Simpson v Regina

[2006] NSWCCA 117

CITATION:	Simpson v Regina [2006] NSWCCA 117
HEARING DATE(S):	20/03/2006
JUDGMENT DATE:	13 April 2006
JUDGMENT OF:	McClellan CJ at CL at 1; Sully J at 2; Hislop J at 3
DECISION:	1. Leave to appeal granted; 2. Appeal dismissed.
CATCHWORDS:	Criminal law - Guilty plea - Deemed supply of drugs - Custodial sentence - Alleged exceptional circumstances - Deterrence - Sentence not manifestly excessive.
LEGISLATION CITED:	Drug Misuse and Trafficking Act 1985 - s 25
CASES CITED:	Markarian v R [2005] 215 ALR 213 R v Simpson (2001) 53 NSWLR 704 R v Tait (1979) 46 FLR 386 Regina v Ha [2004] NSWCCA 386 Regina v Yerkovic [2000] NSWCCA 281
PARTIES:	Applicant - Julian Mark Simpson Respondent - Regina
FILE NUMBER(S):	CCA 2006/469
COUNSEL:	Applicant - Mr R. Bonnici Respondent - Mr P. Barrett
SOLICITORS:	Applicant - Justin Lewis & Co Respondent - Director of Public Prosecutions (New South Wales)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	05/51/0036
LOWER COURT JUDICIAL OFFICER:	Black DCJ

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2006/469

McCLELLAN CJ at CL
SULLY J
HISLOP J

13 April 2006

Julian Mark SIMPSON v REGINA

Judgment

1 McCLELLAN CJ at CL: I agree with Hislop J.

2 SULLY J: I agree with Hislop J.

HISLOP J

Introduction

3 The applicant pleaded guilty to 3 counts that he did on 28 June 2004 supply a prohibited drug contrary to the Drug Misuse and Trafficking Act 1985 (‘the Act’) s 25.

4 The counts related to cannabis (count 1), methylamphetamine (count 2) and methylenedioxymethylamphetamine (count 3). The drugs were discovered in a unit rented by the applicant during the execution of a warrant by police on 28 June 2004.

5 The maximum penalty is ten years imprisonment or a fine of 2000 penalty units or both (count 1) and 15 years imprisonment or a fine of 2000 penalty units or both (counts 2 and 3 - s 32(1) of the Act).

6 On 11 August 2005 Judge Black QC sentenced the applicant in the District Court in respect of the three counts to imprisonment for a non-parole period of 15 months commencing on 11 August 2005 with the balance of the sentence of 15 months to date from 10 November 2006 and expire on 10 February 2008.

7 The applicant has sought leave to appeal against the sentence. Two grounds were argued on the appeal. Firstly that the circumstances of the case were so exceptional that his Honour must necessarily have erred in imposing a full time custodial sentence or, alternatively, if it had been open to his Honour to impose a custodial sentence, the custodial sentence imposed by his Honour was manifestly excessive.

Discussion

8 The applicant had a strong subjective case. In particular he had, for a lengthy period, engaged in voluntary work in his local community. This had been largely as a facilitator of youth events relating to surfing and skateboarding. He had been instrumental in lobbying the local council for a skateboard park. He had come to the attention of the former mayor, Mr Moore. Mr Moore gave evidence on his behalf, praising his inherent qualities, community involvement and expressing optimism for his future and that his engagement in youth work in the community would continue. The applicant had had a drug problem. He sought assistance himself for that problem and had successfully completed a MERIT course. The applicant gave evidence, as to which he was not cross-examined, that he was in employment and was conducting a small business. He expressed his remorse for what had occurred and his positive state of mind for the future.

9 His Honour approached the sentencing task in a conventional manner. He made a number of findings as to the applicant’s subjective case. In particular he noted in his remarks on sentence:

a) The applicant had no previous convictions;
b) He had shown remorse by his pleas and entering into the MERIT programme;
c) His successful involvement in that programme;
d) That in the past he had shown he was capable of, and did, contribute significantly to the welfare of the community and there were real prospects he could contribute to the community in the future;
e) A former mayor and community relations officer gave evidence highly commendatory of the applicant, expressed optimism for his future and that he may contribute to the community once again;
f) He was unlikely to re-offend;
g) He has and continues to have good prospects of rehabilitation;
h) He displayed courage in giving evidence at the sentencing hearing;
i) He pleaded guilty at the earliest opportunity.

10 The applicant has submitted that his Honour erred in that he did not refer in his remarks on sentence to the fact that the applicant was not cross examined on his evidence, had obtained employment and had set up his own small business, was ashamed of his actions, that he had initiated his attendance in the MERIT program and that his Honour had not referred to the report of the psychiatrist or to the opinion of the psychiatrist and Mr Moore that a non custodial sentence was called for.

11 It is not necessary that every matter considered by a sentencing Judge be referred to in the remarks on sentence. As his Honour sentenced the applicant upon completion of the evidence and submissions he would undoubtedly have had the matters referred to in the preceding paragraph in mind at that time and, of course, the determination of the appropriate sentence is a matter for the sentencing Judge, not the witnesses.

12 His Honour gave the applicant credit for the subjective matters, but, as he said in his remarks on sentence, he had to also bear in mind “the other side of the coin”.

13 On “the other side of the coin” was the fact that the applicant had pleaded guilty to the supply of prohibited drugs. Although there was no evidence of actual supply, supply was deemed pursuant to the operation of s 29 of the Act. The cannabis found was more than twice the trafficable quantity, the methylamphetamine was almost 50% more than the trafficable quantity and the methylenedioxymethylamphetamine was more than 14 times the trafficable quantity.

14 There was evidence the applicant had a significant drug problem at the time but, as his Honour observed, there had been no attempt to claim that the drugs were all in relation to some personal use or need or to otherwise attempt to reduce the severity of the offences.

15 As the applicant had pleaded guilty to a deemed supply of prohibited drugs it was not open to his Honour to deal with the matter on any basis other than that the applicant had the drugs in his possession for the purpose of supply. In this context it was observed by his Honour that the offences to which the applicant had pleaded guilty impact upon the very people in the community that the applicant had done so much to help in the past.

16 In the case of offences of supplying prohibited drugs the need for general deterrence is high. There is an established rule that for such offences a full time custodial sentence must follow unless exceptional circumstances can be shown – see Regina v Yerkovic [2000] NSWCCA 281 at [13], Regina v Ha [2004] NSWCCA 386 at [20] and the cases discussed therein. Periodic detention is not usually considered an appropriate sentence with prohibited drug supply offences.

17 His Honour referred to that principle. In doing so he referred to “particular circumstances” rather than “exceptional circumstances”. This was presumably but a slip of the tongue. If it was not, it would appear to connote a lesser test than that required by “exceptional circumstances”.

18 His Honour discounted the sentence by 25% for the plea of guilty. He found special circumstances by reason particularly that it would be the applicant’s first sentence of imprisonment, and that he had exceptional prospects of continuing to contribute to the community. The finding of special circumstances was reflected in a significant variation of the statutory non-parole ratio.

19 It is apparent from the sentence imposed by his Honour that he concluded the applicant’s subjective case was not such as to overcome the need for general deterrence by way of a custodial sentence. In my opinion it was open to his Honour to so conclude.

20 As the High Court observed in Markarianv R [2005] 215 ALR 213 at 221:

… a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion.

21 An appellate Court interferes only if it be shown that the sentencing judge was in error – R v Tait (1979) 46 FLR 386 at 388, and then only if it forms the positive opinion that some other and more lenient sentence is warranted in law and should have been passed – R v Simpson (2001) 53 NSWLR 704 at [79].

22 In the present case the decision that a custodial sentence was appropriate and the length of the sentence imposed represent the conclusion of an experienced District Court Judge who had the benefit, which this Court does not have, of hearing the applicant and his witness give evidence. In my opinion the sentence represents an exercise of the sentencing discretion which was open to his Honour and one with which this Court should not interfere. Accordingly, whilst I would grant leave to appeal, I would dismiss the appeal.

Orders

23 I propose the following orders:

1. Leave to appeal granted.
2. Appeal dismissed.

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