Reported Decision : 111 A Crim R 225 New South Wales Court of Criminal Appeal CITATION : R v "S" [2000] NSWCCA 13 FILE NUMBER(S) : CCA 60376/99 HEARING DATE(S) : 07/12/99 JUDGMENT DATE : 24 February 2000 PARTIES : Regina "S" JUDGMENT OF : Dunford J at 1; Hulme J at 2; Barr J at 38 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : LOWER COURT JUDICIAL Dodd DCJ OFFICER : COUNSEL : Crown: M Grogan Respondent: J Korn SOLICITORS : Crown: SE O'Connor DECISION : 1. The appeal by the Crown is allowed; 2. The sentence imposed by Judge Dodd on the Respondent on 15 June 1999 is quashed; 3. In lieu thereof, the Respondent is sentenced to imprisonment for a minimum term of 3 years commencing on 15 June 1999 and expiring on 14 June 2002 and an additional term of 1 year commencing on 15 June 2002 and expiring on 14 June 2003 - 16 - IN THE COURT OF CRIMINAL APPEAL No 60376 of 1999 DUNFORD J HULME J BARR J Thursday, 24 February 2000 REGINA -v- S JUDGMENT 1 DUNFORD J: I agree with the Reasons of Hulme J and the orders proposed by His Honour. IN THE COURT OF CRIMINAL APPEAL No 60376 of 1999 DUNFORD J HULME J BARR J Thursday, 24 February 2000 REGINA -v- S JUDGMENT 2 HULME J: On 15 June 1999 the Respondent to this appeal was sentenced by Judge Dodd to imprisonment for 3 years consisting of a minimum term of 18 months commencing on that date and an additional term of 18 months. The sentencing judge directed that the Prisoner be released on parole subject to the conditions set forth in Form 1 to the Schedule to the Sentencing (General) Regulation 1996 at the expiration of the minimum term. The charge in respect of which the sentence was imposed was that between 1 December 1995 and 30 June 1996 the Prisoner knowingly took part in the manufacture of not less than a large commercial quantity of a prohibited drug namely, amphetamine. He pleaded guilty. 3 By Notice of Appeal filed and served on 5 July 1999 the Crown has appealed from the sentence imposed. 4 The manufacture the subject of the charge occurred at Dooralong and, after the laboratory there was raided by the police, at Sylvania Waters. The Respondent was involved in the organisation and transport of equipment and chemicals to Dooralong, the commencement of the manufacturing process there and the recruitment of others to assist in that regard. When problems occurred in the manufacture, the Respondent again attended the site. 5 So far as the second site and manufacture was concerned, the Respondent was involved in the storage of chemicals and equipment, the transhipment of some chemicals and regular attendance at the premises to monitor and assist. The Respondent himself manufactured at least one of the items of equipment. 6 One unusual feature of the case was that the Respondent had previously been charged in respect of the manufacture at Dooralong but these proceedings had been dismissed at committal. 7 Another unusual feature was that the activities of the Respondent associated with both sites occurred during the currency of his trial on charges of knowingly taking part in the manufacture and supply of not less than the commercial quantity of another prohibited drug known as Nexus. He had been on bail at the time although this was revoked by Judge Davidson before whom those charges were being heard when he was arrested in connection with the manufacture at Sylvania Waters. 8 At that trial the Respondent was sentenced to an effective minimum term of imprisonment of 2 years from 13 June 1996 with an additional term of 1 year. A Crown appeal against the inadequacy of that sentence was abandoned. 9 The Respondent was born in 1950 and otherwise had only three minor drug offences for which he was fined on his record. Properly, Judge Dodd did not regard those matters as of significance in the determination of the proper sentence for the offence with which His Honour was concerned. 10 However, Judge Dodd did record that while the Respondent was intelligent and had at times achieved success in legitimate areas of business, he had become an amphetamine user and thereafter had turned to drug manufacture. On the respondent's behalf it was submitted during the appeal that the manufacture was a consequence of the use and that was a relevant factor to be taken into account in the Respondent's favour. Reference was made to R v Selim (unreported, CCA, 19 May 1998). However although there was evidence from the Respondent to this effect, no such finding was made by Judge Dodd. Furthermore, in his affidavit, shortly before saying that he had been persuaded to "do a cook" during the Nexus trial, the Respondent had said that he had been told that he owed it to his wife and family to make sure they were financially set up in case he ever had to spend time in gaol. In light of these circumstances, this Court would not be justified in making the finding which is the foundation for the submission. 11 His Honour also found that at the time of commission of the offences with which this Court is concerned, the Respondent had become ambivalent about his criminal activity and committed the offence under pressure from some of the drug "heavies" in Sydney. In light of the terms of an affidavit of the respondent read before Judge Dodd, and which uses the term "persuaded", it may be that this finding was unduly favourable to the Respondent. However, the finding was not the subject of challenge by the Crown, and this Court should proceed on the basis of it. 12 Among other findings made by his Honour which tended to operate in the respondent's favour were that since being jailed in October 1996, the Respondent had thrown off his drug dependency and acquired "a genuine determination not to return to drug use, to drug supply or manufacture or the criminal drug sub-culture" and it was unlikely that the Respondent would re-offend. His Honour also found that, without the Respondent's confession and plea, the Crown may have had difficulty in securing a conviction, particularly in respect of the Dooralong part of the charge. 13 Perhaps of more significance is the fact that prior to being sentenced, the Respondent had provided assistance to the authorities and undertaken to give evidence in future proceedings likely to still be on foot in 3 or 4 years time. His Honour accepted that his assistance was of extremely high value and had the result that the Respondent's life was at risk. On account of the Respondent's assistance, His Honour gave a discount of 50%, a figure His Honour said was "generally regarded as the upper limit of the discount to be applied where assistance has been particularly valuable." His Honour accepted that the Respondent would have to spend his time in custody in strict protection and even there his life would be at considerable risk. 14 There is no challenge by the Crown to any of these findings by the learned sentencing Judge. The only points taken were that, even taking them into account, the sentence was manifestly inadequate and the additional term disproportionately long. 15 The maximum penalty prescribed for the offence with which the Respondent was convicted, is life imprisonment. Had the quantity merely been "a commercial quantity" i.e. less than 1kg the maximum term of imprisonment would have been 20 years. 16 There was no evidence of the quantity of drug involved and this alone would mean that one could not treat the Respondent's offence as one of the more serious of those attracting the penalty of life imprisonment. On the other hand, in terms of quantity it was more serious than those for which Parliament has prescribed 20 years imprisonment. The offence was the Respondent's second and committed on bail, a matter always regarded as an aggravating feature. As was said in R v Richards (1981) 2 NSWLR 464:- "the community must be protected as far as possible from further criminal activities by persons who take advantage of their liberty on bail to commit further crimes. The only means open to the criminal courts to seek to apply the protection is to pass severe deterrent sentences upon those who thus abuse their freedom on bail. See also R v Draper (unreported, CCA, 9 October 1990) 17 Particularly is this approach appropriate where the subject offences were committed while on trial for other similar charges - see R v Santamaria (unreported CCA, 5 December 1986). 18 Had the Respondent been a principal, these factors would have led me to the conclusion that the Respondent's criminality was probably of, or close to that of a "worst case" category of manufacturing a commercial quantity, for which imprisonment of 20 years was appropriate. 19 However although very actively involved, he seems not to have been principal. This and the fact that his offence was committed under pressure, means that the proper penalty would have had to be significantly less than that figure. The Respondent was also entitled to prey in aid of a claim for leniency his plea, and the trail judge's views concerning the Respondent's rehabilitation - factors which made personal deterrence of significantly less weight than otherwise. He was also entitled to have taken into account, as seems to have been the fact, that it was his own assistance which led to his activities at Dooralong being reflected in the charge. As a general proposition the fact that the Respondent will need to spend his time in custody in strict protection also argues for a sentence lower than would otherwise be the case, although, as this fact seems to be the result of his assistance to the authorities, and a discount is being allowed on that account, care must be exercised to ensure there is no double counting. R v Cartwright (1989) 17 NSWLR 243 at 255 makes it clear that the nature of the imprisonment consequent on assistance to authorities is one of the factors which inspires the discount. 20 But even making allowance for these factors, if proper weight was to be given to the Respondent's criminality, to the fact the offence was the Respondent's second and committed on bail, in the absence of assistance to the authorities an appropriate total sentence would not in my view have been less than 8 years. A lesser penalty would not have adequately reflected the seriousness with which Parliament, in the form of the Drug (Misuse and Trafficking) Act has expressed its views of commercial trafficking (including the manufacture) in drugs. 21 Attention to the cases involving amphetamines discussed in R v Reardon (1996) 89 A Crim R 180 and to observations in that case make it clear that, given the Respondent's circumstances, the sentence might well be higher. It is perhaps convenient to quote from Reardon my summary of one of those cases involving someone regarded as in the middle of a hierarchy:- In Cool (unreported, Court of Criminal Appeal, NSW, 30 June 1992) the applicant had pleaded guilty to knowingly taking part in the manufacture of a commercial quantity of amphetamine which fell into the "large" category. He was part of an operation producing 2kg of drug per week for nine weeks. He gave assistance to the authorities which the sentencing judge described as "massive". He was sentenced to imprisonment for a minimum term of seven years and four months and an additional term of two years and four months. This Court rejected a submission that insufficient discount had been given for assistance to the authorities, saying that if there had been any further discount, the sentence would not have sufficiently addressed the severity of the crime. 22 Lest it be thought that they have been forgotten, mention should also be made of 2 other recent cases. One was R v Launt (unreported, Woods DCJ, 17 August 1999). The charge against Mr Launt was of aiding and abetting the manufacture of not less than a commercial quantity of amphetamine. Mr Launt was said to have pleaded guilty at the first available opportunity, to have been of prior good character and Judge Woods saw in the way Mr Launt had become involved significant mitigation. Judge Woods also recorded that Mr Launt's was a "unique case of extraordinary co-operation". The sentence imposed was a 4 year good behaviour bond under s558(4) of the Crimes Act and a fine of $10,000. The Crown did not appeal. 23 The remarks of Judge Woods do not reveal how much amphetamine was said to have been involved in Mr Launt's offence although evidence accepted by Judge Dodds in the case under appeal indicates that Mr Launt was in fact the supplier of some of the chemicals used in the Respondent's offence. That evidence also suggests that the quantity intended by Mr Launt was probably quite high although some deficiencies in the quality of chemicals meant that quantities produced must have defied the hopes of those involved. 24 A second case was that of R v Arikan (1999) NSWCCA 331. After 1 day of his trial on a charge of knowingly take part in the manufacture of not less than the commercial quantity of methylamphetamine, Mr Arikan pleaded guilty. Judge Woods imposed a sentence of 18 months imprisonment to be served by way of periodic detention. Mr Arikan provided support to a Mr Marskell, a person involved in 2 amphetamine "cooks" by performing menial tasks, driving Mr Marskell around, disposing of empty chemical drums, and helping to pick up a generator. This Court described Mr Arikan's activities as minor by comparison with those of Mr Marskell, but not minor in terms of enterprise or the criminality involved. Mr Arikan's culpability was regarded as reduced because he was suffering from depression at the time. He had no criminal convictions apart from a mid-range alcohol offence some 4 years earlier, more than his share of hardship and otherwise a strong subjective case. 25 This Court, in the exercise of its discretion, dismissed a Crown appeal, albeit saying that general deterrence called for a full time custodial sentence. 26 These cases do provide grounds for arguing that, on grounds of parity, the Respondent to this appeal will have cause for complaint if the appeal is upheld. However, there are in my view some distinguishing features which outweigh any such argument. Firstly, at least on the material before this Court, there is no demonstrated equality of comparability in criminality of offending. Secondly, Messrs Launt and Arikan were, so far as was material, first offenders, whose offences were not committed while on conditional liberty. Thirdly, the sentence imposed on the Respondent, or which would be imposed on him if one judged it by those imposed on either of Messrs Launt or Arikan, would be so inadequate by comparison with what in my view attention to the relevant legislation requires that the principle of parity should not be followed. As was said by Brennan J in Lowe v R (1984) 154 CLR 606 at 608, "… it is wrong to think that it is 'more important that sentences should be proportionate to one another than that they should be proportionate to guilt'." Se also R v Steele (unreported, CCA, 17 April 1997), Reardon (1996) 89 A Crim R 180 at 183 and 191. 27 Judge Dodd, as I have indicated, discounted the sentence he would otherwise have imposed by a factor of 50% for assistance which his Honour described as "being of extremely high value". His Honour did say that authorities to which he was referred indicated that this was the upper limit of discount to be applied where assistance has been particularly valuable. There are authorities where 60% has been allowed - see e.g. R v Redward (unreported, CCA, 19 March 1992). In R v Cartwright itself (at p256) reference is made without disapproval to cases where a discount in excess of 50% seems to have been granted. See also R v Pang [1999] NSWCCA 4. Additional evidence as to the Respondent's assistance was given during the course of the appeal but neither party challenged His Honour's figure of 50 %. It is not obviously wrong and in these circumstances it does not seem to me that this Court should depart from it. 28 Another basis upon which the Crown founded its claim that the sentence imposed by his Honour was inadequate lies in the terms of s442B(2) of the Crimes Act which, dealing with discount for assistance to the authorities, provides:- "A court must not reduce a sentence so that the sentence becomes unreasonably disproportionate to the nature and circumstances of the offence.". 29 A sentence of a minimum term of 18 months and an additional term of 18 months for substantial involvement in the manufacture of a large commercial quantity of amphetamine, even taking full account of the matters to which I have referred and which are favourable to the Respondent does offend against this statutory provision. 30 The learned sentencing judge also found that there were special circumstances "in your plea of guilty and your assistance to the authorities, in your need to spend your time in strict protection, and in your demonstrated resolve to rehabilitate and change your lifestyle from drug use, manufacture and supply." Although the finding of special circumstances but enlivened the discretion to impose an additional term longer than one-third of the minimum term envisaged by s5(2) of the Sentencing Act 1989 and did not require an increase in the ratio, and His Honour did not give express reasons for exercising this discretion in the Respondent's favour - c.f. R v McDonald (unreported, CCA, 12 October 1998) - it may be inferred that it was the circumstances to which his Honour referred that caused him to exercise his discretion as he did. 31 In written submissions filed on behalf of the Crown, it was conceded that all of the matters to which His Honour referred in the passage quoted above were relevant to the issue of whether special circumstances existed but that neither alone, nor in combination, did they justify the conclusion that the additional term should be more than one third of the additional term. It was submitted that, given His Honour's findings as to the Respondent's rehabilitation, the matters certainly did not indicate the need for an extended period of supervision on parole - the usual reason for an extension of the additional term - R v Morrissey (unreported, CCA, 15 July 1994). 32 I accept the last of these propositions. Nevertheless, it does seem to me that, subject to the matters referred to in following paragraphs, His Honour was entitled to take the view that, in the particular circumstances of the case, the combination of the matters to which he referred justified a greater than usual proportion of the Respondent's sentence being served on conditional liberty by way of additional term, rather than in actual custody, and this though there was no demonstrated need for rehabilitation. Of course, in saying that, I do not intend to depart from previous statements in this Court that, although the need to serve a sentence in strict protection may constitute "special circumstances" - R v Astill (No.2) (1992) 64 A Crim R 289, in general ordinary subjective features common to many cases such as a plea of guilty, previous good character and resolve to rehabilitate do not constitute "special circumstances" because they are not "special" - R v Phelan (1993) 66 A Crim R 446 at 449, R v Lewis (1998) 100 A Crim R 361 at 365. 33 However, that is not to say that there were not errors in what his Honour did. There were in my view two. The first was in either not recognising that the disadvantages of strict protection and indeed all aspects of assistance to the authorities had already been allowed for in the discount given on this account or in failing to explain why his Honour thought he was entitled to give both the discount he thought "generally regarded as the upper limit of the discount to be applied" and also to exhibit leniency by way of variation of the normal proportion between the minimum and additional terms. Although it seems to me that the leniency which assistance to the authorities commonly attracts may properly find expression in an increase in an additional term (presumably at the expense of a minimum term) it is at the least necessary for a judge adopting this course to provide some explanation why this has occurred rather than the leniency being reflected in the more usual reduction in the total term - a fortiori when such a reduction has already been given. 34 The second error was in failing to recognise that, even if a total term of 3 years was appropriate - and in my view it was not - by no stretch of the imagination could an 18 months minimum term be so. As was said in R v Henry and Barber [1999 NSWCCA 107]:- "A sentencing judge, having found special circumstances has a good deal of room to move in the structure of the sentence to be imposed. However, the discretion conferred by s5(2) should always be exercised with one eye to the relevant minimum term which must be such as to reflect the objective gravity of the crime for which it is imposed, taking into account the subjective features … A sentencing judge who varies the statutory proportions in favour of a lengthier additional term needs to take care to ensure that the minimum term is no lower than that which is commensurate with the objective gravity of the crime." 35 As a general proposition, it seems to me that any leniency for assistance is best recognised by way of discount from the total sentence. Generally this will be of most benefit to someone in the position of the Respondent. In the instant case it seems to me that the discount of 50% adequately recognises the leniency to which the Respondent is entitled. 36 Judge Dodd directed that the Respondent be released on parole subject to supervision at the expiration of his minimum term. Given the increase in sentence I propose, such a direction is no longer mandatory - Sentencing Act 1989, s24 - and it is appropriate to leave the matter to the parole authorities, recognising that the Respondent's history argues for supervision. 37 Accordingly, the orders of the Court should be:- 1. The appeal by the Crown is allowed. 2. The sentence imposed by Judge Dodd on the Respondent on 15 June 1999 is quashed. 3. In lieu thereof, the Respondent is sentenced to imprisonment for a minimum term of 3 years commencing on 15 June 1999 and expiring on 14 June 2002 and an additional term of 1 year commencing on 15 June 2002 and expiring on 14 June 2003. IN THE COURT OF CRIMINAL APPEAL No 60376 of 1999 DUNFORD J HULME J BARR J Thursday, 24 February 2000 REGINA -v- S JUDGMENT 38 BARR J: I agree with Hulme J. 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.