R v Poulsen [2002] NSWCCA 108

New South Wales Court of Criminal Appeal

CITATION : R v Poulsen [2002] NSWCCA 108 FILE NUMBER(S) : CCA 60678/01 HEARING DATE(S) : 28 March 2002 JUDGMENT DATE : 28 March 2002

PARTIES : Regina v Peter Poulsen JUDGMENT OF : Studdert J at 1; Smart AJ at 28

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/11/0773 LOWER COURT JUDICIAL Gibson DCJ OFFICER :

COUNSEL : D.M. Woodburne (Crown) G.J. Bellew (Applicant) SOLICITORS : S.E. O'Connor (Crown) A.J. Law & Co. (Applicant)

LEGISLATION CITED : Drug Misuse and Trafficking Act R v Thomson & Houlton (2000) 49 NSWLR 383 CASES CITED: R v Lo [2001] NSWCCA 271 Cameron v The Queen [2002] HCA 6 DECISION : See para 27

IN THE COURT OF CRIMINAL APPEAL 60678/01

STUDDERT J SMART A-J

Thursday 28 March 2002 REGINA v PETER POULSEN Judgment 1 STUDDERT J: The applicant, Peter Poulsen, seeks leave to appeal against a sentence imposed by his Honour Judge Gibson of Queen's Counsel on 28 September 2001. 2 The offence charged, and for which the applicant was convicted after pleading guilty to it, was an offence of knowingly take part in the supply of a prohibited drug, namely cocaine. The sentence imposed was a term of imprisonment of four years commencing on 28 September 2001. His Honour fixed a non parole period of two years expiring on 28 September 2003, having found that there were special circumstances. 3 The applicant's offence was one against s 25(2) of the Drug Misuse and Trafficking Act and the maximum penalty for this class of offence was imprisonment for fifteen years and/or a fine of $220,000. 4 The offence was committed on 17 February 2001. Police were patrolling in the Kings Cross area where they observed a vehicle stopped in Earl Street and the applicant was seen in the driver's seat. There were two passengers in the car. Police approached the applicant requiring production of his licence and when he opened the door to get out of the vehicle a small orange water balloon was observed on the floor of the car. A search followed and thirty balloons were found in a cigarette packet and a further four in the centre console. On analysis, the balloons were found to contain cocaine weighing altogether 6.1 grams. The cocaine had a street value of $2450. 5 The applicant was taken to the police station at Kings Cross where he participated in a recorded interview. He told the police that on the day before his arrest he had obtained the cocaine from a person known as Alfred, one of the people in the car when the police detected the cocaine. He said that during the morning of 17 February 2001 he went out to Marrickville where the cocaine was given to him. He went on to give police details of the journey that took him to Earl Street which it is unnecessary here to relate. 6 The applicant gave evidence before the District Court and admitted that some of his answers given in the police interview were false. Specifically, he admitted he lied about where he went to pick up the cocaine and that he lied when he said he did not know where the cocaine in the centre console had come from. The applicant told the Court in his evidence that he was expecting to be paid, for picking up the cocaine and dropping it off, the sum of $1000. 7 Because of the admitted lies in the interview with the police, and although the applicant was not cross-examined, the judge said he did not know whether the applicant was telling the truth in his evidence. His Honour did not find the applicant to be one of the "top echelon" in the supply of this cocaine found in the car, but that he was involved in the operation "for money and for money alone", and that was a finding not open to challenge here. 8 The applicant was born on 16 July 1980 so that he was only twenty years of age when the offence was committed and twenty-one years of age at the time he was sentenced. The applicant lived with his parents and the evidence was that his parents were supportive of him, although very disappointed at what he had done. The applicant had had employment with his father who operated a pile driving business and work was available in this activity on an ongoing basis. 9 The probation and parole report before the court was reasonably favourable. From it, it emerges that the applicant had a behaviour problem which led to his suspension from school and he was then transferred to a residential adolescent programme for six months. The applicant left school at the age of fifteen and thereafter worked in various labouring positions. The judge accepted, as the evidence disclosed, that the applicant had been a worker. The applicant's work record was to his credit. He sustained a significant injury that led to the amputation of the tip of the middle finger of the right hand but, according to the probation and parole report, by the time the applicant came to be sentenced he was fit for work again. 10 The judge found special circumstances, in particular by reference to the applicant's age and his efforts to rehabilitate himself. Those efforts had involved attendance at Odyssey House. There was a report before the judge that the applicant had attended there on five occasions between 21 August and 18 September 2001 and the applicant's evidence was that he attended Odyssey House to seek help to avoid drugs and alcohol. 11 It has been submitted on the applicant's behalf that the sentence imposed was manifestly excessive having regard in particular to these features: