Regina v Davis [2001] NSWCCA 254

New South Wales Court of Criminal Appeal

CITATION : Regina v Davis [2001] NSWCCA 254 FILE NUMBER(S) : CCA 60075/99 HEARING DATE(S) : 18 June 2001 JUDGMENT DATE : 18 June 2001

PARTIES : Regina v Phillip George Davis JUDGMENT OF : Simpson J at 24; Smart AJ at 1

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/11/0554; 99/11/0031 LOWER COURT JUDICIAL Luland DCJ OFFICER :

COUNSEL : Applicant in Person (C) M C Grogan SOLICITORS : Applicant in Person (C) S E O'Connor CATCHWORDS : Sentencing - purported escape at time of arrest for about 100 yards - serving whole of time in maximum security - harshness - minimum term reduced to take this into account LEGISLATION CITED : Drug Misuse & Trafficking Act 1985 CASES CITED: Nil DECISION : Leave to appeal granted. Appeal against sentence as to the offence of 23 November 1998 (supply prohibited drug - LSD) taking into account the matters on Form 1 dismissed - Appeal as to the offence of 24 April 1998 (supply commercial quantity of a prohibited drug - methylamphetamine) taking into account offences on Form 1 allowed. In lieu of the sentence imposed the applicant is sentenced to imprisonment for 5 years starting on 19 January 2000 with a non-parole period of 2 years 6 months starting on that day and ending on 18 July 2002.

IN THE COURT OF CRIMINAL APPEAL

060075/99 SIMPSON J SMART AJ

Monday, 18 June 2001 REGINA v PHILLIP GEORGE DAVIS JUDGMENT

1 SMART AJ : Phillip George Davis seeks leave to appeal against the severity of sentences imposed upon him in the District Court on 29 January 1999. On the charge of supplying a commercial quantity (878.5 grams) of a prohibited drug, methylamphetamine on 24 April 1998, the applicant was sentenced to a minimum term of three years with an additional term of two years. This sentence took into account some eleven other offences which occurred at the time of his apprehension, namely assault police; possess cannabis, two charges; possess LSD; supply amphetamine; supply cannabis resin; supply LSD; goods in custody; $1,310 in two wallets; escape lawful custody of police; resist police, two charges. 2 On the charge of supplying LSD (416 tablets) on 23 November 1998, the applicant was sentenced to a fixed term of 12 months. This sentence took into account some three other offences which occurred at the time of his apprehension, namely possess LSD; possess cannabis and goods in custody ($170). The sentences were cumulative resulting in an effective non-parole period of four years and an effective head sentence of six years. 3 At the time of the commission of the offence of 23 November 1998 the applicant was on bail for the offences of 24 April 1998. 24 April 1998 4 The police had the applicant under surveillance at a hotel in Willoughby. After he left the hotel the police followed the car in which he was travelling, eventually stopping it at the corner of Amherst Street and Fredburn Street, Cammeray. The police asked the applicant to get out of the vehicle and he did so. As they started to search him he suddenly ran away. They chased him on foot for about 100 metres. Eventually the applicant turned and ran directly at Constable Parker, who tackled him, causing him to fall to the ground. The applicant sustained a laceration to the top of his head which started to bleed. After a struggle the applicant was subdued with the aid of Constable Lowery and handcuffed. 5 The applicant's bumbag was removed. It held resealable plastic bags with white powder or vegetable matter, and a wallet with $950 in cash. Another wallet with $360 in cash was in the rear pocket of his jeans. An ambulance was called and it took the applicant to Royal North Shore Hospital where he was treated. Further resealable plastic bags containing drugs were found on the applicant. 6 After his discharge from hospital about four hours later the applicant was taken to his vehicle which was parked in a council car park on Borlaise Street, Willoughby, a short distance from the hotel. During the police search a locked briefcase was found in the boot. The applicant and the briefcase were taken to North Sydney Police Station. On being forcibly opened the brief case was found to contain methylamphetamine and other prohibited drugs, a set of electronic scales, a set of manual scales, and a plastic spoon. The police estimated that the street value of all the illegal drugs was $167,370. The Constable sustained minor injuries in the struggle with the applicant. 23 November 1998 7 This day police attended at a home in Northbridge where the applicant lived with his parents. wasThey executed a search warrant. Police found 416 tabs of LSD, $170 in cash, a small quantity of cannabis, scales, and other items used in supplying prohibited drugs. The LSD tablets were estimated to have a street value of $10,400. The applicant's parents knew nothing about the drugs. The applicant did not give evidence. That would have been a risky course to take. 8 His solicitor put that the reason why the applicant committed the second offence whilst on bail was because pressure was put on him by those who supplied him with the earlier drugs for sale. They had lost money because of the applicant's arrest in April, and he engaged in sales of drugs to repay such money. That is no excuse and a poor explanation. The judge held that the offences were committed purely for financial gain. The judge said that the applicant was not stated to have been addicted to drugs and was therefore selling to finance his habit. 9 The applicant was born on 10 October 1961. His prior record contains quite a number of matters at the bottom of the criminal scale which were dealt with by way of fines, recognisances, and driving disqualifications. The offences included traffic offences, minor drug offences and dishonesty offences. There was nothing between 1986 and 1995. The judge correctly held that the applicant's record did not deprive him of leniency. The judge described the applicant as a drifter who had been unable to settle down and apply himself, despite coming from a good home. 10 The judge seems to have been prepared to accept statements made by the applicant's solicitor from the bar table. They were to the effect that the applicant had married in 1989, and that he and his wife had separated in 1994. He continued paying maintenance for their child after their separation. He had financial problems arising from the house he had bought in Perth and had difficulty in obtaining employment on his return to Sydney. He attempted to engage in the stockbroking business again in 1994, but that came to an abrupt end when the stock market became very tight. He wanted to renew his relationship with his wife but he needed money for that purpose. He foolishly engaged in supplying drugs. 11 The judge noted that the applicant's parents were elderly, that his father was in poor health and that both needed assistance. Correctly the judge held that these matters did not amount to exceptional hardship and that they did not justify further leniency. The judge found that there was little reason for mitigation in the applicant's case. The judge also found special circumstances existed by reason of the accumulation of the sentences. 12 The applicant has prepared detailed written submissions, additional written submissions, and a note of 31 May 2001. They are well presented. In his note of 31 May 2001 the applicant has stated that he only wishes to rely on three submissions, and I will deal with these. Drug Purity and Police Valuation 13 In his written submissions of 10 May 2000 the applicant submitted that his solicitor was incompetent for not recognising and not challenging the police valuation of $167,000 assigned to the drugs seized on 24 April 1998. 14 It was submitted that the low purity, 5.5 per cent, and quality of those drugs would have never attracted such a high valuation. The applicant submitted that if this had been understood, this may have allowed the judge to reduce his sentence. The judge remarked that the low purity indicated that the drugs found by the police in the car could not have been broken down any further for resale. The applicant's solicitor concentrated, in his submissions, on the quantity of the drugs and the low purity level. Under the drug legislation the quantity is a very important consideration. 15 While Mr Davis was prepared to accept that quantity was important, he was concerned about the reference that the judge made to the estimated valuation. Mr Davis submitted that the estimated valuation was approximately 100 per cent more than it should have been. 16 In Mr Davis' view a more realistic estimate would have been of the order of $80,000 to $85,000. Judges do appreciate that estimates of value can vary considerably, and that the amount paid by a retailer is likely to be a lot less than the street value. It is not the value but the quantity which is critical under the Drug Misuse and Trafficking Act 1985. This point would not justify the Court intervening to reduce the sentence. Parity Principles 17 The applicant submitted that his sentences appear to have involved a breach of the parity principles. By this the applicant did not mean that he had been unfairly sentenced when regard was had to the sentences imposed on people who were or may have been co-offenders. Instead, he compared the sentences which he received with those imposed on others as shown by the Judicial Commission Statistics relied upon by the Crown. The statistics covered the period January 1990 to July 1999. They showed that for one count of supplying a commercial quantity of methylamphetamine with Form 1 matters and a plea of guilty, 46 per cent of 24 defendants received a full term sentence of 48 months; 8 per cent 36 months; and 8 per cent five years. With minimum terms, 29 per cent received 18 months; 13 per cent received 24 months; 8 per cent received 30 months; 17 per cent received 36 months; and 42 per cent received 36 months or more. Both the head sentence and the minimum term were well within the permissible range and no valid complaint can be made based on the Judicial Commission Statistics. Maximum Security Imprisonment 18 The applicant submitted that his counsel was incompetent by failing to recognise and submit that the appellant would have to serve his entire sentence in a maximum security prison because of the escape police custody offence. Further, it was also not known at the time of the hearing that the applicant's father would always be unable to visit him due to his ill health. The certificate of Dr D Lifson of 30 April 1999 confirms that the applicant's father had a stroke, is relatively house bound, cannot travel long distances, and is unable to visit the applicant at Lithgow Prison. I do not think that the hardship relating to the father being unable to visit is a matter that can weigh with this Court in sentences of the magnitude of those which were imposed. 19 The judge did not refer to the applicant having to serve all of his sentences in maximum security. When this matter came on for hearing this Court enquired of the applicant whether he had so far served the whole of his sentence in maximum security and he replied in the affirmative. That answer was not disputed by the Crown. Indeed, their materials indicated that that was the position. The applicant has told us that he has applied on three occasions to vary his classification without a successful result. He said that the position is that he now has approximately 18 months to serve and there would be a reluctance to reclassify him when he would be unable to work through each of the usual periods of lower classification. 20 The escape in the present case was an instinctive reaction by the applicant when first stopped by the police. He ran about 100 metres before he was stopped. Admittedly he did struggle. This is not the sort of escape that is likely to be repeated. Secondly, it must be borne in mind that the applicant had not previously been in custody. It does seem to me that for the applicant to have to spend the whole of his period in maximum security because of an instinctive on the spot reaction when first confronted by the police is unduly harsh. 21 The Crown submitted that even if the applicant had to serve the whole of his sentence in maximum security, the sentences were still not manifestly excessive, having regard to the offences charged, the nature of the offences and the number of offences taken into account. In all the circumstances some allowance should be made for the applicant having to serve the whole of his sentence in maximum security. If this factor had been known at sentencing an appropriate sentence would have been a little less than the one that was in fact imposed in respect of the offence of 24 April 1998. 22 In my opinion leave to appeal should be granted. 23 The appeal against the sentence in respect of the offence of 23 November 1998, (supply prohibited drug - LSD) taking into account the matters on the Form 1 should be dismissed. In respect of the appeal as to the offence of 24 April 1998 (supply commercial quantity of prohibited drug - methylamphetamine) taking into account the offences on Form 1, the appeal should be allowed. I would not disturb the length of the total sentences but I would, because of the harsher conditions of imprisonment, reduce the minimum term from three years to two years six months. On resentencing that will mean that there would be a sentence of five years with a non-parole period of two years six months. Both that sentence and the non-parole period of two years six months are to commence on 19 January 2000, with the non-parole period to expire on 18 July 2002. 24 SIMPSON J: I agree. The orders of the Court will be as proposed by Smart AJ. 25 SIMPSON J: Mr Davis, do you understand what has happened, the minimum term has been reduced by six months? 26 PRISONER: Yes. ********