Regina v Bacon [2000] NSWCCA 549

Reported Decision : 120 A Crim R 28

New South Wales Court of Criminal Appeal

CITATION : Regina v Bacon [2000] NSWCCA 549 FILE NUMBER(S) : CCA 60692/2000 HEARING DATE(S) : 13 December 2000 JUDGMENT DATE : 13 December 2000

PARTIES : Crown - Respondent Kane David BACON - Applicant JUDGMENT OF : Simpson J at 1; Carruthers AJ at 20; Smart AJ at 66

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/31/0363 LOWER COURT JUDICIAL Howie DCJ OFFICER :

COUNSEL : P Hock - Crown R Burgess - Applicant SOLICITORS : S E O'Connor - Crown D J Humphreys - Applicant

Drugs Misuse and Trafficking Act 1985 Sentencing Act 1989 LEGISLATION CITED : Listening Devices Act 1984 Crimes Act 1900 Drugs Misuse and Trafficking (Ongoing Dealing) Bill DECISION : Leave to appeal allowed, appeal allowed and sentenced quashed. Applicant re-sentenced.

IN THE COURT OF CRIMINAL APPEAL 60692/2000

SIMPSON J CARRUTHERS J SMART AJ

13 December 2000

REGINA v Kane David BACON Judgment

SIMPSON J :

1 The Court is in a position to give judgment now. On 15 October 1999 the applicant entered a plea of guilty to a charge of supplying a prohibited drug on an ongoing basis, a charge brought under the provisions of s 25A of the Drugs Misuse and Trafficking Act 1985 which carries a maximum penalty of twenty years' imprisonment. Having heard evidence, Howie DCJ (as his Honour then was) sentenced the applicant to imprisonment for three years made up of a minimum term of two years and an additional term of twelve months. In order to structure the sentence as he did, it was necessary that his Honour find special circumstances within the meaning of s 5(2) of the Sentencing Act 1989 under which he was sentencing the applicant which he did. His Honour took into account a period of pre-sentence custody of three months although only a part of this was referable to the drug charge. His Honour was also sentencing the applicant in relation to a conviction for assault occasioning actual bodily harm which had originally been dealt with in the Local Court against which the applicant had appealed to the District Court. Having confirmed the conviction, his Honour sentenced the applicant to a fixed term of imprisonment for six months and he accumulated the sentence for the drug offence. That sentence, that is the drug offence sentence, he specified to commence on 29 April 2000 at the expiration of the fixed term sentence for assault. The subject matter of this application for leave to appeal is asserted severity of the sentence imposed in relation to the drug charge. Except insofar as the sentence for assault impacts upon the sentence for the drug offence, it is of no further materiality. No appeal lies to this Court either from the conviction or the sentence imposed in relation to that offence. 2 The offence of supplying a prohibited drug on an ongoing basis was committed on three days over a period of one month (8 February, 24 February and 7 March) in 1999. The drug supplied was amphetamine which, on each occasion, also contained methylamphetamine and on one occasion also contained pseudoephadrine. These drugs are to be treated in the same way and not to be differentiated from one another for sentencing purposes. They are all to be treated as drugs in the middle range of seriousness or harmfulness. The amounts of the drugs supplied on the three consecutive occasions were respectively 13.53 grams, 27.6 grams and 27.4 grams, giving a total of 68.53 grams. That does not, however, reflect the purity of the drug on each occasion. As a quantity of pure drug, the amount supplied was considerably lower than those amounts would suggest. On each occasion the recipient of the drug supplied by the applicant was an undercover police officer who recorded their conversations pursuant to a warrant issued in this Court under the Listening Devices Act 1984. 3 In addition to a short summary of the facts of the offences, the sentencing judge was provided with transcript of tape recordings of certain of the applicant's conversations and statements by a number of police officers who had been involved in the investigation. 4 The applicant gave sworn evidence, as did his wife and his employer, and a pre-sentence report was provided for the information of the Court. From these the following matters emerged: the applicant was born on 2 March 1973. At the time of the last incident of supply he had just turned twenty-six years of age. He has a criminal record which began in the Children's Courts of Tasmania which was his State of origin. He was less than thirteen years of age when he first appeared in such a court and he had subsequent appearances, twice in 1987 and again in 1989. The offences included stealing, many counts of burglary, and damage to property. He has also committed offences for which he has been dealt with in adult Local Courts but he has never before been sentenced to an unsuspended term of imprisonment. In 1995 he was convicted of and fined for drug offences which the Court was told involved marijuana. 5 The applicant explained his involvement in the offence. He said that in August 1998 he had moved, two months ahead of his wife and two children, from Tasmania to Port Macquarie. He did this in order to make a new start for himself and his family. His first employment in Port Macquarie was at an escort agency as a driver and it was during the course of that employment that he was introduced to the drug amphetamine. After some time he decided to try it. He liked the sensation and became involved in the sale of the drug for the purpose of financing his own use of it. 6 When the applicant's wife and children arrived in Port Macquarie his wife immediately noticed a change in the applicant although she was unable at that stage to identify its cause. When she did so she delivered an ultimatum to the effect that the applicant was to cease his involvement or she would take the children and move out. She in fact did make arrangements for alternative accommodation and the applicant accepted the ultimatum and notified the police operative that he would no longer supply the drug. Some pressure was brought to bear on the applicant to continue supply. He resisted that pressure. 7 The applicant then changed his employment and took up panel beating for which he, although untrained and unqualified, apparently has a talent. Indeed, his employer, Mr Phoenix, gave evidence to the effect that a full-time job was available for him. 8 The applicant denied having supplied amphetamines to anybody other than the police operative and one of the women who had originally introduced him to it. In respect to this matter, the sentencing judge was satisfied beyond reasonable doubt that he should reject the applicant's account. He was satisfied that the applicant's involvement in supply had been greater than contended for by the applicant. He did, however, accept that the applicant was using amphetamines himself and that he had become involved in the way he described and, most importantly, that he had ceased his participation, at the instigation of his wife, before being apprehended. Notwithstanding his satisfaction that the applicant's involvement was greater than he claimed, the judge stated his intention of sentencing on the basis that his preparedness to supply drugs covered the period 8 February to 15 March. 9 The application for leave to appeal was based upon the contention that the sentence imposed was manifestly excessive. Four particular matters were identified as supporting such a conclusion. It was not argued that his Honour omitted to deal with or recognise any of these matters. The contention, as I understood it, was that, if those matters had been given their proper weight, then the sentence would not and could not have been as lengthy as it was. That is, it was argued that, by inference, it could be seen that notwithstanding the reference to each of these matters in the remarks on sentence, one or more of them was or were accorded inadequate weight. The four matters were: (i) the plea of guilty; (ii) identification of methylamphetamine as a mid-range drug, less serious than heroin or cocaine; (iii) the amount of the drug supplied together with the fact that the motive for supply was not financial gain; (iv) the short period over which the applicant was involved and his voluntary cessation of supply prior to apprehension.