New South Wales Court of Criminal Appeal CITATION : R v Jordan [2002] NSWCCA 228 FILE NUMBER(S) : CCA 60233/01 HEARING DATE(S) : 13/02/02 JUDGMENT DATE : 24 June 2002 PARTIES : Regina Steve Jordan JUDGMENT OF : Hidden J at 1; Buddin J at 15 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/11/0458 LOWER COURT JUDICIAL Howie DCJ OFFICER : COUNSEL : P R Boulten - Applicant PJP Power - Crown SOLICITORS : Gregory J Goold - Application SE O'Connor - Crown CATCHWORDS : Criminal law: sentence - ongoing supply of cocaine and supply of cocaine - cumulative sentences - whether total sentence excessive. LEGISLATION CITED : Drug Misuse and Trafficking Act 1985 Probation and Parole Act Pearce v The Queen (1998) 194 CLR 610 R v Smiroldo (2000) 112 A Crim R 47 CASES CITED: R v Hoon and Pouoa [2000] NSW CCA 137 R v Plane (CCA unreported 10 April 1990) R v Scevola [2001] NSW CCA 430 DECISION : See para 14 N THE COURT OF CRIMINAL APPEAL 60233/01 HIDDEN J BUDDIN J Monday, 24 June 2002 REGINA v Steven JORDAN Judgment 1 HIDDEN J: The applicant, Steven Jordan, seeks leave to appeal against sentences passed upon him in the District Court after he pleaded guilty to a charge of ongoing supply of cocaine (s 25A of the Drug Misuse and Trafficking Act) and a further charge of supplying cocaine (s 25 of the Act). The first charge carries a maximum sentence of 20 years imprisonment, and the second charge 15 years. On the second charge the learned sentencing judge sentenced the applicant to a fixed term of imprisonment for 3 years to commence on 14 March 2000, the date he was taken into custody. On the first charge his Honour sentenced him to imprisonment for 3½ years, to commence at the expiration of the sentence on the second charge, with a non-parole period of 12 months. For the two charges, then, the effective sentence was 6½ years with a non-parole period of 4 years. 2 The applicant worked as a barman at a café in Kings Cross. Between 12 January and 3 February 2000 undercover police officers went to the café and bought cocaine from the applicant on five separate occasions. The first four purchases were each of one gram at a price of $200, and the last was for three grams at a cost of $550. On each occasion the cocaine was about thirty percent pure. It was this series of events which gave rise to the first charge, supplying cocaine on an ongoing basis. 3 The applicant was arrested on 14 March 2000. He was taken to the flat above the café where he lived, so that the police could search it. There the police found, or were shown by the applicant, a quantity of cocaine contained in plastic bags, together with a set of scales and other paraphernalia commonly associated with the supply of drugs. The cocaine at the flat weighed a little under 62 grams and, again, was about thirty percent pure. 4 His Honour found that the applicant was conducting a business of selling cocaine at the café and he characterised him as "in effect, a street dealer of the drug …". From the cocaine and other items found at the flat, he concluded that the applicant was breaking down the drug and packaging it for sale. His Honour saw the two offences as arising "out of the same course of criminal activity", and said that it was his intention to punish the applicant for the totality of the criminality disclosed by those offences. He decided that the matter should be dealt with by way of cumulative sentences, referring to Pearce v The Queen (1998) 194 CLR 610. However, he expressed his approach to his sentencing task in this way: "It makes little difference how the sentences are structured in respect of this matter, provided that, at the end of the day, the totality of the criminality is represented by the sentence imposed upon the prisoner, and no more than the totality of the criminality is punished." 5 For present purposes, the applicant's subjective case may be stated briefly. He was fifty one years old at the time of the offences and is now fifty three. He came to this country from Czechoslovakia in 1968. He has no family here and appears to have made few close friends, living what his Honour described as "a relatively lonely existence". He developed a dependence on cocaine, together with a gambling problem. He has some criminal record, the only entry of significance being a conviction in the District Court in 1992 for supplying a commercial quantity of cocaine, for which he was sentenced to a term of imprisonment. 6 He has for some years suffered from a mental illness, apparently paranoid schizophrenia, the effects of which have been aggravated by his use of cocaine. His Honour accepted that he was supplying the drug to finance his own addiction, as well as his gambling. His Honour also took into account the fact that he pleaded guilty to the charges at the earliest opportunity and, in the light of his background and mental illness, found special circumstances. 7 In this Court counsel for the applicant submitted that his Honour erred in accumulating the sentences as he did, so as to arrive at a total sentence which was manifestly excessive. In my view, this submission is sound. True it is that the second charge arose out of the applicant's possession of cocaine a little over a month after the last of the transactions giving rise to the first charge. Nevertheless, as I have said, his Honour treated the two charges as the products of the same course of criminal activity. To view them in this way was consistent with authority of this Court dealing with the offence of ongoing supply of a drug. In R v Smiroldo (2000) 112 A Crim R 47, Hulme J said (at 50): "The persons at whom at 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." 8 In R v Hoon and Pouoa [2000] NSW CCA 137, Dunford J said of s 25A (at para 39): "The section is directed to the concepts of repetition, system and organisation, and the objective criminality of any offence under the section should be determined by reference to those features, and not merely to the number and quantities of individual instances of supply." 9 The Crown prosecutor referred us to R v Plane (CCA, unreported, 10 April 1990), in which this Court refused leave to appeal against cumulative sentences passed in respect of a charge of actual supply of heroin and a related charge of deemed supply of the same drug. However, that case was not dealing with a charge of ongoing supply (which did not then exist) and, more importantly, it does not appear that the accumulation was the subject of any complaint in argument. The court appears to have approached the matter on the basis that the sum of the accumulated sentences was appropriate for the whole of the criminality disclosed. It should be noted that the case was decided well before the decision of the High Court in Pearce (supra). In addition, the sentences were passed under the Probation and Parole Act 1983 and argument appears to have been directed primarily to the length of the non-parole period which, in accordance with that act, was fixed globally in respect of the two head sentences. 10 In R v Scevola [2001] NSW CCA 430, a case also involving charges of ongoing supply and supply of cocaine, the sentencing judge passed concurrent sentences. However, it should be noted that in that case the second charge arose from the offender's possession of cocaine less than two weeks after the transaction the subject of the first charge. His Honour could have passed concurrent sentences in the present case but, given the length of time which elapsed between the events giving rise to the two charges, he need not have done so. Partial accumulation was open and, in my view, would have been the appropriate course. 11 Counsel for the applicant referred us to a number of cases in which this Court has considered sentences for the ongoing supply of drugs. In Scevola, upon an application by the offender for leave to appeal, the court declined to interfere with concurrent sentences of imprisonment for 4 years and 3 months. In the other cases the court affirmed, or itself imposed, terms of imprisonment ranging from 14 months to 5 years. Most of them involved the ongoing supply of heroin. At the bottom of that range were Hoon and Pouoa (supra) and R v Thompson [2000] NSWCCA 362, and at the top of it was R v Tipler [2000] NSWCCA 382. 12 In Hoon and Pouoa and Thompson there were special considerations warranting leniency. In Tipler, on the other hand, the sentencing judge took into account seven drug related offences on a Form 1. In most of the other cases the sentence was in the order of 3 years. Insofar as these cases demonstrate a range, the effective sentence of 6 ½ years in the present case is clearly outside it. However, a sentence at the top of that range or a little above it is called for, not only because of the lapse of time between the two offences but also because of the quantity of the drug found at the applicant's premises and his prior conviction for a serious drug offence. 13 Viewed individually, no exception could be taken to the sentences passed on each charge. However, the fact that one was wholly accumulated upon the other has resulted in an overall sentence greater than was appropriate to reflect the applicant's criminality. In my view, the effective sentence should be imprisonment for 5 ½ years with a non-parole period of 3 years. I would achieve this by directing the sentence on the second charge to commence one year earlier than the date specified by his Honour. 14 I would grant leave to appeal and allow the appeal. On the second charge I would confirm the fixed term of imprisonment for 3 years commencing on 14 March 2000. On the first charge I would confirm the sentence of imprisonment for 3 ½ years with a non-parole period of 12 months, but I would direct that that sentence commence on 14 March 2002. The applicant would be eligible for release on parole on 14 March 2003. 15 BUDDIN J: I agree. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.