Suman v The Queen

[2013] NSWCCA 3

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Suman v R [2013] NSWCCA 3
Hearing dates:	6 December 2012
Decision date:	01 February 2013
Before:	Simpson J at [1] McCallum J [2] Bellew J [39]
Decision:	Leave to appeal granted; appeal dismissed
Catchwords:	CRIME - sentencing - whether sentencing judge erred by adopting an impermissible tiered or mathematical approach - whether sentencing judge erred in the exercise of the discretion as to the degree of accumulation between sentences - whether aggregate sentence manifestly excessive
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 Firearms Act 1996 Drug Misuse and Trafficking Act 1985
Cases Cited:	Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 Markarian v R [2005] HCA 25; (2005) 228 CLR 357 R v Hammoud [2000] NSWCCA 540; (2000) 118 A Crim R 66
Category:	Principal judgment
Parties:	Nirmal Suman (applicant) Regina (respondent)
Representation:	Counsel: GD Wendler (applicant) R Herps (Crown) Solicitors: Van Houten Solicitors (applicant) Office of the Director of Public Prosecutions (respondent)
File Number(s):	2010/370788
Publication restriction:	None
Decision under appeal	Jurisdiction: 9101 Date of Decision: 2012-02-10 00:00:00 Before: Woods DCJ File Number(s): 2010/370788

Judgment

1. SIMPSON J: I agree with McCallum J.

1. McCALLUM J: Nirmal Suman seeks leave to appeal against the sentences imposed upon him in the District Court on 10 February 2012. The applicant was sentenced on six charges on that date, with a further two outstanding offences being taken into account as allowed under s 33 of the Crimes (Sentencing Procedure) Act 1999.

1. The applicant had pleaded guilty to four of the charges at the earliest opportunity. They were:

(a) two offences of supplying a prohibited drug (methylamphetamine) contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985. The two offences taken into account under s 33 were also offences of supplying a prohibited drug contrary to that section, which carries a maximum penalty of 15 years imprisonment;

(b) an offence of receiving stolen property contrary to s 188(1)(a) of the Crimes Act 1900, which carries a maximum penalty of 12 years imprisonment;

(c) an offence of dealing with the proceeds of crime contrary to s 193C(1) of the Crimes Act, which carries a maximum penalty of two years imprisonment.

1. The applicant pleaded not guilty to two further charges of possessing a prohibited firearm without a licence contrary to s 7(1) of the Firearms Act 1996 and possessing ammunition contrary to s 65(3) of the Firearms Act. He consented to the tender of the Crown brief in respect of those charges but submitted that the firearm and the ammunition, which were found by police in a car at his residence, were not in his possession. The learned sentencing judge heard those matters and was satisfied beyond reasonable doubt as to the applicant's guilt in respect of those two offences.

1. Separately, while pleading guilty to the offence of dealing with the proceeds of crime, the applicant raised a factual issue on sentence as to the amount of money in question. Police had located $12,100 in cash at the time of the applicant's arrest. He contended that, of that sum, $5,500 had been lawfully received by him as an advance from his mother. The judge rejected that contention and sentenced the applicant on the basis that the amount in question was $12,100.

1. The applicant was sentenced as follows:

(a)   for the offence of dealing with the proceeds of crime, to a fixed term of imprisonment for 12 months commencing on 5 November 2010 and expiring on 4 November 2011;

(b)   for the offence of possessing the prohibited firearm, to a fixed term of imprisonment for 12 months commencing on 5 November 2011 and expiring on 4 November 2012;

(c) for the offence of possessing ammunition, pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999, no penalty;

(d)   for the offence of receiving stolen property, to a fixed term of imprisonment for 2 years commencing on 5 November 2012 and expiring on 4 November 2014;

(e)   for the first offence of supplying a prohibited drug, to a fixed term of imprisonment for 4 years commencing on 5 November 2013 and expiring on 4 November 2017;

(f)   for the second offence of supplying a prohibited drug (which was the matter on which the two further supply offences were taken into account), to a term of imprisonment with a non-parole period of 6 years commencing on 5 November 2013 and expiring on 4 November 2019 and a balance of term of 4 years expiring on 4 November 2023.

1. The aggregate sentence imposed was accordingly a term of imprisonment with a non-parole period of 9 years and a balance of term of 4 years.

Circumstances of the offences

1. As to the offences to which the applicant pleaded guilty, there was an agreed statement of facts. The agreed facts also addressed the two defended matters to the extent of the applicant's agreement.

1. Police had been intercepting the applicant's mobile telephone since September 2010. The two matters taken into account on the form 1 arose from two drug transactions uncovered by that surveillance. One related to the applicant's acquisition of three "8 balls" (10.5 grams) of methylamphetamine which he took to Melbourne for supply to a person known as "Pete" for on-sale to others. The other related to the applicant's acquisition of four 8 balls (14 grams) of methylamphetamine which, again, he took to Melbourne, in that case for supply to a person known as "Carl" for on-sale.

1. The first charge of supplying a prohibited drug was also based on evidence obtained as a result of the telephone interception. The recordings obtained by police included a conversation between the applicant and Pete in which the applicant agreed to supply Pete with four 8 balls (14 grams) of methylamphetamine, which he did by directing Carl to supply the drugs to Pete.

1. The second charge of supplying a prohibited drug related to drugs found by police in the applicant's backpack when he was arrested. Telephone surveillance revealed that the applicant was planning to travel to Melbourne on 5 November 2010 to supply a further quantity of methylamphetamine to his distributors. He was arrested as he was about to board the flight. The quantity found in the backpack was 83.5 grams of methylamphetamine of 79.5% purity.

1. The offence of dealing with the proceeds of crime related to the sum of $12,100 cash found by police in the applicant's bedroom when they executed search warrants on the date of his arrest.

1. The firearms offences also related to items found by police during the execution of those warrants. There was a damaged car under a carport at the applicant's residence. It was registered to the applicant's girlfriend. However, when interviewed by police, the applicant told them that he held the only key. Police found a black and silver handgun under the front driver's seat with a magazine containing eight rounds of ammunition. They also found a canvass bag with a further nine rounds of ammunition.

1. The offence of receiving stolen goods related to a 1990 model silver Nissan Skyline stolen from the car park at Sydney Airport in August 2010. During their interception of the applicant's telephone, police heard him arrange for that car to be stored at a relative's house. When interviewed by Police after his arrest, the applicant admitted to buying the stolen car knowing it was stolen. He told police that he had intended to "rebirth" the car.

Circumstances of the offender

1. The applicant was 31 years of age at the time he was sentenced. He did not give evidence at the proceedings on sentence but wrote a letter to the sentencing judge expressing a measure of contrition for his offending and acknowledging "a huge problem" with drugs. He had an extensive record of prior convictions and was on parole for armed robbery at the time the present offences were committed.

1. The applicant also tendered a report prepared by a forensic psychologist, Ms Allison Cullen. Ms Cullen's report provided a careful analysis of the applicant's mental state. She noted that he had been viewed by some professionals as exhibiting symptoms consistent with paranoid schizophrenia or drug-induced psychosis. However, Ms Cullen expressed reservations as to the validity of such a diagnosis. She noted a childhood history of exposure to witchcraft and a history of polysubstance abuse. Ms Cullen stated that the reasons for her reservations in accepting a diagnosis of schizophrenia were the absence of negative symptoms (such as lack of personal grooming, withdrawal from social activities and blunted affect); the applicant's insight into the fact that the demons he had reported perceiving were not real; his religiosity and experience of demons before commencing taking drugs and her view that his positive response to antipsychotic medication could be attributable to his abstinence from drugs whilst in custody.

1. Ms Cullen noted a period of sexual uncertainty attending the applicant's offending, reporting that, whilst he had a girlfriend during that period, he had become substantially involved in homosexual activity during his trips to Melbourne. During that period, he made substantial amounts of money through both selling drugs and acting as a male escort.

1. Ms Cullen concluded that the applicant was most likely suffering from a combination of substance dependence, sexual disorder entailing distress about his sexual orientation and major depressive order. Her report included a record of an unhappy childhood in which the applicant stated that his father was "really violent". However, the sentencing judge did not accept that claim.

Grounds of appeal

1. The applicant nominates five grounds of appeal. Pursuant to s 5(1)(c) of the Criminal Appeal Act 1912, the leave of the court is required to appeal against the sentences passed. Two of the grounds raised by the applicant (grounds 1 and 4) are, in my view, without substance and do not warrant a grant of leave. It is convenient to address those grounds first.

1. Ground 1 is:

That the sentencing judge erred in law by adopting an impermissible tiered or mathematical approach when sentencing the applicant.

1. The judge said:

The sentence I impose in this case will be very heavy necessarily, given the fact that he is a major drug dealer who seems to think that he will be assisted somehow by having a gun. I will construct the sentences in such a way that a large number of the punishments will overlap with one another, or partly so, because if I were to impose a sentence which consisted of a sequence of separate sentences added on top of one another he would not get out of jail for 40 or 50 years. The law of sentencing requires that a sentencing judge take account of a principle of totality - that is to say one looks at the overall impact of a sentence on a person and does not impose a sentence which is crushing on the individual or grossly out of kilter with sentences for the worst kinds of crimes such as murder. Nonetheless, the conduct involved in this case is disgraceful. It is deliberate, and it requires and will attract a heavy sentence.

1. The applicant submitted that it may be inferred from those remarks that his Honour engaged in a tiered approach of the kind condemned by the High Court in Markarian v R [2005] HCA 25; (2005) 228 CLR 357. In that case, the Court said at [39] that a sentencing court "may not add and subtract item by item from some apparently subliminally derived figure, passages of time in order to fix the time which an offender must serve in prison".

1. It was submitted that, contrary to that principle, the judge had in mind a starting point, opaquely identified as "very heavy" and proceeded to adjust the sentence incrementally and "decrementally" from that point.

1. I do not think there is any substance in that contention. As submitted on behalf of the Crown, the sentencing judge's reference to the need for a very heavy sentence was no more than a statement of the obvious. It says nothing as to his Honour's methodology. The remarks on sentence should not be construed as if his Honour came on to the bench not knowing what sentences he would pass, exposing the sequence of his deliberations with each further remark. Ground 1 should be dismissed.

1. Ground 4 relied upon by the applicant is that the court erred by describing the applicant as a "major drug dealer".

1. In addressing that ground, the applicant conceded that he was "a committed significant dealer in illegal drugs for financial gain and consumption". As submitted by the Crown, it is difficult in that context to regard complaint as to the use of the word "major" as anything more than semantic. The agreed facts reveal that the applicant had a group of distributors to whom he regularly supplied significant quantities of methylamphetamine, well in excess of the trafficable quantity (3 grams) and the indictable quantity (5 grams). He was found in possession of the equipment of a dealer including scales, a ledger or debt book, a large sum of cash and a loaded gun with further ammunition. He travelled interstate to supply the drugs, which were of high purity. He told police that, whilst he had begun dealing in drugs in order to repay a debt, greed had got the better of him. He lived an extravagant lifestyle, travelling business class and buying an expensive car with the proceeds of his offending.

1. In those circumstances, the suggestion that it was not open to the sentencing judge to describe the applicant as a major drug dealer must, in my view, be rejected.

1. It is convenient to address the remaining grounds (grounds 2, 3 and 5) together. They are:

2. That the Court erred in law in its application of the totality principle in sentencing.

3. That the Court erred by ordering that the sentence for dealing with the proceeds of crime be a wholly consecutive sentence.

5. That the sentence was manifestly excessive.

1. It should be noted that ground 5 was not directed to any of the individual sentences passed, but only to the aggregate sentence.

1. Grounds 2 and 3 assert patent error in the exercise of the discretion as to the degree of accumulation required to achieve a fair and reasonable aggregate sentence. The quality of that discretion was considered by Simpson J in R v Hammoud [2000] NSWCCA 540; (2000) 118 A Crim 66 where her Honour said at 67, [7] (Mason P agreeing at [2]):

Whether or not to accumulate sentences imposed in relation to multiple offences is, in the end, an exercise of discretion to be made in accordance with established principle. Features common to two or more offences are all matters relevant to be taken into account (pointing towards concurrence) as are features indicating the disparate nature of the offences (pointing the other way). There will be many cases in which sentencing judges might take differing views but neither view could be said to be wrong.

1. As noted on behalf of the Crown, the discretion is constrained by the totality principle, which serves to mollify what would otherwise be a crushing accumulation of discrete terms for multiple offences.

1. There is no suggestion that the sentencing judge was not aware of those principles. The applicant's submissions in support of this ground rested on the fact that the judge mentioned the totality principle before imposing any sentence. It was submitted that his Honour was required, but failed, to take one last look at the total sentence after having arrived at the individual sentences to be imposed in order to determine whether the aggregate sentence was appropriate in all the circumstances.

1. As with ground 1, I think that submission mistakes the remarks on sentence for a chronological exposition of the judge's process of deliberation. In my view, it is clear from the remarks on sentence set out above that his Honour approached his task with a correct understanding of the applicable principles, including the requirement, after determining the individual sentences to be imposed and the degree of concurrency and accumulation between them, to consider the overall impact of the aggregate sentence.

1. It may be accepted that the extent of accumulation resulted in a stern sentence. However, I am not satisfied that error is established in his Honour's application of the totality principle.

1. Ground 3 complains of specific error in structuring the sentences such that the sentence passed for the offence of dealing with the proceeds of crime was wholly consecutive. The applicant relied on the remarks of Howie J in Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 at 47, [27] where his Honour said:

In any event there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences.

1. On the strength of those remarks, the applicant's submissions proceeded on the premise that, if the sentences for the drug supply offences were capable of comprehending the criminality of the offence of dealing with the proceeds of crime, error was established in accumulating those sentences. That is not how I would understand the remarks of Howie J in Cahyadi. It may be accepted that there was a measure of harshness in accumulating the sentence for dealing with the proceeds of crime. However, there is no authority for this Court to intervene in such a decision unless it can be said that it was not open to the sentencing judge to exercise his discretion in the manner in which he did. I am not so satisfied. It follows that ground 3 must be rejected.

1. Ground 5 is that the sentence was manifestly excessive. As already noted, however, it was not contended that any individual sentence was excessive. Rather, the ground was directed to the overall sentence imposed. For the reasons I have already expressed in respect of grounds 2 and 3, whilst I accept that the aggregate sentence was a stern sentence, I do not think manifest excess is established.

1. For those reasons, the orders I propose are that leave to appeal be granted but that the appeal be dismissed.

1. BELLEW J: I agree with McCallum J.

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Decision last updated: 07 February 2013