Scheers v The Queen

[2009] NSWCCA 224

New South Wales
Court of Criminal Appeal

CITATION:	Scheers v R [2009] NSWCCA 224
HEARING DATE(S):	7 August 2009
JUDGMENT DATE:	11 September 2009
JUDGMENT OF:	McClellan CJatCL at 1; Howie J at 20; Hoeben J at 21
DECISION:	Grant leave to appeal but dismiss the appeal.
CATCHWORDS:	CRIMINAL LAW - appeal - appeal of sentence - whether the sentence is manifestly excessive - whether the sentencing judge erred by finding the applicant had "a well-entrenched pattern of disobedience to the law"
LEGISLATION CITED:	Drug Misuse and Trafficking Act 1985 Poisons & Therapeutic Goods Act 1966 Crimes Act 1900
CATEGORY:	Principal judgment
CASES CITED:	Veen v The Queen (No 2) (1987) 164 CLR 465
PARTIES:	Robert Vincent Scheers (Applicant) The Crown
FILE NUMBER(S):	CCA 2008/3963
COUNSEL:	P M Winch (Applicant) M M Cinque (Crown)
SOLICITORS:	Legal Aid Commission of NSW (Applicant) Director of Public Prosecutions (Crown)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	2008/3963
LOWER COURT JUDICIAL OFFICER:	Sides DCJ
LOWER COURT DATE OF DECISION:	3 September 2008

2008/3963

McCLELLAN CJ at CL
HOWIE J
HOEBEN J

FRIDAY 11 SEPTEMBER 2009

SCHEERS, Robert Vincent v R

Judgment

1 McCLELLAN CJ at CL: The applicant pleaded guilty to one count of supplying methylamphetamine contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985. The maximum penalty for the offence is imprisonment for 15 years. He also asked that 8 matters be taken into account on a Form 1.

2 The offence on the indictment related to the supply of 113 grams of methylamphetamine. The Form 1 matters were as follows:

(i) three offences of break enter and steal contrary to s 112(1) Crimes Act 1900 (committed on 18 May 2005, 22 February 2006 and 9 March 2006). The maximum penalty for an offence under that section was imprisonment for 14 years;

(ii) one offence of (deemed) supply of 51.4 grams of methylamphetamine on 27 July 2007 contrary to s 25(1)/29 Drug Misuse and Trafficking Act 1985;

(iii) two offences of possessing prescribed restricted substances contrary to s 16(1) Poisons & Therapeutic Goods Act 1966;

(iv) possession of .02 grams of methylamphetamine contrary to s 10 of Drug Misuse and Trafficking Act 1985; and

(v) dealing in property suspected of being the proceeds of crime ($220 cash and two laptop computers) contrary to s 193C(1) Crimes Act 1900.

3 The applicant was sentenced to a non-parole period of 4 years 2 months with an additional term of 2 years 4 months. The sentence was made partially concurrent with a sentence of 6 months imprisonment imposed by the Local Court for an offence of driving in a manner dangerous and a sentence of 12 months imprisonment which his Honour imposed for the breach of a s 12 bond. His Honour found special circumstances which reduced the non-parole period from the statutory relationship. The effective overall sentence was imprisonment for 6 years and 10 months with a non-parole period of 4 years and 8 months.

4 The facts found by his Honour were as follows:

“As at June/July last year the offenders were in a relationship and lived at 14 Mahan Way, Minto, the home. The offenders’ crimes were detected during an authorised control operation that commenced around about 5 June last year. The offence of on-going supply relates to the supply of small quantities of methylamphetamine by the offender Cornell to an undercover officer at her home. The first of those occurred on 18 July last year when the undercover officer came to the home after speaking to the offender on the telephone. She opened the door to his knock, took $50 from him and shortly afterwards handed the undercover officer a small bag of orange paste weighing .3 of a gram and containing methylamphetamine. The undercover officer made his second visit to the home on 20 July. This visit had been arranged during a telephone conversation with the offender. On this occasion the offender Cornell again answered the door and sold him .6 grams of methylamphetamine in return for $100. The final visit, which occurred on 27 July occurred pursuant to arrangements made between the undercover officer and the offender Scheers over the phone. Again the offender Cornell sold the undercover officer .6 of a gram of methylamphetamine for $100.
On 27 July last year police officers executed a search warrant at the home. Shortly after they entered the home the offender Cornell went to the freezer and opened it. Inside the police saw a container with a blue lid that was emitting a strong odour. Subsequent analysis of the contents of that container revealed that it contained methylamphetamine, the total weight of the substance being 51.4 grams. There is no evidence as to the purity of the methylamphetamine in the mixture. This gives rise to one offence of supply on the Form 1 schedule for each offender. The police also found two notebook computers during the search. Those computers, with $220, give rise to another offence on the Form 1 schedule for each offender. In the lounge room police officers found a notebook recording the sale of drugs by the offenders between 20 June and 26 July last year. This book revealed that, in a hundred and ninety seven transactions during that period, the offenders sold a total of 113.07 grams of methylamphetamine for $12,880. The contents of that notebook in regard to the drug dealing is set out in the short statement of facts in each case. Those particulars are the same in exhibit A1 and A2. They reveal the following:
On 20 June nineteen supplies of methylamphetamine had occurred with a total weight of 16.8 grams in return for $1,710.
21 June, nineteen supplies of methylamphetamine with a total weight of 9.02 grams in return for $1,070.
22 June seven supplies of methylamphetamine with a total weight of 4.6 grams in return for $430.
7 July, thirty seven supplies involving a total weight of 15 grams in return for an amount of $1,790.
9 July, twelve supplies of methylamphetamine weighing a total of 3.15 grams for $460.
11 July 2007, thirteen supplies weighing a total of 7.5 grams in return for $1,010.
12 July, nineteen supplies totalling 10.4 grams in return for $1,390.
13 July, twelve supplies totalling 6.2 grams in return for $430.
20 July, fourteen supplies weighing a total of 10.7 grams in return for $750.
21 July, eleven supplies weighing a total of 5.15 grams in return for $670.
25 July, eighteen supplies involving a total of 13.85 grams for $1,820; and
26 July, sixteen supplies involving 10.7 grams in return for $1,340.
These one hundred and ninety seven transactions plus the sale at their home of .65 of a gram of methylamphetamine to the undercover officer for $100 on 5 July give rise to the offence of supply in connection with each offender.
After the police entered the home the offender Scheers was not cooperative with the police. Contrary to their direction he went upstairs. Once upstairs he refused to drop a syringe that he was holding. After the police sprayed him with capsicum he went into the toilet. The police were forced to break into the toilet to gain access to him. Inside the toilet they found a syringe containing .02 grams of methylamphetamine, forty seven tablets containing Diazepam and eighteen tablets containing Oxazepam. His possession of the tablets and the methylamphetamine give rise to three offences on the From 1 schedule.
The other three offences on his Form 1 schedule were three offences of break enter and steal he committed on 18 May 2005 at Gymea, 22 February 2006 at Ingleburn and on 9 March 2006 at Macquarie Fields. He was detected in connection with each of these matters after DNA found at the scene had been matched to his DNA. In the main he stole electrical equipment during each of the offences. However during the Ingleburn offence he also stole a bike which the police found on 19 march 2006 in the possession of Scott Cornell, his partner’s son. It appears that this was the only property, the subject of these matters, that was in fact recovered.”

5 At the time of sentencing the applicant was within 12 days of his 34^th birthday. He comes from a home where both parents abused liquor. They separated during his childhood. He has had only intermittent contact with his father. At the time of his arrest he was living in a relationship which had existed for approximately 4 years by the time he was sentenced.

6 The applicant was a poor learner and left high school during Year 8. He has worked for a short time in a factory and also as a labourer. He fell into criminal activity as the availability of work for him declined. The evidence before the sentencing judge was that the applicant had been on a disability pension for 5 years until the time of his arrest.

7 The applicant commenced abusing liquor in his mid teens although he managed to abstain following his release from prison on an earlier occasion. He began to abuse liquor again in the 12 months before his arrest on the present matter. The applicant also began using cannabis at the age of 15 which has continued. He has abused amphetamines and has used heroin. He has been on and off a methadone program. He has been diagnosed with schizophrenia and has been prescribed anti-psychotic medication on an intermittent basis. His use of illegal drugs has contributed to his psychiatric problems.

8 The applicant has a lengthy criminal history. His record commences in 1991 when he was about sixteen or seventeen years old with serious motor traffic offences and a break enter and steal offence. From 1991 until his arrest for the present offence the applicant has committed driving offences, break enter and steal offences as well as break and enter with intent offences. The applicant has also committed the offences of possession of prohibited drug, malicious damage, and stealing of a motor vehicle. He has been sentenced to several terms of imprisonment with the most lengthy being four years for the offence of aggravated break enter and steal and commit a serious indictable offence in 2003.

9 The sentencing judge recognised the applicant’s criminal history and concluded that it disentitled him to leniency which would otherwise be available to those who could demonstrate prior good character.

10 The present offence was the first occasion on which the applicant was sentenced for supplying drugs. However, the sentencing judge concluded that the applicant “has a well entrenched pattern of disobedience to the law.” At the time of the present offence the applicant was on bail and subject to a court attendance notice in respect of 3 separate groups of offences relating to various driving matters.

11 The sentencing judge concluded that the applicant’s criminal history, past relapses to drug use and his past attitude to drug use in the context of his mental health “leave the court with nothing other than pessimism as far as his prospects of rehabilitation and not re-offending are concerned.” The sentencing judge was satisfied that it would be necessary for the applicant to spend his custodial term in protection.

12 The applicant raised two grounds of appeal.

Ground 1: the sentence is manifestly excessive.

Ground 2: the sentencing judge erred by finding that the applicant “as a well-entrenched pattern of disobedience to the law” by reference to his criminal history.

13 The submission with respect to the second ground of appeal identified the fact that the expression “well entrenched pattern of disobedience to the law” are the words used by the High Court in Veen v The Queen (No2) (1987) 164 CLR 465. It was submitted that the criminal history of the applicant, although it is significant, was not sufficiently serious to be described in the manner stated by the sentencing judge so as to justify a longer sentence on the basis identified in Veen (No 2) that retribution, deterrence and protection of the community have a greater role to play in the sentence. It was submitted that the sentencing judge erred in finding that the applicant’s criminal history aggravated the offence since it demonstrated “a well-entrenched pattern of disobedience to the law.”

14 After careful consideration of the sentencing judge’s remarks I do not believe that the suggested error has occurred. The sentencing judge made no reference to Veen and did not suggest that he was using the applicant’s prior criminal history to “aggravate” the offence or to “justify a longer sentence” in the manner suggested. His Honour did, in my opinion, correctly identify that the applicant has a very lengthy criminal history which disentitles him to the leniency which might be afforded those with prior good character. His Honour also, correctly, identified that the criminal history of the applicant, which includes breaches of supervisory orders and continuing lapse into the use of prohibited drugs indicates that he had little prospect of rehabilitation.

15 The submission that the sentence is manifestly excessive was developed by reference to the Judicial Commission statistics for the relevant offence. It was submitted that the sentence imposed on the applicant was at the top of the range disclosed in the statistics placing it in the range of sentences which have been imposed for the more serious offence involving a commercial quantity of the relevant drug. The applicant emphasised that his Honour described the offence as “serious” and falling within the mid range which, it was submitted, could not justify a sentence at the top of the range.

16 This Court has on many occasions emphasised the care with which statistics must be used when considering whether an individual sentence is appropriate for the offence and the offender. They are of considerable assistance in helping sentencing judges to identify the range of sentences which have been imposed for similar offences. However, the longest sentence which has historically been imposed is not the maximum which can or should be imposed.

17 In the present case it was appropriate that his Honour describe the offence as serious and falling in the mid range of objective seriousness. The personal circumstances of the applicant, including the fact that he committed the offence when on conditional liberty, had the consequence that a sentence more significant than may have been imposed for similar offences without these features was required. It was also relevant that his Honour was required to sentence the applicant not only for the offence on the indictment but also for the series of offences, including multiple drug offences which were included on the Form 1. His Honour did recognise the applicant’s early guilty plea and allowed a discount of twenty-five percent.

18 I am not persuaded that his Honour erred or that the sentence imposed was excessive.

19 I would grant leave to appeal but dismiss the appeal.

20 HOWIE J: I agree with McClellan CJ at CL.

I agree with McClellan CJ at CL.

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