REGINA v. HENNOCK [2002] NSWCCA 229

New South Wales Court of Criminal Appeal

CITATION : REGINA v. HENNOCK [2002] NSWCCA 229 FILE NUMBER(S) : CCA No. 60896 of 2001 HEARING DATE(S) : Monday 17 June 2002 JUDGMENT DATE : 17 June 2002

PARTIES : REGINA v. HENNOCK, Benjamin David JUDGMENT OF : Greg James J at 1; Smart AJ at 30

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/31/0269 LOWER COURT JUDICIAL English, DCJ. OFFICER :

COUNSEL : Crown: L.M.B. Lamprati App: P. Bryne, SC. SOLICITORS : Crown: S. E. O'Connor App: Richardson Burgin Steer CATCHWORDS : Criminal law - appeal - sentence - ongoing supply of drugs MDMA - youth - nature of dealings - special circumstances - no error - appeal dismissed. LEGISLATION CITED : Drugs Misuse & Trafficking Act 1985 Criminal Appeal Act 1912 CASES CITED: Olbrich (1999) 199 CLR 270 DECISION : Leave to appeal granted; appeal dismissed.

IN THE COURT OF CRIMINAL APPEAL No. 60896 of 2001

GREG JAMES, J. SMART, AJ.

MONDAY 17 JUNE 2002 REGINA v. BENJAMIN DAVID HENNOCK Judgment 1 GREG JAMES, J: This is an application for leave to appeal from a sentence imposed on the applicant in the District Court of New South Wales at Gosford in consequence of the applicant having pleaded guilty to one count under s.25 A(1) of the Drugs Misuse and Trafficking Act 1985. The particulars of the charge were that he had supplied a prohibited drug, that is methyldioxide methylamphetamine (MDMA) between the 23 March and 23 April 2001 at West Gosford on three or more occasions. That offence is commonly referred to as the offence of supply prohibited drugs on an ongoing basis. It is punishable under the Drugs Misuse and Trafficking Act 1985 by the imposition of 20 years imprisonment or 3,500 penalty units or both. 2 In addition the trial judge was asked to take into account on a Form 1, two counts of supply, one being between the 22 April and 6 June 2001 of methyl dioxide, methyl amphetamine (MDMA), the other being the supply between 5 and 6 June 2001 of cannabis to the value only of $20 but to a school girl and a further offence of possession of 1.8 grams of cannabis located when his premises were searched at the time of his arrest. 3 The maximum penalty for the Form 1 offence of deemed supply of the MDMA is 15 years imprisonment. That for the supply of the cannabis is 10 years imprisonment. In the event that the possession matter had been dealt with by a Local Court it would have been punishable by a maximum of two years imprisonment. 4 The applicant was born on 4 September 1981. He had just turned 20 at the time of sentence. He was 19 at the time the offences were committed. They were committed through an intermediary who dealt with an undercover police agent engaged in the prosecution of a controlled operation. 5 That intermediary in dealing with the undercover police agent indicated his sources of supply of the MDMA, and it was discovered that one of those sources was the offender. 6 On 3 April 2001 the applicant met with the intermediary at a carpark in Kariong and supplied him with 10 MDMA tablets which the intermediary in turn supplied to the undercover officer on 10 April 2001. The applicant met with the intermediary in the vicinity of Racecourse Road, West Gosford and supplied the intermediary with 200 MDMA tablets which were then supplied by that intermediary to that undercover officer on 19 April 2001. 7 The applicant met the undercover officer after arrangements had been made by the intermediary and supplied 40 MDMA tablets to the undercover officer for $1,500. There were before the trial judge in evidence on the plea of guilty transcripts of intercepted telephone conversations confirming the applicant's supply of the MDMA and cannabis between 22 March and 6 June 2001 on the Central Coast as charged in the Form 1. 8 In particular the transcripts made reference to the arrangements to supply MDMA tablets to the intermediary and the cannabis to the school girl. 9 The applicant was sentenced by the learned trial judge to a period of imprisonment of four years commencing on 22 November 2001 and expiring on 21 November 2005, a non-parole period of two years to commence on 22 November 2001 was imposed. 10 The applicant had apparently been in custody for one week at the time of the trial judge passing sentence. The trial judge found special circumstances, and in particular found those as lying in the applicant's age, the difficulties he will face in custody, in that he will serve the entire custodial portion of his sentence in protection, and the need for lengthy supervised rehabilitation. 11 The trial judge recommended that the applicant be placed in an institution, which did not expose him to hardened criminals or place him at risk. The trial judge made a number of findings concerning the applicant's criminality. In particular she referred to the applicant as being a person of prior good record, who was seen as a high achiever with high material expectations. 12 The findings she made in this regard were based upon the pre-sentence report provided to her. The applicant did not give evidence. No challenge however was made to her Honour relying upon what was contained in that report. In that report a history was set out of the applicant actively avoiding drug taking until a relationship with his girlfriend broke down. He suffered a hand injury, was laid off work, and apparently turned to drugs. 13 There was reference in the report to his turn to drugs being linked to his being laid off at work. Her Honour was somewhat skeptical about that matter since there did not appear to be the same coincidence referred to, of the absence of work and drug dealing, in the telephone intercepts. 14 Her Honour found, based on the material in the report that he was a person who had expressed regret at letting his family and himself down; that there was a job available upon his release from custody; that his family stood by him and all looked well for rehabilitation. 15 However her Honour rejected the matter put to her in the Probation and Parole report that the offence of the 10 April 2001 involving the sale of the 200 MDMA tablets was the applicant's "first and only involvement in a large scale supply of drugs" which came about at the behest of the undercover police officer. Up until that time he was selling small quantities to friends. 16 The trial judge found that on the evidence contained in the recorded telephone discussions the applicant was actively involved in an operation to supply illicit drugs on an ongoing basis, was aware of the consequences of being caught, and was also aware of the existence of the undercover police on the Central Coast. 17 She found that he was a user/dealer but not a user to a large extent, he having a habit of only $100 per week. That extent of his habit was referred to in the pre-sentence report. 18 The trial judge concluded that the applicant was operating at a greater level of criminality than a simple user/dealer, although he did not have the indicia of wealth of bigger drug dealers. She accepted what she was told by his counsel that he had spent the monies he had obtained from the drug dealing on funding his own habit and general living, no doubt attempting to persuade his girlfriend not to leave him. 19 There was no challenge before us to those findings although it was contended on his behalf that her Honour having rejected his account that the one large transaction referred to in the evidence was his first and only involvement in such a transaction, she had impliedly concluded that he had involved himself in other large transactions. 20 Her remarks on sentence do not bear this proposition out. Nor does she at any stage indicate that there has been on his part any large scale dealing. The closest her Honour comes to suggesting any such thing is when she later in her remarks says, "whilst the quantities in which he dealt were initially small, when a larger quantity was sought he was both willing and able to obtain a supply to meet that order." That is plainly a reference to the supply of the 200 tablets on 19 April 2001 itself, rather than other large transactions. 21 She had regard to the schedule tendered of the quantities either supplied or agreed to be supplied, so that the offences should be seen in context, that is part as part of an ongoing supply. Later she says, "I cannot overlook the objective seriousness of the ongoing supply of methyl dioxide, methyl amphetamine in increasing quantities". It was contended that having regard to the principles in The Queen v. Olbrich (1999) 199 CLR 270, her Honour had fallen into error in concluding there was a greater criminality than the evidence supported. 22 It was also submitted that she had erred in failing to accept that the large scale transaction was one that had been suggested to the applicant by the police, and that suggestion had the effect of inflating the true level of criminality, and was out of accord with the ordinary course of what the applicant had done as being a much larger transaction than to those to which he would otherwise have been a party. 23 That submission however founders entirely when one has regard to the willingness with which the applicant embarked upon the larger dealing, and has regard only to the individual circumstances of that sale rather than to the willingness with which the applicant had apparently so dealt in the context of the activities he had carried on for some time. 24 It was also submitted that the sentence, having regard to the applicant serving that sentence on protection, his youth, this being the first full-time custodial sentence; and the objective circumstances of the sales was manifestly excessive. It was submitted that the sentence passed was plainly excessive in that her Honour was of the view that his early plea on contrition required a discount of some 20% of the sentence that would otherwise have been passed. It was submitted that this meant that the trial judge must have commenced the consideration of the appropriate sentence at a figure of some five years and four months. That would indicate a component for the offences taken into account which was extremely large having regard to their criminality, or that the sentence overall simply commenced with an initial sentence that was far in excess of the totality of criminality for all the matters. 25 I do not agree that such a submission is soundly based. Far too often there is put to this court the proposition that the end product of a sentencing exercise, may be recalculated back to detect a foundation error even though that matter does not necessarily translate on analysis through to the conclusion. 26 What this court is concerned to deal with under s.6(3) of the Criminal Appeal Act 1912 is the final sentence. Provided that that sentence is not attended by error of law, and unless some other sentence is warranted in law and should have been passed, then the court's function on appeal is to uphold the exercise of discretion by the trial judge. 27 In this case having regard particularly to the applicant's expressed desire to live for the future a drug free life, to the shock effect referred to in the pre-sentence report upon him, on his family of his conviction and sentence, the court would wish to encourage him in the rehabilitation it would hope the sentence would produce. 28 But that rehabilitation cannot be gained at the expense of an appropriate denunciation of the crimes the applicant has committed and the upholding of a decision of the trial judge to pass a sentence which accords with law. 29 I would conclude therefore that leave to appeal should be granted, the matter having been fully argued, but that the appeal should be dismissed. 30 SMART, AJ: I agree. 31 GREG JAMES, J: The orders will be as I have proposed. **********