R v Pickett

[2010] NSWCCA 273

New South Wales
Court of Criminal Appeal

CITATION:	R v Pickett [2010] NSWCCA 273
HEARING DATE(S):	22 October 2010
JUDGMENT DATE:	25 November 2010
JUDGMENT OF:	Simpson J at 1; Fullerton J at 79; RA Hulme J at 86
DECISION:	Crown appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – particular offences – drug offences – supply prohibited drug (cocaine) – other offences – CRIMINAL LAW – Crown appeal – suspended sentence – whether sentence manifestly inadequate – CRIMINAL LAW – sentence – sentencing procedure – failure to properly assess objective seriousness – whether subjective features given too much weight – consideration of exceptional circumstances – no error established – voluntary cessation of criminal activity prior to arrest – Crown appeal dismissed
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985 Law Enforcement (Powers and Responsibilities) Act 2002
CATEGORY:	Principal judgment
CASES CITED:	Brown v R; Reid v R [2006] NSWCCA 144 Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 Markarian v The Queen [2005] HCA 25; 228 CLR 357 R v Bardo (NSWCCA, 14 July 1992, unreported) R v Burns [2007] NSWCCA 228 R v Clark (NSWCCA, 15 March 1990, unreported) R v Gipp [2006] NSWCCA 115; 161 A Crim R 173 R v Gu [2006] NSWCCA 104 R v Hoon; R v Pouoa [2000] NSWCCA 137 R v Santos [2010] NSWCCA 127 R v Thompson (NSWCCA, 4 April 1991, unreported) R v Way [2004] NSWCCA 131; 60 NSWLR 168 Scott v R [2010] NSWCCA 103
PARTIES:	Regina (Applicant) Paul Anthony Pickett (Respondent)
FILE NUMBER(S):	CCA 2009/153743
COUNSEL:	D Arnott SC (Applicant) H Dhanji SC (Respondent)
SOLICITORS:	S Kavanagh (Solicitor for Public Prosecutions) (Applicant) Gaitanis Lawyers (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	2009/153743
LOWER COURT JUDICIAL OFFICER:	Phegan ADCJ
LOWER COURT DATE OF DECISION:	30 June 2010

2009/153743

SIMPSON J
FULLERTON J
R A HULME J

25 November 2010

R v Paul Anthony PICKETT

Judgment

1 SIMPSON J: This is a Crown appeal against the asserted inadequacy of a sentence imposed upon the respondent in the District Court on 30 June 2010 following his plea of guilty to a charge of ongoing supply of a prohibited drug (cocaine). Also taken into account, pursuant to Pt 3 Div 3 of the Crimes (Sentencing Procedure) Act 1999 (“the Sentencing Procedure Act”) were two additional offences (“the Form 1 offences”) of supplying a prohibited drug (also cocaine) and one of being an owner of a vehicle, failing to disclose the identity of a passenger therein (an offence created by s 17(1) of the Law Enforcement (Powers and Responsibilities) Act 2002, and carrying a maximum penalty of imprisonment for 12 months).

2 The offence of ongoing supply of a prohibited drug is created by s 25A(1) of the Drug Misuse and Trafficking Act 1985. It is committed where a person, on three or more separate occasions within a period of 30 days, supplies, for financial or material reward, a prohibited drug. It carries a maximum penalty of imprisonment for 20 years. For that offence, and taking into account the Form 1 offences, the respondent was sentenced to imprisonment for 20 months, commencing on 30 June 2010 and expiring on 29 February 2012. Pursuant to s 12 of the Sentencing Procedure Act, the sentencing judge ordered that execution of the sentence be suspended and that the respondent be released subject to specified conditions.

3 The Crown contends that this sentence was manifestly inadequate.

The facts

4 The facts were put before the sentencing judge by an agreed statement. Three actual supplies of cocaine were the subject of the charge. They occurred on 20 November 2008, 28 November 2008 and 17 December 2008. On each occasion, an undercover police operative sent an SMS message to a mobile telephone number, and arranged to meet the respondent at an address in the eastern suburbs of Sydney. The respondent drove to the meeting place in his motor vehicle. On 20 November the undercover operative handed him the sum of $250, for which he received from the respondent in return a small resealable plastic bag containing white powder, which later analysis proved to be 0.71 grams of cocaine of 28.5 per cent purity.

5 On 28 November 2008 the respondent again drove to the meeting place, this time accompanied by a woman who he introduced to the undercover operative as his wife, “Jess”. The undercover operative handed $1000 to “Jess”, and received four small resealable plastic bags of white powder. The powder was 2.9 grams of cocaine, of 31.5 per cent purity.

6 On 17 December 2008 the respondent again drove to the meeting place, again accompanied by “Jess”. The undercover operative again handed “Jess” $1000, and received four small resealable plastic bags of white powder. This also was 2.92 grams of cocaine, of 30.5 per cent purity.

7 The drug supply offences on the Form 1 were committed on 9 January 2009 and 21 January 2009 respectively. On the first date the respondent drove with “Jess” to a pre-arranged meeting place and met the undercover operative. The undercover operative handed the respondent $3000, which the respondent handed to “Jess”. For this the undercover operative received 13 small resealable plastic bags, containing a total of 9.82 grams of cocaine, of 34.5 per cent purity.

8 On the later occasion a similar transaction took place. In return for $3000 the respondent gave the undercover operative 14 small resealable plastic bags, containing 10.57 grams of cocaine, of 29.5 per cent purity.

9 The final Form 1 offence was committed on 16 March 2009. At the request of police (in circumstances to which I will later refer), the respondent attended at Redfern Police Station. He was arrested and cautioned and declined to be interviewed. Police asked him to identify “Jess”. He replied:

“I don’t recall honestly.”

10 In all, the respondent supplied 26.92 grams of cocaine, for which he was paid $8,250. To put the quantity in context, it is worth noting that a traffickable quantity of cocaine is 3.00 grams, an indictable quantity 5.00 grams, and a commercial quantity 250.00 grams.

11 It was common ground that the respondent was operating in his drug dealing at the behest of another man, Richard Buttrose. Buttrose was charged with and pleaded guilty to the supply of a large commercial quantity of cocaine. When arrested he was found to be in possession of the mobile telephone that had been used to contact the respondent, and $1.3 million in cash. $250 of that was identified as the notes that had been handed to the respondent (or to “Jess”) for the purpose of the purchase of the cocaine the subject of the present charges.

12 The respondent was born in November 1960 and was 48 years of age at the time of the offences.

The proceedings on sentence

The respondent’s evidence

13 The respondent gave evidence in the sentencing proceedings. He told the sentencing judge that he had qualified as a plumber, but that a motorcycle accident had caused him significant injury that made plumbing work taxing for him. Nevertheless, he began two plumbing businesses, each of which failed commercially, resulting, on each occasion, in bankruptcy. At the time of giving evidence, in circumstances later to be mentioned, he had been made bankrupt for a third time and that bankruptcy was current.

14 The respondent had, however, always maintained himself except for a period of three months when he had been in receipt of social security benefits.

15 He had mechanical skills, although no formal qualifications in that respect. He described himself as “almost obsessed” by motorcars and motor sport, for all of his adult life. As a young man he had been involved in racing go-carts and it was through this sport, in about 1992, that he met Buttrose.

16 The respondent then became involved in various motor racing enterprises, which brought him into further contact with Buttrose. For the purpose of one of these enterprises the respondent borrowed a large sum of money ($550,000) from one person (unidentified in the evidence) and $100,000 from Buttrose. That venture also failed. The respondent was able to repay part of the $550,000, but had not been able to repay the $100,000 owed to Buttrose.

17 Buttrose frequently asked the respondent to repay the money, but the respondent was unable to do so. From time to time he supplied Buttrose with items such as tyres for his vehicle. The respondent said that in early 2008 Buttrose told him that he was selling cocaine to friends. The respondent took this to mean that he was supplying on a small scale to a narrow circle, but was nevertheless shocked and advised him to cease. He said that he initially became involved when Buttrose asked him to deliver a package to a friend. The respondent asked what it contained, Buttrose told him that it was cocaine, the respondent refused, and the two argued. He said that he weakened, however, conscious of the debt to Buttrose that he was in no position to repay. Subsequently, he said, Buttrose applied some pressure to him by reminding him that “I’ve done you favours in the past”, and mentioning the $100,000 debt. He said that he “despised” being involved in the supplies.

18 He said that he passed all the money given to him by the undercover operative to Buttrose, and received nothing for himself.

19 The telephone on which the undercover operative contacted him belonged to Buttrose, and was used only for the purpose of the drug dealing activities.

20 In answer to questions asked by the sentencing judge, the respondent said that he had, on perhaps a dozen occasions, sold cocaine to purchasers other than the undercover operatives. He said this was not a regular occurrence. The respondent said that he tried at every opportunity to extricate himself from his involvement; at times he and his de facto wife stayed with friends or relatives to avoid unannounced visits by Buttrose.

21 Eventually, on 4 February 2009, they travelled to the Northern Territory to participate in a long charity bicycle ride. He said that he intended to use that as a cut-off point to tell Buttrose that he would no longer engage in the drug activities. It was while he was in the Northern Territory for this purpose that he was contacted by police, and advised of their interest in his activities. He maintained contact with police, returned to Sydney, and presented himself at Redfern Police Station on 16 March 2009, where he was arrested and charged. It was then that he told police that he could not recall the identity of the woman who had been a passenger in his car at the time of the second and third supplies, constituting the third Form 1 offence. He declined to be interviewed. (Detective Sergeant Sweeney gave evidence that he had earlier, on 27 February, been arrested, but what followed from this arrest is not clear.)

Other evidence

22 A number of references and testimonials were in evidence. These included two of particular note. They attested that the respondent had become involved in a charitable foundation proposing to institute programmes of driver education for young drivers, with particular emphasis on halting the number of road deaths among P-plate drivers.

23 Detective Sergeant Sweeney was called by the Crown in the sentencing proceedings, apparently at the request of the applicant’s legal representatives. The Crown representative asked him about the contents of an intercepted telephone call, in which it was (it seems) recorded that the respondent said:

“Well he can, because he’s the one that – he’s the boss. We buy them off him. I paid 200 so I’ve got to sell them for 250.”

Left unexplained, that would call into question the respondent’s evidence that he derived no financial reward for his engagement.

24 Senior counsel for the respondent objected to the question and it was then withdrawn. However, the issue was raised subsequently in cross-examination of the respondent, when he implicitly acknowledged the accuracy of the recording, but said that he had been told, by Buttrose, to say that because “these people” [the purchasers] “would try and scam me and get it for nothing”. He maintained that he had received no financial benefit from the transaction.

25 Also before the sentencing judge was a Pre-Sentence Report and a psychiatric report prepared by Dr Olav Nielssen. They disclosed the following.

26 The respondent was (as mentioned above) born in 1960 and was 48 years of age at the time of the offending, 49 at sentencing. His criminal record was limited to traffic offences, and two counts of passing a valueless cheque, in respect of each of which he was fined $100 and ordered to pay compensation.

27 He is the eldest of three siblings, born and raised in Sydney, in a stable family. Both parents died of cancer, in 1999 and 2002 respectively, and this was a significant and continuing bereavement. The respondent maintains close contact with his siblings. In about 2008 his sister was diagnosed with cancer. This was devastating for him and the family.

28 The respondent has been married once, the marriage failed and he has been in a relationship with “Jess” – whose real name is Julie – for about 19 years. They have no children.

29 Dr Nielssen diagnosed the respondent as suffering from major depression and assessed him as having been depressed at the time of the offences and vulnerable to the pressure placed on him by Buttrose. Dr Nielssen considered him to be of low risk of future offending. He gave as reasons for that assessment the respondent’s age, prior good character, absence of any prior history of anti-social conduct, or substance abuse, and what Dr Nielssen judged to be genuine remorse.

The Remarks on Sentence

30 The Remarks on Sentence are lengthy, extending over 30 pages of transcript.

31 The sentencing judge recounted the facts of the offence, drawn from the agreed statement.

32 He noted that an essential ingredient of an offence against s 25A(1) is that the supply is for “financial or material reward”. He observed that, while in the majority of cases prosecuted under s 25A(1), that is of no real moment, on the facts of this case, the question required real consideration. He began by referring to the evidence of the intercepted telephone conversation (see above), and the respondent’s explanation.

33 His Honour expressly accepted the respondent’s evidence that he did not receive any monetary benefit from the sales – that all money received was passed on to Buttrose. He appears, without saying so expressly, to have accepted the respondent’s explanation of the telephone conversation. [The respondent’s evidence receives some support, by inference, from the evidence given by Detective Sweeney: that evidence was that some of the notes given by the undercover operative were among the cash located in Buttrose’s possession. The sum was $250, the precise sum paid in respect of the first transaction.]

34 Later, after recounting the respondent’s personal circumstances, his Honour returned to the question of “financial or material reward”. He seems to have done this because, on the findings he had made, accepting the respondent’s denial of having received any money for his participation, there existed in his mind some doubt about whether that element of the offence had been made out. If there were no “financial or material reward” there would be doubt about the integrity of the respondent’s plea of guilty. In this context, his Honour referred to the evidence of the respondent’s failed business ventures and the debt of $100,000 owed to Buttrose. He found that the “financial or material reward” was established in the following way:

“Mr Buttrose at a crucial point reminded Mr Pickett, when he was resisting continuing involvement in the supply of drugs on Mr Buttrose’s behalf, that he still owed him the $100,000, a quite undisguised but subtle reminder of the fact that the offender was in his debt, and that he could not in those circumstances reasonably refuse to continue to supply the drugs.

It is essentially that evidence which is relied on and I accept that the evidence, in view of the adherence of the offender to his plea, amounts to a financial or material reward. In an undefined but nonetheless influential way, he continued to agree to supply the drugs, and in particular in the occasions in question, because he was persuaded, although he did not regard the supply of drugs in any quantifiable sense as reducing the debt, that nonetheless it did offer some relief from the pressure which was on him to repay the loan, and at least it involved a delay in any attempts that Mr Buttrose might make, to actually recover the money. Therefore he did undertake these transactions for material reward in that very vague and ill-defined sense.” (ROS 13-14)

35 His Honour dealt extensively with the evidence concerning the respondent’s personal circumstances and recorded, essentially, the history I have set out above. He made specific observations concerning the relationship between the respondent and Buttrose, and accepted, on the evidence given by the respondent, that he had more than once changed his address in order to avoid Buttrose, and that he had embarked upon the bicycle marathon for the purpose of putting himself “entirely beyond the reach” of Buttrose. He said:

“Somewhat ironically, while he was on the marathon he was contacted by the investigating police from Sydney and asked to return to Sydney for the purpose as it turned out of being interviewed concerning these offences and ultimately being charged.” (ROS 17)

(The “somewhat ironically” may seem a little opaque. During the course of the appeal it was suggested, by senior counsel for the respondent, that his Honour considered it ironic because he accepted that, by that time, the respondent had ceased his drug dealing. For my part, I see no reason not to accept that interpretation. His Honour expressly accepted that there was “comprehensive rehabilitation”, because the respondent had voluntarily ceased his dealing activity and extricated himself from involvement with Buttrose.)

36 His Honour then turned his attention to s 21A of the Sentencing Procedure Act, initially s 21A(2) which identifies aggravating features which a court is obliged to take into account on sentencing. He found the respondent’s previous convictions to be “of relatively minor consequence”, and to have no connection with the current offence. He found, pursuant to s 21A(2)(e), that the offence was committed in company (with “Jess”) (it seems that “Jess” was not present at the first s 25A(1) supply, but that is of no moment.) He found that “Jess”’s role was “of a very minor kind”, and that her presence could not have had any aggravating effect on the commission of the offence. He found, for the purpose of s 21(A)(2)(m), that the offence involved a series of criminal acts, but correctly recognised that a series of criminal acts is intrinsic to a s 25A(1) offence – there is no s 25A offence in the absence of a series of at least three criminal acts. It is that very circumstance that constitutes the offence. By reason of the suffix to s 21A, that circumstance could therefore not be taken into account as an aggravating factor (and, as I read the Remarks on Sentence, although it was mentioned, it was not). Finally, he found, pursuant s 21A(2)(o), that the offence was part of a planned or organised criminal activity – that activity being Buttrose’s substantial enterprise. He added, however, that the respondent was not part of the planning and that he merely complied with directions given to him by Buttrose, and that, therefore, the fact that the respondent’s offence was part of such activity was “not a matter of significant aggravation, if any” in sentencing him.

37 He then dealt with the relevant mitigating factors identified in s 21A(3). He held that the respondent was “and remains” a person of good character “with the exception of his involvement in these offences”. Pursuant to s 21A(3)(h), he found “with some conviction” that the respondent was unlikely to re-offend; he held, for the purposes of s 21A(3)(i), that the respondent’s prospects of rehabilitation were good (although he doubted the meaningfulness of that in the respondent’s case because, apart from these offences, there was nothing that called for rehabilitation). He accepted “without question” that the respondent had expressed remorse (s 21A(3)(j)).

38 His Honour then dealt with what he called “the general matters”. He acknowledged “the devastating consequences” of the drug trade, and the social policy that dictates significant periods of imprisonment by way of penalty.

39 His Honour made a somewhat elliptical finding concerning the objective circumstances of the offence. It is as well to set out that finding in his Honour’s words. He said:

“Therefore the supply of what, although it fell well short of a commercial quantity overall, was still a significant quantity of an illicit drug such as cocaine, does have a level of objective seriousness which simply cannot be qualified. Having said that I do acknowledge that unlike some cases of this kind the material reward in this case, as I have already acknowledged, was of a relatively ill-defined and unquantifiable kind. This was not a case where the offender either stood to or actually did enjoy some significant financial reward as a consequence of the dealings, in fact quite the opposite. So that in that sense that particular aspect of the objective seriousness of the offence does fall very much towards the lower end. But however serious the offence was from an objective point of view, this is a case which is very much affected by significant subjective considerations. I have already mentioned that at the time of the approaches made by Mr Buttrose the offender was in an unusually susceptible state. He was, on the diagnosis of Dr Nielssen already suffering from depression and (sic) a condition from which according to Dr Nielssen he continues to suffer.” (ROS 21-22)

40 He then acknowledged the long and consistent line of authority in this Court:

“… that offences of the kind, however strong the mitigating factors may be, can only be properly visited with a sentence of full time imprisonment.” (ROS 23)

41 He determined that, absent the plea of guilty, a sentence of 2 years imprisonment would have been appropriate, but that the guilty plea entitled the respondent to a reduction to 20 months. This was a reduction of about 16.5 per cent.

42 He then directed his attention to the question of suspending the sentence, acknowledging that this was not a course that had been urged upon him by senior counsel for the respondent, and that such a course would be appropriate only “in the most exceptional circumstances”. Ultimately, he determined that this was such a case. In support of that conclusion, he said:

“First of all this is a case which for reasons that do not require any further elaboration does not call for any sentence by way of specific deterrence. The offender is entirely aware of the seriousness of the offences he committed, he is entirely remorseful and in my view, sensitive to the social consequences of any involvement in the drug trade. The sentence therefore is not needed for the purpose of bringing home to him those particular matters, but there does remain the question of general deterrence which involves the message which is sent out to the community at large about the seriousness of these offences. In this case I am satisfied that, is achieved by the imposition of the sentence which I propose to impose and that, cancelled by suspending the sentence does not remove entirely the element of general deterrence. Furthermore there are other considerations in my view which make this an exceptional case.

First of all the age of the offender. He is a man who has, admittedly with conspicuous lack of commercial success, gone about his life in an entirely industrious and lawful way and he now is very close to fifty years of age … He therefore possesses with him a quite significant number of trade skills which he has employed constructively in his past and it would be hoped have the opportunity to employ in the future.” (ROS 24-25)

43 His Honour then referred to the evidence of the respondent’s participation in the charitable foundation to which I have referred above.

44 He concluded that:

“In those circumstances, a suspended sentence would serve the community far better than placing him in custody, while I recognise that a case has to be made, that this is an [un]usual and exceptional case, I am satisfied that, that has been done and that, as I have just said, the interests of the community would be best served by suspending the sentence.” (ROS 26)


He proceeded to impose the sentence mentioned above, and to order, on conditions, that it be suspended.

The grounds of appeal

45 Four grounds of appeal were pleaded. They are:

“Ground 1: His Honour erred in assessing the seriousness of the offence.

Ground 2: His Honour gave too much weight to subjective features and then recycled these features at various stages of the sentencing exercise.

Ground 3: His Honour erred in finding circumstances so exceptional as to justify a sentence other than full-time custody.

Ground 4: The sentence imposed was manifestly inadequate.”

Grounds 1 and 2

46 Since the Crown argued these grounds together, it is necessary to take the same approach, although they seem to me to raise significantly different issues. The Crown submissions in respect of these grounds began with the observation – complaint – that his Honour did not actually make an assessment of the seriousness of the offence at all.

47 The practice of making an express finding as to where on the range of objective seriousness a particular offence falls is a recent one, and a direct result of the enactment of Pt 4 Div 1A of the Sentencing Procedure Act, providing for standard non-parole periods. Identification of the objective seriousness of an offence has always, of course, been an inherent part of the sentencing process: that is the starting point of sentencing. It has not, however, previously been the practice to pinpoint where on a range of objective seriousness any particular offence sits. It is necessary in the case of offences to which Pt 4 Div 1A applies (which this offence is not), but that degree of specification is not necessary in other cases.

48 In this case, I do not think it is correct to say, as is implied by the Crown submission, that his Honour failed in this respect. His approach would, possibly, not be sufficient for the purposes of a Pt 4 Div 1A offence, but this is not such an offence. It was therefore not necessary to place the offence on a scale or range. His Honour clearly carefully considered the question and recognised that the offence was, objectively, a serious one, its seriousness qualified in a minor way by the modesty of the benefit the respondent stood to obtain. I have above set out the remarks dealing with objective seriousness, and I do not propose to protract this lengthy judgment by repeating those remarks.

49 Senior counsel for the Crown argued that the reference to the supply as being of a quantity “well short of the commercial quantity” masked the commercial character of the offence, and that “repetitious trafficking” is “the gravamen” of a s 25A(1) offence. The latter proposition is correct, but it was clearly, in my view, taken into account. I do not accept the former proposition: it was entirely correct to say that the total quantity of drug supplied (26.92 grams) fell “well short of the commercial quantity” (250.00 grams). That merely meant that, as a commercial enterprise, the scale was relatively small.

50 Senior counsel pointed out that the quantity supplied in the three instances of supply constituting the s 25A(1) offence, and the two Form 1 drug offences, was more than five times the indictable quantity, and that the respondent had admitted to a number of additional supplies, to purchasers other than to the undercover operative or operatives. That, too, is correct, but there is no error in the way his Honour approached this aspect of the assessment of the seriousness of the offence. While the quantity of a drug supplied in the course of committing a s 25A offence is undoubtedly a relevant consideration, prescribed maximum sentences are not graduated by reference to quantity, as is the case with respect to supply offences under s 25. As senior counsel had earlier pointed out, it is the element of repetition to which s 25A is directed. Quantities often will be relatively, or even very, small, but the activity of the offender indicates a course of conduct, a commercial enterprise, at which s 25A is targeted. This is why the maximum sentence is 20 years, while supply of less than the commercial quantity prosecuted under s 25 carries a maximum penalty of imprisonment for 15 years.

51 Senior counsel then took issue with the approach taken by the sentencing judge to the question of “financial or material reward”, arguing that the respondent benefited (financially) by the delay of Buttrose’s attempts to recover the debt of $100,000, and that to find, or suggest, otherwise was an error.

52 I would reject this. His Honour was correct to describe the “financial or material reward” (to the respondent) as “relatively ill-defined and unquantifiable”. The respondent was in no position, no matter how much pressure was applied by Buttrose, to repay the debt to him. Any attempt by Buttrose to recover the money would have been futile. Delaying any such attempts might have alleviated the emotional pressure on the respondent, but would have made not the slightest difference to his financial position. On his Honour’s findings, the “financial or material reward” to the respondent was indeed minimal. In those circumstances it was correct to say that in that respect, the objective seriousness of the offence fell “very much towards the lower end” of the range. It is very rare for a drug supplier to be found to be engaged in trafficking for no, or minimal, financial reward.

53 Senior counsel then argued that the sentencing judge allowed the evidence of the respondent’s personal circumstances to overpower the assessment of objective seriousness. A particular argument put was that the sentencing judge erroneously allowed circumstances personal to the respondent to influence his assessment of objective gravity. The submission was put in this way:

“Implicit in the Judge’s finding was that these factors affected the respondent’s … ‘capacity to reason, or to appreciate fully the rightness or wrongness of a particular act, or to exercise appropriate powers of control’. This was, however, not a finding open to the Judge. These were purely subjective considerations.”

54 This, it was argued, ran directly contrary to the construction of “objective seriousness” set out in the decision of this Court in R v Way [2004] NSWCCA 131; 60 NSWLR 168. Way was the decision that defined for sentencing judges the correct approach to be taken to Pt 4 Div 1A of the Sentencing Procedure Act. But the construction of “objective seriousness” is of general application.

55 This Court said:

“84 The sentencing case law is replete with references to objective features of the offence and subjective features of the offender. It has not hitherto been necessary to classify a factor as one or the other. It is now necessary to construe the words ‘objective seriousness’ of an offence.

85 The multiplicity of purposes of sentencing set out in s 3A of the [Sentencing Procedure] Act, quoted above, do not suggest a narrow perspective as to the range of facts and matters that are to be regarded as ‘objective’ facts and matters which may affect the judgment involved in assessing ‘seriousness’. It is too narrow a perspective to confine attention to the physical acts of the offender and their effects, as those acts or effects could be observed by a bystander. The inquiry which we consider to have been intended is one that would take into account the actus reus, the consequences of the conduct, and those factors that might properly have been said to have impinged on the mens rea of the offender …

86 Some of the relevant circumstances which can be said ‘objectively’ to affect the ‘seriousness’ of the offence will be personal to the offender at the time of the offence but become relevant because of their causal connection with its commission. This would extend to matters of motivation (for example duress, provocation, robbery to feed a drug addiction), mental state (for example, intention is more serious than recklessness), and mental illness, or intellectual disability, where that is causally related to the commission of the offence, insofar as the offender’s capacity to reason, or to appreciate fully the rightness or wrongness of a particular act, or to exercise appropriate powers of control has been affected … Such matters can be classified as circumstances of the offence and not merely circumstances of the offender that might go to the appropriate level of punishment. Other matters which may be said to explain or influence the conduct of the offender or otherwise impinge on her or his moral culpability, for example, youth or prior sexual abuse, are more accurately described as circumstances of the offender and not the offence.”

56 I have carefully considered the Crown submissions, and am unable to accept them. I do not accept the initial premise on which they are based: that the judge considered that the respondent’s capacity to reason, or appreciate fully the wrongness of his act, or to exercise powers of control, were affected by his mental (or depressive) condition. All his Honour was saying was that, by reason of his depression and emotional condition, the respondent was more vulnerable to Buttrose’s pressure. Dr Nielssen’s report included the opinion that the respondent was depressed at the time of the offences and in a vulnerable position at that time. The sentencing judge, having referred to some of these circumstances, found that he was “a prime target” for somebody like Buttrose, and that Buttrose took advantage of that; the sentencing judge described him as “in unusually susceptible state”. In my opinion the sentencing judge displayed a clear and full appreciation of the objective seriousness of the respondent’s offence and took into account appropriately (having regard to para [86] of Way) the respondent’s mental state. I would therefore reject ground 1 of the appeal. Ground 2 is, however, a different matter.

57 The sentencing judge regarded “the significant subjective considerations” as very important, and balanced them against the objective seriousness, with a result strongly favourable to the respondent.

58 The Crown argued that the “subjective features” were used at three stages of the sentencing exercise, resulting in “triple dipping”. The three stages in which it asserted this occurred were:

● in assessing (and for the purpose of reducing) the assessment of objective gravity (I have already indicated that I do not accept that there was error in the assessment of objective gravity);

● to reduce the overall sentence;

● to find exceptional circumstances enabling suspension of the sentence.

59 It is perfectly legitimate to use personal circumstances in the determination of the overall sentence although, of course, they must not be used as a vehicle to reduce the sentence to one that is unacceptably low having regard to objective seriousness. It is the balancing of objective seriousness against subjective considerations that is the key to successful sentencing practice. It is useful to recall the discussion in Markarian v The Queen [2005] HCA 25; 228 CLR 357.

60 There is no identified or identifiable error in the sentencing remarks concerning the respondent’s personal circumstances. Whether excessive weight was accorded to those circumstances can only be determined by inference – the basis for the inference being that the sentence imposed was manifestly inadequate. In circumstances where patent error cannot be identified, a ground framed as ground 2 is framed is merely an inverted way of claiming manifest inadequacy, and an attempt to explain, hypothetically, how that manifest inadequacy came about. It is not possible to decide ground 2 without first deciding ground 4; when ground 4 is decided, it is hardly necessary to decide ground 2.

61 In respect of this submission, two questions arise, and they are encompassed in the third and fourth grounds of appeal. The questions are: firstly, was the starting point of 2 years (reduced to 20 months by reason of the plea of guilty) manifestly inadequate, and secondly, whether or not the starting point was manifestly inadequate, did the order that the sentence be suspended reduce the sentence to one that was manifestly inadequate? These ought to be dealt with under grounds 3 and 4, to which I now turn.

Grounds 3 and 4

62 The Crown also argued these grounds together. In respect of ground 4, the Crown complains both of the length of the sentence, and of the order for suspension.

63 It is well established that drug dealing “to a substantial degree” will, in the absence of exceptional circumstances, demand a sentence of full-time imprisonment: R v Gu [2006] NSWCCA 104; R v Gipp [2006] NSWCCA 115; 161 A Crim R 173; R v Clark (NSWCCA, 15 March 1990, unreported); R v Bardo (NSWCCA, 14 July 1992, unreported); Scott v R [2010] NSWCCA 103; R v Burns [2007] NSWCCA 228; Brown v R; Reid v R [2006] NSWCCA 144.

64 There is no doubt here that the respondent’s involvement in the supply of cocaine qualifies as drug dealing “to a substantial degree”. It would therefore require exceptional circumstances before a non-custodial sentence could be imposed. So much was uncontroversial.

65 I propose to deal, so far as it is possible to do so, firstly with the proposition that the sentence of 20 months (after reduction by reason of the plea of guilty) represents a manifestly inadequate sentence. Although the Crown made that complaint, it did not elaborate, either in written or oral submissions. In particular, it provided no supporting material, by reference to decided cases or sentencing statistics, to establish that such a sentence is manifestly inadequate.

66 In Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 I disagreed (at [283] and following) with the criticism made by Basten JA (at [129] and following) of this Court having undertaken its own research where the researches of the parties were inadequate to enable the Court fully to appreciate the sufficiency of the sentence imposed. That disagreement should not be taken to mean that this Court will, as a matter of routine, substitute its own researches for those of the parties. In many instances the Court will simply not have the resources to take that course.

67 Neither in the submissions of the Crown, nor in such additional researches I have been able to undertake in this case, is there anything that persuades me to the requisite level that this is a case in which a sentence of 2 years (before reduction), and taking into account the objective and personal circumstances, fails to meet the requirements of sentencing principles. In R v Hoon; R v Pouoa [2000] NSWCCA 137 Dunford J noted that s 25A is:

“… directed to the concepts of repetition, system and organisation, and the objective criminality of any offence under the section should be determined by reference to those features, and not merely to the number and quantities of individual instances of supply …”

68 The Crown relied on this passage in support of its contention concerning failure properly to assess objective seriousness. I have rejected that proposition, but the passage remains relevant for the consideration of the adequacy of the sentence imposed to meet sentencing objectives.

69 The evidence suggests a considerable degree of repetition, system and organisation on the part of Buttrose, but considerably less on the part of the respondent, who was, in effect, a messenger at the disposal of Buttrose.

70 In the event, I am not satisfied that a starting point of 2 years was, in the circumstances, manifestly inadequate.

71 A key circumstance, in relation both to ground 3 and ground 4 of the appeal is the finding, in favour of the respondent, that he had voluntarily ceased his criminal activity prior to his arrest. Indeed, he had gone to considerable lengths to do so.

72 In R v Santos [2010] NSWCCA 127, Latham J, with whom R S Hulme J and Giles JA agreed, observed, citing R v Thompson (NSWCCA, 4 April 1991, unreported) that rehabilitation by itself is not an exceptional circumstance (for the purpose of departing from the principle that, in cases of substantial drug trafficking, a full-time sentence of imprisonment must ordinarily be imposed). I accept that established rehabilitation does not necessarily have that effect.

73 There is precedent for the course taken by the sentencing judge, in a case that has significant parallels with the present case. In R v Burns [2007] NSWCCA 228, the respondent to a Crown appeal had pleaded guilty to one charge under s 25A(1), of supplying MDMA (also known as “ecstasy”). A second charge of supplying the same drug was taken into account under Pt 3 Div 3 of the Sentencing Procedure Act.

74 In that case the respondent was sentenced to imprisonment for 2 years, and, as in the present case, an order was made under s 12 of the Sentencing Procedure Act that execution of the sentence be suspended. The Crown appealed on the ground that the sentence was manifestly inadequate.

75 In that case, again like the present, the respondent had voluntarily ceased his criminal activity and had in fact moved interstate in order to separate himself from association with those with whom he had been involved.

76 Harrison J, with whom Spigelman CJ and I agreed, held that:

“27 The voluntary cessation of criminal activity is well recognised as a significant factor to be taken into account by a sentencing tribunal …

29 … First, there is a public policy to be served in providing encouragement to offenders such as the respondent to cease their criminal activities. Secondly, specific deterrence is a matter to be given little or no weight. Thirdly, it provides strong evidence of remorse, contrition and rehabilitation. Finally, in some cases (although not the present case) it may support the proposition that the offence was committed as a result of need rather than greed.”

(I would interpolate that the final factor, not applicable in Burns , has some application in the present case.)

77 In the result, the Court in Burns held that that circumstance was sufficient, together with other circumstances, to take the case into the exceptional category.

78 I would reach the same result in the present case. That being so, I would dismiss the Crown appeal.

79 FULLERTON J: I agree with the orders proposed by Simpson J and with her Honour’s reasons for dismissing the Crown appeal. I do however want to express my own views concerning the adequacy of the evidence relied upon by the sentencing judge to support the finding of exceptional circumstances.

80 Although his Honour was satisfied that the respondent had voluntarily ceased his criminal association with Buttrose prior to his arrest, a matter he apparently took into account in the respondent’s favour in the calculation of sentence, he did not afford that fact the qualitative status of an exceptional circumstance. In fact he did not refer to it in that context at all. This is in contrast to the approach of the respondent's counsel on the appeal where the same fact was accorded primacy such that, in combination with other features of the respondent’s subjective circumstances, it was submitted that the case was properly elevated into the exceptional category consistent with the approach of this Court in R v Burns [2007] NSWCCA 228, to which Simpson J has referred.

81 The fact that his Honour did not refer to the respondent’s withdrawal from further involvement in Buttrose’s business as an exceptional circumstance – a finding clearly open to him – may have been because he was not invited by senior counsel who then appeared for the respondent to find that there were exceptional circumstances warranting a departure from the general rule that a sentence of full-time custody should be imposed where an offender was involved in drug dealing to a substantial degree.

82 In coming to what his Honour described as his own independent judgment on the issue, he referred to a number of matters. The first that there was no need for the sentence to reflect specific deterrence given that the respondent was aware of the seriousness of the offences he had committed and sensitive to the social consequences of involvement in the drug trade to any degree and, further, that in his view an order suspending the sentence of full-time custody was sufficient to address the imperative of general deterrence. In dealing with what his Honour described as “other considerations which make this an exceptional case” he referred to the respondent’s age and his largely constructive work history. While they were both matters to be afforded weight in the respondent’s favour, his Honour did not apparently regard them, either individually or in combination, as sufficient to warrant a finding that the respondent’s case was materially different from what has come to be regarded as the general run of drug supply cases.

83 He did however regard the potential for the respondent to be involved in the future development of a program designed to improve the standard of training of young men prior to being licensed to drive with the objective of educating them about the consequences of dangerous driving practices as a matter of crucial weight. His Honour said:

“According to Mr Oxley, Mr Pickett was to be the principal person involved in the development of this program and, since he has been informed of the charges on which the offender is now to be sentenced, “we have put the program on hold, however we are hoping to restart the program once this matter has been settled”. I am not suggesting that Mr Oxley’s reference is some sort of guarantee of both gainful and socially useful employment and certainly, this Court has no power to ensure that, if he is released, that will be the consequence. However, I am confident from that reference and from other references to this program that there is every likelihood that this remains an opportunity open to Mr Pickett which is not only one of secure employment but also a very significant social dimension which reflects the sort of person Mr Pickett is from all that has been said by his referees.

In those circumstances, a suspended sentence would serve the community far better than placing him in custody, while I recognise that a case has to be made, that this is an [un]usual and exceptional case, I am satisfied that that has been done and that, as I have just said, the interests of the community would be best served by suspending the sentence. I therefore propose to proceed to sentence on that basis…”.

84 While the facts found for sentencing purposes are quintessentially a matter for the sentencing judge, and while I accept that there is no settled category of circumstances that might warrant the appellation of exceptional, I am unable to see how the respondent’s mere potential to make a future contribution to a community youth based program, even if taken in combination with his age and his work history, was of sufficient weight to support a finding of exceptional circumstances such as to justify a departure from the general principle requiring a sentence of full-time custody.

85 However, were his Honour to have taken into account the respondent’s voluntary withdrawal from further participation in Buttrose’s drug business, together with his age and the evidence of his real and established rehabilitation as a one-off offender in the drug trade, and his willingness to make a positive contribution to a charitable program, I share the view of Simpson J that the case was one to be properly regarded as within the exceptional category such that the Crown appeal must fail.

86 R A HULME J: I agree with Simpson J.

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