New South Wales Court of Criminal Appeal CITATION : R v GRAY [2000] NSWCCA 479 revised - 28/11/2000 FILE NUMBER(S) : CCA 60605/99 HEARING DATE(S) : 22/11/00 JUDGMENT DATE : 22 November 2000 PARTIES : REGINA v Frederick Thomas GRAY JUDGMENT OF : Barr J at 1; Carruthers AJ at 15 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/51/0208 LOWER COURT JUDICIAL Twigg DCJ QC OFFICER : COUNSEL : Crown: WG Dawe QC Applicant: RJ Button SOLICITORS : Crown: SE O'Connor Applicant: DJ Humphreys LEGISLATION CITED : Criminal Procedure Act 1986, s 21 Drug Misuse and Trafficking Act 1985, s 9 DECISION : See para 14 IN THE COURT OF CRIMINAL APPEAL 60605/99 BARR J CARRUTHERS AJ Wednesday, 22 November 2000 REGINA v Frederick Thomas GRAY JUDGMENT 1 BARR J: Frederick Thomas Gray seeks leave to appeal against sentences imposed upon him in the District Court. On 17 September 1999 the applicant came before Judge Twigg QC pursuant to a certificate of committal executed in the Local Court. There were four charges, namely supplying 5.08 grams of heroin on 2 June 1998, supplying 341 grams of cannabis on 2 June 1998, supplying 20.5 grams of amphetamine on 3 June 1998 and possessing 1.4 grams of amphetamine on 3 June 1998. 2 For the offences of supplying heroin and supplying cannabis his Honour sentenced the applicant to imprisonment for four years, comprising a minimum term of two years and an additional term of two years. The sentences were made to run from 3 December 1999. For the offence of supplying amphetamine his Honour sentenced the applicant to imprisonment for a fixed term of two years commencing on the same day. For the offence of possessing amphetamine his Honour sentenced the applicant to imprisonment for a fixed term of one year commencing on the same day. 3 In imposing sentence his Honour said this: Since all the offences are in respect of the same period it is appropriate to deal with them all together. However, because recent decisions of the Court of Appeal (sic) make it clear that these Courts should consider each offence and set an appropriate penalty I shall do that in due course. But I note at this time that I am taking into account the totality of the offences. It is appropriate to deal with them all at once. 4 Unfortunately his Honour did not receive the assistance to which he was entitled and was not informed, by practitioners who have not appeared in this application, that the Court lacked jurisdiction to sentence the applicant for the offence of possessing amphetamine. By virtue of s 9 Drug Misuse and Trafficking Act 1985 such an offence had to be dealt with by a magistrate. Although there were provisions by which such an offence could be dealt with in a higher court, such as as a backup offence at the conclusion of a trial, or as a matter to be taken into account under the provisions of s 21 Criminal Procedure Act 1986, none of those circumstances applied. 5 Counsel appearing before this Court agree that the sentence for the possession charge must be quashed. That gives rise to the question whether this Court should interfere with the sentences imposed for the three supply offences. It was submitted on behalf of the Crown that although his Honour had regard to the totality of the applicant's criminality, it nevertheless appeared from the whole of the remarks on sentence that his Honour did not regard the conviction for the possession offence as adding materially to that criminality. 6 I am unable to accept that submission. In view of the fact that the offences were committed as part of a single episode of possessing and supplying drugs, his Honour was not obliged to accumulate the sentences and chose, as he was entitled, to make the sentences concurrent. But in view of the length of the sentence imposed for possession of amphetamine, namely one year, I think that in having regard to the totality of the applicant's criminality, his Honour must have permitted the sentence to have some effect upon the sentences imposed for the other offences. Accordingly, I think that the sentencing proceedings for all four offences miscarried because of the unfortunate error to which I have referred. 7 At the time of sentence the applicant was a seventy-one year old pensioner. He was serving two concurrent fixed terms of six months' imprisonment for two further offences of supplying a prohibited drug. His Honour accumulated the sentences appealed from on those sentences. There was virtually nothing on his criminal record other than those two prior offences of supplying drugs. It appeared that the applicant was supplementing his pension by dealing in a small way in drugs of various kinds. 8 On 2 June 1998 police had occasion to speak to him and a search of his wallet revealed three small plastic bags containing amphetamine. In his car was found heroin and in the boot were thirteen bags containing cannabis leaf. Police found scales, packets, bags and other indicia of drug dealing. More cannabis leaf was found at the applicant's premises. The applicant admitted that he was intending to sell the drugs to supplement his income. He said that the drugs were worth about $7,600. On the following day the applicant telephoned the police and told them that he also had some amphetamine that he had found at home. He handed it over. He said that he was going to sell that as well. 9 The applicant has always led a busy life in employment of one sort or another. He has not been without means, but in the six years between his retirement and sentence he apparently spent $40,000 to a larger or smaller extent on gambling. Accordingly, he now has only his pension and has difficulty coping. More importantly, he is a diabetic and his eyesight is affected. His hearing is impaired. He is of advanced age. 10 All these matters suggest to me that the applicant will serve hard the period of imprisonment which must be imposed and justify a shorter effective head sentence and non-parole period than would otherwise be appropriate. To my mind they also justify a parole period which is greater than one quarter of the effective head sentence. In imposing sentence I would take account also of the accumulation of sentences upon the six month terms imposed by the magistrate. 11 The applicant's early pleas of guilty entitle him to leniency and his volunteering of the information concerning his possession for the purpose of supply of the amphetamine that came from his home was of particular utilitarian value to society since it enabled him to be convicted of an offence the existence of which would otherwise not have been known about and saved the community the time, trouble and expense of investigating the offence and trying him. 12 To my mind the supply of heroin was the most serious of the offences. Although the amount supplied only just exceeded that which requires a charge to be dealt with on indictment, the heroin was 48.5 percent pure and was therefore likely to be divided and cut to produce a substantially greater quantity of street grade heroin. The maximum sentence for the supply of such a quantity of heroin is fifteen years' imprisonment. The supply of amphetamine attracts a similar maximum sentence, but the applicant is, in the circumstances I have summarised, entitled to a lenient sentence on that offence. The maximum penalty for the supply of cannabis is ten years' imprisonment. 13 There has been put before the Court, in the event of re-sentence, an affidavit affirmed by Catherine Alice Ridge on 21 November 2000. It annexes various documents which may be summarised as demonstrating that during his period of time in prison the applicant has set himself about the process of rehabilitation in a positive way. One of the difficulties seen by the sentencing judge was that at that time the applicant was not prepared to acknowledge the existence or the seriousness of the gambling problem which it was objectively demonstrated that he had. This further evidence demonstrates that he acknowledges the existence of the gambling problem and is setting about the solution of it. These matters also entitle the applicant to an additional degree of leniency. 14 I propose the following orders: 1. Grant leave to appeal and allow the appeal; 2. Quash the sentences appealed from and in lieu impose the following sentences: for the offence of supplying heroin imprisonment for three years commencing on 3 December 1999 and expiring on 2 December 2002. Fix a non-parole period of one year, six months and declare that the appellant will be eligible for release on parole on 2 June 2001. For each of the offences of supplying amphetamine and supplying cannabis, imprisonment for a period of one year, six months, commencing on 3 December 1999 and expiring on 2 June 2001. The Court declines to fix a non-parole period for those sentences because their terms are wholly concurrent with the non-parole period of the sentence first imposed. 15 CARRUTHERS AJ: I agree. 16 BARR J: The orders of the Court are as I have proposed. ********** 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.