R v Gordon

[2002] NSWCCA 476

CITATION:	Regina v Robert Brian Gordon [2002] NSWCCA 476
FILE NUMBER(S):	CCA 60909/01
HEARING DATE(S):	11/12/02
JUDGMENT DATE:	11 December 2002
PARTIES :	Regina Robert Brian Gordon
JUDGMENT OF:	Howie J at 31; Buddin J at 1

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	01/21/3136
LOWER COURT JUDICIAL OFFICER :	Coleman DCJ

COUNSEL :	L Lamprati (Crown) Applicant in person
SOLICITORS:	S E O'Connor (Crown)
CATCHWORDS:	Application for leave to appeal against severity of sentences - plea of guilty to s 25A(1) of the Drug Misuse and Trafficking Act together with two other offences of deemed supply - other offences involving sale and possession of prohibited weapons - matters on Form 1 - appeal dismissed.
LEGISLATION CITED:	Criminal Appeal Act 1912 Drug Misuse and Trafficking Act 1985 Firearms Act 1996
CASES CITED:	Pearce v The Queen (1998) 194 CLR 510 R v Thomson & Houlton (2000) 49 NSWLR 383
DECISION:	Leave to appeal granted. Appeal dismissed.

60909//01

HOWIE J
BUDDIN J

WEDNESDAY 11 DECEMBER 2002

REGINA v ROBERT BRIAN GORDON

JUDGMENT

1 BUDDIN J: The applicant, who appears in person, seeks leave to appeal against the severity of sentences imposed upon him in the District Court consequent upon his pleas of guilty to seven counts in an indictment which originally contained nineteen counts. The applicant was arrested on 19 December 2000 and has been in continuous custody since that date.

2 The first charge (the first count in the indictment), was that between 5 December 2000 and 19 December 2000, on three or more separate occasions during a period of thirty consecutive days the applicant supplied heroin, contrary to s 25A(1) of the Drug Misuse and Trafficking Act 1985. The maximum penalty for that offence is a fine equivalent to 3500 penalty units or twenty years imprisonment or both.

3 The second and third charges (being the sixth and seventh counts in the indictment) alleged offences that on separate occasions in December 2000 (the latter being the date of his arrest) the applicant sold prohibited semi-automatic pistols which were not registered. Each attracted, pursuant to s 36 of the Firearms Act 1996, a maximum penalty of ten years’ imprisonment.

4 The fourth charge (the ninth count in the indictment) alleged the possession by the applicant, on the day of his arrest, of a rifle without being authorised to do so. It attracted a maximum penalty, pursuant to s 7 of the Firearms Act, of five years’ imprisonment.

5 The fifth charge (the fifteenth count in the indictment) alleged an offence, on the day of his arrest, of possession by the applicant of a prohibited firearm, namely a revolver, without the appropriate authorisation. It attracted a maximum penalty, pursuant to s 7 of the Firearms Act, of fourteen years’ imprisonment.

6 The sixth charge (the eighteenth count in the indictment) was that on the day of his arrest he supplied a prohibited drug, namely cocaine. The traffickable quantity is three grams and the indictable quantity is five grams and the quantity involved was 8.8. grams. This was a deemed supply pursuant to s 25(1) of the Drug Misuse and Trafficking Act 1985 and the maximum penalty, pursuant to s32 of that Act, is a fine of 2000 penalty units or imprisonment for fifteen years or both.

7 The seventh charge (the nineteenth count in the indictment) was that on the day of his arrest the applicant supplied a prohibited drug, namely methylamphetamine. The traffickable quantity of methylamphetamine is three grams and the indictable quantity is five grams and the quantity involved was 14.45 grams. This was also a deemed supply which attracted the same maximum penalty as the previous charge.

8 The applicant asked that two further matters on a Form 1 be taken into account by the sentencing judge. The first related to the sale of another semi automatic pistol and the second was a deemed supply of 12.7 grams of heroin (it also having been found in his possession when he was arrested).

9 His Honour imposed the following sentences:

Counts 6 and 7 Imprisonment for a fixed term of 18 months in respect of each matter to commence on 19 December 2000 and to expire on 18 June 2002.

Count 9 Imprisonment for a fixed term of 12 months to commence on 19 December 2000 and to expire on 18 December 2001.

Count 15 Imprisonment for a fixed term of 2 years to commence on 19 December 2000 and to expire on 18 December 2002.

Count 1 (and taking into account the matters on the Form 1 document) Imprisonment for six years to commence on 19 December 2001 and to expire on 18 December 2007 with an associated non-parole period of 4 years which will expire on 18 December 2005

Counts 18 and 19 Imprisonment for a fixed term of 18 months to commence on 19 December 2001 and to expire on 18 June 2003.

10 His Honour, having observed that no issue had been taken in relation to the facts relied upon by the Crown, set out the relevant circumstances which gave rise to the various offences. His Honour said that:

On 27 November 2000 an undercover police operative with the assumed name of “Mal” established contact with the prisoner for the purpose of being supplied with prohibited drugs. Over the following week a number of mobile telephone calls occurred between “Mal” and the prisoner, with a view to organising a meeting and it was eventually arranged the two would meet at the Bankstown Trotting Club on 5 December 2000.
There are four separate instances of supply of heroin relied on by the Crown to support the first count in the indictment…
The first separate occasion of supply occurred at about 2.15 pm on 2 December 2000. “Mal” and the prisoner met as arranged in the TAB area of the Bankstown Trotting Club and during the meeting the prisoner passed 0.18 grams of heroin in a small blue balloon to “Mal” to enable him to verify the quality and purity of the heroin for the purpose of establishing an ongoing supply. I am satisfied beyond reasonable doubt that was the purpose. The package was later analysed and contained 0.18 grams of heroin with a purity of 69.5 percent. The meeting was captured on an authorised listening device being worn by “Mal”.
The second separate occasion of supply occurred on 11 December 2000 and by prior arrangement made over their mobile phones “Mal” and the prisoner met again on Burwood Road at Belmore. In the front seat of “Mal’s” vehicle, the prisoner handed over a package in exchange for $1200 in $100 notes. That meeting was recorded on an authorised listening device. The package was later analysed and found to contain 6.8 grams of heroin with a purity of forty-one percent.
The third separate occasion of supply occurred on 14 December 2000 when “Mal” met the offender by arrangement at Brush Park at Carss Park and during the meeting the prisoner supplied “Mal” with a small package and a Browning nine millimetre semiautomatic pistol containing a magazine and two rounds wrapped in a plastic bag. “Mal” paid over $1200 in cash for the small package and $2300 in cash for the pistol. The meeting was recorded on an authorised listening device. The substance in the small package was later analysed and found to contain 6.8 grams of heroin with a purity of forty-five percent. The sale of that pistol constituted the sixth count in the indictment.
The fourth separate occasion of supply occurred at about 4.40 pm on 19 December 2000, when the prisoner met “Mal” at the Bankstown Trotting Club by arrangement. After meeting inside the club, the two men walked to the carpark and entered “Mal’s” vehicle. The prisoner produced two loaded Browning 0.32 calibre semiautomatic pistols and a box of Winchester ammunition. The prisoner also produced a sealed plastic bag wrapped with sticky tape. Each of those items were produced in a white plastic bag and replaced in the bag and the prisoner handed over the bag in exchange for $8850 in cash. The sale of the first loaded Browning pistol was the basis of the seventh count in the indictment. The sale of the second was offence 1 listed in the Form 1.
The second package was later analysed and found to contain 28.0 grams of heroin and that supply transaction was the fourth separate occasion relied upon by the Crown for the purpose of establishing the offence contrary to s 25A of the Drug Misuse and Trafficking Act 1985.
The prisoner was arrested in the carpark and his vehicle was searched. A Sterling Brown 0.22 calibre rifle was found in the boot. That possession of that weapon was the basis of the ninth count in the indictment.
At 7.20 pm on 19 December 2000 a search warrant was executed at the prisoner’s premises in Lakemba. A key found on him at the time of his arrest was used to open a locked study in the premises in which police found approximately 1000 rounds of ammunition of various calibres together with a 0.38 calibre Smith and Western (sic) revolver, a pistol holster, magazines and a rifle scope. The possession of the Smith and Western (sic) revolver was the basis of the fifteenth count in the indictment.
In the desk drawer in the study police found a clear plastic bag containing white powder wrapped in ducting tape and that substance was later analysed and found to contain 12.7 grams of heroin. The finding of this substance is the basis of the second offence listed on the Form 1.
On a metal shelf in the study police found a glad plastic sandwich bag containing a white powder secured with a plastic band. The substance was later analysed and found to be cocaine weighing 8.8 grams with a purity of 66.5 percent, and was the basis of the eighteenth count in the indictment.
During the police search of the premises, the prisoner opened a safe and a piece of foil containing white powder which was later analysed was [sic] found to contain a mixture of methylamphetamine and heroin with the former being the major component, with the total weight of the powder at 14.5 grams. This formed the basis of the nineteenth count in the indictment.
The study also contained two radio scanners, a set of electronic scales, heat seal equipment, numerous small balloons and plastic bags, and handwritten notes and records containing names and numbers. $2780 in cash was found in the study and the safe contained a further $360 in cash. A storage shed on the premises was opened by the prisoner and 500 rounds of assorted ammunition, including pistol cartridges were found inside the shed. The paraphernalia associated with the sale of the drugs and the weapon [sic] and other associated material, including the ammunition and the scope, was all photographed.

11 The applicant gave evidence on oath. Whilst acknowledging that he was a drug dealer at the time of the offences, the applicant sought to minimise his role by suggesting that he was a mere conduit or courier for a man named “Michael.” The sentencing judge found him to be an utterly unconvincing witness and rejected this aspect of his evidence. He found to the requisite standard that although “Michael” was his supplier, the applicant was nonetheless “dealing on his own account.” Nor did his Honour accept the applicant’s attempt to justify the sale of the guns. Similarly he did not accept that the applicant was unaware of the seriousness of his activities in selling the guns.

12 His Honour observed that the quantities involved in the various drug offences were not small quantities. He found that they were well in excess of what would be expected of a street dealer. His Honour also found that the paraphernalia located at the applicant’s house was inconsistent with the activities of a street dealer. His Honour was not however able to determine exactly what position the applicant occupied in the hierarchy of offenders.

13 His Honour was however prepared to find that:

[t]he actions of the police operative induced the prisoner to deal at a level which was higher than that at which he had already been dealing, and I have taken that into account in mitigation.

14 The applicant is now aged 45. The sentencing judge allowed a discount of 20% on account of the applicant having entered pleas of guilty. There was evidence before the sentencing judge as to the state of the applicant’s health. There was also evidence from the applicant as to the amount of medication which he was required to take in order to control the pain which he suffered as a result of chronic back problems. Those problems apparently dated back to his hospitalisation in 1985 for an anterior cervical fusion operation. The sentencing judge was not however persuaded that the level of discomfort which the applicant experienced was as dramatic as he portrayed. It seems that the applicant was quite able, for example, to conduct a business which involved doing renovation and repair work to houses.

15 The applicant did not have the benefit of a clear criminal record. He first appeared before the courts when he was aged 15. Although he made fairly regular Court appearances for the next few years they were in respect of relatively minor dishonesty and traffic matters. However in 1980 he was sentenced to nine years’ imprisonment for rape. In 1985 he was returned to custody for having breached parole in respect of that offence. In that same year he was sentenced to 11 years’ imprisonment with a non-parole period of 6 years for 10 counts of sexual intercourse without consent and one count of maliciously inflicting actual bodily harm with intent to have sexual intercourse. Notwithstanding the applicant’s decidedly unattractive antecedents, his Honour concluded that the fact that he had undertaken various courses in custody “suggest that there is a prospect, although it is in the very early stages, of some positive steps towards rehabilitation.” There was also evidence, which his Honour appeared to accept, that the applicant and his girlfriend were heroin users at the time of the offences and that the applicant used heroin in part to alleviate his back pain.

16 As I have said, the applicant appeared in person. In accordance with normal practice he was required to, and did in fact, file written submissions. They were not in a form that would normally be expected were he to be represented. Making due allowance for that fact it nevertheless appears to me that the complaints which he makes can be sufficiently identified for present purposes.

Findings of fact

17 The applicant contends that “Judge Coleman had a statement of facts that had not been agreed upon.” The contention is not borne out by the transcript of the proceedings of 14 November 2001 which records that the statement of facts was admitted without objection by the applicant’s then legal representative. The applicant then seeks to challenge various aspects of his Honour’s findings of facts, including his role in the offence and the extent of his addiction. These submissions are not sustainable in light of the evidentiary material which was placed before the Court and upon which his Honour relied. For example, the conversations between the applicant and the “undercover operative”, which were captured by listening device, plainly reveal the nature and extent of the applicant’s role in the various offences. The applicant also sought to challenge some of his Honour’s findings by relying upon material that was not before the sentencing judge. That material is not of a kind that would satisfy the requirements for its reception by this Court.

The plea of guilty

18 In respect of this matter the applicant states in his written submissions that:

Judge Coleman did indicate that he would apply a 25% discount and went on to say to both parties that this was the intention and that if anyone did not agree they now had time to redress the situation as the matter would be remanded for a week.
On or about 14th September.
I note that only 20% reduction was applied.

19 The transcript made available to the Court does not support the contention that there were any proceedings at all in relation to this matter on 14 September 2001. In fact an indictment dated 20 September 2001 was first presented before Judge Sides QC on 21 September 2001 at which stage the applicant entered pleas to the seven counts to which I have earlier made reference. The matter came before the sentencing judge, Judge Coleman, for the first time on 14 November 2001. Nowhere in the transcript of proceedings before his Honour is there any reference to a discount of 25% on account of the pleas of guilty. As to this aspect of the matter his Honour said:

There were negotiations between the legal advisers for the prisoner and the Crown concerning the indictment and the matter was not finally resolved until 22 November 2001. In the circumstances the prisoner is entitled to a discount for an early plea of guilty on the utilitarian basis. Resources which would have been involved if these matters went to trial were considerable.
In accordance with the guideline judgment in R v Thomson I have taken into account that he pleaded guilty at the first available opportunity and determined that a discount of twenty percent on the head sentence should be applied. In reaching that figure, I have disregarded the strength of the Crown case.

20 In R v Thomson & Houlton (2000) 49 NSWLR 383, Spigelman CJ said that the appropriate range for the discount for a plea of guilty is from 10% - 25%. One of the major considerations for determining what weight should be attached to a plea is the time at which it was entered or indicated. The Chief Justice went on to say that the determination of where within the range the discount should fall in a particular case is a matter for the discretion of the sentencing judge.

21 I have no difficulty in arriving at the conclusion that the sentencing judge’s discretion did not miscarry in the present case, particularly when the size of the discount and the time at which the pleas were entered, are taken into consideration. It may be noted that the applicant denied any involvement in these offences when the allegations were first put to him.

Service of the sentence in maximum security

22 The applicant complains about having been placed in a maximum security facility. It is apparent that no material concerning the applicant’s classification was led during the course of the sentence proceedings. Indeed the applicant specifically submits that “I am sure that when Judge Coleman imposed the custodial sentence he did not require the sentence to be completed [in] maximum security.”

23 Although no proper basis has been established in the present case for the reception in this Court of additional material relating to this issue, it is in any event in the ordinary course of events for the executive government rather than for this Court to determine the classification of an offender. No basis warranting departure from that general principle has been established.

Partial accumulation of sentence

24 His Honour proceeded to sentence in a manner that revealed that he had correctly applied the principles in Pearce v The Queen (1998) 194 CLR 510. His Honour fixed an appropriate sentence for each offence and then considered the question of how to structure the individual sentences. It is apparent that his Honour also had regard to, and gave effect, to the principle of totality. His Honour concluded that:

Each of the sentences for the drug matters are to be served concurrently and each is to be partly cumulative upon the sentences imposed for the firearms offences, and are to commence twelve months after the commencement of the sentences for the firearms sentences.

25 The applicant contends that:

The entire indictment is ONE collective operation not many incidents the police pushed / Encouraged threatened to ensure their objective was reached / Therefore concurrent sentences could be argued for (p.2).

…I believe I have been dealt with harshly given the fact the [sic[ as one crime in totality I could expect a sentenced that ran concurrent (p.3).

26 By no stretch of the imagination is it correct to characterise the various offences of which the applicant was convicted as being part of a single discrete episode of criminality. The decision as to whether or not to accumulate a sentence or sentences in whole or in part calls for the exercise of a discretion. It was clearly open for his Honour to arrive at the conclusion which he did. Indeed it is difficult to conceive of how his Honour could have arrived at any other conclusion. The extent of the accumulation was, in any event, of modest proportions. Again it has not been established that the relevant discretion has miscarried.

The applicant’s health

27 As I have already indicated there was evidence before his Honour in relation to the applicant’s medical condition and his need for ongoing medical treatment. His Honour referred to the effect of that evidence in his Remarks on Sentence although, as I have earlier observed, his Honour was of the view that the applicant had, in some respects, overstated its significance. Those findings were well-open to his Honour and the challenge to that aspect of the sentencing process must fail.

28 Even if contrary to the views which I have thus far expressed, the applicant has established error then this would clearly, in the light of the extensive criminality displayed by the applicant, be a case in which the Court would nevertheless come to the conclusion that no lesser sentence would be warranted in law. See s 6(3) of the Criminal Appeal Act 1912.

29 There is other material which the applicant has provided to the Court which concerns his progress in custody since the date of sentence. It is of a character that could only be received in the event that this Court was of the opinion that error has been established and that it should proceed to resentence. I am not of the view that the Court should come to that conclusion.

30 I would propose the following orders:

1 Leave to appeal granted.

2 Appeal dismissed.

31 HOWIE J: I agree. The orders of the Court are therefore as proposed by Buddin J.

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