Nye v The Queen

[2018] NSWCCA 244

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:	Nye v R [2018] NSWCCA 244
Hearing dates:	31 August 2018
Decision date:	31 October 2018
Before:	Hoeben CJ at CL at [1] Walton J at [2] Button J at [3]
Decision:	(1) Leave to appeal granted. (2) Appeal dismissed.
Catchwords:	CRIMINAL LAW – appeal against sentence – Crown conceded errors by sentencing judge – consideration of re-sentence – whether sentencing judge erred when considering the applicant’s moral culpability for each offence – question of mitigatory duress – no lesser finding of moral culpability warranted – no lesser sentence warranted in law – appeal dismissed
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(m) Criminal Appeal Act 1912 (NSW), s 6(3) Criminal Procedure Act 1986 (NSW), s 166 Drug Misuse and Trafficking Act 1985 (NSW), ss 25(2), 33
Cases Cited:	Campbell v R [2018] NSWCCA 17 DL v The Queen [2018] HCA 32
Category:	Principal judgment
Parties:	Dylan Michael Nye (Appellant) Regina (Respondent)
Representation:	Counsel: T Game SC & D Barrow (Appellant) T Smith & C Curtis (Respondent)   Solicitors: WH Parsons & Associates (Appellant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2016/64988
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 02 June 2017 Before: Ingram SC DCJ File Number(s): 2016/64988

Judgment

1. HOEBEN CJ AT CL: I agree with Button J and the orders which he proposes.

2. WALTON J:   I agree with Button J.

3. BUTTON J:

Introduction

4. Three grounds underpinned this application for leave to appeal against the sentences imposed by his Honour Judge Ingram SC on Dylan Michael Nye (the applicant) for very serious offences to do with prohibited drugs in the District Court at Parramatta on 2 June 2017. The second and third grounds are the subject of concessions by the Crown. As for the first ground, senior counsel for the applicant expressed his contentment at the hearing of the application with this Court taking into account the arguments underpinning that ground on re-sentence, if those concessions were to be accepted. Because of those refinements of the matter, this judgment can be brief, and will focus more on factual matters than legal principle.

Appropriate Crown concessions

5. The second ground of appeal is as follows: “His Honour erred in finding the applicant’s offending was aggravated by being a series of criminal acts”.

6. The Crown prosecutor has accepted that, by referring to s 21A(2)(m) of the Crimes (Sentencing Procedure) Act 1999 (NSW), at page 41 of the remarks on sentence, His Honour erred. That is because, although the applicant was to be sentenced for a number of offences, as the Crown prosecutor has written, he “was to be sentenced in respect of three discrete offences, none of which comprised a series of criminal acts”.

7. The sub-paragraph in question is as follows:

(2) Aggravating factors

The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows:

…

(m) the offence involved multiple victims or a series of criminal acts,

…

8. The summary of the objective features of the offending that I provide below shows that that concession is correct, and should be accepted. Regrettably, that error on the part of the learned sentencing judge was founded upon a written submission of the prosecutor then appearing at first instance, and which was not corrected by the lawyer then appearing for the applicant.

9. The third ground of appeal is as follows: “In passing sentence for the sequence 5 offence, the learned sentencing judge erred by applying the wrong maximum penalty.”

10. Again, so much is clear from the remarks on sentence: the maximum penalty for the offence of supplying a commercial quantity of a prohibited drug, contrary to s 25(2) and s 33 of the Drug Misuse and Trafficking Act 1985 (NSW), was referred to as being imprisonment for 25 years, when in fact it is imprisonment for 20 years.

11. Again, the Crown prosecutor conceded in this Court that that reference is not a mere slip, and that one cannot be confident that, in fact, the sentencing judge appreciated and applied the correct maximum penalty: see Campbell v R [2018] NSWCCA 17 at [32].

12. Again, in my opinion that analysis is correct, and the concession should be accepted. Yet again, regrettably a document prepared by the prosecutor at first instance led the sentencing judge into error, and the defence lawyer did not correct it.

13. It follows that I consider that this Court should proceed to the question of re-sentence. In doing so, I adopt the unopposed approach of bearing in mind the arguments underpinning the first ground of appeal, which is as follows: “His Honour erred when considering the applicant’s moral culpability for each offence.”

Re-sentence?

14. I therefore turn immediately to the question of re-sentence, regarding this Court as bound by all of the findings of fact and evaluative judgments at which the sentencing judge arrived, except those that were made the subject of explicit dispute in this Court: see DL v The Queen [2018] HCA 32. In accordance with that approach, the following is largely (though not completely) derived from the remarks on sentence.

Offences

15. The applicant pleaded guilty to a number of offences in the Local Court. They may be identified by their sequence numbers.

16. Sequence 2 was an offence of supplying more than the large commercial quantity of methylamphetamine; namely, more than 3.9 kilograms. The offence carries a maximum penalty of imprisonment for life, and a standard non-parole period of 15 years.

17. Sequence 9 was an offence of supplying a large commercial quantity of amphetamine; namely, a little over 1.34 kilograms. The maximum penalty and standard non-parole period are recorded above.

18. Sequence 5 was an offence of supplying a commercial quantity of the prohibited drug methylamphetamine; namely, more than 385 grams. As explained above, the maximum penalty is in fact imprisonment for 20 years, and there is an applicable standard non-parole period of 10 years.

19. Two offences appeared on a Form 1 pursuant to the Criminal Procedure Act 1986 (NSW), and were to be taken into account when sentencing for sequence 2. The first of those offences was possessing a prohibited drug, namely a number of ampoules of a substance containing testosterone. The maximum penalty for that wholly summary offence is imprisonment for two years.

20. The second offence contained on the Form 1 was an offence of supplying a prohibited drug; namely, more than 82 grams of ephedrine. When dealt with on indictment, that offence carries a maximum penalty of imprisonment for 15 years, and no standard non-parole period.

21. Finally, two offences to do with large quantities of cash were placed before his Honour for determination, by way of a certificate pursuant to s 166 of the Criminal Procedure Act. At the conclusion of a hearing with regard to those offences, his Honour returned verdicts of not guilty; accordingly, they need not be discussed further, and I have disregarded them.

Objective features

22. To state things succinctly, on 29 February 2016 police administered a random breath test to the applicant in the town of Hay, in south-western New South Wales. Although the result was negative, the behaviour and demeanour of the applicant led police to search the vehicle that he had been driving.

23. Eventually, the police located a number of bags of crystal methylamphetamine in that vehicle. The combined weight of those amounts of prohibited drugs was more than the applicable large commercial quantity, and led to sequence 2. His Honour found that the wholesale value of the drug was approximately $1 million, and that the “street value” was in the order of $2 million. The purity of the crystal methylamphetamine was 77-78%.

24. On the same day, police executed a search warrant at the home of the accused in the Sydney suburb of Bella Vista. There they located various quantities of methylamphetamine in different physical forms. Together, those forms of that prohibited drug added up to more than the relevant commercial quantity, and underpinned sequence 5, with a range in the levels of purity: 30.5%, 67%, 73% and 76.5%.

25. On the same occasion, police also located amphetamine in the large commercial quantity underpinning sequence 9, with a purity of 26.5%.

26. At the same location, the police also located the testosterone that became sequence 3 on the Form 1. Furthermore, the police located the ephedrine in the quantity of a little over 82 grams that underpinned sequence 7 on the Form 1.

27. Finally, the police located two sets of electronic scales that bore traces of prohibited drugs, and other indicia of supply for profit.

28. In short, the applicant pleaded guilty to all the offences of supply on the basis that he had possessed the quantity of the prohibited drug in question with intent to supply it, either in the motor vehicle at Hay, or in his home in suburban Sydney. As I have explained, two offences (one of which had a Form 1 to be taken into account on sentence) carried a maximum penalty of imprisonment for life, and one carried a maximum penalty of imprisonment for 20 years.

29. In the proceedings on sentence, there was a significant dispute between the parties about the role of the applicant. The position of the Crown was that his role was substantial and intended to derive profit for himself. The position of the applicant was that he was a mere factotum in the form of warehouse man and deliveryman.

Mitigatory duress?

30. The determination by the sentencing judge of whether the Crown could prove the former proposition about objective seriousness to the criminal standard was inextricably bound up with whether the applicant could prove the mitigating subjective factor that he committed the offences as a result of “non-exculpatory duress”; by that I mean, duress that did not operate as a complete defence to the charges, but rather sounded in mitigation. For the convenience of the reader, in the rest of this judgment I shall simply refer to “duress” when I mean the latter.

31. The position of the applicant about those questions was summarised by the sentencing judge as follows.

32. The applicant, an accomplished boxer, set up a gym as a business. A person referred to in the proceedings as “Mr Burns” had a financial and personal relationship with the applicant that revolved around the gym, but their relationship went sour. Both the applicant and Mr Burns were involved with outlaw motorcycle clubs.

33. At the end of 2011, the son of Mr Burns was murdered. Mr Burns came to believe that the applicant was at least partly responsible for the death of his son. Mr Burns threatened to murder the applicant, and those close to him, and furthermore to rape the wife of the applicant.

34. Although the applicant regarded the threats of Mr Burns as being of the utmost seriousness, he declined to obtain assistance from the authorities. That was because he had an “abiding mistrust” of any manifestation of law enforcement authorities, and refused to cooperate with them in any way. That feeling of the applicant had in turn arisen from the fact that his father was wrongly convicted of murder many years ago, and wrongly incarcerated for years. Eventually, the conviction of the applicant’s father was quashed, and he received a significant sum in damages.

35. In the event, a person known in the proceedings on sentence as “Number 1” offered to protect the applicant and his family from Mr Burns. Number 1 was able to do so effectively. It was not disputed in the proceedings on sentence that Number 1 was able to do so because he was an even more frightening and well-connected person than Mr Burns.

36. Regrettably, Number 1 was also a member of the criminal milieu. Eventually, he called upon the applicant to hold quantities of prohibited drugs for him in the role of a warehouseman. Although the applicant did not wish to do so, he complied with the request of Number 1 out of fear of Mr Burns. That is the explanation for the items found at the home of the applicant.

37. Later, Number 1 also required that the applicant become a deliveryman, otherwise the protection afforded by Number 1 to the applicant against Mr Burns might come to an end. Again, the applicant complied, and that is the explanation for the items found in the vehicle that he was driving in the township of Hay.

38. His Honour resolved the significant dispute between the parties as follows (remarks on sentence (ROS) at 31):

“Having regard to all those matters, the Court accepts on the balance of probabilities the account given by the offender in relation to the circumstances giving rise to his commission of the index offences. In particular, the Court accepts the evidence of the offender with respect to the threats made directly and indirectly by Burns to the offender concerning the $60,000 “redundancy package”, the threats made directly and indirectly by Burns to the offender concerning the murder of Burns' son, the existence [of] “Number 1”, the circumstances that the drugs were initially being warehoused by the offender at the request of “Number 1” including, that the items in the refrigerator in the offender's garage and the drugs in the Jeep 4x4 had been delivered to the offender in a suitcase and that the offender had subsequently agreed to deliver the three plastic bags of methylamphetamine at the request of Number 1.

Therefore, the Court is satisfied on the balance of probabilities that the offender was a warehouseman/courier and not engaged in supply in his own right of the drugs that are the subject of charges sequence 2, 9, 5 and 7.”

39. Importantly, in accordance with that resolution, his Honour also found that the offences were not committed by the applicant for financial gain (ROS at 42):

“Further, in view of the finding the Court will make in connection with sequence 8 and sequence 4 offences [the wholly summary offences of which the applicant was acquitted], the Court is not satisfied that there is any evidence the offender committed the index offences for the purposes of obtaining financial again.”

Objective gravity

40. In terms of the assessment of objective gravity of the offending, the sentencing judge found that sequence 2 was “on the cusp of the lower and middle ranges of relative objective seriousness” for an offence involving a large commercial quantity of methylamphetamine.

41. As for sequence 9, the sentencing judge found that it was “in the lower range of relative objective seriousness” for the offence involving a large commercial quantity of amphetamine.

42. As for sequence 5, the finding was that the objective seriousness was in the “lower range” for an offence involving a commercial quantity of methylamphetamine.

Subjective features

43. Turning now to subjective features generally, the applicant was 39 years of age when he committed the offences.

44. He had been raised by his mother and stepfather. Drug abuse by at least one adult close to him blighted his childhood, and three of his brothers became dependent upon prohibited drugs.

45. His own physical health has been excellent, as evidenced by his proficiency in boxing. Later in life, he developed his own problems with cocaine, amphetamines, and ecstasy, although the sentencing judge accepted that he had abstained from those substances once incarcerated.

46. The applicant has enjoyed a romantic relationship with his wife since he was 15 years of age, though that had been damaged by his abuse of prohibited drugs, and the stress arising from the threats to which he had been subjected.

47. Quite apart from the business founded on the boxing gym, he had found success in at least one other enterprise.

48. There was a suggestion in the evidence of the applicant suffering depression as a result of the loss of his father. A forensic psychiatrist diagnosed substance abuse disorder, but nothing noteworthy beyond that.

49. Many personal references were tendered in evidence on the proceedings on sentence. They spoke of a man who was a kind person and a hard worker, and more than one of their authors expressed disbelief that the applicant had committed the offences in question.

50. Separately, an orthodox discount of 25% was applied by the sentencing judge to the sentence for each offence, in light of the utilitarian value of the early pleas of guilty.

51. As well as that, his Honour found that the applicant was remorseful for what he had done.

52. The sentencing judge gave the applicant some credit for his general paucity of prior convictions. Having said that, it is noteworthy that in 2005, in the Local Court at Parramatta, the applicant was convicted of cultivating a prohibited plant. He was fined the significant sum of $5,000 and ordered to perform 200 hours of community service. The remarks on sentence (that is, in the proceedings now under appeal) record that the evidence of the applicant was that he had “constructed a wall in a house knowing that the premises were to be used by a member of the same outlaw motorcycle gang to grow cannabis plants and that his work was relevant to that activity”.

53. His Honour found that the applicant possessed reasonable prospects of rehabilitation, so long as he was able to free himself from the criminal milieu in general, and the world of outlaw motorcycle gangs in particular.

54. As for moral culpability (a topic that it will be recalled was said to call for revision on re-sentence), his Honour found that, with regard to sequence 2 there was a “high degree”; with regard to sequence 9 it was “substantial”; and with regard to sequence 5 that the moral culpability of the applicant was “significant”.

55. Finally, with regard to the finding of the effect of duress, the sentencing judge provided a “modest amelioration of sentence on this basis”: ROS at 49.

Sentences imposed at first instance

56. The diagram annexed to this judgment sets out the sentencing structure in a readily comprehensible form.

57. Dealing with each offence in the order of the commencement of its sentence, for sequence 5 (supply commercial quantity), a head sentence of imprisonment for three years nine months with a non-parole period of two years seven months, to commence on 28 February 2016, was imposed.

58. For sequence 9 (supply large commercial quantity, based on items from the home) a head sentence of imprisonment for six years with a non-parole period of four years was imposed, to commence on 28 May 2016.

59. With regard to sequence 2 (supply large commercial quantity, based on the items found in the motor vehicle, and taking into account the two offences on the Form 1) a head sentence of seven years six months with a non-parole period of five years two months was imposed, to commence on 28 August 2016.

60. In other words, it can be seen that his Honour imposed a total head sentence of imprisonment for eight years with a total non-parole period of five years eight months, to commence on 28 February 2016.

61. It can also be seen that there was a very small reduction in the non-parole period away from the “statutory ratio”; if that had not been the case, the total non-parole period would have been six years.

Events since the imposition of sentence

62. As part of the exercise of considering re-sentence, I turn to summarise events that have occurred since the imposition of sentence.

63. In an affidavit of 24 August 2018, the applicant discusses his various occupations whilst in custody. They include being employed in the laundry, as a cleaner, in kitchen production, and as a sweeper at numerous correctional centres.

64. The applicant deposes that when he is not working, he enjoys exercising and runs boxing training sessions for other inmates. He also has an interest in mentoring younger inmates in personal training and “the need to stay away from prohibited drugs”.

65. His wife and children visit the applicant on average once a week. The applicant also speaks of his interest in pursuing architecture or draftsman courses in order to further his career upon release.

62. In an affidavit dated 16 August 2018, the solicitor of the DPP annexes the custodial history of the applicant. Two misconduct reports are attached, one for delivering or receiving an unauthorised article from a visitor on 10 February 2018 (nothing more sinister than a new pair of Asics runners), and one for giving false or misleading information to do with a correctional centre’s telephone system on 10 November 2017 (the benefit to the applicant thereby is not clear to me).

Different findings on re-sentence with regard to moral culpability?

67. As I have said, at the hearing of the appeal, senior counsel submitted that, on re-sentence, this Court would arrive at lesser findings than the sentencing judge with regard to moral culpability. All of the findings previously made by the sentencing judge about duress were relied upon for that proposition, as were the findings with regard to the role of the applicant in the criminal enterprise.

68. I respectfully disagree that lesser findings about moral culpability than those made by the sentencing judge should be made for the purposes of re-sentence, for the following reasons.

69. First, the quantities of the drug that the applicant stored and transported themselves argue to the contrary. These were grave crimes, as evidenced by their maximum penalties; their standard non-parole periods; the significant quantities of the prohibited drugs involved; and the enormous sums of money to be made from those drugs, even accepting that the applicant did not receive any material or financial reward for his roles as warehouse man and deliveryman. And although they are certainly separate concepts, the objective gravity of the offending and the moral culpability of the offender are by no means unconnected.

70. Secondly, the obvious professionalism and gravity of the enterprise in which the applicant decided to play two separate roles, with regard to a number of different prohibited drugs, argues in that way as well.

71. Thirdly, it is true, as the sentencing judge found, that the applicant received no financial or material reward for his offending. But he unquestionably received a significant benefit nevertheless; namely, protection from one dangerous, violent criminal provided by a criminal associate of the applicant who was presumably even more violent and even more dangerous.

72. Fourthly, in accordance with the findings of the sentencing judge, I proceed on the basis that the applicant was motivated by fear, and the need to obtain protection to assuage that fear, to commit the offences that he did. But the “necessity” to commit the offences was the direct result of the adamant refusal of the applicant to seek the assistance of the authorities with regard to the threats made against him. In that sense, the criminal outcome in this case was a matter of choice on the part of the applicant.

73. Fifthly, although I am content to describe what has occurred here as mitigatory duress, it is surely important that the person who inveigled the applicant into committing these grave offences is not the person who had made threats against the applicant and his family. In that sense, the application of the concept of duress in this case is obviously attenuated.

74. Sixthly and finally, the version of events given by the applicant regarding the conviction for cultivation as long ago as 2005 shows that he has chosen to be a part of the criminal milieu (at the least spasmodically) for years, and that fact has directly or indirectly led to him committing serious offences to do with prohibited drugs.

75. In short, on re-sentence I would not come to lesser findings about moral culpability than those recorded by the sentencing judge.

Lesser sentence warranted in law?

76. Turning now to the well-known question posed by s 6(3) of the Criminal Appeal Act 1912 (NSW): applying the sentencing discretion afresh, unfettered by the sentences previously imposed; reflecting on the matter as a whole; regarding myself as bound by the undisputed findings of fact and evaluative judgments of his Honour; taking into account the evidence of events since the imposition of sentence; and reflecting on both the individual sentences imposed at first instance and the overarching total sentence, I am affirmatively satisfied that no lesser sentence is warranted in law. I say that for the following reasons.

77. First, I have discussed above my approach to the question of the form of “third-party duress” that is relied upon in this case. In a nutshell: the outcome whereby the applicant committed a number of extremely serious offences, two of them carrying a maximum penalty of imprisonment for life, was very largely of the applicant’s own making.

78. Secondly, it is not unimportant that the applicant is mature man, free of psychiatric or psychological problems (other than abuse of prohibited drugs); who has been a part of the criminal milieu for years; and who possesses a prior conviction for an offence of some seriousness to do with prohibited drugs.

79. Thirdly, as I have said, I proceed on the finding of the sentencing judge that the applicant obtained no financial benefit from his offending. But he certainly obtained a significant benefit nevertheless: the protection from one violent criminal by another, presumably more violent, one.

80. Fourthly, reflection upon the individual sentences imposed leads me to characterise them as by no means harsh, when one considers them in light of the maximum penalties and standard non-parole periods of the offences to which they relate. In my opinion, they reflect appropriately the subjective features relied upon, including the duress. To express that analysis more correctly conceptually: exercising the sentencing discretion afresh, I would not impose shorter sentences for any of the offences than those already imposed.

81. Fifthly, analysis of the sentencing structure adopted by his Honour shows that there was a very marked degree of concurrence between the individual sentences, as follows. The sentence for sequence 9 commenced three months after the sentence for sequence 5, and the sentence for sequence 2 commenced three months after the sentence for sequence 9. On any re-sentence, I would not adopt a greater degree of concurrency than that granted by his Honour.

82. Sixthly and finally, reflecting on a total head sentence of imprisonment for eight years with a non-parole period of five years eight months, and again engaging in an instinctive synthesis with regard to all objective and subjective features, I would not impose a lesser total sentence with regard to either of its components on re-sentence.

83. In short, neither with regard to any individual sentence, nor with regard to the overarching total sentence, do I consider that a lesser sentence is warranted in law. Exercising the sentencing discretion afresh, I would impose a total sentence equal to or greater than the total sentence imposed at first instance.

Conclusion

84. It follows that, although the two conceded grounds of appeal are established, I would not intervene in the sentences actually imposed, and would dismiss the appeal.

Orders

85. I propose the following orders:

(1)   Leave to appeal granted.

(2)   Appeal dismissed.

NYE Sentence Diagram (7.25 KB, pdf)

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Amendments

01 November 2018 - Cover page "SC" added to Ingram DCJ

The "style" of three headings after paragraph 55 were changed.

Decision last updated: 01 November 2018