New South Wales Court of Criminal Appeal CITATION : R v Mason [2000] NSWCCA 82 FILE NUMBER(S) : CCA 60153/99 HEARING DATE(S) : 22/03/00 JUDGMENT DATE : 22 March 2000 PARTIES : Regina v Stuart William Mason JUDGMENT OF : Abadee J at 1; James J at 10 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/31/0090 LOWER COURT JUDICIAL Acting Judge Nader OFFICER : COUNSEL : Mr M Grogan - Crown Ms R. Burgess - Appellant SOLICITORS : S. E. O'Connor - Crown T. A. Murphy - Appellant LEGISLATION CITED : Drug Misuse & Trafficking Act 1985 Evidence Act R v Chanh Thanh Ma (CCA 31 March 1995, unreported) CASES CITED: The Queen v Grant (Vic CCA 27 June 1994, unreported) Stol v The Queen (1989) 44 A Crim R 137 (WA, CCA) R v Selim (CCA 19 May 1998 unreported) DECISION : Leave to appeal the sentence be granted. Appeal be allowed. The sentence should be quashed and the following sentence substituted: The applicant be sentenced to imprisonment for 18 months consisting of a minimum term of 12 months to commence 10 June 1999 expiring on 9 June 2000 and to an additional term of six months to commence on 10 June 2000. The applicant is eligible to be released on parole on 9 June 2000. IN THE COURT OF CRIMINAL APPEAL 60153/99 ABADEE J JAMES J WEDNESDAY 22 March 2000 REGINA v Stuart William MASON JUDGMENT 1 ABADEE J: On 1 April 1999 the applicant adhered to a plea of guilty to a charge of supplying a prohibited drug being methylamphetamine between 1 August and 31 August 1998. The applicant was sentenced by his Honour Acting Judge Nader on 1 April 1999 following that plea. The offence was charged under the provisions of s 25(1) of the Drug Misuse and Trafficking Act 1985 the maximum penalty on the conviction being that of 15 years. His Honour sentenced the applicant to four years imprisonment comprising a minimum term of three years commencing on 10 June 1999 and an additional term of one year. 2 His Honour in his sentencing reasons considered the matter of special circumstances but for reasons given by his Honour declined to find special circumstances in the case. 3 His Honour made reference to an earlier sentence imposed on the applicant by Judge Sides on 10 September 1998. At that point of time he had not been charged with the matter for which sentence was imposed by Judge Nader. The sentence imposed by Judge Sides was for two counts of assault occasioning actual bodily harm committed on 21 August 1997. 4 As the Crown has indicated, there was delay in the charging of the applicant in respect of the drug offence the subject of this appeal. That said, it does seem to me that there is force in the Crown's submission that the delay is explicable as being attributable to there being at the time of the sentencing by Judge Sides an ongoing investigation into certain drug matters involving the applicant. Judge Sides sentenced the applicant to a fixed term of 12 months commencing on 9 June 1998 and concluding on 9 June 1999 with an additional term of six months for another offence to commence on 10 June 1999 and to conclude on 9 December 1999. When sentencing, Judge Sides found, in respect of those matters that he was sentencing for, that there were relevant special circumstances. The direct relevance of the sentences imposed by Judge Sides was that six months of the sentence imposed by Judge Nader ran concurrent with a pre-existing and unrelated sentence. Indeed at the time of sentencing by Judge Nader the applicant was due for release on 10 December 1999. 5 The statement of agreed facts was tendered without objection before his Honour and was dealt with by his Honour in the remarks for sentencing. The facts briefly reveal that an undercover police operative attended at the home of the applicant and his defacto for the purpose of purchasing a quantity of amphetamine. The operative agreed to purchase about 28 grams of methylamphetamine from the applicant for the sum of $1,000. There was some discussion about cutting and mixing. In any event ultimately the transaction was completed. 6 The activity relevant to the charge occurred in the period that I have referred to. The applicant was arrested on 2 November 1998. It is evident from the facts found by his Honour that the applicant supplied 3.1 grams of methylamphetamine to an undercover operative on 21 August 1998. That transaction formed the basis of the charge to which the applicant pleaded guilty. 7 When one looks at the reasons for sentence and also at the facts which were tendered by consent, it appears that the applicant had agreed to supply further quantities of methylamphetamine. However, the further supply was not the subject of any charge with which his Honour was concerned. 8 The sentencing exercise carried out by his Honour was solely in relation to the single count of actual supply, the fact of which there was no dispute. His Honour specifically stated that whilst he had regard to the other matters, including the matter of supply of further quantities of methylamphetamine, his Honour did so against the background of such additional material being to provide and to be used solely for the purpose of giving context to the sentence. Indeed his Honour sentenced the applicant on the basis of the specific single offence involving the supply of 3.1 grams in a context in which it is accepted that the transaction was not an isolated event and was clearly part of an ongoing business activity. 9 It seems to me that it was appropriate for his Honour to give context to the single offence, and to have regard to the fact that it was nevertheless when seen in context part of a business arrangement and not purely a one off matter. Indeed, his Honour accepted that the applicant was a small cog in a sophisticated dealing operation at the same time nevertheless emphasising that there was only the single offence for which the applicant was to be sentenced and not otherwise. 10 The first ground of appeal advanced by the applicant is that his Honour was in error in applying the wrong maximum penalty for the offence charged. At the time of sentencing his Honour was informed by the Crown that the maximum sentence was 20 years and/or a fine of $385,000 (see Appeal Book page 4). However, it seems to me that his Honour, who adopted what he had been told by the Crown, was in error as was the Crown. 11 The offence that the applicant pleaded guilty to was that of supply under the provisions of s 25(1) of the Drug Misuse and Trafficking Act 1985 for which the maximum penalty under section 32 was 15 years and/or a fine of 2000 penalty points. What had occurred was that his Honour was in fact given a maximum penalty which was erroneous and being a maximum penalty by reference to an offence under s 25(2) of the relevant act. 12 In fact in the circumstances of this case the amount of methylamphetamine that was relied upon by the Crown as being the subject of the relevant offence was 3.1 grams which was only 0.1 grams above the trafficable level and indeed, less than the indictable level. The trafficable quantity for methylamphetamine is three grams. The indictable level is five grams and the commercial quantity is 0.25 grams. 13 It is accepted by the Crown that error was made in sentencing as to the maximum penalty that was available. That said the Crown submits that the existence of the error does not necessarily require that the applicant should be re-sentenced and that the sentence reflected a proper exercise of discretion. 14 It is also common ground that the offence was one which could have been the subject of the exercise of jurisdiction by the Local Court and had the matter been dealt with in the Local Court, a maximum penalty capable of being imposed would have been for the offence in the order of two years. 15 In coming to the matter of re-sentencing, which I believe the Court should embark upon and which it will do in due course, it seems to me that it is proper to have regard to the fact that the matter could have been dealt with in the Local Court and also to have regard to the maximum penalty had the matter been dealt with in the Local Court. 16 In my view the submissions of the Crown that whilst there is error in relation to the maximum penalty but that the error does not require a Re-sentencing should be rejected. 17 I mention two matters. There are differences in sentences under ss 25 and 25(2) in two particular respects. The difference in the actual sentence in terms of imprisonment is five years. There is a deference in terms of the maximum fine under s 25(2), namely that the fine is $385,000, almost double for the offence under s 25(1) of $200,000. 18 In my view in the circumstances the applicant has made good the complaint that in the light of the error in applying the wrong maximum penalty that the Court should allow the appeal and consider for itself the appropriate sentence. 19 The error in relation to wrong maximum penalty is in itself in the circumstances of this case I believe sufficient justification for the Court to intervene and re-sentence: see R v Chanh Thanh Ma (CCA 31 March 1995 unreported), The Queen v Grant (Vic CCA, 27 June 1994 unreported and Stol v The Queen (1989) 44 A Crim R (WA CCA). The Court's intervention is therefore warranted by reference to the wrong maximum penalty being considered. 20 However, I consider that it is appropriate for me to also state that there are, I believe, some additional circumstances warranting intervention in the present case. I shall just briefly refer to them, having regard to the conclusion that I have reached. 21 The second ground advanced by the applicant is that his Honour erred in proceeding upon certain assumptions about the nature of amphetamines an the psychiatric effects of amphetamine abuse in the absence of expert evidence - see the sentencing remarks in the second paragraph at page 8: "Now the prisoner comes before me for the very serious matter that I have referred to. Amphetamines are, in the view of quite a lot of psychiatrists and other medical people who testify in these courts, the most serious of all drugs. Now that may not be so in fact but it is the view of many psychiatrists. The excessive use of amphetamines is, it is common knowledge I believe of which I can take judicial notice having read reports many times, can induce states indistinguishable from paranoid schizophrenia, sometimes irreversible. And people who deal in this dirty trade are running the risk, at least, of contributing to the misery of other people for a few dollars. So it is a serious offence and one which all right-thinking members of the community believe should be dealt with harshly by the courts, and more importantly from my point of view, because I sit in a court which is part of a hierarchy of courts, those courts that are superior to me have said on many occasions that these cases must be dealt with due severity." 22 In my view this part of his Honour's judgment also would tend to suggest error in the approach to the case. Indeed, as I understand what the Crown has said here today, the Crown accepts that what his Honour said in that particular paragraph is not reflective of a permissible approach. 23 To the cases that the applicant has referred to as suggesting error in the passage, I would add a further reference to the provisions of s 144 of the Evidence Act 1965 and also to the particular provisions of s 144(4) of the Evidence Act. 24 I consider that care should be taken by a sentencing judge that he or she does not permit to intrude into his reasons for sentencing, views that may or may not have been formulated based upon his own or her own perhaps private experiences in life, or even acquired from judicial experiences as the case may be. 25 Next it is submitted that his Honour erred in failing to treat the applicant's drug addiction in any way as a mitigating factor. His Honour made a specific finding accepting that the applicant had a degree of personal addiction. It seems therefore that the applicant has made good the claim that he was entitled to have the offence viewed as being on a lower level of criminality, than it would have been if committed purely for monetary gain: See R v Selim (CCA 19 May 1998 unreported). Indeed as I understand the Crown submission, it accepts that his Honour was in error in failing to have regard to the applicant's found degree of addiction, albeit that the Crown submits that even though there is error, that such is not of itself a sufficient reason to render the sentence excessive. 26 In my view the error in relation to failing to take into account the found degree of addiction as a mitigating factor is an additional reason for this Court to interfere on sentencing. 27 Then it is submitted that the sentence imposed on the applicant was manifestly excessive, given the amount of the drug, the plea of guilty and the applicant's subjective circumstances. We were taken to a number of Judicial Commission statistics which are not in the circumstances I find to be of great assistance. They suggest custodial sentences ranging from six months to 54 months but imposed in the District Court. I have already made reference to the entitlement of this Court on re-sentencing to have regard to what would have been the maximum penalty in the Local Court had the matter been dealt with in that court. 28 His Honour also, it is said, was in error in failing to find special circumstances. That his Honour did not find special circumstances and the reasons for such view are clearly dealt with by his Honour. However, on re-sentencing, as I believe that this Court should do, it is appropriate for this Court to determine whether or not, on the materials and the further materials that have been put before the Court, there should be special circumstances found. 29 Miss Burgess, on behalf of the applicant, has submitted that not only should there be a re-sentencing, but also that special circumstances should be found by the Court. She pointed to the matters which were considered by Judge Nader but rejected by him. She also points to the fact that there was delay in bringing the present charge. 30 As regards the latter matter of delay in bringing the present charge, I have already mentioned that the Crown has, I consider, properly made the point that there was an ongoing investigation at the time and hence then so viewed, the delay in bringing the subject of this appeal can be well understood. Nevertheless that said it seems to me that having regard now to the additional materials that have been put before the Court by the applicant and from the relevant prison authorities, and having regard to the matters that were before Judge Nader, that this is an appropriate case for the Court on re-sentencing to find special circumstances. There is, of course, the need to have regard to those materials as well as the materials before Judge Nader. In addition, one cannot overlook that the sentence that was imposed and which will be imposed by this Court will be accumulated. Hence, I think for all these reasons a longer period of rehabilitation would be required so that in re-sentencing I consider that the case for a finding of special circumstances has been made good. 31 Having regard to the reasons that I have given, I would propose the following orders: 32 That leave to appeal the sentence be granted. That the appeal be allowed. That the sentence should be quashed and that there should be substituted the following sentence: 33 That the applicant be sentenced to imprisonment for 18 months consisting of a minimum term of 12 months to commence on 10 June 1999 and to expire on 9 June 2000 and to an additional term of six months to commence on 10 June 2000. The applicant is eligible to be released on parole on 9 June 2000. They are the orders that I would propose. JAMES J: I agree with the judgment of the Presiding Judge and the orders proposed by his Honour. ABADEE J: The orders will be therefore the orders that I have proposed. The exhibit may be returned. ------------ 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. 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