R v Emanuel - [2004] NSWCCA 267

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Emanuel [2004] NSWCCA 267

FILE NUMBER(S):
60043/04

HEARING DATE(S): 9 June 2004

JUDGMENT DATE: 17/08/2004

PARTIES:
Crown
Darren Ricky Emanuel

JUDGMENT OF: Dowd J Bell J Smart AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/11/0585

LOWER COURT JUDICIAL OFFICER: Puckeridge DCJ

COUNSEL:
Crown: Mr D Arnott
Appellant: Mr P Boulten

SOLICITORS:

CATCHWORDS:
Crown appeal on manifest inadequacy - failure to reflect gravity of the offence

LEGISLATION CITED:
Criminal Appeal Act 1912
Criminal Procedure Act 1986

DECISION:
Appeal allowed; sentence quashed; resentenced to 7 years 3 months; non-parole period 4 years 9 months

JUDGMENT:

- 1 -

IN THE COURT OF
CRIMINAL APPEAL

60043/04
DOWD J
BELL J
SMART AJ
Tuesday, 17 August 2004

R v Darren Ricky EMANUEL

Judgment

DOWD J: This is a Crown appeal against a sentence imposed on the applicant by Puckeridge QC DCJ in the Sydney District Court on 18 December 2003 after a plea of guilty to the following charges: a charge of Supply Large Commercial Quantity of Methylamphetamine, for which a sentence of four years and four months imprisonment with a non-parole period of two years and eight months commencing on 2 July 2002 was imposed; a charge of Goods In Custody of the sum of $400,000 in cash, for which there was imposed six months imprisonment commencing on 2 July 2002, to be served concurrently; and a charge of Possession Of 12 grams of Cannabis, a sentence to the rising of the Court.
The Supply Large Commercial Quantity Of A Prohibited Drug offence carries a maximum penalty of imprisonment for life and/or a fine of $550,000. The Goods in Custody offence carries a maximum penalty of six months and a fine of $110. The Possess Prohibited Drug offence has a maximum penalty of two years and a fine of $2,200.

The two summary offences were brought before the sentencing Court pursuant to the Criminal Procedure Act 1986. Under s168(3) of that Act, it is provided that in sentencing for related offences the Court has the same functions, restrictions and procedures of the Local Court. This is not the same procedure as under a Form 1. These are not what sometimes are called “backup” offences, but they are related offences and are sentenced separately. In these cases, both sentences have been served and are effectively not before the Court. Counsel for the respondent, who appeared as Counsel at the sentencing proceedings, had asked that the total criminality for the three offences be taken into account on the methylamphetamine offence.

The respondent is now a thirty five year old, single, UK national. He arrived in Sydney on 30 April 2002 and left a few weeks afterwards to visit Asia for two weeks. He returned to Sydney on 15 June 2002. On 26 June 2002 he travelled to Perth, returning to Sydney the next day, where he remained until his arrest on 2 July 2002, from which time he has remained permanently in custody.

The evidence which was placed before the Court on the respondent entering a plea of guilty to each count included a large number of intercepted telephone calls, from which is it clear that there was constant liason with principals in the United Kingdom about the status of pending sales and problems relating to police investigations. The respondent collected money from the proceeds of the supply of methylamphetamine in Sydney from the sale of some 8kg of methylamphetamine. He also monitored the handling of 18.25kg of methylamphetamine, being controlled by a person in Perth. The methylamphetamine had a purity of between 41.4 per cent and 50.4 per cent.
An issue arose in the appeal, as to the basis upon which the learned sentencing Judge had sentenced the respondent. There had been some negotiations prior to sentencing as to the charges that were ultimately to be brought against the respondent. There was discussion during the course of the sentencing hearing about the fact that the respondent had nothing to do with the handling of the 18.25kg of methylamphetamine in Perth, but that he simply went over to check as to whether the handling of that quantity was in order, but at no stage did this come to New South Wales.
The learned sentencing Judge, in his remarks on sentence, referred to the 8kg of methylamphetamine sold in New South Wales, and referred both to the Sydney and Perth operations, but did not make it clear as to whether it was in respect of the approximately 25kg or 8kg for which he was sentencing. In this respect, Counsel for the respondent conceded that the supervision of the total operation in New South Wales and Western Australia, limited though the Western Australian aspect was, was nevertheless an indication of the involvement of the respondent, and his involvement in the total criminality in both operations, even if it were only for the 8kg for which he was sentenced. It must be remembered, as submitted by the Crown, that the lesser amount of 8kg is eight times the threshold amount for an offence which carries life imprisonment.
The respondent had no criminal record, and had worked in an office furniture company from school until about the age of thirty one when his gambling addiction overtook his other work and he became a full time professional gambler. He had lost all his assets and had run up a debt of around £UK 70,000. The respondent, being a person of good character, had a number of glowing references tendered, and there were two witnesses had come to Sydney from the UK to give evidence on his behalf, attesting to his good works and to his congenial and giving nature. The evidence was that there was a job waiting for him on his return to England. Notwithstanding this evidence, the learned sentencing Judge said that he found it difficult to consider that the respondent would obtain employment in the future, which is contrary to the uncontested evidence before the Court.
In imposing sentence, his Honour took as a starting point for the Supply offence, a sentence of five and a half years, which he discounted by twenty per cent. His Honour then found special circumstances for lowering the non-parole period below three quarters of the head sentence, giving reasons that the respondent had endeavoured to improve his education, had sought help for gambling, and that there was a fairly good chance that the respondent would rehabilitate himself.
His Honour found that the respondent had lost the benefit of his full-time steady employment, notwithstanding the fact that the evidence was that the respondent had taken up gambling and had been in fact for some years a full-time professional gambler. This is an error in his Honour’s finding that he has lost the benefit of full-time steady employment (namely at the office furniture company).
The Crown appeal is based on the submission that even without patent error being identified, the sentence was so out of proportion to the seriousness of the offences as to establish error. The Crown submitted, however, that there were a number of discreet errors which may account for the lack of proportion of the sentence to the seriousness of the offence. It was submitted that the learned sentencing Judge had failed to give sufficient attention to general and personal deterrence, and by virtue of the sentence imposed had given undue weight to subjective circumstances and his lack of prior convictions.

The Crown submission was that his Honour failed to emphasize what this Court in R v Schofield [2003] NSWCCA 3 at 47 determined was “the most important of the principle considerations of sentencing in this area”, that is, general deterrence.
The Crown further submitted that Puckeridge QC DCJ failed to apply the principles as set out by Wood CJ at CL in R v MacDonnell [2002] NSWCCA 34 in relation to the charge of Supply Large Commercial Quantity of methylamphetamine. The Crown further submitted that relevant though they may be, a lack of criminal record, prior good character and established history of employment are of reduced significance in drug matters.
It was also submitted that the second discreet error by his Honour in his remarks on sentence is that his Honour appeared to rely on the evidence of a psychologist that it was not until the respondent arrived in Sydney that he became aware that he was dealing with drug money. His Honour held that if that were the case, the respondent had notwithstanding continued in the drug trafficking operation. The respondent did not give evidence in the proceedings.
It is impossible, when reading the complicated code language used in the large number of intercepted telephone calls, to believe that the respondent came to this enterprise completely unaware of the extensive and very sophisticated operation that he was involved in. His Honour actually found, and indeed correctly so, that there was no evidence that the respondent had been involved prior to this enterprise, and took into account the character evidence. This is not the sort of offence, however, where persons giving evidence as to character normally would necessarily know of such a drug association. The evidence of the protracted conversations recorded from the phone is totally inconsistent with the asserted innocence in relation to this offence.
The Crown who appeared on sentence, it was submitted, made it clear that no weight should be given to the respondent’s assertion. Counsel fot the respondent had told that Court that he was a “go-between” and clearly he was trusted. It was submitted that it was absurd to suggest that the respondent overnight shouldered the major responsibility with which he was entrusted, that is to supervise the operation of an exercise involving hundreds of thousands of dollars. It was clear, as the learned sentencing Judge found, that the respondent was “a middle-manager”, or “field operator who ensured that the principals in the United Kingdom were not short changed on any drug supply”.
It had been conceded at the sentencing hearing by his Counsel that the respondent “played a major role in the drug distribution operation”. He should not then be sentenced for any previous drug activity, but on the evidence, and in particular on the evidence of the telephone intercepts, he should be precluded from asserting his actions in this offence as being unpremeditated. The Crown submitted before this Court that there was no basis for treating the respondent with the leniency that a first offender is accorded. In my view, that submission should be accepted in the light of the overall evidence.
The Crown submitted that objective considerations to be taken into account include the maximum penalty for the principle offence, and that the methylamphetamine involved 25kg, a large commercial quantity, placing this on the upper end of seriousness. None of these matters were referred to by the learned sentencing Judge, and it is clear, as conceded by his Counsel, that the respondent played a major role.
The Crown further submitted that it was not clear in the judgment of Puckeridge QC DCJ that on sentencing, the real significance of the $400,000 was the undervaluing by his Honour of the respondent’s role, and indeed, the Crown further pointed out, quite correctly, that telephone taps showed a continuing involvement of the respondent, notwithstanding his knowledge of police interest in his activities. He made clear attempts in the recorded telephone conversations to prevent detection by using code language.
The third discreet error submitted by the Crown was that his Honour failed to give weight to the objective gravity of the crimes and treated the respondent as a first offender with the attendant leniency that that status normally attracts.

On the primary submission by the Crown that the sentence demonstrated manifest inadequacy, it was put that his Honour did not refer to the maximum penalty for the principal offence being life imprisonment, and that the methylamphetamine involved was twenty five times the large commercial quantity, placing this offence at the upper end of seriousness for such an offence. It was put by the Crown that it is not absolutely possibly to know whether his Honour sentenced the respondent on the basis of him supplying 8kg or 25kg of methylamphetamine. The Crown submitted that the relevance of the quantity of the drug is rather the fact that his Honour the sentencing Judge undervalued the role the respondent played in this major drug syndicate and his participation in the events.
The Crown, in written and oral submissions, then referred to a series of decisions in relation to convictions or sentencing for the offence of Supply Large Commercial Quantity of amphetamine, to which decisions I have had regard, in relation to the question of manifest inadequacy. These decisions included: R v Clarke (2001) NSWCCA 223, R v MacDonnell (supra), R v Parker (2002) 132 A Crim R 413 and R v Shankley (2003) NSWCCA 253.
The case of R v Clarke (supra) involved the quantity of 1.8kg of amphetamine, of a purity less than four per cent, with a value of between $48,000 and $180,000. At the time of the offence, Clarke was on parole for armed robbery. Clarke was re-sentenced to seven years with a non-parole period of three years and six months, but he was a courier and it resulted from being unemployed.
R v MacDonnell (supra) was a Crown appeal involving some 9kg of average purity methylamphetamine, where the respondent was engaged in preparing and packaging the drug for sale to customers. The respondent in that case was more significant than a street dealer or a lower level distributor, but less significant than those who manufactured the importation of the drugs. MacDonnell was re-sentenced to imprisonment for 8 years with a non-parole period of five years.
In R v Parker (supra), an importer and distributor called Kalache was originally sentenced to a limited period and had this sentence significantly increased on appeal. In R v Shankley (supra), a case which involved approximately 1kg of methylamphetamine, the respondent had a sentenced increased to eight years with a non-parole period of six years.
In none of these cases was the role of the person sentenced as significant as that of the respondent in these proceedings. The Crown also relied on the sentences of “co-offenders”, although neither was in fact a co-offender with the respondent, but were persons involved in the same general enterprise. The first of these that I particularly refer to was that of Paul Gunner, whose sentencing was tendered before the Court, and who received a head sentence of nine years with a non-parole period of five and a half years.
The other particular offence is that of Mark Wright, who was sentenced in the West Australian District Court in August 2002 following a plea to Possessing a Prohibited Import, namely amphetamine (being not less than the trafficable quantity, for which the penalty was some twenty-five years). Wright’s role was limited to a guarding role, and he gave assistance to the authorities. His sentence was increased to nine years with a non-parole period of four and a half years. .
On behalf of the respondent, it was submitted that his Honour the learned sentencing Judge had accurately recounted the facts as agreed between the parties. Counsel for the respondent cited the remarks of his Honour as to the major role of the respondent in the offence, and submitted that his Honour accurately described that role. I agree that his Honour’s characterisation accurately describes the respondent’s position as a ‘middle-manager’ in a very large operation. His Honour’s remarks as such correctly showed disapproval. The issue in this appeal, however, is the lack of disapproval reflected in the effective sentence, rather than the characterisation of the role of the respondent and his Honour’s disapproving remarks as such.
It was further submitted by the respondent that the extent of criminality was the same whether the respondent had found out before or after he arrived in Australia that he was dealing with drug money. It was further submitted that his Honour had accepted the evidence of the two witnesses from the UK that they had no previous reason to believe the respondent was involved in drug trafficking in the UK. This, I should note, is evidence of character and reputation, but is not evidence that he was not involved, but simply that the witnesses had no reason to believe that he was. It is clear in any event that there is no evidence of any prior involvement. There was, however, evidence from the intercepted telephone calls that the respondent was invested with a degree of trust by those setting up the enterprise to supervise the operation.
It was further submitted on behalf of the respondent that his Honour should not have increased the sentence for earlier drug activity. His Honour clearly did not do that. The respondent further submitted, citing a number of cases from the Judicial Commission database, that for this offence the head sentence could be as low as two and a half years and as high as ten years, with the majority of sentences being around the six or seven year mark.

On behalf of the respondent, it was submitted that the respondent’s role in relation to the Perth drugs was extremely limited, and that no parallel with a co-participant can be drawn from that offence.
The respondent submitted that Crown appeals should be allowed rarely; that no particular error has been demonstrated; that his Honour’s sentence was clearly lenient and within range; and that the sentence was not demonstrably outside the range. It was further submitted that if the Court concludes that the sentence was inadequate, the Court should exercise its discretion not to increase the sentence as a result of the delay in initiation of the appeal, which I referred to in para 2 above.
Notwithstanding that the Crown appeal should be exercised rarely (see Griffiths v R (1997) 137 CLR 293), and that in rare circumstances only should Crown appeals be upheld when no particular error can be identified (see R v Baker (2000) NSWCCA 85), this is a case where notwithstanding the correct characterisation of the respondent as to his role, his Honour did not, in fixing sentence, take into account the enormity of the quantity of drugs or the seriousness of the role of the respondent, or for that matter take into account that this is the highest maximum penalty to which the Courts can have regard.
The notice of appeal was served on 13 February 2004, some seven weeks later, but a letter dated 6 January 2004 had been sent, notifying the respondent of the intention to lodge the appeal. The Crown made during the course of the hearing an application to extend the period of lodging of the appeal. I consider, in light of the letter sent, that the respondents had been notified adequately of the appeal. Therefore, I consider notwithstanding the delay, that the Court should nevertheless allow the appeal.

Taking into account the large number of cases cited by the Crown, referred to above, it appears to me that in all circumstances, his Honour was in error in the manifest inadequacy of the starting point for the offence, considering the significant role of the respondent, and that the sentence should be set aside, and a new sentence imposed.
This is not a matter of whether the Court should decline to resentence. The maximum penalty and the facts of the case mean that the sentence is substantially inadequate and thus the Court should proceed to resentence.

In para 35 of R v MacDonnell (supra), Wood CJ at CL held:
The Courts have long stressed the need, in cases such as the present, for sentencing Judges to impose condign sentences which appropriately reflect the elements of retribution, punishment and deterrence, both personal and general: see Regina v Quang Vinh Dang, NSWCCA, 7 November 1997 and Regina v Laurentio and Becheru (1992) 63 A Crim R 402.

In R v Leroy (1984) 13 A Crim R 469 at 474, Street CJ held:
This Court and other criminal courts have said on many occasions that, in the drug traffic, in particular, the circumstances that the accused person has a clear earlier record will have less significance than in other fields of crime. Very frequently, those selected to play some part in the chain of drug trafficking, as the appellant plainly enough was, are selected because their records, their past and their lifestyles are not such as to attract suspicion. It is this in particular which has led the courts to take, in the case of drug trafficking, a view which does not involve the same degree of leniency being extended to first offenders.
I have considered the aggravating factors that the offence was committed without regard for public safety, and the offence was part of a planned or organized criminal activity. I have also taken into consideration the following factors: that the respondent does not have any record for previous convictions; that the respondent was a person of good character; that the respondent is unlikely to re-offend; that the respondent has good prospects of rehabilitation; and that a plea of guilty was entered.

The Court must take into account, in imposing sentence, the additional material provided on sentence by the respondent. The Court must be conscious that, with the restraint of a Crown appeal, the sentence which is proposed is not as severe as that which the Court would have imposed at first instance, but that it should be at the lower level of the range of a proper sentence.
I have read the judgment of Smart AJ in draft form. I agree that the starting point for sentencing in this case should be nine years, and that it is appropriate to reduce that to seven years and three months for the early plea of guilty.

I agree with the learned sentencing Judge that the prospects of rehabilitation should entitle the respondent to reduction of the non-parole period from seventy five per cent of the head sentence, particularly taking into account the work that the respondent has since done towards rehabilitation, and also I consider the time that he spends in Australia away from his family will be harder than most and will require a longer period for supervision during the parole period.
I also take into account the disturbance of the respondent in being moved from Junee Correctional Centre and dislocating his prison work regime, in finding special circumstances for altering the relationship between the head sentence and non-parole period.
I agree with the proposal of Smart AJ that the non-parole period should be four years and nine months.

I agree with the orders proposed by Smart AJ.
BELL J: I agree with the orders proposed by Smart AJ for the reasons that his Honour gives.
SMART AJ: Pursuant to s 5D of the Criminal Appeal Act 1912 the Director of Public Prosecutions appeals against the asserted inadequacy of the following sentences imposed in the District Court on 18 December 2003:
(a) Supply large commercial quantity  Imprisonment 4 years
     of prohibited drug (methylamphetamine)   months from 2 July 2003
  NPP 2 years 8 months
(b) Goods in custody ($400,000)  Imprisonment 6 months
from 2 July 2002
(c) Possess prohibited drug (cannabis -  Rising of the Court
     12 grams)
The Crown relied primarily on the ground that the sentences, especially that for supplying a large commercial quantity of methylamphetamine was manifestly inadequate, but it also relied on several asserted errors of fact and some errors of principle. The errors of principle alleged included:

"No or insufficient element of general and personal deterrence and undue weight given to subjective circumstances and lack of prior convictions".
"Treating the respondent as a first offender with the attendant leniency that that status usually attracts".
"Failed to have regard to the objective gravity of the crimes".
These are embraced within the general ground that the sentences are manifestly inadequate.

The asserted errors of fact are debatable and at least to some extent, depend upon what the judge was intending to convey when he referred to parts of the evidence. On the Crown's primary ground of manifest inadequacy the Crown has a case of overwhelming strength which the offender cannot successfully resist. As the Crown correctly submitted the sentence for the offence of supplying a large commercial quantity of methylamphetamine was so far out of proportion to that offence as to establish error for that reason alone.
The Facts

For some years the offender gambled quite heavily and was forced to borrow money to pay his gambling debts. He became indebted to the extent of about seventy thousand pounds sterling. He jumped at the chance to get out of debt. He linked up with a group in the United Kingdom who were conducting a large scale drug trafficking operation from the United Kingdom to Australia.

The offender arrived in Australia on 30 April 2002, travelled to Thailand on 30 May 2002 and returned to Sydney on 15 June 2002. Whilst in Sydney the offender assisted persons in the United Kingdom who had drugs in Sydney available for supply. The offender collected money ("invoices"), the proceeds of sale of approximately eight kilograms of methylamphetamine. The offender liaised with his United Kingdom connections about the status of pending sales and about problems relating to police investigations. He made many telephone calls to his superiors in the United Kingdom reporting on the position in New South Wales. He also received calls from his superiors in the United Kingdom.
The offender's superiors arranged for other operatives to pass moneys they had collected onto the offender.
On 2 July 2002 the offender collected a blue bag at Bondi and took it back to his hotel. It contained $398,700 in cash. Also found in the offender's hotel room was $10,000 in cash in a black bag. The offender had $681.05 in cash on him. During the search a small amount of cannabis was located. The offender was arrested very shortly after he left his hotel room.
As part of his duties the offender travelled to Perth on 26 June 2002. Whilst in Perth he met Mr Wright, who was minding some drugs for some associates. He took the offender to the room where he (Wright) was keeping the drugs. Whilst there the offender inspected the drugs. There were numerous telephone discussions between the offender and his superiors in the United Kingdom regarding the drugs in Perth. On 2 July 2002 Wright was arrested with 18 kilograms of amphetamine. A further $23,000 in cash was located.
The offender's role was a major one. He was aptly described as the eyes and ears of London. He could be correctly classified as a branch manager. It is difficult to say exactly where he fell in the drug hierarchy but the offender's role was a senior one. He was responsible for collecting the money from a number of distributors and causing it to be remitted to his superiors and generally supervising the distribution and sale of the drugs in Sydney and elsewhere in Australia. The taped conversations establish that the offender's role was far reaching and that he was knowledgeable and skilful. He had a good rapport with his supervisors and appears to have been trusted by them. The offender could not fail to have realised that he was involved in a large scale drug trafficking operation.
The offender was born in England on 29 August 1968. He left school at age 15. For many years he was a good and responsible worker remaining with the one company, an office furniture company, from about 1985 to 1999, rising to the position of installation manager. Although he had been interested in gambling in previous years, in about 1999 he became heavily involved in gambling activities and was betting full time. It appeared that he was forced to sell his home in 2002 to help repay a significant gambling debt.
The offender had no previous convictions and there was evidence of "otherwise good character", that is, apart from his gambling and involvement with drugs in Australia. Two witnesses gave evidence of the offender's good character. There were also written testimonials which strongly supported him.
The judge accepted that the plea of guilty was entered at a relatively early date and allowed a discount of 20 per cent. The judge took as his starting point a sentence of 5 years 6 months. After discounting by 20 per cent and rounding off he arrived at a sentence of 4 years 4 months.
The judge took into account that since being arrested and confined the offender had recognised his gambling problem and sought help in relation to it and had endeavoured to advance his education. The judge correctly recognised that with the subject offence normally it would be difficult for the offender to obtain employment, that is, on the open market. However, the judge also noted that Mr Cook, a family friend who had travelled from England to give evidence, would provide a full time job for the offender on his release from prison and return to England.
Both Mr Cook and Mr Leonard, a relative from England who also gave evidence, planned to ensure that the offender did not return to gambling. The judge, who found special circumstances, considered that there was more than a good chance that, as a result of the offers of support and the support of his family and friends, the offender would rehabilitate himself and never involve himself again in any drug trafficking operation. The special circumstances led the judge to fix a non-parole period of 2 years 8 months.
The judge thought highly of the people supporting the offender and was in the best position to assess their calibre and value and formed the view he expressed as to rehabilitation.
Making every allowance for the subjective features of the offender, the sentence imposed falls far short of reflecting the high objective gravity of the offence. The facts revealed criminality of a high order. On any view a large quantity of a prohibited drug and large sums of money were involved. Both general and specific deterrence are important. The offence carried a maximum penalty which includes life imprisonment.
Given the manifest inadequacy of the sentence for the supply offence, this Court has to re-sentence for that offence but bearing in mind the restraint which is exercised in relation to Crown appeals. The lowest starting point on a re-sentencing basis is one of 9 years. Applying a discount of 20 per cent for the early plea of guilty leads to a sentence of 7 years 3 months (allowing for rounding off). The rehabilitation of the offender is likely to take some time and require much support from his family and friends. On his release from prison he will have to learn how to resist, on a daily basis, the lure of gambling. I would set a non-parole period of 4 years 9 months, thus allowing a period of 2 years 6 months on parole. These are still lenient sentences and reflect the restraint of the Court when re-sentencing. For the offender the increases are significant. There is no basis for the Court to dismiss the Crown appeal on the supply offence in the exercise of its discretion.
There is no basis for interfering with the sentence for goods in custody and possess prohibited drug (12 grams of cannabis).
I propose the following orders:

Dismiss the Crown appeals as to the sentence of 6 months imprisonment for goods in custody and that of the rising of the Court for possession of a prohibited drug (12 grams of cannabis).
Allow the Crown appeal against the sentence of 4 years 4 months with a non-parole period of 2 years 8 months for the offence of supply large commercial quantity of prohibited drug. Sentence quashed. In lieu of the sentence imposed the offender Darren Ricky Emanuel is sentenced to imprisonment for 7 years 3 months commencing on 2 July 2002 with a non-parole period of 4 years 9 months expiring on 1 April 2007 on which day the offender is eligible for release on parole.

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LAST UPDATED: 17/08/2004