Regina v Craig Thomas Ah-See

[2001] NSWCCA 375

CITATION:	Regina v Craig Thomas AH-SEE [2001] NSWCCA 375
FILE NUMBER(S):	CCA 60056/01
HEARING DATE(S):	14 September 2001
JUDGMENT DATE:	14 September 2001
PARTIES :	Regina Craig Thomas Ah-See
JUDGMENT OF:	Sully J at 1; Carruthers AJ at 36

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	00/61/0318
LOWER COURT JUDICIAL OFFICER :	Neild DCJ

COUNSEL :	G. Smith - Crown P. M. Winch - Appellant
SOLICITORS:	S. E. O'Connor - Crown Legal Aid Commission - Appellant
LEGISLATION CITED:	Crimes Act 1900 (NSW) Drugs Misuse and Trafficking Act 1985 (NSW)
CASES CITED:	Regina v Ellis (1986) 6 NSWLR 603 Lowe v The Queen (1984) 154 CLR 606 Pearce v The Queen (1998) 194 CLR 610 Veen v The Queen [No. 2] (1988) 164 CLR 465
DECISION:	Leave to appeal granted; Substantive appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL

60056/01

SULLY J
CARRUTHERS AJ

REGINA v CRAIG THOMAS AH-SEE

JUDGMENT

1 SULLY J: On 29 January 2001 the present applicant, Mr Ah-See, stood for sentence before his Honour Judge Neild in the District Court at Cowra. The applicant had pleaded guilty to offences charged against him in two indictments. In one indictment he had been charged with having been an accessory after the fact to a robbery in company. Such an offence contravenes ss 97(1) and 349 of the Crimes Act 1900 (NSW) and attracts upon conviction a statutory maximum penalty of imprisonment for 14 years.

2 On the second indictment the applicant was charged with having supplied a prohibited drug on an on-going basis, an offence contravening s 25A of the Drugs Misuse and Trafficking Act 1985 (NSW) and attracting, relevantly, a sentence of imprisonment for 20 years.

3 His Honour was asked to take into account, and did take into account, four further matters presented to his Honour on a Form 1 schedule. All four of those scheduled offences took place on 13 July 2000. The first of them was an offence of self administration of a prohibited drug, that is to say heroin. The second was a charge of goods in custody and related to a sum of money amounting to $285 in the then possession of the applicant. The third matter was a charge of possessing a prohibited drug, namely heroin. The fourth matter was one of possessing a prohibited drug, namely cannabis.

4 There were related summary offences before his Honour, but it is not necessary for present purposes to take time to canvass them.

5 In connection with the accessory charge, his Honour's conclusion was that a sentence of imprisonment for five years reduced by 10 per cent on account of the applicant's plea of guilty to four years and six months was an appropriate sentence. In connection with the indicted charge of supply prohibited drug on an on-going basis, also, his Honour's view was that a sentence of imprisonment for five years reduced by the same discount of 10 per cent to four years and six months was appropriate.

6 Considering the question of totality, his Honour came to the conclusion that the total criminality of the applicant for all of the offences for which he was to be sentenced was justly reflected in a sentence of imprisonment for a total period of seven years.

7 His Honour structured the sentence by dividing it into a non-parole period of five years and three months, and a parole period of one year and nine months.

8 In order to give expression to his view that the total non-parole period to be served should be a period of five years and three months his Honour fixed, in connection with the accessory charge, a term of three years' imprisonment as a fixed term; and set in connection with the drug supply charge a sentence of imprisonment of four years with a non-parole period of two years and three months. Those sentences were dated so as to be cumulative; and so as to yield, as I have said, an end result of seven years with a non-parole period of five years and three months.

9 The relevant facts were before his Honour in the form of two statements of facts, respectively exhibits A and B in the proceedings on sentence. So far as concerns the accessory charge, the facts thus placed before his Honour were, put simply, that two persons, a Mr Michael Farrell and a Miss Emma Sweeting, jointly carried out a robbery at a BP garbage in Orange. In aid of the robbery Farrell had a knife, and Miss Sweeting had a syringe filled with a dark, red-coloured substance.

10 After the robbery, Farrell and Sweeting left the vicinity of the scene of the crime in a motor vehicle driven by the present applicant. It was conceded by the applicant that when he came thus to drive Farrell and Miss Sweeting away from the scene of the robbery, he was aware that they had committed the robbery together; and that, by driving them away from the vicinity of the crime, he himself was assisting them to evade justice.

11 So far as concerns the drug supply charge, the facts, put simply, were that the prisoner was apprehended on 13 July 2000, it would seem because of some untoward incident in his driving of a motor vehicle. He was stopped by the police and asked to get out of the vehicle. As he got out it was observed by the police that he had taken something from his pocket and dropped it on to the front passenger seat. The police thereupon searched the car and found near the applicant's wallet on the driver's seat of the car a container containing 14 foils, each of which was later found to contain a small quantity of heroin. There was found as well a quantity of compressed substance which was found upon later analysis to be heroin; and there was located also in the car a gram of cannabis. The applicant had in his then possession $285.

12 The applicant was taken back to the police station and interviewed. The interview was recorded in the normal way. In the interview, the applicant admitted having the foils of heroin and the compressed heroin in his possession. He made the same admission in relation to the cannabis. Asked about his activities that day, he told the police that he had sold three foils of heroin for $20 each, two of them to the one person on two separate occasions in two separate streets in Orange, and the third of them to a different person at a different location, also in Orange.

13 The applicant told the police that he had the cannabis for his own use. He was said in the facts sheet not to have offered an adequate explanation for the $285

14 He told the police that he had been under the influence of heroin at the time he drove the car on that particular day. He said that he had himself had three shots of heroin early in the morning, four shots somewhat later, a further four shots somewhat later than that, and five shots in the early to late afternoon.

15 Put simply, there are two points taken in support of the present application. One asserts that there is a justifiable sense of grievance entertained by the applicant by reason of an asserted disparity between the sentence imposed upon him in respect of the accessory charge, and the comparable sentences imposed upon Farrell and Miss Sweeting in respect of the principal robbery offence itself.

16 The second point asserts that the learned sentencing Judge fell into error in that he ought to have made allowance for, but in fact did not make allowance for, an entitlement on the part of the applicant to a discount by reason of the principles established by the decision of this Court in Regina v Ellis (1986) 6 NSWLR 603.

17 Before dealing with either of those two submissions in particular, it is relevant to say that the remarks on sentence are precise and carefully drawn. They are arranged, broadly speaking, in a point sequence which makes it much clearer and, if I might say so, more helpful than is often the case in tracking, as it were, the process of reasoning which led the learned primary Judge to the results of which I have earlier spoken.

18 It would not be easy to uphold any objection based upon the proposition that the Judge simply overlooked something that his Honour should have taken into account; not because that is literally impossible, but because it is unlikely given the care with which the remarks on sentence have been structured and expressed.

19 It is convenient to look first at the parity point. The combined effect of the decisions of the High Court in Lowe v The Queen (1984) 154 CLR 606, and in Pearce v The Queen (1998) 194 CLR 610, have created a situation in which it is not always easy to make the comparisons essential in considering a particular submission that in a particular case there has been some breach of the principle of parity established by the decision in Lowe. The present case is, I think, a good example of the problems that can arise in that regard.

20 It appears that Farrell was sentenced to imprisonment for four and a half years with a non-parole period of three years. Miss Sweeting, it appears, was sentenced to imprisonment for four years with a non-parole period of two years. Each of them appears to have been sentenced after allowance had been made for a discount of 25 per cent to what would otherwise have been the sentences passed, that discount having been extended by reason of the entering by both of those offenders of prompt pleas of guilty.

21 The present applicant did, indeed, enter a plea of guilty, but not until he had first tested on the voir dire, as of course he was completely entitled to do, the admissibility of the records of interview upon which, in substantial part, the Crown case against him depended.

22 It is trite, but perhaps in this particular case it is worth expressly making the point, that the applicant is not to be punished additionally because he exercised that right. But he can have no just complaint that the discount allowed to him for his plea of guilty was 10 per cent rather than the 25 per cent allowed to the other two offenders.

23 That one point seems to me to illustrate how difficult it is on the given facts and figures of this matter, to make the kind of well founded comparison which is essential to the proper application of the principles established by the decision in Lowe.

24 We know very little in the context of the present application about the detailed subjective features of Farrell and of Miss Sweeting. We know a great deal about the subjective features of the applicant. They are set out in all necessary detail in Judge Neild's remarks on sentence and need not be canvassed in fine detail; although it is relevant to note that the applicant stood for sentence with a long and bad record of antecedent criminal offences - a matter which obviously had real weight in his Honour's process of reasoning.

25 It is impossible, as it seems to me, to take the three years fixed term that was imposed upon the applicant in respect of the accessory charge, and somehow extrapolate it into an expression of a term divided between a non-parole, and a parole, period so as to provide in that way a precise basis of comparison with the Farrell and Sweeting sentences. All that one can do is to take from page 11 of the remarks on sentence the reasoning, to which I have earlier referred, that took as a starting point a sentence of five years reduced by a discount of 10 per cent.

26 I am not myself satisfied that the parity point has been made good. It needs to be said yet one more time that the principle enunciated in the decision in Lowe rests, and is expressly stated in the judgments of the High Court to rest, upon the proposition that the justified sense of grievance derives from the fact that different penalties have been imposed in cases which are really comparable in the sense, as it is put in some at least of the judgments, that all other things are equal. In a case of the present kind, it simply is not possible to conclude in any rational way that all other things are equal in that relevant sense. It seems to me that there is, in such a case, less scope than there might otherwise be for a successful argument that there is indeed a justifiable sense of grievance deriving from an obvious and demonstrable imbalance in the relevant sentences, properly understood according to their individual tenors.

27 For myself I am not satisfied that that point has been made good in the present case.

28 The Ellis point is not so easily disposed of. His Honour commenced the remarks on sentence by placing on record a resumé of the bases upon which he had ruled at the conclusion of the voir dire hearing that the records of interview of which I have earlier spoken should in fact be admitted into evidence at what was then a trial intended to proceed with a jury.

29 At one point in that explanation his Honour says in terms that one of the matters that caused him to rule admissible the challenged material was that his Honour had come to the conclusion that the desirability of admitting it greatly outweighed the undesirability of admitting it for a number of reasons, of which one is said in terms to have been that the material admitted after the voir dire hearing was "the only evidence of the prisoner's guilt".

30 For reasons to which I earlier referred, I am reluctant to conclude lightly that his Honour simply overlooked the need to consider the Ellis point; but it must be said that his Honour did not in terms refer to it;and thereby there is afforded to the applicant, if I may put it this way without intending to be disparaging, a plausible basis upon which it can be argued that the point was overlooked to his disadvantage.

31 If it be assumed that that is what in fact happened, then it would become necessary for this Court to consider whether the error thus demonstrated warranted in law the passing of another and more lenient sentence than that passed ultimately by the learned primary Judge. That brings the consideration of this Court back to this question: Did his Honour step outside the permitted parameters of a sound sentencing discretion in concluding, as his Honour did, that the provisional measure of the applicant's culpability placed at four and a half years, after discount, on each of the indicted charges was fairly expressed in terms of the requirements of totality by a sentence of imprisonment for seven years.

32 Once again it is trite, but perhaps worth repeating having regard to the way in which the submissions have proceeded this afternoon, that it is not a question whether such a view of the total criminality is at the upper, or lower, or middle, or some other arbitrarily set, point in the available range. The question is whether or not it is outside the available range

33 It has been submitted that there are statistics of one kind and another, the proper analysis of which would justify a conclusion that the total quantification of criminality in this case did exceed what was available upon a proper view of the relevant materials. I have to say that, at the end of the day, I am not persuaded that that was so. The total criminality involved does not require, as it seems to me, hyper-refined analysis of statistical material which is itself not the clearest or most helpful in connection with the present matters. What needs to be understood, as it seems to me, is simply that the total criminality of seven years represents two discrete and extremely serious infractions of the criminal law committed by an offender whose antecedent criminal record was so bad as to justify a view that his offences were simply further episodes in a continuing, not to say contumelious disregard of his obligations under the law.

34 The decision of the High Court in Veen v The Queen [No. 2] (1988) 164 CLR 465 to go no further, stands as authority for the proposition that where such a view is fairly open on the relevant evidence, then factors that might otherwise be reflected in this or that kind of amelioration of an otherwise proper sentence, may properly not be extended. This seems to me to have been such a case.

35 I think that on a fair view of the whole of the material that was before the learned sentencing Judge the overall process of reasoning, as one can see it set out in the remarks on sentence, is not such as justifies the intervention of this Court. I do not think that other and more lenient sentences were warranted in law. I would myself on that account grant leave to appeal, but I would dismiss the substantive appeal.

36 CARRUTHERS AJ: I agree.

37 SULLY J: The orders of the Court will be as I have proposed.

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