R v Colin Wilkie - [2003] NSWCCA 69

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Colin WILKIE [2003] NSWCCA 69 revised - 4/04/2003

FILE NUMBER(S):
60237 of 2002

HEARING DATE(S): 21/03/03

JUDGMENT DATE: 21/03/2003

PARTIES:
REGINA v COLIN WILKIE

JUDGMENT OF: Studdert J Shaw J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/11/1228

LOWER COURT JUDICIAL OFFICER: Urquhart DCJ

COUNSEL:
Crown: R. Hulme, SC
App: L. Flannery

SOLICITORS:
Crown: S.E. O'Connor
App: D.J. Humphreys

CATCHWORDS:
Criminal law - appeal - sentence - parity - co-offender's role in criminal enterprise greater than that of applicant - appeal allowed - resentencing - rehabilitation

LEGISLATION CITED:
Drug Misuse and Trafficking Act 1985 (NSW)

DECISION:
Grant leave to appeal; appeal allowed; quash the sentences imposed by Urquhart DCJ on 8 April 2002; In lieu thereof substitute a sentence, for each charge, of two years and six months to commence on 29 August 2001 and expire on 28 February 2004 with a non-parole period to commence on 29 August 2001 and expire on 28 March 2003; applicant should be released on parole at the expiry of the non-parole period.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60237 of 2002
Studdert J
Shaw J
21 March 2003

Regina v Colin Martin WILKIE

Judgment

Shaw J: The applicant seeks leave to appeal against a sentence imposed by Urquhart DCJ on 8 April 2002 in the District Court at Sydney. The applicant pleaded guilty at Central Local Court on 7 December 2001 to a charge pursuant to s 25A of the Drug Misuse and Trafficking Act 1985 (NSW) (“the DM&T Act”) and a further charge pursuant to s 25(1) of that Act.
Section 25A of the DM&T Act relevantly states:
25A. Offence of supplying prohibited drugs on an ongoing basis
(1) Offence provision
A person who, on 3 or more separate occasions during any period of 30 consecutive days, supplies a prohibited drug (other than cannabis) for financial or material reward is guilty of an offence.
Maximum penalty: 3,500 penalty units or imprisonment for 20 years, or both.
The first charge to which the applicant pleaded guilty was that between 22 June 2001 and 19 July 2001 at Glebe he did on three or more separate occasions during a period of thirty consecutive days supply a prohibited drug other than cannabis (namely, heroin) for financial or material reward. The second charge was that between 25 May 2001 and 21 June 2001 at Glebe he did supply a prohibited drug (namely, heroin).
The trial judge sentenced the applicant on each charge to a term of imprisonment of three years to commence on the date of his arrest, 29 August 2001 with a non parole period of one year and ten months to expire on 28 June 2003.
A set of police facts was tendered at the sentencing proceedings without objection. Those facts reveal that the offences for which the applicant was sentenced relate to a police operation undertaken by the Leichhardt Local Area Command since late 2000. At this time the police became aware that the residence of Ms Karin Bala at 22 Westmoreland Street in Glebe was identified as a source of supply of prohibited drugs and commenced Operation Sudbury to investigate this supply.
Listening devices revealed that in conversations between Ms Bala and the applicant, the applicant would refer to Ms Bala as ‘boss’. This accorded with police intelligence that Ms Bala was the controlling operator in the illegal operation. Those devices further revealed that, following the compromise of an undercover police operative in the investigation, Ms Bala developed a new mode of operation with the assistance of the applicant. Those devices record conversations between Ms Bala and customers explaining to them that in future they should contact the applicant to purchase drugs.
Another police undercover operative was introduced to the investigation and on two separate occasions that operative paid $50 to the applicant and received supplies of heroin in return. The first occurred on Friday 22 June 2001 and the second on Monday 2 July 2001. Those supplies involved, respectively, amounts of 0.15 grams and 0.09 grams of heroin.
On Friday 6 July 2001 the defendant told the undercover operative that he could not supply her with prohibited drugs because Ms Bala was not going to do ‘it’ anymore. On Thursday 19 July 2001 an undercover operative handed $50 to the applicant but this was later returned and the applicant told the operative that they had sold out.
An additional statement of facts was tendered immediately prior to the sentencing of the applicant. Those facts state:
In the period 25th May, 2001 to 21st June, 2001, Wilkie would attend upon the premises of Karen Bala to obtain heroin for his use. As he became trusted by Bala, he would act as a doorman at the premises in the capacity of allowing persons to enter the premises and to go upstairs to Bala to obtain a deal. Over time, Wilkie became involved in the actual supply of deals of heroin by passing over the heroin at the direction of Bala and collecting money for Bala and by discussing with Bala with [sic] method by which Bala would obtain heroin and conduct her business. This included the provision of Wilkie’s telephone number to prospective buyers.
Ms Bala was later sentenced by District Court Judge, his Honour, Judge Nicholson, SC on 13 September 2002 on similar charges pursuant to ss 21 and 25A of the DM&T Act. Ms Bala pleaded guilty to those two charges on 14 June 2002. It was requested that six further counts be taken into account on the form 1. Four of those counts were receiving charges and two involved having goods on her premises reasonably suspected of being unlawfully obtained.
Nicholson DCJ sentenced Ms Bala for the initial supply to a fixed term of imprisonment of twelve months to date from 28 August 2001. For the charge pursuant to s 25A of the DM&T Act Ms Bala was sentenced to three years imprisonment to commence on 28 August 2002 with a non parole period of six months to expire on 27 February 2003. Nicholson DCJ ordered that she be released to parole at the expiry of the non parole period.
The applicant submits that he suffers a ‘justifiable sense of grievance’ at the disparity between his own sentence and that of Ms Bala.
Parity
In R v Schultz [2002] NSWCCA 462 Wood CJ at CL said:
The parity principle of sentencing established in Lowe v The Queen and Postiglione v The Queen requires that there should not be a marked disparity between sentences imposed on co-offenders, of a degree or kind, which gives rise to a justifiable sense of grievance. A sentence which offends that principle should be reduced. That may occur notwithstanding that it is otherwise appropriate or within the permissible range of sentencing options…although, as later noted, the appellate court still retains a discretion not to intervene. (Emphasis in original.)
Judicial Commission statistics and my own researches into the current tariffs for offences pursuant to s 25A of the DM&T Act represent a range between 3 to 6 years for head sentences and from twelve months to four years for a non parole period (Bacon [2000] NSWCCA 549; Bevan [2002] NSWCCA 224; Bruppacker [2002] NSWCCA 182; DJM [2002] NSWCCA 493; Fogg [2002] NSWCCA 395; Handley [2001] NSWCCA 371; Jordan [2002] NSWCCA 228; Chin Vu Quoc Le [2002] 26; McArthur [2002] NSWCCA 390; Radford [2002] NSWCCA 122; Smith [2002] NSWCCA 378; Zakaria [2002] NSWCCA 450; Zarie [2002] NSWCCA 350). The maximum penalty prescribed by the statute is 20 years imprisonment or 3,500 penalty units. Accordingly, the sentence imposed upon the applicant was within the range open to the trial judge and the applicant has made no submission that the sentence was manifestly excessive. However, as Wood CJ at CL said in Schultz if the Court concludes that there was a marked disparity in the sentences of the applicant and Ms Bala then it may intervene even if it requires that the Court impose a sentence below this range. Even so, such a redetermination should not result in a sentence that does not represent the objective gravity of these types of offences: R v Boney [2001] NSWCCA 432 at [15] per Wood CJ at CL.
Disparity in roles between the applicant and Ms Bala
The Crown has conceded, at the sentencing of the applicant and on this appeal, and very properly so, that the role played by Ms Bala in the criminal enterprise was greater than that of the applicant. This was supported by the police facts that were tendered in which it is noted that during conversations with Ms Bala the applicant refers to her as ‘boss’.
Applying the objective test of whether the sentences imposed upon the applicant in the circumstances would give him a justifiable sense of grievance I am satisfied that there is a marked disparity between the sentences of the applicant and Ms Bala. The applicant’s total head sentence of three years with a non parole period of 22 months indicates a level of criminality that is not commensurate with the criminality of Ms Bala represented by the total sentence imposed on her of four years with a non parole period of eighteen months. The difference in head sentence, and more significantly, the difference in non parole periods, should be, in my view, remedied by this court.
Rehabilitation
Before I identify the particular orders I propose I should make reference to one further matter. In the remarks on sentence the trial judge said:
It is not natural for somebody, who is in his mid 30’s or for that matter for any one of any age, when giving evidence in sentencing proceedings to profess that they are well and truly on the way to rehabilitation and that this rehabilitation will be better served by either a shorter sentence than would otherwise be imposed or by a shorter non-parole period than would other wise be imposed.
Having said that, however, I hasten to add that the evidence that this offender gave to me during this sentencing hearing was quite impressive and I accept the evidence that he gave to me. I accept his contrition and remorse and I also accept that he does believe that he is on the road to rehabilitation.
This Court, inevitably, did not hear the evidence the applicant gave at the sentencing hearing. However, nonetheless, I have read the transcript of that evidence and I agree with the comments made by the trial judge in respect of the applicant’s prospects of rehabilitation.
At the sentencing hearing the applicant told the Court that he had a prior record of driving and assault offences involving alcohol. He served some time in prison and after his release met his de facto wife with whom he has been living since the early 1990s. The applicant had full time employment until an apparent slump in the building industry in 1999, which lost the applicant his position. Around the same time the applicant’s wife began to relapse into a schizophrenic illness and suffered two miscarriages. At that time the applicant relapsed into his alcoholism and later, after 1999, started to use heroin.
After his arrest for these offences the applicant seems to be receiving treatment from a psychologist in gaol. He has, it seems, ceased the use of heroin since that time. He said in evidence when asked:
Q –what do you say about your use of any illicit drug or alcohol?
A. Any illicit drug I will just stay away from it. I don’t want – with the help of AA – well, and D and A, I can do that, I know I can because I’ve did it before when I was out of gaol in 1992 and I stayed off it all the way to 1999, late 1999.
The applicant also indicated he could now return to full time employment as the building market has recovered from the slump suffered in 1999.
Accordingly, in all of the circumstances the orders I would propose, without disturbing the findings of the trial judge relating to the special circumstances of the applicant’s prospects of rehabilitation, are:
1) Grant leave to appeal;
2) Allow the appeal;
3) Quash the sentence imposed by Urquhart DCJ on 8 April 2002;
4) In lieu thereof substitute a sentence, for each charge, of two years and six months to commence on 29 August 2001 and expire on 28 February 2004 with a non parole period to commence on 29 August 2001 and expire on 28 March 2003. The applicant should be released to parole at the expiry of the non parole period.
Studdert J: I agree with the orders proposed and the reasons expressed for those orders.
Accordingly, the orders will be as proposed by Shaw J.

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LAST UPDATED: 04/04/2003