R v Cuthel

[2001] NSWCCA 347

CITATION:	R v Cuthel [2001] NSWCCA 347
FILE NUMBER(S):	CCA 60677/00
HEARING DATE(S):	10/9/01
JUDGMENT DATE:	10 September 2001
PARTIES :	Regina Paul Steven Cuthel
JUDGMENT OF:	Sully J at 1, 37; Carruthers AJ at 2

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	99/31/0127
LOWER COURT JUDICIAL OFFICER :	Blanch CJ of District Court

COUNSEL :	M C Grogan (Crown) R Burgess (App)
SOLICITORS:	S E O'Connor D J Humphreys
CATCHWORDS:	Sentencing - limited facts put before sentencing judge - whether sentencing judge considered disadvantages to family of appellant while appellant serving sentences - whether special circumstances - fresh evidence argued.
LEGISLATION CITED:	Crimes Act 1900 Drugs (Misuse and Trafficking) Act 1985 Firearms Act 1996
CASES CITED:	R v Hameed (2001) NSWCCA 287 R v White (Unreported NSWCCA 30 March 1999)
DECISION:	Leave to appeal granted. Appeal dismissed.

- 11 -IN THE COURT OF

CRIMINAL APPEAL

60677/00

SULLY J
CARRUTHERS AJ

Monday 10 September 2001

Regina v Paul Steven Cuthel

JUDGMENT

1    SULLY J: I invite Carruthers AJ to give the leading judgment.

2 CARRUTHERS AJ: Paul Steven Cuthel seeks leave to appeal against sentences imposed upon him by Justice Blanch Chief Judge of the District Court on 18 October 2000. On that occasion the applicant adhered to pleas of guilty to one count of unauthorised possession of a firearm, namely, a 7.65 mm calibre Mauser self-loading pistol, contrary to s 7 of the Firearms Act 1996 which carries a maximum penalty of 5 years imprisonment (the first count).

3    Further, to one count of supply prohibited drug (lysergide) contrary to s 25(1) of the Drug (Misuse and Trafficking) Act 1985, which offence carries a maximum penalty of imprisonment for 15 years and/or a 2000 penalty unit fine (the second count).

4    His Honour was asked to take into account a Form 1 containing one count of supply methyl-amphetamine, one count of supply cannabis resin, and one count of possess stolen or unlawfully obtained money.

5 The third count in the indictment was one of attempt to influence a witness contrary to s 323(a) of the Crimes Act 1900 which carries a maximum penalty of 7 years imprisonment. Thus in sentencing the question of totality arose for his Honour.

6    In resolving the question of totality, his Honour imposed the following sentencing regime:

7    In relation to the first count, his Honour sentenced the applicant to a fixed term of 12 months imprisonment, to commence on 18 October 2000 and to expire on 17 October 2001.

8    In relation to the second count, the applicant was sentenced to imprisonment for a term of 3 years and 8 months, to commence on 18 October 2000 and to expire on 17 June 2004, with a non-parole period of two years and six months to expire on 17 April 2003.

9    In relation to the third count, the applicant was sentenced to a fixed term of imprisonment of 2 years to commence on 18 October 2000 and to expire on 17 October 2002. The Form 1 matters were taken into account in relation to the second count. In fixing those sentences, his Honour took into account pre-sentence custody of 4 months. So the overall sentence was 3 years and 8 months imprisonment, with a non-parole period of 2 years and 6 months, all sentences were to be served concurrently.

10    His Honour found that there were special circumstances which justified a departure from the nominal ratio.

11    The applicant was born on 5 October 1964 and his only relevant prior criminal history was the imposition of a fine at the Port Macquarie Local Court on 4 October 1995 for possession of an unlicensed firearm, and possession of prohibited drugs, being cannabis and amphetamine.

12    The proceedings before his Honour were unsatisfactory through no fault on the part of his Honour. His Honour said this in that regard:

“The unusual aspect about this case is that not all the facts are before the court. That has arisen because there were negotiations between the prosecution and the defence, and a plea of guilty was entered in respect of those matters after the case was committed for trial. The statement of facts which has been tendered before the court is a very bald statement of facts, and the only other facts that I know in passing sentence are the extra facts that have been given to me during the course of the proceedings and which I have already referred to.”

13    The statement of facts is bald indeed. I quote verbatim:

“Police searched 23 Neeworra Ave, Narara at 2.40am on the 27th July, 1998, these premises being owned by the accused. Whilst searching the outside of these premises Police lifted a 3x2 foot slab of concrete from the bar-b-Que (sic) area and located a lunch box secreted in the fire well. Located in the lunch box was the following items;
1 Bag of beige power (sic), weight 37 grams.
2 bags of green vegetable matter, each bag weighing 31 grams
$3575 in Australian currency
1 Bag of residual power, no weight.
1 Bag containing two blocks of brown resin, total weight 46 grams
1 Bag containing three tabs (LSD)
1 ‘A’ four piece of paper containing 417 tabs(LSD)
1 Semi Automatic Mauser 7.65cl handgun secreted in a black glove.
One satchel containing half an LSD tab

The accused was arrested and conveyed to Gosford Police Station and charged with these matters.
Whilst the accused was on bail a telephone intercept was attached his telephone (sic). A total of 12 calls were intercepted by Police where dialogue between the accused and associates were logged. The contents of these conversations related to the accused attempting to locate his ex defacto wife, Yvonne De Wit. De Wit is a witness under subpoena in the trial now before court. These attempts to contact her were clearly an attempt to prevent her from giving evidence.”

14 One only needs, for example, to refer to the brief reference to the telephone intercepts which formed the twelve calls which provided the foundation for the charge under s 323 of the Crimes Act which is a serious charge indeed. His Honour was clearly entitled to further details of this material so that he could make an accurate assessment of what was the specific degree of criminality involved in the charge.

15    His Honour should not have been in a position where it was necessary for him to seek some elucidation of critical matters. An example in that regard relates to the offence under the Firearms Act. It goes without saying that the possession by a drug dealer, in his premises, of a 7.65 cl Mauser self-loading pistol is an extremely serious matter; particularly, as it appears the Mauser was secreted in a black glove.

16    Then it was said on behalf of the accused that the weapon was not operable. The judge obviously did not have any idea as to what that involved, and nor does this Court. A weapon of that nature could be inoperable at a particular time for a variety of reasons, some serious and others of minor significance. However, be that as it may, the possession of such a weapon secreted in a black glove located on the premises of a person dealing in drugs is a very serious matter. The possession of handguns by drug dealers is normally considered to be a potentially dangerous combination.

17    The applicant elected not to give evidence before his Honour; so this is a matter on which no questions could have been directed to him. The Crown elected, however, to make a concession that the weapon was not operable and also that no ammunition was found with the gun.

18    The explanation which was given in evidence before his Honour was very unsatisfactory indeed. That is to say, the explanation for possession of this inherently dangerous weapon, which one might say could be used as a weapon to create an atmosphere of fear, irrespective of whether it was operable, or whether or not it was loaded.

19    Nevertheless, his Honour came to the conclusion that he should not pass sentence for possession of the handgun cumulative upon any of the other sentences. So expressed, that was a very generous conclusion in favour of the applicant.

20    His Honour also appreciated, if I may respectfully say so, the seriousness of the offence of attempting to influence a witness, although, as I have already said, regrettably the detail of the relevant dialogue was not put before his Honour.

21    As the applicant elected not to give evidence, the subjective circumstances, upon which the applicant relies so heavily in this application, were channelled through to his Honour by medium of a pre-sentence report being a report from Anna Robilliard of Duffy Barrier Robilliard Psychologists (dated 15 October 2000).some personal written references, and the oral evidence of one lay witness.

22    It is not necessary that I relate in detail the family circumstances in which the applicant was living at the time of the commission of the subject offences, and the specific difficulties which his incarceration have imposed upon members of the family. They include his mother, who suffers from a serious illness, as does his brother, and the fact that he had the care of two young female children.

23    His Honour considered carefully the effect upon the members of the applicant's family as a consequence of his incarceration, and extracted from the authorities the statement of principle set out by Simpson J in R v White (Unreported, NSWCCA 30 March 1999) namely:

“Such hardship can be taken into account only where the circumstances are ‘highly exceptional’ and where it would be, in effect, inhuman to refuse to do so.”

24    Having thus posed for himself the appropriate test, his Honour then concluded that the family matters adverted to in the evidence before him, either separately or in combination, would be insufficient to impact upon the sentence which he had in mind. His Honour added: -

“All of those matters have to be taken into account in the overall assessment of penalty. The question at the end of the day is whether they are circumstances which justify a totally different sentence to the sentence which might ordinarily be imposed in a case such as this. In my view they are not” (my emphasis).

25    It has been forcefully argued by Ms Burgess in this Court, on behalf of the applicant, that it is implicit in what his Honour said in relation to the daughters, that he had, in fact, intended to embrace the considerable disadvantages which would flow to them as a result of his incarceration in the sentencing regime which he proposed. But, she argues when one analyses the sentences actually imposed, they do not reflect that mitigating factor.

26    I am unable, however, to accept that submission. It seems to me, clear enough, that his Honour's ultimate sentence was intended to encompass, in an overall sense, consideration of all those to whom the applicant's imprisonment would be destructive, to use his Honour's own phrase.

27    With regard to these particular subjective circumstances, Ms Burgess has placed before this Court certain affidavit evidence, the brief detail of which should be noted. Firstly, there is the affidavit of Robyn Harris, the sister of the applicant, affirmed on 29 August 2001, and the affidavit of the applicant affirmed on 3 September 2001, and the affidavit of Karen Wrench affirmed on 30 August 2001.

28    Having heard argument in relation to a specific application that these affidavits be received as fresh evidence, I am unable to accept that the suggested paragraphs of the affidavits, to which we have been particularly referred, constitute fresh evidence in the light of the authorities. They merely amount, in my assessment, to a development of the matters that were specifically raised before his Honour.

29    I should particularly have it noted that, in my view, the learned sentencing judge did not say anything justifying the view that he was finding as a fact that the situation, particularly of the daughters, was exceptional within the meaning of the authorities cited in the judgment of Simpson J, to which I have already made reference.

30    Ms Burgess also relied upon the statistics compiled by the Judicial Commission in relation to the offence under s 25 of the Drug (Misuse and Trafficking) Act. It is correct, as Ms Burgess points out, that an effective head sentence of 48 months (taking into account the pre-sentence custody) exceeds any head sentence in relation to that particular offence over the period April 1993 to March 2000. A total of 17 cases form the database in relation to full terms for all offenders and minimum/fixed terms for all offenders.

31    In my view, the problem cannot be resolved as simply as that. It is true that the sentences were imposed to be served concurrently, but precisely how his Honour decided to structure the sentencing regime which he did, we do not know. However, it could not be contemplated, I would respectfully suggest that his Honour intended that the applicant was to be immune from any punishment at all in relation to the offences other than the drug matters.

32    One has to look upon the sentencing regime overall, and to analyse it in the way in which counsel for the applicant has done results in a misleading impression.

33    Finally, reference was made to his Honour's judgment in relation to special circumstances. In that regard, his Honour said:

“The only matter that can be pointed to is a rather ambiguous statement in the pre sentence report that the probation service would have little to offer the prisoner at this time, but if there were to be supervision the court would recommend that he undergo drug and alcohol assessment or treatment and random urine analysis.”

His Honour then continued:

“At the end of the day I don’t believe that there should be very much variation in the statutory ratio of any sentence imposed. Although that statement by the probation service might indicate some circumstances which might justify a longer term supervision I believe that a proper assessment of the material indicates that there is no deep seated alcohol or drug problem the prisoner has apart from a longstanding use of cannabis. When he is released from custody he is going to come out of custody to a very difficult situation, because there can be no doubt that the impact of his imprisonment will be destructive so far as his family is concerned and he will need a period of supervision, but I don’t believe that although there may be some special circumstances in this case they are such as to warrant a significant interference with the ordinary ratio of sentencing.”

34    Counsel for the applicant referred us to the judgment of this Court constituted by Simpson J and Sperling J in R v Hameed (2001) NSWCCA 287. Sperling J referred, at paragraphs 52 and following, to what he contended were two different approaches taken by this Court to the appropriate factors which may be taken into consideration in concluding whether special circumstances exist or not; and if so, the factors which were appropriate for the accurate calculation of the relevant non-parole period and, consequently, of course, the appropriate parole period.

35    This involved, on the one hand, what might be thought to be the earlier and more strict approach where the acid test (if I could use that expression) was whether a longer period than the nominal ratio would attract, was required for the prisoner, or, on the other hand, the more recent school of thought, special circumstances could embrace matters which were of a purely subjective nature unrelated to the length of the proposed non-parole period.

36    That is a matter which will ultimately be resolved by a five judge Bench sitting in this Court at a later stage this year. It needs no specific consideration here because, in my view, it is manifestly apparent from the approach which the Chief Judge took in considering special circumstances in the context of his sentence remarks as a whole, that he did not confine himself to the strict approach. He took, if I may use a colloquial expression, a broad brush approach, and thus the conflict of views does not specifically require to be dealt with in this particular case.

37    In my view, taking into account the attenuated factual matrix which was presented to his Honour, I am quite unable to conclude that there was any appellable error on the part of his Honour, or that the sentencing regime, properly understood, fell outside the range which was available to him to the extent it was manifestly excessive. I would propose, therefore, that the application for leave to appeal be granted and that the appeal be dismissed.

38    SULLY J: I entirely agree. The orders of the Court will be as proposed by Carruthers AJ.

oOo