R v Rajapaski [2001] NSWCCA 126

New South Wales Court of Criminal Appeal

CITATION : R v Rajapaski [2001] NSWCCA 126 FILE NUMBER(S) : CCA 60450/00 HEARING DATE(S) : 14 February 2001 JUDGMENT DATE : 19 April 2001

PARTIES : Regina v Tony Rajapaski JUDGMENT OF : Priestley JA at 1; Kirby J at 37; Howie J at 38

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/11/0574 LOWER COURT JUDICIAL His Honour Judge Hosking OFFICER :

COUNSEL : Crown - P. Hock Respondent - D H Patch SOLICITORS : Crown - S E O'Connor Respondent - Galloways CATCHWORDS : Crown appeal - two sets of offences - sentences as to second set manifestly inadequate - matters to be taken into account on resentencing - respondent resentenced LEGISLATION CITED : Criminal Procedure Act Crimes (Sentencing Procedure) 1999 R v Bavadra [2000] NSWCCA 292 Pearce v The Queen (1998) 194 CLR 610 CASES CITED: R v Keyte (26/3/86) R v Morgan (1993) 70 A Crim R R v Thomson; R v Houlton [2000] NSWCCA 309 R v Todd [1982] 2 NSWLR 517 DECISION : Respondent resentenced - see pars 35 and 36.

IN THE COURT OF

CRIMINAL APPEAL

60450/00

PRIESTLEY JA KIRBY J HOWIE J

Thursday, 19 April 2001

REGINA v RAJAPASKE

1 PRIESTLEY JA: This is an appeal by the Director of Public Prosecutions against sentences pronounced by his Honour Judge Hosking SC upon the respondent Mr T. Rajapaske on 11 May 2000. 2 The respondent had pleaded guilty to seven counts in an indictment charging offences committed by him in mid 1996. The first three counts in the indictment charged him with having supplied prohibited drugs. The other four charged him with the unauthorised possession of firearms. In addition the sentencing judge was asked by the respondent to take into account when sentencing him on count 1 in the indictment an additional twenty-eight matters, which, pursuant to s 161 of the Criminal Procedure Act, were listed in a document called Form 1. These twenty-eight matters were in three classes, offences of supplying prohibited drugs committed in the same period as those for which the respondent was indicted, firearms offences and two offences of being in possession of money reasonably suspected of being unlawfully obtained, that is, from drug dealing. 3 On the first count in the indictment, the facts underlying which were an attempt to receive ten kilograms of cannabis resin, and taking into account the further twenty-eight matters, Judge Hosking sentenced the respondent to imprisonment for two years eight months to commence on 5 April 2000 and to expire on 4 December 2002 with a non-parole period of sixteen months to expire on 4 August 2001. Judge Hosking imposed the same sentence in respect of the third count, the underlying facts in which were the supply by the respondent of 441.7 grams of methyl amphetamine. On the second drug count and on each of the four firearms counts Judge Hosking sentenced the respondent to imprisonment for six months to commence on 5 April 2000 and to expire on 4 October 2000. 4 By letter dated 17 May 2000 the DPP informed the respondent that he was considering the question of an appeal to the Court of Criminal Appeal against the inadequacy of the sentenced imposed upon him for the seven offences. The DPP formally filed notice of appeal on 17 July 2000, the grounds stated in the notice being that the sentences imposed by Judge Hosking were manifestly inadequate. 5 I have already mentioned the type and quantity of drug involved in the first and third counts in the indictment. The second count was that the respondent supplied cannabis leaf of an amount not less than the trafficable quantity of that drug. 6 The fourth to seventh counts charged that the respondent possessed, at two different places, a Bentley repeating twelve gauge shotgun, a .25 calibre semi automatic Colt pistol, a six shot revolver and a twelve gauge Winchester repeater shotgun, without a licence or permit to do so in the case of the Bentley repeating twelve gauge shotgun and without being authorised to do so in regard to the other three firearms. 7 Among the drug offences listed in the twenty-eight matters contained in the form 1 completed pursuant to the Criminal Procedure Act and referred to by the sentencing judge in his reasons were the supply or alternatively the possession of 27.9 grams of methyl amphetamine, the supply of one and a half pounds of amphetamine, and the supply of five pounds of cannabis leaf. The sentencing judge did not specify any of the firearms offences. The two matters concerning cash were that on one occasion the respondent had in his custody $24,074 and later the same day $2,315 in each case reasonably suspected of being unlawfully obtained. All the form 1 offences were committed between 18 June 1996 and 17 July 1996. 8 In his reasons for sentence Judge Hosking recounted the facts surrounding the commission of the offences culminating in the respondent's arrest on 17 July 1996. The facts showed that at least from January 1996 the respondent was involved in systematic distribution, on a commercial basis, of the prohibited drugs cannabis and methyl amphetamine. The police became aware of this and by means of lawful telephone intercepts and by other means were listening to and watching the respondent, also a man named Koller and a woman named Laird. The first count in the indictment was based on an agreement by Mr Koller to supply the respondent with ten kilograms of cannabis resin which ended with Mr Koller being arrested on 4 May 1996 and charged with supplying cannabis resin in not less than a commercial quantity. He did not implicate the respondent. Later, Mr Koller entered a plea of guilty before a magistrate to one count of supplying cannabis resin in not less than a commercial quantity and adhered to that plea when he appeared for sentence before the District Court on 16 September 1996. At the time of sentence, Mr Koller had no criminal record except for a conviction for common assault in 1994. He was sentenced to a minimum term of two years imprisonment with an additional term of eight months. 9 The police searched Laird's premises on 14 May 1996, found amphetamines and other incriminating material, and charged her with two offences. She had no prior criminal history. She agreed to help the police by giving evidence against the respondent. She also helped the police by dealing with the respondent about drugs in ways which provided evidence of his drug dealing and led to the respondent's being charged with the second and third counts in the indictment. She was granted an immunity by the Attorney General, except as to the two matters she was originally charged with. For these she was sentenced on 15 May 1997 and was released on a three year good behaviour bond. 10 After the respondent was arrested on 17 July 1996 the police executed search warrants at two places and found the weapons and cash referred to earlier. 11 After his summary of the facts, Judge Hosking stated his conclusions from them: " It is clear from the facts that I have recited that the prisoner was involved in the supply of very significant quantities of both cannabis resin and amphetamine at least during that period May to July inclusive of 1996. The authorities have made it clear that except in exceptional circumstances people who are involved in the supply of prohibited drugs can expect to receive full-time custodial sentences and for substantial periods particularly where significant or substantial quantities of prohibited drugs are involved. The Court of Criminal Appeal has said that there should not be an excessively liberal interpretation of the phrase 'exceptional circumstances' and I refer to the case of The Queen v Cacciola unreported Court of Criminal Appeal, 15 October 1998. Objectively these are very serious offences, they involve substantial quantities of prohibited drugs; they involve large amounts of money. This was clearly a commercial operation. This was not the supply of drugs by an addict to feed his addiction. The evidence in fact makes it clear that the prisoner was not addicted to prohibited drugs at all. Offences of these kinds call for sentences which reflect considerations of both general and specific deterrence. " 12 Judge Hosking then mentioned that he would give reasons why he thought specific deterrence was of less significance in the case than general deterrence. He then turned to the subjective features of the case. In his view some of these were "very powerful". 13 In discussing the respondent's personal circumstances, the sentencing judge first referred to his criminal antecedents. As to most of these he did not think they were of any particular relevance for his sentencing of the respondent. Then he mentioned, without comment, that in March of 1993 the respondent was convicted of possessing a shortened firearm, of possessing a loaded firearm in a public place and that he was sentenced to a fixed term of three months for each offence. He mentioned also that he was convicted again in 1993 of possessing a firearm whilst unlicensed for which he was sentenced to a fixed term of five months imprisonment. He then added, in finishing his summary of the respondent's record that it was significant in his view that the respondent had never been convicted of any offence relating to the possession, use or supply of any prohibited drug. 14 The sentencing judge then moved on to some of the information contained in the pre-sentence report which had been prepared by Mr March of the Gosford District Office of the Probation and Parole Service. This set out the respondent's rather unpromising childhood history (he was born in 1964), his move to the Central Coast in 1985, his meeting his wife in 1990 and the fact that there were two children of the marriage. 15 The judge noted that the respondent was said to be the President of the Rebels Motor Cycle Club on the Central Coast. He mentioned that two of his employers who had given references spoke extremely highly of his work attitude, punctual attendance, integrity and overall pleasant nature. 16 The judge noted that Mr March's report also said that the respondent had no problem with any substance abuse. He then referred to witnesses who had given evidence that the respondent had become a strong anti drug advocate. The respondent had told Mr March that before he committed the offences he had had a gambling habit reaching addiction level as a result of which he owed $40,000 from gambling. He had also told him that he was approached by an associate with the idea of paying off his $40,000-odd debt by involvement in the drug offences which led to his being charged. The respondent also told Mr March of his remorse for the offences. 17 Hosking J then mentioned that after the commission of the offences the respondent had taken steps to promote an anti drug message in the local community, had become involved in considerable local charity events raising money for underprivileged children and disabled people, all in the Central Coast area. He then mentioned what he regarded as very impressive testimonials from obviously worthwhile citizens of the Central Coast area who showed both from the testimonials and their oral evidence that they had an extremely high regard for the respondent, his community attitude and his work relating to young disadvantaged people and other disadvantaged people in the community. Each person who gave oral evidence said that the commission of serious drug offences was entirely out of character for the respondent as they knew him, since 1996. 18 It was in these circumstances, the sentencing judge now said, that he had to sentence a very worthwhile member of his community for serious offences. He then listed a number of factors favouring leniency: the offences were committed four years ago; the prosecution conceded that the delay in the matters coming before the court was not the respondent's fault; the respondent had pleaded guilty and saved what would have been a very long trial; he was, in the judge's view, remorseful; there was the fact of the almost four year interval between the offences and the sentencing; and there was the fact of the sentence imposed upon the co-offender, Mr Koller. 19 In regard to the offences being relatively old the sentencing judge cited the observations of Street CJ in R v Todd [1982] 2 NSWLR 517 where the Chief Justice said that sentencing for such offences called for "a considerable measure of understanding and flexibility of approach" and that a lengthy passage of time between offence and sentence would often be a dominant factor in deciding sentence, requiring "what might otherwise be a quite undue degree of leniency". 20 The sentencing judge then said that as against those matters in favour of leniency of sentence he had to take into account the twenty-eight matters on the form 1 and that some of them were of "an extremely serious kind". He then referred to R v Morgan (1993) 70 A Crim R 368 which made it clear that the fact that matters are placed on form 1 does not mean they can be disregarded for the purposes of penalty but must be given appropriate weight. 21 It had been urged upon the sentencing judge on behalf of the respondent that the case was so exceptional that a full time custodial sentence should not be imposed upon the respondent. His Honour however was of the view that the offences were so serious that there was "simply no room for any sentence other than a sentence of full time custody". He then noted that the prosecution had accepted that there were special circumstances within the meaning of the Crimes (Sentencing Procedure) Act present in the case and acted on that basis in imposing the sentences which I have earlier set out. When pronouncing the sentences he treated the first count in the indictment as the principal count against the respondent and sentenced the respondent to the same sentence, two years and eight months imprisonment, as had been imposed on Mr Koller. He also imposed the same sentence in regard to count 3 and directed that they be served concurrently. Because he had found some special circumstances he specified the non-parole period of sixteen months on counts 1 and 3. Because of the time he had spent in custody in 1996 he backdated the sentences to commence on 5 April 2000. With the non-parole period being sixteen months that meant the respondent would be eligible for parole under the sentences for counts 1 and 3 on 6 August 2001. The sentencing judge recommended that on the respondent's release to parole he be supervised for the balance of the sentences. 22 The sentencing judge said in conclusion that although it might be thought there was some considerable leniency in the sentences he had imposed, principally because of the powerful subjective features of the respondent's case, he had not allowed them to overshadow the objective seriousness of the offences. He regarded the respondent's substantial efforts towards his own rehabilitation since the commission of the offences and the sentence imposed on Mr Koller as important features of the case for leniency. In regard to the offence charged under count 1 he had earlier remarked that Mr Koller had been the principal in the offence in the sense that he was the supplier of the cannabis resin. 23 The prosecution's submissions in the appeal asserted that the sentencing judge had made four specific errors leading to a manifestly inadequate sentence. These errors were said to be failure to give sufficient weight to the offences on the form 1, over-lenient sentences in respect of counts 2, 4, 5, 6 and 7, giving too much weight to the subjective circumstances and failure to have regard to the principal of totality. 24 Each of these matters was then dealt with separately by reference to authorities, mostly of this court, in which the particular topic was discussed. In regard to the first submitted error the cases of Morgan (which the sentencing judge had referred to) and Bavadra [2000] NSWCCA 292 were mentioned. 25 The submission concerning the first alleged error does not seem to me really to be complaining of error of law or any mistake in sentencing approach but rather to be saying that although the judge was aware of all the relevant sentencing considerations, the conclusion he arrived at was one the court should recognise as a manifestly inadequate sentence. The same comment applies to each of the other asserted errors. 26 Subject to one matter, the view I have formed is that the sentences, although lenient when the facts of the offences alone are looked at, as the judge himself recognised, were, when the circumstances concerning the respondent which the judge thought were of particular significance are taken into account within the range of a proper sentencing discretion. It cannot be said that Judge Hosking was wrong in taking the view that the evidence before him showed there had been an unusual and genuine rehabilitation on the part of the respondent in the interval between the offences and the sentencing. Some of the evidence upon which he relied for this conclusion was to my mind rather vague and unpersuasive, but the evidence of at least two of the witnesses who gave oral evidence before him did not fall into that category. In any event the conclusion was one that was open to his Honour on the materials before him and is not one with which this court could interfere unless his Honour's finding was simply not open on the available evidence. 27 Two other matters drawn to this court's attention by counsel for the respondent were also relevant for the sentencing judge to take account of when considering what sentences he should impose. These are not decisive considerations by any means, but were legitimate for the sentencing judge to take into account in reaching the comparatively favourable view that he did towards the respondent. 28 The first is an unreported decision of this court, R v Keyte (26 March 1986, Street CJ, Lee and Wood JJ) in which Street CJ expressed the same ideas as he had done in Todd (see par 17 above), in a case with some features similar to the present. In that case there was a period of almost two years between the time when the offender was arrested and the time when he was committed for sentence on a plea of guilty. Street CJ commented that "He was accordingly held in suspense for this period of two years under bail conditions which in their very nature made some imposition upon the conduct of his lifestyle". The offender (the appellant in this court) was released on bail a few weeks after he had been sentenced in the District Court. Street CJ remarked again in regard to the bail that it involved further constraints upon the appellant's freedom of movement. Street CJ then continued: " The present situation is accordingly one in which the appellant has for nearly three years been in a state of conditional liberty, with this charge hanging over his head. ... The conditional liberty, albeit under bail, is a matter which can properly be weighed in representing the penal consequence that the appellant has already undergone. " 29 In the present case, the respondent was not granted bail after sentence in the District Court, but was on bail for a considerable period between the time of his arrest and his sentencing. During this time he was required to report daily to the local police station. The considerations mentioned by Street CJ are therefore applicable, although in a less degree, in the present case. 30 The other matter to be added is partly reflective of the previous one; that is, the effect upon the respondent's liberty of the bail conditions concerning daily reporting. 31 These last two matters to my mind provide some reinforcement for the conclusion that the sentencing judge, for the reasons that he gave, came to conclusions which he was entitled to reach and which were within the range of a proper sentencing discretion. 32 The qualification to this general conclusion on my part, which I mentioned a little earlier, is that the sentencing judge does not appear to have given separate consideration to the firearms offences. Those charged in the indictment were serious and those listed on the form 1 were also serious. The respondent had in 1993 previously served two terms of imprisonment in respect of similar offences. The sentencing judge does not appear to have given any consideration to the effect of this aspect of the case on the overall sentencing result. There does not appear to have been any evidence before him connecting the drug offences with the firearms offences in any particular way. It seems to me that there was strong reason for a heavier sentence to be imposed in respect of the firearms matters and for that sentence to be made at least partly cumulative upon the sentences for the drug matters. In my opinion the sentences for the firearms offences were manifestly inadequate in themselves. 33 In my view therefore the appeal should be upheld. However, in re-sentencing the respondent, and in fixing appropriate sentences for each offence (Pearce v The Queen (1998) 194 CLR 610 at 624), I think the principal object should be that the sentences clearly mark the seriousness of the firearms offences for the purposes of general deterrence. I agree with the sentencing judge that because of his findings about the rehabilitation aspect of the case, the personal deterrence factor is of less significance than usual. I also take into account the Crown's concession as to the plea of guilty having been indicated at the first available opportunity: see R v Thomson; R v Houlton [2000] NSWCCA 309. Here I think the utilitarian value of the plea warrants a discount towards the top of the range. I think consideration must also be given to what is called the double jeopardy factor which has the effect that this court when re-sentencing does not impose the sentence which it thinks should have been imposed at first instance. That factor is of particular relevance in the present case because of the combination of the length of time since the offences were committed and the approaching date of the expiry of the non-parole period, 1 August 2001. 34 The sentences which in my opinion should be imposed involve a reduction in the non parole period, required, in the absence of special circumstances, by s 44(2) of the Crimes (Sentencing Procedure) Act 1999. I think there are special circumstances here, for the reasons stated by Judge Hosking and for the further reasons that the appeal is by the Crown, the sentences are partly cumulative, and there has been some rehabilitation while the respondent has been in custody. 35 I therefore propose that the respondent be re-sentenced as follows: The sentences imposed by Judge Hosking on counts 5 and 6 are quashed and in substitution the respondent is sentenced to three years imprisonment to commence on 5 February 2001. There is to be a non parole period of six months to commence on 5 February 2001 and to expire on 4 August 2001 the date upon which the respondent is to be released to parole. It is to be a condition of his parole that he place himself under the supervision of the Probation and Parole Service for such period as the Service thinks appropriate. 36 In respect of counts 4 and 7 the sentences imposed by Judge Hosking are quashed and in substitution the respondent is sentenced to two years imprisonment to commence on 5 February 2001. There is to be a non parole period of six months to commence on 5 February 2001 and to expire on 4 August 2001 the date upon which the respondent is to be released to parole. 37 KIRBY J: I agree with Priestley JA. 38 HOWIE J: I agree with Priestley JA. **********