R v Shepherd [1999] NSWCCA 162

New South Wales Court of Criminal Appeal CITATION : R v Shepherd [1999] NSWCCA 162 FILE NUMBER(S) : CCA 60801/98 HEARING DATE(S) : 11 June 1999 JUDGMENT DATE : 11 June 1999

PARTIES : Regina v James Lawrence SHEPHERD JUDGMENT OF : Grove J at 25; Carruthers AJ at 1-24

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/11/0655 LOWER COURT JUDICIAL OFFICER : Viney J

COUNSEL : R A Hulme for the Crown R Burgess for the Applicant SOLICITORS : C K Smith for the Crown Michael Croke & Co for the Applicant CATCHWORDS : Criminal law - sentence appeal against severity; Supplying prohibited drug (cannabis).; Sentencing discretion in particular circumstances.; Matter could have been dealt with in Local Court. ACTS CITED : Drugs Misuse and Trafficking Act 1995 Criminal Procedure Act 1986 Dalton - Morgan, CCA, unreported 14/12/1989 CASES CITED: Jason Clyde Smith, CCA, unreported 11/9/1991 Le Cerf (1975-6) 8 ALR 349 at 351 DECISION : Leave to appeal granted.; Appeal dismissed.

- 1 - IN THE COURT OF CRIMINAL APPEAL

60801/98

GROVE J CARRUTHERS AJ

FRIDAY 11 JUNE 1999

JAMES LAWRENCE SHEPHERD v REGINA (NSW)

JUDGMENT 1 CARRUTHERS AJ: James Lawrence Shepherd seeks leave to appeal against a sentence imposed upon him by Judge Viney QC at the District Court Sydney on 16 September 1998. 2 The applicant had pleaded guilty to one count of supply prohibited drug (cannabis). See section 25(1) and section 32(1)(h) of the Drugs Misuse and Trafficking Act 1995 which offence carries a maximum penalty of 10 years imprisonment or $200,000 fine or both. 3 His Honour sentenced the applicant to a minimum term of nine months imprisonment to commence on 16 November 1998 and to expire on 15 September 1999 and imposed an additional term of 12 months to commence on 16 September 1999 and to expire on 15 September 2000. His Honour said that he had taken into account in the sentence that the applicant spent 10 days in pre-sentence custody. In fact it would appear that the precise period of pre-sentence custody was 8 days. 4 It was accepted by the Crown that in view of the quantity of cannabis involved this matter could have been finalised in the Local Court in which case the maximum custodial penalty would have been two years imprisonment. 5 It is relevant to notice in this regard Part 9A: "Summary Disposal of Indictable Offences by Local Courts" in the Criminal Procedure Act 1986. This offence is to be dealt with summarily by the Local Court unless the prosecuting authority elects in accordance with Part 9A, to have the offence dealt with on indictment. Thus it is different to some other provisions which provide that an offence may be dealt summarily within the Local Court on the election of the prosecuting authority. The stress here is that primarily the matter is a Local Court matter unless there is an affirmative election by the prosecuting authority that the matter proceed in the District Court where there is of course a much greater maximum penalty. 6 There was some discussion about the subject matter being in the District Court and precisely how it got there. Be that as it may, it is common ground that the matter was lawfully in the District Court and the maximum penal sentence was 10 years. I shall briefly return to this aspect of the case. 7 The relevant facts may be briefly stated. The applicant was born on 23 February 1973. At the time of the subject offence, he was living in Adelaide, South Australia, separated from his wife and two young children who also lived in Adelaide. He was employed as a ceiling fixer but at the time of the subject offence was on compensation and therefore receiving a reduced income which was, it appears, imposing financial pressures upon him. 8 Sometime before 25 June 1998, the date of the subject offence, the applicant told a man, to whom I shall refer as Harry, in Adelaide, whom he knew to be a dealer in cannabis, that the applicant knew a man in Sydney, to whom I shall refer as Todd, who could sell cannabis. Very shortly then before 25 June 1998, Harry asked the applicant would he introduce the man, to whom I shall refer as Ray, to Todd in Sydney for the purpose of the sale of cannabis. 9 Ray was to drive from Adelaide to Sydney and bring a box of cannabis with him. Harry arranged with the applicant that he, the applicant, would travel to Sydney and make contact with Todd and Ray and that he would introduce them to each other. Ray would then hand the box of cannabis over to Todd. Harry gave the applicant $1,000 to cover his airfare and accommodation in Sydney. However, the applicant said that he believed that he was to get something more out of the deal for himself but no arrangements were made as to quantum. As the applicant said in evidence to Judge Viney, bearing in mind his financial position, anything which he got out of the deal was "a bonus". So pursuant to this arrangement the applicant flew to Sydney and was picked up at the airport by Todd who drove him to the Novotel Hotel. They were expecting Ray to arrive but in fact he did not and Todd could wait no longer and for some reason or other he had to leave the hotel. 10 Ray ultimately arrived at the hotel with the box, having travelled from Adelaide, but when he arrived Todd had gone and only the applicant was there. Thus the prearranged plan had not gone as intended. 11 Now, although it was part of the arrangement, according to the applicant, that he was not to touch the box, by reason of the circumstances which had arisen, the applicant decided that he would take the box to Todd's home at Chifley on the following morning. This he did. He left the Novotel Hotel and travelled to Todd's home at Chifley with the box but unfortunately for the applicant, Todd's home was under surveillance by Federal Agents, and both Todd and the applicant were arrested. It would seem that the whole arrangement had been monitored by Federal Agents. 12 The applicant had a strong subjective case. By the time of the sentencing proceedings he was reunited with his wife and children and was in full employment. Mrs Shepherd gave evidence at the sentence proceedings in which she said that her husband had been naive and too trusting but the experience through which he had been had made him more mature. 13 A pre-sentence report indicated that the offence was committed at a time when the applicant was emotionally unstable. He had the advantage of no prior criminal record. 14 There was a strong subjective case. 15 Judge Viney accepted that the applicant's role was not that of a principal but more in the nature of a domestic carrier or go-between. His Honour referred however to the well established principle that it is only in exceptional circumstances that departure from a full-time custodial sentence could be justified with regard to offences of this nature. He referred to the applicant not being addicted to drugs, having been co-operative with the police and the early plea of guilty. His Honour noted that the amount of cannabis involved was said to be worth between $25,000 and $30,000 street value. 16 However, his Honour felt that balancing the objective and the subjective circumstances and the proper application of the law, a custodial sentence was, in effect, inevitable. 17 A significant aspect of the appeal is that no reference seems to have been made by counsel to his Honour to the fact that the matter would have been dealt with by the Local Court if the prosecuting authority had not deemed it appropriate to have the matter dealt with in the District Court. Reference has been made to Dalton - Morgan, (CCA, unreported 14 December 1989) and Jason Clyde Smith, (CCA, unreported 11 September 1991). 18 In the latter case, Priestly JA, who gave the judgment of the Court, said: "The case that was brought was one that could have been dealt with under section 30 of the Drug Misuse and Trafficking Act. Under that section the penalty is a fine of 50 penalty units or imprisonment for a term of two years or both. This is a factor which was apparently not drawn to the sentencing judge's attention. It is one that this Court has decided can be taken into account in a case such as the present". 19 His Honour then cited Dalton - Morgan and continued: "It would also, of course, have been open to the magistrate, to take into account in considering the appropriate penalty the surrounding circumstances of the matter, including the discovery of the large quantity of the cannabis leaf at the applicant's home, assuming again, of course, that those surrounding circumstances provided evidence linking the applicant with the other cannabis leaf, even if the linkage fell short of a case of possession." "In my view the position concerning the availability of the summary method of dealing with the matter under s 30 was an important factor for consideration in the sentencing of the applicant. The fact that it was not taken into account so far as any of the materials in this Court show led to what I think was an excessive sentence and one which in my opinion should be set aside". 20 It is relevant to note that in Smith, the case which the Crown actually proved at the trial was that the applicant had gone to Redfern where he took steps enabling his brother to sell two to three grams of cannabis leaf for a price of approximately $50. 21 There is no doubt in the present case in my view, that if his Honour's attention been drawn to the fact that the matter would have been dealt with in the Local Court had the prosecuting authority not elected otherwise, was a relevant matter for consideration. Nevertheless, it seems to me that it was a perfectly proper and responsible exercise of the discretion which was vested in the prosecuting authority to bring the subject matter in the District Court. 22 It can be seen that the illegal transaction which I have briefly set out above was one that involved some days for its consummation. It involved the applicant travelling from Adelaide to Sydney and ultimately, his handing over the subject drug to the proposed seller in Sydney. And one must also take into consideration that it was the applicant who identified to Harry, Todd as a person in Sydney who could sell cannabis. 23 One is constantly referred in cases such as this to the judgment of Wells J of the Supreme Court of Australia in Le Cerf (1975-6) 8 ALR 349 at 351 where his Honour said: "If there were no middle men and underlings, there would be no top men in an organisation. If an organisation is starved of recruits, it must collapse." 24 Even allowing for the fact that no reference was made to the possibility of this matter having been dealt with in the Local Court, I am quite unable to conclude that the sentence, both by way of the minimum term and the additional term, was outside the sentencing discretion of his Honour in the particular circumstances of this case. Accordingly, in my view, although leave to appeal should be granted, I consider that the appeal should be dismissed. 25 GROVE J: I agree with Mr Justice Carruthers. The orders of the Court will be as he has proposed. **********