New South Wales Court of Criminal Appeal CITATION : Regina v Scevola [2001] NSWCCA 430 FILE NUMBER(S) : CCA 60072/01 HEARING DATE(S) : Friday 19 October 2001 JUDGMENT DATE : 19 October 2001 PARTIES : Regina v Reno Guerino Scevola JUDGMENT OF : Grove J at 1; Howie J at 17 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/11/0551 LOWER COURT JUDICIAL Rummery 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 - CONTINUING SUPPLY OF DRUGS - SERIOUS POSSESSION ON FORM 1 - SENTENCE NOT EXCESSIVE - NO SPECIAL MATTER OF PRINCIPLE Regina v Cartwright 1989 17 NSWLR 243 CASES CITED: Regina v Gallagher 1991 23 NSWLR 220 Regina v Ellis 1986 6 NSWLR 603 Regina v Thomson 2000 49 NSWLR 383 DECISION : APPEAL DISMISSED IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL 60072/01 GROVE J HOWIE J Friday 19 October 2001 REGINA v RENO GUERINO SCEVOLA JUDGMENT 1 GROVE J: This is in the first instance an application to extend the time for making an application for leave to appeal against sentence. The matter has been before this court, differently constituted, on a previous occasion. Directions were given concerning the filing of affidavits in regard to that application and this has been done. 2 For my part I would be prepared to grant the extension of time and deal with the application on the merits, despite the circumstance that it was sought to be brought before the court very late in the day 3 HOWIE J: I agree the matter should be dealt with on its merits. 4 GROVE J: I turn therefore to the application for leave to appeal against sentence which was imposed by Rummery DCJ in the Sydney District Court. The applicant was sentenced on 4 February 2000, having appeared before his Honour on several previous occasions. He had been committed for sentence pursuant to s51A of the Justices Act following his pleas of guilty before a Magistrate to charges first that he supplied a prohibited drug, namely, cocaine on three separate occasions contrary to s25A of the Drug Misuse and Trafficking Act and secondly, that he supplied the same drug contrary to s25 of that Act. 5 His Honour was also asked to take into account an offence of unlawful possession of property, being cash, the amount of $400, alleged to be the proceeds of drug sales. 6 The facts of the matter were that police were conducting an operation pursuant to the Law Enforcement (Controlled Operation) Act 1997 on 17 February 1999. An undercover police operative was introduced to the applicant in the Kings Cross area and following conversation the applicant supplied him with two capsules of cocaine for the sum of $60 each. Earlier on the same day the applicant had been observed to supply a capsule to another unidentified male in exchange for $60. On the following day there was another meeting and again the supply of a capsule for $60 to the undercover operative. 7 On 10 March 1999 there followed a similar event and ultimately police approached the applicant on 19 March when he was in a motor vehicle, a search of which located thirty-nine coloured balloons each containing a gelatine capsule. The applicant was conveyed to a police station. In the early hours of the following morning his residence was searched. Therein was obtained the sum of $400, which I have mentioned, and also an amount of 6.09 grams of cocaine which was the subject of the second charge. 8 The applicant himself has a drug habit. He informed the police, and it was generally accepted, that he was acquiring the capsules for $40 each and selling them for $60 each thereby making a profit of some $20 in respect of each of the sales. 9 In respect of the offences, his Honour on the first charge committed for sentence, imposed in the terms of the then operative Sentencing Act 1989 a minimum term of two years and nine months commencing on 19 March 1999 and an additional term of one year and six months commencing after the expiry of the minimum term on 18 December 2001. On the second charge the applicant was sentenced to twelve months imprisonment concurrent with the initial portion of the minimum term imposed on the first charge. It can be seen, therefore, that the applicant's parole eligibility date is 18 December 2001. 10 The applicant was entitled to have taken into account certain matters which it is not necessary presently to elaborate, which were contained in a letter of comfort and in respect of which his Honour expressed himself as granting to the applicant a discount along the lines of the well known cases of Regina v Cartwright 1989 17 NSWLR 243 and Regina v Gallagher 1991 23 NSWLR 220. It might also be mentioned that his Honour expressly said he was granting the applicant a discount by reason of matters pertinent to the authority of Regina v Ellis 1986 6 NSWLR 603. For my part I am unable to identify any matter which would be pertinent to that authority, which deals with charges brought against an offender of which law enforcement authorities would have had no knowledge but for confession and voluntary information. It is possible that his Honour intended to make reference to some other case. In any event, whatever his Honour intended to refer to, it was clearly taken into account in favour of the applicant and could scarcely be a matter of complaint before this court. 11 On behalf of the applicant a number of matters were advanced by counsel. The first and primary argument, as I understand it, was based upon a remark made by his Honour in relation to discounts that he intended to apply. When referring to the first offence he said this: "With respect to the first mentioned offence, I take into account the matter on Form 1. I discount the minimum term I would otherwise impose from four years to two years and nine months." 12 His Honour then proceeded to sentence. It is undoubtedly an erroneous approach to discount a sentence by reason of entitlement of an offender only in relation to a minimum term and not in relation to the whole sentence. It was accordingly submitted on behalf of the applicant that the discount should have been applied to the total sentence. In a written submission counsel for the Crown made these observations to the court in relation to what his Honour had said and that I have recited: "Whilst those words may suggest, at first glance, that his Honour discounted only the minimum term and did not apply any discount to the overall term of the sentence, careful consideration shows that a discount must also have been applied to the additional term. This is because the total term of the sentence was four years and three months. If the minimum term before discount was, as his Honour said, four years, it is inconceivable that the additional term was only three months, particularly in light of the finding that had already been made of special circumstances." 13 In my view that observation by the Crown is correct and I would endorse it. I am unpersuaded that his Honour has made the error attributed to him. Obviously his remark is unfortunate in that it was capable of being suggestive of error, but as the Crown has submitted, upon analysis it cannot be concluded that error in fact occurred. 14 The next matter advanced on behalf of the applicant was that the sentence was manifestly excessive. We were referred to some tables of sentences available from the statistics collated by the Judicial Commission. Those statistics related to offences contrary to s 25A of the Drug Misuse and Trafficking Act, a relatively recent legislative initiative. There is not a great source of material in order to establish sentencing patterns. More importantly, in my view those statistics completely ignore the circumstance that the applicant needed to be sentenced also for the not insignificant offence arising out of his possession of 6.09 grams of cocaine in his residence. That quantity is, as has been observed, more than twice the specified traffickable quantity. In my view, the contention that the sentence was manifestly excessive is not made out. 15 Finally, it was submitted on behalf of the applicant that his Honour erred in failing to give the applicant sufficient credit for his early plea of guilty. This sentencing exercise took place before the publication of the judgment of this court in Regina v. Thomson 2000 49 NSWLR 383. Nevertheless, at common law it was incumbent upon his Honour to acknowledge matters such as the plea of guilty. This he did in his opening remarks. The committal of offenders for sentence to the District Court is a daily occurrence which would be encountered frequently by every Judge of the District Court and I am entirely unpersuaded that his Honour in any way overlooked the circumstance. His assessment of sentence does not reveal in its quantification that there is any lack of sufficient credit for the early plea of guilty. On the contrary, given the whole of the applicant's circumstances which it is not necessary to detail, it seems to me that the sentence imposed represented a sound exercise of his Honour's discretion. 16 I am therefore of the view that the orders should be made as I have indicated extending time. I would, however, grant leave to appeal but dismiss the appeal. 17 HOWIE J: Yes, I agree. 18 GROVE J: The orders therefore 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.