R v Preston - [2005] NSWCCA 177

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v PRESTON [2005] NSWCCA 177

FILE NUMBER(S):
2004/2906

HEARING DATE(S): 29 April 2005

JUDGMENT DATE: 29/04/2005

PARTIES:
Regina
Dennis Charles Preston

JUDGMENT OF: Hunt AJA Hulme J Johnson J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/1093

LOWER COURT JUDICIAL OFFICER: Dodd DCJ

COUNSEL:
Crown: W Dawe QC
Respondent: S Conomos

SOLICITORS:
Crown: S Kavanagh
Respondent: SE O'Connor

CATCHWORDS:

LEGISLATION CITED:

DECISION:
See paragraph 31

JUDGMENT:

- 10 -

IN THE COURT OF
CRIMINAL APPEAL

2004/2906
HUNT AJA
HULME J
JOHNSON J
Friday 29 April 2005

REGINA v DENNIS CHARLES PRESTON

Judgment

HUNT AJA: I agree with Hulme J.
HULME J: The Crown has appealed against sentences imposed on the above named Respondent by Judge Dodd on 3 December 2004 in respect of 5 charges. The first charge was that on 16 May 2003 the Respondent sold a firearm, viz. a 9 mm Beretta pistol. The second was that:-
“Between 1 June and 30 June 2003 …(the Respondent) did on three separate occasions supply a prohibited drug namely heroin for financial or material reward.”
The third to fifth charges were in terms similar to the second but relating to different periods which, with some sacrifice of accuracy for brevity, may conveniently be said to have been July, August and September 2003.
The first charge was for an offence created by Section 51(1) of the Firearms Act 1996 and rendered the Respondent liable to imprisonment for 5 years. The remaining four charges arose pursuant to s25A of the Drug (Misuse and Trafficking) Act and each rendered the Respondent liable to imprisonment for 20 years.
The sentences imposed by Judge Dodd were:-
Count 1 – imprisonment for a fixed term of 18 months from 9 October 2003
Counts 2 to 5 – imprisonment for periods of 5 years including non-parole periods of 18 months, all such periods to commence on 9 April 2004
Thus the effective sentence imposed on the Respondent was 5½ years including a non-parole period of 2 years. The sentences reflected a discount of 25% for the utilitarian value of the Respondent’s pleas.
In an account which was not the subject of criticism in this appeal, his Honour summarised evidence before him in the following terms:-
“In summary you offered to supply an undercover police operative with a 9mm Beretta handgun for the price of $3,000 after giving advice that as between it and another handgun, the Beretta would be more appropriate for the purpose of scaring people as opposed to the other firearm which would be more appropriate if shooting someone was proposed. You did not actually supply the firearm to the undercover police operative.
As to the other offences, so far as the offence No. 2 on the indictment is concerned, you supplied heroin on at least 31 separate occasions. The total weight of the heroin supplied during that period was approximately 9.2 grams.
In respect of offence No. 3, you supplied heroin on at least 42 separate occasions. Total weight of heroin supplied was approximately 11.55 grams.
In respect of offence No. 4, you supplied heroin on at least 44 separate occasions. The total weight of heroin supplied was approximately 14.85 grams.
And in respect of offence No. 5, you supplied heroin on at least 69 separate occasions. Total weight of the heroin supplied being approximately 22.65 grams.
The total weight of heroin supplied therefore was in the vicinity of approximately 60 grams or a little less. The amounts involved are respectively from offences No. 2 to 5 $2,980, $4,240, $5,030, and $7,370 being a total of approximately $19,500.”
It should perhaps be added that after the offer referred to in the first of the quoted paragraphs, attempts were made to purchase the firearm referred to. The attempts were unsuccessful. The reference to sale in the first count arises because, pursuant to s 4 of the Firearms Act, “sell” includes offer for sale and conduct negotiations for sale.
Mention should also be made of the form of the charge. Section 25A refers to a person who “on 3 or more separate occasions during a period of 30 consecutive days supplies a prohibited drug”. In this case the terms of the charges referred to “on three separate occasions”. The difference meant that the Crown could have been required to specify which 3 occasions in each month it relied upon and the others ignored as part of the offences. However, even then the other instances of supply could have been used as evidence of the nature of the Respondent’s activities and made the subject of specific charges of supply. Pressed to particularise, the Crown may also have sought to amend.
Given these factors and that the matter proceeded below as it did, this Court should continue on the same basis but I make the point that if the Crown seeks to rely on more than 3 occasions of supply in a 30 day period, it would be better for the form of s25A to be followed.
The Respondent has a criminal history including, in 1991 a charge of receiving in respect of which the Respondent was placed on a recognisance, in 1993 supply of a prohibited drug in respect of which offence a sentence of 3 years including a minimum term of 2 years was imposed and in 1998 possession of a prohibited drug in relation to which the Respondent was fined. Judge Dodd accepted that the possession charge related to amphetamine. The Respondent had given evidence that the supply charge did also but his Honour made no finding in that regard: Judge Dodd correctly remarked that the history, while not in a worst category, was not one which allowed the Court to extend any particular leniency to the Respondent. However his Honour also observed that the Respondent had, on one occasion, successfully completed a 3 years supervised bond and, in 1993 and 1995, successfully completed parole.
The Respondent was born in December 1948. He was living with his parents and a son where he had lived for most of his life. There were no particular difficulties with his siblings or parents who remain supportive. He had a good employment history for at least most of his life and in cross-examination said that he had been earning a couple of hundred dollars a week up until September 2003 in additioin to receiving social service benefits. He also has a son who experiences behavioural difficulties which are of concern and which would seem to have been exacerbated by the Respondent’s incarceration.
The Respondent commenced using heroin in 1996 apparently after a motor cycle accident which left him in chronic pain initially dealt with by medically prescribed morphine or similar drugs. More recently he and his former partner had been using heroin on a daily basis although he told the author of the Pre-Sentence report that he had ceased using heroin some 9 months before his arrest when he commenced participation in a methadone program.
Between then and the time of sentence the Respondent pursued a number of avenues directed to ridding himself of the habit. His Honour accepted that at the time of sentence the Respondent was remorseful, drug free and had reasonable prospects of achieving lasting rehabilitation.
It should be added that the Respondent also told the author of the Pre-Sentence Report that he did not make a profit from his dealing beyond supporting the habits of himself and his partner, who used about the same amount as he did, and his activities amounted to he and a group of drug-using associates being involved in the buying and selling of drugs to each other. He said that he still owed money for drugs supplied.
The report, dated 3 December 2004, also records that the Respondent said that he had not been involved in a relationship with this partner for 2 years previously except for regular contact through their son. Despite this and the Respondent’s statements that he had not used for some 9 months prior to his arrest and the fact the charges of on-going supply related to the period of only four months prior to that arrest, his Honour said that he saw no reason to doubt the Respondent’s evidence of having made no profit. However, the Crown has not challenged this finding and, despite my doubts, I shall assume its correctness.
His Honour characterised the firearms offence as a serious one and one which, absent the plea of guilty, should attract a sentence of 2 years. His Honour went on to say that with the discount for the plea the appropriate time to be served in prison was at least 18 months, going on to impose that period as a fixed term. His Honour seems not to have been conscious of the fact that normally a sentence of 18 months would be divided into parole and non-parole period.
Be that as it may, the result was that the sentences imposed for the four on-going supply charges resulted in the Respondent’s non-parole period being increased by only 6 months. Looked at in another way the effective sentence imposed on the Respondent was that which Judge Dodd imposed as the non-parole period for the ongoing drug supply charges and included nothing for the firearms offence.
Section 25A has been the subject of consideration in this Court on a number of occasions from no later than Smiroldo (2000) 112 A Crim R 47 and including R v CBK [2002] NSWCCA 457 and R v Cheikh and Hoete [2004] NSWCCA 448. While all three cases make it clear that the extent of the business or other operation in the course of which the offence was committed is a very relevant consideration, for present purposes it is perhaps unnecessary to refer to those cases further than to quote one passage from what I said with the concurrence of the other members of the Court in Smiroldo and one from the remarks of Wood CJ at CL in R v CBK. In Smiroldo I said, at [13]:-
“The provisions of the Drugs (Misuse and Trafficking) Act, and other statutes making possession and supply of drugs illegal, have been enacted in the belief that the use of the drugs is harmful and manufacturing and supplying them contributes to this harm. Other things being equal, doubling the quantity is calculated to double the illegal profits for those engaged in such enterprises and, if not to double, at least substantially increase the harm.” When an offender knows the quantity in which he is participating, a fortiori when his earnings or profit are proportional to or vary with that quantity, considerable weight must be given to it in assessing his criminality.”
In R v CBK Wood CJ at CL said, at [56-57]
“…. I wish only to repeat the observations which I made in R v Khaled [2001] NSWCCA 169. Section 25A of the Drugs Misuse and Trafficking Act 1985 was introduced in order to provide a strong deterrent to those who may be tempted to engage in an ongoing trade in drugs. It needs to be clearly understood that s 25A offences are considerably more serious than s 25 offences, as is indicated by the increase in the maximum available penalty.
57. An offender charged with a s 25A offence cannot rely upon an argument that the act of supply was an isolated event. Nor can he expect to receive a sentence of the kind which may be appropriate for a single offence of supply. Significant sentences must be imposed in such cases in order to give effect to the clear legislative intention to discourage the ongoing trade in drugs, which depends entirely upon the availability of a person such as the present applicant.”
Recognition should be afforded also to the fact that the penalty provided by the section is liable to be attracted by conduct which extends over not more than 30 days – a circumstance which provides some indication of how seriously Parliament, in enacting the section, regarded the conduct which it had proscribed. Equally supply outside the 30 day period specified in a charge cannot be part of that offence.
The Respondent elected to continue offending for 4 months, no doubt for the financial benefits he saw in so doing. If as his evidence indicates, he had no ongoing cost of then using heroin himself, these benefits were presumably directed to paying off earlier debts. Furthermore, his conduct in continuing magnified the damage to others his supply was calculated to, or actually caused. In this situation, it was entirely inappropriate for his Honour to have made the sentences for the ongoing supply charges entirely concurrent. Error in the sentencing of the Respondent is apparent.
Although high, the total sentence of 5 years imposed in respect of the on-going supply charges was not outside the legitimate exercise of his Honour’s sentencing discretion particularly in light of the Respondent’s prior conviction for drug supply – c.f. R v Radford [2002] NSWCCA 122 and R v Gordon [2002] NSWCCA 476 where, although there were additional features, head sentences of 6 years were imposed.
Judge Dodd was entitled to find, as he did that there were special circumstances, but they were not such as to justify the disparity between the 5 years full terms and the non-parole periods his Honour fixed. If each offence was serious enough to justify a head sentence of 5 years, it required a substantially greater non-parole period than 18 months. Furthermore, when regard is had to the terms of s25A, the mischief at which it is directed, and to the authorities and considerations referred to in the last few paragraphs, I have difficulty in accepting that 18 months is an appropriate non-parole period to reflect the Respondent’s deliberate decision to offend in the way he did, day after day, for the month the subject of each charge. In saying that, I am not unconscious of decisions in this Court where for offences under s25A involving heroin, non-parole periods of this length or shorter have been fixed.
However, I need not pursue the topic of the non-parole periods further. Considerations of totality and the usual restraints which operate in a Crown appeal will limit the sentence which this Court imposes and make imposition of any higher non-parole period for each offence academic.
On the other hand, if the non-parole periods are not to be changed, at least one of the head sentences will have to be. The course which I think appropriate will lead to a longer effective non-parole period but it is not appropriate to add to that a parole period equal to the difference between 18 months and 5 years.
In saying what I have I do not forget that the mere fact of error in a sentence imposed does not lead to a Crown appeal against that sentence being allowed. However, because the sentence on the Respondent is so far from what it should be, and of the importance to the community in seeing that sentences for drug dealing are not manifestly inadequate this Court should interfere. One cannot but be conscious of the importance afforded in modern sentencing practice, particularly in lower courts, to statistics and prior decisions rather than the application of principle – a fact which adds to the importance of this Court not allowing a manifestly inadequate sentence to stand, particularly one of the magnitude of inadequacy apparent here.
Judge Dodd, as has been said, found that there were special circumstances, that finding was not challenged and I am content to proceed upon the basis of it. I have also had regard to the terms of s21A of the Crimes (Sentencing Procedure) Act but in the circumstances of this appeal do not regard it as necessary to specify the particular factors relevant here.
I turn to the topic of what sentences should be imposed. But for the fact it has now been served, I would have reduced the sentence imposed in respect of the firearms charge to one which reflected the fact that a fixed term could be expected to be less than, and of the order of 75% of, a total term. In this case that should be 13½ months. (Although there has been no appeal by the Respondent, the Court has power pursuant to s7 of the Criminal Appeal Act to reduce this sentence.) As this sentence has been wholly served, I would not alter it but, taking account of totality, I would adopt as the commencing point for the first of the sentences on the on-going supply charges, the date 6 months after the sentence on the firearms charge commenced.
I would leave the non-parole periods of the sentences imposed In respect of each of the on-going supply charges as determined by Judge Dodd but vary the commencing dates of these sentences so as to impose on the Respondent the effective minimum non-parole period which should properly have been imposed upon him. That in my view includes 4 years for the offences of on-going supply, a result which can be achieved by staggering the commencement of non-parole periods so as to begin at 10 monthly intervals. I would leave the total sentences in respect of 3 of these charges as determined by Judge Dodd but reduce the last to be served to 2 years and 8 months. That period represents 37% of the total sentence I propose and 60% of the non-parole period is sufficient in the circumstances of the case, particularly if the Respondent is already drug free.
Accordingly, the orders I propose are:-
1. Appeal allowed.
2.Confirm sentence imposed in respect of count 1.
3. Quash the sentences in respect of counts 2 to 5 imposed on the Respondent on 3 December 2004 by Judge Dodd and in lieu thereof,
4.In respect of the second count sentence the Respondent to imprisonment for a non-parole period of 18 months commencing on 9 April 2004 and a balance of term of 3 years and 6 months, such balance of term to commence on 9 October 2005.
5.In respect of the third count sentence the Respondent to imprisonment for a non-parole period of 18 months commencing on 9 February 2005 and a balance of term of 3 years and 6 months, such balance of term to commence on 9 August 2006.
6.In respect of the fourth count sentence the Respondent to imprisonment for a non-parole period of 18 months commencing on 9 December 2005 and a balance of term of 3 years and 6 months, such balance of term to commence on 9 June 2007.
7.In respect of the fifth count sentence the Respondent to imprisonment for a non-parole period of 18 months commencing on 9 October 2006 and a balance of term of 2 years and 8 months, such balance of term to commence on 9 April 2008.
8.Record as the date upon which it appears that the Respondent will be eligible for release on parole, 9 April 2008.
JOHNSON J: I also agree.

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LAST UPDATED: 06/05/2005