Esquilant v Regina [2005] NSWCCA 421

New South Wales Court of Criminal Appeal

CITATION: Esquilant v Regina [2005] NSWCCA 421

HEARING DATE(S): 02/12/2005

JUDGMENT DATE: 2 December 2005

JUDGMENT OF: Grove J at 1; Sully J at 2; Howie J at 3

DECISION: Application for leave granted, appeal dismissed.

CATCHWORDS: Criminal Law - Sentencing - Ongoing supply of drugs - extent to which other uncharged supplies may be taken into account.

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985 - s 25A

De Simoni v The Queen (1981) 147 CLR 383 R v Smiraldo (2000) 112 A Crim R 47 CASES CITED: R v Smith [2002] NSWCCA 278 R v Hoon and Puna [2000] NSWCCA 137

PARTIES: Mischa Esquilant v Regina

FILE NUMBER(S): CCA 2005/2034

D. Arnott SC - Crown COUNSEL: C. Davenport SC - Applicant

S. Kavanagh - Crown SOLICITORS: Ford Criminal Lawyers - Applicant

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/0637

LOWER COURT JUDICIAL OFFICER: Williams DCJ

IN THE COURT OF CRIMINAL APPEAL 2005/2034

GROVE J SULLY J HOWIE J

FRIDAY 2 DECEMBER 2005 Mischa ESQUILANT v REGINA Judgment 1 HOWIE J: The applicant pleaded guilty in the Local Court to a charge of ongoing supply of cocaine contrary to s 25A of the Drug Misuse and Trafficking Act. This is an offence for which relevantly a maximum penalty of 20 years imprisonment is prescribed. The applicant was committed for sentence to the District Court and adhered to his plea of guilty before Judge Williams (the Judge). He was sentenced to a term of imprisonment comprising a non-parole period of 12 months and a balance of term of 15 months. He is to be released to parole on 11 July 2006. The applicant seeks leave to appeal against that sentence. 2 There was no dispute as to the facts of the three acts of supply of cocaine that gave rise to the offence charged. On 14 January 2004, 27 January 2004 and 4 February 2004, the applicant supplied about a gram of cocaine on each date to an undercover police operative for the sum of $250. He was arrested immediately after the third supply. However, there was a significant dispute between the Crown and the applicant as to the circumstances in which those supplies occurred and, in particular, as to the extent of the applicant's involvement in the supply of drugs in the community generally. The sentencing hearing took place over almost two days in the course of which the undercover police officer and the applicant gave evidence. 3 The applicant is aged 27 years. He has no prior criminal record. He is a student studying political science as part of a degree in Arts. At the time of his arrest he lived with his girlfriend in an apartment in Bondi that was owned by her father. The Judge accepted that the applicant was a heavy user of cocaine and cannabis. 4 There was in evidence a report of Dr Whitten, a psychiatrist who had been treating the applicant as a result of his use of drugs. The applicant told him that he first started using cocaine at the age 23 and cannabis from the age of 21. He said that he had been supplying drugs to friends for three years before his arrest and saw it as a way of occupying his free time and as a way to socialise with others. 5 The applicant had a disturbed childhood because his father was an international banker and the family were constantly travelling. He told Dr Whitten that he attended 16 different schools in 12 years. His parents' marriage was marked by his father's absence and domestic violence. When the applicant was aged 10 his father disappeared and the applicant was left as the carer for his mother who was psychologically unstable. His father died when the applicant was aged 16. His mother resides in Austria and the applicant has a brother in Canada. The applicant returned to Australia at the age of 20 and commenced his studies. However, because of financial problems experienced by his family, he ceased studying after 18 months. The applicant then had a series of jobs until returning to his studies in 2003. 6 Dr Whitten diagnosed the applicant as suffering from depression and a panic disorder and he was placed on a course of anti-depressant medication. He believed that the applicant's prognosis was good, if he did not receive a custodial sentence, as the applicant intended to complete his studies and continue with his treatment. Dr Whitten was of the opinion that the applicant "bought" friends by supplying drugs because of his lack of self-esteem. He did not believe that the applicant supplied for profit but rather that the friends reimbursed the applicant for the cocaine supplied and that he did not supply outside his circle of friends, 7 There is only one ground of appeal and it relates to the use of a finding that the Judge made about the applicant's supply of cocaine to his friends and associates. It is not contended that it was not open for the Judge to make that finding, and indeed the applicant admitted as much during the course of his evidence and to Dr Whitten. Rather it is submitted that the Judge erred in taking into account that finding as an aggravating feature of the offence. 8 A number of issues in dispute between the Crown and the applicant were resolved in the applicant's favour. For example, the Judge was not prepared to find that a large sum of cash in denominations of $100 and $50 notes found by police in the applicant's premises was the proceeds of drug supplies generally. Nor was the Judge prepared to find that the applicant used scales and a calculator found in the premises for the purpose of supplying drugs. However, the Judge was not prepared to accept that a filofax found in the premises and that contained a list of names and sums of money written against each name was a record of amounts of money that the applicant had loaned to various people. Nor was he prepared to find that the undercover officer had pressured the applicant into supplying drugs to her. 9 The Judge made the following finding during the course of his sentencing remarks: