Regina v Scott

[2000] NSWCCA 313

CITATION:	Regina v Scott [2000] NSWCCA 313
FILE NUMBER(S):	CCA 60282/99
HEARING DATE(S):	8 December 1999
JUDGMENT DATE:	25 August 2000
PARTIES :	Regina v Ryan Burnell Scott
JUDGMENT OF:	James J at 1; Sperling J at 2

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	99/11/0159
LOWER COURT JUDICIAL OFFICER :	Woods DCJ

COUNSEL :	P Byrne SC/P Hamill (Applicant) C K Maxwell QC (Crown)
SOLICITORS:	The Law Practice (Applicant) S E O'Connor (Crown)
CATCHWORDS:	Criminal law - sentence appeal - no question of principle.
LEGISLATION CITED:	Drug Misuse & Trafficking Act 1985.
CASES CITED:	R v Clark (Unreported) NSWCCA 15 March 1980; R v Atkins (Unreported) NSWCCA 3 November 1998; R v Gibson (1991) 56 ACrimR 1; R v Postiglione (1997) 189 CLR 295; R v Fabian (1992) 64 ACrimR 365; R v Le Cerf (1975-6) 8 ALR 349; R v Brown (Unreported) NSWCCA 19 October 1999.
DECISION:	Leave to appeal granted. Appeal dismissed.

IN THE COURT OF
CRIMINAL APPEAL

60282/99
JAMES J
SPERLING J

25 August 2000

REGINA v Ryan Burnell SCOTT

JUDGMENT

1    JAMES J : I agree with the judgment of Sperling J.

2    SPERLING J : On 28 May 1999 the applicant was sentenced by Woods DCJ, having pleaded guilty to one count of supplying a prohibited drug (methylamphetamine) of not less than the commercial quantity, between 1 February 1997 and 30 November 1997, contrary to s 25(2) of the Drug Misuse & Trafficking Act 1985; and one count of manufacturing a prohibited drug (methylamphetamine) of not less than the commercial quantity, contrary to s 24(2) of the Drug Misuse & Trafficking Act 1985. The maximum penalty for each such offence is 3,500 penalty units or twenty years imprisonment or both.

3    The applicant was involved in a large illicit drug business of which Leslie Kalache was the principal. As a result of a police operation called Operation Gymea, Mr Kalache and others involved in the business were arrested and charged. All those involved were sentenced by the same District Court judge.

4    Mr Kalache was initially sentenced, effectively, to ten years imprisonment, consisting of a minimum term of seven and a half years and an additional term of two and a half. On a crown appeal to the Court of Criminal Appeal, this was increased to an effective sentence of 23 years, consisting of a minimum term of 20 years and an additional term of 3 years.

5    On each count, Woods DCJ imposed a minimum term of four years imprisonment and an additional term of two years, taking into account an additional 16 offences relating to the illegal supply of body building drugs, the two sentences to be served concurrently.

6    His Honour found that Mr Kalache was a dominating and charismatic figure who had recruited the applicant at a time when the applicant had not previously been in any kind of trouble with the police. His Honour found that the applicant was particularly susceptible to the influence of such a man because of a sense of alienation to which the applicant was subject, convincingly described by Dr W Walker, psychologist, in a report tendered in evidence and in oral evidence given at the sentencing hearing.

7    Be that as it may, it is clear that the applicant threw himself into the business with gusto. He was closely involved in the operation. Both the incidence and the extent of his involvement was significant. The quantity and value of raw material and product which he handled was substantial. Documentary records found at his home demonstrated extensive transactions in which the applicant had been engaged, relating to the sale of large quantities of a variety of drugs. He continued with these illicit activities despite Mr Kalache’s arrest. He was a dealer in his own right.

8    In his favour, Woods DCJ noted that the applicant was a young man. He was born on 6 April 1972. At the time of the offences he was twenty seven years of age. When arrested in December 1997, he pleaded guilty to the principal offences at the earliest opportunity. The sentencing judge was satisfied that the applicant was genuinely contrite. He was entitled to consideration for the plea of guilty, not only as evidence of contrition, but also because the public expense of a trial was avoided. He was also entitled to consideration for his prior good behaviour which was established by extensive evidence. His Honour found there were special circumstances warranting an adjustment of the provisional statutory formula governing the relationship between total sentence and minimum term.

9    In his remarks on sentence, his Honour made observations concerning the other offences taken into account. His Honour found that the applicant had been supplying body building substances to others at a gym which he attended. His Honour said that such drugs were extremely dangerous. He regarded the matters taken into account as having some considerable significance.

10    The sentence is impugned on four grounds:


(1) That the sentence is excessive in itself;

(2) That the sentence is excessive when compared to the sentences imposed on others involved in Operation Gymea;

(3) That the allowance for special circumstances was inadequate;

(4) That undue weight was or may have been given to the other offences taken into account.

Ground 1: That the sentence is excessive in itself

11    As an independent ground of appeal, this ground is unsustainable. The sentence was, in itself, plainly justified in the exercise of the sentencing judge’s discretion, having regard to the objective features of the offence and notwithstanding the persuasive subjective considerations which his Honour recognised and took into account. As a general principle in relation to sentencing for drug trafficking in not less than the commercial quantity, general deterrence should be reflected in substantial sentences of full time custody: Clark (Unreported) NSWCCA 15 March 1980 at p 3. and Atkins (Unreported) NSWCCA 3 November 1998. . This principle is equally applicable to the manufacture of drugs.

Ground 2: That the sentence is excessive when compared to the sentences imposed on others involved in Operation Gymea


12    The crown submits that the principle of parity does not apply because it is not shown that the applicant and the other persons sentenced are “co-offenders”. It is unnecessary to decide whether the principle of parity applies to offenders convicted of participation in the same enterprise but not necessarily complicit in the same crimes. I am prepared to assume for the purposes of this appeal that the principle does so apply.

13    The crown cites authority for the proposition that the principle of parity is only relevant when the objective and subjective features associated with both offenders are equal. Reliance is placed on the decision in Gibson . (1991) 56 ACrimR 1, 7. This submission is inconsistent with the more recent decision of the High Court in Postiglione (1997) 189 CLR 295 . If sentences for offences committed in the course of the same operation are patently disproportionate relative to each other, there may be as acute and as justifiable a sense of grievance as in a case of different sentences for equal criminal responsibility.

14    The crown cites Fabian , (1992) 64 ACrimR 365, 376. Le Cerf (1975-76) 8 ALR 349, 351. , Brown Unreported NSWCCA 19 October 1999. as authority for the proposition that, all things being equal, it does not follow that a person less exalted in an illicit drug organisation will necessarily receive a correspondingly less severe sentence. Middlemen and underlings are essential. That is not to be doubted. However, in the present class of offence, it is also to be expected that the weight of the sentence will bear a relationship to the role of the individual in the organisation. Where, as here, the offence is being knowingly concerned in the manufacture or supply of a prohibited drug in not less than the commercial quantity, it is to be expected that a person at the head of the organisation will receive a heavier sentence than a person who might have done no more than make the occasional delivery. The burden of the cases to which I have referred is that an underling cannot expect a light sentence for lending support to a large criminal organisation. That is important, but it goes no further than that.

15    When this application came on for hearing, the appeal against Mr Kalache’s sentence had not been decided. Whilst the present applicant had a strong argument that his sentence was disproportionately heavy relative to Mr Kalache’s initial sentence, there is no longer a basis for that argument. Other sentences relied upon are those imposed on other persons involved in the same illicit enterprise: Messrs Marskell, Losurdo, Bonney, Watkins and Bruce.

16    Three of the five other cases involve sentences heavier than that imposed on the applicant.

17    Mr L P Marskell pleaded guilty to two charges. The first was that between January and August 1997 at Booral he knowingly took part in the manufacture of a prohibited drug (methylamphetamine) of not less than the large commercial quantity applicable to that drug. The second charge related to an earlier period. It charged that, between December 1995 and May 1996, at Woolombi, he knowingly took part in the manufacture of a prohibited drug (methylamphetamine) of not less than the large commercial quantity applicable to that drug. Offences on Form 2 were taken into account. These consisted of supplying a prohibited drug (cocaine), supplying a prohibited drug (cannabis) and possessing an unlicensed firearm (a revolver).

18    Mr Marskell had learned how to manufacture amphetamines while in prison. He was actively engaged in the manufacturing side of the enterprise as well as the planning and operations of the organisation.

19    His Honour found that, generally speaking, Mr Marskell took his orders from Mr Kalache, and that Mr Kalache established the financial terms which would operate between them. Mr Kalache’s role in a wider drug enterprise was also more extensive than that of Mr Marskell.

20    Woods DCJ imposed an effective sentence of seven years and four months, with a minimum term of five and a half years.

21    The second case relied upon is that of Mr C Losurdo. He was sentenced by Woods DCJ on 2 counts. The first was knowingly taking part in the supply of not less than the large commercial quantity of a prohibited drug (methylamphetamine), between December 1996 and December 1997. The second was knowingly taking part in the supply of not less than the commercial quantity of a prohibited drug (cocaine) during the same period. Other offences were taken into account, including goods in custody ($2,800 cash), supplying a prohibited drug (cocaine), possession of a prohibited drug (cocaine) and possession of a prohibited weapon (an electronic stun gun).

22    Mr Losurdo had an extensive criminal history including convictions for manslaughter, receiving and serious drug offences. He had spent something approaching twenty years in custody.

23    Mr Losurdo was a dealer who purchased his supplies from Mr Kalache. Such purchases included large quantities of methylamphetamine. His Honour described Mr Losurdo’s association with Mr Kalache’s operation as a substantial involvement. He found that Mr Losurdo was involved at a senior level of the enterprise with Mr Kalache and that he played a significant role as a large purchaser and onseller.

24    Woods DCJ imposed an effective sentence of eight years. He found special circumstances. He fixed a minimum term of five years.

25    The third case is Mr K Bonney. He pleaded guilty on three counts. The first was that, between May and September 1997, he knowingly took part in the manufacture of a prohibited drug (methylamphetamine) in an amount not less than the large commercial quantity. The second count was that between December 1996 and August 1997 he knowingly took part in the supply of a prohibited drug (ecstasy) in an amount not less than the commercial quantity. The third charge was that, between January and September 1997, he knowingly took part in the supply of a prohibited drug (methylamphetamine) in an amount not less than the commercial quantity.

26    His Honour found that Mr Bonney was a helper, a loyal sergeant or corporal, working for a wage of $350 per week in cash. He ran messages. Carried money and parcels which contained drugs. He also ran domestic errands for Mr Kalache and members of his family. He became aware that Mr Kalache was engaged in extensive dealing in drugs.

27    Mr Bonney had a long criminal history. At the time of sentence he was about fifty years of age. He had spent significant periods of time in custody. There was no previous drug history. In his youth, he committed serious offences involving personal violence but that had petered out in more recent years.

28    Mr Bonney did not establish his own clientele for the sale of drugs independently of Mr Kalache. He was not an independent vendor. Everything he did was done as an employee of Mr Kalache. He turned up each day at Mr Kalache’s residence and spent his day fetching and carrying money and drugs.

29    His Honour imposed an effective sentence of five years imprisonment on each count. His Honour found special circumstances. The effective minimum term was two years and nine months.

30    Mr Watkins was charged with the following offences: knowingly taking part in the manufacture of a prohibited drug (methylamphetamine) in an amount not less than the large commercial quantity; and knowingly taking part in the supply of that drug and of cannabis and ecstasy, all in not less than the respective commercial quantities.

31    Mr Watkins had a long history of criminal misconduct, mainly property offences but including a conviction for rape.

32    This offender had been actively engaged in the acquisition of raw materials for the manufacturing process. He was described by Woods DCJ as being at the level of a foot soldier in that regard, although, a necessary one. He was actively engaged in the distribution of the illicit drugs.

33    Mr Watkins was sentenced effectively to five years imprisonment including a minimum term of three years.

34    The last case is that of Mr Bruce. He was charged with knowingly taking part in the supply of methylamphetamine, cocaine and ecstasy each in not less than the respective commercial quantities. He had prior convictions.

35    Mr Bruce was sentenced to five years imprisonment including a minimum term of three years and nine months.

36    Of these five cases, there has been only one appeal against sentence. That was by Mr Bruce. The appeal failed.

37    The applicant’s sentence was less than those imposed on Mr Marskell and Mr Losurdo. The applicant says the margin was patently insufficient to reflect the difference between his level of criminality and that of the other two men.

38    It has to be acknowledged that the sentences imposed on Mr Marskell and Mr Losurdo were lenient, particularly the former. However, when one has regard to the nature and extent of the applicant’s criminal activity, I am not persuaded that the sentences are so patently disproportionate as to warrant interference by this Court on the principles that apply.

39    As to the three lighter sentences, I see no foundation for the argument that there was anything patently disproportionate about the sentences imposed on the applicant relative to the sentences imposed on Messrs Bonney, Watkins and Bruce. The applicant’s sentence was somewhat heavier and properly so.
Ground 3: That the allowance for special circumstances was inadequate.


40    Having found special circumstances, the extent, if at all, that the provisional statutory formula should be adjusted was a matter for the sentencing judge’s discretion. An important consideration was that the additional term could not be increased at the expense of the minimum term to an extent which reduced the minimum term below what the sentencing judge reasonably regarded as necessary to reflect the objective criminality of the offence.

41    The statutory formula would have resulted in a minimum term of four and a half years and an additional term of one and a half years. No error is demonstrated in the adjustment which his Honour made.

Ground 4: That undue weight was or may have been given to the offences in Form 2.

42    Counsel for the applicant points out that all of the other matters taken into account would have been dealt with summarily if the applicant had so requested. Each of the offences carried a maximum penalty of six months imprisonment. Be that as it may, there were a large number of them. His Honour was right to say that these additional matters made a significant contribution to the overall criminality for which the applicant was to be punished. I see no reason to conclude that his Honour over emphasised that contribution.

Conclusion
43    I would grant leave to appeal but dismiss the appeal.
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