New South Wales Court of Criminal Appeal CITATION : R v Hofer [2001] NSWCCA 544 FILE NUMBER(S) : CCA 60421/2001 HEARING DATE(S) : 14 December 2001 JUDGMENT DATE : 14 December 2001 PARTIES : Regina Rudolph Hofer JUDGMENT OF : Wood CJ at CL at 1, 39; Sperling J at 38 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/31/0084 LOWER COURT JUDICIAL Coolahan DCJ OFFICER : COUNSEL : G E Smith PJD Hamill SOLICITORS : S E O'Connor D J Humphreys CATCHWORDS : CRIMINAL LAW - appeal against severity of sentence - supply of methylamphetamine - possession of cannabis - earlier offence inappropriately taken into account during sentence - double jeopardy principle - error on the face of the record - Use of Judicial Commission Statistics for comparison with like offences - existing sentence excessive to a small degree only. LEGISLATION CITED : Criminal Appeal Act 1912, s 6(3) Drug Misuse and Trafficking Act 1985, s 25A Regina v Bacon (2000) NSWCCA 549 Regina v Barton (2001) NSWCCA 63 Regina v Bloomfield NSWCCA 15 July 1998) Regina v Carter (2000) NSWCCA 490 Regina v Daridis NSWCCA 18 December 1986 Regina v De Simoni (1981) 147 CLR 383 R v Groat (2001) NSWCCA 452 Regina v Hayes (2001) NSWCCA 410 Regina v Hoon and Pouoa (2000) NSWCCA 137 CASES CITED: Regina v Huang and Lin (2001) NSWCCA 76 Regina v Khaled (2001) NSWCCA 169 Regina v McMahon NSWCCA 4 April 1986 Regina v Nuth (2001) NSWCCA 318 R v Ryan (2001) 75 ALJR 815 at para 67 Regina v Smiroldo (2000) NSWCCA 120 Regina v Tannous NSWCCA 18 June 1997 Regina v Thompson (2000) NSWCCA 362 Regina v Tipler (2000) NSWCCA 382 Regina v Tran (1990) NSWCCA 109 DECISION : Leave to appeal granted. Appeal allowed. Sentence below quashed. New sentence of 4 years imprisonment, commencing 9 November 2000 and expiring on 8 November 2004. - 1 -IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL 60421/01 WOOD CJ at CL SPERLING J Friday 14 December 2001 Regina v Rudolf Hofer Judgment 1 WOOD CJ at CL: The applicant seeks leave to appeal against the sentence imposed upon him by Coolahan DCJ at the Newcastle District Court on 6 June 2001. The sentence which was imposed, for an offence of supplying methylamphetamine on an ongoing basis, contrary to s 25A of the Drug Misuse and Trafficking Act 1985, taking into account, on a Form 1, a charge of possession of sixty-two grams of cannabis, was one of imprisonment for five years, with a non-parole period of three years. 2 The applicant submitted that his Honour erred in two respects. First, it was put that he misdirected himself as a matter of law when observing that the applicant: "does not have a lengthy criminal history but of significance is a conviction in 1994 for supply of a prohibited drug for which he was sentenced to three years' imprisonment to be served by way of periodic detention. In my view not only does his record not assist him because of that matter, but the commission of this offence is made more serious or at least the matter is aggravated by the prior offence of a similar nature." 3 Whilst it was accepted that his prior record had a relevance for several aspects of sentencing, it was not, so the submission went, a matter which aggravated or made more serious the offence for which the applicant stood for sentence. 4 Secondly, it was submitted that irrespective of this consideration, the sentence fell outside a legitimate range of sentencing discretion and was manifestly excessive. To each of these grounds I will return after noting the relevant facts. THE FACTS 5 The offences involved the supply of methylamphetamine to an undercover police officer on five occasions between 16 October 2000 and 25 October 2000. On three of those occasions the quantity supplied was one-half of a gram. For each of those deals the applicant received $50. The fourth and fifth deals each involved a quantity of seven grams for which the price on each occasion was $300. The sales were made at The Mad Mile BP Service Station, Cessnock, of which the applicant was the proprietor. 6 The applicant was arrested at his home behind the service station on 9 November 2000. A search of the premises failed to locate any methylamphetamine but it did turn up the cannabis previously mentioned, as well as some of the indicia of the drug trade comprising plastic bags and scales. 7 Although the applicant declined to participate in an interview with police, he disclosed during the sentencing proceedings that: (a) he had been selling methylamphetamine from the service station for some time, although he had less than 20 customers; (b) he had engaged in this activity because the business was not making much money to the point of being unviable; (c) he had long-standing problems with alcohol, had used cannabis over the years and had begun to use methylamphetamine over the preceding 12 months because of the long hours that he was putting into the business; (d) the service station had a reputation as an outlet for methylamphetamine before he had taken over the business; (e) he had in fact ceased the supply of methylamphetamine between the date of the last sale to an undercover officer and the time of the police search because his de facto partner had insisted that he do so at penalty otherwise of ending their relationship; (f) he had voluntarily given up the use of drugs himself from the time of his arrest and he did not intend to re-offend; and (g) he had lost the service station and associated business because of the offence and he had consequently fallen into debt. 8 His Honour made it clear that by and large he accepted the applicant's evidence, including the fact that he had voluntarily given up the supply of drugs from the service station. He also accepted that the plea had been entered at the first available opportunity and that the applicant was entitled accordingly to a discount for the utilitarian benefit of the plea although that, his Honour said, should be towards the lower end of the scale. Special circumstances were found referable to the fact that the applicant was aged forty-seven years and that this would be his first experience of full-time custody. 9 I see no reason to depart from any of those findings. Each appears to be well and truly open upon the evidence. In particular, I do not think it appropriate, as the Crown suggested, to place some qualification upon the evidence from the applicant that he intended to give up the supply of drugs. This Court is not a court of factual review, and I see no reason to find fault in the fact finding process in that regard. 10 In the light of the summary, I return to the grounds of appeal. CIRCUMSTANCES OF AGGRAVATION 11 As Grove J, with whom I agreed, made clear in R v Groat (2001) NSWCCA 452, the fact of a prior conviction "can never, unless specifically legislated for, be used in a sentencing process as an aggravated feature." 12 His Honour additionally observed: "An aggravated feature relates to something which makes the instant conduct more serious." 13 The objective criminality involved in any given offence needs to be weighed in the light of the facts which gave rise to it. Reference to earlier offences for which an offender has already been punished as a matter of aggravation potentially offends against the double jeopardy principle. 14 Similarly, reference to other uncharged offences, as a circumstance of aggravation, risks offending against the principles established in Regina v De Simoni (1981) 147 CLR 383. As Gummow J additionally observed in R v Ryan (2001) 75 ALJR 815 at para 67, bad prior character cannot operate in aggravation of sentence. 15 These considerations do, however, have a relevance for sentencing in relation to questions whether the offence before the Court was one that was or was not out of character, whether the applicant was or was not displaying a continued attitude of disobedience to the law and whether he had or did not have reasonable prospects of rehabilitation. 16 While it may be that his Honour had these considerations in mind and expressed himself inappropriately, it seems to me that error has been shown on the face of the record so that leave to appeal should be granted. SENTENCE MANIFESTLY EXCESSIVE 17 It is next necessary to consider, irrespective of any error disclosed so far, whether the case was one where some sentence other than that imposed was warranted in law and should have been passed (s 6(3) Criminal Appeal Act 1912). 18 The offence was serious having regard to the maximum available sentence of twenty years imprisonment and to the policy reasons which gave rise to its creation. 19 The present instance was one of the genus expressed in R v Smiroldo (2000) NSWCCA 120, involving small deals equivalent to street deals. The gravity of the wrongdoing, in such a case, arises from the circumstance that the applicant, here a mature person, was deliberately involved in the business of ongoing supply of methylamphetamine from premises which he had known to be a drug outlet. 20 The mere quantity involved in each deal, in those circumstances, is not necessarily a governing consideration for determining the degree of objective criminality involved (see Smiraldo paras 15-16). 21 Moreover, the present applicant was obviously not particularly discriminatory or troubled about adding to his customer base, so far as he was prepared to make sales to the undercover officer who had not dealt with him previously. 22 Reference was made to the Judicial Commission's statistics as well as to the decisions of this Court in Regina v Smiroldo; R v Hoon and Pouoa (2000) NSWCCA 137; Regina v Tipler (2000) NSWCCA 382; Regina v Thompson (2000) NSWCCA 362; Regina v Carter (2000) NSWCCA 490; Regina v Bacon (2000) NSWCCA 549; Regina v Huang and Lin (2001) NSWCCA 76; Regina v Khaled (2001) NSWCCA 169; Regina v Nuth (2001) NSWCCA 318 and Regina v Groat by way of support for the proposition that the sentence fell outside the proper range. 23 Reference to the Judicial Commission statistics is of limited utility, having regard to the fact that the relevant population of cases involved, in this instance, is limited and also to the inevitable variations which arise in objective and subjective circumstances which can be glossed over in a bare statistical analysis (see Regina v Tannous NSWCCA 18 June 1997 and Regina v Bloomfield NSWCCA 15 July 1998). 24 Moreover, there is the consideration noted by Grove J in Regina v Hayes (2001) NSWCCA 410 that: "there is a misconception that the upper limit of the range of sentence is that of the statistical publications of sentence information by the Judicial Commission. The upper limit of sentence is in fact the maximum set by Parliament. If the upper limit of the statistical range is treated as reserved for the worst case or the worst offender, then persistent selection of sentences for others within that range will inevitably reduce the upper figure. This is not a matter of jurisprudence but a matter of arithmetic." 25 With that observation, I express my wholehearted agreement. 26 Reference to specific cases can provide some guidance, subject again to variations in the relevant objective and subjective circumstances involved, and also to the fact that some of the cases drawn to our attention involved the substance heroin rather than methylamphetamine. 27 In this regard our attention was specifically drawn to the case of Huang and Lin which appears to be the only case where a higher sentence was imposed. It was a more serious case involving substantial quantities of heroin. We were also invited to pay particular regard to Bacon, where there was a similarity to the present case in that the offender there had also voluntarily ceased the business of supply. 28 Ultimately, however, the question becomes one of weighing the objective criminality of the offender, which I regard in this case to be substantial, as well as his subjective circumstances, in the context of the legislative policy evident for the offence charged. 29 The reason why the applicant had descended into criminality provides no excuse whatsoever. As his Honour pointed out, financial problems do not justify resorting to dealing in drugs. 30 Moreover, he had a prior record, the existence of which disentitled him to much in the way of leniency in that it involved offences of assault, possession of prohibited drug and resist arrest for which he had been fined; an offence of supply prohibited drug, for which he had received eighteen months periodic detention; some serious assault offences and an offence of malicious damage (property), for which he had received a good behaviour bond for twelve months, and which was current at the time of the present offence. 31 That latter circumstance was a matter which weighed unfavourably for the applicant for the reasons noted in Regina v Daridis NSWCCA 18 December 1986, Regina v McMahon NSWCCA 4 April 1996 and Regina v Tran (1990) NSWCCA 109. 32 Additionally, as I have observed, another drug offence was taken into account on a Form I, that being a matter which needed also to be reflected in the sentence for the reasons outlined in Regina v Barton (2001) NSWCCA 63. 33 In these circumstances, I am satisfied that a sentence involving full-time imprisonment was called for and that it should have been a substantial sentence which reflected the elements of retribution and personal deterrence for an offender who had a prior conviction for the supply of drugs, and which also reflected the important element of general deterrence. 34 In addition, there were the circumstances that I have mentioned, that he was subject to a bond at the time of the offence and that a second drug offence had to be taken into account. On the other hand, there is the fact of the early plea and the fact that he had voluntarily ceased the business of supply, as well as the fact that he had demonstrated contrition, both positively and through his early plea. 35 In all of the circumstances outlined, I am of the view that the sentence was excessive to a degree sufficient to justify intervention, but only to a limited degree. 36 I would grant leave to appeal, quash the sentence below and in lieu thereof sentence the applicant to imprisonment for four years, to commence on 9 November 2000 and to expire on 8 November 2004. 37 For the reasons identified by his Honour, I am similarly persuaded that special circumstances exist and I will impose a non-parole period of two years and four months, similarly to date from 9 November 2000 and to expire on 8 March 2003. 38 SPERLING J: I agree. 39 WOOD CJ at CL: The order of the Court will therefore be as I proposed. oOo 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.