Regina v AMD

[1999] NSWCCA 171

Reported Decision: 107 A Crim R 518

New South Wales

Court of Criminal Appeal

CITATION:	Regina -v- AMD [1999] NSWCCA 171
FILE NUMBER(S):	CCA 60631/98
HEARING DATE(S):	24/06/99
JUDGMENT DATE:	24 June 1999
PARTIES :	Crown AMD
JUDGMENT OF:	Abadee J at 39; Ireland J at 1; Barr J at 40

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	97/51/0192
LOWER COURT JUDICIAL OFFICER:	Sides DCJ

COUNSEL:	R A Hulme Crown D A Buchanan SC
SOLICITORS:	CK Smith - Crown H Schleiger & Associates -respondent
CATCHWORDS:
ACTS CITED:	Criminal Appeal Act, 1912 Drug Misuse & Trafficking Act
CASES CITED:	R -v- Clarke (NSWCCA 15/03/90 unreported) R -v- Leslie (1991) 55 A Crim R 68 R -v- Day (NSWCCA 23/04/98 unreported) R -v- Ward (NSWCCA 08/08/97) R -v- Ortiz (NSWCCA 03/11/94) R -v- Hallocoglu (1992) 29 NSWLR 67 Regina -v- WHS (NSWCCA 27/03/95 unreported) Regina -v- Cacciola (NSWCCA 15/10/98 unreported) R -v- Edwards (NSWCCA 13/11/96 unreported) R -v- Chu (NSWCCA 16/10/98 unreported)
DECISION:	Appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL

60631/98

ABADEE J
IRELAND J
BARR J

Thursday, 24 June, 1999

REGINA -v- A.M.D.

JUDGMENT

1 IRELAND J: This is an appeal brought by the Director of Public Prosecutions pursuant to S 5D of the Criminal Appeal Act, 1912 against the sentence imposed upon the respondent by his Honour Judge Sides, QC, in the District Court at Campbelltown on 24 September, 1998.

2 On 31 July, 1998 the respondent pleaded guilty to an indictment containing two counts of supplying a prohibited drug, namely cannabis leaf, contrary to S 25(1) of the Drug Misuse and Trafficking Act.

3    The first count on the indictment concerned an amount of 446 grams of cannabis leaf and the second count an amount of 9,061 grams of the same substance. For this drug the trafficable quantity is 300 grams, the indictable quantity is 1 kilogram and the commercial quantity is 25 kilograms.

4    The maximum penalty for this offence is imprisonment for 10 years and/or a fine of 2,000 penalty units.

5    On 24 September, 1998 the respondent was sentenced to a cumulative sentence of 6 months on count 1 and 2 years and 6 months on count 2 to be served by way of periodic detention commencing on 2 October, 1998.

6    On 22 October, 1998 the appellant signed a Notice of Appeal to this court, such notice being served on the respondent on 30 October, 1998. No issue is taken by the respondent in this regard.

7    The issue in this appeal is enunciated as “the manner and extent by which the sentencing judge discounted the sentence imposed upon the respondent because of his assistance to authorities”.

The Crown case:

8    The Crown case, which is outlined in the comprehensive written submissions furnished by Mr Hulme, counsel for the appellant, the accuracy of which is not contested by Mr Buchanan, senior counsel for the respondent, may be summarised as follows:-

9    On 4 July, 1997, at the request of police, an informant known as “TM” telephoned the respondent, and told him he would be in the area soon and arranged a meeting.

10    On 9 July, 1997 the respondent met “TM” at the respondent’s oyster lease at Macksville. The respondent supplied “TM” with “one pound” of cannabis leaf which, on analysis weighed 446 grams, for a sum of $3,600. “TM” had been wired with a listening device, which facilitated the recording of his conversation with the respondent. This transaction was the basis of count 1 in the indictment.

11    The respondent and “TM” met again at the oyster lease on 16 July, 1997. On this occasion “TM” was accompanied by an undercover police officer “Karl”. Again conversations were recorded by use of a listening device. The three discussed the proposed sale by the respondent of 20 pounds of cannabis leaf for a price of $60,000. The respondent took “TM” and “Karl” to a location two kilometres away and indicated a bag containing the desired quantity of cannabis leaf in long grass beside a road. A short time later, the respondent was arrested and the cannabis was seized. On analysis, the cannabis was found to weigh 9,061 grams. This transaction was the basis of count 2 in the indictment.

12    The learned sentencing judge found there to be unsatisfactory aspects to the evidence he heard from both “TM” and the respondent. However, on the evidence he was able to accept, he found that “TM” was a police informer and heroin addict, who was motivated to assist the police by informing on the respondent in the hope of receiving a reward which would help to fund his heroin addiction. “TM” concocted a story of suffering from cancer and wanting to acquire cannabis for pain relief purposes in order to persuade the respondent to supply the drug. The learned sentencing judge found that “TM’s” importuning of the respondent may have commenced prior to July 1997 (the respondent claimed it commenced as early as February 1997).

13    The learned sentencing judge found that the respondent’s decision to supply “TM” was a “conscious decision”; he may have been motivated to “get “TM” off his back”; but, because of the quantity of drugs involved, his Honour did not believe the respondent was solely driven by sympathy for “TM’s” plight. Earlier in his remarks, his Honour had noted that even if it be accepted that the respondent was motivated by sympathy to supply the initial pound, it was difficult to attribute the same motivation to the supply of the 20 pounds. On the respondent’s account of what “TM” had said was his usage of cannabis, his honour noted that 20 pounds would have lasted about 40 months. The fact that on the arithmetic a figure of 37 months would be more accurate is, in the circumstances of this case, neither here nor there. His Honour also noted from the terms of the recorded conversation that at the time of the first supply, it was evident that the respondent was already contemplating the further supply of a larger amount.

14    The subjective matters relating to the respondent are also helpfully summarised in the written submissions furnished on behalf of the appellant, and are not in issue.

15    The respondent is presently 40 years of age and has a criminal history, which includes convictions for knowingly take part in the cultivation of cannabis plants, and supply cannabis leaf. Such convictions being recorded on 24 September, 1992. The respondent was sentenced to concurrent sentences of 4 years imprisonment, comprising 3 year minimum terms with 1 year additional terms. He was released on parole in September, 1995. He was fined with respect to driving and firearm offences and was placed on a recognizance, which expired one month before the commission of the offences which are the subject of this appeal.

16    The respondent was employed as a plant operator at a local construction site and also operated an oyster lease, which resulted in a seven day working week. He was in a stable domestic relationship and his partner, who gave evidence before the court, was due to give birth to their child early in 1999. The respondent’s twelve year old daughter from a previous relationship, lived with the respondent and his partner.

17    In his remarks on sentence, the learned sentencing judge noted that the respondent did not have the benefit of a prior good record and was aware of the risks to his freedom that he was taking as a consequence of being involved in the offences for which he was being sentenced. A contrary view expressed in a psychologist's report, which was tendered on sentence, was rejected.

18    His Honour was also mindful of the clear line of authority that nothing other than a full custodial sentence should be imposed in cases such as the present, save in exceptional circumstances.

19    Noting the benefit to which the respondent was entitled, as a result of his plea of guilty, both as to the utilitarian aspects and the expressed contrition to be derived from that factor, as well as the element of contrition to be derived from assistance to authorities, his Honour referred to the content of Exhibit “E”, which is the affidavit outlining in detail the nature of the assistance given by the respondent, emphasising that such assistance is of an ongoing nature relating, relatively speaking, to a large number of offenders with regard to a number of separate criminal enterprises; that the assistance was of a high quality, a factor which had been confirmed where confirmation was available; that many of those informed against may be unaware of the source of the information, noting nevertheless that “the criminal grapevine works in mysterious ways and there is always the risk that one or more of those individuals will come to know that he [the respondent] is an informant”; that the police informer “TM” may well be a source of that information becoming known. His Honour went on to say:-

20    “Ordinarily where assistance of this quality which would, in my view, entitle him so far as a full custodial sentence is concerned, to a discount well in the order of 50 percent, would be used by the court to mitigate punishment by a reduction of the sentence, with a consequent reduction of the minimum term and usually a finding of special circumstances. But leniency in my view can be extended in another way, should that assistance amount to exceptional circumstances by his serving the custodial sentence by way of periodic detention. If I were to follow that course, there would not be a reduction in the length of the sentence to be imposed as a consequence of the assistance, but rather the mitigation would be reflected merely by the manner in which that sentence is to be served.”

21    With particular emphasis being placed upon the quality of the assistance, which the respondent had given, and which he is likely to continue to give, Sides DCJ found exceptional circumstances justifying a departure from the usual practice which required the imposition of a full time custodial sentence.

22    The overriding principle in sentencing applicable to this Crown appeal, is that sentences for drug trafficking must include a substantial element of general deterrence and that only in exceptional circumstances will a non-custodial sentence be appropriate - R -v- Clarke (NSW CCA - 15.3.90 - unreported - per Hunt J 3).

23 In his meticulous review of the authorities, Mr Hulme has pointed out to this court the fact that periodic detention is not a custodial sentence in the context of this policy - R -v- Leslie (1991) 55 A Crim R 68 and see also R -v- Day (NSWCCA - 23.4.98 - unreported - per Wood, CJ at CL). The applicability of this policy to the prohibited drug cannabis, notwithstanding the lesser maximum penalty prescribed, is established in such cases as R -v- Ward (NSWCCA - 8.8.97 - unreported) and R -v- Ortiz (NSWCCA - 3.11.94 - unreported).

24 Mr Hulme lays emphasis upon the strong degree of leniency occasioned by the imposition of a sentence of periodic detention as opposed to a full custodial sentence. Appropriately we have been referred to R -v- Hallocoglu (1992) 29 NSWLR 67 and the disclosures there set out in the judgment of Hunt CJ at CL as to the way in which periodic detention sentences are administered.

25    Counsel for the appellant has helpfully brought to this court’s attention the factors to be taken into account in assessing the value of assistance to authorities to be found in the judgment of Hunt CJ at CL in Regina -v- WHS (NSWCCA -27.3.95 - unreported) which include the nature and extent of the assistance given, the risk of retaliation from other criminals, the nature of the conditions under which the prisoner will be incarcerated in order to protect him against that risk and the nature of the danger to his family as a result of the assistance given, noting also the caveat against giving inadequate weight to the objective circumstances of a particular case; the need for such sentences to still operate as a deterrent to others and the fact that “there will necessarily be a resulting disproportion between the sentence imposed and the objective gravity of the offence itself, but it must not be an unreasonable disproportion” at p 2.

26    There is the further need to avoid inconsistency of sentencing, as adverted to by Abadee J, here presiding, in Regina -v- Cacciola (NSWCCA - 15.10.98 - at 14) citing the judgment of Chief Justice Gleeson in R -v- Edwards (NSW CCA - 13.11.96 - unreported) where at 13 the following appears:-

“Justice will not have been seen to have been administered even-handedly if exceptions are made (on this account) in cases which are not truly exceptional.”

27    The essential principle which, as I understand it, the authorities make plain is that a sentence of periodic detention in a serious drug prosecution is not prohibited, but will be a rarity reserved for exceptional circumstances of such subjective force as to outweigh the appropriate and usual considerations which almost invariably dictate the imposition of a full time custodial sentence.

28    In the present case, the court relied upon the oral evidence of Detective Senior Constable Gorton and the contents of an affidavit, Exhibit “E”, which was ordered to be sealed with suppressed access limited by judicial order.

29    We have had access to Exhibit “E”. Of necessity and for obvious reasons, the affidavit evidence could not be in any way outlined in the sentencing judge’s reasons for judgment.

30    For my part, I am content that the accuracy, specificity and continuing nature of the assistance to authorities, together with the results achieved and anticipated, are such as to constitute, for present purposes, exceptional circumstances. In saying that, I am not suggesting any improper or undue action on the part of the appellant in bringing this appeal. There will always be a conflict between the need to ensure that justice not only be done, but also be seen to be done, and the need to preserve confidentiality where investigation of criminal activity is current, as well as contemplated.

31    It is by no means inappropriate that in its watch-dog role, the appellant should seek review of the decision in a case such as the present, where all the cards cannot be put on the table.

32    The reference by Sides DCJ to “… a discount in the order well in excess of 50 percent” as appropriate to be used by the court to mitigate punishment by a reduction of the sentence may well generate an interest in having such an assessment considered on appeal.

33    In R -v- Chu (NSWCCA - 16.10.98) Spigelman CJ noted that the fifty percent discount allowed in Cartwright was not a tariff and that the amount customarily given in New South Wales, with few exceptions, appeared to fall within the range of twenty percent to fifty percent.

34    This is a case in which it is reasonable to conclude that the benefit to the community in the prosecution of offenders and the enforcement of anti-drug legislation is such that the full time incarceration of the respondent may well significantly impede the investigation and prosecution of offenders in the relatively wide area in which the respondent is able to furnish information and assistance. This is an exceptional circumstance.

35    On the strength of the affidavit evidence, Exhibit “E”, and upon consideration of the relevant principles, in my view, this is not a case in which this court should interfere with the sentence imposed.

36    I would wish to say one thing further. In cases which involve exceptional circumstances of which, of course, this case is one, no assistance is to be gained by way of statistical analysis for sentencing guidance in other cases. Particularly must this be so where non-disclosure of material evidence is an element in the case at first instance or on appeal.

37    This case, and this appeal, fall squarely within the category of cases where no statistical benefit should be availed of and this fact should be noted.

38    I would propose that the appeal be dismissed.

39    ABADEE J: I agree with the reasons of Ireland J and with his proposed order.

40    BARR J: I agree with Ireland J.

41    ABADEE J: The order of the court will be the order as proposed by Ireland J.

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