R v Radford
[2002] NSWCCA 122
•28 March 2002
NEW SOUTH WALES COURT OF CRIMINAL APPEAL
CITATION: Regina v Radford [2002] NSWCCA 122
FILE NUMBER(S):
60714/00
HEARING DATE(S): 28 March 2002
JUDGMENT DATE: 28/03/2002
PARTIES:
Regina v Stephen Charles Radford
JUDGMENT OF: Studdert J Smart AJ
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 00/31/0089
LOWER COURT JUDICIAL OFFICER: Coolahan DCJ
COUNSEL:
(A) P R Boulten
(C) D M L Woodburne
SOLICITORS:
(A) Brezniak Neil - Smith & Co
(R) S E O'Connor
CATCHWORDS:
Sentence; supplying heroin on an ongoing basis; applicant running a retail drug supply business trading in small quantities combination of facts and no compelling objective features; reliance on hearsay material in reports; no evidence of prime facts from applicant and no sufficient evidence as to other matters; importance of quality evidence; sentences not excessive
LEGISLATION CITED:
Drug Misuse and Trafficking Act 1985
DECISION:
Leave to appeal against sentence granted. Appeal dismissed
JUDGMENT:
IN THE COURT OF
CRIMINAL APPEAL
60714/00
STUDDERT J
SMART AJ
Thursday, 28 March 2002
REGINA v STEPHEN CHARLES RADFORD
JUDGMENT
SMART AJ: Mr Radford appeals against the alleged severity of a sentence of six years imprisonment with a non-parole period of four years six months for the offence of supplying a prohibited drug (heroin) on an ongoing basis (count 1) and concurrent sentences of a fixed term of 18 months imprisonment on each of two counts of knowingly take part in the supply of a prohibited drug (heroin) (counts 5 and 6). The applicant was convicted and sentenced consequent upon the jury’s verdict after a trial lasting three days in the District Court.
In this Court most attention was concentrated on the sentence of six years imprisonment and the ongoing offence under s 25A of the Drug Misuse and Trafficking Act 1985.
The applicant was the subject of an authorised police undercover operation. The facts are summarised chronologically. On 7 December 1999 the undercover operative went to the applicant’s home at Tighes Hill. The applicant opened the door and appeared to be extremely affected by drugs. A female named Karlee was also there. The applicant produced a small plastic cup which was overflowing with foils and asked the operative how many she wanted. She said, "Two”, handed over money and was given two foils containing 0.39 grams of heroin. This was the first instance of the ongoing offence under s 25A.
Pursuant to an arrangement which the operative made by telephone, she visited the applicant’s premises on 8 December 1999. She saw the applicant in the living room. Karlee who was also there, asked “How many do you want?” The operative replied “two”. Both the applicant and Karlee went into another room, were there for a short time and then Karlee came back and handed the operative two foils of heroin in exchange for money. These facts were the subject of count 5.
On 9 December 1999 the operative again arranged to visit the applicant’s home. The female driver of a Ford Meteor sedan pulled up outside the premises and went into the applicant’s home. The operative knocked on the door. While she was waiting for the door to be opened another female, who was holding her stomach, came up. There was a black racing bike near the doorway. The operative said that the woman who opened the door was unknown to her as was the other woman sitting at a table. Karlee said to one of the girls, “What do you want?” The girl replied, “One”. Foils were in due course produced by the applicant from a black plastic cup. The applicant’s wallet was filled with $50 notes. The operative gave $100 to Karlee who handed it to the applicant. The operative was supplied with two foils of heroin. The woman sitting next to her was also supplied with a foil. These facts were the subject of count 6.
Later on 9 December 1999, by arrangement, the operative again visited the applicant’s home. Karlee answered the door and showed the operative into the living room. There were two males present whom the operative had not seen before. The applicant was also present. Karlee asked the operative what she wanted. The operative stated that she wanted a foil. The applicant went into another room and came back holding a blue plastic cup containing foils. The operative handed over $100 cash to the applicant who gave a foil containing 0.13 grams of heroin to the operative. This was the second instance of supply relied on to found count 1.
On 10 December 1999 the operative visited the applicant’s home. As she was walking towards the home she noticed the bike, which she had seen on an earlier occasion, being ridden past her by one of the girls whom she had previously seen. The girl went into the home. On being admitted to the living room the applicant asked the operative what she wanted and the operative replied “Two foils”. She handed him $200 cash for them. He handed her two foils. This is the third instance of supply relied on to found count 1.
For a reason which does not appear, a search warrant on the applicant’s home was not executed until 15 December 1999. No drugs or drug paraphernalia were found. The applicant was arrested.
The judge found that the applicant “was operating a business from his home in the supply of heroin to whoever wanted it”. The judge said that while large amounts were apparently not being supplied, there were quantities of heroin in foils in the house and there was a significant ongoing business in the supply of heroin by the applicant. The judge correctly stated that the offence under s 25A(1) of the Drug Misuse and Trafficking Act 1985 was serious and called for “a very significant full-time custodial sentence.” It carries a maximum penalty of 20 years imprisonment.
The subject offences were committed while the applicant was on a recognisance imposed upon him in 1997 in respect of the offence of steal from the person.
The applicant was born on 20 February 1964. He has a bad record with many previous convictions spread over many years. It starts in 1978 in the Children’s Court with the offence of break, enter and steal. There are many dishonesty offences, many drug offences and many driving offences. On a varied group of 17 charges he was dealt with in the Petty Sessions Court on 21 June 1983. On two charges of break, enter and steal he was sentenced to 2 years imprisonment. Other punishments were imposed.
In 1986 he was dealt with in the Local Court on nine charges. He was sentenced on each of three charges of possessing a prohibited drug to 12 months imprisonment. In May 1990 he was sentenced to imprisonment with a minimum term of 18 months on two charges of break, enter and steal. On 16 August 1990 he was dealt with for four serious offences. On a charge of break, enter and steal he was sentenced to imprisonment for a minimum term of four years with an additional term of three years. Other offences were taken into account. There were other concurrent sentences.
In August 1991 an appeal was allowed on the basis of incorrect factual findings at first instance, but the applicant was re-sentenced to the same sentences
In 1994 for attempting to escape lawful custody the applicant was sentenced to imprisonment for a minimum term of six months with an additional term of 18 months and to a concurrent fixed term of six months imprisonment for malicious damage.
In August 1997 the applicant was placed on a recognisance to be of good behaviour for three years for stealing from the person. The applicant’s record does not entitle him to any leniency, albeit, that he had not previously been dealt with for the supply of drugs.
The applicant did not give evidence on the sentence hearing. He relied on the report of Dr T Oldtree Clark of 16 October 2000 and that of Ms E Kusch of 30 September 2000.
Dr Clark, a consultant forensic psychiatrist, saw and examined the applicant in prison on 15 October 2000. He had before him the applicant’s criminal record, a statement made by the applicant in relation to his arrest, a copy of the indictment, medical documents received from Cessnock Correctional Centre, and a copy of the applicant’s Corrections Health Medical file. While the applicant’s criminal record and the indictment were before the judge, the other documents were not in evidence before him.
According to Dr Clark, when the applicant arrived at prison he was confused and bizarre; he knew he had been taking a considerable amount of Rohypnol tablets but had stopped taking these some six days before his arrest. He had obtained these by “doctor shopping”. Dr Clark stated that the applicant was transferred to the psychiatric unit of the prison hospital and put on neuroleptics. This was apparently one to two weeks after his arrest.
The applicant told Dr Clark that he went into a psychotic state in his cell, where he could see people walking through the walls, that at night time somehow his body moved out of the place and that he remembered driving around in a car at night time. Dr Clark was told by the applicant that he now knows that this was hallucinatory.
Dr Clark has written that over the applicant’s time in gaol, he has been medicated and has come to have insight into his addiction, so that he has been drug free in gaol.
It is not clear how much of this is history given by the applicant, how much is obtained from the gaol and health records and how much is Dr Clark's opinion. Dr Clark records that the applicant stated that he has now taken up training and is very fit compared to his prior state, that he is determined not to go back on the drugs again, that he knows it has been the ruin of his life and that he has spent far too much of his 36 years in gaol. Dr Clark states that the applicant was (as at 15 October 2000) on quite a small dosage of anti-psychotic medication. Dr Clark has recorded the applicant's personal history, his family history and his psychiatric history.
Dr Clark expressed the opinion that the applicant had developed a paranoid psychosis at the time of his arrest. He records that he is much better now. Dr Clark has also written:
"Whatever the actual cause, at present he has come out of the original psychotic state but he still requires the Risperidal. (sic – Respiridone?) He should stay on this until his future is clearer. He states he is determined, adamant now that he has to do something about his drug addiction.
He has never really done anything much about it in the past and wants to go to a drug rehabilitation centre. This would be an opportune time for him to participate.
The psychosis has shaken him and given him motivation to abstain. Eventually a Naxone programme might suit him when he was been through a comprehensive rehabilitation regime.
He says he has arranged with the drug and alcohol workers at the prison for a place in a rehabilitation establishment. With respect, if the court thinks this suitable, this would now seem to be an appropriate path for him."
As is apparent, so much of what Dr Clark has written depends on what the applicant told him. The applicant did not give evidence so that the prime facts have not been verified by the person who has personal knowledge of them. It is not surprising that the judge thought that the psychiatric report was of limited use.
Ms E Kusch, a psychologist, saw the applicant in prison on 18 September 2000. She had a copy of the indictment, the applicant's statement, a copy of his criminal antecedents, his prison medical file and medical notes from Cessnock District Hospital of 21 December 1999. She obtained and rehearsed a detailed history. As to his mental health she wrote:
"A week after Stephen was incarcerated for the current offences, he was transferred to D Ward, Long Bay Hospital, as he was experiencing visual hallucinations and paranoid delusions. He remained in D Ward for two weeks and was diagnosed with a Brief Paranoid Psychosis. He was prescribed the anti-psychotic medication Respiridone, which he and (sic) continues to take once a day. He continues to see the prison psychiatrist once a month to review his medication and monitor his mental state. Stephen reports no other history of admissions to psychiatric centres nor psychiatric treatment.
Stephen believes he experienced a psychotic episode as a result of drug withdrawal. He also said 'when the hallucinations stopped, I thought that everything I saw was true. It took about eight months to come back to reality and realise what I had seen was not real'.
He is no longer experiencing hallucinations or paranoid delusions and there is no clinical evidence currently of formal thought disorder."
Ms Kusch administered two tests and commented on the results. She found that his intellectual functioning was in the sound average range. She wrote that his results on a personality test indicated that he would be likely to attract the diagnosis of a "Personality Disorder with prominent anti-social and negativistic personality features." She has further written:
"Drug abuse appears to be a major factor in this man's life and has interfered in his ability to reach the normal milestones of a man his age. He made the connection between his drug abuse offending behaviour. He appears to be genuinely motivated to address his drug problems, and has reached the stage where the lifestyle associated with the drug abuse has lost its appeal. Research indicated that individuals with anti-social personality traits reduce their acting out behaviour by their fourth decade of life. He expressed an interest in attending a drug rehabilitation centre and has made a considerable effort to find a programme for which he is considered suitable. It is essential he be given the opportunity to attend such a programme as his committed involvement in such a programme would enhance his prognosis."
She made other recommendations as to steps that could be taken to help rehabilitate the applicant. It was for the judge to assess the validity and bona fides of the applicant's stated desire to reform and overcome his drug problems. That had to be tested. Statements of intention to doctors and psychologists go but part of the way. In the light of his past record it would have been imprudent for the judge to act principally upon statements made by the applicant to Dr Clark and Ms Kusch. The judge needed to have evidence from the applicant.
The applicant complained that the judge either discounted completely or gave inadequate weight to the applicant's mental state. The applicant submitted that while the judge accepted that the applicant did have a psychosis when he was arrested he was not prepared to go any further. That is broadly correct. The applicant complained that the judge made it plain that he was not going to mitigate the sentence because of the applicant's psychotic illness.
The applicant submitted that the uncontradicted evidence of Dr Clark was that the psychotic illness probably pre-dated the applicant's arrest. The applicant asked the Court to infer that the psychosis probably existed during the course of the offending conduct. That involves a degree of surmise. It may be so. The difficulty is that firm evidence was needed to ground the doctor's opinion, not just statements made to him by the applicant. Considerable detail was needed as to when the alleged psychotic state arose and what caused it. Did the applicant cause it by his own drug taking? Further, the Crown pointed to the earlier quoted comment of Ms Kusch that the applicant believed he experienced a psychotic episode as a result of drug withdrawal.
It was submitted that as the applicant was suffering from a psychotic illness during the period of his offending, general deterrence should be given less weight. I accept that general deterrence is usually given less weight when a person is mentally disturbed.
The applicant submitted that because he was hospitalised and had to take anti-psychotic medication, his conditions of incarceration were more difficult and that this should have led to a moderation of the sentence. Counsel relied on the applicant suffering paranoid delusions in gaol including that he believed that he was in danger, submitting that it was being placed in gaol that triggered the delusions. The delusions appear to have been a transient experience. I do not think that the transient nature of the psychosis warrants a moderation of sentence especially if the delusions were consequent on his drug withdrawal.
The applicant relied on the statement on page two of Ms Kusch's report that the applicant was escorted from the Protection Section of the gaol. He complained that this matter was overlooked. There was no satisfactory evidence as to what led to the applicant being placed on protection, how long he had been there, how long he was likely to remain in protection and the conditions he encountered there. They can vary.
The applicant submitted that the combination of mental disturbance and protective custody should have led to a substantial moderation of his sentence. The detailed evidence necessary to sustain that submission was not before the judge.
The judge commented that as to the applicant's intentions regarding the future he had no evidence apart from the hearsay evidence of the applicant to Dr Clark and Ms Kusch. The judge reviewed the reports of Dr Clark and Ms Kusch in some detail. He also referred to a report from the Wollongong Crisis Centre as to a telephone assessment of the applicant and the Centre's preparedness to accept him as an in-patient in their rehabilitation programme.
The applicant complained that the judge seemed to have completely discounted the evidence that the applicant had stated to Dr Clark and Ms Kusch that he wanted to rehabilitate himself. The applicant relied on his efforts to obtain an assessment from the Wollongong Crisis Centre as evidence of his true intentions.
The judge was right to be cautious and a touch sceptical. The applicant had never done much about his drug addiction and rehabilitation in the past and he had been carrying on a drug retailing business. The applicant did not give evidence that he had, or wished to change nor as to the reasons why he had changed and what he proposed to do. The evidence led on this issue was far from convincing. The evidence of the undercover operative indicated that substantial sums of money were involved in the business.
The applicant complained that the judge had refused to find special circumstances and that he should have done so because of his need for supervising drug rehabilitation. The judge was entitled not to be satisfied that special circumstances existed. He was not persuaded as to the applicant's intentions nor as to rehabilitation being likely. It seems that he was not convinced that a parole period of longer than 18 months was necessary or desirable. He did not mention that matter specifically. The judge said: "I am not satisfied on any of the material...presented to me that I should make a finding of special circumstances."
The applicant submitted that the judge said nothing which would indicate that he took into account by way of mitigation any of the applicant's subjective circumstances, for example, his mental state, his desire to rehabilitate himself and his conditions of incarceration. The judge had reservations as to the two former matters; the third matter was not raised and the detail as to it was scant. Counsel did not address the judge on this point.
The applicant submitted that when regard was had to the Judicial Commission statistics and decisions of this Court the sentence was manifestly excessive. He submitted that the statistics revealed that most offenders received a significantly lesser sentence. The cases decided since October 2000 revealed a similar pattern, that is, that most offenders had received a lesser sentence than him. Many of the decisions of this court were either not available or had not been decided when the judge sentenced the applicant on 26 October 2000. Those cases are listed in the Schedule to this judgment.
The judge relied on this Court's decision in Smiraldo (2000) 112 A Crim R 47. He supplied methyl-amphetamine on four occasions during thirty days to an undercover police officer. The sentencing judge found that Smiraldo "was engaged in the business of supplying drugs to whoever might approach him at the garage", and that he, "was involved in small scale, yet systematic drug dealing". Smiraldo had pleaded guilty before a magistrate and received a significant discount. He was 23 years of age. He had good prospects of rehabilitation. His criminal record was relevantly slight with no convictions for drug matters and did not disentitle him to leniency. On the other hand, larger quantities of prohibited drugs were involved and in contemplation. Quantity and the scale of the operation, while relevant to penalty, are not touchstones for guilt under s.25A.
The statistics covering the period from August 1998 to March 2002 establish that there were 99 cases for supply of a prohibited drug on an ongoing basis (heroin). 81 of these people received a full time custodial sentence, and a further five per cent received periodic detention. On further analysis of the sentences, and considering the 80 people who received full time custodial sentences, it appears that the majority of such sentences were in the range of 18 months to 42 months. However, 9 per cent received a sentence of 48 months, 4 per cent a sentence of five years, one a sentence of six years and one person a sentence of eight years. Those statistics related to people who had pleaded guilty and therefore the sentences would have incorporated a discount ranging from, broadly speaking, 10 to 20 per cent. The materials do not disclose whether there were any other applicable discounts nor the other subjective features.
The Crown submitted that in all of the cases and relied upon by the applicant there were pleas of guilty. Many of the offenders were young and there were powerful subjective features.
In my opinion, the statistics show that this case was not outside the permissible range. There are an appreciable number of cases, albeit a minority in the upper part of the range.
In none of the reported cases does there seem to be the combination of facts revealed in this case, namely:
(i)the applicant was operating a significant ongoing business from his home in the supply
of heroin, a top order drug to whoever wanted it. His trade in small quantities was
adjusted to the needs and financial resources of his customers.
(ii)he had a very bad criminal record. His first drug offence was in 1981. He was not entitled
to leniency
(iii)he was on a recognisance at the time of the offences.
(iv)he was a mature man who had had plenty of warnings.
(v)he did not receive the benefits arising from a plea of guilty.
The applicant's subjective features were not compelling. In the end, the issue is whether the sentence imposed on the ongoing offence is outside the permissible range having regard to the applicant's criminality and the subjective features, I do not think that it is. This also applies to the other two sentences.
Having regard to the combination of the facts to which I have referred and the absence of compelling subjective features neither the sentence nor the non parole period exceed the permissible range. I do not think that there are special circumstances which would warrant altering the usual ratio. Error has not been established. While I would grant leave to appeal, because matters of substance have been argued, I would dismiss the appeal.
46. STUDDERT J: I agree. The orders will be those proposed by Smart AJ.
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THE SCHEDULE
R v Carter [2000] NSWCCA 490
R V Tipler [2000] NSWCCA 382
R v Scevola [2000] NSWCCA 440
R v Boardman [2001] NSWCCA 431
R v Savuth Nuth [2001] NSWCCA 318
R v George Patek [2001] NSWCCA 315
R v Khaled [2001] NSWCCA 169
R v Kane Bacon [2000] NSWCCA 549
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LAST UPDATED: 04/04/2002
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