R v M

[2005] NSWCCA 224

CITATION:	R v M [2005] NSWCCA 224
HEARING DATE(S):	16/06/2005
JUDGMENT DATE:	16 June 2005
JUDGMENT OF:	James J at 34; Buddin J at 1; Rothman J at 35
DECISION:	Grant leave to appeal. Allow the appeals against the sentences imposed in the District Court. Quash the sentences imposed and in lieu thereof in respect of each offence sentence the applicant to a non-parole period of 2 years with a total term of 4 years. In respect of the offence of supply a commercial quantity of methylamphetamine order that the non-parole and the total sentence commence on 9 August 2004. In respect of the offence of supply a commercial quantity of ecstasy order that the non-parole period and total sentence commence on 9 August 2005. The overall non-parole period will thus expire on 8 August 2007 at which time the applicant will be eligible for release on parole. The total term will expire on 8 August 2009.

CATCHWORDS:	Sentence - supply of commercial quantities of prohibited drugs - assistance to the authorities - partial accumulation of sentence
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999
CASES CITED:	Pearce v The Queen (1998) 194 CLR 610 R v AMT [2005] NSWCCA 151 R v Davies [2004] NSWCCA 39 R v Gallagher (1991) 23 NSWLR 220 R v NP [2003] NSWCCA 195 R v OPA [2004] NSWCCA 464 R v Pang (1998) 105 A Crim R 474 R v Way [2004] 60 NSWLR 168 R v Thomson and Houlton (2000) 49 NSWLR 383 Weininger v The Queen (2003) 196 ALR 451
PARTIES:	Regina M (Applicant)
FILE NUMBER(S):	CCA 2005/607
COUNSEL:	P Barrett (Crown) S Odgers SC (Applicant)
SOLICITORS:	S Kavanagh (Crown) WM Bruce Associates (Applicant)

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	04/11/0152
LOWER COURT JUDICIAL OFFICER:	Berman DCJ

2005/607

JAMES J
BUDDIN J
ROTHMAN J

THURSDAY 16 JUNE 2005

R v M

Judgment

1 BUDDIN J: The applicant seeks leave to appeal against the severity of sentences imposed upon him in the District Court. The applicant entered pleas of guilty in the Local Court to two separate offences of supplying a commercial quantity of a prohibited drug between 10 April 2003 and 1 August 2003. One charge related to the supply of methylamphetamine and the other to the supply of ecstasy. He adhered to those pleas when he appeared for sentence in the District Court.

2 In respect of each matter the applicant was sentenced to a non-parole period of 3 years with a total term of 5 years imprisonment. The sentence for the latter offence (which related to the supply of ecstasy) was ordered to commence a year after the commencement of the earlier offence. The total effective non-parole period is thus one of 4 years with the total overall term of imprisonment being one of 6 years. Each offence attracts a maximum penalty of 20 years imprisonment and/or a substantial pecuniary penalty.

3 The applicant requested that two further offences, which appeared on a Form 1 document, be taken into account in sentencing for the offence of supplying ecstasy. One of those offences related to his possession of 3.47 grams of cocaine whilst the other related to his possession of 35.97 grams of ketamine.

4 The sentencing judge described the factual background to the offences in the following terms:

The activities of the offender first came to the attention of the authorities in April 2003. Using various surveillance techniques the police discovered that the offender was involved in the sale and distribution of ecstasy and methylamphetamine from his apartment in St Leonards.
In the period 10 April 2003 to 1 August 2003 the offender would regularly purchase methylamphetamine, cut it, to increase the yield, and then sell it. The police monitored what were described as “numerous” drug transactions where the offender supplied methylamphetamine. In particular, on 13 June 2003 the offender sold 55.4 grams of methylamphetamine to a person by the name of John Bradbury. The fact sheet, tendered without objection, records that the offender supplied Mr Bradbury between one and four ounces of amphetamine – I presume strictly this should be methylamphetamine – on a fortnightly basis. Some simple mathematics reveal that even to this single purchaser the offender supplied a substantial quantity of drugs. As it turns out, when the offender was arrested he had on him a relatively small quantity of methylamphetamine, 34.45 grams in fact. But, as his plea and the facts make clear, he supplied much more than that over the sixteen weeks between 10 April and 1 August.
Nor was methylamphetamine the only drug the offender supplied, he was also a very successful supplier of ecstasy. On 25 July 2003 he had in his possession, presumably for the purpose of supply, a bag containing 248 grams of ecstasy. Later on 1 August 2003 he was arrested and a total of about 322 ecstasy tablets were located by the police in various places. Some were located on the offender himself. Others were in two safes in a self storage unit operated by the offender. The ecstasy tablets located on 1 August weighed a total of 83.96 grams, but again, as I have made clear, that quantity does not represent the extent of the offender’s involvement in supplying ecstasy.

5 The sentencing judge described the applicant as having conducted a “successful business as a drug supplier”. His Honour also observed that he was “relatively high up in the drug supply hierarchy”, although the person who supplied the applicant occupied a position in the hierarchy which was above that occupied by the applicant. The applicant’s role was to supply to people such as Mr Bradbury. It was Mr Bradbury’s role, his Honour found, to then supply to end users at the street level.

6 The applicant was born in India where he spent much of his childhood.

At the age of 13, he moved to Australia with his family. He successfully completed his Higher School Certificate in Sydney. Subsequently he went to university where he attained a Bachelor of Business degree. During that period he lived in a residential college at Macquarie University before moving into private accommodation with a friend. At the time his parents were living in Singapore where his father was employed in a senior executive position in a major international bank.

7 In 1997 the applicant, who was then aged 21, was the victim of a serious assault. He was attacked and beaten unconscious by a group of five youths as he left a bar. It took him two years to recover from the injuries which were inflicted upon him. The evidence suggests that none of his alleged assailants were convicted in relation to the attack upon him. It appears that the applicant was very embittered as a result of this experience with the criminal justice system. Thereafter he suffered from bouts of depression.

8 It was against that background that the applicant began to experiment with drugs. It was whilst he was frequenting night clubs that he commenced to use ecstasy. In due course, he acceded to a suggestion from his supplier that he could get his drugs more cheaply if he were to get involved in the business of supplying drugs himself.

9 In the circumstances the sentencing judge accepted that the applicant’s motivation for committing these offences arose from his desire to “get cheaper drugs for himself and the fact that [he] had a significant drug problem at the time”.

10 The sentencing judge found that, apart from some minor matters which had been dealt with in the Children’s Court more than 10 years previously, the applicant was of good character. His Honour concluded, however, that less weight should be afforded to the applicant on account of this factor than might otherwise be the case because the evidence disclosed that his drug dealing activities had extended well beyond the period nominated in the charges. This prevented the applicant claiming that his offences constituted “isolated acts of criminality”: see Weininger v The Queen (2003) 196 ALR 451. The sentencing judge also accepted, albeit with some hesitation, that the applicant was remorseful for his conduct.

11 There was evidence that the applicant had used the time whilst he was on bail prior to sentence in a productive fashion. His Honour accepted, for example, that the applicant had furthered his studies in an endeavour to gain qualifications as a financial planner. Moreover, the applicant had obtained a job in that industry and it was apparent that his employers regarded him highly. There was also evidence that the applicant enjoyed the continuing support both of his family and his girlfriend.

12 The sentencing judge made a finding that the applicant had good prospects of rehabilitation. In doing so, his Honour observed that the evidence revealed that the applicant “has largely turned his life around”. His Honour also had regard, in that context, to what was a significant feature of the case, namely the applicant’s assistance to the authorities. In relation to that aspect of the case, the sentencing judge made the following findings:

That assistance has resulted in a person higher up the drug supply chain being charged with an offence. Were it not for that assistance it is likely that that person’s illegal activities would have continued. His method of operation meant that the more traditional policing methods were doomed to fail. The offender’s actions have enabled the police to get someone they would not otherwise have got. As a result of this the offender has been threatened. He holds realistic fears for his safety, fears that are shared by the police involved in this matter. The offender is entitled to a substantial discount on the sentence that would otherwise have been imposed because of his assistance to the authorities. I will not quantify that discount separately from a discount for this early plea, but will allow a discount of forty per cent because of the combination of those factors.

To that narrative can be added the fact that the applicant has been assaulted as a result of his having provided assistance to authorities.

13 In light of the quantity of drugs involved, the period of time during which the offences had been committed and because of the applicant’s position in the “drug supply hierarchy”, the sentencing judge concluded that each of the offences was “in the middle range of objective seriousness of such offences”.

14 In those circumstances, it is common ground that the sentencing judge was obliged to impose the standard non-parole period which the legislature has prescribed for each offence unless there were reasons for not doing so: see Crimes (Sentencing Procedure) Act 1999, ss 54A and B. The standard non-parole period for each of the offences in question is 10 years imprisonment. The standard non-parole period applies to a sentence for an offence following a plea of not guilty: see R v Way [2004] 60 NSWLR 168. However, the standard non-parole period is still to be used as a reference point for cases involving a guilty plea: see

R v Davies

[2004] NSWCCA 39.

15 His Honour also made a finding of “special circumstances” within the meaning of s 44(2) of the Crimes (Sentencing Procedure) Act 1999, upon the basis that it was the applicant’s “first time in custody [and that] it will in all likelihood be served in protective custody”.

16 The first ground of appeal, which the applicant described as being the primary ground, asserts that the sentencing judge “erred in the discount for the combined factors of the utilitarian discount for the pleas of guilty and the assistance to the authorities”.

17 The applicant submitted that since the pleas were entered at the earliest opportunity, a discount of “at least 20% [if not] 25% would have been appropriate”. Such an outcome, it was submitted, would reflect the range indicated by this court in R v Thomson and Houlton (2000) 49 NSWLR 383. There was also to be taken into account, so it was submitted, the applicant’s significant assistance to the authorities. In those circumstances, it was contended that a discount of only 40% for the combined effect of the pleas of guilty and the assistance to the authorities was quite inadequate. It was submitted that an overall discount of at least 50% was called for.

18 The applicant recognises that it was entirely appropriate for the sentencing judge to have provided the applicant with a combined discount on account of his pleas of guilty and assistance to the authorities. Indeed, such an approach is in conformity with authority. In R v Gallagher (1991) 23 NSWLR 220, Gleeson CJ observed that:

Other considerations that enter into the matter include the remorse or contrition which may be demonstrated in a given case by co-operation with the authorities, and the more difficult time which an informer is likely to have during the period of incarceration as a result of having co-operated. Those last-mentioned matters may, depending upon the circumstances, be very difficult to separate from other considerations which might arise quite apart from the matter of assistance to the authorities. In this case, for example, the appellant was entitled to receive, and received, credit for pleading guilty, and for the contrition which that plea of guilty reflected. It was also said to be to his credit that he had good prospects of rehabilitation. It seems hardly likely that these were subjective matters which were entirely separate from the matter of his assistance to the authorities. It must often be the case that an offender’s conduct in pleading guilty, his expressions of contrition, his willingness to co-operate with the authorities, and the personal risks to which he thereby exposes himself, will form a complex of inter-related considerations, and an attempt to separate out one or more of those considerations will not only be artificial and contrived, but will also be illogical. (at 227-8)

19 A little later his Honour said:

However, I am of the view that, subject always to any relevant statutory requirement, a sentencing judge is entitled, but not obliged, to give a discrete quantifiable discount on the ground of assistance to authorities, provided it is otherwise possible and appropriate to do so. For reasons earlier stated, there may be many cases in which it is either impossible or inappropriate to take that course. Even in cases where, as a matter of legitimate discretionary decision, a judge decides to give a specified discount it is essential to bear in mind that what is involved is not a rigid or mathematical exercise, to be governed by “tariffs” derived from other and different cases but, rather, one of a number of matters to be taken into account in a discretionary exercise that must display due sensitivity towards all the considerations of policy which govern sentencing as an aspect of the administration of justice. (at 230)

20 Those latter remarks are, in my view, particularly apposite to the present case. Furthermore, they were cited with approval by this Court in R v Thomson and Houlton (supra).

21 In R v Pang (1998) 105 A Crim R 474, Wood CJ at CL, with whom Meagher JA and Barr J agreed, observed that “there is no fixed tariff for the reduction that should be given for assistance, and so far no guideline judgment has been delivered in this area. However, the discount customarily given in this State for assistance, has ranged between 20% and 50% of the sentence that would otherwise have been imposed” (at 477). It is not clear whether that range took into account the interplay between a plea of guilty and assistance to the authorities.

22 The applicant also referred the Court to three cases in which a combined discount in excess of 50% was allowed for the plea of guilty and assistance to the authorities, after the court saw fit to intervene: see R v NP [2003] NSWCCA 195; R v OPA [2004] NSWCCA 464; and R v AMT [2005] NSWCCA 151.

23 Particular emphasis was placed by the applicant upon the decision of this Court in AMT (supra). That is a case which bears some similarities to the present case. That offender also stood for sentence in relation to the supply of a commercial quantity of ecstasy. By coincidence, the sentencing judge in that case also sentenced the applicant. In AMT, Grove J, with whom Wood CJ at CL and Hoeben JJ agreed, observed that:

[his Honour] concluded…that the unwillingness of the applicant to give evidence against the arrested person indicated that his level of assistance was lower than it might have been and, therefore, lower by comparison with people in a similar situation who were willing to go that far. (at par 9)

24 The sentencing judge in that case, as in the present case, allowed that offender a combined discount of 40% for the plea of guilty and assistance to authorities.

25 Grove J then said:

Although his Honour made the remarks to which I have made reference, he expressly found that what the applicant had done represented a “high degree” of assistance. He also expressed the view that discounts up to the range of about fifty per cent were to be reserved for those who would assist to the extent of giving evidence.

I would not endorse that observation. Every case is different but it is easy to contemplate that people who, for example such as the applicant, in a practical way work undercover and at significant personal risk should become entitled to just as much consideration as people who testify in curial proceedings. (at pars 15-16)

26 In the upshot, the court took the view that error had been established and that a combined discount of 60% for the plea of guilty and assistance to the authorities was called for in the circumstances of that case.

27 The evidence in the present case reveals that the applicant’s assistance warrants the description that “in a practical way [he] work(ed) undercover and at a significant personal risk”. It can be inferred that the sentencing judge’s reasons for not allowing the present applicant a more generous discount were the same as those which he indicated in AMT. In those circumstances, I am persuaded that error of a similar kind has been established in the present case and that accordingly this Ground of Appeal has been made out.

28 In my view an overall discount of 50% would be appropriate in the present case. In arriving at that conclusion, I have had regard to all the relevant factors which guide the exercise of a proper sentencing discretion. I have also taken into account the various matters that are referred to in s 23 of the Crimes (Sentencing Procedure) Act 1999, and in particular to the requirement pursuant to ss(3) that the ultimate penalty “must not be unreasonably disproportionate to the nature and circumstances of the case”.

29 The second ground of appeal asserts that “the sentencing judge erred in the degree of cumulation of sentence”. As I observed earlier, the sentencing judge partially accumulated the sentence in respect of the supply of ecstasy upon the sentence which was imposed in respect of the supply of amphetamines.

30 In considering this aspect of the matter the sentencing judge was obliged to have regard to the principles which were enunciated in Pearce v The Queen (1998) 194 CLR 610. It was submitted that given that the offences “were intimately connected and occurred during the same period of time … a one year cumulation did not properly reflect considerations of totality”. It was also submitted that a “cumulative period of no more than 6 months would have adequately reflected the total criminality involved”.

31 As the challenge makes clear, it is not the fact of accumulation but rather the extent of it which gives rise to the present complaint. I am not persuaded however that the challenge to this aspect of the sentencing process has been made good. It was plainly necessary for an appropriate measure of additional punishment to be imposed upon the applicant for the second of the offences. Furthermore, the matters on the Form 1 also had to be brought into account. In the final analysis it has not been demonstrated that the sentencing judge’s discretion has miscarried. I would accordingly reject this ground of appeal.

32 In my view, error having been established, it is appropriate for this Court to intervene and proceed to re-sentence the applicant. In doing so, I have had regard to the additional material that has been placed before the Court which demonstrates that the applicant has been using his time in custody in a profitable manner. Such material augurs well for his eventual rehabilitation.

33 I propose the following orders:

1 Grant leave to appeal.

2 Allow the appeals against the sentences imposed in the District Court.

3 Quash the sentences imposed and in lieu thereof in respect of each offence sentence the applicant to a non-parole period of 2 years with a total term of 4 years.

4 In respect of the offence of supply a commercial quantity of methylamphetamine order that the non-parole and the total sentence commence on 9 August 2004.

5 In respect of the offence of supply a commercial quantity of ecstasy order that the non-parole period and total sentence commence on 9 August 2005.

6 The overall non-parole period will thus expire on 8 August 2007 at which time the applicant will be eligible for release on parole.

7 The total term will expire on 8 August 2009.

34 JAMES J: I agree with the judgment of Buddin J and the orders proposed by him.

35 ROTHMAN J: I too agree with the judgment of Buddin J and the orders proposed.

36 JAMES J: The orders of the Court will be as proposed by Buddin J.

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