R v Vera

[2008] NSWCCA 33

New South Wales
Court of Criminal Appeal

CITATION:	R v Claudio VERA [2008] NSWCCA 33
HEARING DATE(S):	6 February 2008
JUDGMENT DATE:	25 February 2008
JUDGMENT OF:	McClellan CJ at CL at 1; Grove J at 2; Fullerton J at 3
DECISION:	Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW - appeal against inadequacy of sentence - supply prohibited drug - neither latent nor patent error found - special circumstances justified - attitude of Crown on sentence
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 Drug Misuse and Trafficking Act 1985
CASES CITED:	House v The King (1936) 55 CLR 499 R v Baker [2000] NSWCCA 85 R v Bezan [2004] NSWCCA 342; (2004) 147 A Crim R 430 R v Ceissman [2004] NSWCCA 466 R v Chad (Court of Criminal Appeal, 13 May 1997, unreported) R v Fidow [2004] NSWCCA 172 R v MD, BM, NA, JT [2005] NSWCCA 342; (2005) 156 A Crim R 372 R v Pilley (1991) 56 A Crim R 202 R v Sharp (Court of Criminal Appeal, 23 March 1993, unreported) R v Wall [2002] NSWCCA 42
PARTIES:	The Crown (Appl) Claudio Vera (Resp)
FILE NUMBER(S):	CCA 2007/4949
COUNSEL:	G Rowling (Crown/Appl) H Dhanji (Resp)
SOLICITORS:	Director of Public Prosecutions (Appl) Nyman Gibson Stewart (Resp)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	06/11/0475
LOWER COURT JUDICIAL OFFICER:	Coorey DCJ
LOWER COURT DATE OF DECISION:	28 September 2007

CCA 2007/4949

McCLELLAN CJ at CL
GROVE J
FULLERTON J

25 FEBRUARY 2008

REGINA v Claudio VERA

Judgment

1 McCLELLAN CJ at CL: I agree with Fullerton J that the Crown did not demonstrate that the sentencing judge committed any error or that this Court should intervene because of any inadequacy. For these reasons I agreed that the appeal should be dismissed.

2 GROVE J: I agree with the reasons of Fullerton J for the order dismissing the Crown appeal in which I joined on 6 February.

3 FULLERTON J: This is an appeal by the Crown pursuant to s 5D of the Criminal Appeal Act 1912 against the inadequacy of a sentence imposed by his Honour Coorey DCJ in the District Court at Campbelltown on 28 September 2007 on a charge that on 2 February 2006 the respondent supplied a prohibited drug, namely, methylamphetamine.

4 On 6 February 2008, the Court dismissed the Crown appeal against sentence. I agreed with that order for the following reasons.

5 His Honour sentenced the respondent to a non-parole period of six months to commence from 19 September 2007 and to expire on 18 March 2008 against a total sentence of two years, also to date from 19 September 2007. The sentence was backdated to account for nine days of pre-trial custody directly referable to the offence for which he stood to be sentenced. The statutory ratio between the non-parole period and the total sentence as provided for in s 44(2) of the Crimes (Sentencing Procedure) Act 1999 was disturbed as a result of his Honour finding that special circumstances existed.

6 The sentence was imposed after a jury returned a verdict of guilty on 5 July 2007. The respondent appeared at trial from a grant of bail and was released to bail after verdict to appear on sentence. He was in custody from 14 August 2006 to 20 December 2006 for an unrelated matter.

The matters in issue at trial

7 The quantity of methylamphetamine the subject of the charge was 19.5 grams. It was found by police at the respondent’s residence following execution of a search warrant. The Crown case at trial relied upon the deeming provision provided for in s 29 of the Drug Misuse and Trafficking Act 1985 such that the respondent was deemed to have the drug in his possession for the purpose of supply unless he was able to prove on the probabilities that he had it in his possession otherwise than for that purpose.

8 The defence case at trial was that the respondent had purchased a quantity of methylamphetamine a few days before his arrest for his own use over a three-week period, that he had used some of the drug over the intervening days and that he had no intention of supplying any part of the remaining drug to others. There was uncontroversial evidence led at the respondent’s trial that he had been a heavy drug user for many years, including photographic evidence of needle marks in both of his arms current at the time of his arrest, the location by police of a large number of used and unused syringes at his premises, and evidence from the respondent’s partner to the effect that she would often see blood in the bathroom after his failed attempts at locating a vein capable of receiving a syringe. The Crown case was, however, that the quantity of the drug was inconsistent with being in the respondent’s possession solely for his own use and that the quality of the drug, analysed at 71 per cent purity, was consistent with it being at least susceptible to being cut with a cutting agent for supply to others. It was, however, also common ground that nothing was found at the search of the respondent’s premises evidencing his involvement in the actual supply of the drug. In particular there were no scales, bags, capsules or cutting agents and the drug was not packaged consistent with being prepared for sale or on-supply.

9 The respondent gave evidence and was cross-examined as to the extent of his use of methylamphetamine in circumstances where he had initially lied to police about having the drug in his possession at all. Otherwise the Crown did not challenge his evidence that he was a user or even that he was a heavy user of the drug.

10 In the course of their deliberations, the jury sought the trial judge’s guidance as to the approach they should take were they satisfied that the respondent was a drug user but not satisfied that the entire 19.5 grams of methylamphetamine was in his possession solely for his own use. The jury were directed that unless they were satisfied on the balance of probabilities that the entire quantity of drug possessed was for the respondent’s own use then a verdict of guilty should be entered. On sentence his Honour remarked that the verdict of guilty was delivered soon after these further directions were given.

The sentence proceedings

11 The Crown Prosecutor, who appeared at trial but does not appear on the appeal, accepted that the verdict reflected the fact that the jury were satisfied that the respondent was a drug user but were not satisfied that the total of 19.5 grams of methylamphetamine was for his own use. In addition, the Crown Prosecutor acknowledged that it would be impossible to quantify what proportion of the drug possessed was for the respondent’s own use and what proportion was for supply to others. For sentencing purposes the Crown was content, it would seem, to emphasise that irrespective of the reasoning inherent in the jury’s decision, consistent with R v Sharp (Court of Criminal Appeal, 23 March 1993, unreported) and R v Pilley (1991) 56 A Crim R 202, the respondent must be sentenced on the basis that he had a prohibited drug in his possession for the prohibited purpose of supply irrespective of the fact that the amount could not be quantified. His Honour was made aware of these decisions in the course of the sentence proceedings. His sentencing remarks referred expressly to them.

12 The respondent gave evidence on sentence that his abstinence from drug use of any kind had been sustained during the period of 18 months prior to his trial, and thereafter during his remand for sentence, and that he was committed to remaining drug free. He gave evidence that he had been encouraged to achieve this objective by an extended course of counselling with Ms Matalon (a consultant psychologist whose report was tendered in the proceedings) together with his own progress in recovering his physical and mental health. Subject only to two admitted relapses in the immediate aftermath to his release in December 2006 (both of which were revealed by the respondent in the course of counselling with Ms Matalon and volunteered in his evidence before his Honour) he had not used drugs. His oral evidence was supported by urinalysis reports. He also gave evidence that he was determined to remain drug free into the future and felt confident that he could achieve this with the continued support of his partner of many years and with the birth of their first child expected in April 2008.

13 He also gave evidence of the improved state of his financial and business affairs as a small restaurateur since being drug free and his desire to maintain the business as a means of providing for his family into the future. Since it was apparently accepted that a period of full-time imprisonment was an inevitable outcome of the sentencing proceedings, evidence was led that the respondent’s de facto wife could only contend with managing the business for a moderate amount of time in his absence. This evidence was a relevant consideration not only in the calculation of the non-parole period but as a matter of contextual significance on the related question as to whether special circumstances existed for disturbing the statutory ratio between the non-parole period and the total term.

The Crown appeal

14 The Crown did not submit either in its written submissions or at the hearing of the appeal that his Honour did other than to sentence the respondent for the offence charged in accordance with R v Sharp and R v Pilley. Neither was it submitted that when sentencing for the supply his Honour was not entitled to have regard to the fact that the respondent also had the drug in his possession for his own use as a factor reducing the objective seriousness of the offending for which he was to be sentenced.

Latent error

15 In its written submissions, the Crown contended that the sentence of two years disclosed latent error by its inadequacy. The Crown further submitted that his Honour failed to give sufficient weight to the objective seriousness of the offence, and had overweighted the significance of the respondent being a drug user at the time of the offending and a recovering drug user at the time of trial and sentence. The Crown also complained that the sentence imposed was an inadequate reflection of the need for the respondent to be punished and for him to be specifically deterred from committing further drug offences given his not insignificant history of offending against the criminal law in general and against the Drug Misuse and Trafficking Act and the Customs Act 1901 (Cth) in particular. Although these submissions were not developed further at the hearing of the appeal they were not expressly abandoned.

16 I am not satisfied that his Honour’s approach to an assessment of the objective seriousness inherent in the offending, or the weight that should be given to the respondent’s drug use in the past, demonstrates error. In R v Baker [2000] NSWCCA 85 at [11], the Chief Justice said:

“The use of terminology such as "sufficient weight" highlights the difficulty for the Crown case. Questions of weight in the exercise of a discretion are matters for the first instance judge. The circumstances in which matters of "weight" will justify intervention by an appellate court are narrowly confined.”

17 Neither am I satisfied that the sentence fails to reflect the joint objectives of either general or specific deterrence. To the contrary, in my view the sentence of two years imprisonment was well within the range of sentences for the offence of supply of this general kind as was reflected in the JIRS statistics tendered before his Honour. In R v Bezan [2004] NSWCCA 342; (2004) 147 A Crim R 430 at [26]-[28], Wood CJ at CL emphasised that it is only where the sentence under review is clearly outside the appropriate range that latent error is to be found.

18 I pause to observe that not only did the Crown Prosecutor submit that in the particular circumstances of this case a sentence of the order of two years would not give rise to error (the case sought to be argued in the Crown’s written submissions on the appeal), in the course of argument before the sentencing judge, when his Honour specifically raised with defence counsel whether a non-parole period of six to twelve months would raise the spectre of a crown appeal, the Crown Prosecutor did not make his views known. While this does not prevent the Crown from seeking to persuade this Court that latent error infected the sentence that was ultimately imposed, were it necessary for this Court to consider the exercise of discretion in the ultimate disposition of the appeal, the attitude of the Crown on sentence would likely have been a matter of some considerable significance (see R v Chad, Court of Criminal Appeal, 13 May 1997, unreported). In the result, since I am satisfied that the Crown has not demonstrated any sentencing error whether latent or not, the approach of the Crown Prosecutor on sentence does not fall to be analysed further.

The finding of special circumstances

19 In its written submissions, the Crown also argued that his Honour was in error in finding special circumstances such as to justify varying the statutory relationship provided for in s 44(2) of the Crimes (Sentencing Procedure) Act or, in the alternative, even if a finding of special circumstances was open, the fixing of the non-parole period at 25 per cent of the total term of imprisonment failed to appropriately reflect the objective criminality disclosed by the offence and that, of itself, this amounted to an error which warranted the intervention of this Court.

20 I am not satisfied the finding of special circumstances was erroneous or that the statutory ratio was unwarranted or unjustified. It is clear that his Honour was satisfied that special circumstances were established primarily by the need, as he assessed it, for the respondent to be subject to an extended period on parole so as to facilitate and promote his continued rehabilitation. It is well recognized that the purposes of rehabilitation are a legitimate basis for a finding of special circumstances where there are positive signs that a longer than usual period of parole is likely to lead to the successful rehabilitation of the offender. In light of all the evidence before the sentencing judge, not least being that the fact that while his rehabilitation was well progressed over 18 months, Ms Malaton observed that as a heavy drug user he would be likely to be vulnerable to ‘cravings and triggers’ to drug use for 36 months after abstinence, a further period of 18 months subject to parole was not only warranted but desirable.

21 On the appeal the Crown submitted that the Probation and Parole Report did not provide a proper evidential basis for the finding of special circumstances given that the author of the report assessed the respondent as unlikely to benefit from supervision by the Service in circumstances where he was supported from within the community and was already accessing treatment. Not only was the report but one source of evidence bearing on the ultimate question, and perhaps, as Mr Dhanji put it on the respondent’s behalf on the appeal, an opinion properly to be read in the context of the author of the report addressing a range of sentencing options, it could not in any sense bind or even confine his Honour’s sentencing discretion.

22 In addition, although he did not refer expressly to it in his judgment, it would also seem likely that his Honour took into account the fact that during the period leading up to the respondent’s trial in July 2007, he was bail refused for four months in respect of another matter for which he was ultimately acquitted. The Crown Prosecutor conceded before his Honour that this four months of custody was a proper matter to be taken into account when deciding whether special circumstances were made out although, of itself, it would fail to satisfy the test for special circumstances as provided for in the authorities.

23 Importantly, for the purposes of the appeal, the Crown Prosecutor advanced no submission at the time of sentence that a finding of special circumstances was not an available finding expressly leaving the question whether they were made out as a matter within the discretion of the sentencing judge. I can find no basis for disturbing his Honour’s finding of special circumstances. For my own part, I find it difficult to conceive of a case more deserving of such a finding. In addition, I do not regard a non-parole period of six months against a total head sentence of two years as being beyond the reach of the sentencing discretion in the circumstances of this case (see R v Fidow [2004] NSWCCA 172).

24 It hardly warrants mention that the Court of Criminal Appeal exercises jurisdiction under the Criminal Appeal Act, relevantly, entitling the Court to correct error. Absent error in a sentence, either identifiable or manifest, this Court will not interfere with the exercise of discretion reposed in the sentencing judge: see House v The King (1936) 55 CLR 499.

25 In R v MD, BM, NA, JT [2005] NSWCCA 342; (2005) 156 A Crim R 372, this Court (McClellan CJ at CL, Simpson and Howie JJ) restated the principles governing appeals by the Crown. They were clearly defined by Wood CJ at CL in R v Wall [2002] NSWCCA 42 and do not need to be repeated. However what was said by Spigelman CJ in R v Baker [2000] NSWCCA 85, to my thinking, does warrant fresh emphasis having regard to the approach by the Crown to the present appeal. His Honour said at [19]:

“The authorities make it clear that Crown appeals should be rare. It may be that the present practice does not reflect that restriction, nevertheless, successful Crown appeals should be rare. This is particularly so with respect to that category of appeals in which no particular error can be identified and the sentencing process and the Crown must rely on an assertion of manifest inadequacy as a basis for a conclusion that some error of principle must have occurred.”

26 I also feel constrained to emphasise the resistance that this Court has often expressed itself subject to when an appeal against sentence involves tinkering (see R v Ceissman [2004] NSWCCA 466 at [8] per Wood CJ at CL). In my view this Crown appeal necessarily invited interference of that very kind.