New South Wales Court of Criminal Appeal CITATION : Regina v Kipic; Regina v Elias [2004] NSWCCA 452 revised - 14/12/2004 HEARING DATE(S) : 1 December 2004 JUDGMENT DATE : 10 December 2004 JUDGMENT OF : Tobias JA at 1; Sully J at 2; Hoeben J at 72 DECISION : Sentences quashed and respondents re-sentenced. See paragraph 69 of judgment. Criminal Appeal Act 1912 (NSW) LEGISLATION CITED : Drug Misuse & Trafficking Act 1985 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Reg v Clark (unreported) NSWCCA, 15 March 1990 Zamagias [2002] NSWCCA 17 Le Cerf (1975) 8 ALR 349 at 351 CASES CITED : Thomson and Houlton Jurisic (1998) 45 NSWLR 209 Wong v The Queen [2001] 207 CLR 584 Trindall [2002] NSWCCA 364 Palu [2002] NSWCCA 381 PARTIES : Regina v Stephanie Snezana KIPIC Regina v Roger ELIAS FILE NUMBER(S) : CCA 2004/2128; 2004/2129 J. Girdham - Crown COUNSEL : M. Paish - Respondent Kipic L. Rowan - Respondent Elias SOLICITORS : S. Kavanagh - Crown S. O'Connor - Respondents LOWER COURT District Court JURISDICTION : LOWER COURT 03/21/0238; 03/21/0299 FILE NUMBER(S) : LOWER COURT Nicholson DCJ JUDICIAL OFFICER : - 24 - IN THE COURT OF CRIMINAL APPEAL 2004/2128 2004/2129 TOBIAS JA SULLY J HOEBEN J 10 December 2004 REGINA v Stephanie Snezana KIPIC REGINA v Roger ELIAS Judgment 1 TOBIAS JA: I agree with Sully J. 2 SULLY J: On 4 June 2004 three co-offenders stood for sentence before his Honour Judge Nicholson SC sitting in the District Court at Campbelltown. They were: Roger Elias; Stephanie Snezana Kipic; and David Anthony Culbert. His Honour passed various sentences of imprisonment and made various orders. 3 There are now before this Court Crown appeals brought pursuant to section 5D of the Criminal Appeal Act 1912 (NSW) against what is asserted by the Crown to have been the manifest inadequacy of the sentences passed, and the orders made, in the cases of Mr. Elias and of Miss Kipic. 4 On 4 June 2003 Mr. Elias pleaded guilty before a Local Court Magistrate to three charges each of which alleged a drug-related criminal offence. He was committed thereupon to the District Court for sentence. 5 On 7 November 2003 Mr. Elias was presented at the Parramatta District Court before Judge Nicholson. He was so presented upon an indictment containing three counts. Count 1 charged that Mr. Elias had, for material or financial reward, supplied methylamphetamine, a prohibited drug, on three or more separate occasions during a period of thirty consecutive days. Such an offence contravenes section 25A(1) of the Drug Misuse & Trafficking Act 1985 (NSW); and attracts upon conviction a statutory maximum penalty of, relevantly, imprisonment for 20 years. Count 2 charged that Mr. Elias had supplied methylamphetamine, a prohibited drug. Such an offence contravenes section 25(1) of the Drug Misuse & Trafficking Act; and attracts upon conviction a statutory maximum penalty of, relevantly, imprisonment for 15 years. Count 3 charged that Mr. Elias had supplied cannabis, a prohibited drug. Such an offence contravenes section 25(1) of the Drug Misuse & Trafficking Act; and attracts upon conviction a statutory maximum penalty of, relevantly, imprisonment for 10 years. Mr. Elias adhered to his pleas of guilty. 6 On 7 July 2003 Miss Kipic pleaded guilty before a Local Court Magistrate to three charges each of which alleged a drug-related criminal offence. She, too, was committed to the District Court for sentence. 7 On 7 November 2003 Miss Kipic was presented at Parramatta District Court before Judge Nicholson. She was so presented upon an indictment containing three counts. The counts were laid in terms identical to those in Mr. Elias' indictment; although the dating of the offences was slightly different from the dating in the counts in Mr. Elias' indictment. Miss Kipic, too, adhered to her pleas of guilty. 8 The various pleas having been taken from Mr. Elias and from Miss Kipic, Judge Nicholson then embarked in each case upon the hearing of proceedings on sentence. Both Mr. Elias and Miss Kipic were legally, and separately, represented. 9 On 7 November there was no oral evidence; but a body of documentary evidence was tendered by the Crown in each case. The Crown case in Miss Kipic's matter was not ready to proceed to finality; but in Mr. Elias' case his Honour heard discursive submissions on sentence from Mr. Elias' legal representative. 10 Those submissions canvassed, among other things, whether the circumstances of Mr. Elias' case could fairly be categorised as exceptional so as to justify non-custodial sentences. His Honour expressed the view that, as he then perceived, "there's nothing extraordinary for me to hang a hat on the alternatives". There was reference made during this discussion to the decision of this Court, (Hunt, Enderby and Sharpe JJ), in Reg v Clark (unreported) NSWCCA, 15 March 1990. 11 When the Crown representative came to address his Honour, Judge Nicholson said, among other things, that: "What's agitating my mind is this and that is to give him a chance to bring exceptional circumstances here". The Crown inquired whether his Honour was considering "a Griffiths remand"; and his Honour responded: "four or six months". 12 There then ensued an interchange which is worth reproducing in full: "ROBINSON: I simply wanted to put that the simple proposition to your Honour that in my view on all of the circumstances a term of full time custody is the appropriate sentence and it may not be appropriate -- HIS HONOUR: I'm not suggesting it isn't within the range but because it is a range I have other options. ROBINSON: Yes. HIS HONOUR: Have a look at Thompson 160(iv). I have an early plea here and Thompson 160(iv) gives me the option of in appropriate cases, not in all cases, "In some cases the plea in combination with other relevant factors", that's the early plea, "will change the nature of the sentence". ROBINSON: Yes, I'm aware of that proposition in Thompson. In my respectful submission it doesn't apply here. HIS HONOUR: That's the guideline. It's not just some – it's not put just in some back paragraph -- ROBINSON: What Thompson -- HIS HONOUR: -- that's part of the guideline on pleas of guilty. ROBINSON: But it's important to keep in mind your Honour in my submission that Thompson says there the early plea, the plea along with other factors may – it's not specific, it's not -- HIS HONOUR: Doesn't say 'shall', I know that, and there have to be other factors. ROBINSON: One has to take into account the species of offence, what one is talking about and what has been said about it, what the community expectation is in relation to those kinds of offences, all those factors in the mix. It's not a bald statement -- HIS HONOUR: Wait a minute, no just come back. Let's go to the penalty. You tell me that the species of offences counts, what is the penalty provided by the parliament. ROBINSON: Twenty years. HIS HONOUR: And/or? ROBINSON: Well a fine. HIS HONOUR: And/or a fine, but I'm to disregard that in all cases? ROBINSON: I don't recall myself saying that your Honour should disregard that. HIS HONOUR: No, but you say the species of offences is such that I really have only one option. Well the parliament doesn't seem to think so. ROBINSON: I say that in relation to the offence and what has been said about it through Clarke and all those cases. HIS HONOUR: But this offence is an offence of trafficking and parliament has said in respect of this offence of trafficking I can fine somebody if I want provided it's appropriate. ROBINSON: Or imprison them and fine them. HIS HONOUR: Or both. If I was dealing with somebody who was a three time seller of – and they're around, a three time seller of two pound lots of heroin for on-sale, that's not this offence but it could fit in s 25A. You wouldn't disagree with that, they were all done in a week. ROBINSON: Certainly. HIS HONOUR: We would be looking at a maximum penalty there and if I thought that he was making or had made money in the past, maybe even a fine as well, I can envisage a situation where you could get both the penalty and the fine. The fact that parliament has made a fine available doesn't mean that I cut that option out of my sentencing armoury if I chose to do it. ROBINSON: No you can't ignore what parliament has said no. HIS HONOUR: And somebody in fact in one of these cases somebody actually got a three thousand dollar fine. ROBINSON: Yes. HIS HONOUR: It's the only one I've sent, but somebody got a three thousand dollar fine. ROBINSON: But what I was looking at was the species of offence through the spectrum of the way it has been considered by Courts, Clarke and all those offences, and what I'm saying is Thompson in that bare statement of s 160(iv) can't be read as a bald statement of principle without taking into account those complexing factors of nature of the charge, nature of the person -- HIS HONOUR: I accept that. What Thompson – Thompson is not a statement of principle in the sense that it applies globally, indeed the second part of that particular (iv) says in some cases there'll be no discount at all such as that big time drug dealer beginning with K whose name I can never remember. ROBINSON: Kalajic (?). HIS HONOUR: I'm going to take the luncheon adjournment otherwise the staff will have something to say. LUNCHEON ADJOURNMENT HIS HONOUR: Trindle is 2002 NSWCCA 364. Yes Mr. Crown. ROBINSON: Your Honour I think I've said pretty much what I was going to say. HIS HONOUR: It's just that you were standing with a book open. ROBINSON: I was just standing looking, but I've said what I think I – I think I've spoken my mind on the question of s 11 so it's a matter for your Honour. HIS HONOUR: I'll hand this down to you because time is fairly of the essence but particularly have regard to paragraphs 57 to 62 of Mr. Justice Smart's judgment. But if you could hand that back to me when you've finished. ROBINSON: I have in fact read Trindle at some point so I am familiar with the proposition that's why I readily agreed with your Honour that there are – there has been development since -- HIS HONOUR: All right. MATTER STOOD DOWN IN LIST" [Note: Mr. Robinson was appearing for the Crown; and Mr. Cairns was appearing for Mr. Elias.] 13 All three of the matters of Mr. Elias, of Miss Kipic and of Mr. Culbert were adjourned part-heard to 12 December 2003. 5 14 On 12 December 2003 all three matters were again listed before Judge Nicholson, sitting this time at Penrith. Mr. Robinson, for the Crown, tendered some further material in each of the three cases; and some written submissions. Some documentary material was tendered on behalf of Miss Kipic. 15 There was, to judge from the transcript, a long and somewhat rambling interchange between his Honour and Mr. Robinson, and between his Honour and counsel for Miss Kipic. 16 Part of these interchanges concerned the possible use of what was constantly described as a "Griffiths remand"; but would more correctly have been described as a deferring, pursuant to section 11 of the Crimes (Sentencing Procedure) Act 1999 (NSW), of sentence. The transcript suggests that, as frequently happens, the interchanges involved Judge and counsel constantly speaking over each other, so that it is not always easy to summarise fairly what actually occurred; but it is clear enough, - [see T 13/14], - that Mr. Robinson put to the Judge in plain terms a submission that a section 11 deferral of Mr. Elias' case would be erroneous in law. 17 This submission touched off the following interchange: "HIS HONOUR: Mr. Cairns in all of the cases where – correct me if I'm wrong, in all of the cases where there has been exceptional circumstances it very rarely relates to the objective criminality, it almost invariably relates to the rehabilitation prospects. ROBINSON; That may well be so. What is it about Mr. Elias that stands out as exceptional that would provide your Honour with a hook to hang on that finding that is so exceptional in his case that he shouldn't fall within Clarke and those cases. HIS HONOUR: Wait a minute, don't change the standard on me, do I have to just find exceptional or so exceptional? ROBINSON: Well exceptional, exceptional. I wasn't meaning to make gradations of exceptional no. My submission is that your Honour may simply be putting off the inevitable for this young man that -- HIS HONOUR: Well I may be. ROBINSON: -- there is nothing – if there was something that was before you in my submission which you could say if this pattern of behaviour continues down the track, if he comes back then there's a real chance of something other than going into custody on a full time basis, but what is it? In my submission there is a hope that he will come back with something. HIS HONOUR: No, not I don't think – for starters s 11 – I remember reading a case called Tindall I think it is." 18 And then, after further discussion about that particular decision: "HIS HONOUR: Now that position has changed with Trindle and Trindle's – Mr. Justice – Acting Justice Smart, as he was or as he now is, but it shouldn't be thought that because he's acting justice he's not experienced. ROBINSON: Certainly. HIS HONOUR: Takes a view, a policy view different to the policy view that Justice Hunt has taken here -- ROBINSON: Except that the position now is that if it is to determine whether or not a longer – a shorter non-parole period and a longer parole period were at issue then that may be something that can be considered yes, certainly, I don't dispute that. HIS HONOUR: So when you say 'Look it's only delaying the inevitable' that was certainly a view that had – and that's not the right thing to do, that certainly is a view that Mr. Justice Hunt – well in fact he actually probably went a bit further than you because he said even if it wasn't the inevitable sentence he's likely to get today, if it was any sentence at all, Mr. Justice Hunt was saying, then the Griffiths Remand is not appropriate but that view has changed as a consequence of s 11. ROBINSON: I accept that yes I accept that. But I indicated on the last occasion that in relation to if your Honour was going to find special circumstances in relation to the non-parole period and parole period on the basis of first time in custody and youth and prospects of rehabilitation I wasn't going to argue against that." 19 Eventually, the discussion turned to the desirability of obtaining up-dated pre-sentence reports for all three of the co-offenders then before the Court. The upshot was a further adjournment to 27 February 2004. 20 The appeal book contains no transcript for 27 February 2004. It is clear, however, that on that date there was yet a further adjournment to 21 May 2004. 21 On 21 May 2004 proceedings commenced with this statement from counsel then appearing for both Mr. Elias and Miss Kipic: "PAISH: Your Honour on the last occasion in February, your Honour enquired towards the end of the proceedings that day whether the offenders would undertake urinalysis. They have on 6 May 2004. I have individual reports for both offenders. I've shown those reports to my friend; he has no objection to their tender. They both indicate nil detection for the range of substances including cannabis, amphetamine, cocaine and heroin. Not under those names but it's – and others." 22 Counsel then made extensive submissions on behalf of Miss Kipic. During their course, counsel submitted, at least as I understand what is recorded at T 11(20)-(45), that this Court, variously constituted, has either drawn back from the principles stated in Clark (supra), or has qualified them in some way because of the effect of the decision in Zamagias [2002] NSWCCA 17. I shall say presently something about that submission. 23 Ultimately, the cases of Mr. Elias and of Miss Kipic were again adjourned to 4 June 2004. 24 On 4 June 2004, or almost 7 months to the day after the matters of Mr. Elias and of Miss Kipic had first been before Judge Nicholson, his Honour finally passed sentence upon the two offenders. 25 In the case of Mr. Elias, the penalties were: · Count 1: Imprisonment for a term of 12 months to commence on 13 August 2004 and to expire on 12 August 2005. No non-parole period was set. · Count 2: Imprisonment for a minimum term of 15 months commencing 13 August 2004 and expiring on 12 November 2005; with an additional term of 3 months to commence on 13 November 2005 and to conclude on 12 February 2006. · Count 3: Imprisonment for 6 months to commence on 13 August 2004 and to expire on 12 February 2005. 26 In the case of Miss Kipic, the penalties were: · Count 1: A 3 year good behaviour bond to commence on 13 August 2004 and to expire on 12 August 2007. · Count 2: Imprisonment for 18 months to commence on 13 August 2004 and to conclude on 12 February 2006. No non-parole period was set. · Count 3: Imprisonment for 6 months to commence on 13 August 2004 and to conclude on 12 February 2005. 27 In the cases of both offenders his Honour stayed the sentences of imprisonment until 13 August 2004. He released both offenders on bail; and he ordered an assessment of the suitability of each offender for home detention. 28 On 13 August 2004 his Honour, having received a favourable assessment in the case of each offender, dissolved in each case the stay of all custodial sentences, and ordered that each such sentence be served by way of home detention. 29 The present Crown appeals propound in each case two particular grounds of appeal. Ground 1 is that the overall effect of the sentences and the accompanying home detention orders: "failed to pay sufficient regard to the objective seriousness of the offences and the need for general and personal deterrence". Ground 2 is that "the sentences do not follow the steps outlined in R v Zamagias". 30 In order to deal with those grounds it is necessary to say something about the relevant facts. The following succinct and helpful statement of facts is not controversial; and is taken from the written submissions of the Crown to this Court: "8. Strike Force 'Tolve' was established to target the supply of prohibited drugs in the Ashfield and Campsie Local Area Commands. It was alleged that each of the Respondents and Culbert were involved with a drug syndicate run by other people principally from a property in Arthur Street, Ashfield. Police obtained telephone intercept warrants and monitored the telephone numbers associated with the persons at the premises. Members of the public rang up orders for drugs using code words and 'runners' were dispatched by vehicle to deliver the drugs. On average there were 75 – 200 calls per day. Both Respondents and Culbert commenced work in the syndicate as runners. 9. In Count 1, Elias, who identified himself in the telephone calls as "Dodger", delivered small quantities of 1% purity methylamphetamine to an undercover police officer in a public car park on 4 occasions during May 2002. The drugs ranged between 0.34 g and 0.51 g in weight. He supplied at least the indictable amounts of methylamphetamine and cannabis in a similar way between 10 May 2002 – 19 August 2002 (Counts 2 and 3). The indictable quantity of methylamphetamine is 5 grams and the indictable quantity of cannabis leaf is 1 kg. He was intercepted making and receiving telephone calls from other members of the syndicate. His Honour was satisfied beyond reasonable doubt that over a three-month period Elias made between 10 – 20 deliveries of methylamphetamine yielding $500 - $1000 and at least $1000 worth of deliveries of cannabis. His involvement was "regular, often daily and he regarded himself 'at work'". His Honour observed, "Elias' overall involvement appears less than that of either Culbert or Kipic" . He answered the telephone calls, collected and delivered small quantities of other people's drugs and used someone else's vehicle to effect delivery, returning the money to the principals. His Honour cited R v Clark (unreported, NSWCCA, 15 March 1990), and, significantly, he was satisfied beyond reasonable doubt that Elias was rewarded for his involvement and that his conduct amounted to the dissemination of drugs to others. 10. Kipic made three deliveries of methylamphetamine to an undercover police officer, either in a public street or public car park, between 3 – 5 June 2002 (Count 1). She was the driver of the delivery vehicle in each case and Culbert, her then boyfriend, was in the front passenger seat. He kept custody of the drugs. Each package was approximately 0.8 g of 1.5% purity methylamphetamine and sold for $50. In Counts 2 and 3, she supplied at least the indictable quantities of methylamphetamine and cannabis over a 2-1/2 month period between June and August 2002. She took telephone calls and began to make solo deliveries on occasions when Culbert was unavailable. She made numerous deliveries on her own on the night shift of 26-27 July 2002. His Honour was satisfied beyond reasonable doubt that she, too, was involved in drug trafficking to others for reward. His Honour assessed her criminality as being less than that of Elias and Culbert in Count 1 but "in counts 2 and 3 she takes a far, far more active role and for two days was managing the operation on the night shift" . He had earlier said he was satisfied she made more than thirty deliveries on her own where she had taken the orders. 11. His Honour reviewed the evidence tendered against Culbert, including that he supplied 40 methylamphetamine tablets on one occasion and took on the more senior work of weighing and packing drugs. There was further background material that he supplied an amount of cocaine on one occasion and the police found quantities of drugs and indicia of drug supply at his premises. His Honour was satisfied beyond reasonable doubt "that Culbert's role in the syndicate was more substantial than either of the other two offenders" . 31 The same written submissions are equally pointed and helpful in connection with the relevant subjective factors. That part of the submissions reads: "12. Elias was aged 19-20 at the time of the offences and 22 when he was sentenced. He had a good relationship with his father and was working for him as a bathroom renovator at the time of sentencing, but had had a difficult relationship with his mother before she left the family. It appears that she evicted him from the house during the time of the offences and he may have been homeless during some of that period. His self-medication of prohibited drugs for depression led to his involvement in the syndicate. He tendered a series of drug test results showing a substantial period of abstinence (apart from one result). At the time of sentencing, he had commenced further studies through TAFE, including welding and metal work, as well as general educational subjects such as writing and English. He had expressed remorse for his offending and his Honour regarded "his positive efforts at rehabilitation as arising out of a change of attitudes which have their foundations in his contrition" . 13. Elias spent 28 days in custody following his arrest until he was granted Supreme Court bail. 14. Kipic was 23 when she committed the offences and 25 at the time of sentencing. She was in a relationship with Culbert at the time of the offences. He introduced her to the syndicate, initially as a driver (as he was disqualified from driving). Her parents separated when she was 8 and she later effectively became a 'nanny' to a much younger step-brother at the expense of her education. She suffered from a nervous break-down at the end of an unsuccessful relationship when she was 21 and eventually moved out to live with Culbert. She used drugs regularly whilst living with him. She had resumed living with her mother and step-brother after being charged, worked at a bistro in Bondi and tendered a clear urinalysis result for one date in May 2003." Grounds 1 and 2 32 The decision of this Court in Clark (supra) was present to Judge Nicholson's mind in connection with the sentencing of Mr. Elias and of Miss Kipic: see, for example, the reference to that decision in paragraph 35 of the remarks on sentence. What that decision establishes is made completely clear in the following extracts from the judgment of Hunt J: "This Court has, on occasions too numerous to mention, emphasised that sentences involving a substantial general deterrence are to be imposed on drug traffickers, and it has indicated that only in exceptional circumstances will a non-custodial order be appropriate. That statement is not, as has been suggested, restricted to those cases in which it has been demonstrated that a profit has been obtained. ………………………. What the statement is principally directed to is the trafficking, the dissemination of drugs to others." 33 That statement of the law has never been overruled by the High Court of Australia, or by another Bench of this Court; and it has not been over-ridden by legislative amendment. Until any one of those things occurs, the statements stand as good law; and primary sentencing Judges must give dutiful effect to them. 34 So much was recognised by Judge Nicholson, as is apparent from the interchanges, earlier herein recorded, in which his Honour expresses frankly a perception that there are features which are strong, but not exceptional, in Mr. Elias' case; and by implication also in Miss Kipic's case. 35 The extraordinary leniency of the sentences ultimately passed and the various accompanying orders ultimately made, seems to me to entail that his Honour concluded that in some way or other exceptional circumstances of the kind contemplated by Clark had in fact been demonstrated. But exactly what circumstances? I have read the lengthy and careful remarks on sentence; and, with all proper respect, I can find no statement identifying circumstances found by his Honour to be exceptional in the Clark sense, and thus to warrant effectively non-custodial sentences. 36 As to Mr. Elias, his Honour found that "his conduct does amount to dissemination of drugs to others". His Honour found that Mr. Elias made, during a three month period, somewhere between ten and twenty deliveries of methylamphetamine; and somewhere in the order of twenty deliveries of cannabis. His Honour was satisfied to the same standard that Mr. Elias was involved in such trafficking on a regular basis; and, at least sometimes, on a daily basis. His Honour found that Mr. Elias' involvement "appears to have been limited to answering mobile phones, collecting or passing small quantities of someone else's drugs and using someone else's vehicle to effect deliveries and returning with someone else's money to give to the syndicate principals". His Honour found that Mr. Elias' "overall involvement appears less than that of either Culbert or Kipic". 37 His Honour recognised that: "An aggravating feature for all offenders is that these offences were committed with little regard for public welfare and with little regard for the harm, loss or damage that their supply of drugs was capable of doing to the community. Each was part of an operation that was sophisticated and designed to minimise risk of detection and maximise sales. The offences were deliberately and calculatedly undertaken as part of an ongoing criminal enterprise." 38 What all of the foregoing findings add up to seems to me to be that Mr. Elias is the kind of drug-related offender of whom Wells J spoke as follows in Le Cerf (1975) 8 ALR 349 at 351: "Where evidence discloses that a convicted person is highly placed in an organization for the importation, distribution, and sale, of drugs, contrary to law, it is, to my mind, obvious that, other things being equal, he must expect condign punishment. Substantial retribution must be exacted from those who deliberately, cynically and greedily seek to profit on a large scale from breaking the law. But again, assuming all other things are equal, it does not follow that a person less exalted in the organization can confidently expect that his punishment will be correspondingly less severe. The ambit of his direct responsibility in deliberate law breaking is, in a sense, less, simply because his authority and role are less important to the organization as a whole, but it remains true that he has knowingly entered into an unlawful conspiracy with persons known and unknown to obtain and distribute drugs, and it is only because persons like him are ready, able and willing to do such a thing that the entrepreneur is able to ply his nefarious trade on a large scale. If there were no middlemen or underlings, there would be no top men in an organization. If an organization is starved of recruits it must collapse. It seems to me to follow that after making all due allowance for the personal circumstances and antecedents of the prisoner, the facts of the particular case, and the need to show mercy as is compatible with the safety of the public, a court should impose such a sentence as will spell out clearly to those minded to establish or continue an unlawful organization for purveying drugs, as well as to potential recruits, the simple truth, that a man who participates in such an organization at any level – I repeat at any level – must expect, and will receive, a heavy penalty. I do not, in saying that, mean to imply that no distinction at all will be drawn between the upper and lower echelons of organized crime. But I wish it clearly to be understood that, given that a particular range of penalties is considered appropriate for those in the upper echelons, there is no inevitable correlation between the standing of an offender who is in the lower echelons and the severity of the punishment that he can expect and will receive." 39 There were undoubtedly subjective matters favourable to Mr. Elias, and properly available to mitigate otherwise just sentences for his admitted criminal offending. But to regard those matters as justifying sentences as extraordinarily lenient as those finally passed upon Mr. Elias is in my opinion sufficient to manifest error in the sentencing process. 40 As to Miss Kipic's case, much the same analysis can be made as in the case of Mr. Elias. In her case, it suffices to note these findings made by his Honour: "On 26 and 27 July 2002, Kipic answered calls and made deliveries during an afternoon/night hours in the absence of Culbert and so far as can be told all other members of the syndicate. Summaries of phone taps tendered demonstrate that Kipic accepted numerous orders and facilitated orders, collected drugs for delivery and made numerous deliveries during this period, as I said many of them on her own. The evidence before me satisfies me Kipic made more than thirty deliveries on her own in circumstances where she had initially taken orders. I am also satisfied she participated with Culbert in making deliveries. I am satisfied, beyond reasonable doubt, that at the very least an indictable quantity of both drugs was supplied. Indeed seven supplies of quantities of methylamphetamine similar to the supplies to the undercover operatives would have been sufficient to reach the indictable quantity." 41 It is relevant that Miss Kipic's offences were committed when she was at liberty on a 12 month bond which she had received in Local Court on 9 May 2003, albeit for driving, and not for drug trafficking, offences. 42 After Judge Nicholson had examined in careful detail what his Honour saw as the relevant objective and subjective features of each of the two cases with which he was dealing, his Honour made these observations: "128. In the case of Kipic and Elias, I rely upon guideline number (iv) announced by the Chief Justice in Thompson and Houlton in para 160 in these terms: "In some cases the plea in connection with other relevant factors will change the nature of the sentence imposed …." 129. So that in each case, the question of whether those offenders will be eligible for home detention can be considered. In each case I have chosen home detention over periodic or some other lesser sentence because the restrictions of liberty on each offender will apply for seven days per week, whereas in periodic detention, the offender's liberty is not restricted or confined for more than two days a week initially, and further into the sentence of periodic detention, restrictions on liberty are even less." 43 The approach thus laid out is, in my respectful opinion, erroneous in at least two significant respects. 44 First, Thomson and Houlton was a guide-line judgment concerning the discounting of a sentence because of a plea of guilty. As the Chief Justice said at paragraph 162: "The purpose of identifying a discount range is to improve the transparency of the process and to alter the wide-spread perception that there is no benefit from an early plea". 45 Judge Nicholson gave effect to the true ratio of Thomson and Houlton by allowing each of Mr Elias and Miss Kipic a top-of-the-range discount in recognition of their respective early pleas of guilty. 46 To move on to a proposition that one of four related components in the guide-line as finally laid down may be treated as weakening the guidance given in a wholly different context by Clark, is in my respectful opinion wholly misconceived. 47 Secondly, the propositions stated in paragraph 129 of the remarks on sentence, expressed as conclusions flowing rationally from a premise stated in paragraph 128, are, in my respectful opinion, a non sequitur from paragraph 128. 48 On at least two occasions differently constituted Benches of this Court have given precise guidance about the way in which a sentencing Judge must approach the possible use of a home detention order. 49 In Jurisic (1998) 45 NSWLR 209, I discussed the matter at pages 246-251. Spigelman CJ was in substantial agreement: page 215C. The other members of that Bench did not find it necessary to decide whether errors of principle, which I had suggested to have been made in the approach taken by that particular sentencing Judge to the matter of home detention, had in fact been made. I do not understand any of their Honours to have differed from the analysis of principle which I offered at pages 246-251. 50 In Zamagias [2002] NSWCCA 17, a Bench constituted by Hodgson JA and by Levine and Howie JJ endorsed the staged approach propounded in Jurisic. 51 I allow, of course, for the fact that sentencing is an art and not a science; and for the proposition, stated by Gleeson CJ in Wong v The Queen [2001] 207 CLR 584 at para 12: "Judges are generally capable of entertaining two or more ideas at one time". Those allowances duly made, however, it seems to me that his Honour's approach to the matter of home detention simply, and on its face, did not comply with the guidance given by Jurisic and by Zamagias. 52 I would uphold Ground 1. Because of what I have already said about Zamagias, I would also uphold Ground 2. Pre-Sentence Delay 53 Mr. Elias was arrested and charged on 20 August 2002. He was in custody, bail refused, until 16 September 2002 when he was granted Supreme Court bail. Thereafter he was at liberty on bail until 4 June 2004, a period of some 1 year and 9 months. He was further at liberty on bail from 4 June 2004 to 13 August 2004, somewhat more than 2 months. In other words, he was at liberty on bail for nigh on 2 years before his sentencing was finally accomplished. 54 Miss Kipic, too, was arrested and charged on 20 August 2002. She was at liberty on bail until 4 June 2004, a period of some 1 year and 10 months; and again until 13 August 2004, somewhat more than 2 months. In other words, she was at liberty on bail for a week short of 2 years before her sentencing was finally accomplished. 55 Such a state of affairs should not have been countenanced by the learned sentencing Judge. At paragraph 136 and 137 of the remarks on sentence his Honour describes the two cases as: "unusual in that the offenders have been on remand for twenty-two months. The remand period is far longer than would have been permitted under a section 11 bail situation"; and later: "Each offender in effect has demonstrated conduct consistent with him or her successfully completing a section 11 bail for nearly two years." [Note: The reference to section 11 is a reference to that section of the Crimes (Sentencing Procedure) Act 1999 (NSW .] 56 Such an approach is, in my opinion, wholly incompatible with clear guidance given by this Court. 57 In Trindall [2002] NSWCCA 364, Smart AJ, with the concurrence of the other members of that Court, said: "The granting of a Griffiths remand is likely to arise for consideration in a relatively small number of cases. Generally, such a remand should not be granted unless there are good reasons for concluding that it is likely to assist the court in determining whether an offender should be sent to gaol or in fixing the length of the sentence or the non-parole period. If the latter be the case, the judge should, as here, make it clear to the offender that he will be going to gaol and that the purpose of the remand is to assist the court in fixing the non-parole period. This Court should not seek to circumscribe the wide statutory discretion given to the sentencing judge." 58 In Palu [2002] NSWCCA 381, Howie J, with the concurrence of the other members of the Court, said: "29. As Smart AJ identified, the discretion conferred upon a sentencing judge by s 11 can be a valuable sentencing tool when used in an appropriate case for the purpose of arriving at a sentence which is just both for the offender and for the community. But the section can only be utilized in a principled way and upon proper material placed before the court otherwise it becomes an instrument of injustice, either by raising false expectations in the mind of the offender as to the sentence which will ultimately be imposed upon him or by becoming the justification for the imposition of a sentence which fails to meet legitimate expectations of the community as to the punishment to be imposed upon the offender. 30. The exercise of the power given under s 11 will inevitably result in delay in the finalisation of the prosecution of the offender. On many occasions, as in the present case, that delay will be substantial. Unless the further delaying of the sentencing of the offender is wholly justified in order to ensure that the sentencing discretion is properly exercised, there will be a miscarriage of justice. Time and again sentencing courts are asked to have regard to the delay in sentencing an offender as a matter of mitigation because of the adverse effects of delay upon the well-being of the offender and the disruption it causes to his or her everyday life. Delay unavoidably results in unfairness: unnecessary delay results in injustice. Steps have been taken throughout the criminal justice process to eliminate unnecessary delay wherever possible. Unless delay in the sentencing of the offender is essential in order to ensure a just result, the court has failed in its duty both to the offender and the community." 59 I agree respectfully with both Smart AJ and Howie J. 60 In my opinion the pre-sentence delay in each of the present two matters was unjustified, and led to a miscarriage of justice by the imposition of sentences which failed to meet legitimate community expectations as to the punishment of drug traffickers. Consequences: Discretions, Orders 61 It will be plain from what I have written thus far that there is, in my opinion, a clear prima facie justification for the intervention of this Court. 62 The learned sentencing Judge made very favourable findings in each case on the very important matter of rehabilitation. There is no reason that I can see to justify this Court's differing from his Honour on that matter. It follows that any intervention in fact by this Court should be qualified by a need to avoid a heavy-handed upsetting of what Mr. Elias and Miss Kipic have thus far respectively achieved in connection with their rehabilitation. It is fair, also, to allow for the length of time for which the shadow of possible imprisonment has hung over both of them; and to give fair credit for compliance to date with the orders made by Judge Nicholson. 63 There is, of course, the need to give fair effect to the well established principles constraining any Crown appeal against sentence. 64 And yet, after all of these considerations have been fairly balanced, I have to say that in my opinion it would be quite wrong to leave matters as they stand. 65 The idea that a de facto section 11 remand can be used in order to generate exceptional circumstances of the Clark kind in drug trafficking cases, seems to me to set at nought years of consistent firmness in this Court in connection with the sentencing of drug traffickers. 66 The idea that home detention would be a suitable way of punishing drug traffickers, when this Court has consistently said that even periodic detention is normally inappropriate in such cases, is also, in my opinion, wholly inconsistent with what this Court has said for years about sentencing drug traffickers. 67 I think that it is fair to say that these views were ventilated at the hearing of the present appeals; and that it was that discussion which led the Court to ask for assistance as to the suitability of Mr. Elias and of Miss Kipic for periodic detention; and as to the availability of appropriate facilities in that behalf. 68 That information is now to hand. Each respondent has been assessed as suitable for periodic detention. Each has signed the documents necessary to permit of this Court's now considering that option. In each case facilities are available and all other statutory requirements are in place. 69 The resulting position is, then, this: i A proper sentence of full-time custody should have been passed upon each count in each indictment. It would have been within the bounds of principled sentencing to have made the sentences concurrent; and to have found special circumstances justifying a longer than normal non-parole period. The sentences which I shall be proposing preserve a significant degree of concurrency of sentence and a non-parole period longer than normal by reason of special circumstances. ii The regime of home detention appears to have been, and to be, beneficial to the two offenders in the sense of promoting their respective rehabilitation. It ought not, therefore, to be simply abrogated. iii A restructured sentencing regime containing elements of both home detention and periodic detention will provide the best available substitute for the full-time custody that ought to have been imposed at first instance. Periodic detention will introduce at least an element of proper full-time custody; and home detention will keep the offenders under efficient monitoring when they are not in full-time custody. iv Any such restructuring is very much an attempt to accommodate the unfortunate and the very difficult practical situation that has resulted from the sentencing miscarriage at first instance. It should in no way be taken as a sentencing precedent in the first instance sentencing of other convicted drug traffickers. v The Court cannot ignore the possibility that such a restructured regime as will be proposed presently is vulnerable to administrative adjustment without reference back to the Court. The Court can, and in my opinion should, express plainly the hope that care will be taken in the relevant administrative quarters not to disturb the overall balance that the present re-sentencing seeks to achieve. 70 I propose therefore the following orders: In the Matter of Elias: [1] Crown appeal allowed. Sentences quashed. [2] Re-sentence the respondent as follows: (a) On Count 1, to imprisonment for a fixed term of 1 year and 3 months to commence on 13 August 2004 and to expire on 12 November 2005. (b) On Count 2, to imprisonment for 2 years and 6 months to commence on 10 December 2004 and to expire on 9 June 2007 with a non-parole period of 1 year and 3 months to commence on 10 December 2004 and to expire on 9 March 2006. (c) On Count 3, to imprisonment for 1 year to commence on 13 August 2004 and to expire on 12 August 2005 with a non-parole period of 6 months to commence on 13 August 2004 and to expire on 12 February 2005. [3] Order that each of the sentences passed in connection with, respectively, Count 1 and Count 3 be served by way of home detention. [4] Order that the sentence passed in connection with Count 2 be served by way of periodic detention. The respondent is to report accordingly at the Periodic Detention Centre at Silverwater Correctional Centre at 8.30 a.m. on Thursday 30 December 2004. In the Matter of Kipic: [1] Crown appeal allowed. Sentences quashed and bond revoked. [2] Re-sentence the respondent as follows: (a) On Count 1, to imprisonment for a fixed term of 1 year and 3 months to commence on 13 August 2004 and to expire on 12 November 2005. (b) On Count 2, to imprisonment for 2 years and 6 months to commence on 10 December 2004 and to expire on 9 June 2007 with a non-parole period of 1 year and 3 months to commence on 10 December 2004 and to expire on 9 March 2006. (c) On Count 3, to imprisonment for 1 year to commence on 13 August 2004 and to expire on 12 August 2005 with a non-parole period of 6 months to commence on 13 August 2004 and to expire on 12 February 2005. [3] Order that each of the sentences passed in connection with, respectively, Count 1 and Count 3 be served by way of home detention. [4] Order that the sentence passed in connection with Count 2 be served by way of periodic detention. The respondent is to report accordingly at the Norma Parker Correctional Centre, Fleet Street, Parramatta at 8.30 a.m. on Thursday 30 December 2004. 71 The Court requests that the relevant administrative authorities give all proper consideration to what is said in paragraph 68(v). 72 HOEBEN J: I agree with Sully J. ********** Last Modified: 12/15/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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