New South Wales Court of Criminal Appeal CITATION : REGINA v MAESSEN [2004] NSWCCA 160 HEARING DATE(S) : 15 March 2004 JUDGMENT DATE : 15 March 2004 JUDGMENT OF : Tobias JA at 21; Adams J at 1; Smart AJ at 19 DECISION : (i) In respect of the second charge a term of imprisonment of eighteen months commencing 11 February 2003 and ending on 10 August 2004 with a non-parole period expiring 15 March 2004. The applicant to be released today and be supervised during his parole by the Probation and Parole Service; (ii) In respect of the first charge a fixed term of imprisonment of six months to commence 11 February 2003 ; (iii) In respect of the third charge a sentence of six months, the fixed term to date from 11 February 2003; Drug Misuse and Trafficking Act 1985 s25A LEGISLATION CITED : Firearms Act 1996 Sentencing Act 1995 s44 CASES CITED : Pearce v The Queen (1998) 194 CLR 410 R v Thomson and Houlton (2000) 49 NSWLR 383 Regina PARTIES : v William Peter Maessen (Applicant) FILE NUMBER(S) : CCA 60415/03 COUNSEL : R Hulme SC (Crown) M Grogan (Applicant) SOLICITORS : O O'Connor (Crown) S Kavanagh (Applicant) LOWER COURT District Court JURISDICTION : LOWER COURT 02/61/0165 FILE NUMBER(S) : LOWER COURT Urquhart DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60415/03 TOBIAS JA ADAMS J SMART AJ MONDAY 15 MARCH 2004 REGINA v PETER WILLIAM MAESSEN JUDGMENT 1 ADAMS J: The applicant pleaded guilty in the District Court at Coonamble on 26 March 2003 to three charges of supplying prohibited drug, namely, methylamphetamine respectively on 29 June (.74 grams) and 4 June (1.11) grams and on 5 July 2001 (.48 grams). He requested the sentencing judge to take into account three other matters arising from his possession of a small quantity of ammunition that he probably had well over ten years and may well have acquired when he had a firearms licence, a "mini crossbow", which he told police he was not aware that the possession of which was an offence. These offences comprised these charges under the Firearms Act 1996 and the possession of nine grams of cannabis which on all accounts is a very small quantity indeed, all of which were found by police when the premises were searched following the offender's arrest. 2 The offender was sentenced to three concurrent terms of two years nine months' imprisonment on each charge, commencing on 11 February 2003, with a non-parole period of one year and nine months. When paroled he was ordered to accept the supervision of the Probation and Parole Service. The applicant seeks leave to appeal to this Court upon the ground that his sentences were excessive. 3 When the applicant was arrested he denied involvement in the offences but otherwise pleaded guilty at the first practical opportunity. He was initially charged under s25A of the Drug Misuse and Trafficking Act 1985 for which offence he was committed for trial. 4 Considered separately the quantity of drug supplied was the indictable quantity but less than a small trafficable quantity as defined by the drugs legislation. As a practical matter the applicant did not have the opportunity of pleading guilty to the individual supplies until he was indicted and the charge under s25A not pressed by the Crown. It is of great significance in the circumstances of this case, in my view, that these charges could and would have properly been dispensed of summarily with consequences that the maximum term of imprisonment in respect of each charge would have been two years' imprisonment, rather than fifteen years' imprisonment. 5 In his evidence before the learned sentencing judge the applicant expressed regret for his offences. His Honour said that whilst this contained "a modicum of sincerity, there is more than a modicum of sorrow for being caught". The learned trial judge took account of the strong Crown case in assessing an overall discount of 18.25 per cent referable to the utilitarian factor identified in R v Thomson and Houlton (2000) 49 NSWLR 383. It is obvious that his Honour considered that special circumstances justified a reduction from the non-parole period calculated in accordance with the formula specified in s44 of the Sentencing Act 1995. 6 Mr Hulme SC for the applicant submitted firstly that the learned sentencing judge erred in not extending the full benefit of the available discount range specified in Thomson and Houlton (49 NSWLR at 418) per Spigelman CJ – "In my opinion the appropriate range for a discount is from 10-25 per cent. The determination of where, within such a range, the discount should fall in a particular case is a matter for the discretion of the sentencing judge. There are however two circumstances which will generally affect the appropriate level of discount in a particular case: (i) The time at which a plea is entered. A plea entered at committal has a more significant utilitarian benefit than a plea entered at first listing, which in turn has the greater benefit than a plea entered at the beginning of trial. (ii) The complexity of the issues about which evidence will have to be fathered and adduced affects the value of the plea. The greater the difficulty of assembling the relevant evidence and the greater the length and complexity of the trial, the greater the utilitarian value of a plea. The top of the range would be expected to be restricted to pleas at the earliest possible opportunity and should not be given, save in an exceptional case, after the matter has been set down for trial. A discount towards the bottom of the range is appropriate for late pleas, for example, on the date fixed for trial, unless there are particular benefits arising from the prospective length and complexity of the trial. Rare cases involving exceptional complexity and trial duration may justify a higher discount. In some cases no discount is appropriate at all. In some cases the "discount" will be reflected in a step down in the hierarchy of sentencing options." This discount is not to be confused with any allowance as part of the subjective factors in the case arising from an offender's remorse and contrition, nor with factors relating to the strength of the Crown case as distinct from its complexity or difficulty. 7 The Court's judgment frankly emphasised the public interest considerations that underlay the requirement, in an appropriate case, that the utilitarian discount be separately identified and expressly applied. It is clear that in this case there was no good reason for not giving both the utilitarian discount and the allowance for remorse and contrition. In the nature of things, of course, the weight given to an offender's regret will be incommensurable. Properly considered, it is but part of the subjective features of the case, all of which need to be considered together when assessing the appropriate sentence and before applying the utilitarian discount. It will almost never be right to isolate this factor and accord it any particular significance and there is no logical reason for joining it with the utilitarian discount, which is an entirely objective matter. The reason why these two quite disparate factors may be "mixed" is that they are connected to the plea of guilty. That fact, however, should not obscure their essentially different character. 8 In this case the learned sentencing judge was, with respect, entitled to think that the applicant's expressions of regret indicated only a limited degree of actual remorse. Mr Hulme SC does not submit otherwise. However, he submits that the allowance given to the applicant for the utilitarian benefit of his plea fell beneath that which should have been accorded to him by virtue of the considerations for which R v Thomson and Houlton is authority. 9 It is, of course, a matter for the discretion of the sentencing judge what discount is appropriate in the particular circumstances of each case. But the discretion is to be exercised judicially, with due regard to the reasons for the discount as articulated by this Court. This present case was an ordinary case which presented, except for one factor which I will come to in a moment, no unusual elements calling for any departure from the usual outcome. The learned sentencing judge articulated no reason for departing from that outcome except, as I see it, by referring to the limited extent of remorse and the strength of the Crown case, factors which were irrelevant. 10 In this case there was the additional public interest in avoiding the necessity for police officers to give evidence. It seems to me that there was no reason for reducing what would otherwise have been a discount at the upper end of the 10-25 per cent figure specified by the Chief Justice. 11 Consistency and coherence of sentencing is an important element of the administration of justice. As has been often said, sentencing is not a purely logical exercise, it is very much a matter for judgment to weigh matters which are necessarily incommensurable. However, some matters are relatively clear and the utilitarian discount is one of them in the ordinary case where the plea is obtained on the earliest practicable occasion. Where, as here, the offender does not admit the offences when first questioned, it may be that his or her cooperation will be less than that which should attract the full discount of twenty-five per cent, although this is not an invariable rule by any means. For example, the avoidance of a lengthy trial or the embarrassment or distress of witnesses may be countervailing considerations. However, the discount ultimately given should not smack of some capricious departure from the usual measure, lest the public policy which it reflects be undermined. 12 In this case I have, with respect, come to the conclusion that the learned sentencing judge incorrectly reduced the appropriate discount by the consideration that the applicant's remorse was slight, though not insignificant. If it was right to give the applicant some benefit from such remorse he did exhibit, and I cannot see why this was not a subjective feature of the case, that should have affected the sentence to some degree, the reduction of the otherwise apparently appropriate utilitarian discount is inexplicable. With respect it seems to me to be also inappropriate and bespeaks error. 13 The applicant's record discloses a number of traffic offences and what is agreed to be a minor drug offence for which he was fined. The matters taken into account on the Form 1 were relatively trivial and would ordinarily attract only a fine. In my view, the learned sentencing judge was right not to increase the sentence that he thought otherwise appropriate in this regard. 14 The objective seriousness of the offences was very much at the lower, if not the lowest, end of the scale. There were three offences, however, not only one, and also the applicant was at the beginning of a bond for good behaviour imposed in respect of the traffic offences. These were features that took this matter from the lowest end of the scale. 15 It seems to me very likely (or at least there was no basis upon which the judge could have drawn the opposite conclusion) that the applicant would not have supplied any amphetamine had he not been requested to do so by his friend. There was no evidence that justified a conclusion that he was standing in the marketplace to supply amphetamines and these three examples were part of a continuing trade. Such an inference required proof beyond reasonable doubt, which it is not even suggested was established either below or in this Court. These charges represented but three incidental occasions that arose from the instigation of the police. 16 In passing sentences in the way he did his Honour did not distinguish between the very different legal and culpable character of the offences. There can be no doubt that supplying the small quantity of drug will almost invariably be, and certainly in this case was, less serious than the supply of the larger. There was no basis for considering, as his Honour did, that the supply of each of these drugs warranted a sentence of the same length. Indeed, his Honour said that he was sentencing him in effect for all charges because of what he said was the common thread that they demonstrated. This was, if I may say so respectfully, a failure to follow the injunction of the High Court of Australia in Pearce v The Queen (1998) 194 CLR 410 that requires for good reason, quite apart from legal principle, attention to be focused on the criminality of the individual charges for which a person is being sentenced, the question of totality being addressed by adjusting the extent of accumulation or concurrency of the sentences thus imposed. 17 I am of the view that the sentence passed below was indeed manifestly excessive. I would grant leave to appeal, allow the appeal, quash the sentences passed at first instance and substitute sentences as follows – (i) In respect of the second charge I would propose a term of imprisonment of eighteen months commencing 11 February 2003 and ending on 10 August 2004 and in respect of that sentence impose a non-parole period expiring 15 March 2004. In considering the non-parole period I find that there are special circumstances sufficient to adjust the statutory calculations to which I have already referred. I would order that the applicant be released today and be supervised during his parole by the Probation and Parole Service. (ii) In respect of the first charge, namely, the supply of .74 grams of prohibited drug I would impose a fixed term of imprisonment of six months to commence 11 February 2003. (iii) In respect of the third charge, .48 of a gram of a prohibited drug, I would impose a sentence of six months, the fixed term again to date from 11 February 2003. The sentence which I impose takes into account the pre-sentence custody of the applicant. 18 SMART AJ: On any view the sentences imposed by the learned sentencing judge were manifestly excessive. The court was dealing with the quantities .74 grams, 1.11 grams and .48 grams respectively. These are very small quantities. Even assuming that the judge, as he stated, took into account the offences on the schedule in relation to the first count involving the supply of .74 grams this sentence is manifestly excessive. Allowing for the accelerated criminality of repeated offences the sentences on the second and third counts, in respect of 1.11 grams, trafficable quantity, and .48 grams, small quantity, were manifestly excessive. 19 One could not justify in relation to the latter two matters imposing sentences of a length of two years and nine months with a non-parole period of one year nine months. For these reasons I would make orders in the terms proposed by Justice Adams. 20 TOBIAS JA: I agree with Justice Adams and Justice Smart that the sentences imposed by the sentencing judge were manifestly excessive for the reasons they have given. I agree with the orders proposed by Justice Adams and those orders will be the orders of this Court. ********** Last Modified: 06/10/2004 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.