R v Smith

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: REGINA v. SMITH [2006] NSWCCA 129

FILE NUMBER(S):
No. 2005/1954

HEARING DATE(S): Tuesday 21 February 2006

DECISION DATE: 27/04/2006

PARTIES:
REGINA v. KEVIN SMITH

JUDGMENT OF: James J Simpson J Hall J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/110202

LOWER COURT JUDICIAL OFFICER: Woods, DCJ.

COUNSEL:
Crown: Ms. V. Lydiard
Resp: Ms. A. Francis

SOLICITORS:
Crown: S. Kavanagh
Resp: S.E. O'Connor

CATCHWORDS:
Criminal law - Crown appeal - whether sentence manifestly inadequate - supply of a commercial quantity of ecstasy - principles in relation to the determination of a Crown appeal against sentence in the case of young offender (18 years of age)

LEGISLATION CITED:
Criminal Appeal Act 1912
Drug Misuse & Trafficking Act 1985

DECISION:
Appeal dismissed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2005/1954
JAMES, J.
SIMPSON, J.
HALL, J.
THURSDAY 27 APRIL 2006

REGINA v. KEVIN SMITH

Judgment

JAMES, J: I agree with Hall, J.
SIMPSON, J: I agree with Hall, J.
HALL, J: On 6 October 2005, the Director of Public Prosecutions filed a notice of appeal pursuant to s.5D of the Criminal Appeal Act 1912 in respect of a sentence imposed by the District Court of New South Wales at Sydney on 8 September 2005. On that date, the respondent, Kevin Smith, appeared for sentence on a charge of supplying a commercial quantity of a prohibited drug, methylenedioxymethylamphetamine (“ecstasy”) on 26 October 2004 to which charge he had pleaded guilty.
The respondent was sentenced to imprisonment for a term of two years, with a non-parole period of one year, to date from 26 January 2005. The stated ground relied upon was that the sentence is manifestly inadequate.
Factual circumstances
The charge was one pursuant to s.25(2) of the Drug Misuse and Trafficking Act 1985. The maximum penalty for an offence under that section was imprisonment for 20 years and/or a fine of 3,500 penalty units ($385,000).
The respondent had been committed for sentence to the District Court on 7 March 2005 from the Burwood Local Court.
On 20 May 2005, an application was made to join the respondent’s proceedings with his co-offender Fang Li He. The proceedings were accordingly stood over until 21 July 2005 to be heard with the proceedings against He.
The proceedings were subsequently again stood over on 21 July 2005 to 5 August 2005 and subsequently again until 26 August 2005.
On 26 August 2005, evidence was tendered at the sentencing hearing. The respondent did not give evidence. The proceedings were adjourned until 8 September 2005 for sentence to be delivered on that date.
The sentence
On 8 September 2005, the respondent was sentenced to a non-parole period of 12 months to date from 26 January 2005 and to expire on 25 January 2006 with a parole period to expire on 25 January 2007. The respondent was accordingly sentenced to a total period of two years.
Prior sentences
The respondent had been previously sentenced in relation to three supply prohibited drug charges at the Bidura Children’s Court. The terms of the sentence were as follows:-
Sentence 1: Three months full-time detention to date from 26 October 2004 and to expire on 25 January 2005;
Sentence 2: Four months full-time detention to date from 26 January 2005 and to expire on 25 May 2005; and
Sentence 3: 18 months probation (to be of good behaviour and to follow directions of the Probation and Parole Service, especially in relation to drug and alcohol counselling).
The period of pre-sentence custody served by the respondent in relation to the offence of 26 October 2004 was 207 days commencing on 26 October 2004. However the custodial sentences that he had been given for the three supply charges in Bidura Children’s Court commenced to run from the time that he was arrested for the offence the subject of the appeal.
Factual matters
The following summary of facts is taken from the Crown’s written submissions which were based on the sentencing judge’s findings of fact and were not disputed on this application.
1.A taskforce was directed at suspects in Burwood and Botany.
2.Telephone intercepts confirmed that the respondent was involved in the supply of prohibited drugs in association with He.
3.On 26 October 2004, police undertook surveillance and saw the respondent and He in a motor vehicle and followed them to the McDonalds Restaurant at Strathfield where they parked the car.
4.The co-offender, Chin, approached the parked car and engaged in a transaction from that car.
5.Police then approached Chin and his girlfriend in their car whereupon the girlfriend threw something out of the car window.
6.The “something” was recovered and later analysed to be 160 grams of ecstasy – approximately 500 pink tablets of MDMA embossed with a star.
7.The respondent’s car drove off but was pursued by police and the occupants were arrested driving through Homebush.
The sentencing judge observed that the relevant sequence of events established that the respondent and one or more others were involved as sellers of quantities of drugs, obviously for more senior people in the drug business. His role, it was observed on the facts presented to the Court, was not quite that of a street runner “but he was limited in his capacity to supply drugs” (remarks on sentence, p.1). This finding was supported by a transcript of communications on 26 August 2004 between the respondent and an undercover operative.
In the remarks on sentence, the sentencing judge noted that this transcript of the conversation comprehensively proved the respondent’s drug dealing and that the police had in fact already conducted a few deals, unbeknown to the respondent, with him in their undercover capacity.
The sentencing judge observed in this regard “this of course is not a charge under s.25A of the Drug Misuse and Trafficking Act, but it has something of that quality” (remarks on sentence, p.3). That provision, of course, is concerned with an offence of supplying prohibited drugs on an ongoing basis as specified in that section.
Aggravating factors
The remarks on sentence dealt with aggravating factors in the following terms:-
“In terms of aggravating factors, the offence was committed in company, which is relevant in that it bears upon another aggravating feature, that it was part of a planned organised criminal activity. I should say, however, that it was not very organised; it was not high level. Nonetheless, those are considerations of aggravation.

Mitigating factors
The circumstances of mitigation as recorded in the remarks on sentence were as follows:-
(a)The offence was committed some five days after the respondent had attained his 18th birthday.
(b)The absence of any significant related criminal record (it being noted that the criminal record that he did have was, in effect, related to the sequence of events that gave rise to the episode in the McDonalds carpark on 26 October 2004).
(c)The respondent’s reasonable prospects of rehabilitation.
(d)Remorse or contrition as demonstrated by the early plea of guilty.
(e)That as a juvenile bordering into adulthood, the respondent was not as fully aware of the consequences of his behaviour as he might have been had he been older.
The sentencing judge referred to a psychological report prepared by Mr. Taylor. The report contains background material in relation to the respondent including his migration to Australia from China. The sentencing judge observed that the offences appear to have occurred because of the disruption from his migration as well as from family disruption, all of which had caused him to fall into the “wrong company”.
The ground of appeal – manifestly inadequate sentence
In the written submissions for the Crown, it is submitted that the sentence is manifestly inadequate, the substantial proposition being that the objective seriousness of the offence was so great that the sentence handed down did not reflect the criminality involved.
The Crown observed that the offence carries a maximum penalty of 20 years, the amount involved being not less than the commercial quantity, namely, 0.125 kilograms, and the amount involved, in this case, being 160 grams.
The Crown’s further submissions included the following points:-
(a)This Court has, on occasions, treated the drug as a mid-range drug: Regina v. Bimahendali [1999] NSWCCA 409 at [14]. However, Wood, CJ. at CL. in that case at [17] observed that the best guide is that given by the legislature as to the available penalty, dependent upon whether the drug in question is more or less than the traffickable or commercial quantity prescribed.
(b)In Regina v. Dang [2005] NSWCCA 430, Howie, J., with whom Studdert, and Whealy, JJ. agreed, stated:-
“… this Court no longer approaches the evaluation of the seriousness of a particular supply offence by distinguishing between different types of drugs according to the perceived dangerousness of the drug being supplied. Rather, the Court has stressed that the appropriate consideration is the relevant statutory regime and the maximum penalty prescribed for the offence: Regina v. Nai Poon (2003) 56 NSWLR 284; Regina v. Neale (2004) 138 A. Crim. R. 493.”
(c)Accordingly, in determining the proper penalty, the fundamental consideration is the degree by which, having regard to the maximum penalties provided by the Act, the respondent’s conduct would offend against the legislative objective of suppressing the illicit traffic in the prohibited drug: Regina v. Peel (1971) 1 NSWLR 247 at 252.
(d)The seriousness of the respondent’s offending is to be judged by reference to the relevant statutory criteria and the sentence to be imposed is required to take into account the purposes which sentencing is intended to serve: see s.3A of the Crimes (Sentencing Procedure) Act 1999.
The Crown accordingly submitted that the sentencing judge gave insufficient weight to:-
(a)The elements of both specific and general deterrence.
(b)The legislative intention in relation to these types of offences.
(c)The protection of the community.
The Crown further contended that undue weight was given to the respondent’s subjective features.
The decision in Regina v. Harmouche
In oral submissions the Crown cited this Court’s decision in Regina v. Harmouche [2005] NSWCCA 398. The facts in that case may be shortly stated. The respondent was charged pursuant to s.25(1) of the Drug (Misuse and Trafficking) Act 1985. Between 17 January 2002 and 13 February 2002, he either offered or agreed to supply a total quantity of cocaine in the region of 200 grams. He was on bail at the time of the offence. This is one point of distinction to the present case. The estimated street value of the 200 grams of cocaine was $66,666. The respondent was 19 years of age at the date of the offence, having been born on 14 September 1982. The bail that had been granted on 31 October 2001 related to charges of two offences of supply or knowingly taking part in supply of cocaine. The offence charged under s.25(1) rendered the respondent liable to imprisonment for 15 years and a fine equivalent to 2,000 penalty units.
There were some factual circumstances that were similar to the present case. These included:-
•The respondent’s role as a re-seller, rather than that of a principal or organiser of others or a financier. He was above the level of a street dealer, but, given the fact that the case had proceeded on the basis of a particular amount being supplied, Hulme, J. (with whom Sully and Latham, JJ. agreed) at [34] stated that these facts did not matter much.
•The respondent’s role included the fact that he (or others who were willing to do the same), was an essential cog in the distribution of cocaine to those whose lives it was likely to damage and to the reaping of profits by those who put such profits ahead of the welfare of others and the requirements of the law.
•The offending was not the result of some momentary weakness or temptation. The agreed facts and the transcripts made it clear that the offending involved considered, deliberate criminality, day after day for some time. Again, there is a similarity in this respect to the facts of the present matter.
•There was evidence from forensic psychologists that the respondent had been raised in a fairly dysfunctional home. In this respect, there is again some similarity to the present case.
•The respondent was aged 19 years at the date of the offence and had commenced using cocaine when he was 18 or 19. The respondent was accordingly approximately 18 months older than the respondent in the present case.
In Harmouche (supra), Hulme, J. at [37] referred to Regina v. Peel (1971) 1 NSWLR 247 at 268 in which it was said that “in determining the proper penalty … the fundamental consideration is rather the degree by which, having regard to the maximum penalties provided by the Act in question, the respondent’s conduct would offend against the legislative objective of suppressing the illicit traffic in the prohibited drug”. Hulme, J. went on to state:-
“… where does the respondent’s offending lie in the scale of criminality envisaged by the statutory provision here relevant? Clearly it does not lie at the top. But when regard is had to activity, quantity, knowledge, deliberateness and role, his offending is a long, long way from the bottom of that scale. And this is so even without the aggravating feature of his offending having occurred while he was on bail.”
This Court in Harmouche (supra) held that the sentencing judge was entitled to give some weight to the factors of an early plea, delay and youth but that he had allowed the subjective features of the case to overshadow the seriousness of the respondent’s offence (at [53]). It was observed that very little attention was given to the respondent’s criminality and that the sentence imposed contained no, or almost no, significant element of general deterrence or of retribution. This Court accordingly held that it was manifestly inadequate.
In Harmouche (supra), the Court observed at [69] that apart from the respondent’s activity, his knowledge, the deliberateness and the duration of his offending, his role and the quantity of drugs involved, there were additionally the factors that the offence was part of a planned or organised criminal activity and the fact that it was committed in company. The latter factor, it was thought, may be a necessary component, if not an element of the offence of supply and to that extent it was not a factor which would increase the sentence on account of it. However, the Court noted that it was clear that the company extended further than this and, subject to a specified reservation referred to in the judgment, regarded the s.21A matters in the case, in the context of drug supply, as meriting a heavier sentence than otherwise.
Finally, in Harmouche, the Court stated that the fact that the offence was committed whilst on bail would also lead to an increase in the sentence beyond that otherwise appropriate and in this respect referred to Regina v. Readman (1990) 47 A. Crim. R. 181; Regina v. Chang [2003] NSWCCA 2327 and Regina v. Huynh [2003] NSWCCA 239.
The sentence imposed of two years and six months including a non-parole period of one year and three months, which was directed to be served by way of periodic detention was quashed. The respondent was re-sentenced to imprisonment for a non-parole period of two years and 134 days (or approximately four months) commencing on 8 June 2005 with a balance of term of one year.
Ms. Francis of counsel, who appeared on behalf of the respondent contended that the following were important points of distinction between Harmouche and the present case:-
•The amount of drugs was higher (in the “region” of 200 grams of cocaine).
•The fact that Harmouche was on bail at the time of the offence in question, whereas in this case the respondent had no criminal record.
•The fact that he had been charged some months before with unrelated matters (the charges, however, were later dismissed).
•The role of the offender, Harmouche, was said to be higher and that there was a degree of sophistication in his offending.
The objective seriousness of the offence in this case received limited reference in the remarks on sentence beyond the extract set out above. In that respect, reference is made in particular to the following:-
•The assessment of the respondent as not quite a street runner but a seller for more senior people with a limitation on his capacity to supply drugs (p.1).
•That the commercial amount of the drug and the nature of it was the centre of the charge (p.2).
•The transcripts of the conversation with the undercover operative comprehensively proved his drug dealing and his involvement in the earlier transactions.
•The aggravating factors included the fact that it was part of a planned or organised criminal activity but that it was not a very organised one and it was not at a high level.
If consideration was in fact given to maximum penalties provided by the Act and the respondent’s conduct offended against the legislative objectives, then such consideration is not reflected in the remarks on sentence. Nor is there reference to the issues as to the deliberate nature of the offending nor to the factors relevant to general and specific deterrence, having regard to the nature of the offence under s.25(2).
Whist a judgment of this Court in one case does not set a standard to be applied in like cases, it is of course relevant in evaluating the criminality in similar cases involving young offenders who traffic in prohibited drugs. The Court in Harmouche did consider a number of important factors relating to young offenders who are involved in the re-selling of prohibited drugs as essential participants in organised drug trading. This Court has emphasised the importance of consistency in sentencing and it is therefore important, in my opinion, to identify relevant factors and the approach to be taken in cases of the kind here in question. Cases involving drug trafficking, generally speaking, require the imposition of sentences that properly give effect to considerations of general and specific deterrence and whilst there will, of course, in appropriate cases be room for leniency where the circumstances warrant it, that will only arise after due and proper consideration and weight has been given to the objective seriousness of the criminality involved in the offending conduct.
Principles in relation to the determination of a Crown appeal against sentence
The principles in relation to the determination of Crown appeals against sentence are well-known and have been summarised by Wood, CJ. at CL. in Regina v. Wall [2002] NSWCCA 42 at [70]. The principles may be shortly stated as follows:-
(a)The normal restriction upon appellate review of the exercise of a discretion as set out in House v. The King (1936) 55 CLR 499 applies to Crown appeals against sentence.
(b)Appeals by the Crown should generally be rare and unless there is a clear error of principle identified, it should be exceptional for the Court to interfere.
(c)A Crown appeal against sentencing is concerned with establishing matters of principle but the power extends to doing what is necessary to avoid any manifest inadequacy or inconsistency in sentencing, that is, where the sentence is definitely outside the appropriate range for the case in hand.
(d)The Court has a lively discretion to refuse to intervene even if error has been shown, and in deciding whether to exercise that discretion, it should have regard to the double jeopardy that a convicted person faces as a result of a Crown appeal.
(e)The sentence which is imposed as a consequence of a successful Crown appeal will generally be less than that which should have been imposed by the sentencing court and more generally be towards the lower end of the available range of sentence.

The respondent has submitted that there is no error of principle involved in the sentence determination in this case and that being so, it would be exceptional for this Court to interfere and on any basis this case cannot be said to be an exceptional one.
In the respondent’s submissions, three matters in particular were identified:-
(a)The sentence is to be read as incorporating a 25% discount for an early plea of guilty. On that basis, this gives rise to a starting point in excess of two years and six months.
(b)Additionally, bringing into account the period spent in custody from the date of arrest on 26 October 2004, the sentence represents an overall starting point of greater than two years and nine months full-time imprisonment.
(c)The sentence was ordered to be served cumulatively upon a three month control order imposed in the Children’s Court for an offence of supply prohibited drugs.
Each of these matters are important in determining whether this Court should intervene.
The respondent also argues that the sentencing judge was entitled to have regard to subjective matters including, in particular, the respondent’s age and the fact that he was a juvenile when he had committed the earlier offences. That is undoubtedly so.
In addition, I accept that other matters which were taken into account, namely, the respondent’s somewhat dysfunctional family upbringing, the fact that he left home at 16 years of age and that there was a basis for accepting that he had reasonable prospects of rehabilitation were all matters to be taken into account in the exercise of the sentencing discretion.
In the respondent’s submissions, the sentence imposed was neither unreasonable or plainly unjust or manifestly wrong nor could it be said to be so disproportionate to the seriousness of the crime as to shock the public conscience. It is contended for the respondent that the sentence imposed fell within the range available to the sentencing judge.
Analysis
Whilst it can undoubtedly be said that the sentence imposed was lenient, the question remains as to whether or not appealable error has occurred in the exercise of the sentencing judge’s discretion or, alternatively expressed, whether the sentence was so low as to be manifestly inadequate.
In resolving this question, I consider the following matters to be relevant:-
•The seriousness of the offence under s.25(2) of the Drug (Misuse and Trafficking) Act 1985 warrants a sentence which properly recognises the criminality involved. Sentencing in respect of such offences must give effect to principles of general and specific deterrence for the reasons stated in Harmouche.
•The relevant circumstances which the sentencing judge was required to consider in terms of objective criminality and subjective factors would, I believe, indicate that a non-parole period of 12 months and a balance of term of 12 months could hardly give effect to the principle of general deterrence.
•The imposition of a one year non-parole period with a balance of term of one year, notwithstanding that the respondent was barely 18 at the time of the offence, can hardly represent the taking of a very firm stand against the evils of the drug trade. It has frequently been recognised that courts, including this court, must take a very firm stand in sentencing for drug offences: Regina v. Collins [2000] NSWCCA 236 at [15]; Regina v. O’Brien & Anor (CCA, unreported 23 August 1989); Regina v. Wong & Ng (1988) 39 A. Crim. R. 1 at 3.
•Whilst I consider the sentence to be manifestly inadequate, nevertheless, having regard to the constraining principle (e) derived by me from Wood, CJ. at CL. in Wall (supra), the sentence which this Court should impose if it were to re-sentence would be no longer than a few months more than that imposed by the sentencing judge.
A further factor that must be brought into account is the fact, as previously stated, that the non-parole period of one year imposed upon the respondent expired on 25 January 2006. The affidavit of the respondent sworn 16 February 2006 establishes that the respondent has been released from custody and that since his release he has commenced work as a waiter four days a week and the respondent has stated that he has not had any contact with any former associates. Although, in some cases, the circumstance that the respondent to a Crown appeal is no longer in custody will not prevent the Crown appeal from succeeding, in many cases it is likely to be of some importance in the exercise by the Court of Criminal Appeal of its residual discretion.
In Regina v. MD, BM, NA, JT [2005] NSWCCA 242, the Court at [106] stated:-
“Of particular significance to the determination of the appeal is the fact that, because he was taken into custody on 3 January 2003, JT’s sentence expires on 3 October 2005. In these circumstances, if the appeal were upheld and he were to be re-sentenced, any further term would impose a significantly greater burden on him than if a longer sentence had been imposed initially. This is a very significant matter to be weighed in the exercise of discretion where the respondent is a young man of no prior convictions serving his first sentence in custody. Notwithstanding the gravity of the offence, such an additional punishment could not be justified in all the circumstances of this case.”
Whilst this observation was made in a factual context which is not identical to the present, it nonetheless emphases that given the fact that the applicant has already been released from custody, the Court must have some regard to the significantly greater burden that would be imposed by requiring him to return to custody.
Whilst I am of the opinion that the sentence is manifestly inadequate, the question arises as to whether, in the circumstances identified above, the Court should in its discretion intervene to correct the sentence. I do not consider intervention is warranted in circumstances in which, for reasons earlier stated, the Court would be limited in the extent to which it could increase the sentence and that to do so would impose an undue burden upon the respondent, he having been released from custody.
I accordingly would dismiss the appeal.

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LAST UPDATED: 27/04/2006

[2006] NSWCCA 129

27 April 2006