R v Teuma

[2001] NSWCCA 369

CITATION:	R v Teuma [2001] NSWCCA 369
FILE NUMBER(S):	CCA 60184/01
HEARING DATE(S):	20/9/01
JUDGMENT DATE:	20 September 2001
PARTIES :	Regina Jason Raymond Teuma
JUDGMENT OF:	Giles JA at 1,37, 39; Howie J at 38; Carruthers AJ at 2

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	00/21/0261
LOWER COURT JUDICIAL OFFICER :	Nield DCJ

COUNSEL :	R A Hulme (Crown) P Kintominas (Applicant)
SOLICITORS:	S E O'Connor (Crown) Michael Croke & Co (Applicant)
CATCHWORDS:	Sentencing - appeal against severity - reliance upon JIRS statistics to argue sentence was manifestly excessive bearing in mind only a single episode supply of drugs - applicant said to be a go-between - appeal dismissed.
LEGISLATION CITED:	Customs Act, 1901 Drug Misuse and Trafficking Act 1985
CASES CITED:	R v Bardo (Unreported, NSWCCA, 14 July 1992.) R v Clark (Unreported, NSWCCA, 15 March 1990) R v Ozer (Unreported, NSWCCA 9 November 1993) The Queen v Olbrich (1999-2000) 199 CLR 270
DECISION:	Leave to appeal granted. Appeal dismissed.

- 8 -IN THE COURT OF

CRIMINAL APPEAL

60184/01

GILES JA
HOWIE J
CARRUTHERS AJ

Thursday 20 September 2001

Regina v Jason Raymond Teuma

JUDGMENT

1    GILES JA: I ask Carruthers AJ to deliver the first reasons for judgment.

2    CARRUTHERS AJ: Jason Raymond Teuma seeks leave to appeal against a sentence imposed upon him by his Honour Judge Nield at the Parramatta District Court on 21 March 2001. On that day the applicant was sentenced on one count of supply prohibited drug (deemed), the drug being cannabis leaf, contrary to s 25(1) of the Drug (Misuse and Trafficking Act) 1985, which provides a maximum penalty of imprisonment for 10 years and/or 2000 penalty units. His Honour was asked to take into account two charges on a Form 1, being one count of possess prohibited drug (amphetamines) and one count of goods in custody, being cash in the sum of $3,250.

3    Taking into account the matters in the Form 1, his Honour sentenced the applicant to imprisonment for three years to date from 21 March 2001 and to expire on 20 March 2004, and fixed a non-parole period of one year to expire on 20 March 2002.

4    His Honour initially determined that the appropriate head sentence (putting aside the discount for the guilty plea) was imprisonment for four years. His Honour then discounted that term by 25 percent to reach the ultimate head sentence of three years.

5    The special circumstances which his Honour found to justify variation of the nominal ratio, were the applicant's “hitherto unblemished character”, (this might be thought to be a generous finding bearing in mind a previous conviction for driving under the influence of alcohol) together with the likelihood that he would not re-offend.

6    The applicant was born on 24 April 1974, and at the date of the offence was in full-time employment as a boilermaker.

7    On 25 March 2000, police from North Shore Detectives with the assistance of police from the Hills CIRT Team conducted an operation in relation to information received from a registered informant, in relation to the supply of cannabis.

8    At 5.25 pm that day, the police arrested the applicant in a vehicle driven by him, shortly after he parked the vehicle in the car park at the Bull and Bush Hotel, Windsor Road, Baulkham Hills. The applicant was accompanied by two persons. One named Sam Haddad, and the other Wayne Hammond. In the boot of the vehicle police located three black plastic garbage bags containing a total of 22 heat sealed vacuum packed plastic bags containing cannabis heads. The total weight of the bags and contents was approximately 10 kilograms with a street value of $300,000.

9    The applicant was taken to Castle Hill Police Station where a search of his wallet located two small clip lock bags containing approximately 2 grams of amphetamines. The applicant was later interviewed by ERISP when he made full admissions, stating that he would have received $400 for each bag for his role in the distribution of the cannabis.

10    The applicant also told police that he had taken possession of a total of 25 bags of cannabis the previous day, and that he had dropped off the other three bags earlier on the day of the arrest, although, at this stage he had not received any money.

11    The applicant declined to reveal to police the identification of any other persons involved in the distribution of the cannabis.

12    At the time of the arrest, the applicant was in possession of $3,250 in Australian currency, which the applicant alleged at that stage was money he had earned through legitimate business.

13    The quantity of cannabis leaf is, of course, more than the indictable quantity of 1000 grams but less than the commercial quantity of 25 kilograms.

14    His Honour accepted (correctly in my view) that the Crown was justified in electing to have the matter dealt with on indictment rather than in the Local Court.

15    The applicant gave evidence before his Honour, but maintained his refusal to identify the person or persons from whom he obtained the cannabis leaf, and the place from which it was obtained.

16    Further, he would not identify the person to whom he handed over, or passed on the three bags, to which reference has already been made.

17    The applicant stated in his record of interview that he was obtaining the cannabis for $3,100 a bag and selling it for $3,500 , thereby making a profit of $400 per bag. His involvement, he asserted, was restricted to picking it up, and delivering it.

18    He claimed that he had not outlaid any money to acquire the drugs (an assertion which his Honour specifically rejected) and expected to make a profit of $10,000 in relation to the entire shipment.

19    He said that he got involved in the distribution of the drugs to make or receive a bit of easy money.

20    The applicant implicated Haddad in the events but contended that he merely asked Hammond to accompany him as a back up in case he got into trouble.

21    Counsel for the applicant relies upon the line of authority emanating from this Court to the effect that where an offender is involved in supplying prohibited drugs on only one occasion, he or she does not fall within the ambit of the principle laid down in R v Peter Michael Clark (Unreported, NSWCCA 15 March 1990) and other cases, namely that only in exceptional cases which someone who was involved in trafficking to a substantial degree be able to avoid a full-time custodial sentence. See R v Ozer (Unreported, NSWCCA 9 November 1993) and R v Bardo (Unreported, NSWCCA 14 July 1992.)

22    However, it is appropriately conceded by counsel for the applicant that a full-time custodial sentence may still result from a single occasion of supply where the detailed involvement of the offender in the preparation and execution of the transaction is such as to mandate a gaol sentence. (See Ozer at page 5).

23    Counsel for the applicant before this Court submitted that the applicant's involvement was no more than that of a go-between, and did not involve any detailed or elaborate preparation on his part.

24    It is not contended, however, that his Honour fell into appellable error in imposing a full-time custodial sentence, but that the sentence imposed, particularly the head sentence, was manifestly excessive and reliance was sought to be placed on an analysis of comparable sentencing statistics compiled by the Judicial Commission between April 1993 and March 2000.

25    These statistics were said by counsel for the applicant to demonstrate that both the head sentence, and to a lesser extent the non-parole period, were at the upper end of the range.

26    Thus it is submitted, bearing in mind the objective and subjective factors, that his Honour fell into error in imposing the terms which he did. It is submitted that his Honour must have failed to maintain the distinction between single-episode supplies, and supplies involving trafficking, once he decided to impose a full custodial sentence.

27    Considerable care must be exercised in drawing conclusions from statistics relating to the subject offence. Some, but by no means all, of the relevant qualifications were referred to by learned counsel for the Crown in his written submissions. Thus he pointed out that the statistics do not provide information as to important factors such as:

· the quantity of drug involved;

· whether the supply was actual, deemed, or caught by the extended definition in s 3 of the Drug Misuse and Trafficking Act 1985, and

· whether the supply was motivated by financial greed, as opposed to the need to fund a drug addiction.

28    His Honour did not make a specific finding as to whether the criminal conduct of the applicant fell within the concept of a single episode supply. I do not consider that this was an enquiry which his Honour was required to undertake.

29    Although the applicant gave evidence before his Honour, he withheld relevant evidence pointing to the full extent of this criminal enterprise. In certain respects his Honour, understandably, declined to accept evidence given by the applicant.

30    Ultimately a limited factual basis provided the material upon which his Honour was required to determine the seriousness of the applicant's criminal conduct.

31    Taking into account the matters in the Form 1, serious criminal conduct was revealed to his Honour which merited condign punishment.

32    The majority judgment (Gleeson CJ, Gaudron, Hayne and Callinan JJ) in The Queen v Olbrich (1999-2000) 199 CLR 270 provides helpful guidance in this context. In that case the respondent pleaded guilty to a charge of having imported prohibited imports contrary to s 233D of the Customs Act, 1901. The High Court held that the sentencing judge having rejected the respondent's contention that he was merely a courier, was correct to “simply apply normal sentencing principles, taking into account the nature of the offence, the maximum penalty and such other matters which are relevant to an assessment of the objective features of a criminal offence.”

33    At page 277, the majority said:

"We do not accept that the identification of the precise nature of the accused's involvement in an act of importation of prohibited imports is an essential aspect of the sentencing process.
It is understandable that, in order to promote consistency in sentencing, appellate courts, when expressing views about sentences for drug offences, have sometimes categorised the role of an offender, where that is known, in a scheme of importation or distribution. Similarly, sentencing judges who are dealing with several co-offenders may consider such categorisation relevant in differentiating between individuals. However, the utility of such an exercise is necessarily limited by the extent to which the material facts are known. What may be a convenient shorthand method of describing the facts of particular cases should not be elevated to an essential task to be undertaken on every case, regardless of whether that is possible or appropriate.”

34    When one adopts this approach to the instant case, albeit this Court is dealing with a different offence, and balances the objective and subjective circumstances, taking into account the Form 1 offences, I can discern no error in his Honour's sentence regime.

35    In the circumstances I would propose, not without some hesitation, that the application for leave to appeal be granted.

36    The appeal in my view, however, completely lacks substance, and I would therefore propose that the appeal would be dismissed.

37    GILES JA: I agree.

38    HOWIE J: I also agree.

39    GILES JA: The Orders of the Court will therefore be that leave to appeal is granted but the appeal is dismissed.

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