R. v Heard

[2000] NSWCCA 107

CITATION:	R. v. HEARD [2000] NSWCCA 107
FILE NUMBER(S):	CCA 60190/98
HEARING DATE(S):	13 March, 2000
JUDGMENT DATE:	5 April 2000
PARTIES :	REGINA JOHN EDWARD HEARD
JUDGMENT OF:	Simpson J at 1; Smart AJ at 2

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	97/31/0487
LOWER COURT JUDICIAL OFFICER :	Viney DCJ

COUNSEL :	D. ANDERSON S.C. (Applcant) C.K. MAXWELL Q.C. (Crown)
SOLICITORS:	COLIN W. LOVE & CO. (Applicant) S.E. O'CONNOR (Crown)
CATCHWORDS:	Criminal Law - Sentencing - Parity
DECISION:	Leave to appeal granted. Appeal allowed. Sentence quashed. In lieu of sentence imposed applicant sentenced to a minimum term of imprisonment of 2 years 2 months starting on 20 March 1998 and ending on 19 May 2000 and an additional term of 2 years 10 months starting on 20 May 2000.

IN THE COURT OF

CRIMINAL APPEAL

60190/1999

SIMPSON J

SMART AJ

5 April, 2000

REGINA v. JOHN EDWARD HEARD

1 SIMPSON J: I agree with the order proposed by Acting Justice Smart and with his reasons therefor. 2 SMART AJ: John Edward Heard seeks leave to appeal against the severity of his sentence, comprising a minimum term of 3 years and an additional term of 4 years for supplying not less than the commercial quantity of amphetamine, a prohibited drug. The applicant complained that the head sentence and consequently the minimum term were excessive. He made no complaint abut the minimum term being about 43% of the total sentence, and submitted that such a ratio should be maintained in any lesser sentence and submitted that such a ratio should be maintained in any lesser sentence imposed by this Court. The applicant also contended that having regard to his criminality, he had been punished proportionately more severely than his co-offenders. 3 About 9.59 am. on Saturday 9 August 1997 the applicant’s vehicle was observed in the driveway of 4 Gilford Street, Kariong, the home of Dennis Watkins, a wholesale supplier of prohibited drugs. A short time later, the applicant left that home carrying a package with a white dress wrapped around it. The applicant placed it on the back seat of his vehicle which police followed. About 11.05 am. Mr. Heard drove his vehicle along Bondi Street, The Entrance, towards his home. He was stopped by some police officers and searched. When questioned by the police, he told them that there was a pound of ‘speed’ on the back seat. Police took possession of that drug. The gross weight was 456 grams. In the glove box there was a resealable plastic bag containing a further 4 resealable plastic bags each of which contained a powder substance. The applicant said that this was ‘speed’. Its gross weight was 127 grams. The combined gross weight of the drugs was 583 grams with an estimated street value of $58,300. The purity of the drug did not exceed 6.9%. The remaining 93.1% of the substance is deemed to be amphetamine as a result of s.4 of the Drug Misuse and Trafficking Act 1985. Nevertheless there was twice the commercial quantity of amphetamines. The offence carries a maximum prison penalty of 20 years. 4 The applicant has a lengthy criminal record which began in 1962, with a minor offence and since 1969 there have been many offences over the years up to 1991. He has been fined, placed on recognisance and imprisoned. In all there are 24 entries on his record and many of these contain several offences. The most serious offence was robbery with striking in 1979, when he was sentenced to 6 years hard labour with a non parole period of 2 ½ years. His record contains many dishonesty offences, assaults and traffic offence; while there were no previous drug offences, his record does not entitle him to any leniency. 5 The applicant stated that he had to move house from Clovelly to the Central Coast, that he was receiving only a disability pension, that he was short of money and so involved himself in supplying drugs to extricate himself from those problems. His sister described him as being in a financially desperate position. 6 The applicant was born on 8 February, 1941. His health is not good. He suffers from osteo-arthritis and his sister said that he was in excruciating pain most of the time. Sometimes he has great difficulty in walking. Dr. Lou Lewis in his report of 26 November 1997 has written:

“I have known John Heard for over 10 yrs … In the past few years has had his right hip replaced, his left knee replaced, and within the next 12 months he will need to have a left hip replacement. His body is literally riddled with severe disabling osteo-arthritis.”

7   The applicant’s relatives and friends have stated that he was very ashamed of what he had done. They are trying to arrange some part time employment for him which he can manage. It was apparent that he had quite an amount of support. 8   The judge, while noting that the applicant had declined to answer any questions by the police, and thereby disclose any details of his drug suppliers, said that the applicant co-operated and was remorseful. 9   The judge accepted evidence that over the years he had been a good citizen in other respects and very close to the members of his family. While he has struggled in life he has also been prepared to help others. The judge accepted that the applicant had contributed considerably by way of charitable work to a number of charities. Considerable sums were raised due in no small part to his efforts. 10   Correctly, the judge was much influenced by the objective gravity of the offence, observing:

“Without suppliers we would not have the rampant problems in the community associated with the use and abuse of drugs. Basically, Mr Heard’s only excuse for being involved in this matter is that he was short of money and he used this opportunity to get himself out of his financial problems. There is hardly much consideration to be given for a person in that situation.”

11   The judge found that the applicant’s age and health, and the high level of hardship he would suffer in gaol, along with the resultant need for an extended period of rehabilitation, constituted special circumstances. I agree. 12   The applicant pointed out that the judge had fixed a head sentence which was just over one third of the maximum penalty. The applicant submitted that this was excessive on a consideration of the objective facts alone. It was even more demonstrably excessive when the subjective features were taken into account. It was submitted that proper allowance had not been made for the age and health of the applicant in either the head sentence or the minimum term. 13   The applicant contended that he was detected and caught as a result of material obtained through telephone interceptions which formed part of a concerted police operation known as “Operation Gymea”, which was focussed on Leslie Kalache and his associates. The applicant contended that he received a sterner sentence than others involved in the operation, and that the sentence lacked parity. There was an authorised telephone intercept of the telephone service of Dennis and Tracie Watkins. Immediately after Mr Heard was arrested his de facto wife, at 11.27 am, telephoned Mr D Watkins and advised him that the applicant had been arrested. 14   At 1.05 pm Mr D Watkins again spoke with the applicant’s de facto wife on the telephone. Mr Watkins told her that he would contact Mr Leslie Kalache, the principal of the drug organisation, to see if one of his friends could do anything. Mr Watkins immediately telephoned Mr Kalache and informed him of the arrest of John Heard. Twenty minutes later Kalache telephoned Watkins and they surmised that the incident may have been a “set up”. About 6.50 pm that day the applicant and Mr D Watkins spoke on the telephone and theorised as to how he came to be arrested. 15   There was material pointing to Watkins and the applicant having an association previously. The materials did not indicate the length of that association. Watkins, his wife and Kalache had a close association. 16   To gain some understanding of the Kalache operation it is necessary to refer to the judgments of the Court of Criminal Appeal in R v Kalache, 4 February 2000 unreported. Kalache was the leader of an organised network involved in the manufacture and distribution of prohibited drugs run from his Clovelly unit. Kalache dealt primarily with methylamphetamine. From December 1995 he was involved with others in financing an operation to manufacture this drug through the purchase of equipment and chemicals (on the blackmarket). A drug laboratory was established at Wollombi, and commercial quantities of the drug were manufactured there. A site in Booral was purchased in June 1997 and a laboratory was established there. There was a mass purchase of Sudafed tablets by a number of people. Around 3.5 kilograms of methylamphetamine was manufactured there and distributed. Profits of $350,000 were mentioned. In mid August 1997 the manufacture of a further 3.5 kilograms was begun. 17   Between 20 May 1997 and 30 September 1997 from 5 to 20 persons were involved in trafficking the prohibited drugs supplied by Kalache. During this period in excess of 20 kilograms of methylamphetamine was supplied by Kalache for distribution. 18   Kalache supplied cocaine in excess of 5 kilograms during the period mentioned. He also supplied ecstasy tablets estimated to number 4000. Cannabis leaf was supplied on a regular basis in substantial quantities. 19   Kalache advised his associates on ways in which they could on-sell the various drugs, on suitable prices, and potential profits. The police arrested about 50 other persons who were connected with Kalache’s activities. 20   Judge GD Woods QC sentenced some 16 offenders, including Kalache. Kalache effectively received a minimum term of 7 ½ years and an additional term of 2 ½ years. On appeal this was increased to a minimum term of 22 years and an additional term of 3 years. Judge Woods sentenced Kalache on 6 May 1999 some 13 ½ months after Judge Viney sentenced Mr Heard. 21   Some of the sixteen offenders were involved in the manufacture of prohibited drugs, and some appeared to be large scale distributors and wholesalers. Mr and Mrs Watkins appeared to be in the latter category. Apart from the Crown appeal against Kalache there were appeals by seven offenders on the ground that the sentence imposed was too severe. In two instances the appeal was dismissed. In a third instance leave to appeal was refused. The other appeals have not been determined. In another three cases there have been Crown appeals alleging the sentence was inadequate. One of the Crown appeals has been dismissed. The others are to be determined in May 2000. A schedule containing the names of thirty-one offenders and their sentences was produced. It was headed “Operation Gymea - Sentencing”. 22   The applicant relied particularly upon the sentences imposed upon Bonney, Moretti and Yates. For the three offences of manufacturing methylamphetamine (large commercial quantity), supply methylamphetamine (commercial quantity), and supply ecstasy (commercial quantity) Bonney received an effective minimum term of 2 years 9 months and an additional term of 2 years 3 months. Bonney was Kalache’s chief lieutenant, working for Kalache at Kalache’s unit. Bonney had a medical condition making it difficult to serve the sentence. We were not told of any Crown appeal. Bonney has an extensive record, and had spent extensive periods in gaol. His record included serious crimes. There was a break from 1990 to 1997 when he was not charged with any offences. Bonney does not appear to have had any connection with offences in the Gosford district. 23   For the offence of supplying a commercial quantity of methylamphetamine Moretti was sentenced to a minimum term of twelve months and an additional term of twelve months. He attended Kalache’s unit at Clovelly on several occasions. He purchased methylamphetamine from Kalache and sold it to a number of his customers over a period of months. The special circumstances were the need for rehabilitation. This court was not told of any Crown appeal. Moretti had no previous convictions. 24   For supplying a commercial quantity of methylamphetamine Yates received a minimum term of 2 years and an additional term of 8 months. His appeal against the severity of that sentence has been dismissed. Yates attended Kalache’s unit on numerous occasions and received supplies of methylamphetamine, and had many discussions with Kalache. Yates received advice as to how he should conduct his operation. He engaged in repeated supplies of the drug over some months. Yates had a relatively minor record. 25   Reference should also be made to the case of Dennis Watkins, Mr Heard’s supplier. Watkins was sentenced for manufacturing a large commercial quantity of methylamphetamine, supplying a commercial quantity of ecstasy, supplying cannabis, and supplying a commercial quantity of methylamphetamine. Watkins received a minimum term of three years and an additional term of two and a half years. Watkins had a lengthy criminal record stretching back to 1956. He has spent periods in gaol. 26   The taped telephone conversations reveal that Kalache was worried about what had happened to Heard. Kalache remarked that while The Entrance was “out of our bounds”, he would see what he could do. Kalache had corrupted two police Detective Sergeants of Police. He was able to get information and assistance. 27   The applicant complained that he had been penalised for pleading guilty at an early stage. Many of those in the Kalache group were arrested between the middle of August 1997 and the end of September 1997, but they did not plead guilty at such an early stage. 28   The applicant was not close to the centre of the Kalache operation. However, Heard was known to Kalache, who was advised very shortly after Heard was arrested, and was anxious about that. Mr Heard led back to Watkins, who was closely linked to Kalache. 29   The quantities being handled by Mr Heard indicate that he was quite an important distributor or retailer of Kalache’s prohibited drugs. The sentence imposed on Watkins, who was closely associated with Mr Heard, is out of balance with that imposed on Mr Heard. Watkins received a lesser overall sentence (five and a half years as against seven years) and the same minimum term. Watkins’ criminality is much greater. Considerations of parity compel intervention. There is no ideal or even a good conclusion. The sentences imposed by Judge Woods were excessively lenient. Nevertheless, Mr Heard has a legitimate sense of grievance. Comparatively, he has received a sterner sentence. 30   I propose the following orders:

(a) Leave to appeal granted.

(b) Appeal allowed; sentence quashed.

(c) In lieu of the sentence imposed, the applicant is sentenced to a minimum term of imprisonment of two years two months starting on 20 March 1998 and ending on 19 May 2000, and an additional term of two years ten months starting on 20 May 2000.
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