Regina v Bruppacher [2002] NSWCCA 182

New South Wales Court of Criminal Appeal

CITATION : Regina v Bruppacher [2002] NSWCCA 182 FILE NUMBER(S) : CCA 60248/01 HEARING DATE(S) : 10 May 2002 JUDGMENT DATE : 10 May 2002

PARTIES : Regina Henry Rudolf Bruppacher JUDGMENT OF : Newman AJ at 1; Carruthers AJ at 20

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/21/1124 LOWER COURT JUDICIAL O'Reilly DCJ OFFICER :

COUNSEL : Appellant: In person Crown: G.E. Smith SOLICITORS : Appellant: In person Crown: S.E. O'Connor CATCHWORDS : Criminal Law - Drug Misuse and Trafficking Act - s 25A - Sentence - whether manifestly excessive LEGISLATION CITED : Drug Misuse and Trafficking Act 1985 R v Smiroldo 112 A Crim R 47 CASES CITED: R v Di Simone 137 CLR 383 The Queen v Allbrick 93 ALR 1550 DECISION : Leave to appeal granted; Appeal dismissed

IN THE COURT OF CRIMINAL APPEAL 60248/01

NEWMAN AJ CARRUTHERS AJ

FRIDAY 10 MAY 2002 REGINA v HENRY RUDOLF BRUPPACHER Judgment 1 NEWMAN AJ: This is an application for leave to appeal against the sentence of imprisonment imposed by his Honour Judge O'Reilly QC in the District Court at Penrith on 11 April 2001. 2 Before his Honour the applicant had pleaded guilty to supplying heroin on an ongoing basis contrary to the provisions of s 25A of the Drug Misuse and Trafficking Act 1985. 3 That legislative provision provides for a maximum penalty of 3,500 penalty units or imprisonment for twenty years or both. As I have said, the applicant pleaded guilty before his Honour which resulted in his Honour imposing a sentence of imprisonment for five years and six months to commence on 11 May 2000, the date, I should add, when the applicant was taken into custody and to expire on 10 November 2005. 4 His Honour imposed a non-parole period of three years and three months expiring on 1 August 2003. 5 S 25A of the Drug Misuse and Trafficking Act is a relevantly recent addition to the legislation of this State. It provides, so far as is relevant: "1. A person who on three or more separate occasions during any period of thirty consecutive days supplies a prohibited drug, other than cannabis, for financial material reward is guilty of an offence" and goes on to set out the maximum penalty to which I have already referred. 6 The objective facts of the matter may be pithily stated. The first of the three occasions adverted to in s 25A of the relevant Act was that on Wednesday, 3 May 2000, the applicant at Blackheath supplied to a man known as Bradley Curtis 1.9 grams of heroin at a cost of $120. Pausing there, heroin is a prohibitive drug in terms of the statute. Bradley was soon afterwards apprehended by police. Later he telephoned the applicant to report this event to him, a call which was monitored by police. 7 The second of the occasions, which was on 11 May 2000, is when the applicant supplied a man named David McCann with .11 grams of heroin at Katoomba charging him $50 for the drug. 8 The third occasion occurred on the same day, namely 11 May, at 3.20pm when the applicant sold a lady called Eschelle Seaton, again at Katoomba, .06 grams of heroin and charged her $50. 9 As part of his Honour's objective findings, which were entirely supported by the documentation put before him, he found that at 6.28pm on the same day, that is 11 May, the police executed a search warrant at the applicant's premises at Blackheath. There they found in excess of $1,000 in cash in three bundles. Furthermore they found .15 grams of heroin and some cannabis leaf and equipment usually associated with drug dealing. Prior to the applicant's presentation on 11 May 2000 the applicant had been subject to telephone surveillance in April of 2000 to that date. Of 887 calls intercepted in that relatively short period of time 777 were related to drug dealing, an average of 35 calls per day. Albeit, as his Honour found, certain of those calls, that is the 777 calls, would have been repetitive for customers either seeking more information or re-contacting the applicant for those reasons. 10 Thus, not only were the elements of the crime created by s 25A well and truly made out but there was cogent evidence before his Honour that the applicant was involved in drug dealing to some considerable extent. I should add that his Honour generously accepted the applicant's statement that his operation was not, to use the applicant's own words, a real large one. 11 Subjectively the matters taken into account by his Honour included the applicant's prior criminal record. Sadly that record was not one which would encourage the Court to deal with the applicant leniently. It did include convictions for drug dealing in the past which had resulted in the applicant serving custodial sentences. 12 His Honour had before him other material including a psychological assessment of the applicant by Miss Anita Duffy. His Honour took into account Miss Duffy's report and observed that the report was of use in that it provided an indication of the applicant's background. The applicant before this Court, as one of his written arguments states, submitted that the psychological report used had been prepared for a different matter. Be that as it was, the psychological report was before his Honour. His Honour took it fully into account and, looking at the language his Honour used, took it into account in a manner which was favourable to the applicant. 13 His Honour also did refer to the problems which the applicant had incurred in his dealings with DOCS in relation to his son. Again the applicant adverted to that matter in the passage I have already read from his written submissions. 14 The applicant also submitted that he did not think his Honour took into consideration how many drugs he was using at the time. His Honour, looking at the evidence, concluded that what the applicant was doing was buying about three and a half grams per day and selling about two grams per day, therefore using for himself about one and a half grams. My only observation is that his Honour did take into account the applicant's own use of drugs. 15 The question of the application of s 25A in sentencing matters has, because of its recent appearance in the statute books of New South Wales, received only limited attention from this Court. The first matter was a judgment of this Court on 14 April 2000 in R v Smiroldo 112 A Crim R 47 where Hulme J delivered the main judgment with which the other members of the Court concurred. His Honour there observed at page 4 of his judgment, paragraph 15: "The persons at whom s 25A is directed are those who appear to be indulging in a practice or business of supplying prohibited drugs. It must, it seems to me, be relevant to consider the magnitude of such an operation. The greater the quantity of a prohibited drug may be considered by a series of a few small transactions as a few large ones ... s 25A would have been involved in the supply of far more than the particular quantities the subject of the occasions which inspire the charge." 16 His Honour then adverted to sentencing only on the facts proved referring to Di Simone 137 CLR 383 and also observed that the sentencing judge was entitled to take other matters into account which bore on the applicant's criminality and were proved in accordance with the standards referred to in The Queen v Allbrick 93 ALR 1550. The matter also received attention of this Court in Patek's case which was decided on 10 July last year in which the matters adverted to by Hulme J in Smiroldo's case were confirmed. 17 In his remarks on sentence his Honour adverted to the problem involved in using criminal statistics in attempting to arrive at an appropriate sentence. It seems to me that, as yet, statistics of a relatively recent piece of legislation such as 25A referred to in the Act do not give great guidance to those involved in the sentencing process. Earlier statistics relating to crimes such as supply of drugs of the amount we are dealing with here which would not give rise to long sentences are, in my view, inappropriate. S 25A establishes a crime which is one of great seriousness as is indicated by a maximum sentence of twenty years imprisonment stipulated by the legislation. 18 In the instant case his Honour took into account all the appropriate subjective matters. He dealt with the objective facts in the appropriate way and dealt with the findings he made in light of the most serious offence which could be found whereby the operation of s 25A would come into effect. In my view, having regard to the objective features of the case and the nature of the applicant's activities as indicated not only by the matters which created the offence but by the activity which was evidenced by the telephone surveillance in the matter prior to the applicant's presentation, would cause me to believe that his Honour's sentence in fact is very much at the lower end of the scale and could well be described as very lenient. However, there is no Crown appeal, a matter which does not surprise me and I make no criticism of the Crown in that regard but, having said that, it is apparent that, in my view, no error has been demonstrated on the part of his Honour. 19 Because of the seriousness of the matter to the applicant and the fact that in terms of the criminal law s 25A creates an offence of recent origin, I would grant the applicant leave to appeal but I would dismiss the appeal. 20 CARRUTHERS AJ: I agree. 21 NEWMAN AJ: The orders of the Court will be as I have proposed. **********