R v Payne - [2005] NSWCCA 84

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Payne [2005] NSWCCA 84

FILE NUMBER(S):
2004/3094

HEARING DATE(S): 14/3/05

JUDGMENT DATE: 05/04/2005

PARTIES:
Regina (Appellant)
Jason Craig Payne (Respondent)

JUDGMENT OF: Adams J Bell J Hall J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 00/51/0100

LOWER COURT JUDICIAL OFFICER: Hosking DCJ

COUNSEL:
J Girdham (Crown)
P Byrne SC (Respondent)

SOLICITORS:
S Kavanagh

CATCHWORDS:

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999

DECISION:
Allow the appeal and quash the sentence on count two imposed in the District Court. In lieu thereof the respondent is sentenced to a term of twenty months' imprisonment. The sentence is to be served by way of periodic detention and will commence on Friday 20 May 2005. Specify a non-parole period of twelve months, which will expire on 19 May 2006. Direct the respondent's release on parole at the expiration of the non-parole period.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2004/3094
ADAMS J
BELL J
HALL J
Tuesday 5 April 2005

Regina v Jason Craig Payne

Judgment

ADAMS J: I have had the advantage of reading the judgment in draft of Bell J and gratefully adopt her Honour’s summary of the facts.
The respondent pleaded guilty to having methylamphetamine in his possession for supply and the particularised quantity was 34.7 grams. Despite the formal content of the charge, his evidence was to the effect that about a half was for his personal use. This was either a repudiation of the plea as to this quantity or – as the case seems to have proceeded – the particularised quantity was not regarded as essential to the charge and was not ultimately the quantity for which he was being punished. Having regard to the findings of Hosking DCJ, the respondent was to be sentenced for the supply of approximately half of the methylamphetamine found in his possession, since the effect of those findings was that he proposed to share the drug with his then partner and – having regard to the evidence – their drug use was about the same.
Except that it is clear that the quantity the respondent supplied, in the statutory sense that he had it in his possession for that purpose, was about 17 grams or so, and not almost 35 grams, the formalities do not matter. He was not charged with and could not be punished for the possession of the quantity of prohibited drug that was in his possession for personal use. The form of the particulars should not deflect attention from the actual quantity, the supply, or proposed supply of which, called for punishment. The quantity of drug involved in any supply is a key indicator of the seriousness of the offence. Seventeen grams could not be regarded as a trivial quantity, but it is to my mind a relatively small amount.
The second important feature of the learned sentencing judge’s findings is that the (contemplated) supply had no commercial element. It was to the respondent’s partner who was a significant user. It was gratuitous. It was no part of the drug trade, except in the sense that the respondent had purchased it. It is obvious that the gratuitous supply of drugs is very much at the bottom of the scale of objective seriousness for offences of this kind.
There can be no question but that the respondent deliberately committed a criminal act and that this was his second such offence. Moreover, he committed it when on bond to be of good behaviour. The respondent, however, is an addict, as was his partner. He was not, as the facts have been proved, motivated by greed but by need, a need which to my mind is akin to an illness. I do not doubt that the respondent is responsible, both legally and morally, for his offence. But, in dealing with the extent to which it is necessary to punish him for so doing, it would be both wrong and less than the law itself requires to disregard the situation in which he found himself. The fact is that, as a matter of reality, any drug that he purchased to satisfy his own addiction would, of necessity, be shared with his partner.
The criminal law cannot be broken with impunity. The drug trade, dependent as it is upon a criminal black market that instigates and encourages dangerous and anti-social conduct of massive proportions, is a grave social problem. The upper scale of punishment for supplying prohibited drugs demonstrates the seriousness with which the Parliament regards the issue. Quite apart from the considerable criminality engendered by the drug trade, no society can permit persons to profit from breaking the law. By participating in this trade, even as an end-user, the respondent deserves some punishment.
In the end, of course, the measure of punishment is a matter of fact and degree, a matter of judgment. It is not controversial to say that punishment ought not to exceed the moral culpability of the crime. But it is self evident that reasonable minds may quite reasonably differ upon the application of this principle in particular cases.
I have already mentioned the four critical elements in this case: the small quantity of the drug; the gratuitous character of the supply; its inextricable link with the respondent’s addiction; and that it was a second offence committed whilst on a bond. With unfeigned respect, I am unable to agree that a sentence of two years’ imprisonment – a sentence reflecting the consideration that it reflects the restraint appropriate where a sentence is to be increased on a Crown appeal – appropriately measures the true seriousness of the respondent’s crime. In my view, Hosking J’s assessment of the appropriate punishment was correct or, at least, not shown to be in error. Having regard to the objective and subjective features of the case, I would not agree that this sentence is a lenient one, considered in isolation. On the other hand, I agree with the appellant that the offences committed by the respondent were separate and distinct, so that the sentence imposed for the latter should have been accumulated on that imposed for the former.
Accordingly, I would propose that the appeal be allowed to the extent that the (overall) sentence of twelve months to be served by way of periodic detention commence on 20 May 2005, namely on the expiration of the non-parole period of six months imposed in respect of the offence of which the respondent was convicted on 5 April 2001. Having regard to the accumulation, I consider that there are special circumstances warranting the departure from the statutory ratio. It is also desirable to provide a somewhat longer period of supervision than that ratio would permit, having regard to the material in Mr McCobie’s report, to which Bell J has referred. Thus, I would propose a non-parole period of six months, expiring on 19 November 2005.
BELL J: This is a Crown appeal against inadequacy of sentence.

The respondent was sentenced in the District Court at Coffs Harbour by his Honour, Judge Hosking (the Judge), to a sentence of twelve months’ imprisonment with a non-parole period of nine months to be served by way of periodic detention. This followed the respondent’s plea of guilty to a charge of supplying a prohibited drug, namely, methylamphetamine, on 28 February 2002.

On 11 November 2004 the Judge also dealt with the respondent’s breach of a bond entered into pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999 following his conviction on 5 April 2001 for an offence of supplying methylamphetamine (the first offence).

The Director of Public Prosecutions (the Director) filed a notice of appeal against both sentences. By amended notice of appeal, filed on 7 February 2005, the Director confines his appeal to the alleged inadequacy of sentence for the offence of supply methylamphetamine committed on 28 February 2002 (the second offence).
While the appeal is confined to the sentence for the second offence, it is necessary to say something about the first offence.
On 5 April 2001 the respondent appeared for sentence before the Judge in the District Court at Coffs Harbour on a charge of the supply of 10.8 grams of methylamphetamine on 31 March 2000 at Coffs Harbour. The Judge sentenced him to a term of eighteen months’ imprisonment to date from 5 April 2001 and to expire on 4 October 2002. Pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999, his Honour ordered that the execution of the sentence be suspended for its term and directed the respondent’s release from custody on condition that he enter into a good behaviour bond for the term of the sentence.
On 28 February 2002, while the respondent was still the subject of the

s 12 bond, he committed the second offence. The quantity of the drug involved on this occasion was 34.7 grams.

There were delays associated with finalising the proceedings against the respondent in respect of the second offence. These were not his fault.
In sentencing the applicant, the Judge relied on the agreed facts. They are as follows:
“Information was received by police that the accused was to deliver a substantial amount of amphetamines to a person in Katherine Close, Coffs Harbour, on the afternoon of Thursday 28 February 2002.
Police conducted surveillance of Katherine Close, Coffs Harbour. About 3pm on that day, police observed the offender walking north in the street. Police approached the offender, who ran immediately he saw them. They chased the offender without losing sight of him. He was seen to take a plastic bag from his right hand pants pocket and throw it into a garden at the rear of premises at 7 Katherine Close, Coffs Harbour.
The offender was arrested immediately after and when questioned as to what he threw he replied that it was his phone. Police commenced a search of the garden and located a medium sized plastic bag with further plastic bags inside. The inner bags contained white power. The offender declined to answer questions and was taken to Coffs Harbour Police Station. He declined to be interviewed.
The drugs were weighed in the presence of the accused and later analysed as 34.7 grams of Methylamphetamine. The intelligence received by police was that the accused was delivering approximately one ounce of amphetamines to an address in Katherine Close. The total street value of the drugs seized is $3,123”.
The respondent gave evidence on the proceedings before the Judge on 11 November 2004. He said that he had not been dealing in methylamphetamine but that he had purchased this quantity of the drug on the day of his arrest with a view to using it himself and sharing it with his companion. At the time he was using 1 to 2 grams of methylamphetamine per day. The Judge accepted his evidence, expressing satisfaction, on the balance of probabilities, that the respondent intended no wider supply of the drug.

The Judge took into account a pre-sentence report dated 13 October 2004. He noted that the respondent was described in that report as “an intelligent and hard working self-employed business man”. The respondent’s business was an excavation/landscaping one. He had been a member of the Australian Army until sustaining an injury to his leg in the course of his service.
The Judge noted that the applicant had a criminal record including a conviction for stealing in 1990 for which he had been fined and a conviction for common assault. He had not been convicted of any drug related offence save for the first offence. His Honour found the respondent to be remorseful “to a degree” and considered that his plea of guilty entitled him to leniency. He found special circumstances in relation to the sentence for the first offence. He revoked the s 12 bond and confirmed the sentence of eighteen months’ imprisonment, specifying a non-parole period of six months. The sentence was directed to be served by way of periodic detention. It was expressed to commence on 20 November 2004.
In relation to the supply offence the Judge sentenced the applicant to a term of twelve months’ imprisonment and specified a nine-month non-parole period. He directed the sentence be served by way of periodic detention. This sentence was also expressed to commence on 20 November 2004.
In the Crown’s submission, the sentence of twelve months’ imprisonment to be served by way of periodic detention is manifestly inadequate. The determination that the sentence imposed for this offence be served concurrently with the sentence for the first offence is said to demonstrate further error.
In the proceedings before the Judge it was the Crown’s submission that the sentences should be served in fulltime custody. As I have noted, the Crown did not continue the appeal against the sentence imposed for the first offence, which was directed to be served by way of periodic detention. On the hearing of the appeal, the Crown Prosecutor submitted that while it remained the Crown’s contention that the Judge erred in imposing sentences of periodic detention, in light of the delays that had attended the proceedings, the Crown was not seeking a sentence of fulltime custody. The Crown maintained that an error of principal is evidenced both in the determination that the sentence run concurrently with the sentence for the first offence and in the length of the second sentence.
The Crown, in written submissions, contended that the Judge erred in his consideration of the factors under s 21A of the Crimes (Sentencing Procedure) Act. In this respect the Crown relied on the following passage in his Honour’s reasons:
“In terms of s 21A, Crimes (Sentencing Procedure) Act 1999 the fact is, I am obliged to take into account, and I have, as I have just said, taken into account his previous conviction. That appears to me to be the only aggravating factor.”
In the Crown’s submission, the Judge appears to have overlooked subsection (2)(j), namely, that the offence was committed while the offender was on conditional liberty. I am not persuaded by this submission. When one reads the whole of his Honour’s remarks it is plain that he had in mind that the second offence had been committed at a time when the respondent was at liberty on the bond with respect to the first offence. Immediately after setting out the facts of the second offence his Honour observed:
“I am also dealing with what is, in effect, a call-up of this offender in relation to a breach of a s 12 Crimes (Sentencing Procedure) Act (1999) good behaviour bond, following the imposition of a sentence by me on 5 April 2001 of 18 months which I suspended on the offender entering into a bond. The commission of this offence within the period of that bond is, as Mr O’Connor of counsel for the offender properly concedes, a breach of the terms of that bond which cannot be excused” (ROS 2).
The Judge went on to say:
“Nevertheless, this is still a serious offence even though the amount of the drug was towards the lower end of the scale, as was the initial offence, if for no other reason than this represents the deliberate commission of the very same offence that the offender received a s 12 bond from this Court for back in 2001” (ROS 3).
Finally, it is to be noted that the Judge observed:
“Most importantly there is his plea of guilty which, in my view, entitles him to a sentence, combined with other matters, to a sentence to be served by way of periodic detention rather than fulltime custody, despite his breach of his existing bond” (ROS 4).
To my mind it is quite clear that at the forefront of the Judge’s consideration was his recognition that the second offence had been committed while the respondent was the subject of conditional liberty. The question remains whether the length of the sentence and its structure is such as to bespeak error.
Senior counsel for the respondent placed considerable emphasis on the Judge’s finding that the respondent intended no wider supply of the drug than to his companion. His Honour’s finding is not the subject of challenge. Senior counsel submitted that it had been open to the Judge to treat the second offence as a “relatively minor offence”, notwithstanding that it had been committed while the respondent was at liberty on a bond for an earlier offence of supplying methylamphetamine. The circumstance that the Judge was affirmatively persuaded that the respondent had the drug in his possession for personal use and for gratuitous supply to his companion means that the offence is less serious than an offence involving commercial distribution. Nonetheless, I do not accept that this offence can properly be characterised as a relatively minor one.
The sentence of twelve months’ imprisonment for the offence of supply of methylamphetamine, notwithstanding that it was a gratuitous supply to an associate, is manifestly inadequate. It is a sentence of shorter duration than that imposed for the earlier supply which involved a lesser quantity of the drug. The offence was committed while the respondent was the subject a suspended sentence for the same offence. I consider that the inadequacy is such as to betray error of principle: R v Wright (1997) 93 A Crim R 48 at 52-53 per Hunt CJ at CL (with whom Gleeson CJ and Hidden J agreed).
The Judge explained his reasons for his sentencing order in this way:
“In relation to the offence I am currently dealing with, you are convicted. For that offence I sentence you to imprisonment for 12 months with a 9 months non parole period, that sentence to be served by way of periodic detention, that sentence also is to commence – for reasons of totality I will make that sentence concurrent, at least as to six months of it, with your previous sentence and cumulative as to its non-parole period as to three months, that sentence too is to commence on 20 November 2004” (ROS 5 – 6).
His Honour concluded that considerations of totality made it appropriate that the two sentences be concurrent. In this respect I consider that his Honour erred. The result was that the sentence for the second supply offence wholly subsumed that for the first. They were discrete episodes of criminal offending.
A report dated 17 February 2005 prepared by Mr McCombie, a psychologist, was tendered on the hearing of the appeal, together with a number of reports of the results of urine analysis, a report from a drug and alcohol counsellor and a reference from the respondent’s employer. This material establishes that the respondent is currently in employment and that he carries out his duties in an exemplary manner. He commenced drug and alcohol counselling with the North Coast Area Health Service in November 2004, the purpose of which was relapse prevention. The respondent stated that he had remained abstinent for the past two and a half years. The pathology results confirm the absence of prohibited drugs, including amphetamines.
Mr McCombie assessed the respondent on 1 February 2005. He concluded that the respondent has a need for further treatment. In his view, if the respondent were to be placed under significant stress again, he would relapse into substance use/dependence.
The respondent is now aged thirty-four years. He has a history of employment. He has not previously been sentenced to a term of fulltime custody. He is living with his wife and four-year old child.
The Court has a discretion, notwithstanding that error has been identified, to decline to intervene: Dinsdale v R (2000) 202 CLR 321; R v Allpass (1993) 72 A Crim R 561. Counsel submits that in light of the circumstance that the most recent of the respondent’s two offences is now more than three years old, the Court would decline to intervene. The delay has led the Crown to abandon its submission that a sentence of fulltime custody should be imposed. I am not persuaded that the history of the matter or any other circumstance makes it appropriate for the Court to decline to intervene in the exercise of its discretion.
In approaching the re-sentence it is necessary to exercise restraint, it being a Crown appeal. I take into account the favourable factual findings made by the Judge to which I have referred, as well as the further material admitted on the appeal. The respondent is an intelligent man with a creditable record of employment. He was found by the Judge to be, to a degree, remorseful for his own stupidity. He entered a plea of guilty to the subject offence on arraignment on 24 March 2004, and is entitled to have his sentence reduced to reflect the utilitarian value of the plea. At the time the plea was entered the matter had been listed for trial on more than one occasion. I consider a discount of fifteen percent for the plea of guilty to be appropriate.

I have regard to the factors to which s 21A of the Crimes (Sentencing Procedure) Act directs attention. It is necessary for the Court to turn its attention to both the aggravating and mitigating factors in subsections (2) and (3) to the extent that they are relevant and known. The aggravating factor to which I have regard is (j), namely, that the offence was committed while the offender was on conditional liberty in relation to an offence. The relevant mitigating factors include that the offence was not part of a planned or organised criminal activity and the plea of guilty, to which I have referred. Despite the cautionary note in the psychologist’s report, I am persuaded on the balance of probabilities that the respondent is unlikely to re-offend and that his prospects of rehabilitation are good.
I would have imposed a sentence of two years’ imprisonment. Allowing a discount of the order of fifteen percent, I propose that the sentence be one of twenty months’ imprisonment to be served by way of periodic detention. I propose that the sentence be accumulated on the non-parole period for the sentence being served. The accumulation is a special circumstance that makes it appropriate to depart from the statutory proportion between the sentence and the non-parole period. I propose a non-parole period of twelve months’ imprisonment.
For these reasons the orders that I propose are:
1. Allow the appeal and quash the sentence on count two imposed in the District Court. In lieu thereof the respondent is sentenced to a term of twenty months’ imprisonment. The sentence is to be served by way of periodic detention and will commence on Friday 20 May 2005. Specify a non-parole period of twelve months, which will expire on 19 May 2006. Direct the respondent’s release on parole at the expiration of the non-parole period.
HALL, J: I have had the benefit of reading in draft the judgments of Adams, J. and Bell, J.
Whilst both judgments proceed upon the basis that the appeal should be allowed, Adams, J. proposes that intervention by this Court should be to a lesser extent than that proposed by Bell, J. and confined to the extent of accumulating the 12 month sentence imposed by the sentencing judge to be served by way of period detention, so that it commences on 20 May 2005, and that there be a non-parole period of six months, expiring on 19 November 2005.
Central to the divergence between Adams, J. and Bell, J. is the question of the seriousness of the offence charged under s.25(1) and s.29 of the Drugs (Misuse & Trafficking) Act 1985 and to which the respondent entered a plea of guilty.
I agree with the reasons for judgment and orders proposed by Bell, J. In doing so, I wish only to add the following comments:-
(a)The seriousness of the offence charged arose from the nature of the offence, the greater quantity of the drug than was involved in the first offence and the deliberate commission of the offence within 10 months of being placed on the s.12(1) bond.
(b)The purpose for which the respondent brought the parcel of methylamphetamine was not merely for his own use, but, on his evidence, for the use of his female companion. In other words, her usage of the drug was not a mere incident or unintended consequence of the fact that the drug was obtained by the respondent but was a specific purpose behind its acquisition.
(c)Even accepting that the supply involved an indeterminable portion of the 35 grams of the methylamphetamine to one person, the offence committed some two years after the first offence (that committed on 31 March 2000) and within 10 months of entering a good behaviour bond, reflects both a deliberate disregard for the law proscribing the supply of prohibited drugs and an abuse of the trust inherent in the good behaviour bond which bound the respondent.
The matters identified by Bell, J., which include due allowance for the gratuitous nature of the supply to another person, in my view, called for a term of imprisonment which exceeded the 18 month period imposed for the first offence. I accordingly am of the opinion that the orders proposed by Bell, J. reflect the objective and subjective factors relevant to the offence.

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LAST UPDATED: 05/04/2005