Regina v Kenneth Robert Derley [2001] NSWCCA 419

Reported Decision : 125 A Crim R 308

New South Wales Court of Criminal Appeal

CITATION : Regina v Kenneth Robert Derley [2001] NSWCCA 419 FILE NUMBER(S) : CCA 60821/00 HEARING DATE(S) : 15/10/01 JUDGMENT DATE : 15 October 2001

PARTIES : Kenneth Robert Derley (Applicant) Regina (Respondent) JUDGMENT OF : Grove J at 1; Bell J at 2

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/11/0661 LOWER COURT JUDICIAL Blanch CJ/DC OFFICER :

COUNSEL : E L Fullerton SC (Applicant) R A Hulme (Crown) SOLICITORS : Michael Croke & Co (Applicant) S E O'Connor (Crown)

Crimes Act 1900 (NSW) LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985 R v Barton [2001] NSWCCA 63 unreported, 5 March 2001 R v Bavadra [2000] NSWCCA 292 CASES CITED: R v Harris [2001] NSWCCA 322 R v Lemene [2001] NSWCCA 5 R v Olbrich [1999] HCA 54; 199 CLR 270 DECISION : Application for leave to appeal allowed. Appeal dismissed.

IN THE COURT OF CRIMINAL APPEAL 60821/00 GROVE J BELL J

15 October 2001 REGINA v Kenneth Robert DERLEY

Judgment 1 GROVE J: I agree with the orders proposed by Bell J. 2 BELL J: This is an application for leave to appeal against the severity of a sentence imposed upon the applicant by the Chief Judge of the District Court following his plea of guilty to a charge of supply prohibited drug (methylamphetamine) in an amount not less that the commercial quantity prescribed for that drug. The offence is provided for in s 25(2) of the Drugs Misuse and Trafficking Act 1985. It carries a maximum sentence of twenty years imprisonment and/or a fine of 3500 penalty units. 3 The applicant asked the sentencing judge to take into account a further four matters in accordance with the provisions of s 33 of the Crimes (Sentencing Procedure) Act 1999. Those offences, as briefly described in a Form 1 document, comprised two charges of make false statement with intent to obtain financial advantage; one charge of use false instrument, and one charge of possess prohibited drug. The latter offence related to the finding of three ecstasy tablets in the possession of the applicant when he was arrested in connection with the principal offence. The three dishonesty matters set out on the Form 1 document occurred in the period between 12 November and 22 November 1999 and related to the same fraudulent insurance claim. 4 It is convenient to set out the facts of the principal offence as they appear in his Honour's remarks on sentence: "The facts of the supply charge are that the National Crime Authority was carrying out an investigation and their attention came upon the prisoner and a Mr Cook in April of this year. There was a meeting between the prisoner and Cook at the McDonalds restaurant at Waterloo and it appears that Cook had travelled down from Queensland. They got into an ACT registered motor vehicle and went to Waterloo and then there was further observation of the two of them and there was a listening device which recorded some conversation which was interpreted as involving language that could have been related to a conversation about drugs. As with much of these conversations, sometimes it is clear and sometimes it is not. In this case, the words used were equivocal, although there was one statement where Cook advised the defendant there was enough money in it from everybody. A sum of $700,000 was mentioned, but that does not appear to relate to anything that has been subsequently proved. On the other hand, it is conversation that sounds and sounded suspicious. They went to Melbourne together to see a person who was a Melbourne criminal known as Demetrious Samsonides. On 22 April in the year 2000 the National Crime Authority operatives saw the prisoner walk from a home in Clarkefield and go to a vehicle and remove a small, dark coloured bag and take it back into the house. Later that day, Cook and the prisoner came out with two other men and walked to the rear of the vehicle. The prisoner opened the boot of the vehicle and Cook was observed to place a black object into the boot of the car. At the same time there were recorded conversations, which indicated that they were concealing the object in the back of the car. At the same time there were recorded conversations which indicated that they were concealing the object in the back of the car. It transpires that the drugs were concealed in the car and subsequently the vehicle was stopped at Breadalbane on the Hume Highway by the Goulburn Highway Patrol. They removed the spare wheel and the lining material and located two sealed packages concealed in the rear wheel arch. They were wrapped in black coloured plastic and sealed with cellophane. The amount of methylamphetamine contained was 901.4 grams and it was thirty-four to thirty-six percent pure. The police facts also contain the statement that the mobile phones of the prisoner and Cook were found not to have the batteries in them and the statement of facts says that mobile telephones can be traced as to their whereabouts by checking the cell location of the telephone. The removal of the batteries had the effect of preventing that occurring." 5 With respect to the three matters recorded on the Form 1 document relating to the fraudulent insurance claim, his Honour found that the applicant had been involved in an accident which resulted in substantial damage being done to his motor vehicle. Thereafter he arranged to have the vehicle reported as stolen. He submitted a fraudulent insurance claim through an insurance broker. By that claim he sought to obtain a payout in the amount of $22,000. His Honour approached the matter upon the basis that the fraudulent insurance claim was a wholly separate episode of criminality. In contrast, the charge of possession of the ecstasy tablets was approached upon the basis that it was "really just an adjunct to this case". 6 The applicant did not give evidence at the sentence hearing. 7 The applicant was aged fifty-two at the date of the sentencing proceedings. His criminal record dated back to his very early days. He had first been in trouble with the police when aged only thirteen. His Honour noted that the entries on the applicant's criminal record as a youth gave support to the statement contained in the pre-sentence report, that he had a disadvantaged and poor background. The criminal record revealed a significant number of entries prior to 1979 when the applicant was sentenced to a term of eight years and six months penal servitude following his conviction on a charge of conspiracy to import cannabis. A non-parole period of three years and ten months was specified on that occasion. His Honour noted that the non-parole period expired in the early 1980's and that, thereafter, the applicant had, by and large, kept himself out of trouble. 8 Oral evidence was led from two witnesses concerning the applicant's family situation and his financial difficulties in the period leading up to the commission of the subject offence. His Honour appears to have accepted this evidence. He approached the matter upon the basis that the applicant had not engaged in this enterprise to feed his own drug addiction, but rather that he had been motivated by financial gain. He accepted that the applicant had established a business in Queensland which had ultimately failed, and that he had returned to Sydney at a time when his family was in some difficulty and in need of his assistance. Following his return, the applicant found himself unemployed. Otherwise in the period after his release from custody around 1982, the applicant had a history of regular employment. His Honour accepted that family pressures and the fact that he had no money, were the driving forces behind the applicant's decision to become involved in the subject offence. 9 His Honour found that the applicant had entered a plea of guilty at the earliest opportunity. He accepted that plea both as an expression of contrition and having regard to its utilitarian benefit. He also took into account the applicant's assistance to the authorities. He allowed an aggregate discount reflecting the plea of guilty and the assistance to the authorities in an amount of 33 percent. It has not been submitted that his Honour erred in approaching the matter upon the basis that a discount of one third was appropriate. 10 His Honour took into account evidence concerning the applicant's health difficulties. Those considerations led to a finding of special circumstances for the purposes of s 44(2) of the Crimes (Sentencing Procedure) Act 1999. It has not been submitted that his Honour erred in the approach he took to the evidence of the applicant's medical condition or to the finding of special circumstances. 11 Miss Fullerton SC, who appears on the applicant's behalf, does not identify any error of principle or mistake of fact or law in the statement of his Honour's reasons for sentence. Her contention is that the sentencing discretion miscarried by reason that the starting point identified by his Honour (absent the discount for the plea of guilty and assistance to the authorities) was one of twelve years imprisonment. Such a sentence is said to fall outside the range of the proper exercise of discretion. In developing this challenge in written submissions, Miss Fullerton contended that the sentencing judge must have failed to appreciate the role the applicant played in the supply of the methylamphetamine and that he must have given undue weight to the applicant's prior record and/or to the offences specified in the Form 1 document. Miss Fullerton observed: "While His Honour accepted that financial pressure was the motive for the applicant's involvement in serious criminal activity after so many years, there was no evidence as to the way in which the amphetamine was to be further dealt with by the applicant, if at all, or the amount of money he was to receive for his participation in its collection. There was no evidence that he had purchased the drug in fact, given the evidence as to his financial position, the evidence was entirely to the contrary. There was no evidence that he was a distributor of the drug to users. His Honour made no finding that would enable the appointment of the applicant's criminality in the pick-up and transportation of the drug as that of a trafficker for profit of wholesale amounts, as distinct from that as a courier for a fee. While a sentencing judge is not bound to make a finding as to the precise role a person plays in the distribution of a drug, he should not sentence other than on the basis of the facts as they are established by the evidence (The Queen v Olbrich). His Honour made no actual finding as to the role played by the applicant but must have found the criminality of the most serious kind. While the applicant's admitted motives did not in any sense mitigate his involvement, even given the amount of the drug collected it is submitted that the sentence is excessive." 12 These submissions seem to me to pay insufficient regard to the observations of the Gleeson CJ, Gaudron, Hayne and Callinan JJ in their joint judgment in Olbrich [1999] HCA 54; 199 CLR 270 at [14]-[16]. "It is understandable that, in order to promote consistency in sentencing, appellate courts, when expressing views about sentences for drug offences, have sometimes categorised the role of an offender, where that is known, in a scheme of importation or distribution. Similarly, sentencing judges who are dealing with several co-offenders may consider such categorisation relevant in differentiating between individuals. However, the utility of such an exercise is necessarily limited by the extent to which the material facts are known. What may be a convenient shorthand method of describing the facts of particular cases should not be elevated to an essential task to be undertaken in every case, regardless of whether that is possible or appropriate. In the present case, the precise nature of the involvement of the respondent in the act of importation was known: at least in the sense that it was known that he had brought the drugs into Australia. He was the importer. But if, as the Court of Criminal Appeal said, the course of events prior to or subsequent to the actual act of importation is relevant and necessary information, it may be accepted that little was known to the primary judge of those matters apart from what the respondent said in evidence. Was the primary judge obliged to inquire about them? If there was no evidence about those events, was the primary judge bound to make some assumptions about them that were favourable to the accused? There is a very practical reason for concluding that a sentencing judge is not obliged to inquire about the course of events before or after an importation of drugs. Very often prosecuting authorities (and a sentencing judge) will have only the most limited and imperfect information about how it was that the accused person came to commit an offence for which he or she stands for sentence. Especially is that so where the accused has pleaded guilty and where the offence which the offender admits is one which had its genesis outside this country. Very often then it will not be possible to say, with any certainty, what exactly was done or intended by a person apprehended in the act of importing narcotics into Australia." 13 The evidence placed before the sentencing judge included a Facts Sheet prepared by Senior Constable Lee of the National Crime Authority. That set out that on Friday, 21 April 2000, the applicant was observed to meet with his co-accused, Alistair Cook, at a McDonald's restaurant in Waterloo. Subsequently the two were seen to travel to residential premises in Waterloo. A little later that morning the applicant was observed to leave those premises and to place a black coloured carry bag in the boot of a vehicle bearing the registration YYQ-098. Further observations were made. The applicant and the man Cook were seen to travel in that vehicle to Melbourne. 14 In Melbourne they visited premises occupied by a criminal identity named Dimitrious Samsonides. Both the applicant and Cook were observed to leave the Samsonides premises and to walk to the rear of the vehicle, YYQ-098, and to load unknown items into the boot. Thereafter both men commenced the return journey to Sydney in the vehicle. Later that afternoon they were stopped by members of the Goulburn Highway Patrol at Breadalbane. The vehicle was searched and the amphetamines were located in two sealed packages wrapped in black plastic. Both men were arrested and taken to the Goulburn Police Station. Both denied any knowledge of the narcotics located by police. 15 The sentencing judge approached the matter upon the basis that there was no reason to differentiate between the applicant's role and that of the co-accused Cook, save to note that the applicant had entered an early plea of guilty. 16 This was a case in which there was no material before his Honour which permitted him to make more detailed findings concerning the role played by the applicant in the offence. 17 The applicant was sentenced upon the basis that he was guilty of the deemed supply of a commercial quantity of methylamphetamine by reason of his possession of some 901.4 grams of that substance. In determining the penalty to be imposed for such an offence it is appropriate to have regard to the maximum provided by Parliament. For this offence it is one of twenty years imprisonment. 18 Miss Fullerton placed reliance upon sentencing statistics prepared by the Judicial Commission of New South Wales. In her submission, those statistics establish that the highest full term sentence for the supply of a commercial quantity of methylamphetamine was one of nine years imprisonment. The statistics to which she referred included 69 cases in the period April 1993 to March 2000. 19 In written submissions, the Crown conceded that the sentence imposed upon the applicant falls at the upper end of the range as indicated in the statistical material published by the Judicial Commission. The Crown takes issue with Miss Fullerton's submission that the sentencing judge must be taken to have erred by selecting a starting point of twelve years when regard is had to the highest sentence recorded for this offence. 20 As the Crown rightly notes, it is reasonable to assume that many of the cases making up the database involved a notional starting point higher than the sentence actually imposed by reason of a discount for a plea of guilty or some other favourable subjective factors. In this respect, the Crown draws to attention that the latest statistics published by the Commission (for the period January 1994 to December 2000) contain details of 78 cases and that in 73 of those, the offender entered a plea of guilty. 21 Generally, the Crown's submission is that when the statistics are refined in order to take account of the applicant's circumstances, there are too few cases to produce a statistically useful result. In the Crown's submission, the most relevant set of statistics was that relating to offenders aged over 40 years, with matters taken into account on a Form 1, who pleaded guilty. There were only six such cases in the period covered by that survey. 22 In considering this aspect of the applicant's challenge it is relevant to recall that this applicant had previously been convicted and sentenced to a lengthy term of imprisonment arising out of his involvement in the importation of cannabis. Having regard to that circumstance and the to quantity of the drug involved in this case (which might be thought to place the offence at the upper end of the scale of seriousness for offences of supply of a commercial quantity) I am not persuaded that there is any merit in the submission that the sentencing judge erred in fixing, as a notional starting point, a sentence of twelve years imprisonment. 23 I should note that Miss Fullerton also addressed submissions concerning the dishonesty offences taken into account on the schedule. She accepted that the operation of s 33 of the Crimes (Sentencing Procedure) Act does not entitle an offender to admit to further offences and thereby to wipe the slate clean in the expectation of only a small additional penalty. In written submissions she took the court to the observations made in R v Lemene [2001] NSWCCA 5 for the proposition that an offender is entitled to expect that the additional penalty imposed in respect of Form 1 matters will be significantly less than would have been imposed if separate offences had been prosecuted. 24 In written submissions the Crown has drawn attention to the judgment of Simpson J in R v Harris [2001] NSWCCA 332 at [23] - [29] in which her Honour collects recent expressions of principle by a number of judges relating to the approach to be taken to sentencing involving matters taken into account on a Form 1. In the Crown's submission, there may be discerned some difference of approach on this issue by members of this Court as between the views expressed by Simpson J in Harris, namely that the "additional penalty should be significantly less" approach and the view that the "penalty should reflect the total of criminality" approach illustrated by the decision in R v Bavadra [2000] NSWCCA 292 at [30] – [31]. 25 If there is a difference in approach taken by members of this Court it is not appropriate for a bench of two judges to embark upon any attempted resolution of it. Miss Fullerton accepted that the sentencing judge was entitled to approach the Form 1 matters upon the basis that they represented a separate episode of criminality, she did not seek to challenge his Honour's observations: "Although it is to be taken into account on a Form 1, it is a matter of some significance and it does certainly increase the overall criminality and it certainly detracts from the fact that the prisoner otherwise had not committed any serious offences since the time he served the earlier sentence. Clearly, he was still being driven by the same imperatives, so far as his finances were concerned, but the fact is the matter on the Form 1 is a serious matter in itself (ROS 7)". 26 I understood Miss Fullerton's challenge concerning the Form 1 matters to be that having regard to the overall starting point expressed by his Honour of twelve years, it might be thought that undue weight had been given to them. As I have observed, I am not persuaded that a starting point of twelve years imprisonment can be said to have been outside the range of the exercise of proper discretion in any event. 27 For those reasons I would propose that the application for leave to appeal be allowed but that the appeal be dismissed. 28 GROVE J: Those will be the orders of the court. **********