New South Wales Court of Criminal Appeal CITATION : R v Singh [2001] NSWCCA 424 FILE NUMBER(S) : CCA 60331/01 HEARING DATE(S) : 12/10/01 JUDGMENT DATE : 12 October 2001 PARTIES : Regina v Gurinder Singh JUDGMENT OF : Grove J at 19; Howie J at 1 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/11/0200 LOWER COURT JUDICIAL Woods DCJ OFFICER : COUNSEL : G.E. Smith - Crown G. Wendler - Applicant SOLICITORS : S.E. O'Connor - Crown Mark Klees & Associates - Applicant CATCHWORDS : Parity - no parity with non-co-offenders Justice Act 1902 - s 51A LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985 - s 29 CASES CITED: The Queen v De Simoni (1981) 147 CLR 383 DECISION : The application for leave to appeal is granted but the appeal is dismissed. IN THE COURT OF CRIMINAL APPEAL 60331/01 GROVE J HOWIE J 12 OCTOBER 2001 R V GURINDER SINGH Judgment 1 HOWIE J: The applicant pleaded guilty before a magistrate to four counts of supplying a prohibited drug and was committed for sentence to the District Court under the provisions of s 51A of the Justices Act. He adhered to his pleas before Judge Woods and also requested that his Honour take into account two matters on a Form 1 under the provisions of the Crimes (Sentencing Procedure) Act. The four offences before the District Court comprised one count alleging that between 18 January and 28 January 2000 he supplied not less than a commercial quantity of methylamphetamine and three counts each alleging that on 28 January he supplied a prohibited drug, each count relating to a different drug, being heroin (count 2), methylamphetamine (count 3) and cocaine (count 4). The two matters on the Form 1 consisted of a charge of supplying heroin on 20 January 2000 and a count of possession of cannabis on 28 January. 2 The maximum penalty prescribed for an offence of supplying not less than a commercial quantity of a prohibited drug, not being cannabis, is 20 years imprisonment with a fine of $320,000. The maximum penalty for each of the offences of supply is 15 years imprisonment with a fine of $220,000. 3 Judge Woods sentenced the applicant on the first count to imprisonment for 5 years to date from 28 January 2000 and specified a non-parole period of 3 years to expire on 27 January 2003. In respect of the second count his Honour imposed a sentence of imprisonment for 4 years to date from 28 January 2001 and fixed a non-parole period of 2½ years to expire on 27 July 2003. The sentences of a fixed term of 2 years imprisonment for each of the other two offences of supply were totally subsumed in the sentence imposed for the first two counts. The applicant, therefore, is eligible to be considered for release to parole on 27 July 2003. This is an effective non-parole period of 3½ years as against a head sentence of 5 years. 4 There are two grounds of appeal contained in the written submissions on behalf of the applicant although only one was pressed in oral submissions to this Court. Firstly, it is said that there is an unjustified disparity in the overall sentence imposed upon the applicant with those imposed upon others who might be considered to be his co-offenders; secondly, that having found special circumstances, his Honour failed to adequately reduce the non-parole period to reflect that finding. 5 It is necessary to consider briefly the facts of the matters before his Honour before considering whether any disparity arises justifying the intervention of this Court. The charges arose from a police investigation of the supply of prohibited drugs through premises known as the Underground Café in Kings Cross from November 1999 to January 2000. The premises were owned by persons named Vadja and Williamson. Drugs were stored in the office of the premises and distributed by staff members, one of whom was a doorman named McConochie. He placed orders on behalf of the café and himself from various suppliers one of whom was a man I shall refer to as G. During the police operation, evidence was obtained against the applicant by means of intercepted telephone calls and surveillance using an undercover operative. 6 The charge in relation to the supply of not less than a commercial quantity of methylamphetamine arose from negotiations between the undercover officer and the applicant about the supply of drugs to the operative by the applicant. In a recorded conversation between them on 18 January, the applicant admitted that he supplied drugs in what he described as "big amounts" to the café at cost price. The applicant told the operative that if he ever wanted "some pills" he should come and see him and he would sell a thousand or two thousand for the same price as he sold to the café. On 27 January the operative approached the applicant about the supply to him of some ecstasy tablets. The applicant handed 149 tablets to the operative by way of a sample and they discussed the supply of 1500 tablets to take place the next day. The tablets handed to the applicant were not in fact ecstasy but methylamphetamine. 7 On 28 January the applicant arranged to meet the operative to supply him with the 1500 tablets. Telephone calls were then made by the applicant in order to obtain the drugs. Later that day, after the applicant was seen to meet an unidentified male, he met with the operative and handed him 351 tablets, later found to contain 106.5 grams of methylamphetamine, and 1,175 tablets, found to contain 308.9 grams of that drug. The applicant received $30,000 from the operative in exchange for the drugs. This supply gave rise to the first charge. 8 The applicant was arrested shortly after this offence and taken to his home where police conducted a search of the premises. They found cocaine weighing 19.8 grams in two resealable plastic bags in a kitchen cupboard. Underneath a lounge, the police located a package containing 108.2 grams of 85 percent pure heroin. Inside a pair of running shoes in a bedroom cupboard was found a foil containing 42 tablets being 12.6 grams of methylamphetamine. The finding of these packages of drugs gave rise to the three charges of supplying those drugs, the Crown relying upon the deeming provision in s 29 of the Drug Misuse and Trafficking Act. Although those charges are referred to as deemed supply in the remarks of Judge Woods, they were themselves serious charges, particularly in relation to the high-grade heroin. 9 It was not argued either in written submissions or orally that the total sentence of 5 years is itself excessive and no realistic argument to that effect could have been made. Quite to the contrary, it seems to me, to be a sentence very much at the lowest end of what would be appropriate to meet the objective criminality and the need for general deterrence, notwithstanding the pleas of guilty which were entered by the applicant at an early stage in the proceedings against him. Judge Woods accepted that the applicant supplied the large amount of methylamphetamine to the operative as an intermediary acting on behalf of others. But when that fact is seen in the context of the earlier conversation with the operative and the giving of the sample, it was still a serious offence of supply for which the applicant had to receive a severe sentence. The applicant was fortunate in my view that the sentences for the other supply offences were made concurrent and only extended the non-parole period by 6 months. The offence of supply in relation to the heroin alone was an offence that, given the amount of the drug and its purity, would have justified a lengthy prison term even had it stood alone. 10 It follows from what I have just said that, in my view, a non-parole period of 3½ years was also a lenient sentence. This is notwithstanding that there was evidence before the sentencing judge that the applicant had himself become a drug addict through emotional and depressive problems. But he was a 34-year-old man who was clearly engaged in a commercial enterprise of drug trafficking even if it were accepted as being to finance his own addiction. He had a criminal record mainly for violence or breaching apprehended violence orders but significantly he had served a short gaol sentence before his arrest for these offences. He was involved in various courses while on remand awaiting sentence in order to address his anger and his abuse of drugs. But as His Honour noted, rehabilitation of the applicant was only one of the considerations in determining the sentence. I do not believe that any lesser non-parole period than that imposed by his Honour could possibly be justified regardless of what weight is given to the fairly unremarkable subjective considerations. 11 I turn now to the question of parity. In my opinion the argument is totally misconceived. The written submissions for the applicant contain the following statements: "The applicant is one of a group of offenders most of whom have been dealt with by different judges of the District Court in respect of the sale of amphetamines ("ecstasy" and cocaine) from an establishment in Bayswater Road Kings Cross called "The Underground Café". "The applicant was sentenced on the basis of his role in an illegal drug enterprise operating from a nightclub at Kings Cross described as the "Underground Café". Neither of those statements is correct. 12 The applicant was never charged with any offence in relation to the supply of drugs to, or by, the persons at the café. The applicant was not a co-offender of any person other than the unidentified person or persons who supplied him with the drugs that he on-supplied to the operative. The supply to the undercover officer was only in the most indirect way connected to the criminal conduct emanating from the café and for which other persons were sentenced. As Judge Woods noted, the applicant was not the target of the police operation and, in his Honour's words, he "simply became roped in". Regardless of what sentences the persons connected with the drug dealing from the café received, the applicant could not have a justifiable sense of grievance about them. The sentences of those persons are no more relevant than would be the sentences imposed upon other associates of the applicant for unrelated drug offences. Although Judge Woods said that he would bear in mind the sentence imposed upon one of the barmen at the café for supplying ecstasy, I cannot understand why he did so. 13 Further, there was no evidence that the drugs found in the applicant's premises had anything to do with the Underground Café. In particular, it is highly significant that no other person, who was charged with offences arising from the police operation, was charged with an offence relating to heroin. There was no suggestion in any of the facts that heroin was supplied at the café. 14 A particular complaint is made that, when Judge Dodd sentenced Williamson, one of the owners of the café, his Honour described the applicant as a "wholesaler", whereas Judge Woods had described him as an "intermediary". Four observations can be made about that complaint. Firstly, Judge Woods was only referring to the particular supply to the undercover operative. The description of the applicant as a wholesaler might well have been appropriate to how the applicant himself described his position as a supplier to the café when speaking to the operative and also in relation to the different types of drugs found in his premises. Secondly, Judge Dodd was only concerned with sentencing Williamson on the material before him and categorising that offender's criminality. What he may have said about the applicant was, and is, completely irrelevant to how the applicant should have been sentenced in respect of the offences charged against him and on the material before Judge Woods. Thirdly, the applicant was not even mentioned in the agreed facts presented before Judge Dodd and that was clearly because the offences with which the applicant was charged were irrelevant to an assessment of Williamson's culpability. Finally, Judge Dodd seemed to be acting, erroneously, on the basis that the major charge faced by the applicant was in respect of supplying the café. His Honour did not have the remarks of Judge Woods before him to disabuse him of that fact. 15 I note that it is a matter of grave concern that the Crown allowed Judge Dodd to sentence Williamson on a misapprehension about the offences charged against the applicant and the basis upon which the applicant was sentenced by Judge Woods. His Honour was led into the error of believing that the sentences imposed upon the applicant were relevant in some way to the assessment of the sentences to be imposed upon Williamson and to some degree that may have resulted in an inappropriate reduction in the sentence imposed upon Williamson. 16 Just as it is irrelevant what Judge Dodd may have said about the applicant's role in supplying the café, so too is the sentence he imposed on Williamson. That offender was sentenced for a conspiracy with Vajda to supply ecstasy to the patrons of the café. He was also charged in relation to a substantial amount of drug found in Vajda's premises. There were other matters taken into account by Judge Dodd when sentencing Williamson, none of which had anything to do with the applicant but arose from Williamson's own drug trafficking. It was unnecessary for Judge Dodd to have had any consideration of the sentence imposed upon the applicant at all. 17 The submissions on behalf of the applicant made a detailed examination of the sentence imposed by Acting Judge Andrew on G, who was charged with being a supplier of drugs to the café. He received a discount of his sentence by reason of having given assistance to the police. An argument is mounted on behalf of the applicant that having regard to the respective roles played by the applicant and G in supplying drugs to the café, the applicant should have received a lesser sentence than G because his criminality was less. But, once again, the facts relied upon by Acting Judge Andrew did not mention the applicant and the offences had nothing to do with him. As I have been at pains to emphasise, the applicant was not charged with any offence in relation to the admission he made to the undercover operative that he was a supplier of drugs to the café. Had he been sentenced in respect of that matter it would have been an error by Judge Woods because he was not charged with such an offence and the sentences would have breached the principle in The Queen v De Simoni (1981) 147 CLR 383. Rather than having a justifiable sense of grievance, the applicant should consider himself very fortunate indeed. 18 The application for leave to appeal should be granted but the appeal dismissed. 19 GROVE J: I agree, and the orders of the court will be as proposed by Howie 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. 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