Smith v R

[2007] NSWCCA 138

New South Wales
Court of Criminal Appeal

CITATION:	Phillip Edward Smith v R [2007] NSWCCA 138 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	10/05/07
JUDGMENT DATE:	22 May 2007
JUDGMENT OF:	Campbell JA at 1; James J at 2; Smart AJ at 64
DECISION:	1. Leave to appeal against the sentences granted. 2. Allow the appeal against the sentences. 3. Applicant re-sentenced.
CATCHWORDS:	Criminal Law - Sentencing - maximum penalty for offence wrongly stated - element of offence taken into account as aggravting factor - sentence manifestly excessive
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act Drug Misuse and Trafficking Act
CASES CITED:	Markarian v The Queen (2005) 79 ALJR 1048 R v Hoon & Pouoa [2000] NSWCCA 137 R v Kairouz [2005] NSWCCA 247 R v Khaled [2001] NSWCCA 169 R v Mouloudi [2004] NSWCCA 96 R v Smiroldo [2000] NSWCCA 120 R v Tadrosse [2005] NSWCCA 145 Sharwood v Regina [2006] NSWCCA 157
PARTIES:	Phillip Edward Smith v R
FILE NUMBER(S):	CCA 2007/438
COUNSEL:	Mr M J Johnston - Applicant Mr W Dawe QC - Respondent
SOLICITORS:	S E O'Connor (LAC) - Applicant S Kavanagh (Solicitor for Public Prosecutions) - Respondent
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	06/61/0074
LOWER COURT JUDICIAL OFFICER:	Nield DCJ
LOWER COURT DATE OF DECISION:	03/08/06

2007/438

CAMPBELL JA
JAMES J
SMART AJ

TUESDAY, 22 MAY 2007

PHILLIP EDWARD SMITH v R

Judgment

1 CAMPBELL JA: I agree with James J.

2 JAMES J: Phillip Edward Smith applied for leave to appeal against sentences imposed on him by his Honour Judge Nield in the Bathurst District Court on 3 August 2006. His Honour sentenced the applicant for two offences, to both of which the applicant had pleaded guilty, namely an offence of supplying a prohibited drug (amphetamine) on an ongoing basis between 30 November 2005 and 12 December 2005 (which I will refer to as “the ongoing supply offence”) and an offence of supplying a prohibited drug (cannabis) between the same dates (which I will refer to as “the supply offence”). In sentencing the applicant for the ongoing supply offence, his Honour took into account four offences of supplying a prohibited drug (cannabis), supplying a prohibited drug (amphetamine), goods in custody and possessing a prohibited drug (cannabis).

3 For the supply offence his Honour imposed a sentence of imprisonment consisting of a non-parole period of one year commencing on 12 December 2005, the date on which the applicant was taken into custody, and a balance of the term of one year commencing on 12 December 2006 and expiring on 11 December 2007.

4 For the ongoing supply offence his Honour imposed a sentence of imprisonment consisting of a non-parole period of two years commencing on 12 June 2006 and expiring on 11 June 2008 and a balance of the term of two years commencing on 12 June 2008 and expiring on 11 June 2010.

5 Accordingly, his Honour made the sentence for the ongoing supply offence partly cumulative on the sentence for the supply offence. The total effect of the sentences was that the applicant was sentenced to terms of imprisonment totalling four and a half years, with non-parole periods totalling two and a half years.

6 The ongoing supply offence was the offence under s 25A of the Drug Misuse and Trafficking Act, which provides that a person who on three or more separate occasions during any period of 30 consecutive days supplies a prohibited drug (other than cannabis) for financial or material reward is guilty of an offence. The maximum penalty for an offence under s 25A is a fine of 3500 penalty units or imprisonment for 20 years or both.

7 The supply offence was an offence under s 25(1) of the Drug Misuse and Trafficking Act, which provides that any person who supplies a prohibited drug is guilty of an offence. Section 32(1)(h) of the Act provides that, except as provided in ss 30 and 31, neither of which was applicable in the present case, the maximum penalty for an offence under s 25(1), where the offence relates to cannabis plant or cannabis leaf, is a fine of 2500 units or imprisonment for a term of 10 years or both.

8 There is no standard non-parole period for either of the offences for which the applicant was sentenced.

9 A set of agreed facts was admitted in the proceedings on sentence and formed the basis for his Honour’s statement of the facts of the offences in his remarks on sentence. This part of his Honour’s remarks on sentence was quoted in the written submissions of both the applicant and the respondent on this application and I will now reproduce them.

“The offender had attended school with the children of Ronald Bettles. He obtained the cannabis that he smoked and the amphetamine that he used from Ronald Bettles. Some months before his arrest he commenced to supply cannabis and amphetamine to users of it for Ronald Bettles, for which he obtained cannabis and amphetamine from Ronald Settles at a discounted price. Then a few months before his arrest he commenced to supply cannabis and amphetamine to users of it on his own behalf and he obtained his supplies of cannabis and amphetamine from Ronald Settles .

On 30 November 2005 police executed a lawfully issued search warrant on the home of Ronald Bettles at 25 Carlingford Street in Bathurst. At that time the offender, Ronald Bettles, his wife Alicia Cole, his son Robert Settles and his son's girlfriend were in the home and they were arrested and taken to Bathurst Police
Station. When he was interviewed, the offender denied knowing anything about the home being used as a place for the supply of prohibited drugs and he was released without being charged with any offence.

However, on that day 30 November 2005 police, when the offender and the others were at Bathurst Police Station, installed a listening device in the home of Ronald Bettles and the device recorded conversations between people inside the home. Moreover, between 30 November 2005 and 12 December 2005, police recorded the movements of cars to and from and people into and out from the home.

Between 30 November 2005 and 12 December 2005, police recorded numerous conversations between the offender and Ronald Bettles, Alicia Cole and Glen Alderton and other unidentified persons related, inter-alia, to the supply of cannabis and amphetamine. These conversations confirmed that the offender, Ronald Bettles, Alicia Cole and Glen Alderton were supplying cannabis and amphetamines to users of them and using the home of Ronald Settles as their base for doing so.

On 12 December 2005 police executed another lawfully issued search warrant on the home of Ronald Bettles. At that time the offender, Ronald Bettles and some other people were in the home and they were arrested. During the search of the home, police found a quantity of cannabis, a quantity of amphetamine, a number of small resealable plastic bags, scales and an amount of money.

During the search of the offender, police found twelve small resealable plastic bags, each containing a quantity of cannabis, which he intended to supply to users of it, an eight-ball, that is 3.5 grams, of amphetamine, which he intended to supply to users of it, and $200, of which $140 had been received by him on supplying, cannabis and amphetamines to users of them.

After the search of the home of Ronald Bettles, the offender was taken to Bathurst Police Station and then, after a search warrant was obtained, he was taken to his parent's home which was searched, during which police found a quantity of cannabis, scales, about 500 small resealable plastic bags and a radio scanner.

After being returned to the police station, the offender was interviewed by police. The interview commenced at 8.30pm on 12 December 2005 and concluded at 1.25am on 13 December 2005. The interview was recorded on video and audio tapes. The offender was asked 1,441 questions. During the interview the offender admitted using cannabis and amphetamine and supplying them to users of them.”

10 His Honour’s statement of the facts of the offences in his remarks on sentence did not incorporate parts of the agreed facts which gave particulars of the individual drug transactions by the applicant between 30 November 2005 and 12 December 2005. On the hearing of the appeal it was agreed that the applicant had engaged in about a dozen supplies of amphetamine, the total quantity supplied being about 35 grams, and that the applicant had engaged in about half a dozen supplies of cannabis, the total quantity supplied being between 10 and 15 grams.

11 In his remarks on sentence the sentencing judge made findings about the subjective circumstances of the applicant.

12 The applicant was born on 14 March 1982 and was accordingly 24 years old at the time he was sentenced.

13 The applicant left school at the end of Year 9 or the beginning of Year 10. After leaving school he was employed at two hotels and the owner of those hotels gave evidence favourable to the applicant in the proceedings on sentence. The applicant had returned to Bathurst to live with his parents, after his father had required further treatment for cancer. The applicant had suffered episodes of depression for which anti-depressant medication had been prescribed and he had been admitted to a psychiatric hospital after a suicide attempt.

14 The applicant had started smoking cannabis at the age of 14 and had started using amphetamine in December 2004.

15 The applicant had what the sentencing judge described as a “minor criminal record”. In July 2005 he had entered into a recognizance to be of good behaviour, after being convicted of an offence of harassing a police officer in the execution of his duty. The applicant was subject to this recognizance at the time of committing the present offences and this was a circumstance of aggravation.

16 The sentencing judge referred to a number of other matters in his remarks on sentence.

17 His Honour considered that the offences were serious offences; that they were planned and organised, and not spur of the moment or opportunistic, offences; and that they were committed for financial gain, although the evidence did not reveal the extent of the financial gain to the applicant.

18 His Honour found that the applicant’s pleas of guilty had been entered at the earliest opportunity, entitling the applicant to a discount in penalty of 25 per cent.

19 His Honour noted that when the applicant had been interviewed by police he had identified other persons involved in the supplying of cannabis or amphetamine. The applicant offered to give evidence for the Crown in the prosecution of four co-offenders. The investigating police considered the applicant’s offer of assistance genuine and valuable, although, as it transpired, by the time the applicant was sentenced all of the co-offenders had pleaded guilty to various charges or were likely to plead guilty, so that the applicant would not need to give evidence at a trial. His Honour found that for the assistance he had provided the applicant was entitled to a further discount in penalty of 25 per cent. Consequently, his Honour allowed a combined discount of 50 per cent for the applicant’s pleas of guilty and assistance.

20 The sentencing judge accepted that the applicant had shown contrition for the offences and found that the applicant had reasonable prospects of rehabilitation and was unlikely to re-offend.

21 In his remarks on sentence the sentencing judge referred to s 21A of the Crimes (Sentencing Procedure) Act. I will consider this part of his Honour’s remarks in dealing with one of the applicant’s grounds of appeal.

22 At the time the applicant was sentenced, two of the co-offenders had already been sentenced. Each of them had been charged with different and less serious offences than the applicant and had been sentenced in the Local Court, rather than the District Court. His Honour concluded that he was not bound to impose on the applicant similar sentences to those which had been imposed on these two co-offenders.

23 Towards the end of his remarks on sentence the sentencing judge explained how he had arrived at the sentences he was about to impose. Leaving aside the discount for the applicant’s pleas of guilty and assistance, his Honour considered that a “starting point” for the sentence of imprisonment for the ongoing supply offence would be eight years and that a “starting point” for the sentence of imprisonment for the supply offence would be four years. Applying the combined discount of 50 per cent for the applicant’s pleas of guilty and assistance, the sentence for the ongoing supply offence would be reduced to four years and the sentence for the supply offence would be reduced to two years.

24 His Honour found special circumstances within s 44(2) of the Crimes (Sentencing Procedure) Act, in that the applicant had not previously served any sentence of imprisonment and, because of the assistance he had provided, he would serve his sentences in protective custody.

25 Counsel for the applicant relied on three grounds of appeal, namely:-

1. The sentencing judge incorrectly referred to the maximum penalty for the supply cannabis charge.

2. The sentencing judge erred by taking into account an element of the offence as an aggravating feature.

3. The sentences are manifestly excessive.

26 I will deal with these grounds of appeal in turn.

1. The sentencing judge incorrectly referred to the maximum penalty for the supply cannabis charge.

27 As I stated earlier in this judgment, under s 32(1)(h) of the Drug Misuse and Trafficking Act the maximum penalty of imprisonment for this offence of supplying a prohibited drug being cannabis is imprisonment for 10 years. However, in the proceedings on sentence the sentencing judge was incorrectly informed by the representative of the Crown that the maximum penalty of imprisonment for the supply offence was imprisonment for 15 years and in his remarks on sentence his Honour stated this figure of 15 years as being the maximum sentence of imprisonment. Imprisonment for 15 years is the maximum sentence of imprisonment for an offence under s 25(1) of the Drug Misuse and Trafficking Act where the prohibited drug is a drug other than cannabis (s 32(1)(g) of the Act).

28 On this appeal the Crown accepted that the sentencing judge had made this error in stating the maximum term of imprisonment.

29 It was submitted by counsel for the applicant that the sentencing judge’s error in stating the maximum penalty for the supply offence was a material error, which would of itself warrant intervention by this Court. Counsel referred to R v Mouloudi [2004] NSWCCA 96.

30 In Mouloudi a Crown appeal against sentence was allowed. The sentencing judge, who had regarded the offences as very serious, had imposed sentences of four and a half years. In his remarks on sentence the sentencing judge had stated that the maximum penalty for the offences was imprisonment for five years, whereas the maximum penalty was actually imprisonment for 15 years.

31 Bergin J who delivered the leading judgment in the Court of Criminal Appeal concluded that the sentencing judge would not have imposed sentences of only four and a half years for offences of such seriousness “had he not felt himself constrained by a maximum penalty of five years”. It was in these circumstances that Bergin J held that “the error as to the maximum penalty was a material error of law warranting intervention by this Court and re-sentencing of the respondent”.

32 I would not regard Mouloudi as authority for a proposition that an error by a sentencing judge in stating the maximum penalty for the offence for which the offender is to be sentenced necessarily amounts to an error of such materiality as to require this Court to intervene.

33 There will clearly be cases where an error by the sentencing judge as to the maximum penalty for the offence for which the offender is being sentenced will require that an appeal against sentence be allowed. An extreme example is Sharwood v Regina [2006] NSWCCA 157 where a sentence imposed actually exceeded the correct maximum penalty.

34 However, an error by the sentencing judge as to the maximum penalty for the offence for which the offender is being sentenced will not necessarily require that an appeal against the sentence be allowed. In R v Kairouz [2005] NSWCCA 247 Wood CJ at CL in considering an application for leave to appeal by Charbel Kairouz, said, with the concurrence of the other members of the Court, at [24] of his judgment:-

“It is the case that his Honour did make the error referred to in Ground 5 in that he noted, at p 2 of the reasons, that the maximum sentence for this offence was imprisonment for 25 years whereas it was in fact 20 years. It does not follow that the head sentence and non-parole period should each be reduced, as the Applicants contended, by 25% (or more correctly by 20%), so as to correct this error. Sentencing does not occur in such a linear or mathematical environment. What was important was that the sentence reflect an appropriate penalty in the light of the overall sentencing pattern for the offence in question, and in the light of the objective and subjective circumstances of the particular case. Whether it did so or not depends on the remaining grounds, although it is to be accepted that the patent error which was identified is sufficient to justify the granting of leave to appeal.”

35 In Kairouz the Court of Criminal Appeal granted Charbel Kairouz leave to appeal but dismissed his appeal against sentence.

36 The significance of the maximum penalty for an offence was discussed by Gleeson CJ, Gummow, Hayne and Callinan JJ in their joint judgment in Markarian v The Queen (2005) 79 ALJR 1048 especially at paras [30] and [31]. Their Honours said:-

“[30] Legislatures do not enact maximum available sentences as mere formalities. Judges need sentencing yardsticks. It is well accepted that the maximum sentence available may in some cases be a matter of great relevance. In their book Sentencing , Stockdale and Devlin observe that:
A maximum sentence fixed by Parliament may have little relevance in a given case, either because it was fixed at a very high level in the last century … or because it has more recently been set at a high catch-all level … At other times the maximum may be highly relevant and sometimes may create real difficulties …
A change in a maximum sentence by Parliament will sometimes be helpful [where it is thought that the Parliament regarded the previous penalties as inadequate].

[31] It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick….”

37 This first ground of appeal has been made out. However, I will reserve my consideration of the materiality of the sentencing judge’s error until I deal with the third ground of appeal.

2. The sentencing judge erred by taking into account an element of the offence as an aggravating feature.

38 In his remarks on sentence the sentencing judge said that he considered that the aggravating factor in s 21A(2)(m) of the Crimes (Sentencing Procedure) Act was present, “because the offences involved a series of criminal acts”.

39 As was submitted by counsel for the applicant, his Honour in making this remark was clearly referring to both offences. His Honour was correct in saying that it was an aggravating factor which was present in the supply offence.

40 However, it was submitted by counsel for the applicant that it was not a aggravating factor which was present in the ongoing supply offence, because the occurrence of three or more separate supplies within a period of 30 days is an element of an offence under s 25Aof the Drug Misuse and Trafficking Act. Counsel referred to R v Tadrosse [2005] NSWCCA 145 especially per Howie J at [29]. However, it remains open to a judge sentencing for an offence under s 25A to take into account as a matter aggravating the offence the number of occasions on which the offender supplied a prohibited drug, if the number of occasions significantly exceeds three occasions. In the present case, there were about a dozen supplies of amphetamine within the 30 day period.

41 I consider that the part of the sentencing judge’s remarks on sentence criticised by counsel for the applicant did contain an error. However, I would not allow the appeal simply on this ground.

3. The sentences are manifestly excessive.

42 In support of this ground of appeal counsel for the applicant pointed to the “starting points” or putative sentences which the sentencing judge adopted in sentencing for each offence, before he allowed the combined discount of 50 per cent for the applicant’s pleas of guilty and assistance. But for the discount, the sentencing judge would have imposed a total sentence of eight years for the ongoing supply offence and of four years for the supply offence. It was submitted that such sentences would have been manifestly excessive and therefore the sentences ultimately imposed, after allowing the discount, were also manifestly excessive.

43 It is convenient to deal first with the supply offence.

44 Factors tending to increase the seriousness of the offence were that there were a number of supplies and that these supplies were clearly not isolated operations but part of a continuing enterprise. The applicant was on conditional liberty at the time of committing the offence.

45 On the other hand, the total quantity supplied in supplies which were the subject of the charge was very small, being between 10 and 15 grams.

46 As was submitted by counsel for the applicant, if the applicant had not also been charged with the ongoing supply offence, he would probably have been dealt with in the Local Court for the supply offence. If he had been dealt with in the Local Court, then, as the quantity supplied was less than the small quantity applicable to cannabis as set out in Sch 1 to the Drug Misuse and Trafficking Act, the maximum penalty under s 30 of the Act would have been imprisonment for two years.

47 Furthermore, it seems to me likely that his Honour adopted a starting point as high as four years, at least partly because of the incorrect information he had been given that the maximum penalty for the offence was 15 years, and not 10 years.

48 I would grant leave to appeal and allow the appeal against the sentence for the supply offence.

49 As his Honour recognised in his remarks on sentence, the ongoing supply offence was clearly the more serious of the two offences.

50 The principles to be applied in sentencing for an offence under s 25A of the Drug Misuse and Trafficking Act have been stated by this Court in a number of cases including R v Smiroldo [2000] NSWCCA 120, R v Hoon& Pouoa [2000] NSWCCA 137, R v Khaled [2001] NSWCCA 169 and R v Kairouz [2005] NSWCCA 247 esp at [86]-[89].

51 In Hoon & Pouoa Dunford J said at [39]:-

“The section is directed to the concepts of repetition, system and organisation, and the objective criminality of any offence under the section should be determined by reference to those features, and not merely to the number and quantities of individual instances of supply.

52 In Khaled at [19] Wood CJ at Cl said that higher sentences are appropriate for bigger and more organised dealers and lesser sentences for those at the bottom of the distribution chain.

53 Repetition, system and organisation were present in the applicant’s activities but at a level much below that of certain other offenders, who have, for example, had employees working in shifts in the business of supplying drugs. The applicant was at or near the bottom of the distribution chain. Although, as the authorities indicate, the quantity of the drug supplied by the offender is not the only relevant factor in sentencing, it remains a factor of some relevance. In the present case, the total quantity of the drug supplied by the applicant during the 30 day period was only about 35 grams.

54 In sentencing the applicant the sentencing judge took into account the applicant’s additional offences. These offences such as deemed supplies or possession of small quantities of prohibited drugs and possession of cash representing the proceeds of sale of drugs were part of the applicant’s ongoing business of supplying a prohibited drug.

55 As in the case of the supply offence, the fact that the applicant was on conditional liberty on a bond at the time of committing the offence was a circumstance of aggravation, although the offence giving rise to the bond had not been a drug offence.

56 We were referred by counsel for the applicant to statistics kept by the Judicial Commission of sentences for offences under s 25A of the Drug Misuse and Trafficking Act. This Court has repeatedly stated that caution must be exercised in using such statistics. However, the statistics would indicate that out of a quite large number of sentences for supplying the drug amphetamine on an ongoing basis between July 1999 and June 2006, there is only one sentence exceeding six years in its total length.

57 The conclusion I have reached is that, notwithstanding the seriousness of the ongoing supply offence, the sentencing judge’s starting point of eight years was above the upper limit of the range within a proper exercise of his Honour’s discretion and, hence, the sentence imposed by his Honour, after allowing the discount for the plea of guilty and assistance was manifestly excessive. I would grant leave to appeal and allow the appeal against the sentence for the ongoing supply offence.

58 It is necessary for this Court to re-sentence the applicant for both offences. Earlier in this judgment I set out the objective facts of the offences and the subjective features of the applicant.

59 In re-sentencing the applicant the Court can take into account an affidavit by the applicant about events occurring after he was sentenced. He has been assaulted twice while in custody, because of the assistance he has provided to law enforcement authorities. The applicant has been drug-free while in custody and he has taken anti-depressant medication.

60 For the supply offence I would adopt a starting point, before allowing the combined discount, of three years. This putative sentence would be reduced to 18 months, by applying the discount. I would find special circumstances, as the sentencing judge did, and I would divide the sentence of 18 months into a non-parole period of nine months and a parole period of nine months.

61 For the ongoing supply offence I would adopt a starting point, before allowing the combined discount, of six years. This putative sentence would be reduced to three years, by applying the discount. Having found special circumstances, I would divide the sentence into a non-parole period of 18 months and a parole period of 18 months.

62 I would make the sentence for the ongoing supply offence cumulative upon the sentence for the supply offence by a period of four months.

63 In my opinion, the following orders should be made:-

1. Grant leave to appeal against the sentences imposed on the applicant by his Honour Judge Nield on 3 August 2006.

2. Allow the appeal against the sentences of 3 August 2006.

3. Quash the sentences of 3 August 2006.

4. In lieu thereof, the applicant be sentenced for the offence under s 25(1) of supplying cannabis to a non-parole period of nine months commencing on 12 December 2005 and expiring on 11 September 2006 and a balance of the term of nine months commencing on 12 September 2006 and expiring on 11 June 2007 and for the offence under s 25A of the ongoing supply of amphetamine to a non-parole period of one year six months commencing on 12 April 2006 and expiring on 11 October 2007 and a balance of the term of one year six months commencing on 12 October 2007 and expiring on 11 April 2009.

5. I would direct his release on parole on 11 October 2007.

64 SMART AJ: I agree with James J.

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23/05/2007 - Order (5) on para 63 changed. - Paragraph(s) 63