New South Wales Court of Criminal Appeal CITATION : Regina v Salazar [2004] NSWCCA 13 HEARING DATE(S) : Wednesday 4 February 2004 JUDGMENT DATE : 4 February 2004 JUDGMENT OF : Grove J at 1; Sully J at 24; Bell J at 25 DECISION : Appeal dismissed CATCHWORDS : CRIMINAL LAW - SENTENCE - SUPPLY OF ILLICIT DRUGS (COCAINE) - NO SPECIAL POINT OF PRINCIPLE CASES CITED : R v Simpson 2001 53 NSWLR 704 PARTIES : Regina v Dario Antoneo Salazar FILE NUMBER(S) : CCA 60336/03 COUNSEL : D, Woodburne (Crown) R. Bonnici (Applicant) SOLICITORS : S. Kavanagh (Crown) J. Rea (Applicant) LOWER COURT District Court JURISDICTION : LOWER COURT 02/11/0512 FILE NUMBER(S) : LOWER COURT Davidson ADCJ JUDICIAL OFFICER : - 7 - IN THE COURT OF CRIMINAL APPEAL 60336/03 GROVE J SULLY J BELL J Wednesday 4 February 2004 REGINA v DARIO ANTONEO SALAZAR Judgment 1 GROVE J: This is an application for leave to appeal against severity of sentence imposed by Davidson ADCJ on 24 January 2003 at Sydney District Court. The applicant pleaded guilty to one count of supplying a prohibited drug (cocaine) and asked his Honour to take into account on a Form 1 an offence of like nature. The applicant was sentenced to imprisonment for two years and eight months with a non-parole period of two years. His parole date is 23 January 2005. 2 The facts are not in dispute. On 11 October 2001 the applicant parked his vehicle in Surry Hills and whilst he was at the boot of the vehicle he was spoken to by police who searched it. They found a jewellery bag adjacent to the passenger's seat which contained four small plastic resealable bags containing in each case a quantity of white powder. This was subsequently identified as cocaine with a total net weight of 17.9 grams. This constituted an offence of (deemed) supply taken into account on the Form 1. 3 After arrest the applicant was taken to Surry Hills Police Station and during interview told that a search warrant would be executed at his home in Green Valley. At 2.30 pm on that day the warrant was executed and in the barbeque area at the rear of the house police located what was described as a homemade waterproof PVC container. Within it was a block of white powder. This was subsequently identified as a nett weight of 50.8 grams of cocaine (purity 75 percent). With this drug were found a pink handled teaspoon and resealable plastic bags similar to those which contained the cocaine taken from the boot of the applicant's car when it was at Surry Hills. This quantity found near the barbeque area was the basis of the count charged. 4 The applicant was born on 3 August 1947. He was a native of Colombia where he had been a police officer for some seven years. He had been unemployed in this country since 1984 when he injured his back in an industrial accident. He had a record of offences in this country stretching between 1977 and 1991. Some of these were for offences against the traffic laws including driving with the prescribed concentration of alcohol and driving whilst unlicensed and disqualified. He had convictions for stealing but the only drug matter on his record resulted in recognizances without conviction pursuant to the then s556A of the Crimes Act for possessing and smoking Indian hemp. Also in 1985 he served a period of imprisonment in Queensland for stealing. 5 The learned sentencing judge took the view, favourable to the applicant and which was manifestly open to him, that the record of convictions was not such as would disentitle the applicant to any leniency of which he might otherwise be in receipt. He treated the applicant as being in effect free of convictions for some fifteen years prior to his appearance for sentence. The notice of appeal expresses five grounds rather in the terms of headings and elaborations thereon than in conventional form. It is, however, convenient to deal with them as presented. 6 The first ground is expressed, "miscarriage of justice to the applicant". 7 At the sentencing proceedings counsel for the applicant (who did not appear on the appeal) presented what he described as a written submission. Davidson ADCJ pointed out that this submission contained assertions of fact (including matters relevant to the state of mind of the applicant) which he was not prepared to act upon in the absence of appropriate evidence. There was a lengthy exchange between Bench and Bar concerning which parts of this document would be acceptable as submissions and which parts of it his Honour was not prepared to accept unless the assertions were supported by evidence. There was a third category of material, namely matters which were asserted on behalf of the applicant which were accepted by the Crown for the purposes of sentence. 8 The thrust of submission on behalf of the applicant was particularly directed to his Honour's comment in the course of exchange that he was not prepared to accept that the applicant was contrite and remorseful simply from submission to that effect by counsel. It is put that it was open to his Honour to infer from the evidence overall that the applicant was contrite or remorseful but it was plain that his Honour was not prepared to draw that inference from tangential material and the applicant was unwilling himself to testify to that effect. Of course, the applicant was not bound to give evidence but in making that election he cannot reasonably complain that what he might have said was not found from evidence otherwise. 9 Counsel has extracted several references to remarks by his Honour including an observation that there was nothing before him as to how the applicant became involved in cocaine dealing or where the drug came from. An indication by the presiding judge of his concern about absence of material is not an indication of miscarriage of justice, to the contrary, it is giving to the person appearing for sentence an opportunity to fill the perceived gap should he so desire. Unfairness might spring from the absence of such opportunity but it certainly does not spring from the giving of such an opportunity. 10 Ground 2 is headed "The Pre Sentence Report". The transcript plainly records that counsel applied for an adjournment in order for the author of the pre sentence report to be called and his Honour refused that adjournment. In submissions to this Court it is put that "it may have been possible on examination in court of the parole officer to obtain a far more comprehensive pre sentence report particularly as to the health conditions of the prisoner, his prospects of employment and particularly in relation to assessing special circumstances". 11 That submission ignores the express basis upon which application was made to his Honour. The application arose out of a submission by counsel for the applicant that his Honour ought consider a non-custodial sentence. The pre sentence report recorded that the applicant had been assessed as unsuitable for a community service order or for periodic detention, and in respect of both these, the assessments were said to be "due to health related issues". There was attached to the report a medical certificate of recent date (Tuesday 7 January 2003) in which a doctor had advised that the applicant had been a patient since July 1994 and that he had medical problems which included degenerative disc disease following the work injury some twenty two years beforehand, which caused intermittent low back pain and would be exacerbated by lifting, prolonged standing or walking; an old fracture of the left forearm with restricted rotation of the wrist, and impaired use of the fingers due to tendon damage following a gunshot wound in 1998; chronic asthma and morbid obesity. The doctor stated in categorical terms that his opinion was that the applicant was unfit for physical work. 12 A reading of the exchange between counsel and his Honour shows that counsel's desire in seeking to have the parole officer called was to seek to establish that the assessment of the applicant as unsuitable for non-custodial types of sentence was incorrect. The application was not made on any broader base. Provided his Honour had reached the conclusion that the circumstances of the offence and of the offender needed to be met by a sentence of full time custody it became irrelevant to consider whether or not he may or may not have been fit to undergo other forms of punishment. 13 There was no error in refusing the application for adjournment for the purpose specified. 14 The third ground is headed "Objective Matters and Criminality". The submissions on behalf of the applicant are premised upon an assertion that his Honour must be taken to have treated the applicant as having engaged in actual supply whereas his liability for supply arose out of the deeming provisions of the statute. It is not axiomatic that an actual supply is always more serious than a deemed supply. Every case depends upon its own facts. In any event his Honour found that the applicant had dealt with the cocaine in that he prepared it for direct street distribution. The possession of multiple small amounts in plastic bags at Surry Hills and the possession of a larger quantity at home with similar bags would, to my mind, make the inference that the applicant was preparing the cocaine for distribution irresistible. There was no error in his Honour's finding. 15 It may be observed in passing that the present submission is a challenge against an assessment of head sentence of three years although there was a submission made at the hearing that "the Court would in all the circumstances of this case be likely to impose a head sentence of full time custody not exceeding three years". 16 As above stated, the head sentence was two years and eight months. This had been achieved by the grant of a 10 percent discount for the plea of guilty. It is true that his Honour did not by indication, specify a separate evaluation of the "utilitarian" value of the plea of guilty but that absence does not oblige intervention by this Court. 17 Submission was also made concerning the estimate by prosecution witnesses of the so-called street value of the cocaine. As his Honour observed in exchange with counsel, this street value is not a figure which it is suggested that the applicant would have obtained but rather a value of something illicit ultimately distributed within the community which would provide some material of use in a judgment as to the overall seriousness of offence. At the hearing counsel said that he was simply seeking not to have the judge take the view that the applicant was going to make the specified amount of money out of the offence and he accepted that he would not wish to make submission to the contrary of the approach indicated by his Honour. This ground is not sustained. 18 The fourth ground is headed "Subjective Factors and Special Circumstances". As I have noted, the applicant had not been in employment for many years. He made some money in addition to benefit payments by work in refashioning objects, some of them made of gold. His home was free of encumbrance. These facts were not taken by his Honour to be matters adverse to the applicant, indeed, it is conceivable that he was compensated for the work injury abovementioned and paid for his home from that source. His family status was elaborated as was evidence of despatch of contributions for the support of dependants in Colombia. I am unable to perceive any subjective factor overlooked by his Honour which would have been germane to reduction of the sentence imposed or application of non-parole period. 19 A particular submission was made that his Honour did not make appropriate reference to the absence of special circumstances by him when he applied a non-parole period in terms of the applicable sentencing procedure Act without reduction. It has already been observed that debate about special circumstances has proved to be creative of a significant field of disputation. There is a wide range of considerations capable of constituting special circumstances and as Spigelman CJ observed in R v Simpson 2001 53 NSWLR 704 @ 722: "A failure to 'explain' why the statutory proportion was not varied will not readily be accepted as a basis for an inference that the sentencing judge did not turn his or her mind to the issue." 20 It is true that there was no elaboration in his Honour's remarks about his non departure from the proportion specified in the statute but when assertions of omission of this nature are made it is apt to bear in mind that the power of this Court to intervene on sentence is to be exercised in accordance with the specific statutory requirement that this Court be persuaded that some other sentence less severe than that imposed should have been imposed. 21 Ground 5 is expressed "Sentence manifestly excessive and too much time in custody," and is essentially a pleading of the cumulative effect of the preceding grounds. The rejection of those grounds leaves this ground unsustainable. 22 In my view the imposition of sentence was well within the range of the sound exercise of sentencing discretion. 23 I would grant leave to appeal but dismiss the appeal. 24 SULLY J: I entirely agree. 25 BELL J: I also agree. 26 GROVE J: The order of the Court will be as I have proposed. ********** Last Modified: 02/13/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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.