REGINA v COLIN [2000] NSWCCA 236

New South Wales Court of Criminal Appeal

CITATION : REGINA v COLIN [2000] NSWCCA 236 FILE NUMBER(S) : CCA 60078/00 HEARING DATE(S) : 7 June 2000, 9 June 2000 JUDGMENT DATE : 9 June 2000

Regina

PARTIES : v

Eric Giles Colin JUDGMENT OF : Spigelman CJ at 1; Newman J at 25; Adams J at 2

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 96/11/0649 LOWER COURT JUDICIAL Goldring DCJ OFFICER :

COUNSEL : Mr C K Maxwell QC (Crown) Mr S J Odgers (Respondent) SOLICITORS : S E O'Connor (Crown) John Bettens & Co (Respondent) CATCHWORDS : Sentence appeal by Crown - supply cocaine - low level offender - effect of delay - appeal allowed - periodic detention imposed LEGISLATION CITED : Crimes Act 2000 Crimes (Sentencing Procedure) Act 1999 CASES CITED: Regina v Everett (1993) 181 CLR 295 DECISION : Orders below quashed; the respondent is sentenced to a period of twelve months' imprisonment to be served by way of periodic detention to commence on 16 June 2000

IN THE COURT OF CRIMINAL APPEAL

60078/00

SPIGELMAN CJ NEWMAN J ADAMS J WEDNESDAY 7 JUNE 2000

REGINA v ERIC GILES COLIN

JUDGMENT

1 SPIGELMAN CJ: Mr Justice Adams will deliver the first judgment. 2 ADAMS J: The respondent, Eric Giles Colin, pleaded guilty to supplying a prohibited drug, cocaine, over a period in early 1995. He was arrested whilst in the course of this conduct as a result of a police operation which principally targeted the person for whom he worked, a Mr Zajak. For reasons having nothing to do with Mr Colin, he was not dealt with in the District Court until January 2000, for all practical purposes a delay of five years. 3 It is clear from his Honour's judgment that he co-operated with the police from the time of his arrest in March 1995 and has never denied the offence. He pleaded guilty at the earliest opportunity and it was apparent from the beginning that he would do so. 4 His Honour, having considered the material objective and subjective circumstances, fined the respondent in the amount of $4,000 and deferred passing sentence under what was then s 558 of the Crimes Act 2000 which permitted him to be released upon entering into a recognisance in the sum of $5,000 to be of good behaviour for a period of two years and to come up for sentence if called upon. We have been informed that the fine of $4,000 was not paid having regard to the Crown's appeal against the inadequacy of the sentence. 5 The offences arose out of his employment in a restaurant in a northern suburb of Sydney as a sommellier and waiter. Until that stage, as I understand it, he had not had any contact with illegal drugs. As it happened, however, the restaurant was a place where cocaine was supplied, mostly, as his Honour accepted, by Mr Zajak who was a regular patron and who was there daily. Mr Colin needed accommodation and, having found out from someone in the cafe that Mr Zajak may be able to offer it, he approached him and accepted Mr Zajak's offer of a room into which he moved about six months or so before his arrest. 6 Following this, he was offered cocaine by Mr Zajak and his Honour accepted that it was as a result of that introduction and the easy availability of the drug by the person with whom he lived, and also who conducted a street level dealer's business in cocaine from the restaurant, that he developed an addiction. By the time he was arrested he was using about three grams a week. 7 The respondent, as his Honour found, spent all his wages on cocaine and he became involved in the supply because it gave him the opportunity to purchase it more cheaply than he otherwise could have done so and because he became indebted to Mr Zajak both for rent and the supply of cocaine to him. 8 His Honour's findings on these and the facts which I am about to relate were not the subject of dispute by the respondent and are accepted for the purposes of this hearing on the respondent's behalf. 9 On occasions when Mr Zajak was not present at the restaurant, Mr Colin provided cocaine which he had got from Mr Zajak to that person's customers, who would come to the restaurant to collect it. The respondent collected the price of the cocaine, take twenty or thirty dollars for himself if a gram was involved, and it usually was, and pass on the balance to his employer. Something like ten or fifteen grams of cocaine were supplied in that way. 10 There was, however, one other substantially larger transaction that took place when Mr Zajak went away on holidays leaving Mr Colin, as it were, to continue his business of supplying cocaine to regular customers. 11 On 25 January 1995, the respondent contacted one of Mr Zajak's suppliers and purchased about thirty-five grams of cocaine which he then supplied to a customer of Mr Zajak. The funds provided for this transaction, both by the customer and Mr Zajak to the respondent, were in the result somewhat less than its cost. His Honour accepted that the respondent did not know what the dealer charged. The mere fact that, on this particular transaction, the respondent lost money is of course no mitigating consideration. However, it does indicate his relatively inferior role in the business operated by Mr Zajak. 12 Coming to the subjective features of the case, the respondent since his arrest, as his Honour accepted, had stopped using cocaine. He has been in continuous employment. There have been other advantageous changes in his personal life. He has a partner who had been with him for eighteen months or so before sentence. He had changed his circle of friends and he has stayed away from the restaurant, connection with which gave rise to these offences. In a very significant way the respondent, who came before his Honour in the District Court and who is here today, is a very different person from the man charged with these offences in March 1995. 13 During the period of his remand he was required for a long time to report on three occasions a week to the police, although this was eventually reduced to once a week. His passport had been surrendered with the consequence that he has been unable to visit either his parents or his brother who live abroad. 14 His Honour rightly stated the relevant principle as being that, normally, people who commit the offence of supplying cocaine should be sentenced to a period of custody. His Honour, however, considered in the circumstances that a full-time sentence was not justified and that any custodial sentence would be unnecessary, as I interpret his Honour's reasons for sentence, having regard to the substantial degree of rehabilitation which I have described. 15 In my view, his Honour erred in failing to give sufficient weight to the considerations of general deterrence which apply to this crime. Although the respondent's involvement was almost at the lowest level, a very substantial superstructure of extremely dangerous criminal behaviour rests upon the willingness of people like him to sell in small quantities but over lengthy periods of time, to a wide range of people the prohibited drug. The amounts of money collected go to finance criminals who are ruthless and dangerous. No society can long survive if it permits persons to make profits out of breaking the law. The social consequences of the criminal trade in prohibited drugs are very substantial indeed, including corruption, the undermining of legitimate businesses and a serious level of violence, including murder, these coming in the train of the trade in which the respondent played a minor but necessary role. 16 Accordingly, I consider that a custodial sentence was required in the circumstances of this case and that his Honour erred in considering that it was unnecessary to impose such a sentence. 17 In dealing with the matter, however, in this Court a number of considerations must be borne in mind. Firstly, as his Honour mentioned, there has been considerable delay in dealing with the criminal behaviour which I have described. It has been said, but it cannot be repeated often enough, that justice delayed is justice denied and this can occur in more than one connection. In Regina v Everett (1994) 181 CLR 295 at 305, Deane, Dawson and Gaudron JJ said - "As has been said above, the deep-rooted notions of fairness which underlie the common law principle against double jeopardy require that a Court of Criminal Appeal approach an application by the Crown for leave to appeal against sentence on the basis that such leave would only be granted in the rare and exceptional case. Indeed, that approach was particularly appropriate in the present cases where the effect of the sentencing Judge's orders had been that each of the respondents had been released from custody and had been permitted and encouraged to resume his place in the community and to set out on the path of rehabilitation." 18 This statement of principle applies by analogy to the circumstance that the respondent had for five years, since his frank acceptance of criminal responsibility, been permitted to remain at large, during that time, as I have mentioned, substantially and in a very real sense rehabilitating himself. This was permitted even though, it may be, in a fit of absent-mindedness by the parties charged with the responsibility of administering the system of criminal justice. 19 Also material in circumstances of this case are the sentences passed on the respondent's co-offenders. Mr Zajak received a sentence of sixteen months' imprisonment with a non parole period of twelve months whilst another co-offender who also briefly lived with Mr Zajak and the respondent and involved himself in facilitating Mr Zajak's business of drug dealing was sentenced to perform three hundred hours of community service. 20 I have mentioned that his Honour's sentence was manifestly inadequate and his Honour erred in law in the statement of material considerations to be applied in this case. It follows that this Court should consider whether or not it should pass a sentence having regard to the principles of double jeopardy to which I have referred. In my view, having regard to the seriousness of this offence, it is necessary for the Court to materially provide a degree of denunciation for the criminal behaviour undertaken by the respondent and to underline the necessity for general deterrence to crimes of this kind. 21 Accordingly, I consider that this Court should allow the appeal, quash the orders below, and impose a sentence of imprisonment of twelve months to be served by way of periodic detention. Having regard to the provisions of s 5(5) of the Crimes (Sentencing Procedure) Act 1999, this sentence requires compliance with Pt IV of the Act. In my view, having regard to the imposition of an order of periodic detention, it is not appropriate to state a non parole period, and accordingly s 45 enables the sentence to be in the form which I propose - normal imprisonment of twelve months to be served by way of periodic detention. 22 SPIGELMAN CJ: I agree with his Honour's reasons. The Court has been informed that the prior indication by the respondent of preparedness to serve a term by way of periodic detention is not operative under the new Act. Pursuant to the new Act, under s 66 (1)(f), prior to the Court making a periodic detention order, the Court must be satisfied that the offender has signed an undertaking in the new form. As we understand the position, that will be done. 23 Accordingly, the Court does not propose, on this occasion to actually make the orders that it has indicated it will make. It will do so on Friday. Perhaps whoever then appears for the Crown could indicate whether the relevant steps have occurred between that date and this. Sentencing under the new Act is a new matter for all of us on the Bench. If any submissions are to be made to the Court about the form of the order, perhaps that could also be done between now and Friday. 24 I agree with the orders proposed by Adams J and the reasons of his Honour. 25 NEWMAN J: I also agree. 26 SPIGELMAN CJ: We will not make a formal order today but anticipate that we will be in a position to do so on Friday. ********* IN THE COURT OF CRIMINAL APPEAL