Pellegrino v The Queen
[2014] NSWCCA 287
•28 November 2014
Court of Criminal Appeal
New South Wales
Case Title: Pellegrino v R Medium Neutral Citation: [2014] NSWCCA 287 Hearing Date(s): 18 November 2014 Decision Date: 28 November 2014 Before: Price J at [1];
McCallum J at [2];
R A Hulme J at [3]Decision: 1. Leave to appeal against sentence granted.
2. Appeal dismissed.Catchwords: CRIMINAL LAW - appeal against sentence - drug and firearm offences - quantity of drug for supply just within indictable range - offence of supply prohibited drug not above mid-range objective seriousness - sentence for supply manifestly excessive - finding that offence of possess prohibited unauthorised firearm was in mid-range objective seriousness was open - weapon was altered to conceal and found to be possessed by "criminally minded" offender - found in context of drug manufacture and supply activity and with ammunition - despite manifest excess for supply offence, no lesser overall sentence required in law Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Cases Cited: AB v The Queen [1999] HCA 46; 198 CLR 111
Carroll v The Queen [2009] HCA 13; 254 CLR 259
Hili v The Queen; Jones v The Queen [2010] HCA 45; 244 CLR 520
Kentwell v The Queen [2014] HCA 37
Markarian v The Queen [2005] HCA 25; 228 CLR 357
R v Hughes [2005] NSWCCA 235
Skocic v R [2014] NSWCCA 225
Tran v R [2013] NSWCCA 322Category: Principal judgment Parties: Christopher Pellegrino (Applicant)
Regina (Respondent)Representation - Counsel: Counsel:
Mr J Stratton SC (Applicant)
Mr N J Adams (Crown)- Solicitors: Solicitors:
Baker Ryrie Rickards Titmarsh
Solicitor for Public ProsecutionsFile Number(s): 2012/69160 Decision Under Appeal - Court / Tribunal: District Court - Before: Arnott SC DCJ - Date of Decision: 05 September 2013 - Court File Number(s): 2012/69160
Judgment
PRICE J: I agree with R A Hulme J.
McCALLUM J: I agree with R A Hulme J.
R A HULME J: Christopher Pellegrino (the applicant) was sentenced for drug and firearm offences by his Honour Judge Arnott SC in the District Court at Queanbeyan on 5 September 2013.
The overall sentence imposed was one of imprisonment for 5 years with a non-parole component of 3 years 4 months.
The individual offences and sentences were as follows:
Offence Act/Section Maximum penalty Sentence Start Date H47365007/002
Manufacture a prohibited drug > indictable quantity (not cannabis)
s 24(1) Drugs Misuse and Trafficking Act 1985 15 years imprisonment and/or 2000 penalty units Taking into account Form 1 matters
1 year F/T
02.03.12 H47365007/005
Possess unauthorised firearm
s 7A(1) Firearms Act 1996 5 years imprisonment 9 months F/T 02.07.12 H47365007/015
Supply a prohibited drug
s 25(1) Drug Misuse and Trafficking Act 1985 15 years imprisonment and/or 2000 penalty units 5 years with NPP 3 years 4 months 02.03.12 H47365007/018
Possess precursor for use in manufacture/production of a prohibited drug
s 24A(1)(a) Drug Misuse and Trafficking Act 1985 10 years imprisonment and/or 2000 penalty units 2 years F/T 02.03.12 H47365007/020
Possess unauthorised prohibited firearm
s 7(1) Firearms Act 1996 14 years imprisonment 3 years with NPP 2 years 02.07.13
A graph annexed to this judgment illustrates the structure of the overall sentence.
In sentencing for the Manufacture offence the judge took into account at the applicant's request his guilt in respect of a number of offences listed on a Form 1 document (Div 3 of Pt 3 of the Crimes (Sentencing Procedure) Act 1999 (NSW)). There was one offence of possessing ammunition; three of not keeping a firearm safely; three of possessing unregistered firearms; one of possessing an unauthorised firearm; two of possessing a precursor; and one of possessing a prohibited weapon.
The grounds of appeal contend that the sentence for the supply offence in Count 3 is manifestly excessive; the sentence for the prohibited firearm offence in Count 5 is manifestly excessive; and the degree of accumulation of the sentence for Count 5 was too great. I have concluded that there is merit in the first ground; that there is no merit in the other grounds; and that no lesser overall sentence is warranted.
Facts
Police executing a search warrant at the applicant's home at Smithfield on 1 March 2012 found a clandestine laboratory set up in the kitchen and a bedroom. Both parts of it were in the heating and distillation process and were described in the statement of facts as being "in a highly dangerous state". A forensic chemist was of the opinion that the process underway was capable of producing 6 grams of methylamphetamine (Seq 2 - Manufacture methylamphetamine).
Methylamphetamine crystals were found in a refrigerator in the kitchen. The amount was 7.57 grams and the purity was 77.5 per cent (Seq 15 - Supply methylamphetamine).
A sawn-off double barrel Beretta shotgun was found on a bedside table in the master bedroom (Seq 20 - Possess unauthorised prohibited firearm). Beside it were two unused shotgun cartridges suitable for use in the Beretta (Form 1).
A .303 calibre bolt action rifle was found in the bedroom in which part of the laboratory was set up ("the Austrian rifle")(Seq 5 - Possess unauthorised firearm). Another .303 calibre bolt action rifle with a jammed cartridge in the barrel was found in the same room ("the Lithgow rifle") (Form 1).
In excess of 60 rounds of ammunition of varying calibre were found in the lounge room. Some were in a magazine. In excess of 300 rounds of a variety of types of ammunition were found in locations within the house that were not specified in the statement of facts.
Two machete swords and a spear gun were found in the lounge room. A set of nunchakus and a telescopic rifle scope were found in a bedroom.
Various precursor chemicals were found including piperonal, the subject of the offence for which the applicant was sentenced (Seq 18), nitroethane and sodium borohydride (Form 1).
Personal circumstances of the applicant
The applicant was aged 22 at the time of the offences. He was single and lived with his father in the house where the drug manufacturing was occurring. He had a criminal record but with only one matter of any real seriousness and it was dealt with in 2008 in the Children's Court.
He suffered a number of injuries, including a head injury, in a motor vehicle accident when he was aged 5. Thereafter he experienced behaviour changes characterised by impulsivity and interpersonal aggressiveness. He was diagnosed with a brain injury with poor impulse control demonstrating behaviour consistent with attention deficit hyperactivity disorder. There was no adverse impact upon his intellectual or cognitive functioning. He was taking medication from the age of 6 until he stopped of his own volition somewhere between the ages of 16 and 19. He attended anger management courses when he was 15 which he told Dr Allnutt, forensic psychiatrist, were helpful.
He started using substances at the age of 13 after his parents separated. He initially used cannabis, later alcohol, and then methylamphetamine. He consulted a psychiatrist when he was 19 or 20 and was prescribed medication but the judge observed that his continued substance abuse complicated the treatment. The applicant's mother gave evidence that he responded better when taking the medication than when not taking it. The psychiatrist considered that he should continue with medication but he was not compliant. By the time of the offences he was smoking about 3.5 grams of methylamphetamine and consuming half a bottle of scotch per day.
The judge noted that the applicant's behavioural problems had caused him problems at school, in the workplace, and in interacting with others. He left school at the age of 15 for that reason. His work history had been in labouring endeavours with his longest period of employment being for about six months. He was unable to sustain a job because his irritable nature lead to conflicts.
The applicant gave evidence that in 2010 he stopped working and seeing the psychiatrist. He was unmedicated for a year before he started manufacturing methylamphetamine. He also purchased the drug from dealers. The applicant had a gambling problem as well. He said that up to the age of 21 his drug abuse and gambling was financed by his wages, by money borrowed from his mother, and by periodic withdrawals from an income earning trust account that had been set up for him following an award of damages he received in relation to the motor vehicle accident when he was aged 5.
The learned judge reviewed at some length the evidence given by the applicant explaining his commission of the offences. In short, he said that he turned to making methylamphetamine as an alternative to getting a prescription for medication from his psychiatrist. He said he found it difficult to travel into the city to see him. Making the drug was cheaper than buying it from dealers. But he agreed in cross-examination that it would have been cheaper to get a prescription from a local doctor rather than making a prohibited drug.
The applicant claimed that he never profited from manufacturing methylamphetamine. He said the 7.57 grams found in the refrigerator was not intended for supply, but he was prepared to admit guilt nonetheless. He conceded in cross-examination that he had been successfully making 3 to 6 grams of the drug every couple of weeks for 6 months prior to his arrest. He was using 5 to 6 grams every 3 days.
Senior counsel for the applicant had submitted that there was a clear connection between the commission of the offences and the consequences of the head injury as explained by Dr Allnutt: executive dysfunction contributing to an increased propensity to impulsive behaviour as well as a disregard for the consequence of his actions. The judge was referred to authorities concerning the sentencing of persons with a significant mental disorder or intellectual handicap.
The judge noted that the applicant had not claimed that his propensity to impulsive behaviour and disregard for the consequences of his actions played any part in his possession of the firearms. He did, however, find that the applicant's culpability for the drug and firearm offences was reduced and "the full measure of general and personal deterrence can be reduced to a certain extent due to his intellectual dysfunction". He added, "the offender's actions could hardly be described as impulsive but involved planning and organisation over a considerable period of time. I consider specific and general deterrence remain important considerations."
The judge accepted a submission that the applicant's prospects of rehabilitation were good, provided that he engaged with the recommendations of Dr Allnutt that he consult a psychiatrist and start antidepressant medication; consult with a psychologist for strategies to deal with his impulsivity and frustrations with his cognitive limitations; and engage with ongoing drug and alcohol rehabilitation.
A finding was also made that the applicant was remorseful.
A reduction of 25 per cent was allowed for the utilitarian value of the applicant's pleas of guilty.
Special circumstances were found to justify a reduction of the proportion of the sentence represented by the non-parole period. The judge referred to the applicant's need for assistance after release for his drug and alcohol issues; his behavioural and emotional issues; and the fact that there was to be an accumulation of sentences.
The judge's assessment of the seriousness of the offences
In relation to the manufacturing offence, the judge observed that the quantity involved was 6 grams and the indictable quantity range is from 5 to 250 grams. He took into account that the applicant sourced the recipe, bought the chemicals and apparatus, set up the laboratories in two rooms of the house and was the "cook". His Honour rejected the applicant's claim that he was only manufacturing the drug for his own use. He concluded that it was "for both sale and his own use". Nevertheless, he concluded: "the seriousness of this offence falls towards the bottom of the range for this type of offence".
The judge referred to the 11 matters on the Form 1; saying that many were serious offences and required an appreciable enhancement of the penalty to be imposed for the primary (manufacture) offence.
His Honour found that there was a degree of overlap between the manufacture and supply offences. One feature of this was the applicant's role as the supplier of the drug at its source. The quantity was comparatively small but it was of a high purity and could be cut down many times to increase the number of grams available for sale. He concluded, "a good quantity of it was for sale". The supply offence was found to be "above the middle of the range of seriousness of offences of this type".
The judge rejected the claims made by the applicant about the precursor offences. He found that he "knew perfectly well what piperonal was for and it was his intention to use this precursor for the future production of ecstasy". Given the applicant's addiction was to methylamphetamine, it followed that his motive was financial gain. He noted the evidence that 743 grams of pure piperonal could lead to 354 grams of ecstasy being manufactured. The precursor offences on the Form 1 were relevant to that process of manufacture. The judge said "this indicates the size of the reward he was expecting to reap and the large quantity of ecstasy that was potentially going to be made available for [end] users". He concluded: "the seriousness of the offence fell well above the middle of the range for offences of this type".
His Honour found the possession of an unauthorised prohibited firearm (the shortened Beretta shotgun) was in the middle of the range of objective seriousness. He noted that weapons that are more dangerous were included in the definition of "prohibited firearms" in the Firearms Act1996 (NSW) but being shortened meant that this one could be more easily concealed. He noted that the legislative intention was to deter and punish the possession of firearms whether in the hands of honest citizens or the criminally minded. He found that the applicant was "amongst the ranks of the criminally minded through his drug manufacture and intended supply activities". Whilst the firearm was not loaded, there were two cartridges found sitting beside it. Finally, the fact that the applicant possessed the shotgun in the context of being involved in the manufacture and intended supply of drugs was relevant to the seriousness of the offence. He did, however, accept the applicant's claim that he had never fired it at anyone.
The possession of the .303 calibre bolt action rifle (the Austrian rifle) found where the laboratory was set up in a bedroom was found to fall "slightly below the middle of the range". The judge took into account that it was in the possession of a person who was "criminally minded through his drug manufacture and intended supply activities". There was a link between its location and the manufacture occurring. It was not loaded and it did not appear that there was ammunition suitable for use with it.
Ground 1 - The sentence for count 3 (the supply prohibited drug charge) was manifestly excessive
Mr Stratton SC submitted for the applicant that the quantity of the drug was at the bottom of the indictable range and so, all else being equal, the objective seriousness of the offence should have been assessed as well towards the bottom of the range and therefore the sentence should have been towards the lower end of the range. However, the starting point before reduction for the applicant's plea of guilty was almost half of the maximum penalty.
Mr Stratton pointed to the fact that the police did not find any of the commonly encountered indicia of a commercial drug dealing business such as cash, debtors' ledgers or packaging and there was no evidence of telephone calls to arrange sales.
Judicial Commission sentencing statistics showed that 53 per cent of offenders received a full-time custodial sentence. Of 484 offenders who did, their sentences ranged from 6 months to 10 years with a median of 2 years 6 months. Only 20, or about 4 per cent, received a head sentence of 5 years or more. A review of non-parole periods that had been imposed was to a similar effect.
An attempt was made to identify comparable cases but counsel was only able to cite two: R v Hughes [2005] NSWCCA 235 and Tran v R [2013] NSWCCA 322. They were both prisoner appeals against the asserted severity of sentence that failed and the objective and personal circumstances differed quite significantly. They do not assist.
The Crown reminded the Court that to make good a ground such as this an appellant must establish that the sentence is unreasonable or plainly unjust: Markarian v The Queen [2005] HCA 25; 228 CLR 357 and Carroll v The Queen [2009] HCA 13; 254 CLR 259.
It was submitted that the quantity of the drug was but one factor relevant to the assessment of the seriousness of the offence. The role of the applicant as the source of the drug and the high level of purity were relevant as well.
The Crown also reminded the Court of the care with which one must approach the use of statistics and so-called comparable cases: Hili v The Queen; Jones v The Queen [2010] HCA 45; 244 CLR 520; Skocic v R [2014] NSWCCA 225. In relation to the statistics, it was suggested that offenders charged in respect of a small quantity of the drug would more likely be street dealers and not a principal dealing with a drug of high purity.
Giving full weight to the fact that the applicant was the source of the drug, and that it was of a high purity, the fact remains that within the scope of an offence that can involve quantities ranging from 5 grams to 250 grams, this offence was not above the middle of the range of objective seriousness. The finding by the judge to that effect was not one that was open to him. The sentence imposed was consistent with that erroneous finding. I have come to the view that the sentence for the supply offence is manifestly excessive.
Ground 2 - The sentence imposed for count 5 (the count of possession of a prohibited firearm) was manifestly excessive
Ground 3 - The degree of accumulation of the sentence imposed for count 5 (the count of possess prohibited firearm) was too great
These grounds were dealt with together in the submissions and I will do likewise.
Ground 3 may be despatched immediately. The sentence for this offence was specified to commence later than all of the other sentences. However, it was entirely subsumed within the sentence for the supply offence. The applicant received no additional punishment for this offence.
Mr Stratton submitted that there should have been a finding that this offence was towards the lower end of the range of objective gravity. This was because there was no evidence it was loaded; the applicant swore that he had never fired it and that it was not kept loaded; and there was no evidence that it had been used in the commission of any offence.
In my respectful view, the findings made by the sentencing judge were well open to him. The offence concerned a double barrelled shotgun that had been shortened to render it easily concealable. It was possessed by someone who was characterised as "criminally mind" (and there is no criticism of that). It was found in the context of the applicant's drug manufacture and supply activity. And there was ammunition found with it.
With a finding of objective seriousness in the middle of the range, and taking into account such matters that were favourable to the applicant (good prospects of rehabilitation, remorse, plea of guilty, less emphasis to some degree upon general and personal deterrence), a sentence of 3 years with a non-parole period of 2 years, when assessed in the light of the legislative guideposts of a maximum penalty of 14 years and a standard non-parole period of 3 years, is not unreasonable or unjust.
Section 6(3) of the Criminal Appeal Act 1912 (NSW)
Having found that the sentence for the Supply offence is manifestly excessive, it becomes a matter for the Court to consider in the exercise of its discretion what sentence ought be imposed: AB v The Queen [1999] HCA 46; 198 CLR 111 at [130] (Hayne J). (Although Hayne J was in dissent; the paragraph cited deals with the appellate response to error having been established, either patent or latent, and was referred to with approval in Kentwell v The Queen [2014] HCA 37 at [35] (French CJ, Hayne, Bell and Keane JJ)).
In Kentwell v The Queen it was recognised (at [43]) that in the exercise of the appellate court's discretion when it considers resentencing after patent error has been established, one of the outcomes may be that whilst a lesser sentence is thought to be warranted for one or more offences, it may also be thought that a greater sentence is appropriate for another or other offences. In such circumstance it would not necessarily follow that the court would resentence. I see no reason in logic or principle why the same cannot apply in a case where latent error is identified and sentences for only one or some offences in a multi-offence sentencing exercise are found to be manifestly excessive.
In my view, a sentence for the Supply offence of no more than 4 years (that is, a starting point of about 5 years 6 months as opposed to 6 years 8 months) is appropriate. But the sentence for that offence should not entirely subsume all of the other sentences that were imposed. There should have been some partial accumulation on the sentence for the Possess prohibited unauthorised (Beretta) firearm offence, at least. In my assessment, nothing less than the overall term for all of the offences of 5 years is warranted and should have been passed.
Orders
I propose the following orders:
1. Leave to appeal against sentence granted.
2. Appeal dismissed.
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[1]Pellegrino sentence graph
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