Court is entitled to be sceptical of self-serving statements by an offender tendered through secondary sources and without the offender being willing to give evidence on oath. Some of the material in Ms Wakely’s report is probably close to the truth, although the reported personal history contains a litany of complaints of betrayal by associates. While his father described him as “someone who thrives on challenges and always tends to do well”, the applicant blamed both financial and emotional failures on others.

54. The psychologist undertook psychometric testing measuring stress, depression, anxiety and what was described as “validity”; the last was said to indicate that he had been “open and frank in his responses though has a tendency to describe himself in negative terms.” [33] Curiously, the psychologist did not ascribe any aspect of his state of mind, including anxiety and depression, to the fact that he was then facing a significant period of imprisonment.

    33.    Report, par 43.

55. It is clear from the psychologist’s report that the applicant was no stranger to illicit drug taking. His activity was recorded in the following passages”

“29.   [The applicant] denied any [sic] having difficulties with alcohol use. At 18 he first tried illicit substances. [He] said he used amphetamine (Speed), some hallucinogens, followed by Ecstasy. [He] said he felt ‘so happy’ under the influence of this that he felt his ‘personality changed.’ He then began using Cocaine and said his use went from ‘enjoyment to paranoia to over the top…always chasing a high.’

30.   The client said after 18 years of age he stopped using substances. When he was 30 he began to use substances again intermittently and then regularly. [He] said at that time he was in a financial position to support this however over time he started to sell the substance to support his personal use and once he encountered financial difficulties this became ‘full on’ as he had no other way to support himself.

31.   [He] said his use varied in intensity and was particularly problematic when he was experiencing interpersonal/relationship difficulties. During these times he would engage in binges lasting days at a time. He explained he mainly used Cocaine and Ecstasy.

32.   In the month or so before his arrest [he] said his use of substances had reduced and he was tiring of this lifestyle. He said he had made a decision to stop this and move [overseas] with his father. He stated, ‘I could feel myself going to gaol. I’d let my guard down, business had changed, my Dad was deteriorating and I couldn’t look after him on it.’”

56. The judge noted that he had convictions for supply of prohibited drugs (1997), possession and supply of prohibited drugs (1998), malicious damage (1999), unlawful possession of a restricted substance (2000) and common assault involving domestic violence (2009). He described to the psychologist three relationships, of which the most recent appears to have run from 2004 to 2012, ceasing just before his arrest. Before that he had been in a five year relationship (which was probably from a date in the mid ‘90s) at which time he admitted he was using drugs. [34] On his own account, and consistently with the criminal history, he was using drugs from his early 30s until his arrest at the age of 49, being a period close to two decades.

    34.    Report, pars 11 and 12.

57. The applicant told the psychologist that he had “recently undergone heart surgery … and had a pacemaker inserted.” [35] The relevant medical reports indicated that he was diagnosed with cardiomyopathy in April 2007 and was advised to have a biventricular pacemaker inserted at Westmead Hospital on 28 July 2014. It may be inferred that this happened. His physical and mental health are probably both below par, though the extent to which that may be attributable to drug-taking is unknown.

    35.    Sentencing judgment, p 14.

58. With respect to his level of culpability, the sentencing judge found: [36]

“He of course embarked upon this illegal activity knowing full well the consequences if he was caught. He has prior convictions for supplying drugs …. Whilst he does have criminal antecedents for offences of a like nature they are not such as to aggravate the matters for which he is now facing sentence, but they do disentitle him to leniency.”

36.    Sentencing judgment, pp 17-18.

59. The sentencing judge also accepted that “at that time of his illegal activity his judgment was clouded due to grief and stress.” The context suggests that the “illegal activity” referred to was the activity being undertaken at the time of his arrest. However, it is not clear how much weight to give to this finding. It is apparent that the business was well established at the time police arrested him and that it extended to many different illegal substances. As noted above, on his own admission, he had been involved in drug abuse for the better part of two decades and apparently had commenced dealing some years earlier when his financial circumstances were reduced. He did not appear to be in reduced circumstances at the time of his arrest, given the amounts of cash discovered by police and given that he owned at least one property. It appears that the grief flowed from his mother’s death, although there was no evidence as to when she died, except that it appears to have been within six years of his arrest. He was prescribed psychoactive medications for depression between 2006 and 2008 and was referred to a counsellor and placed on a mental health care plan in about 2009 or 2010. [37]

    37.    Report, pars 24 and 25.

59. The judge accepted that his conduct was undertaken for financial advantage and that it was “directed to the introduction into the community of significant quantities of a significant variety of different substances.” As the judge further recognised, general deterrence loomed large in assessing sentence, as did specific deterrence. She described his conduct as “trafficking in a substantial degree”, so that no other penalty than imprisonment was warranted. [38] These descriptive findings were not disputed.

    38.    Sentencing judgment, p 18.

60. The judge accepted that account should be taken of his ill-health and that he would probably serve much of his custodial sentence on protection. These ailments have not changed, but he is not on protection, and travels by public transport on work release. The applicant relied on a favourable prison history since being sentenced, which tended to confirm the sentencing judge’s assessment of his “excellent” prospects of rehabilitation, albeit an assessment made without hearing a word from the offender. [39]

    39. See [32] above.

Resentence

62. Counsel for the applicant accepted that it would be appropriate to impose an aggregate sentence, although the sentencing judge did not do so. It would be necessary to indicate the individual sentences which would have been imposed but for taking that course. However, there is a need for transparency in resentencing, so as to determine whether a less severe sentence is warranted. Because issues of accumulation loom large, the better course is to impose separate sentences for each offence. I do not think any question of a “range of possible penalties” arises. [40]

    40.    Cf Turnbull at [41]-[43].

63. The most serious offence (count 1) involved the supply of a large commercial quantity of cocaine, an offence carrying a maximum penalty of life imprisonment and a standard non-parole period of 15 years. As noted above, the amount involved was comfortably above the threshold for the large commercial quantity (1 kg), but not in the order of large quantities which are sometimes involved; the objective seriousness may be assessed as below the middle range. For that reason, and because of the plea and assistance, the standard non-parole period will not apply. Nevertheless, the standard non-parole period provides an indication of the seriousness with which the community views large quantities of cocaine. It is also necessary to take into account the multiple offences contained on the Form 1. I would adopt a starting point of 14 years, with a non-parole period of 10 years 6 months. Reduced by 60%, the sentence is a non-parole period of 4 years 2 months with a balance of the term of 1 year 5 months, giving a sentence of 5 years 7 months.

64. The next most serious offence (count 2) was that of supplying a commercial quantity of MDMA, an offence carrying a maximum penalty of 20 years imprisonment with a standard non-parole period of 10 years. The appropriate starting point is 8 years with a non-parole period of 6 years, which, reduced for the discount, is a non-parole period of 2 years 4 months and a balance of term of 10 months, giving a sentence of 3 years 2 months.

65. For the supplying of 169 grams of methylamphetamine (count 3), an offence with a maximum penalty of 15 years, but no standard non-parole period, it is appropriate to indicate a fixed term as any parole period will be totally subsumed within the longer sentences. Starting with a 6 year sentence, and applying the discount, the appropriate sentence is 2 years 4 months.

66. While accepting that the offending all arose from one course of conduct, there must be a degree of accumulation to recognise the separate elements of offending and the different drugs involved. I would accumulate count 2 on a period of 4 months to be served solely with respect to count 3, and count 1 to commence 8 months after the commencement of count 2. The result is an accumulation of 1 year, which would give a composite non-parole period of 5 years 2 months. A non-parole period of 62 months, with a total sentence of 79 months is slightly in excess of the statutory ratio. For that reason, there should be a finding of special circumstances and the non-parole period reduced to 4 years 10 months, being a fraction under the statutory relationship identified in s 44. Accepting that this is the first sentence of imprisonment faced by the applicant, I would not reduce the non-parole further on this account.

67. It is necessary then to turn to the exercise required by s 6(3) of the Criminal Appeal Act 1912 (NSW), and identify whether this is a “less severe” sentence than that imposed by the sentencing judge. The sentencing judge imposed a non-parole period of 4 years 6 months and a total sentence of 6 years 11 months. This involved a non-parole period which was 65% of the total sentence period. In the circumstances, the appropriate outcome appears to be not to vary the non-parole period imposed by the sentencing judge, on the basis that no less a period is warranted, but to reduce the additional term for count 1 from 2 years 5 months to 2 years 1 month. The balance of term remains substantially in excess of the one-third limit imposed by s 44(2). This requires an adjustment of the proposed new non-parole period for supplying cocaine by 8 months, and increasing the balance of the sentence by the same period.

68. To give effect to this result the appeal must be allowed and the offender resentenced, although his period of mandatory custody is unchanged.

Orders

69. Accordingly, the Court should make the following orders:

1. Grant the applicant an extension of time until 21 December 2018 to file his application for leave to appeal the sentence imposed by the District Court on 23 November 2015.

2. Grant the applicant leave to appeal.

3. Allow the appeal and set aside the sentence imposed in the District Court.

4. Resentence the offender as follows:

1. For the offence of supplying methylamphetamine, impose a fixed term of 2 years 4 months to date from 19 September 2015;

2. For the offence of supplying a commercial quantity of MDMA, impose a non-parole period of 2 years 4 months and a balance of term of 10 months, giving a sentence of 3 years 2 months, to date from 19 January 2016;

3. For the offence of supplying a large commercial quantity of cocaine, impose a non-parole period of 3 years 6 months with a balance of the term of 2 years 1 month, giving a sentence of 5 years 7 months, to date from 19 September 2016.

4. The earliest day on which the applicant is eligible for release on parole is 18 March 2020.

70. HAMILL J:   I have read in draft the judgment of Basten JA. I agree generally with his Honour’s judgment. In particular, I agree that time to appeal should be extended in spite of the extensive delay. I agree that “nothing need be said about the propriety of the payments revealed in the evidence” on that issue. I also agree that the application for leave to appeal should be granted, the appeal allowed and the Court should exercise the sentencing discretion afresh. I am grateful to his Honour for his comprehensive summary of the objective facts and subjective circumstances as established in the proceedings at first instance.

71. I am of the opinion that ground 1, which was conceded by the respondent, is established. That is, I agree that the trial Judge erred in concluding that the applicant was dishonest when he told the psychologist, Ms Wakely, that he had never previously used growth hormones. There was no evidence that he had ever used that substance. The only evidence before the District Court was that the applicant was convicted in October 2000 at Hornsby Local Court for an offence of unlawfully possessing a prescribed restricted substance. The facts of that offence were not before the District Court and, even if it involved growth hormones, it could not be said that the applicant had used that substance.

72. While most of the subjective findings made by the primary Judge were favourable, it is impossible to conclude that the finding that the applicant was dishonest with the psychologist might not have impacted on the sentence. I do not find it necessary to consider in detail, or finally to decide, the question of whether the error was a “material error” or whether, in the post-Kentwell legal landscape, it is necessary to establish that such an error is material. There is much to be said for the approach urged by the presiding Judge. I would act on the concession by Senior Counsel for the respondent that the Court should proceed to re-sentence.

73. As the judgment of Basten JA shows, the re-sentencing exercise is a difficult one. In the absence of any submission to the contrary, I would act on the favourable subjective findings made by the primary Judge. In particular, I would act upon the favourable findings as to the applicant’s remorse and prospects for rehabilitation. I accept that sometimes remorse may be a convenient thing for a person facing sentence but the primary Judge made a positive finding and that finding is not challenged. Her Honour said the applicant was “truly remorseful and contrite” and that he had “excellent prospects of rehabilitation”. I would maintain the discount of 60% for the plea of guilty and assistance settled on by the sentencing Judge. Like the sentencing Judge, I would find special circumstances, but based around the fact that this is the applicant’s first gaol sentence, that his time in custody may be onerous due to his health issues, and the benefit of a longer period of parole to assist the applicant in re-entering the community.

74. Unlike the presiding Judge I would adopt the suggestion of the parties and impose an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW). I generally agree with Basten JA’s analysis of the objective criminality of each of the three offences. Whether or not the offending is properly described as “shambolic”, this was a serious instance of commercial drug dealing. There were a number of different drugs involved and the applicant had access to, and possession of, large quantities of each of those drugs. I have considered the maximum penalties available for each of the offences (life imprisonment, 15 years and 20 years respectively) and the standard non-parole periods for counts 1 (15 years) and 3 (10 years). I have considered the objectives of punishment in the legislation and at common law. I have taken into account the impact of the Form 1 offences on the issues of specific deterrence and denunciation in accordance with authority.

75. For the purpose of s 53A(2)(b) I indicate the following putative sentences for the individual counts:

1. Supplying a large commercial quantity of cocaine – a starting point of 12 years, reduced by 60%, resulting in a total sentence of 4 years and 9½ months with a non-parole period of 3 years.

2. Supplying methylamphetamine – a starting point of 5 years, reduced by 60%, resulting in a total sentence of 2 years.

3. Supplying a commercial quantity of MDMA – a starting point of 10 years, reduced by 60%, resulting in a total sentence of 4 years with a non-parole period of 2 ½ years.

76. I would impose an aggregate sentence of 6½ years with a non-parole period of 4 years commencing on 19 September 2015. The non-parole period would expire on 18 September 2019 and the total sentence will expire on 18 March 2022. The applicant would be eligible for release to parole at the conclusion of the non-parole period.

77. Apart from this question of re-sentence, I agree with the orders proposed by Basten JA.

78. LONERGAN J: I have had the substantial advantage of reading in draft the judgments of Basten JA and Hamill J.

79. I agree with both Basten JA and Hamill J that ground 1 of the appeal, conceded by the respondent, has been established and that the sentencing judge erred in concluding that the applicant dishonestly told the psychologist that he had never previously used growth hormones. There was no evidence at all that he had and the finding that he was dishonest in that regard was not open.

80. Given the breadth of the concession made by Senior Counsel for the respondent, and the specific withdrawal of submissions it had previously made, I agree that the Court must re-sentence the applicant.

81. I adopt and agree with the principles set out in [23]-[37] of the judgment of Basten JA. I also adopt and agree with the analyses of Basten JA of the facts, the sentencing judge’s findings and the applicant’s subjective circumstances set out in [41]-[61] of the judgment of Basten JA.

82. On the question of resentencing, I adopt the suggestion of the parties to impose an aggregate sentence under s 53A of the Crimes (Sentencing Procedure Act) 1999 (NSW).

83. I respectfully adopt and agree with the approach to re-sentencing of Hamill J in [73]-[76] of his judgment, and agree with the sentence proposed by Hamill J.

84. Apart from the question of re-sentence, I agree with the orders proposed by Basten JA.

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Endnotes

Decision last updated: 17 July 2019