New South Wales Court of Criminal Appeal CITATION : Regina v Raymond Francis Fogg [2002] NSWCCA 395 FILE NUMBER(S) : CCA 60865/01 HEARING DATE(S) : 27/09/2002 JUDGMENT DATE : 27 September 2002 PARTIES : Regina Raymond Francis Fogg JUDGMENT OF : Buddin J at 1; Smart AJ at 28 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/31/167 LOWER COURT JUDICIAL Nader ADCJ OFFICER : COUNSEL : PG Ingram (Crown) RJ Button (Applicant) SOLICITORS : SE O'Connor (Crown) CATCHWORDS : Appeal against sentence - on-going supply of amphetamines - six controlled purchases by an undercover officer - relatively small amounts and low purity - involved wife in the offences - some criminal record - strong subjective case - special circumstances - manifestly excessive LEGISLATION CITED : Criminal Appeal Act 1912 Misuse and Trafficking Act 1985 R v Hofer [2001] NSWCCA 544 CASES CITED: R v Smiroldo (2000) 112 A Crim R 47 R v Thomson and Houlton (2000) 49 NSWLR 383 DECISION : Grant leave to appeal. Appeal allowed. Quash sentence imposed in the District Court. In lieu thereof the applicant is sentenced to imprisonment for three and a half years to commence on 10 November 2000 and to expire on 9 May 2004 with a non-parole period of two years and three months to commence on 10 November 2000 and to expire on 9 February 2003 at which time he will be eligible for consideration for release to parole. IN THE COURT OF CRIMINAL APPEAL 60865/01 BUDDIN J SMART AJ 27 SEPTEMBER 2002 REGINA v RAYMOND FRANCIS FOGG Judgment 1 BUDDIN J: The applicant seeks leave to appeal against sentences which were imposed upon him in the Newcastle District Court on 14 November 2001. 2 The applicant pleaded guilty before a magistrate to an offence of supplying prohibited drugs on an on-going basis contrary to s 25A of the Drug Misuse and Trafficking Act 1985. The offence is committed where a person supplies a prohibited drug (other than cannabis) on three or more occasions during any period of thirty consecutive days for financial or material reward. The drug in question was, on each occasion, methylamphetamine. 3 The sentencing judge imposed a sentence of four years and four months imprisonment. His Honour having found "special circumstances" then imposed a non-parole period of three years and two months but subsequently adjusted it to a term of three years to give some effect, at least, to the finding of "special circumstances". The sentences were backdated to 10 November 2000 which was the date upon which the applicant went into custody. The maximum penalty for the offence is imprisonment for 20 years and/or a fine of 3500 penalty units. 4 The facts in the matter can be stated relatively briefly since there was an agreed set of facts in evidence before the sentencing judge. On 3 October 2000, police commenced an operation in respect of the premises at which the applicant, his wife and children were residing in Cessnock. The applicant had lived there in very modest rented accommodation for approximately five years. 5 Between 17 October 2000 and 8 November 2000 an undercover officer purchased methylamphetamine from the applicant and his wife at those premises on a number of occasions. There were six "controlled purchases" in which the undercover officer was supplied with methylamphetamine. 6 The first occurred on 17 October 2000, when the applicant supplied the officer with half a gram of methylamphetamine for $50. The methylamphetamine was analysed and found to weigh 0.96 grams, and to contain 1.5% methylamphetamine. 7 The second occurred on 18 October 2000, when the applicant supplied the officer with half a gram of methylamphetamine for $50. The methylamphetamine was analysed and found to weigh 1.09 grams, and to contain 1.5% methylamphetamine. 8 The third occurred on 20 October 2000, when the applicant supplied the officer with half a gram of methylamphetamine for $50. The methylamphetamine was analysed and found to weigh 0.95 grams, but on this occasion the purity was not tested. The officer made inquiries of the applicant about the possibility of obtaining larger quantities in the future. 9 The fourth occurred on 21 October 2000, when the applicant's wife supplied the officer with a quarter of an ounce of methylamphetamine for $350. The methylamphetamine was analysed and found to weigh 13.8 grams, and to contain 1.5% methylamphetamine. 10 The fifth occurred on 24 October 2000, when the applicant supplied the officer with a quantity of methylamphetamine for $350. The methylamphetamine was analysed and found to weigh 8.5 grams, and to contain 2.5% methylamphetamine. 11 The sixth occurred on 8 November 2000, when the applicant supplied the officer with half a gram of methylamphetamine for $50. The methylamphetamine was analysed and found to weigh 0.94 grams, but again the purity was not tested. 12 The applicant also agreed on that occasion to supply the officer with an ounce of amphetamine on 10 November 2000 for $1100. The applicant maintained, when he gave evidence, that although he agreed to supply the ounce he never intended to fulfil the promise. The sentencing judge did not accept that evidence. 13 On 10 November 2000 the police arrested the applicant and his wife. The applicant declined to be interviewed and was charged with the present offence. The premises were searched and it may be noted that no amphetamine was located. Police did, however, locate a box of Glad resealable bags, a jar containing 72 grams of glucose, a set of electronic scales and a spoon similar to the one observed by the undercover officer to have been used by the applicant to measure out the amphetamine. 14 It is relevant to observe at this point that the applicant's wife was sentenced on the same occasion. She received a suspended sentence. She however had no previous convictions but more importantly the sentencing judge found that her will had been overborne by the applicant. Indeed the applicant gave evidence to that effect. Although the applicant and his wife had been together for thirty years, they had been in a relationship since she was thirteen years old. The applicant told the sentencing judge that he had threatened to "kick her out" of the house if she did not participate in the drug transactions. Indeed the undercover officer was introduced to the applicant's wife so that she could provide the drugs in the event that the applicant was away from the premises on any occasion. The sentencing judge quite properly regarded that as being a serious aggravating feature of his offence. There is, in those circumstances, no suggestion that any issue of parity arises in this application. 15 The applicant was aged 54 at the time of the offences and is now 56. He has criminal convictions dating back to 1964. Most of these offences occurred more than 20 years ago and involved, in the main, offences of assault for which, with one exception, he did not receive a sentence of imprisonment. He did however serve a short sentence of imprisonment in 1970 for a matter of break, enter and steal. In more recent years he has received non-custodial sentences for matters of dishonesty. In 1999 and 2000 he was dealt with by way of a fine and a community service order respectively for possession of a prohibited drug. 16 The sentencing judge had the benefit of a pre-sentence report, a report from an alcohol and drug counsellor from the Department of Corrective Services and a report from a psychiatrist, Dr Hugh Jolly in respect of the applicant's subjective case. The applicant left school at 14 having acquired no basic literacy or other skills. Nevertheless he had been constantly in employment in a variety of labouring positions for a number of years. 17 However in November 1988 his eldest son, who was then aged 14, was killed in a car accident. That event plunged the applicant into a state of deep despair and he has not been employed on a full-time basis since that time. 18 Considerable detail about the applicant's reaction to his son's death emerges from Dr Jolly's report. The boy had run away from home and was apparently a passenger in a car that was hit by a semi-trailer. There were rumours around the local area, which were subsequently proved to be incorrect, that the boy had been decapitated. This has caused the applicant to have recurring nightmares. For a period of 18 months following his son's death he went to the cemetery on a daily basis and just "camped there". Nor was his wife able to cope with the grief. She was hospitalised in a psychiatric clinic for a short period of time. She thereafter left the matrimonial house and went to Adelaide leaving the applicant to look after the children. She later attempted to take her own life. Fortunately it would appear that his wife has responded well to treatment. 19 The applicant however still suffers from panic attacks and is on various forms of medication for a variety of conditions including what is described as a 'hypnotic' which is prescribed for him because he is 'afraid to go to sleep because he may not wake up.' It is quite clear that his health began to deteriorate significantly in the mid-1990s in the wake of the depression into which he descended following his son's death. He has been on a disability pension since he was diagnosed about six years ago with diabetes and high blood pressure. Moreover he himself had some years earlier been admitted to a psychiatric institution for a period of time, having been involved in a "siege situation" after having consumed a combination of alcohol and cerepax. He was treated at the time with a combination of prescribed drugs to which he may have become addicted, at least for a period. He had had constant health problems since having suffered from rheumatic fever as a child. 20 The applicant apparently developed a dependency upon amphetamines after starting to use the drug in 1999 in order to cope with his depression. He continued to use it because it gave him energy. Until that point he had felt totally lethargic, a response which Dr Jolly equated with his depressive condition. 21 The sentencing judge was somewhat sceptical about the extent of the applicant's own drug use but found in any event, that it could count for very little, by way of mitigation. There was evidence, as I have said, from the counsellor at Cessnock Correctional Centre. It revealed that the applicant had participated enthusiastically in alcohol and other drug awareness programs whilst in custody. The sentencing judge seemed to accept that the period which the applicant had spent in custody prior to sentence had had a salutary effect upon him and that he was unlikely to re-offend. 22 The sentencing judge set out the following passage from Dr Jolly's report in the Remarks on Sentence: Raymond Fogg pleads guilty to supplying drugs. He is fit to plead, fit to face court. He acknowledged his guilt, and in a constructive way, he is glad that something has happened to break the 'dependency' cycle that use of amphetamines had caused for him. Psychiatrically, there is evidence of long-standing recognisable psychiatric disorder. There is a history variously of 'panic disorder', chronic anxiety and alcohol dependence, complicated by benzodiazapine use, and latterly abnormal grief consequent upon the death of his 14 year old son in 1988. Through the 1990s Mr Fogg exhibited signs and symptoms of what I believe is best diagnosed 'depressive illness – morbid grief reaction-type', which was never fully and effectively diagnosed and treated. Ultimately, he used amphetamines to achieve a short-term 'lift'. And there followed the story which is now before the court. Whilst this man certainly has a number of adverse personality features, I accept that he genuinely wishes to lead a much more settled life in the future, and enjoy the company and support of his wife, children and grandchildren. Bearing in mind the setting and circumstances of the 'abnormal grief' and development of chronic depression, overall there may be special circumstances in this case. I recommend further treatment, from a competent clinical psychologist, with consideration of anti-depressant management as well. 23 It was contended on behalf of the applicant that the sentencing judge "wrongly took into account the strength of the prosecution case in considering the utilitarian discount for the plea of guilty" and in so doing infringed the principles enunciated by this Court in R v Thomson and Houlton (2000) 49 NSWLR 383. In support of that submission the court has been taken to the passage in the Remarks on Sentence about which complaint is made. Although there is some ambiguity about precisely what the sentencing judge intended to convey, on an overall reading of the passage I would not be inclined to conclude that the sentencing judge fell into error, particularly as his Honour allowed an entirely appropriate discount of 20% for the plea of guilty. Nevertheless it is apparent from what I have said thus far that the applicant mounted a powerful case in mitigation of the otherwise appropriate penalty. 24 The legislative intention in relation to offences of the kind presently under consideration is made abundantly clear from the maximum penalty which is prescribed. This offence represented a serious breach of the criminal law and merited an appropriate custodial sentence. However it must be noted as the sentencing judge observed, that the amounts which were actually supplied were relatively small and the purity was low. On the other hand it must also be recognised that the mere quantity involved in each transaction is not to be taken as the governing consideration in determining the degree of objective criminality involved. See R v Smiroldo (2000) 112 A Crim R 47. 25 In all the circumstances I have come to the view that the applicant has made good his submission that the sentences which were imposed were manifestly excessive. In reaching this conclusion I have also had regard to what appear to be somewhat comparable cases including R v Hofer [2001] NSWCCA 544 and the authorities to which reference was made in that decision [at para 22]. Accordingly it is my view that the court should intervene and proceed to sentence the applicant. See Criminal Appeal Act 1912 s 6(3). I would make a finding that there are special circumstances for the same reasons that were identified by the sentencing judge and in particular because of his psychiatric disorder. 26 Upon the question of re-sentence, we have received additional material which demonstrates that the applicant has continued to make excellent progress towards his rehabilitation. 27 I would propose the following orders: 1 Grant leave to appeal. 2 Appeal allowed. 3 Quash sentence imposed in the District Court. In lieu thereof the applicant is sentenced to imprisonment for three and a half years to commence on 10 November 2000 and to expire on 9 May 2004 with a non-parole period of two years and three months to commence on 10 November 2000 and to expire on 9 February 2003 at which time he will eligible for consideration for release to parole. 28 SMART AJ: I agree. 29 BUDDIN J: The orders will be as I have proposed. ********** 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.