Regina v Davis

[2000] NSWCCA 244

CITATION:	Regina v Davis [2000] NSWCCA 244 revised - 11/07/2000
FILE NUMBER(S):	CCA 60666/99
HEARING DATE(S):	16 June 2000
JUDGMENT DATE:	10 July 2000
PARTIES :	REGINA v Stephen John DAVIS
JUDGMENT OF:	Giles JA at 1; Adams J at 34

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	99/31/0299; 99/31/0156
LOWER COURT JUDICIAL OFFICER :	Coolahan DCJ

COUNSEL :	M Grogan - Crown C J Lyons - Appellant
SOLICITORS:	T A Murphy, Legal Aid Commission - Crown S E O'Connor - Appellant
CATCHWORDS:	SUPPLY OF PROHIBITED DRUG - appeal against sentence - possession deemed to be for supply unless proved otherwise - possession in part for own use - no findings as to amounts supplied - sentencing miscarried - R v Wong (1999) 108 A Crim R 531, R v Crombie (1999) NSWCCA 297, R v Mason (2000) NSWCCA 82 referred to - resentencing - relevance of commission of offences to finance own drug habit - R v Selim (NSWCCA, 19 May 1998, unreported), R v Markarian (NSWCCA, 1 October 1998, unreported), R v Mason doubted on this point since R v Henry (1999) 46 NSWLR 346 - relevance to amount and question of rehabilitation.
DECISION:	The sentences imposed below are quashed. In respect of the first count, being a sale of 1.6 gm of heroin, the appellant is sentenced to a term of 2 years' imprisonment. In respect of the second count, which involved possession for the purpose of supply of 3 gm of heroin but which was committed when he was released on bail, taking into account the charges on Form 1, the appellant is sentenced to a term of 4 years' imprisonment with a non-parole period of 2 years. The earliest date upon which the appellant will become entitled to be released on parole is 12 May 2001. In respect of the third count, which involved a single sale of 0.2 gm of heroin, the appellant is sentenced to a term of 6 months' imprisonment. In respect of the fourth count, being possession for the purpose of supply of 3 gm of heroin, the appellant is sentenced to a term of 2 years' imprisonment. Each sentence is to commence on 13 May 1999.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF CRIMINAL APPEAL

CCA 60666/99

DC 99/31/0299 & 99/31/0156

GILES JA

ADAMS J

Monday 10 July 2000

R v Stephen John DAVIS

JUDGMENT

1 GILES JA: This was an application for leave to appeal against sentences passed by Coolahan DCJ on the application’s conviction on pleas of guilty to four counts of supplying a prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW) (“the Act”). An additional eight offences were taken into account in the sentencing in respect of the first count.

2    The charges the subject of the four counts and the sentences were -

(1) Count 1 - between 6 November 1998 and 10 November 1998 supply a prohibited drug namely heroin - a minimum term of 2 years and an additional term of 2 years thereafter;

(2) Count 2 - on 9 November 1998 supply a prohibited drug namely heroin - a minimum term of 18 months and an additional term of 18 months thereafter;

(3) Count 3 - on 12 May 1999 supply a prohibited drug namely heroin - a minimum term of 3 years and an additional term of 3 years thereafter; and

(4) Count 4 - on 13 May 1999 supply a prohibited drug namely heroin - a minimum term of 3 years and an additional term of 3 years thereafter.

All minimum terms were to commence on 13 May 1999, the date on which the applicant was taken into custody.

3    The additional offences taken into account were five charges of possession of a prohibited drug or a prescribed restricted substance, encompassing cannabis, opium, Rohypnol (twice) and Physeptone, one charge of self-administration of heroin and two charges of possession of cash unlawfully obtained.

4    The written submissions on behalf of the applicant asserted error in the weight given by the trial judge to sentencing factors. The sentences were addressed globally, and it was submitted that, while his Honour appeared to have referred to the relevant sentencing considerations, he had imposed in all the circumstances both a total sentence and a minimum term which were manifestly excessive “having regard to the proper assessment of the objective criminality and the subjective factors insofar as they relate to contrition and rehabilitation”.

5    On the hearing of the application the Court drew attention to a possible error in the sentencing process which had not been raised in the applicant’s written submissions. After brief discussion, it was accepted that there had been error. There was then extended discussion of whether it was necessary that there be remittal to the District Court for re-sentencing or whether this Court could re-sentence. The course adopted will be better understood after explanation of the error.

6    The judge’s remarks on sentence included -

“The facts in relation to the first two counts on the indictment disclose that on 9 November 1998 the police saw the prisoner driving a Commodore sedan in Cooks Hill. They followed him and searched the prisoner when he was stopped at his house. During that search the prisoner produced two blue-coloured capsules containing a number of silver foils. He told the police that each foil contained heroin. They found a further four foils of heroin in a tobacco pouch. Also found were 23 Rohypnol tablets and six Valium tablets. The prisoner was taken to the Newcastle Police Station where a further search revealed more heroin. The total weight of heroin found, as subsequently analysed, was 5.36 gms.
The prisoner was interviewed by way of an ERISP during which he admitted that on the afternoon of 9 November 1998 he had purchased 22 fifty dollar deals of heroin. He also admitted to other purchases of heroin. He admitted that the heroin was for the purpose of supply and for his own use. He told the police that at that time he was using between two hundred and three hundred dollars’ worth of heroin a day.”

7    This reflected the statement of facts provided to his Honour, which disclosed in more detail that there were ten foils in each of the blue coloured capsules and gave the separate weights for the various sets of foils and contents, that is, the two sets of ten foils, the set of four foils, and a single foil found in the applicant’s pocket at the police station. The statement of facts also suggested that each foil was a fifty dollar deal, and gave more detail of the other purchases to which his Honour referred. It included that the applicant had admitted purchasing a similar quantity of heroin about one and a half weeks earlier and that he had sold $400 worth of heroin to an unnamed person on 7 November 1998. It recorded the applicant’s admission in the terms, “The prisoner also admitted he purchased the drugs at Newcastle Beach for the purpose of supply and for his own use”. The record of interview was in the brief also provided to his Honour, and the part of the record of interview on which this was based was apparently the applicant’s statement “ … and most of them I was gunna use and some of them I was gunna sell to get some money back to buy some more”.

8    In the record of interview the sale of $400 worth of heroin was said to have been of four deals. An analyst’s certificate also provided to his Honour indicates that the foils in the sets of ten foils each contained about 0.2 gm of heroin, the four foils each contained about 0.25 gm of heroin and the single foil contained 0.02 gm of heroin. Perhaps the last figure should have been 0.2. From this it would seem that a $50 deal was about 0.2 gm, although the sale of $400 worth of heroin, if correctly described, would indicate great variability..

9    The judge’s remarks on sentence also included -

“The facts relating to counts 3 and 4 in the indictment disclose that on 13 May 1999 the police received information that a person had purchased fifty dollars’ worth of heroin from the prisoner the previous day at the prisoner’s home in Light Street, Cooks Hill. A search warrant was applied for and a search was conducted on 13 May 1999. The prisoner was present during this search. Further heroin was found along with other drugs and tablets referred to in the form 1 offences as well as a sum of money which the prisoner freely admitted was the proceeds of the sale of heroin. He voluntarily disclosed this money to the police. The sum amounted to $1012.50. The total weight of the heroin recovered on this occasion, upon analysis, was 5.43 gms. … Also found at that time was a set of scales and a police scanner.
Again the prisoner freely admitted that all the items recovered were his and that they were used for the purpose of supplying heroin. … The prisoner maintained that he was selling heroin to support his own habit.”

10    Again this reflected the statement of facts, which gave more detail of the search of the applicant’s home including the finding of white powder in various places in four plastic capsules, one containing 9 foil packages, one containing a single foil package, and two each containing the powder apparently without foil packaging. An analyst’s certificate also provided to his Honour indicated that the nine foil packages each contained 0.2 gm of heroin and the single foil package contained 0.1 gm of heroin.

11    The applicant gave evidence in which he described his drug habit and acknowledged in general terms “supplying drugs … on a low level” to finance his habit. His evidence included -

“Q. Do you say to the court that the supply offences that you have pleaded guilty to today were offences committed to enable you to maintain your own drug habit?
A. Yes.”

12    It was clear that there was no dispute, and that his Honour accepted, that the heroin found in the applicant’s possession was in part for his own use and in part for sale to others. But what was not clear was how much of that heroin was for sale to others or, apart from the sale of $400 worth of heroin on 7 November 1998 and possibly the sale of $50 worth on 12 May 1999, how much had been sold by the applicant to others. His Honour made no findings as to these matters. This gave rise to the error in the sentencing process.

13 The offences to which the applicant pleaded guilty were relevantly the supply of heroin. Supply included possession for supply, see the definition in s 3(1) of the Act. The effect of s 29 of the Act was that if the applicant had in his possession an amount of heroin not less than the trafficable quantity thereof, he was deemed to have the heroin in his possession for supply unless he proved that he had it in his possession otherwise than for supply. The trafficable quantity was 3 gms. From the acceptance that the heroin in the applicant’s possession was in part for his own use, it followed that he had proved that he had the heroin in his possession in part otherwise than for supply, although there were no findings as to the amounts. Accordingly, s 29 did not operate to make all the heroin found in the applicant’s possession, the two total amounts of 5.36 gms and 5.43 gms, possession for supply.

14 Count 1 rested on the admission of a sale of $400 worth of heroin on 7 November 1998. It was described in the record of interview as “Four deals at once, so that’s what, $400”, and the amount was not otherwise stated. The judge did not refer to this sale in his remarks on sentence. Count 2 rested on possession of heroin on 9 November 1998, but as explained in the preceding paragraph the amount deemed to be supplied was not established by the operation of s 29 of the Act. Count 3 rested on the sale of $50 worth of heroin on 12 May 1999, expressed in the statement of facts only as information received by the police. The record of interview in November 1998 had included as to the foils that “they’re $50.00 each, so that’s probably about, I dunno, point one in each one, might be a bit over”, but this was not referred to in the remarks on sentence. As has been seen, and notwithstanding this, from the materials before his Honour it seems that a $50 deal was about 0.2 gm of heroin. Count 4 rested on possession of heroin on 13 May 1999, but again the amount deemed to be supplied was not established by the operation of s 29 of the Act.

15    Without findings as to the amount of heroin supplied as to each of the charges, the sentencing of the applicant miscarried. The penalty for an offence under s 23(1) is imprisonment for 15 years, a fine of $225,000, or both, giving an extended scale of criminality. As part of the exercise of placing the applicant’s criminality at a point along the scale, it would ordinarily be necessary to find the amount of heroin involved as to each of the charges. The wrapped-up approach taken by his Honour of itself impeded proper consideration of the sentences to be imposed for each of the charges. That was exacerbated by the failure to find how much heroin had been supplied when some of the heroin was for the applicant’s own use. In my view the necessity to find the amounts of heroin involved was present in this case.

16    R v Wong (1999) 108 A Crim R 531 was concerned with drug importation contrary to the provisions of the Customs Act 1901 (C’th). Spigelman CJ, with whom the other members of a five person bench agreed either absolutely or without relevant qualification, said at [130-131] -

“130 The legislature has made it clear, in providing for a gradation of penalties in the three relevant cases - less than a trafficable quantity, trafficable quantity and commercial quantity - that the amount of drugs is an important consideration in the sentencing exercise. This would in any event be suggested on the basis of first principles. The primary object of sentencing is the protection of the community. The adverse effects of drugs such as heroin and cocaine on the community are directly related to the quantity of drugs available in the community. Accordingly, quantity is an exceptionally important aspect of the objective seriousness of the crime.
131 Notwithstanding the significance of quantity, it is not determinative of the appropriate sentence. Other aspects of the crime, including objective and subjective considerations, remain relevant in the exercise of the sentencing discretion … “.

17    The Act gives similar, although not identical, importance to the amount of prohibited drug supplied. It distinguishes between supply simpliciter (s 25(1)) and supply of not less than a commercial quantity (s 25(2)). It provides for an increased penalty where a large commercial quantity is involved (s 33(3)), and by s 29 it creates a presumption in the case of a trafficable quantity. The amounts involved in the present case may not have been large, but it was evident that there could have been the supply of a fraction of a gram or, depending on the applicant’s own use, of a number of grams in total. Even within the relatively small compass of such amounts, the adverse effects on the community of supply of heroin could be differently assessed when considering the seriousness of the offences.

18    Regrettably, the significance of findings as to the amounts of heroin involved does not seem to have been recognised when the applicant was sentenced. The trial judge appears to have accepted that the applicant’s habit consumed between two hundred and three hundred dollars’ worth of heroin a day. It may have been that a great deal of the heroin found in the applicant’s possession was for his own use; on the other hand, it may have been that he would have sold a considerable amount of it to others in order to finance his habit. A finding as to an amount of the order of 0.2 gm could readily enough have been made in relation to count 3. A finding as to an amount of the order of 0.8 or 1.6 gm could have been made in relation to count 1. Findings in relation to counts 2 and 4 were not so obvious. But no findings were made. Instead, the applicant and the Crown allowed the judge to proceed, and the judge proceeded, in a way which left open that his Honour deal with the applicant as a supplier of over 5 gm of heroin in each of November 1998 and May 1999.

19 This points up an additional reason why findings were necessary as to the amounts of heroin involved. If the amounts were less than the indictable quantity of 5 gm the matters could have been dealt with summarily, with a lesser maximum penalty, unless the Crown or the applicant elected otherwise (see s 31 of the Act). Regard may be had to the potentially lesser maximum penalty in sentencing (see for example, R v Crombie (1999) NSWCCA 297 and R v Mason (2000) NSWCCA 82). In the absence of findings, when given the range of amounts in question the 5 gm cut-off could be important, a relevant sentencing consideration was passed over.

20    The sentences could not stand when there was this error in the sentencing process. Ordinarily this Court could not make findings in these circumstances, and remittal to the District Court for re-sentencing would be necessary. But the applicant was concerned that remittal to the District Court for re-sentencing would affect his classification and bring a more harsh existence in the prison system in the immediate future. The Crown appeared to recognise his concern. The hearing of the application was adjourned briefly so that inquiries could be made and consideration could be given to a means of overcoming the concern.

21    The course adopted was to invite this Court to re-sentence on agreed findings as to the amounts of heroin involved. In relation to counts 1 and 3 the agreement was upon amounts of approximately 1.6 gm and 0.2 gm respectively: the reasoning will be apparent from what has already been said. In relation to counts 2 and 4 the agreement was upon amounts of 3 gm, on the basis that the plea of guilty where the facts showed only possession of heroin necessarily meant that it was accepted that at least 3 gm of the heroin was for supply. In the circumstances, I consider that we should act on the agreed findings and re-sentence the applicant.

22    The applicant was born on 25 October 1958, and is now 41 years old. He has an extensive criminal history, dating from 1978. Apart from driving offences, it includes two offences of stealing other than car theft and three offences involving car theft, and in 1981 the offence of being accessory after the fact to armed robbery. It also includes offences of possession, use and supply of heroin in 1978, supply of heroin in 1980, possession of prohibited drugs in 1988 and 1989 and supply of prohibited drugs in 1989.

23    At the time of the offences in November 1998 the appellant was on a recognisance to be of good behaviour for 5 years following car stealing and larceny offences in 1996 and was serving a community service order following car stealing, larceny and resisting or hindering police offences in 1997. He was admitted to bail after being charged with the November 1998 offences, and was on bail when the May 1999 offences were committed.

24    As the judge observed, the applicant’s record does not assist him. His commission of the offences while on recognisance and on bail can not be overlooked as aggravating factors.

25    The applicant gave evidence before the judge which, although his Honour did not say so expressly, appears to have been accepted. He said that he had been using heroin for many years but in the relatively recent past had managed to rehabilitate himself through the William Booth Clinic and then a half way house in Concord. Regrettably the applicant started using heroin again in 1998 when he found that his girlfriend had cancer. As has already appeared, he said that he sold heroin in order to maintain his own drug habit. The applicant gave evidence that he had not used heroin since he had been in custody, that he was trying to get off it when arrested in May 1999, and that he was taking action to try to cope with his drug addiction.

26    An affidavit before us on the application included that he had worked within the prison system when he could, had undertaken some courses, had received some drug and alcohol counselling and seen a psychologist, and now had a different attitude to gaol and to what he needed to do to get his life together once he was out of gaol. It included that he was determined to stay away from drugs, as he had done before, but that he knew how hard it was and that he had to learn how to deal with problems without going back to drugs.

27    It was submitted by the applicant that three particular considerations told in his favour.

28    The first consideration was said to be that he committed the offences in order to maintain his own drug habit, rather than purely for monetary gain. In R v Selim (NSWCCA, 19 May 1998, unreported) it was said that the criminality could be regarded as “on a lower level” when the drug offence was committed to feed the offender’s addiction, and that approach appears to have been accepted in R v Markarian (NSWCCA, 1 October 1998) and R v Mason. I do not think such a bald proposition can have survived R v Henry (1999) 46 NSWLR 346, see the extensive discussion in the judgments of Spigelman CJ at 382-6 and Wood CJ at CL at 387-98, notwithstanding that R v Mason post-dated that case. The offender’s drug addiction may be a relevant matter, but it is not a mitigating circumstance and, in the words of Spigelman CJ at 386, “The concept that committing crimes in order to obtain moneys to buy an illegal substance is in some way less deserving of punishment than the commission of the same crime for the obtaining of moneys for some other, but legal, purpose is perverse”.

29    The relevance of the applicant’s drug habit is in relation to the second consideration, that the amounts of heroin involved were not large. They were not large because the applicant’s purpose was to feed his own addiction. Further where the crime (here, supply of a prohibited drug) is motivated by the need to finance an addiction and steps are taken to deal with the addiction, it may increase the Court’s confidence in the offender’s rehabilitation. This is a relevant consideration in the sentencing process. In the present case it can be borne in mind that the applicant had for a time stayed off drugs, but had relapsed when placed under emotional stress: as he acknowledged in his affidavit, he had to learn how to deal with problems without going back to drugs. The amounts were all less than the 5 gm indictable quantity below which there could be summary disposal. But the amounts were not insignificant. An amount of 3 gm provided about fifteen deals, and although much less than the 250 gm regarded by the legislature as a commercial quantity was classified as a trafficable quantity.

30    The third consideration was said to be that the applicant had pleaded guilty at the first opportunity and had made ready admissions to the police, including of the supply of heroin on 9 November 1998 which was not otherwise known to the police. It was put to the judge, and his Honour seemed to have accepted, that there was contrition and a desire for rehabilitation. The affidavit earlier referred to supports that conclusion. It was suggested, to the contrary, that the applicant’s co-operation was no more than recognition of the inevitable, and that acceptance of contrition had to be tempered in the light of the commission of the offences while on recognisance and on bail. There was nonetheless co-operation, and I consider that the judge’s apparent acceptance of contrition and a desire for rehabilitation should be taken up in the re-sentencing.

31    The offences can and should be seen in context, that although the applicant was charged only with the specific offences the possession and deemed supply, and actual supply, of the heroin was part of an on-going activity. It was an activity in which the applicant engaged even after he was charged with the November 1988 offences. The particular features of this case are such that Judicial Commission figures do not provide any precise guidance, but they do indicate for pleas of guilty to supply of less than a commercial quantity of a prohibited drug that a minimum term in excess of 3 years is out of the ordinary.

32 Having regard to the connected series of crimes, it is appropriate to sentence the appellant to concurrent sentences, the longest term of which reflects the totality of criminality involved. Each sentence is to commence on 13 May 1999. I consider that special circumstances exist within the meaning of s 44 of the Crimes (Sentencing Procedure) Act 1999 justifying a variation of the statutory formula concerning the relationship between the term of the sentence and the non-parole period. The circumstances are the appellant’s encouraging attempts at a rehabilitation and the desirability to ensure adequate supervision when he is released.

33    The sentences imposed below are quashed. In the respect of the first count, being a sale of 1.6 gm of heroin, the appellant is sentenced to a term of 2 years’ imprisonment. In respect of the second count, which involved possession for the purpose of supply of 3 gm of heroin but which was committed when he was released on bail, taking into account the charges on Form 1, the appellant is sentenced to a term of 4 years’ imprisonment with a non-parole period of 2 years. The earliest date upon which the appellant will become entitled to be released on parole is 12 May 2001. In respect of the third count, which involved a single sale of 0.2 gm of heroin, the appellant is sentenced to a term of 6 months’ imprisonment. In respect of the fourth count, being possession for the purpose of supply of 3 gm of heroin, the appellant is sentenced to a term of 2 years’ imprisonment.

34    ADAMS J: I agree with Giles JA.

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