R v Poulsen

[2002] NSWCCA 108

CITATION:	R v Poulsen [2002] NSWCCA 108
FILE NUMBER(S):	CCA 60678/01
HEARING DATE(S):	28 March 2002
JUDGMENT DATE:	28 March 2002
PARTIES :	Regina v Peter Poulsen
JUDGMENT OF:	Studdert J at 1; Smart AJ at 28

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	01/11/0773
LOWER COURT JUDICIAL OFFICER :	Gibson DCJ

COUNSEL :	D.M. Woodburne (Crown) G.J. Bellew (Applicant)
SOLICITORS:	S.E. O'Connor (Crown) A.J. Law & Co. (Applicant)
LEGISLATION CITED:	Drug Misuse and Trafficking Act
CASES CITED:	R v Thomson & Houlton (2000) 49 NSWLR 383 R v Lo [2001] NSWCCA 271 Cameron v The Queen [2002] HCA 6
DECISION:	See para 27

60678/01

STUDDERT J
SMART A-J

Thursday 28 March 2002

REGINA v PETER POULSEN

Judgment

1 STUDDERT J: The applicant, Peter Poulsen, seeks leave to appeal against a sentence imposed by his Honour Judge Gibson of Queen’s Counsel on 28 September 2001.

2 The offence charged, and for which the applicant was convicted after pleading guilty to it, was an offence of knowingly take part in the supply of a prohibited drug, namely cocaine. The sentence imposed was a term of imprisonment of four years commencing on 28 September 2001. His Honour fixed a non parole period of two years expiring on 28 September 2003, having found that there were special circumstances.

3 The applicant’s offence was one against s 25(2) of the Drug Misuse and Trafficking Act and the maximum penalty for this class of offence was imprisonment for fifteen years and/or a fine of $220,000.

4 The offence was committed on 17 February 2001. Police were patrolling in the Kings Cross area where they observed a vehicle stopped in Earl Street and the applicant was seen in the driver’s seat. There were two passengers in the car. Police approached the applicant requiring production of his licence and when he opened the door to get out of the vehicle a small orange water balloon was observed on the floor of the car. A search followed and thirty balloons were found in a cigarette packet and a further four in the centre console. On analysis, the balloons were found to contain cocaine weighing altogether 6.1 grams. The cocaine had a street value of $2450.

5 The applicant was taken to the police station at Kings Cross where he participated in a recorded interview. He told the police that on the day before his arrest he had obtained the cocaine from a person known as Alfred, one of the people in the car when the police detected the cocaine. He said that during the morning of 17 February 2001 he went out to Marrickville where the cocaine was given to him. He went on to give police details of the journey that took him to Earl Street which it is unnecessary here to relate.

6 The applicant gave evidence before the District Court and admitted that some of his answers given in the police interview were false. Specifically, he admitted he lied about where he went to pick up the cocaine and that he lied when he said he did not know where the cocaine in the centre console had come from. The applicant told the Court in his evidence that he was expecting to be paid, for picking up the cocaine and dropping it off, the sum of $1000.

7 Because of the admitted lies in the interview with the police, and although the applicant was not cross-examined, the judge said he did not know whether the applicant was telling the truth in his evidence. His Honour did not find the applicant to be one of the “top echelon” in the supply of this cocaine found in the car, but that he was involved in the operation “for money and for money alone”, and that was a finding not open to challenge here.

8 The applicant was born on 16 July 1980 so that he was only twenty years of age when the offence was committed and twenty-one years of age at the time he was sentenced. The applicant lived with his parents and the evidence was that his parents were supportive of him, although very disappointed at what he had done. The applicant had had employment with his father who operated a pile driving business and work was available in this activity on an ongoing basis.

9 The probation and parole report before the court was reasonably favourable. From it, it emerges that the applicant had a behaviour problem which led to his suspension from school and he was then transferred to a residential adolescent programme for six months. The applicant left school at the age of fifteen and thereafter worked in various labouring positions. The judge accepted, as the evidence disclosed, that the applicant had been a worker. The applicant’s work record was to his credit. He sustained a significant injury that led to the amputation of the tip of the middle finger of the right hand but, according to the probation and parole report, by the time the applicant came to be sentenced he was fit for work again.

10 The judge found special circumstances, in particular by reference to the applicant’s age and his efforts to rehabilitate himself. Those efforts had involved attendance at Odyssey House. There was a report before the judge that the applicant had attended there on five occasions between 21 August and 18 September 2001 and the applicant’s evidence was that he attended Odyssey House to seek help to avoid drugs and alcohol.

11 It has been submitted on the applicant’s behalf that the sentence imposed was manifestly excessive having regard in particular to these features:

(i) the applicant’s age and prior good character;

(ii) the plea of guilty;

(iii) the expressions of remorse;

(iv) the relatively small quantity of drug involved;

(v) the appellant’s objective criminality,

and in this regard Mr Boulton focused upon the circumstance that this was an offence of a single occasion.

12 In the written submissions, it was submitted that there were errors appearing in the remarks on sentence. The first of these is that his Honour failed to refer to the applicant’s previous good character. It was submitted that it was a reasonable inference to draw from the judge’s failure to refer to this feature of the case that he overlooked it. I do not accept that this is so. The Crown pointed out that the applicant had been convicted for a minor offence of larceny in the Children’s Court. Whether this accounts for the failure to mention the applicant’s previous record or not, I am simply not convinced that the failure to specifically address the record in the remarks on sentence of itself was any indication that the sentencing process had miscarried.

13 The other matter to which attention has been drawn concerns what the judge said about bringing into account the feature that the applicant had pleaded guilty. As to this, his Honour said:

“The plea was entered at an early stage. He entered into a record of interview. He is entitled for the utilitarian value of his plea. It is indeed a plea that was to some extent forced upon him by the circumstances, it was a strong Crown case. But, even taking that into consideration, I am prepared for the utilitarian value of the plea to allow him twenty per cent.”

14 It was submitted that in taking into account the strength of the Crown case when determining upon an appropriate discount for what was described as the utilitarian value of the plea, the judge fell into error.

15 In R v Thomson & Houlton (2000) 49 NSWLR 383, Spigelman CJ, with whom Wood CJ at CL, Foster AJ, Grove and James JJ agreed, said at p 416 paragraph 137:

“In R v Winchester Hunt CJ at CL related the strength of the Crown case only to the contrition element of the leniency in sentencing which a plea of guilty affords an accused (c/f R v Beavan supra at 12). As his Honour put it at 350:
‘The extent to which leniency will be afforded upon this ground will depend to a large degree upon whether or not the plea resulted from a recognition of the inevitable.’
In my opinion his Honour was correct to link the question of the strength of the Crown case only to the issue of contrition or remorse. A ‘recognition of the inevitable’ may qualify the extent of genuine contrition. It does not qualify the utilitarian value of a plea.”

See also R v Lo [2001] NSWCCA 271, and in particular the judgment of Simpson J at paras 2-4.

16 In my opinion, there was error in bringing into account the strength of the Crown case when determining what discount was appropriate for the utilitarian value of the plea. Of course, since the applicant was sentenced, the High Court has considered the rationale for mitigation of sentence appropriate on a plea of guilty. In Cameron v The Queen [2002] HCA 6, Gaudron, Gummow and Callinan JJ held:

“Reconciliation of the requirement that a person not be penalised for pleading not guilty with the rule that a plea of guilty may be taken into account in mitigation requires that the rationale for that rule, so far as it depends on factors other than remorse and acceptance of responsibility, be expressed in terms of willingness to facilitate the course of justice and not on the basis that the plea has saved the community the expense of a contested hearing.”

17 What attracted a discount should be expressed in terms of willingness to facilitate the course of justice. Nonetheless, this factor is a factor to be regarded discretely from the factor of contrition of which a plea may afford evidence. The applicant had acknowledged his guilt at an early stage in the Local Court and had adhered to his plea when he came before the District Court.

18 Whilst the remarks of the sentencing judge in this aspect do technically indicate error, it is to be observed that the discount of twenty per cent was by no means ungenerous. This was not a case of great complexity, such as would have been attended by great difficulty in assembling the evidence, nor would any trial have been lengthy.

19 The Court has been referred to statistics from the Judicial Commission as indicating that the sentence here imposed was at the top of the range. In cases where terms of imprisonment were imposed for supply of cocaine in less than the commercial quantity, all but seventeen per cent received no more than two years by way of either non parole period or minimum term. The sample base, however, was very small. It seems to refer only to six cases, and for my part I do not find it helpful.

20 The Court was today referred to further statistics by Mr Boulton which indicate that for supply in only forty-seven per cent of cases were terms of imprisonment imposed. That is a larger sample of 144 cases. Caution has, of course, to be exercised in assessing sentencing statistics of the type that have been put before this Court.

21 The Crown has submitted that this sentence is at the upper end of the range but that when due weight was given to the objective and subjective features, the sentence is not manifestly outside the range.

22 This submission addresses the nub of this application. I have come to the conclusion, having regard to those matters urged upon the Court by the applicant, that on this occasion this very experienced sentencing judge has fallen into error and that this sentence ought to be regarded as manifestly excessive.

23 As a matter of mathematics before credit was given for the plea, and what that indicated, the starting point must have been a term of over five years. I have concluded that the Court should interfere and that the applicant should be re-sentenced.

24 The Court has received an affidavit by the applicant sworn 17 March 2002. It indicates that the applicant has used his time in prison well, has applied himself to courses. It also indicates that the applicant continues to have the complete support of his family and he receives visits from his mother, his father, his sister and his girlfriend every weekend.

25 This applicant is still a very young man and on the one occasion has behaved very foolishly. There is support outside. There have been already undertaken genuine efforts towards rehabilitation. I am satisfied that there are special circumstances and I would reflect those special circumstances in the structure of the sentence which I am about to propose.

26 To my mind an appropriate sentence in this regard would be a term of imprisonment of three years with a non parole period of one year.

27 I therefore propose that leave to appeal be granted and that the appeal be allowed; that the sentence imposed be quashed and in lieu thereof that the applicant be sentenced to a term of imprisonment of three years commencing 28 September 2001 and expiring on 27 September 2004, with a non parole period of one year, expiring on 27 September 2002. I would, therefore, direct that the applicant be released upon parole on 27 September 2002.

28 SMART AJ: I agree.

29 STUDDERT J: The orders of the Court will be those I have proposed.

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