Santos v The Queen

[2010] NSWCCA 127

New South Wales
Court of Criminal Appeal

CITATION:	SANTOS v R [2010] NSWCCA 127
HEARING DATE(S):	2 March 2010
JUDGMENT DATE:	16 June 2010
JUDGMENT OF:	Giles JA at 1; Hulme J at 2; Latham J at 3
DECISION:	Leave to appeal granted. Appeal dismissed
CATCHWORDS:	CRIMINAL LAW - appeal against sentence - plea of guilty to two counts of supplying a prohibited drug (MDMA) - whether Judge failed to find that the applicant's subjective circumstances were sufficiently exceptional to justify a sentence other than full-time custody - whether sentence manifestly excessive.
CATEGORY:	Principal judgment
CASES CITED:	R v Gip ; R v Ly [2006] NSWCCA 115 R v Saba [2006] NSWCCA 214 R v Cacciola (1998) 104 A Crim R 178
PARTIES:	Emilio Santos - Applicant Regina - Crown Respondent
FILE NUMBER(S):	CCA 2008/11486
COUNSEL:	CV Jeffreys - Applicant F Veltro - Crown Respondent
SOLICITORS:	Jeffreys & Associates - Applicant S Kavanagh (Solicitor for Public Prosecutions - Crown Respondent
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	2008/11486
LOWER COURT JUDICIAL OFFICER:	Sorby DCJ
LOWER COURT DATE OF DECISION:	27/7/09

2008/11486008

GILES JA
HULME RS J
LATHAM J

16 JUNE 2010

EMILIO SANTOS v R

Judgment

1 GILES JA : I agree with Latham J.

2 HULME J : I agree with Latham J.

3 LATHAM J : The applicant appeals against a sentence imposed by Sorby DCJ (the Judge), following the applicant’s pleas of guilty to two counts of supply prohibited drug (MDMA), each carrying a maximum penalty of 15 years imprisonment. A charge of goods in custody ($2,125:00) was taken into account on a Form 1 when sentence was imposed on the second count.

4 A fixed term of 4 months was imposed on the first count. A non parole period of 14 months was imposed on the second count, with a balance of term of 14 months. The latter sentence was accumulated on the former sentence to the extent of one month, resulting in an aggregate non parole period of 15 months, with a balance of term of 14 months.

5 The grounds of the appeal were confined to the Judge’s failure to find that the applicant’s subjective circumstances were sufficiently exceptional to justify a sentence other than full-time custody and to the manifest excess of the sentences.

The Offences

6 On Thursday 24 January 2008 an undercover police officer arranged a meeting with the applicant to purchase MDMA. The meeting occurred at approximately 6:40 p.m. at the Woollahra Hotel, at which time the applicant supplied 15 “ecstasy” tablets (pink, bearing a cross) for the price of $450. During the meeting the undercover police officer enquired of the applicant whether he could supply the drugs at a cheaper price. The applicant indicated "that would depend on how many you get". There was some further discussion about the supply of approximately 50 tablets at a price of $20 each. These events represent the first charge of supply (actual).

7 The conversation was recorded on a listening device. The tablets were found upon analysis to contain the drug MDMA, the total weight being 4.4 g at a purity of 26.5%.

8 Between 5 and 26 February, the undercover police officer contacted the applicant on five occasions requesting more drugs. On 26 February 2008, the applicant told the officer that he had nothing to sell but would "give him a call when I hear something".

9 On 28 February 2008, the police executed a search warrant on the applicant's premises in Kent Street, Waverley. The applicant was placed under arrest, searched, cautioned and told that the premises would be searched. He was taken to Waverley police station and was placed into custody before being returned to his home so that the police could complete the search of the applicant's bedroom. The police asked the applicant whether there was any particular place they should be looking, to which the applicant replied "I don't know".

10 In the wardrobe of the applicant's bedroom, the police found two clear plastic freezer bags, containing a quantity of green tablets, within the right-hand pocket of a blue ski jacket. There was also a quantity of cash and a blue tin, containing the same green tablets embossed with a heart-shape. The applicant was cautioned and asked about the tablets, to which he replied "no comment". The applicant was also asked about the cash in the sum of $1890. The applicant admitted that the ski jacket belonged to him but declined to answer any further questions.

11 In the left-hand pocket of the ski jacket, the police found a broken pink tablet with a cross, which appeared to be identical to those tablets supplied on 24 January 2008.

12 The police also found two Optus prepaid sim card packets and two Vodafone prepaid sim card packets, all of which were unopened, and a mobile telephone on a charger. In another room of the premises, police found a red bag which contained a mobile phone and wallet, with personal papers in the applicant's name and $235 in cash.

13 Later analysis of the tablets disclosed a total of 75.28 g of MDMA, the indictable quantity being 1.25 g. This constitutes the basis of the second count of supply (deemed).

14 The Judge found that the actual supply was at the lower end of the scale, but that the deemed supply, whilst falling below the mid range of objective gravity, was not a minor offence. In particular, the Judge determined that the applicant was trafficking in MDMA to a substantial degree. These findings are not disputed.

The Applicant’s Subjective Circumstances

15 The applicant's subjective case was a very favourable one. At the time of sentence he was 25 years of age and had no prior convictions. He was educated to university level and obtained degrees in business and information systems. He supported himself throughout his tertiary studies by working in the hotel industry. After his graduation he was unable to obtain full-time work in the business community, so he continued working in bars and related hospitality areas. However, at the time of sentence he had obtained full-time employment with a financial institution as a systems analyst. A testimonial from his employer spoke positively of the applicant’s work ethic.

16 An impressive number of very positive testimonials were tendered on sentence. The applicant had voluntarily participated in programs at Ronald McDonald house in July 2002 and had also volunteered at the Matthew Talbot Hostel in East Sydney since his arrest. The Judge accepted that his prospects of rehabilitation were good and that he was unlikely to re-offend. There was cogent evidence of the applicant’s contrition and remorse.

17 The principal subjective circumstance upon which the applicant's legal representative relied on sentence and on the hearing of the appeal was the fact that the applicant was diagnosed with cancer at the age of nine. He underwent lengthy treatment, including chemotherapy and annual medical checkups. In June 2002, it appeared that the cancer had re-emerged, however further investigation discounted that possibility. The applicant lives with the anxiety of a recurrence of his childhood cancer, a fear which was more acute at the time of sentence owing to a diagnosis of cancer in his grandmother.

18 The significance of the numerous reports that related to the applicant’s diagnosis and treatment for cancer resided in a proffered explanation for the applicant’s drug-taking behaviour. I note in passing that there was a discrepancy between the pre-sentence report and the report under the hand of Emma Thomas, to which the Judge expressly referred in the course of his remarks on sentence.

19 The former report noted that the applicant said he started experimenting with illicit drugs from about the end of 2006 and was using more consistently by the end of 2007. He stated that ecstasy had been his drug of choice. He further stated that his involvement in supplying drugs developed as a means of meeting the cost of his own drug use. The latter report noted that the applicant stated his involvement with the "drug scene" was fairly short lived. The applicant reported to Ms Thomas that he began using ecstasy during the summer of 2007/2008 and became more reliant upon it over the course of the following months. The applicant said he was taking up to 10 ecstasy tablets a day, albeit not every day. The applicant told Ms Thomas that he mainly used ecstasy to feel less inhibited in social settings and with large groups, because it gave him a sense of control in his life. The applicant further stated that during February 2008 he was increasingly engaging in risk-taking behaviours and was not motivated in any area of his life.

20 Ms Thomas referred to a number of factors which contributed to the applicant's vulnerability to drug use, including his social anxiety, his fear of the recurrence of cancer, his inability to live up to others’ expectations (in particular, his parents’) and his social isolation. It was said that the applicant was isolated from his peer group as a result of many of his contemporaries obtaining full-time employment in their chosen field and, in effect, leaving the applicant behind.

21 A report under the hand of Dr Richard Cohn of the Centre for Children's Cancer and Blood Disorders noted that the applicant had been attending the Cancer Survivorship Clinic for a number of years. Dr Cohn reported that :-

Long-term survivors are at risk of life-threatening and life altering complications as a result of their therapy. Life-threatening complications include the risk of the development of new, secondary cancers at a rate higher than age matched peers as well as the risk of organ failure. There are also many life altering complications which affect physical and emotional well-being. It is well recognized that long-term survivors may have many psychological side-effects including post-traumatic stress disorder, problems with relationships, suicidal ideation, and indulge in risk-taking behaviour.

22 A report under the hand of Anthony Diment, a consultant psychologist, concluded that the applicant suffered from a long-standing depression which was linked to his cancer diagnosis, and that he also had symptoms consistent with post-traumatic stress disorder.

23 These reports were complemented by evidence from the applicant, the applicant's mother and the applicant's girlfriend. In summary, the applicant told the Judge that he had started using ecstasy at the end of 2005. Until the end of October/November 2007, he used it very sparingly but at that time, he learned his grandmother had relapsed with cancer, and this made him increasingly anxious about his own health. His use of ecstasy escalated. Between December 2007 and his arrest, he was financing his use of ecstasy by earning money from his employment and supplying friends with between 5 and 10 tablets a week. He purchased ecstasy in large quantities principally for his own use, on the basis that large-scale purchases allowed for a better quality drug at a cheaper price. Of the 250 tablets found in his bedroom, the applicant was intending to sell about 100 of them. The applicant purchased the drug at $16 per tablet and sold them at $30 per tablet.

24 The applicant lived at home. He did not pay rent and paid board only occasionally. He earned about $650 per week. He owned a motor vehicle and had been loaned some money by his parents so that he could invest in shares.

Error in the Consideration of the Applicant’s Subjective Case

25 The Judge noted what was said in R v Gip ; R v Ly [2006] NSWCCA 115 concerning the features of trafficking, and went on to consider whether the applicant’s subjective circumstances warranted the description “exceptional”, so as to justify the imposition of a sentence falling short of full-time custody.

26 The combination of circumstances enumerated by the Judge were the applicant’s age, his good character, his employment history and the fact that he was drug-free. These were relied upon by the applicant, in combination with the applicant’s heightened susceptibility to risk taking behaviour, such as drug abuse, and the applicant’s post traumatic stress disorder, arising directly out of his experience as a cancer survivor from a young age. The applicant’s legal representative referred expressly to Mr Diment’s report and to Dr Cohn’s report in submitting that it was this aspect of the applicant’s history which elevated it to “an exceptional case”. Yet, the Judge did not include this arguably most significant factor when addressing this particular issue.

27 Earlier in his remarks, the Judge referred to the applicant’s cancer diagnosis, but failed to link it to his consideration of exceptional circumstances. To the extent that the applicant was undergoing treatment for depression, that was considered in the context of a finding of special circumstances. Dr Cohn’s and Mr Diment’s report were not referred to by the Judge, although it is accepted that he was aware of the significance that the applicant attributed to them.

28 In my view, the applicant has established error in this respect. The applicant’s primary submission is that the error leads to the conclusion that the Judge ought to have found exceptional circumstances. In the alternative, the applicant submits that the error leads to the conclusion that the sentence is manifestly excessive.

Exceptional Circumstances

29 As Handley JA observed in R v Saba [2006] NSWCCA 214 at [17] to [19] :-

This Court has consistently held that drug trafficking requires the imposition of a sentence of full time custody unless there are exceptional circumstances. Although this principle predates the decision in R v Clarke (NSWCCA, 15 March 1990, unreported), that case is commonly cited for this proposition. As Priestley JA pointed out in R v Cacciola (1998) 104 A Crim R 178, this Court has not undertaken an exhaustive definition of what does and does not constitute exceptional circumstances. Nevertheless there are some clear guidelines.
18 Rehabilitation by itself is not an exceptional circumstance. That was established in R v Thompson (NSWCCA, 4 April 1991, unreported), particularly in the judgment of Hunt J at pp 9 and 10. His Honour referred to the case of R v Betwell (NSWCCA, 4 December 1990, unreported) where two Judges of this Court held that a combination of a period of full time custody, in that case seven months, and rehabilitation did constitute exceptional circumstances.
19 Further consideration was given to this question in R v Carrion (2002) 49 NSWLR 149 in the judgment of Grove J at 153-155, concurred in by other members of the Court. His Honour distinguished between matters he categorised as commonplace and matters he categorised as exceptional.

30 Grove J’s analysis in Carrion confirms that the relevant exceptional matter is regarded as such because it is “a matter of exceptional mitigation” (at [28]) or because it constitutes “an exceptional reason for departing from applicable authority” (at [31]).

31 In R v Cacciola (1998) 104 A Crim R 178, it was said that “a combination of subjective circumstances each strong in itself does not add up to exceptional circumstances unless the aggregate of all those circumstances point to the case being one of real difference from the general run of cases that come before the Courts.”

32 Accepting that the applicant’s childhood cancer diagnosis, and his subsequent treatment, was a significant feature of his subjective case, did the combination of all of the subjective factors take this case out of the general run of cases, and mitigate the objective gravity of the offences, to the extent that a penalty other than full-time custody adequately reflected the criminality of the applicant? There are a number of features of the applicant’s offending that compel me to answer “no”.

33 The applicant was not so immature or lacking in judgment that he could not appreciate that the supply of prohibited drugs was a serious criminal offence. The applicant’s use of ecstasy commenced, on his own account, during his last year at university. Since gaining his tertiary qualifications at the end of 2006, the applicant’s preferred form of casual employment gave him ready access to the drug culture.

34 The applicant’s grandmother was diagnosed in 1993 with an inoperable benign tumour on the right side of the brain. Since that time, she has had cancer of the left kidney (2003) and cervical cancer (October 2007). As at the date of sentence, the applicant’s grandmother was 81 years of age and undergoing 3 monthly check-ups. In short, the applicant had lived with the knowledge that his grandmother had cancer since at least 2003. I accept that a diagnosis of cancer in a family member at any time would remind the applicant of his own mortality. It may be accepted that the applicant’s use of ecstasy increased in 2007 as a result of that anxiety. However, implicit in the applicant’s argument is the proposition that he would not have engaged in the wholesale purchase and supply of ecstasy, but for his heavy consumption of that drug, which was in turn related to his childhood cancer and sequelae.

35 The applicant’s evidence was that his personal use at its height was up to 15 tablets per week at a cost of approximately $340. The applicant was financing his use from his bar earnings. Given the lack of any substantial expenses, that represented about half of his weekly income, which was well within his means. He estimated that he had sold about 120 tablets in total for $30 each between December 2008 and his arrest, and that he had used about 100 tablets in that time. The applicant further admitted that he proposed selling about 100 of the 250 tablets that were the subject of the deemed supply charge. By selling about half of the amount that he purchased at about twice the cost, the applicant was effectively breaking even. This allowed the applicant to indulge in drug-taking without having to pay for it from his legitimate earnings.

36 I reject the proposition that the applicant was somehow driven to engage in the supply of ecstasy because of his personal use. It was a deliberate and calculated decision to obtain free drugs for himself, rather than deplete his wages. Whatever personal factors might incline one to engage in risk-taking behaviour, such as the consumption of illicit drugs, those same personal factors ought not necessarily lead to a conscious decision to supply drugs.

37 The applicant’s circumstances were not so exceptional that a sentence other than full-time custody was within the proper exercise of the sentencing discretion. I turn to the question whether the sentence is manifestly excessive.

Manifest Excess

38 There can be no complaint that a fixed term of 4 months for an actual supply of 4.4 g of MDMA is manifestly excessive. The amount of the supply on this count represents slightly more than three times the indictable quantity. In any event, the applicant only served one month’s custody solely referable to this offence, given the commencement of the sentence imposed for the second count.

39 The amount in the possession of the applicant on the second count represented 60 times the indictable quantity. A sentence of 2 years and 4 months for an offence carrying a 15 year maximum penalty falls in the lower half of the range of sentences imposed in the District Court on first-time offenders pleading guilty, with a matter on a Form 1, according to the Judicial Commission statistics. This is a sentence which is consistent with the Judge’s finding that the offence fell below the midrange of objective gravity. It is not, in my view, manifestly excessive.

40 The Judge rightly recognised the applicant’s strong subjective circumstances by reducing the non parole period to approximately half of the sentence. That factor is of some significance on this ground of the appeal, given that the non parole period also plays a role in reflecting the objective gravity of the offences.

41 I would grant leave to appeal and dismiss the appeal.

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