R v Virgin

[2000] NSWCCA 307

CITATION:	R v Virgin [2000] NSWCCA 307
FILE NUMBER(S):	CCA 60741/99
HEARING DATE(S):	12/07/00
JUDGMENT DATE:	21 August 2000
PARTIES :	Regina Kim Robert Virgin
JUDGMENT OF:	James J at 1; Bell J at 2

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	99/31/0273
LOWER COURT JUDICIAL OFFICER :	Kirkham DCJ

COUNSEL :	P Hock - Crown P M Winch - Applicant
SOLICITORS:	S E O'Connor - Crown T A Murphy - Applicant
CASES CITED:	R v Bloomfield (1998) 44 NSWLR 734 R v Heard [2000] NSW CCA 107 R v Pilley (1991) 56 A Crim R 202
DECISION:	Application for leave to appeal allowed; appeal allowed.

IN THE COURT OF
CRIMINAL APPEAL

60741/99

JAMES J
BELL J

Monday, 21 August, 2000

REGINA v Kim Robert VIRGIN

JUDGMENT

1    JAMES J: I agree with the judgment of Bell J. The orders of the Court are as proposed by her Honour.

2 BELL J: This is an application for leave to appeal against the severity of a sentence imposed upon the applicant on 19 November 1999 in the District Court at Gosford. On 16 September 1999, the applicant entered a plea of guilty to a single count in an indictment charging him with the supply of a prohibited drug (methylamphetamine) being an amount not less than the commercial quantity applicable to that drug. The maximum sentence in respect of this offence is one of twenty years imprisonment and/or a fine of three hundred and eighty-five thousand dollars. The applicant asked the sentencing judge to take into account a further four charges which were set out on a Form 1, pursuant to s 21 of the Criminal Procedure Act, 1986 (as it then stood). The applicant was sentenced to a minimum term of 3 years and 9 months penal servitude. An additional term of 1 year and 3 months was specified.

3    The sentence was expressed to commence on 18 May 1999. The applicant was arrested on 8 May 1999 and taken into custody where he remained until the date of sentence. His custody was solely referable to the subject charge. It is apparent that the sentencing judge intended to fix the date of commencement of the sentence from the date of the applicant’s arrest. The Crown concedes that, in this limited respect, leave should be granted and the appeal be allowed in order that this Court might correct this error.

4    The facts of the case are somewhat unusual. It is appropriate to refer to them in some detail in order to understand the nature of the challenge advanced by Mr Winch, who appeared on behalf of the applicant.

5    At around 5.30 pm on Saturday 8 May 1999 the applicant travelled by taxi to the McDonald’s Restaurant, Wyong. He was seen by the manager of the restaurant to alight from the taxi and sit in the gutter. He was falling from side to side. The manager approached the applicant and offered him assistance. The applicant said that he was all right and that he just wanted something to eat. Thereafter he walked unsteadily to the outside dining area of the restaurant. He appeared to be drunk. He fell off a bench on two or three occasions. It was reported that he had been throwing $50 notes into the air. After a time he entered the restaurant and ordered some food. He unzipped a “bum-bag” and pulled out a $50 note in order to pay for his order. As he produced the note, he also pulled out a small plastic bag which appeared to contain marijuana. The manager told him to put the bag away. The applicant complied and walked back to his seat, dropping his milkshake. He was observed to be rolling from side to side on the seat and periodically apologising to other patrons for his behaviour. After a time he went outside where he endeavoured to eat his meal but he appeared to be too intoxicated to do so. The manager kept an eye on him throughout this period.

6    It was reported to the manager that the applicant had offered to sell some “pot” to a young employee of the restaurant. On learning of this development the manager telephoned the Wyong Police. In the period prior to the arrival of the police the manager kept the applicant under observation. During this time the applicant continued to behave in a somewhat bizarre and uncoordinated fashion. The police attended and spoke to the applicant. On at least two occasions after the police identified themselves to the applicant he offered to supply them with drugs. These attempts appear to have related to the supply of cannabis.

7    An inspection of the applicant’s bum-bag revealed two small resealable plastic bags containing cannabis. Also located in that bag were a Visa card, and various other identification cards in the name of a man ‘John Honor’. The possession of the cards is the subject of one of the third charge on the Form 1 document.

8    The search of the applicant also revealed a toiletry bag which had been secreted in his trouser leg. The applicant handed the toiletry bag to police saying “It’s not mine. I don’t know what you’re talking about”. The contents of the bag included resealable plastic bags containing a white and pink coloured powder. There was also a small quantity of cannabis in another plastic bag. There were a quantity of coins and jewellery. The possession of the cannabis and the coins and jewellery are the subject of charges two and four respectively on the Form 1 document. In total the applicant was found to be in possession of 376.8 grams of methylamphetamine and 14.1 grams of cannabis leaf. The methylamphetamine was contained in a number of resealable plastic bags.

9    The applicant was taken to the Wyong Police Station where Detective Sergeant Bilton sought to interview him. Detective Bilton had difficulty rousing the applicant and observed that he appeared to be under the influence of a drug.

10    The applicant gave evidence at the sentence hearing. He was then aged 44 years. He said that he had a long standing problem of addiction to drugs. Over the years he had unsuccessfully sought treatment from a variety of rehabilitation centres. As at May 1999 he had been using amphetamines and drinking alcohol to excess. He said that he visited his drug supplier on the evening of 7 May 1999. He identified her by name in the course of his evidence. He said that on arrival he found that she was out, but her boyfriend let him into the premises. The boyfriend appeared to be affected by heroin and was “on the nod”. While the applicant was present in the premises, the boyfriend went to sleep. The applicant took this opportunity to steal his supplier’s cache of drugs. He lifted the lid on her washing machine and removed the toiletry bag.

11    The applicant said that he had gone to his supplier’s home in order to buy amphetamines from her. He left the premises without inspecting the contents of the bag. Later when he looked inside the bag he saw “white bags and some grass”. He said that he had consumed a cocktail of drugs including Rohypnol, amphetamines and alcohol. He told a psychologist, Ms Matsuo (whose report was in evidence) that he had experienced a blackout and that he had no recall of being in the McDonald’s Restaurant.

12    The applicant’s father also gave evidence at the sentence hearing. He said that he had been informed that his son had ripped off his drug dealer on 7 May. He went on to say “I got a phone call to see Kim down there and he was in a terrible state and he was wanting to take the drugs back to the lady he got them from”. It is to be noted that Mr Virgin senior was seen to arrive at the McDonald’s restaurant around the time the police attended.

13    The four matters recorded on the Form 1, which the applicant asked the sentencing judge to take into account, were:-

(i) Possess prohibited drug (commercial quantity) - 376.8 grams of amphetamine;

(ii) Possess prohibited drug - 14.1 grams cannabis leaf;

(iii) Goods in custody - Citibank visa card and three other identification cards in the name of John Honor;

(iv) Goods in custody - a quantity of Australian and New Zealand pre-decimal currency coins and a quantity of gold and silver rings, necklaces, pendants and earrings.

14    The first charge listed on the Form 1 document related to the possession of 376.8 grams of amphetamines. The applicant pleaded guilty to the (deemed) supply of this same quantity of amphetamines. It was not appropriate to include the “backup” charge on the Form 1. In the event it has not been submitted that this irregularity occasioned any prejudice to the applicant. The sentencing judge referred to the circumstance that the first charge recorded in the Form 1 dealt with the same subject matter as the count in the indictment. It appears plain that his Honour paid no further regard to it.

15    A number of challenges were advanced by Mr Winch to the approach taken by the sentencing judge. It was submitted that his Honour erred in placing too much weight upon the applicant’s criminal history and in failing to give sufficient weight to the applicant’s assistance to the authorities. It was contended that insufficient weight had been given to the contents of Ms Matsuo’s report and to that of Ms Gleeson, alcohol and drug worker. A similar complaint was made with respect to the evidence of the applicant’s favourable employment history and the family support available to him.

16    The applicant’s criminal history was described by the sentencing judge as being quite appalling. His Honour noted that the applicant had convictions going back over a period of thirty years in this State and in other States for offences of dishonesty, theft, breaking entering and stealing, drug dealing and possession of drugs. (It is to be noted that the applicant’s only conviction in relation to dealing in drugs was in October 1980 when he appeared before the Wyong Court of Petty Sessions and was convicted of the supply of a prohibited drug (Indian hemp) in respect of which he was fined $250.)

17    There is nothing in the sentencing judge’s remarks to suggest that he paid regard to the applicant’s criminal history in any impermissible way. His Honour took into account the criminal history in concluding that he did not hold out much hope for the applicant’s long term rehabilitation. It was open to his Honour to so conclude.

18    As I have noted, in the course of his evidence the applicant identified his drug supplier by name. He also gave evidence concerning some information supplied by him to the Police Integrity Commission (he suspected that unnamed police officers were corruptly protecting his supplier). The Police Integrity Commission had not taken that matter any further. Mr Winch submitted that this body of evidence served to indicate both the applicant’s contrition and further that it evidenced the applicant’s break with his former ways; it would be difficult to return to the drug milieu having demonstrated his disloyalty and willingness to inform. Finally, this evidence was significant because it showed that the applicant was identified within the prison community as an informer. He was thus at risk of being subjected to reprisals during the term of his sentence. He had given evidence as to this effect.

19    The sentencing judge made reference in the course of his reasons to the evidence of the applicant’s assistance to the authorities. Objectively the value of this assistance was low. I do not consider that the challenge on this ground has been made good. I note that his Honour did make specific reference to the circumstance that the applicant would serve at least a period of further custody as a ‘protection’ prisoner and that his conditions of custody would be more onerous than those applicable to prisoners in ordinary discipline.

20    The complaint concerning the weight given to the various subjective matters set out in the reports of the psychologist, the drug and alcohol worker and in the evidence of the applicant’s father do not strike me as disclosing error on the part of the sentencing judge who referred, albeit briefly, to each of these considerations.

21    The central challenge advanced on the applicant’s behalf was that the sentencing judge must be taken to have assessed the objective seriousness of the offence too highly. In support of this contention Mr Winch referred us to the statistics prepared by the Judicial Commission of New South Wales (“the Commission”). These show that the full term of the sentence imposed upon the applicant was in the top twenty seven percent of cases where a plea of guilty had been entered upon a single count of ‘supply prohibited drug (amphetamine - not less than the commercial quantity) by an offender who invited the court to take matters into account on a Form 1. The minimum term imposed on the applicant was within the top twenty percent of cases.

22    Mr Winch submitted that the unusual objective features of the case, combined with the applicant’s plea of guilty and his willingness to assist the authorities, required that the sentence imposed on him “should be at the middle to lower end of the scale not at the top”.

23    As I read his Honour’s reasons he considered that the objective criminality of this case placed it towards the lower end of the continuum for such offences. His Honour accepted the applicant’s evidence both that he was a drug addict and that he had come into possession of the drugs by the chance ‘rip off’ of his supplier. His Honour concluded that objectively the offence “falls within the lower quadrant of the maximum penalty”. That view might be thought to be reflected in the fixing of a sentence representing one quarter of the maximum sentence in the case of an offender who (in the light of his criminal history) had no claim for leniency upon the court.

24    The Crown Prosecutor noted that the statistics upon which Mr Winch relied did not take into account the applicant’s criminal record. Attached to the Crown Prosectors’ submissions (Appendix “A”) were the Commission’s statistics relating to the sentencing of offenders upon a plea of guilty (in respect of one count of supply prohibited drug (amphetamines - commercial quantity)) where the offender had prior convictions (for other types of offences) and had invited the court to take into account matters on a Form 1. There were only eight cases in the sample. Of those eight cases only seven offenders had received sentences of imprisonment. A five year sentence was the maximum sentence imposed on any person falling within that small category of offenders.

25    The Crown Prosecutor also attached to her submissions the Judicial Commission’s statistics in relation to all categories of offenders dealt with in respect of the subject offence over the period January 1990 to July 1999 (Appendix “B”). This sample comprised eighty six cases. Eighty four percent of these offenders received sentences of full-time imprisonment. Only fourteen percent of the seventy two offenders who received sentences of imprisonment were sentenced to a term in excess of five years. A further eleven percent received a sentence of five years. This left some seventy six percent of offenders who received sentences of less than five years.

26 In R v Bloomfield (1998) 44 NSWLR 734 at 739 the Chief Justice (in a judgment with which Sully J and Ireland J agreed) drew together the principles which govern the use to be made of statistical information of this kind. It was noted that caution is to be exercised in the use of sentencing statistics but that they may provide an indication of general sentencing trends and standards. The larger the sample size the greater the likelihood that sentencing statistics may provide assistance.

27    The pattern of sentences revealed by appendix “B” might be thought somewhat surprising in that it does tend to show that the sentence imposed upon the applicant is at the high end of the range. In Bloomfield it was noted that surveys of decided cases may be of more help than statistics in that they admit of a meaningful comparison between the circumstances of each case. We were not taken to any such survey in this case. This may reflect that comparatively few of the sentences imposed for this offence in recent years have been the subject of appellate review.

28 In Regina v Heard [2000] NSWCCA 107 Smart AJ (in a judgment with which Simpson J agreed) detailed the sentences imposed on a related group of offenders convicted of “supply prohibited drug - methylamphetamine - not less than the commercial quantity”. The pattern of those sentences it must be said was significantly lower than that imposed upon the applicant. This was so notwithstanding that the subject offenders were individuals with lengthy criminal records who had committed the offences in the context of a sophisticated commercial operation. However, as Smart AJ observed in Heard, some of the offenders within the subject group had received sentences which were excessively lenient. This leaves Heard (and the cases referred to in it) as providing little guidance in the present case.

29    In her written submissions the Crown Prosecutor submitted that the applicant’s sentence was “towards the upper end but nevertheless within the permissible range”. The frank acknowledgment that the sentence falls at the upper end of the range (as disclosed by the statistical material) seems to me to lend force to Mr Winch’s challenge.

30    The applicant is a long time amphetamine addict. There is nothing to suggest that he was a person in the business of the commercial supply of amphetamines. He came into possession of a commercial quantity of the drug in circumstances which were somewhat serendipitous. His response to finding this “Aladdin’s cave” (as his Honour characterised it) was to consume an excessive quantity of the ill-gotten gains and to then attract attention to himself in the rather bizarre fashion observed by the police and the manager of the McDonald’s Restaurant.

31 By his plea, the applicant must be taken to have admitted his possession for the purpose of supply; R v Pilley (1991) 56 A Crim R 202. However, I consider that objectively, this case reflects a lesser degree of criminality than those cases in which offenders (who are not themselves addicts) cynically engage in the distribution of drugs for profit.

32    I am of the view that a sentence towards the upper end of the pattern of sentencing for this offence, as demonstrated by the Commission’s statistics, discloses error having regard to the circumstances of this case. I note that his Honour was not furnished with the statistical material which formed the basis of the submissions advanced before this Court.

33    Since I am of the view that error has been demonstrated it is necessary give consideration to re-sentencing the applicant. I have regard to two affidavits sworn by David Barrow, the applicant’s solicitor, which annex a number of certificates evidencing the applicant’s successful completion of a variety of courses offered by the Department of Corrective Services, the Southern Sydney Institute TAFE and the Adult Education and Vocational Training Institute. It suffices to observe that the applicant has been using his time in custody to pursue a number of educational and life-style courses likely to be of value to him on his return to the community. There is also evidence, in the form of a report from two psychologists attached to the Goulburn Correctional Centre, of the applicant’s participation in ongoing psychological counselling.

34    I would propose a sentence of three years imprisonment be imposed upon the applicant. In coming to this view I have regard to the unusual facts of the case which take it outside the run of cases involving the supply of commercial quantities of prohibited drugs.

35 I turn now to a consideration of whether special circumstances exist for the purposes of s 44(2) of the Crimes (Sentencing Procedure) Act, 1999. I should note that Mr Winch contended that the sentencing judge erred in not finding special circumstances pursuant to s 5(2) of the Sentencing Act 1989. In this regard Mr Winch placed reliance on the reports of Ms Matsuo and Ms Gleeson. In particular, referring to the latter, he noted the author’s observation:-

“Mr Virgin presents as a quiet and thoughtful type who is beginning to come to terms with the abuse of his past. He displays insight and is willing to involve himself in programs that can assist this process. I believe Mr Virgin needs ongoing psychological and drug and alcohol counselling to aid this process. While he shows a long history of criminal and drug using behaviour, he comes across as a person who has simply had enough of the merry-go-round and is ready to stand for change”.

36 The applicant is a middle aged man with a very lengthy history of drug and alcohol abuse and a long pattern of criminal offending. The evidence suggests that he has developed some insight into his difficulties. He has shown some ability during the currency of the sentence served to persevere with endeavours to rehabilitate himself. Such a combination of features may amount to special circumstances for the purposes of s 44(2) of the Crimes (Sentencing Procedure) Act, 1999. However, evidence of the desirability of an offender undergoing ongoing counselling, combined a willingness on his part to do so, does not invariably establish special circumstances. The usual proportion between the sentence and the non parole period is that fixed by s 44(1) of the Act. It is necessary for the applicant to establish the existence of special circumstances justifying a departure from the statutory ratio. The sentencing judge had the benefit of seeing the applicant give his evidence. His Honour accepted that the applicant was remorseful. However, his Honour remained somewhat pessimistic as to the applicant’s prospects of rehabilitation notwithstanding the observations in Ms Gleeson’s report. I am not persuaded that the applicant has made out the existence of special circumstances in this case.

37    For these reasons the orders which I would propose are:-

(i) Application for leave to appeal be allowed;

(ii) Appeal be allowed,
(iii) The sentence imposed on 19 November 1999 in the District Court at Gosford be quashed;

(iv) In lieu thereof, the applicant be sentenced to a term of 3 years imprisonment with a non-parole period of 2 years and 3 months to commence from 8 May 1999;

(v) The earliest date on which the offender will become entitled to be released on parole is 7 August 2001;

(vi) Direct pursuant to s 50 of the Crimes (Sentencing Procedure) Act , 1999 that the offender is to be released on parole at the end of the non-parole period.


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