New South Wales Court of Criminal Appeal CITATION : Regina v Keith Brown [2001] NSWCCA 367 revised - 21/09/2001 FILE NUMBER(S) : CCA 60651/00 HEARING DATE(S) : 12 September 2001 JUDGMENT DATE : 12 September 2001 PARTIES : Regina Keith Brown JUDGMENT OF : Sully J at 1; Carruthers AJ at 20 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/31/0149 LOWER COURT JUDICIAL English DCJ OFFICER : COUNSEL : D. Woodburne - Crown R. Burgess - Appellant SOLICITORS : S. E. O'Connor - Crown Legal Aid Commission of NSW - Appellant CASES CITED: R v Deeble (unreported) CCA 19/9/91 DECISION : Leave to appeal granted; appeal upheld; sentences imposed in Court below quashed - in lieu: on count 1 a sentence of imprisonment for 4 years commencing on a day 7 weeks prior to 1st September 2000. Non parole period of 2 years to commence on that same day. IN THE COURT OF CRIMINAL APPEAL 60651/00 SULLY J CARRUTHERS AJ Wednesday 12 September 2001 Regina v Keith Brown JUDGMENT 1 SULLY J: The Court is in a position to deal with this matter. 2 The present applicant, Mr Brown, seeks leave to appeal against the asserted severity of sentences passed upon him by her Honour Judge English sitting in the District Court at Newcastle on 29 September 2000. 3 Mr Brown had pleaded guilty before her Honour to two counts, each of which charged him with the supply of a prohibited drug, namely, methylamphetamine. The supply was a deemed supply; and each of the two offences thus charged exposed Mr Brown upon conviction to a statutory maximum penalty of, relevantly, imprisonment for 15 years. 4 Mr Brown asked her Honour to take into account, - and her Honour did take into account, - two further matters that were placed before her Honour upon a Form 1. 5 The first of those matters involved an incident on 2 February 2000, when the offender was stopped by police at a time when he was driving a particular motor vehicle; and a quantity of cannabis weighing 4.72 grams was located in a bag in the back of the vehicle. The applicant denied all knowledge of the cannabis when originally spoken to about it by the police, but, as I have said, he asked eventually that it be taken into account in connection with his sentencing in the District Court. 6 The second of the scheduled matters concerned an incident on 27 October 1999, on which occasion the applicant was stopped as he left certain licensed premises in Hamilton. He was found to be carrying on his person a container, which itself contained three separate plastic bags, each of which contained a white powdered substance. The applicant admitted that the substance was in fact amphetamine. The total weight involved was 6.1 grams. 7 I think that it is a fair inference that her Honour regarded those two matters as explicable, although of course not excusable, by reference to what was undoubtedly an amphetamine addiction from which Mr Brown was then suffering. 8 In connection with the two indicted matters her Honour sentenced Mr Brown, on the first in time of them, to imprisonment for four years and set a non parole period of two years. In connection with the second of those two matters her Honour imposed a sentence of imprisonment of five years and a non parole period of three years. 9 The relevant background facts are stated with helpful clarity and succinctness in the following extract from the written submissions put in on behalf of the Crown in connection with the present application: "2. On 8 October 1999 the applicant was seen driving his car. Police stopped him and searched the car. They found a set of scales, a foil containing white powder and a large number of plastic resealable bags. The applicant admitted ownership of the drug, which he said, was speed. He admitted ownership of the scales and he said the plastic bags were for putting coins and stamps in. A policeman took a call on the applicant's mobile phone from a female asking why he wasn't at the house. In an ERISP the applicant said he picked the powder up that morning from a person "Dewey" near a hamburger shop in Cardiff. He said he got the phone number of "Dewey" from a female, (whom he did not want to identify). He rang the number and arranged to meet Dewey. He met Dewey and paid $900 to him for the drugs. He had previously obtained the $900 from "people" at 28 Dangerfield Drive. He was on his way to that house at the time he was arrested. He said the scales were for weighing up coins and stamps. He had used them that day to weigh the drug to make sure he didn't get ripped off. He had not previously used the scales to weigh drugs. He thought the white powdery substance on the scales could be sugar from the kitchen. He said he had used amphetamine for 2 years, one shot per day at $30/$50. He said he was going to make $100 for the deal that day. The powder was weighed (27.5g) and analysed and found to contain methylamphetamine. The applicant was granted bail. 3. On 27 October 1999 the applicant was stopped by police as he left a licensed club in Hamilton. Inside an "M & M's" container in his pocket were 3 plastic bags each containing a white powder substance which the applicant admitted was amphetamine. Weight 6.1 grams. 4. On 2 February 2000 at 4.40am the applicant was a passenger in a car stopped by police in Hamilton. He was arrested by police. Police then searched the car and found a white plastic shopping bag on the front passenger seat. Inside the plastic bag was an "M & M's" packet (containing cannabis 4.72g) and a box containing a plastic resealable bag with white powder in it. The driver of the car made a written statement to police stating that the applicant had got into the car with the white shopping bag. The applicant refused to participate in an ERISP. The white powder was weighed (22.8g) and analysed and was found to contain methylamphetamine. Bail was refused. 5. On 21 March 2000 the applicant was granted bail. 6. On 18 April 2000 the applicant was committed for trial from the Newcastle Local Court in respect of the 2 charges of supply methylamphetamine. 7. On 23 August 2000 the applicant pleaded guilty to those charges. 8. On 31 August 2000 the sentence proceedings commenced, the applicant and a character witness gave evidence. The applicant was remanded in custody. 9. On 29 September 2000 the applicant was sentenced: Count 1 imprisonment for 4 years 1.9.00-31.8.04 Npp 2 years 1.9.00-31.8.02 Count 2 imprisonment for 5 years 1.9.00-31.8.05 Npp 3 years 1.9.00-31.8.03 10. The matters of possess amphetamine (27 October 1999) and possess cannabis (2 February 2000) were taken into account. The Form 1 indicates these matters were taken into account in respect of the first count on the indictment, however, her Honour stated 'the longest term reflects the total criminality involved' (ROS 10)." 10 The case made in support of the present application is, put simply, that both sentences are manifestly excessive, given the quantity of the drug involved in each case; and given also the facts that the drug was a mid range drug; that the applicant had given some co-operation to the police after his arrest in October 1999; that he had pleaded guilty and that he had a comparatively strong subjective case. 11 It is, I think, sufficient to say that I do not see this case as one of patent error: that is to say, I do not think that on a fair reading of the remarks on sentence it could fairly be said that there was a particular, identifiable error of law in what her Honour had to say. 12 It was contended in that connection that her Honour had failed to give Mr Brown the consideration to which he was undoubtedly entitled by reason of the fact that he had spent, when he stood for sentence, some seven weeks in custody in circumstances of some difficulty for him. Her Honour said simply that she had taken that matter into account. Her Honour did not backdate the sentence to a date seven weeks before the date of sentence, and it was contended that she fell into an appellable error of law in that respect. 13 I do not agree. I think that it would have been in every way preferable to have backdated the sentence.precisely, if only to take account of the principles in that regard to which reference is made by Badgery-Parker J in his Honour's judgment in R v Deeble (unreported) CCA 19 September 1991. The propositions there canvassed by Badgery-Parker J are well known, and it is not necessary now to take time to rehearse them in detail. 14 It seems to me that if there is to be any intervention at all by this Court in the present case, it will have to be justified upon the basis, not that there is some patent error of law, but rather that there is patent error in the sense that the end result in fact achieved by the sentences passed by her Honour might be thought, upon a fair overall view of them, to have miscarried in some way which cannot be particularly identified. 15 That argument depends, in its turn, upon matters said to be derivable from a consideration of the relevant criminal statistics. 16 I do not myself often find much assistance in that statistical material, for the reason that, broadly speaking, the bases of such comparisons are generally inadequate in number and insufficient in particularity. I think, however, that in the present case the better view is that the sentences were heavy to a point where it can fairly be said that they fell, - although for my own part I would not think fell by very much, - outside the upper end of the permissible range. For myself, I come to that view influenced substantially by the view that I take about the evidence that was before the learned sentencing Judge as to the steps which the applicant had taken towards his rehabilitation during that seven week period when he had been in custody. It is not necessary to canvass the fine detail. It is sufficient to say that that evidence established, - and it was uncontradicted, - that Mr Brown had really taken very significant, and substantially successful steps, to put in train his rehabilitation from his drug addiction. 17 All of that being said, I myself would be disposed to intervene, but in a prudently restrained way. I do not think that a case has been made for some sweeping change by this Court to the sentences imposed in the Court below; but I am persuaded at the end of the day that a case has been made for some prudent and reasonable adjustment of the sentences imposed at first instance. 18 Save for one thing, I myself would not disturb the sentence imposed on count 1. I would disturb the sentence imposed on count 2 so as to make it identical in its terms with the sentence imposed upon count 1. Since we are intervening at all, I would myself favour a backdating of the sentences so as to make it perfectly clear, and, in particular, to make it perfectly clear to Mr Brown, that he is plainly getting his entitlement in the matter of consideration for the time that he spent in pre-sentence custody. 19 I myself therefore would favour these orders: I would grant leave to appeal. I would uphold the appeal. I would quash each of the sentences imposed in the Court below. In lieu: on count 1 I would impose a sentence of imprisonment for four years commencing on a day seven weeks prior to 1st September 2000. I would fix a non parole period of two years to commence on that same day. In connection with count 2 I would impose a sentence in exactly the same terms; so that both sentences, as thus rearranged, would be served concurrently. I propose those orders. 20 CARRUTHERS AJ: I agree. 21 SULLY J: The orders 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. 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.