Regina v Groat [2001] NSWCCA 452

New South Wales Court of Criminal Appeal

CITATION : Regina v Groat [2001] NSWCCA 452 FILE NUMBER(S) : CCA 60745/00 HEARING DATE(S) : Wednesday 17 October 2001 JUDGMENT DATE : 17 October 2001

PARTIES : Regina v Steven Grant Groat JUDGMENT OF : Wood CJ at CL at 17; Grove J at 2

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/61/0116 LOWER COURT JUDICIAL Andrew A/DCJ OFFICER :

COUNSEL : W. Dawe QC (Crown) H. Dhanji (Appellant) SOLICITORS : S.E. O'Connor (Crown) D.J. Humphreys (Appellant) CATCHWORDS : CRIMINAL LAW AND PROCEDURE - SENTENCE - PRIOR CONVICTIONS OF OFFENDER - MAY DEPRIVE OF LENIENCE BUT DO NOT AGGRAVATE THE INSTANT CRIME - APPELLANT RESENTENCED LEGISLATION CITED : CASES CITED: R v Thomson 2000 49 NSWLR 383 DECISION : APPEAL ALLOWED

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL

60745/00 WOOD CJ at CL GROVE J

Wednesday 17 October 2001 REGINA v STEVEN GRANT GROAT

JUDGMENT

1 WOOD CJ AT CL: I will ask Grove J to deliver the first judgment. 2 GROVE J: This is an application for leave to appeal against the severity of sentence imposed by Andrew A/DCJ at the Cowra District Court. The applicant appeared before his Honour and pleaded guilty to three counts of supplying a prohibited drug, in each case methylamphetamine. 3 The facts, I regret to say, could almost be described as mundane. At about 12.30 pm on 30 May an undercover police officer contacted the applicant by mobile phone. Arrangements were made and there was a sale of what turned out to be 2.83 grams of methylamphetamine after the applicant arrived in his motor vehicle. He paid the undercover officer $350, which was said to be an over-payment. Consequently at about 1.45 pm on the same day there was another contact with the applicant and an amount of 3.2 grams of the same drug was supplied, as a result of a similar transaction, this time for $120, the discount apparently representing the over-payment for the first transaction. These two supplies constituted the first two counts charged against the applicant. 4 The third count arose out of the execution of a search warrant at the applicant's home on 7 June. The search detected a white powder and 30.52 grams of methylamphetamine were located in the possession of the applicant. 5 The learned judge sentenced the applicant to imprisonment for three years concurrently on each count and specified a non-parole period of two years. 6 The applicant in this Court has canvassed three grounds on his application. As I am of the view that one of the matters raised has been made out, I can deal relatively briefly with the other two. I turn to do so. The submission was advanced that the learned sentencing judge erred in failing to give the applicant credit for contrition. In the course of sentencing his Honour had observed "firstly he cooperated with the police and he pleaded guilty at the first opportunity. Whilst he probably had little choice, having been caught red-handed, nevertheless he has cooperated and the utilitarian effect of the plea has saved the expense and time of a trial. I assess the plea of guilty as amounting to a discount on his sentence of twenty-five percent". 7 It was complained that the judge made no reference to the matter of contrition. It was not a matter advanced on behalf of the applicant, but it might be observed in passing that in Regina v Thomson 2000 49 NSWLR 383 the Chief Justice [at paragraphs 135 and 136] referred to the necessity for separation of the elements of contrition and the utilitarian value of the plea and expressed a view, agreed by the other members of the court, that the strength of the Crown case should not have any bearing upon the weight to be attributed to the aspect of discount that relates to the utilitarian value. Although his Honour made no express reference to the issue of contrition, I am unpersuaded that any error is manifest in his dealing with the applicant and I would reject the argument advanced. 8 Similarly I would reject the argument that the sentence was manifestly excessive for the offences. Part of the applicant's subjective case revealed that he was the father of six children and the stepfather of two others. For a person aged thirty-nine years in his position to involve himself in the distribution of illicit drugs into the community is a matter of considerable seriousness. One is given pause to wonder whether, if another had supplied his own children, the applicant would be so sanguine as he appears to be in relation to this matter. 9 I turn however to the matter which I have indicated I consider the applicant has made out. In the course of his remarks on sentence the learned judge referred to the applicant's prior record. This was by no means clear and included a drug offence. In reference to that his Honour said: "The cultivation charge is said to relate to the growing of a few plants of marijuana in a forest and the sentence imposed would support that. Although the sentence for the supply of a prohibited drug was only a sixty hours community service order, nevertheless he has a prior conviction which is an aggravating feature." 10 The contention is advanced that his Honour erred in treating this prior conviction as an aggravating feature. As a matter of principle the learned Crown Prosecutor in a written submission has made an appropriate concession that the fact of prior convictions can never, unless specifically legislated for, be used in the sentencing process as an aggravating feature. It is pointed out, and I would endorse the proposition, that an aggravating feature relates to something which makes the instant conduct more serious. A prior record is something which is capable of depriving an offender of leniency that otherwise might be merited. Mr Dawe QC who has appeared for the Crown, has argued that the sentencing judge's remarks, treated as a whole, should be construed so as to understand his reference to an aggravating feature as being a contemplation relating to lenience in the light that I have mentioned. I am unable to accept that submission. What his Honour said is plain in its terms and it is, as conceded, erroneous. What the Court does not know is what effect that error had upon the imposition which he concluded should be made. Nevertheless, as the ground has been made out, it is apt for this Court to consider the question of re-sentence. 11 It should always be borne in mind that the jurisdiction of this Court when dealing with a matter of sentence is to consider, pursuant to section 6(3) of the Criminal Appeal Act, whether some other sentence more or less severe is warranted. There is before the Court material relating to the progress of the applicant whilst in prison. There has also been some attention paid to a matter which scarcely does the applicant credit. In the proceedings in the District Court his wife gave evidence. She testified that he himself was not a user of drugs. Thus the learned sentencing judge understandably approached the matter on the basis that the applicant involved himself in crime for commercial reasons. The matter now tendered before the Court asserts that the applicant himself was, at least to a recreational extent, a user of drugs. Given the circumstance that his wife must either have lied or been ignorant of his usage, the important circumstance is that the applicant permitted that matter to go uncorrected before the sentencing judge. It seems to me that there is no reason why this Court should place any credence upon assertions emanating from the applicant. 12 When sentencing him the learned judge found that there were special circumstances justifying a departure from the proportions between the head sentence and the non-parole period specified in the relevant statute. Whilst I have some reservations about his Honour's findings in that regard, I have come to the conclusion that, to an extent, they should not be the subject of any departure by this Court. 13 I would therefore propose the following orders, that the application for leave to appeal be granted, the appeal allowed and the sentences imposed in the District Court quashed. In lieu thereof the applicant is sentenced as follows: 14 On each count to imprisonment for a period of two years and six months to date from 7 June 2000, each of those sentences to be served concurrently. 15 I would specify a non-parole period of eighteen months to date from 7 June 2000 and to expire on 6 December 2001. 16 I would order that the applicant be released to parole on 6 December 2001. 17 WOOD CJ AT CL: I agree. I wish to add some brief observations. So far as it was submitted that the objective seriousness of the applicant's criminality was limited by reason of the fact that the substance here involved was amphetamine, and the amount involved was not substantial, I would disagree. The supply of amphetamine in a traffickable quantity, for profit, remains a serious offence. It was in my view utterly reprehensible that a thirty-nine year old man, who was the father of six children aged between three and seventeen years, elected to stoop to the supply of this substance, bearing in mind the extent that the younger members of this community resort to its use, and also bearing in mind the consequences for them. It is impossible to accept that any father could ignore that reality. It is equally impossible to give credence to the expression of contrition which he later offered for his conduct. That expression of contrition, I believe, was baseless. However, it is by reason of the error which Grove J has identified that I consider that this Court should intervene. The orders of the Court will therefore be as his Honour has proposed. **********