R v Vincent

[2006] NSWCCA 276

CITATION:	Regina v Jamieson Vincent [2006] NSWCCA 276
HEARING DATE(S):	28 August 2006
JUDGMENT OF:	Spigelman CJ at 1, 43; Whealy J at 41; Howie J at 42
EX TEMPORE JUDGMENT DATE:	08/28/2006
DECISION:	Sentence quashed and a new sentence imposed.
CATCHWORDS:	SENTENCING - Crown appeal for manifest inadequacy - Supply of commercial quantity of prohibited drugs - SENTENCING - Circumstances in which moral culpability of offender involved in actual offence is greater than accessory.
CASES CITED:	R v Vincent [2006] NSWCCA 78
PARTIES:	Regina (Appellant) Jamieson Vincent (Respondent)
FILE NUMBER(S):	CCA 2006/1241
COUNSEL:	J. Girdham (Appellant) P. Boulten SC (Respondent)
SOLICITORS:	S. Kavanagh – New South Wales Director of Public Prosecutions (Appellant) M. Ricci – The Law Practice (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	04/11/1161
LOWER COURT JUDICIAL OFFICER:	Nicholson DCJ
LOWER COURT DATE OF DECISION:	12 May 2006

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2006/1241

SPIGELMAN CJ
WHEALY J
HOWIE J

Monday 28 August 2006

REGINA v Jamieson VINCENT

Judgment

1 SPIGELMAN CJ: This is a Crown appeal against the alleged inadequacy of a sentence imposed by his Honour Judge Nicholson SC in respect of two counts of supplying a commercial quantity of MDMA, commonly known as ecstasy.

2 In an undercover operation two policemen visited the Lady Jane Korean Restaurant which was conducted by the respondent and other members of his family. On two occasions the respondent supplied drugs to the undercover police operatives. On one such occasion the respondent’s brother, Shamus Vincent, was present.

3 His Honour also sentenced Tony Vincent, another brother of the respondent, with respect to two other supply charges and also a charge involving the sale of an unregistered firearm and ammunition. One of the supply charges was being knowingly concerned in count 2 on the indictment presently before the Court.

4 The respondent pleaded guilty and was sentenced in relation to two counts of supplying a commercial quantity of prohibited drugs. Count 1 alleged that on 28 November 2002 the respondent supplied a commercial quantity of MDMA. Count 2 alleged that on 10 June 2003 the respondent supplied a commercial quantity of MDMA. On each occasion the transaction was for 1000 tablets of variable quality. On the first occasion the tablets contained 247.8 grams of MDMA. On the second they contained 326.3 grams. The cost was $16,500 on each occasion.

5 When passing sentence on count 2, his Honour took into account on a Form 1 containing four charges:

(i) supply of 275 grams of MDMA on 8 February 2003;

(ii) deemed supply of 80.7 grams of cocaine on 23 February 2004;

(iii) possession of 0.48 grams of amphetamine; and

(iv) possession of a prohibited weapon, namely a knuckle duster.

6 In relation to count 1 his Honour set a non-parole period of fifteen months to date from 23 February 2004, with a balance of term of five months to date from 23 May 2005.

7 In relation to count 2 (and taking into account the Form 1) his Honour sentenced the respondent to a non-parole period of two years and three months to date from 23 May 2005 with a balance of term of one year and nine months to date from 23 August 2007.

8 I should note that the sentencing regime relevant to the first count required the Court to first impose a head sentence and then a non-parole period. However the second count was committed after the new Act had come into force requiring a non-parole period to be imposed first. No point is taken about this matter but if the Court comes to re-sentence I will need to pay attention to this distinction.

9 His Honour set a total effective sentence of five years and three months with a non-parole period of three years and six months to date from 23 February 2004.

10 Judge Nicholson also sentenced the respondent’s two brothers, Thomas Anthony Vincent (known as Tony) and Shamus Vincent.

11 On 28 January 2005 his Honour sentenced Tony Vincent in relation to three charges with a Form 1. The sentences imposed were:

(i) supply amphetamine at Centennial Park on 10 March 2003, non-parole period of twelve months to date from 23 February 2004 with a balance of term of six months;

(ii) sell unregistered firearm (.357 Magnum), non-parole period of two years to date from 23 February 2005 with a balance of term of one year;

(iii) knowingly take part in the supply of a commercial quantity of MDMA on 18 February 2003 (taking into account the Form 1), a non-parole period of eighteen months to date from 23 February 2007 with a balance of term of eighteen months.

12 The Form 1 contained two counts, namely, supply ammunition and possession of an unregistered firearm (that is the .357 Magnum).

13 His Honour therefore set a total effective sentence in relation to Tony Vincent of six years with a non-parole period of four years and six months dating from 23 February 2004.

14 In relation to Shamus Vincent his Honour imposed the following sentences on 28 January 2005.

(i) knowingly take part in the supply of a commercial quantity of MDMA on 28 November 2002, (this is count 1 on the matters before the Court). He imposed a non-parole period of fifteen months from 28 January 2005 and a balance of term of five months; and

(ii) supply commercial quantity of MDMA on 30 December 2003, non-parole period of two years and six months to date from 28 April 2006 with a balance of term of one year and three months.

15 Accordingly his Honour set a total effective sentence in respect of Shamus Vincent of five years with a non-parole period of three years and nine months.

16 On 24 March 2006, the Court of Criminal Appeal, by a two judge bench comprising Sully J and Adams J, granted Shamus Vincent leave to appeal against his sentence, quashed his sentence and re-sentenced him as follows:

(i) on count 1 (the relevant count for present purposes), sixteen months to date from 28 January 2005 with a non-parole period of twelve months; and

(ii) on count 2 three years and nine months commencing 28 January 2006 with a non-parole period of two years and six months.

17 The successful appeal in the case of Shamus Vincent (see Vincent v Regina [2006] NSWCCA 78) was based on the fact that Nicholson DCJ had indicated a sentence before being told by the Crown that he had made a factual error by stating that the then offender had played any role in the negotiations beyond being present. This Court held that his Honour erred in failing to give some effect to the facts after the correction.

18 Submissions have been made with respect to what has been called an issue of “parity” involving the comparison between the sentences eventually imposed on the three brothers. The comparison with Tony Vincent’s sentences is not particularly material because the circumstances and the nature of the offences differed considerably. However, Shamus Vincent was, as I have indicated involved in the same incident which is the subject of count 1 involving the respondent and he was sentenced for that.

19 No issue of “parity” arises directly on a Crown appeal. Nevertheless, the basis of the Crown appeal is manifest inadequacy and it is pertinent for this Court to bear in mind that, if it decides to uphold the Crown appeal, the issue of parity is relevant when it comes to re-sentencing.

20 The circumstances of the two offences before the Court are set out by his Honour on the basis of an agreed fact sheet tendered before him, as follows:

“[5] From about September 2003, two undercover police operatives began to frequent the Lady Jane Restaurant on a regular basis. There, they met the accused, members of his family and a number of employees. From that time until the time of the arrest a number of controlled purchases of ecstasy took place between the undercover operatives and the offender at that establishment and as well, at his home address in Pyrmont.
[6] The first count in the indictment occurred in circumstances where the undercover operatives attended Lady Jane Restaurant. There they conducted extensive negotiations with this offender and his brother, Shamus Vincent, regarding a purchase of 1000 ecstasy tablets. At the completion of negotiations the offender supplied them with 1000 tablets amounting to 247.8 grams of methylenedioxymethamphetamine. They were distinguished by a four leaf clover motif, the cost was $16,000 and on analysis it was shown that they contained 37.5 per cent of MDMA. That purchase of course was a controlled operation under the authority of the State Crime Command. It was estimated that the street value of the tablets that they purchased was $35,000.
[7] The first offence on the Form 1 occurred next in sequence and it occurred over some time between 4 February 2003 and 18 February 2003. The police undercover operatives and Thomas Anthony Vincent, otherwise known as Tony Vincent, a brother of this offender, negotiated the supply of 1000 ecstasy tablets.
…
[11] On 10 June 2003 police undercover operatives attended the offender’s home. During that visit negotiations took place between the operatives and the offender regarding a controlled purchase of another 1000 tablets. At the completion of the negotiations the offender supplied them with approximately 1000 tablets amounting to 326.3 grams of MDMA displaying an MG motif. Again the costs was $16,500, again the estimated street value was $35,000. On this occasion, the quantity of MDMA was said to be 5.5 per cent. All up then, 3000 ecstasy tablets were purchased at a cost of about $105,000.
[12] On 23 February 2004 the offender was arrested and conveyed to the Sydney Police Station. He was given his rights as to what was then Part 10A rights, placed in custody, escorted them to his home and a property tracing search warrant was then executed. In the course of that warrant 80.7 grams of cocaine with a street value of $18,000 was located in his bedroom and .48 grams of amphetamine and a set of knuckle dusters was also discovered. The street value of the amphetamine is $200.”

21 His Honour’s outline of the objective circumstances was as follows:

“[13] The offender supplied commercial quantities of ecstasy on three occasions and was in a position to supply a substantial quantity of cocaine on another. His supply was to persons who he obviously believed would be on-supplying to others.
[14] I am satisfied the three major actual suppliers that I am dealing with were not isolated instances of his supplying ecstasy to others, believing that it was to be on-supplied. I am satisfied that these offences were part of an ongoing drug distribution network operating from the Lady Jane Restaurant.
[15] Methods were in place to minimise the chances of his detection and arrest. There were levels of planning and of system. In that sense the operation was sophisticated. I am satisfied the profit to this offender from the sale of drugs was substantial. The 80 grams of cocaine is an indictable amount but less than the commercial quantity which was 250 grams. This would represent about one-third of that. It does, however, constitute a deemed supply. There is no attempt to contest the proposition that its possession was for the purpose supply.
[16] I am satisfied beyond doubt it was possessed for the purpose of supply. The significance of this is that the possession of this cocaine demonstrates the willingness of this offender to deal in more than one form of illicit drugs for gain.
[17] The possession of a prohibited weapon, namely, a knuckle duster is a concern. One cannot help but associate its possession with the drug trade going on, that is that this was not a weapon possessed for personal protection but rather one for enforcement.
[18] The matters I am dealing with demonstrates drug dealing from a period from November 2002 to February 2004, a period of some fifteen months.”

22 His Honour also set out subjective matters with respect to the respondent. It is unnecessary to repeat his Honour’s observations in this respect. There is no relevant issue arising with respect to his Honour’s findings, nor is there any contention arising with respect to his Honour’s setting out the prior criminal history or his outline of positive and negative factors relating to the prospects of rehabilitation. Nor is there any challenge to his Honour’s conclusion that those prospects of rehabilitation were “reasonable”.

23 His Honour inquired of the Crown whether or not the regime of standard non-parole periods applied to the counts before him. He was informed by the Crown Prosecutor that they did not. This was an error. The standard non-parole period for this offence did apply to count 2. The maximum penalty for the offence is twenty years and the standard non-parole period is ten years. The Crown did not rely on this error because of the concession that had been made below. The only ground of appeal was that with respect to each count, whether considered separately or together by reason of the degree of cumulation, the sentences imposed by his Honour were manifestly inadequate.

24 The Crown contended that the respondent had a more substantial role in the operation than did either of his brothers. There does not appear to be a significant basis for this contention when the comparison is made between the respondent and his brother Tony. Indeed his Honour in his analysis of the subjective features of the respondent indicated a degree of influence that his elder brother Tony had upon him.

25 Nevertheless, his brother Shamus was present on the occasion involving count 1 and it is clear from the evidence about the occasion, and from the transcript of recording of that transaction, that it was the respondent who played the dominant role with respect to relevant matters such as supply and price. Indeed, as I have noted above, Shamus was re-sentenced in this Court on the basis that he played no role in the negotiations. It is also material to note that, in accordance with that differentiation, the charge to which he had to respond was a charge of being knowingly concerned in supply, whereas the charge against the respondent was one of actual supply.

26 Whilst the maximum sentences for these two offences is the same, nevertheless in my opinion in circumstances such as that before the Court the degree of moral culpability of the offender charged with actual supply is higher than a person who was knowingly concerned in that very same supply, subject of course to the nature of the relationship between the two of them. There can be circumstances in which the moral culpability of an accessory is higher than the person who actually makes a physical delivery, but this is not the case here on the basis of the evidence and the transcript of the recording before us. It was the respondent who negotiated the price and undertook, in the absence of his brother Shamus, the actual exchange of drugs for cash. Mr P. Boulton SC, who appeared for the Respondent, submitted that because of the intervention of the Court in the case of Shamus Vincent this Court cannot now intervene when the Court has acted to reduce the sentence and impose indeed a very low sentence on Shamus for his participation. I would reject the submission. There are a number of bases on which to do so.

27 The respondent, it does appear, was more directly involved in the transaction involved in count 1 and indeed conducted, as I have said, the negotiations on price and the actual exchange, with albeit the encouragement at least, and perhaps the assistance of, his younger brother. It is also pertinent that the respondent was older than Shamus, that he had prior convictions and that indeed this offence, like count 2, was committed whilst he was in breach of a s9 bond. In my view the respondent can have no legitimate sense of grievance if his sentence is significantly higher than that of Shamus Vincent.

28 His Honour imposed the identical sentence that he had originally imposed on Shamus prior to it being varied by the Court of Criminal Appeal. In my opinion, for the reasons I will come to in a moment, that sentence is manifestly inadequate.

29 Furthermore Mr Boulton also relied on the comparative leniency of the sentence imposed on Tony Vincent. This is not as directly related to the sentencing exercise before the Court. The matter of the overlapping offence in the case of Tony Vincent was contained on a Form 1, unlike the case of Shamus Vincent where both participated in what is now count 1 before this Court.

30 It is clear that the brothers were involved in an over-arching arrangement operating out of the premises in which a number of family members were involved in a form of joint enterprise. This is material for the sentencing exercise. Nevertheless there is some basis for a comparison, albeit indirect, by reason of the fact that on the Form 1, what is now count 2 with respect to the respondent was taken into account in the case of Tony Vincent leading to a lenient sentence. It does appear that that sentence was very light in the circumstances and there has been no Crown appeal.

31 Nevertheless, as has often been said in this Court, the sense of grievance must be “legitimate”. It is not legitimate if what appears, even on the basis of indirect comparison that is appropriate in this case, to be a very light sentence. The sence of grievance should not be regarded as legitimate.

32 It is plain from the basic facts as I have sketched them above, and quoted extensively from his Honour’s findings in his Remarks on Sentence, that the two particular charges of supplying commercial quantities occurred in a context of a significant business of acting as a wholesaler of drugs on a substantial scale. This business, as is shown by the offences on the Form 1, extended to a number of different kinds of drugs and, as the presence of the knuckle duster in the count on the Form 1 indicates, it was attended by the degree of threat of violence generally associated with the drug trade. This was a substantial, planned operation in which the respondent played a critical role.

33 In my opinion the objective gravity of the offence was such that the sentence imposed on each of the counts was manifestly inadequate.

34 General deterrence is entitled to substantial weight when it comes to a systematic, planned operation of this character. Personal deterrence in this particular case is also entitled to significant weight, notably as the offences were committed while the respondent was on a s 9 bond.

35 The prospects of rehabilitation were assessed by Nicholson DCJ as no more than “reasonable”. His Honour outlined in his judgment a list of factors indicating in each direction, some favouring the prospects and others against it. These are entitled to some weight but not such as to impose a sentence which is disproportionate to the objective gravity of what is a significant, planned, drug wholesaling operation.

36 The Court has before it a new affidavit indicating that by reason of the Crown appeal the respondent has had the prospects of a more favourable classification deferred and accordingly has had to endure conditions that may have been harsher than otherwise. This is a relevant matter, but the Crown appeal has been brought on quite quickly and because the judgment will be delivered today his prospects of reclassification will now arise again.

37 I noted that, although the Crown could not appeal on the basis of this matter, the standard non-parole period, which is ten years, does apply to count 2. In the context of a Crown appeal, particularly where the matter has not been raised at first instance at all, it makes it difficult in my opinion to give much weight to the standard non-parole period insofar as it is material as a guidepost. Nevertheless I take into account that this, at least in terms of count 2, is a relevant consideration in accordance with the authorities of this Court.

38 His Honour gave a discount for a plea of twenty per cent. As I understand the position, the plea was entered after the committal. In that context twenty per cent is probably generous but nevertheless no separate challenge is made to it.

39 Looking at the matter from the point of view, which it is convenient to do at this stage, of the head sentences I would have thought a head sentence of something in the order of five years was appropriate for count 1 and something like seven and a half years was appropriate for count 2, but the twenty per cent discount would bring those figures down to four years and six years accordingly.

40 The orders I propose are:

1 Sentences of Nicholson DCJ of 12 May 2006 quashed.

2 On count 1 the respondent is sentenced to imprisonment for four years commencing on 23 February 2004 and expiring on 22 February 2008, with a non-parole period of two years commencing on 23 February 2004 and expiring on 22 February 2006.

3 On count 2 the respondent is sentenced to a non-parole period of three years commencing on 23 February 2006 and expiring on 22 February 2009, with a balance of term of three years commencing on 23 February 2009 and expiring on 22 February 2012.

41 WHEALY J: I agree.

42 HOWIE J: Yes, I also agree.

43 SPIGELMAN CJ: The orders of the Court are as I have indicated.

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