New South Wales Court of Criminal Appeal CITATION: Regina v Purdie [2005] NSWCCA 15 HEARING DATE(S): 01/02/05 JUDGMENT DATE: 1 February 2005 JUDGMENT OF: Grove J at 1; James J at 2 DECISION: Leave to appeal granted. Appeal allowed in respect of non-parole period CATCHWORDS: CRIMINAL LAW - sentencing - supply of prohibited drug - not less than the commercial quantity of cocaine - whether disparity of sentence with that of co-offenders- credit for discrete period of pre-sentence custody LEGISLATION CITED: Crimes (Sentencing Procedure) Act R v Patterson [2001] NSWCCA 316 CASES CITED: Weininger v The Queen (2003) 212 CLR 629 PARTIES: Regina v Shannon Leslie PURDIE FILE NUMBER(S): CCA 2004/2394- G Rowling - Crown COUNSEL: S Odgers SC - Applicant S Kavanagh (Solicitor for Public Prosecutions) SOLICITORS: Paul Kenny and Associates LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 03/11/0149 LOWER COURT JUDICIAL OFFICER: Judge Urquhart QC - DCJ IN THE COURT OF CRIMINAL APPEAL 2004/2394 GROVE J JAMES J TUESDAY 1 FEBRUARY 2005 REGINA v Shannon Leslie PURDIE Judgment 1 GROVE J: I will ask James J to give the first judgment. 2 JAMES J: Shannon Leslie Purdie applied for leave to appeal against the sentence imposed on him in the District Court on 19 March 2004 by his Honour Judge Urquhart Q.C on a charge that between 1 and 13 October 2001 he knowingly took part in the supply of a prohibited drug, being not less than the commercial quantity of cocaine, to which the applicant had pleaded guilty. 3 Judge Urquhart imposed a sentence of imprisonment of five years nine months, commencing on 24 October 2003 with a non-parole period of four years. The maximum penalty for the offence is imprisonment for twenty years and/or a fine of $385,000. Having regard to the date of the commission of the offence, the standard non-parole period for an offence of that kind was not applicable. 4 The applicant was one of three co-offenders, all of whom were sentenced by Judge Urquhart. The other two offenders, Matthew Glen Keller and Anthony Denholm had not pleaded guilty and had been found guilty by a jury after a trial conducted before Judge Urquhart. 5 For the offence of supplying a prohibited drug being not less than the commercial quantity of cocaine, of which he had been found guilty, Keller was sentenced by Judge Urquhart to imprisonment for eight and a half years, commencing on 22 October 2003, with a non parole period of five years four months. For the offence of supplying a prohibited drug being not less than the commercial quantity of cocaine, of which Denholm had been found guilty by the jury, Denholm was sentenced by Judge Urquhart to imprisonment for six years, commencing on 22 October 2003, with a non-parole period of four years. 6 Having regard to the grounds of the application by the applicant for leave to appeal against the sentence imposed on him, it is convenient to summarise the history of the criminal proceedings against the applicant and, to some extent, his co-offenders. 7 The applicant was arrested on 20 June 2002 and was refused bail. He remained in custody until 20 December 2002, when he was discharged at committal proceedings and released from custody. 8 The applicant was informed that an ex officio indictment would be presented against him and on 11 April 2003 he was arraigned on an ex officio indictment on a charge of supplying a prohibited drug being not less than the commercial quantity of cocaine. When arraigned, the applicant pleaded not guilty. He remained at liberty. 9 A joint trial of the applicant, Keller and Denholm was fixed for 23 September 2003. However, the applicant failed to appear at the trial and a bench warrant was issued for his arrest. It appears from Judge Urquhart's Remarks on Sentence in sentencing the applicant that the applicant had suffered an injury while he was overseas, which had precluded him from returning to Australia in time for the trial. It was not suggested in the proceedings on sentence that the applicant had deliberately failed to return in time for the trial. 10 The joint trial of the co-offenders Keller and Denholm proceeded before Judge Urquhart and a jury. At the conclusion of the trial Keller and Denholm were found guilty of the offences charged. 11 The applicant returned to Australia on 24 October 2003, shortly after the jury had returned their verdicts of guilty against Keller and Denholm but before they had been sentenced. 12 The applicant was arrested immediately after he returned to Australia and remained in custody until he was sentenced by Judge Urquhart. On 2 February 2004 he pleaded guilty, when arraigned on the charge on which he was ultimately sentenced, namely, of knowingly taking part in the supply of a prohibited drug being not less than the commercial quantity of cocaine. 13 In his Remarks on Sentence Judge Urquhart summarised the agreed facts of the offence, as set out in a document prepared by an Australian Federal Police officer. His Honour's summary of the facts was as follows: "On 20 September 2001 the Australian federal police arranged for warrants to be issued under the relevant legislation in respect to telephone services used by Keller; a number of conversations between Keller, Purdie and other persons were subsequently intercepted and recorded. On the morning of 9 October 2001, Keller telephoned Purdie and they had a coded conversation. During that conversation Purdie told Keller that it had taken Purdie days and days to hunt up 'that bit of a thing'. Purdie told Keller that it is absolute rocket fuel 'and they made an arrangement to meet on 11 October 2001. Keller in the meantime arranged for a friend of his, Denholm, to travel to Sydney from Melbourne with $40,000 in cash. That cash had been withdrawn by Keller from one of his accounts on 11 October 2001. On 11 October 2001, Denholm arrived in Sydney from Melbourne and booked into a room at a hotel in Sussex Street, Sydney. On the afternoon of that day Purdie telephoned Keller and Keller told Purdie, that Denholm was in Sydney. Shortly thereafter, Purdie again rang Keller because the earlier conversation had terminated when the telephone line dropped out. During this second call, Keller provided Purdie with an alternate telephone number and in doing s9, used a prearranged code. During that afternoon of 11 October 2001, Denholm met Purdie and another person and at that meeting handed over the money which he had brought from Melbourne. He was told to visit a nearby bar. That evening Denholm rang Keller and told Keller he was at a bar; that he had seen Purdie earlier that day and that he expected to 'get the result' the following morning at about 9 o'clock. In the early hours of the following morning: That is at about 12.35 am on 12 October 2001 Denholm telephoned Keller and informed him that he was staying at a hotel and confirmed that he had provided 'them' with the money. It was during that conversation that Keller told Denholm not to return to Melbourne by aeroplane but rather to use the train. From about 9 o'clock in the morning of 12 October 2001, surveillance was commenced in the vicinity of the hotel where Denholm had been staying overnight. That surveillance was conducted by members of the Australian Federal Police. Shortly after 10 that morning Denholm was observed checking out of the hotel and shortly thereafter departed the hotel and was observed not to be carrying a bag. Shortly thereafter he was observed in the vicinity of the Sydney aquarium. Shortly after that, Keller telephoned Denholm and was told that Denholm was 'supposed to be seeing him at 11 but, oh, they have changed the time three times today already'. That clearly was a reference to a time which had been previously arranged for Denholm to obtain the cocaine. As I have already indicated the money had been handed over the day before. Later that morning, there were other observations made of Denholm and at about 10 to midday, Denholm was observed meeting with an unknown male. Both Denholm and that unknown male walked away from those making the observations and subsequently out of their sight with Denholm shortly thereafter to reappear carrying a blue and black backpack. About an hour later Denholm was arrested at Central railway station and was found to be in possession of that same blue and black backpack which was found to contain a compressed block of white cocaine powder which block contained cocaine weighing 505.5 grams of a purity of 67.4 percent. It is estimated that the street value of the cocaine seized was approximately $194.689. During this day, Purdie telephoned Keller and said to Keller that he, Purdie, had 'done the best I could'. And he added 'so, he's got half the job done'. He also told Keller in that conversation that he, Purdie, had to use some of his own money to 'seal the deal' and noted further to Keller that 'he's got to come back and pay the rest of the money and get the rest'. During that conversation, it was clear that the final price for the one kilogram of cocaine was $140 thousand; that Purdie had contributed $20,000; that Keller had already paid $40,000 and that Denholm would have to return with $80,000 in order to obtain the remaining half a kilogram of cocaine". 14 In his Remarks on Sentence Judge Urquhart, after stating the objective facts of the offence and summarising the history of the criminal proceedings, dealt with a number of matters. His Honour noted that the applicant was born on 24 March 1973 and was thirty years old, almost thirty-one, at the time he was sentenced. The applicant was educated to Higher School Certificate standard and had had a number of jobs during his working life. He had a criminal history but the offences had been dealt with by the imposition of fines and recognisances and there were no drug offences in his criminal history. 15 His Honour found that the applicant had a long history of abusing alcohol and drugs and that at the time of committing the offence the applicant had been using a very substantial quantity of cocaine, alcohol and sleeping tablets. 16 His Honour referred to an opinion by a psychiatrist, Dr Roberts, that the applicant's capacity to assess his actions and the consequences of his actions "would have undoubtedly been affected by his state of mind at the time of committing the offence." However, his Honour added that this opinion expressed by Dr Roberts in his report was based on what the applicant had told Dr Roberts and that the applicant had not given any evidence before Judge Urquhart. 17 His Honour found that the applicant had not abused alcohol or any prohibited drug while he had been in custody between June and December 2002 and that he had had the intention of continuing to abstain from substance abuse. However, the applicant had relapsed into substance abuse, when informed that an ex officio indictment would be presented against him. During his further period in custody the applicant had not used alcohol or any prohibited drug. His Honour found the applicant had good prospects of rehabilitation and that it was unlikely that the applicant would re-offend. 18 His Honour noted in his Remarks on Sentence that the Crown did not contend that it could show that the applicant had entered into the criminal enterprise out of a motive of profiting from it. 19 A matter that Judge Urquhart particularly considered in his Remarks on Sentence was the role the applicant had played in the criminal enterprise. At the time of sentencing the applicant, Judge Urquhart had already sentenced Keller, who he had found to have been a principal in the enterprise, and Denholm, who he had found to have been a courier or not much more than a courier. His Honour considered that it was of little assistance to seek to attach some label to the applicant's role, such as that of "facilitator". 20 His Honour found that there was a clear distinction between the criminality of Keller and the criminality of the applicant. His Honour said: "In my view this offender Purdie's role was to find a vendor of cocaine, to negotiate the financial aspect of the sale, to receive the purchase monies from Denholm and pass that money on to the vendor, who was to hand over the drugs to Denholm who was then to deliver the drugs to Keller for on-supply by him". 21 Judge Urquhart rejected a submission made on behalf of the applicant that the criminality of the applicant and the criminality of Denholm were at about the same level. In rejecting this submission his Honour relied particularly on a finding that the applicant was so intent upon the cocaine being delivered ultimately to Keller, that he, the applicant, had provided $20,000 of his own money to enable that to happen. His Honour found that the criminality of the applicant was between that of Keller and that of Denholm. 22 His Honour found that there were special circumstances within s 44 of the Crimes (Sentencing Procedure) Act, in the applicant's age, the absence of any previous convictions that had resulted in custodial sentences and the applicant's participation in various programs while he had been in custody. 23 Towards the end of his Remarks on Sentence Judge Urquhart explained how he had arrived at the sentence he had ultimately imposed. Apart from the plea of guilty and the discrete period of pre-sentence custody, his Honour would have imposed a sentence of seven years three months. By reason of the plea of guilty he reduced that putative sentence to six years three months. He then reduced that putative sentence to five years nine months, to take into account the discrete period of six months of pre-sentence custody in 2002. 24 Two grounds of appeal against sentence were relied upon by counsel for the applicant. These grounds of appeal were:- "1. The applicant has a legitimate sense of grievance arising from the disparity of sentence imposed on his co-offenders. 2. The sentencing judge erred in the way he took into account pre-sentence custody". 25 I will deal with those two grounds of appeal in turn. 26 As for the first ground of appeal, it was contended by counsel for the applicant that there was a lack of proper proportionality between the sentence passed on the applicant and the sentences passed on the co-offenders and, particularly, the sentence passed on the co-offender Keller. 27 A number of submissions were made in support of this principal contention. It was submitted that the sentencing judge had erred in finding that, objectively, the criminality of the applicant lay between that of Keller and that of Denholm and that the criminality of the applicant should have been found to have been about the same as that of Denholm. 28 One matter relied upon in support of this submission was that Judge Urquhart had made a finding that the offence had not been committed by the applicant with a motive of profiting from the offence. However, it would not appear to me that Judge Urquhart actually made an affirmative finding that the applicant did not have a motive of making a profit from his participation in the venture. His Honour merely recorded that the Crown did not contend that it could prove that the applicant had a motive of profit. His Honour went on to observe that (because of the lack of evidence) this was an area which was not capable of being satisfactorily entered. As was held by the High Court in Weininger v The Queen (2003) 212 CLR 629, it may not be possible, because of lack of evidence, to resolve some issue relevant to sentencing, either for or against the offender. 29 His Honour made a finding that the co-offender Keller had entered into the enterprise with a motive of profit making. As regards Denholm, in his Remarks on Sentence in sentencing Denholm Judge Urquhart said there was no evidence before him as to what Denholm had received or was to receive from his participation in the enterprise. In those Remarks on Sentence his Honour expressed the view that there was to be some benefit to Denholm from the venture but his Honour decided that he should not say anything more than that any such profit should be regarded as "quite small". 30 It was submitted that the applicant deserved to be sentenced more leniently, because he, unlike the others, was a user of drugs and at the time of committing the offence his capacity to assess his actions and the consequences of his actions had been affected by the use of drugs. In this regard, counsel for the applicant referred to the part of the report of Dr Roberts to which I have already referred. However, I am not satisfied that the sentencing judge did actually accept this part of Dr Roberts' report. In his Remarks on Sentence, his Honour immediately went on to say: "I mention that aspect of the matter simply and solely to provide some background to this offender at that time. I hasten to add that there is no firm evidence that I have received from the offender and those matters to which I have referred have been presented to Dr Roberts or the author of the presentence report by the offender". 31 It was further submitted on behalf of the applicant that his Honour had made a finding that the applicant had demonstrated contrition, whereas neither of the other two offenders had shown any contrition. 32 The conclusion I have reached, after considering counsel's submissions, is that this Court should not find that his Honour made any error in assessing the criminality of the applicant as lying about midway between the criminality of Keller and the criminality of Denholm. 33 I am further of the opinion that the degree of proportionality between the head sentence on Keller and the putative head sentence which his Honour considered should be imposed on the applicant was within the boundaries of his Honour's sentencing discretion. 34 A number of submissions were made by counsel for the applicant about his Honour's finding of special circumstances and about his Honour's division of the head sentence into a non-parole period and a parole period. 35 As I have already noted, his Honour made a finding of special circumstances in favour of the applicant. In sentencing the other two offenders, his Honour also made findings of special circumstances in favour of them. However, it was submitted by counsel for the applicant that his Honour, although making a finding of special circumstances in favour of the applicant, had still set a non-parole period which was approximately seventy per cent of the head sentence, whereas the non-parole period of the sentence imposed on Keller was 62.75 per cent of the head sentence and the non-parole period of the sentence imposed on Denholm was 662/3 per cent of the head sentence. It was submitted that there was no good reason why the non-parole period of the sentence imposed on the applicant should have been proportionally higher than the non-parole period of the sentences imposed on the co-offenders. 36 Furthermore, if the period of six months pre-sentence custody that the applicant had served was added to the non-parole period of four years, then the period of imprisonment the applicant would necessarily serve was increased to four years six months. His Honour said in his Remarks on Sentence that he had allowed a discount of one year for the applicant's plea of guilty. If the applicant had not pleaded guilty and a proportional part of that year had been allocated to the non-parole period of the sentence passed on the applicant, then the total period the applicant would necessarily have had to serve in custody would have been approximately five years three months, that is four years, plus six months, plus approximately nine months, and would have been almost as much as the non-parole period imposed on the offender Keller, who his Honour had found to have been a principal in the criminal enterprise. 37 In my opinion, it should be accepted that there is some lack of proper proportionality between the sentence passed on the applicant and at least the sentence passed on Keller. It should also be accepted that his Honour only gave the most limited effect to his finding that there were special circumstances, with the consequence that the non-parole period should be less than three-quarters of the term of the sentence. 38 As to the second ground of appeal, it was submitted that his Honour erred in taking into account the discrete period of six months of pre-sentence custody by subtracting the period of six months from the head sentence, before determining the non-parole period. In R v Patterson [2001] NSWCCA 316 Hodgson JA with the concurrence of the other members of the Court, said at para 72: "…it seems to me that, in calculating a non parole period, when credit is given for time previously served in prison, the correct approach would normally be to take the head sentence arrived at before giving credit for that time, work out an appropriate proportion for the non parole period, and then give the benefit of the previous period of incarceration to both periods. That results in a somewhat larger parole period than if one calculates the proportion after one has given credit for the previous period of incarceration". 39 It is unclear whether his Honour followed this approach but it would appear that his Honour did not. The conclusion I have already reached that there was a lack of proper proportionality between the non-parole period of the sentence passed on Keller and the non-parole period of the sentence passed on the applicant is thereby reinforced. 40 In my opinion, leave to appeal against the sentence imposed by Judge Urquhart should be granted and the appeal against sentence should, to a limited extent, be allowed. 41 I would confirm the head sentence of five years nine months imposed by Judge Urquhart. However, in my opinion, the head sentence should be divided between a non-parole period and a parole period in the ratio of 60:40. 42 If the sentencing judge's starting point of seven years three months for the total sentence is retained and if, as the sentencing judge did, a deduction of one year is made for the plea of guilty, one arrives at a figure for the putative head sentence of six years three months. 43 If the putative head sentence of six years three months is then divided into a non-parole and a parole period in the ratio of 60:40, one arrives at a non-parole period of three years nine months. 44 The discrete period of pre-sentence custody of six months should be deducted from the putative head sentence, thus arriving at a head sentence of five years nine months, which was the head sentence imposed by the sentencing judge. The full period of six months of pre-sentence custody should be deducted from the putative non-parole period of three years nine months, thus arriving at a non-parole period of three years three months. 45 Accordingly, in lieu of the non-parole period of four years set by his Honour Judge Urquhart, a non-parole period of three years three months to date from 24 October 2003 should be set. 46 The first day on which the applicant will be eligible for release on parole will be 23 January 2007. 47 GROVE J: I agree with James J. The orders of the Court, therefore, will be as 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. 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