New South Wales Court of Criminal Appeal CITATION : Regina v Campbell [1999] NSWCCA 332 FILE NUMBER(S) : CCA 60391/99 HEARING DATE(S) : 20 October 1999 JUDGMENT DATE : 20 October 1999 Regina PARTIES : v David Alexander Campbell JUDGMENT OF : Mason P; James J; Kirby J LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : LOWER COURT JUDICIAL OFFICER : Woods DCJ COUNSEL : T J Golding (App) C K Maxwell QC (Crown) SOLICITORS : T A Murphy (App) S E O'Connor (Crown) CATCHWORDS : CRIMINAL LAW; Practice and Procedure; Appeal against severity of sentence ACTS CITED : Drug Misuse and Trafficking Act, 1985 - s24(2) Sentencing Act, 1989 - s5(2) DECISION : Leave to appeal refused IN THE COURT OF CRIMINAL APPEAL 60391/99 MASON P JAMES J KIRBY J Wednesday 20 October 1999 REGINA v David Alexander CAMPBELL JUDGMENT 1 KIRBY J: The applicant, David Alexander Campbell, seeks leave to appeal against a sentence imposed by his Honour Judge Woods QC on 19 April 1999. The sentence was imposed in respect of a charge under s24(2) of the Drug Misuse and Trafficking Act 1985, to which Mr Campbell pleaded guilty. The charge alleged that he had taken part in the manufacture of a commercial quantity of methylamphetamine. 2 The grounds of appeal emerge from a letter written on 9 July 1999, somewhat outside the normal period for appeal. Mr Campbell also seeks an extension of time to appeal, explaining the delay on the basis that he was unable to obtain legal assistance whilst in custody. Mr Campbell has since had that assistance. He is represented at this appeal by Mr Golding of counsel. Mr Golding has refined the grounds of appeal and they are as follows. First, the sentence imposed was manifestly excessive. Second, that his Honour took into account a matter which was manifestly irrelevant. Third, that his Honour failed to consider whether there were special circumstances in the applicant's case justifying a departure from the statutory formula in s 5(2) of the Sentencing Act. Fourth, that arising out of a matter dealt with by this Court this morning, relating to the same drug distribution network (a matter of Arikan ), Mr Campbell is left with a justifiable sense of grievance. 3 Before dealing with these issues, I should briefly describe the circumstances in which the offence occurred. Mr Campbell is a man aged 39 years. He is a house painter, and a cricketer of some renown. Through his occupation as a painter, and his recreation as a cricketer, he came to know Leslie George Kalache. Mr Kalache, before he turned to crime, worked in association with sportsmen as a masseur and conditioner. In 1997 the police became aware that Mr Kalache was heavily engaged in drug distribution. Surveillance of his premises was undertaken. His conversations were monitored by listening device. By this means the association between Mr Campbell and Mr Kalache became apparent. Mr Campbell was recruited by Mr Kalache to obtain a significant quantity of the non-prescription drug Sudafed; an ingredient of Sudafed, when combined with other ingredients, is capable of being distilled into methylamphetamine. 4 The scale of Mr Campbell's efforts on behalf of Mr Kalache is set out in the statement of Detective Sergeant Willingham. Mr Campbell was provided with funds by Mr Kalache. He thereafter procured from chemist shops the following: 96 boxes of Sudafed 90s; 70 boxes of Sudafed 60s; 30 boxes of Sudafed 30s. This amounted in all to 13,740 tablets. 5 Mr Campbell's involvement did not end there. He thereafter assisted Mr Kalache to remove the tablets from the packages. The breaking of the seals of the familiar blister packets can be heard in the background during conversations with Mr Kalache, which were recorded by listening device. The following submission is put on behalf of the applicant, and I quote: "The applicant played no part in the latter process (that is referring to the chemical extraction of the ingredients within the Sudafed tablets). Nor was there any evidence that he had any knowledge of it. His role was limited to those matters set out in paragraph 4 above." 6 Paragraph 4 simply acknowledges that Mr Campbell purchased the tablets and assisted Mr Kalache in their removal. 7 When giving evidence on sentence, Mr Campbell acknowledged that when he performed the service for Mr Kalache, he was aware that Mr Kalache was involved in the distribution of drugs. Indeed, Mr Campbell at that time had obtained a significant amount of marijuana from Mr Kalache, for which he had not paid. Mr Campbell also acknowledged that Mr Kalache later told him that Sudafed tablets were to be used to make the amphetamines. He did not say when he became aware of that matter, and was not pressed to do so. 8 It may be accepted that Mr Campbell had no precise understanding of the manufacture of amphetamines. However, it would be simply incredible had he not associated the significant money which he had been given by Mr Kalache, and the task which he had been set, with the illegal manufacture of drugs. 9 Turning to the grounds of appeal; the sentence imposed by his Honour was 2 years imprisonment, consisting of a minimum term of 18 months and an additional term of 6 months. Such sentence, leaving aside the subjective circumstances of Mr Campbell for the moment, cannot be regarded, in my view, as excessive. Indeed, though I notice the words of the trial judge that Mr Campbell's involvement in the enterprise was at the lower end of the scale, it nonetheless strikes me, as the Crown has submitted, that the sentence imposed was in fact a lenient one. A commercial quantity of drugs was involved in the charge to which Mr Campbell pleaded guilty. The statutory maximum for that offence is a 20 year term, and a fine. 10 The circumstances specific to Mr Campbell do not cause me to alter my view. Mr Campbell has a criminal history. It includes an offence of stealing in company when he was 19 years old. In respect of that offence he received a 3 year term of imprisonment, including a minimum term of 20 months. In 1993 he was convicted of assault causing actual bodily harm and ordered to serve a 9 month sentence by way of periodic detention. In 1997 he was placed upon a recognizance for driving whilst his licence was cancelled. There are other convictions besides. It must be said, that he entered an early plea of guilty. He also has made some efforts to rehabilitate himself by abstaining from drugs. Nonetheless, it appears to me, taking account of the objective circumstances, and the circumstances specific to Mr Campbell, that the sentence was within the discretion of the sentencing judge. 11 Turning to the second ground; his Honour in the course of his remarks made the following comment: "In any event, it is quite clear Mr Campbell has been going out and buying these Sudafed tablets on a large scale, no doubt causing distress to the many sinus sufferers who may not have been able to obtain their drug of choice." 12 His Honour made a similar remark in the cause of argument. There was no evidence as to the number of pharmacies used by Mr Campbell to build up his stock of Sudafed tablets. Nor was there evidence as to the quantities obtained from each pharmacy, or whether those pharmacies had remaining stock to service their ordinary clientele. I accept that his Honour's remark was irrelevant to the discretion which he was obliged to exercise. 13 It was, I believe, an aside, which did not lead his Honour into error, since the sentence imposed was, in my view, well within the discretion that he had. 14 Dealing with the other ground raised in the submissions, his Honour at the time he sentenced Mr Campbell, did not specifically advert to the issue of special circumstances. His Honour in his remarks on sentence, however, made the following comment: "I am told that he is fully recovered from drug misuse and that he has been drug free for some time. I accept that, on the balance of probabilities." 15 That finding was consistent with the approach taken by his Honour in dividing the sentence in the way he did, adopting the division suggested by s5(2). It is plainly desirable that a sentencing judge advert to the issue of special circumstances, especially in those cases where there is evidence before him which is capable of being regarded as special circumstances, requiring a division under the Act, different from that suggested by s5(2). Nonetheless, I do not believe that error is manifest in his Honour's approach. I believe that the remark which I have extracted clearly indicates that his Honour was conscious of the possible need for a longer period of rehabilitation than may be provided under s5(2). He was, no doubt, also mindful of the length of sentence which he was imposing, which made a division greater than that suggested by s5(2) somewhat difficult. I therefore would not accede to this ground. 16 In the course of argument, Mr Golding drew attention to a judgment delivered by this Court this morning. It related to a person, Mr Arikan, who was also involved in the same criminal enterprise which included Mr Kalache. Mr Arikan was a co-offender with a Mr Marskell in the manufacture of amphetamines, using the Sudafed tablets which had been procured by, amongst others, the present applicant. Mr Golding, on the applicant's behalf, suggested that having regard to the outcome of this morning's appeal, in which the Crown's appeal against sentence was dismissed, that the present applicant is left with a justifiable sense of grievance. 17 Mr Arikan was sentenced by the same judge, his Honour Judge Woods. In Mr Arikan's case, Judge Woods imposed a sentence of 18 months imprisonment to be served by way of periodic detention. However, it seems to me that the parity argument is not persuasive in the circumstances of this case. In the first place, the Arikan appeal was a Crown appeal against sentence. This, on the other hand, is an appeal by Mr Campbell. Secondly, the background of the two individuals is quite different. Mr Arikan had no relevant criminal history at all, although he was about the same age as the present applicant. Mr Campbell, on the other hand, has an unenviable record which spans his entire adult life, though there are periods where he has not offended. Thirdly, there was evidence in Mr Campbell's case of his being indebted to Mr Kalache for certain drugs that had been supplied. The evidence in relation to Mr Arikan in relation to payment was ambiguous, and his Honour ultimately did not accept that a sum of $20,000, which one might possibly attribute to Mr Arikan, was in fact destined for payment to him. There are other distinctions between the two cases. 18 In the end, for my part, I am not assisted by Mr Arikan's case in determining the appropriate sentence in Mr Campbell's case, and I do not believe that Mr Campbell can be left with a justifiable sense of grievance having regard to those differences. 19 For all those reasons it seems to me that the grounds of appeal which have been canvassed before this Court, both in oral argument, and in written submissions, are not made out. Mr Golding indicated that there are other offenders yet to be dealt with, and that if this Court were minded to dismiss the application, then it should do so by way of refusing leave to appeal. The Crown suggests this is an appropriate course. Since I am minded to dismiss the appeal, I adopt that suggestion. I therefore would suggest that the appropriate order for this Court is that leave to appeal should be refused. MASON P: I agree. JAMES J: I also agree. MASON P: Leave to appeal is refused. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.