New South Wales Court of Criminal Appeal CITATION : Regina v Boardman [2001] NSWCCA 431 FILE NUMBER(S) : CCA 60089/01 HEARING DATE(S) : Friday 19 October 2001 JUDGMENT DATE : 19 October 2001 PARTIES : Regina v Scott Christopher Boardman JUDGMENT OF : Grove J at 1; Howie J at 23 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/01/0147 LOWER COURT JUDICIAL Gibson DCJ OFFICER : COUNSEL : D.M. Woodburne (Crown) H. Dhanji (Applicant) SOLICITORS : S.E. O'Connor (Crown) D.J. Humphreys (Applicant) CATCHWORDS : CRIMINAL LAW AND PROCEDURE - SENTENCE - ONGOING SUPPLY OF DRUGS - ADMISSIBILITY OF EVIDENCE OF INTENTION TO EXPAND ACTIVITY - RELEVANT TO REBUT POSSIBLE CLAIM OF ISOLATED ACTIONS OR INTENTION TO CEASE - NOT AVAILABLE TO ASSESS CRIMINALITY OF CRIME CHARGED - PARITY OF NON PAROLE PERIOD GIVEN TO CO-OFFENDER - FINDING OF ENGAGEMENT IN COMMERCIAL ACTIVITY CASES CITED: Postiglione v The Queen 1997 189 CLR 295 DECISION : APPEAL ALLOWED; RESENTENCED IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL 60089/01 GROVE J HOWIE J Friday 19 October 2001 REGINA v SCOTT CHRISTOPHER BOARDMAN JUDGMENT 1 GROVE J: This is an application for leave to appeal against the severity of sentence imposed by his Honour Judge Gibson QC upon the applicant at Bathurst District Court. 2 The applicant appeared before his Honour and pleaded guilty to an offence of supplying a prohibited drug on an ongoing basis, contrary to s25A of the Drug Misuse and Trafficking Act 1985. He appeared for sentence with his de facto wife, charged with an identical offence. His Honour sentenced the applicant to imprisonment for three years and nine months with a non-parole period of two years and ten months. 3 As can be derived from that sentence, his Honour found that there were no special circumstances justifying departure from the proportion mentioned in the statute in relation to the non parole period. 4 The applicant's de facto wife was sentenced to three years' imprisonment and a non parole period of twelve months was specified. In her case his Honour found that there were special circumstances. He mentioned that there were two dependent children who would be, for a time, separated from their parents. He also found that the applicant's wife had prospects of rehabilitation. 5 The contrary finding in the case of the applicant was made available not only from the applicant's long record and long association with drugs, to which he was addicted, but also from the information before his Honour by way of pre-sentence reporting which indicated little hope that the applicant, now a man of forty-one years, might conscientiously devote himself towards rehabilitation. 6 The facts of the offences are not exceedingly complicated. The applicant and his wife each sold drugs to undercover police officers. It was mentioned that, in the case of the wife, there were four sales whereas in the case of the applicant there were three. The Statute creates a specific offence where at least three supplies are made within a span of thirty days. 7 In support of the application, counsel has canvassed in broad terms three matters. As I am of the view that one of his arguments had been made out, it will suffice, for present purposes, to refer only briefly to the others. 8 It was contended that the sentencing judge erred in finding that the applicant was making a commercial profit from the supply of drugs. There was evidence before his Honour that on police search the applicant's wife was found to have $720 in cash in her purse. She had claimed that the source of this money was not tainted by drug dealing. It was obviously a matter that was the subject of challenge and his Honour found against the claim of the applicant's wife. 9 It is clear that the applicant and his wife were engaged in the enterprise under consideration, in a sense, in a joint fashion. There was no evidence before his Honour of any ledger or other book keeping whereby moneys received from their activities were kept in discriminate amounts. It seems to me that his Honour was entirely justified in coming to the conclusion which he did that both the applicant and his wife were, as well as obtaining money as a result of supplying in order to feed their own respective habits, that they were making some commercial profit out of it. 10 No doubt these moneys also went to the usual destinations of payment for the support of the family and the acquisition of needs. Nevertheless, that is a commercial activity distinguishable from activity which is purely directed towards feeding a drug habit. 11 The second matter to which I will make but brief reference is a complaint concerning the application of what are contended to be principles of parity. Given the applicant's record and its comparison with his wife, no complaint could have been made about their respective head sentences of three years and nine months and three years. An argument has sought to be developed that, by reason of principles of parity, the learned judge ought to have specified a non parole period in respect of the applicant which was co-ordinate with the specification in relation to his wife. Accepting such a submission would lead to the curious result that in a case where no special circumstances were found, his Honour would, nevertheless, find special circumstances for the purpose of achieving the result which counsel has contended should follow. 12 In my view, no authority, and in particular Postiglione v The Queen 1997 189 CLR 295 either requires or authorises such an approach. I see no error in his Honour's conclusion that there were no special circumstances in the relevant sense demonstrated in relation to the applicant and I would add that, were I deciding the matter for myself, I would reach the same conclusion. 13 I return, however, to the argument advanced by the applicant which, in my view, ought to be sustained. In the evidence there was admitted the transcript of the product of a listening device which included conversation between the applicant and an undercover police officer in which the applicant clearly asserted that once he had possession of some electronic scales it was his intention, in effect, to expand the scope of his criminal operations. 14 This was a matter in dispute before his Honour and he came to the conclusion that a Crown contention that it was the intention of both the applicant and his wife to embark upon expanding their business was made out beyond reasonable doubt. I consider that the evidence was admissible. It was available to rebut any suggestion by the applicant or, for that matter, by his wife that the particular incidents which constituted the charge were entirely isolated. 15 It would also be available to rebut any suggestion that they intended to close down or desist from any further criminal activity. What it was not available for was to take into account, in assessing the criminality of the charge actually brought against the applicant. If this was done it would suggest inevitably, in my view, that his Honour is likely to have imposed a greater sentence than he otherwise would have done. 16 There are two passages from his Honour's remarks on sentence which point to his Honour having done so. When first referring to this matter he said: "The second point that was in dispute was whether he intended in the future to, or they had intended in the future to embark upon selling and supplying larger amounts, and I am not talking about pounds. I am talking about half weights and weights, as they refer to them. She had told the police officer that that was their intention and when he was speaking to the person Boardman, and it was taken on tape, Boardman agreed with that as to what they intended to do in the future when he got a fresh set of scales. I am satisfied beyond reasonable doubt that that was their intention, to embark upon expanding their business to an extent." 17 The second reference during his Honour's remarks on sentence occurred as his Honour was adverting to matters which would be taken into account in assessing the criminality of the applicant's activities. He said: "Now, I am not suggesting that the business that was being run by these two people was enormous. It was a smallish scale supply. They were engaged actively in supplying these things for money and it is a factor to be taken into consideration that the supplies were small amounts but it was also a factor that they were looking at expanding in the future and it was a matter where, as I say, they were prepared to supply this man, who was an undercover police officer, with very little introduction other than him mentioning the name of someone else that, apparently, supplies around the locality." 18 As I have indicated, I am persuaded that the applicant has succeeded in demonstrating the error contended on his behalf by counsel. It is appropriate then for this Court to consider the question of re-sentence. On that matter, the Crown has submitted that no other sentence would be appropriate and that therefore, in accordance with the terms of the Statute, the application and the appeal should, in any event, be dismissed. 19 For my part, I am unable to sustain that submission. It seems to me, as I have already indicated, that it ought to be concluded that, in making the reference which his Honour did to expansion of the activities of the applicant and his wife, there is a clear suggestion that he would have taken that into account in assessing the quantum of sentence to be imposed. 20 The applicant is, however, without a great deal of material to support any lenience. He has a considerable record and his prospects of rehabilitation would seem to be poor. I have already mentioned his long term addiction to drugs. 21 I, like his Honour, would not find special circumstances but I would rather assess the head sentence to impose a sentence equivalent to that received by the applicant's wife. 22 I, therefore, propose the following orders: 1. That the application for leave to appeal be granted. 2. That the appeal be allowed and the sentence below quashed. 3. In lieu thereof, the applicant be sentenced to imprisonment for three years, to commence on 12 July 2000 and to expire on 11 July 2003. I would specify a non parole period of two years and three months also commencing on 12 July 2000 and to expire on 11 October 2002. 4. Given the length of sentence, the Court should order that the applicant be released to parole on 11 October 2002. 23 HOWIE J: I agree. I simply wish to add a few comments of my own in respect of the first ground of appeal: that is, that his Honour erred in finding that the applicant was involved in a commercial enterprise. 24 It seems to me, with respect, that the hearing before his Honour and his Honour's remarks on sentence proceeded on a misconception and that is that before his Honour could find that the applicant was supplying for a commercial purpose, that his Honour had to make a finding that the $750 found in the applicant's wife's purse was as a result of the drug dealing and that the applicant had, in effect, possession of that money as well as his wife. 25 In my view, a person in the position of the applicant who is supplying drugs on an ongoing basis as a business and is charged with an offence under s 25A would be hard put indeed to satisfy a Court that the enterprise was not of a commercial nature. 26 I put it in that way because in my view the onus is upon the offender to prove, on the balance of probabilities, that the supply of drugs was only to permit him to purchase drugs for his own use. 27 I would have thought that the overwhelming inference from the evidence before his Honour of the dealings by the applicant and his wife was that it was done, not simply to allow the applicant and his wife to purchase drugs for their use, but also generally to obtain money which was used by the family. That was the finding his Honour made. In my view, it would be almost absurd to suggest that persons who are in business, such as the applicant and his wife, kept accounting records and were so meticulous in relation to their supplying of drugs that they supplied merely only to provide enough money for them to be able to purchase drugs to use for themselves and no more. Clearly there was no evidence before his Honour that this is what the applicant and his wife did and it seems to me that a simple evaluation of the objective evidence would indicate that was not what occurred. 28 It seems to me that if a person in the position of the applicant wishes to be sentenced on the basis that he was supplying only for the purposes of obtaining his own drugs for his own use and, therefore, to achieve whatever mitigation on sentence might flow from that fact, then he had the onus of proving, on the balance of probabilities, that that fact should be found by the sentencing judge. I am not suggesting for one moment that his Honour would have been entitled to sentence the applicant on the basis that he was in the business of supply as a matter of greed in order to make a living from it. If he were to find that as a finding of fact it might well be it would have to be found beyond reasonable doubt. That would then be truly a matter of aggravation but in my view the simple fact that the applicant was supplying drugs for a commercial purpose, albeit also to be able to finance his own drug addiction, was not a matter of aggravation at all, it was a matter which flowed simply from the charge with which the applicant was charged and the objective facts to prove that charge. 29 GROVE J: The orders of the Court will be as I have proposed. ********** 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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