R v Gill [2002] NSWCCA 93

New South Wales Court of Criminal Appeal

CITATION : R v Gill [2002] NSWCCA 93 FILE NUMBER(S) : CCA 60188/01 HEARING DATE(S) : 22 March 2002 JUDGMENT DATE : 22 March 2002

PARTIES : Regina (NSW) - Respondent Mark William GILL - Applicant JUDGMENT OF : Dunford J at 1; Carruthers AJ at 18

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/61/0153 LOWER COURT JUDICIAL Gibson DCJ OFFICER :

COUNSEL : WG Dawe QC (Crown) L Flannery (Applicant) SOLICITORS : SE O'Connor (Crown) DJ Humphreys (Applicant) CATCHWORDS : CRIMINAL LAW - sentencing - ongoing supply of heroin for reward - non-parole period - special circumstances - accumulation of sentences LEGISLATION CITED : Drugs Misuse and Trafficking Act 1985 R v Smiroldon [2000] NSWCCA 120 R v Hofer [2001] NSWCCA 544 CASES CITED: R v Hoon and Pouoa [2000] NSWCCA 137 R v Kaled [2001] NSWCCA 169 Power v The Queen (1974) 131 CLR 623 R v Simpson [2001] NSWCCA 534 DECISION : See para 17.

IN THE COURT OF CRIMINAL APPEAL 60188/01

DUNFORD J CARRUTHERS AJ

Friday, 22 MARCH 2002 R v Mark William GILL Judgment 1 DUNFORD J: This is an application for an extension of time and leave to appeal against the sentence of imprisonment for a term of 3½ years with a non-parole period of 2 years and 8 months imposed by his Honour Judge JX Gibson QC in the District Court at Bathurst, following the applicant's plea of guilty to a charge of ongoing supply of heroin for reward contrary to s 25A of the Drugs Misuse and Trafficking Act 1985, which offence carries a maximum penalty of imprisonment for 20 years. 2 The facts may be summarised as follows. On Monday 19 June 2000 the applicant sold 0.07 grams of heroin for $50 to an undercover police officer. On Tuesday 20 June he sold 0.06 grams of heroin for $50 to the same undercover police officer. On Wednesday 21 June the applicant identified an undercover police officer using an assumed name to a third party and the third party then sold heroin to that undercover police officer. On 22 June 2000 the applicant sold 0.16 grams of heroin for $100 to two undercover police officers, and on Wednesday 5 July 2000 he supplied 0.07 grams of heroin to a third party, who then supplied that same heroin to an undercover police officer. This last transaction between the applicant and the third party occurred in the presence of the undercover police officer and was recorded by way of listening device pursuant to a valid warrant. The applicant received $50 for this transaction from the undercover police officer. 3 On Tuesday 11 July the applicant attended the Bathurst police station to report on bail in respect of another matter. He was arrested, cautioned and searched, and police located approximately $870 on his person, which was seized. He refused, as was his right, to participate in an electronically recorded interview and was charged. 4 The applicant was born on 24 August 1967 and accordingly was aged 34 years at the time of sentencing. He was in a relationship with a young lady and they had a 3-year-old child. He had a difficult and disruptive childhood resulting in a lack of discipline and was sent to the Raby Juvenile Detention Centre at the age of 13 for being uncontrollable. On his release he was rejected by his mother and commenced living on the streets. His schooling was disrupted but he has completed the School Certificate whilst in custody. He has had some casual employment at times, but when not in prison has spent most of his adult life on Social Security. He has used heroin, amphetamines and cannabis since the age of 15 and became addicted to heroin at the age of 16, having intermittent dependent drug use since then. 5 His Honour accepted that he has been an addict for a number of years and was selling the heroin to help feed his habit which, as his Honour noted, is not an excuse, although it may be an explanation for his actions. He has an extensive criminal record dating back to 1980, including convictions for stealing, goods in custody, break enter and steal, possession of firearm, arson, possess prohibited drug, receiving, assault, make and use false instrument, obtain benefit by deception, assault resist and hinder police, high range proscribed content of alcohol, and introducing a prohibited drug into a periodic detention centre. 6 He has served a number of custodial sentences including a minimum term of 18 months in 1990, and fixed terms of 6 months in 1995, 6 months in 1995 and 4 months in 1996. It may be significant that except for the 1990 convictions all his prison sentences appear at a glance to be of fixed terms with no possibility of release under supervision on parole. 7 In September 1998 he was placed on a 2 year recognisance to be of good behaviour, which he failed to keep and to which he was still subject at the time of this offence. On 4 May 2000 he was given 4 months periodic detention for drive whilst disqualified and a 2 year bond for high range proscribed content of alcohol. He was still subject to this bond at the time of this offence. He was also on bail for some other offences including two counts of goods in custody and taking a prohibited drug into a periodic detention centre. 8 His Honour found that he pleaded guilty at the first available opportunity, albeit a strong Crown case, and reduced the sentence by 25 per cent on account of such plea. His Honour took all the subjective matters into account and determined on a sentence of 3 years and 9 months, but allowed for 3 months pre-sentence custody referable to this offence, thus reducing the sentence to 3 years and 6 months, and backdated it to commence on 27 April 2001 at the expiration of another sentence then being served. He fixed the non-parole period at 32 months, or 2 years and 8 months, to expire on 16 December 2003. 9 On behalf of the applicant it was submitted that the sentence was excessive both as regards the head sentence and the non-parole period. Firstly, it was submitted that as this sentence was cumulative on a 6 month sentence that the applicant was serving at the time, his Honour failed to have regard to the principal of totality. However, this offence was in no way related to the matter the subject of the other sentence which the applicant was already serving. It was, in my view, appropriate to make it wholly cumulative, and the other matter being a comparatively small sentence the principles of totality did not require any reduction in the sentence for this matter. 10 Secondly, it was submitted that the sentence was excessive having regard to the fact that the applicant was an addict and was selling to feed his habit and the quantities involved were comparatively small. As has been made clear in a number of decisions of this Court, the gravamen of the offence under s 25A is the repetition, system and organisation of regular supply and the quantity involved, although relevant, is by no means the only material consideration: R v Smiroldon [2000] NSWCCA 120 at [15]-[16], R v Hofer [2001] NSWCCA 544 at [19]-[20], R v Hoon and Pouoa [2000] NSWCCA 137. As Wood CJ at CL said in R v Kaled [2001] NSWCCA 169 at [18], the section is directed at those who keep the pernicious trade in heroin rolling. This includes the street dealers such as the applicant. 11 For these reasons I am not satisfied that the head sentence was outside the range of a proper sentencing discretion. 12 The other matter which has been the subject of submissions is the non-parole period fixed by his Honour which, it was said, is almost 78 percent of the total sentence, or, on my calculations, about 2 weeks more than 75 percent of the head sentence. There is no magic in the 75% percent. Section 44(2) requires that the non-parole period must not be less than ¾ of the term of the sentence unless there are special circumstances. It does not provide that in the absence of special circumstances it must not be any more than ¾ of the term of the sentence. 13 However, if regard is had to the 6 month sentence on which the present sentence was made cumulative, it represents approximately 80 percent of the total sentences to be served. Adding together his pre-sentence custody in respect of this matter of 3 months, the 6 month sentence for the other matter and the 3 years and 6 months sentence on this matter, the applicant has received total sentences of 4 years and 3 months or 51 months, and in respect of that a non-parole period which would have the effect of him being eligible for parole for a period of 10 months, after serving a minimum of 3 years and 5 months in continuous custody. It was submitted that such a short non-parole period after such a lengthy sentence would not facilitate the applicant's re-integration into the civilian community as a law abiding citizen. 14 Although the sentencing judge is an experienced judge and I am not prepared to accept that everything not referred to in the Remarks on Sentence was necessarily overlooked, it does appear that in the present case this factor was overlooked. It is therefore necessary to re-sentence the applicant. In doing so I would take into account the matters referred to in the affidavits of the applicant himself, sworn 21 March, and that of Catherine Alice Ridge, his solicitor, sworn the same day. Those affidavits show that he is apparently spending his time in gaol usefully, although I must record my concern that he is being apparently encouraged to do a course in fire-fighting when he already has convictions for arson and threat of damage by fire. 15 I have already made the observation that apart from one occasion he does not appear to have had sentences structured to allow for a significant period of release on parole and that may be something which would benefit him considerably. A period of 10 months would, in my opinion, be a very short period. But in fixing the non-parole period the Court must have regard to the minimum period for which the offender must be kept in detention in relation to the offence: s 44(1)(b); and this involves a consideration not only of the subjective features of the applicant, which in this case include the fact that this offence was committed whilst on bail and whilst subject to two recognisances and to a sentence of periodic detention, but also to the objective seriousness of the offence: Power v The Queen (1974) 131 CLR 623 cited in R v Simpson [2001] NSWCCA 534 at [65]. 16 The offence requires a substantial non-parole period but I regard 1 year as a period during which it would be appropriate for the applicant to be eligible for release on parole. That would represent about 71 percent of the sentence for the current matter, and I regard the accumulation of sentences as special circumstances. 17 I would therefore propose that leave to appeal be granted, and that the appeal be allowed. I would confirm the head sentence but I would quash the non-parole period and in lieu thereof I would fix a non-parole period of 2 years and 6 months commencing on 17 April 2001 and expiring on 16 October 2003. 18 CARRUTHERS AJ: I agree. 19 DUNFORD J: The orders will be as I have indicated.