R v Connell [2003] NSWCCA 90

New South Wales Court of Criminal Appeal

CITATION : R v Connell [2003] NSWCCA 90 revised - 02/04/2003 HEARING DATE(S) : 25 March 2003 JUDGMENT DATE : 25 March 2003

JUDGMENT OF : Studdert J at 1; Smart AJ at 33 DECISION : Leave to appeal granted; appeal dismissed.

LEGISLATION CITED : Crimes (Sentencing Procedure) Act, s 32 Drug Misuse and Trafficking Act, s 25A(1) CASES CITED : Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2000 [2002] NSWCCA 518 R v McArthur [2000] NSWCCA 390 PARTIES : Regina v Kelvin John Connell FILE NUMBER(S) : CCA 60228/02 COUNSEL : G.I.O. Rowling (Crown) R.J. Button (Applicant) SOLICITORS : S.E. O'Connor (Crown) D.J. Humphreys (Applicant)

LOWER COURT District Court JURISDICTION : LOWER COURT 01/31/0360 FILE NUMBER(S) : LOWER COURT English DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60228/02

STUDDERT J SMART AJ

Tuesday 25 March 2003 REGINA v KELVIN JOHN CONNELL Judgment 1 STUDDERT J: The applicant, Kelvin John Connell, is seeking leave to appeal against a sentence imposed by her Honour Judge English in the Gosford District Court on 4 April 2002. On that date the applicant adhered to a plea of guilty that had been entered in the Local Court at Gosford to a count of supplying drugs on an ongoing basis between 16 and 20 July 2001. 2 Her Honour took into account a number of matters on a Form 1 and imposed a sentence of imprisonment for four years commencing on 15 March 2002 and expiring on 14 March 2006. Her Honour fixed a non-parole period of two years and six months expiring on 14 September 2004. 3 Section 25A(1) of the Drug Misuse & Trafficking Act provides for a maximum penalty of twenty years imprisonment for this class of offence. 4 The transactions in question were transactions into which the applicant entered with an undercover police operative and they were evidenced in part by conversations between the undercover operative and the applicant, which were recorded by means of a listening device. 5 The first of the dealings was on 17 July 2001 when the applicant supplied the undercover operative with 3.5 grams of amphetamine in return for the sum of $150. There were two further transactions on the following day involving the same undercover operative as purchaser, the same quantity of amphetamine on each occasion and the same purchase price. 6 There followed, on 20 July 2001, a supply by the applicant to the undercover operative of 55 grams of the same drug for the sum of $1600. 7 Following that transaction, the applicant was immediately arrested. He was found to have on his person a rusty brown tin. Inside that tin were two plastic resealable bags containing amphetamine. There was also a rock-like substance wrapped in silver foil. There was also a clear resealable bag containing several small buds of cannabis head. 8 The applicant's car was parked a short distance away and in that there was found a further quantity of cannabis buds in a large clear resealable bag. The applicant had $440 in his wallet and he also had a police style extendable baton in his jacket. 9 There followed a search of the applicant's residence pursuant to a search warrant. The police found ten cannabis plants growing in the garage. They also found a police scanner tuned into the local police channel. 10 The offences concerning each of the items discovered in the rusty tin, in the applicant's jacket, in his vehicle and in his home were addressed pursuant to s 32 of the Crimes (Sentencing Procedure) Act. The sentencing judge was asked to take those matters into account when passing sentence for the principal offence. 11 The indictable quantity of amphetamine as defined in Schedule 1 of the Drug Misuse & Trafficking Act is five grams and the principal offence involved thirteen times that amount. 12 Her Honour addressed the objective gravity of the crime stating: "The objective seriousness of his crime cannot be overlooked. The dissemination of this quantity of drugs amongst drugs users on the Central Coast has the potential for disastrous consequences. Society suffers in a variety of ways with the distribution of drugs and their widespread availability. There is no need for me to enlarge upon the seriousness which the legislature, the courts and the community regard the offenders' crime. His dealings were calculated and it must be seen by the community and by others who may be tempted to engage in similar conduct that this court regards the supply of drugs as serious and if the circumstances are appropriate that salutary punishment will be forthcoming. There is a need for specific deterrence but also a need for rehabilitation." 13 No attack has been made on those remarks, nor indeed, in my opinion, could there be. 14 I turn to the subjective features of this case. 15 The applicant was born on 22 January 1952, so that he was fifty years of age at the time of sentence. He has a criminal record and has committed offences in New South Wales, Victoria and Queensland. The most significant record relates to offences committed in New South Wales. That record related to property offences, offences of dishonesty, drug offences and driving offences. 16 It is to be observed that the last time he was convicted in New South Wales before these offences were committed, was in 1994 and it is to be further observed that he has not been convicted of an offence involving supply before. 17 So far as the applicant's drug use was concerned the pre-sentence report which was tendered indicated that the applicant had been on a methadone programme since 1992. The reason he expressed for being involved in the commission of these offences was set out in the pre-sentence report as being that he had offended to make extra money to impress a daughter from his first marriage, whom he had not seen for more than twenty years and a reunion with her was pending. 18 The applicant's first marriage had ended in divorce in 1976 but at the time of sentence the applicant was in a long term relationship and there were two children of this latter union, aged sixteen and fourteen. 19 So far as the subject offence was concerned, consistent with the explanation the applicant had given for it, the reason was found by her Honour to be that the dealings in question "were motivated by greed rather than need." 20 In his favour was the guilty plea that had been entered in the Local Court. Her Honour accepted as genuine the applicant's expressions of remorse and contrition. Her Honour found special circumstances in consequence of which the non-parole period amounted to five eighths of the overall sentence. In structuring the sentence her Honour expressly had regard to ensuring that the applicant had "a period of supervised rehabilitation to prevent any relapse and re-offending." 21 On the applicant's behalf Mr Button has submitted that the sentence imposed is, in all the circumstances, manifestly excessive, particularly having regard to the early plea of guilty. On the assumption that the judge allowed twenty five per cent discount for the early pleas, the starting point must have been a head sentence of five years and four months. It was submitted that this was too high. 22 Mr Button submitted that the sentence warranted intervention by making some adjustment, not necessarily a large one, to the head sentence and also to the non-parole period. 23 The Court's attention has been taken to statistics. It seems to me that those statistics, however one views them, do no more than demonstrate that this sentence was towards the upper end of the sentencing range. The Crown, in refined statistics, which were provided and which the Court was invited to consider, factored in the matters on the Form 1 and the prior offences of different types. 24 Once again those statistics, based on that additional material, show that the sentence was towards the top of the range, but those Crown statistics seem to me to have too narrow a base to be particularly helpful. 25 Mr Button submitted that whilst amphetamines and their supply were to be regarded objectively as serious, nevertheless, they were not regarded as seriously as heroin. Mr Button put that the courts have demonstrated greater flexibility in fixing an appropriate sentence when the drug concerned was amphetamine than when the drug concerned was heroin. 26 One of the cases referred to in support of that submission in the written submissions was Regina v McArthur [2000] NSWCCA 390. McArthur was a very special case, of course, in which to begin with what prompted the offender was not greed but an endeavour to assist somebody else. Indeed, when one looks at McArthur the circumstances are so vastly different from the present case that I do not find it particularly helpful. 27 Nevertheless, it is important in this case, as in any case, to carefully weigh the objective features and the subjective features. 28 The Crown, for its part, has pointed out there were a number of features of this offence which bore upon the gravity of it and which merited a substantial period in custody. Attention was directed to the circumstance the applicant was operating under a false name and the motivation was greed. 29 The applicant demonstrated, by his conduct on 20 July, a willingness and ability to supply in amounts up to two ounces. The transcript of conversations intercepted indicated that the applicant had a significant number of customers. Moreover, there were the matters to be addressed on the Form 1. They indicated an involvement with illicit drugs not limited to amphetamines. 30 Her Honour, of course, was required to take those matters into account by giving added weight to the need for personal deterrence and the need for retribution for those matters on the Form 1 (Attorney General's application under s37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2000 [2002] NSW CCA 518 paras 40-42. 31 The remarks on sentence do not reveal that her Honour misdirected herself in any way and the submissions advanced on behalf of the applicant do not persuade me that the sentence was manifestly excessive. It seems to me that the sentence could certainly be assessed as being a stern one, but, nevertheless, to have been within the permissible range in the exercise of a sound discretionary judgment. 32 I therefore propose that leave to appeal be granted; and the appeal be dismissed. 33 SMART AJ: I agree. 34 STUDDERT J: The orders of the Court will be those that I have proposed. **********