New South Wales Court of Criminal Appeal CITATION: R v Nimmo [2005] NSWCCA 295 HEARING DATE(S): 29/08/05 JUDGMENT DATE: 29 August 2005 JUDGMENT OF: Spigelman CJ at 28; Ipp JA at 1; Adams J at 29 DECISION: (1) Application for leave to appeal granted (2) Appeal dismissed. Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 21A(3) , 44(2) LEGISLATION CITED: Criminal Appeal Act 1912 (NSW), s 6(3) Drug Misuse and Trafficking Act 1985 (NSW), s 25(1) R v Simpson [2001] 53 NSWLR 704 CASES CITED: R v Fidow [2004] NSWCA 172 PARTIES: Regina v Richard Burton NIMMO FILE NUMBER(S): CCA 2004/2870 W Dawe QC - (Crown) COUNSEL: P A Rowe - (Appellant) S Kavanagh - Solicitor for Public Prosecutions (Crown) SOLICITORS: Glen Walters & Co - (Appellant) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/21/1035 LOWER COURT JUDICIAL OFFICER: Knight DCJ IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 2004/2870 SPIGELMAN CJ IPP JA ADAMS J Monday, 29 August 2005 REGINA v Richard Burton NIMMO Judgment 1 IPP JA: This is an application for leave to appeal and, if granted, an appeal against the sentence imposed by Knight DCJ for the offence of supply prohibited drug on an ongoing basis in breach of s 25A(1) of the Drug Misuse and Trafficking Act 1985 (NSW). 2 The offence charged was that between 1 April and 29 April 2003 the applicant, on three or more separate occasions during a period of thirty consecutive days, supplied a prohibited drug other than cannabis, namely crystalline methylamphetamine, for financial or material reward. 3 Knight DCJ, in respect of this offence, sentenced the applicant to a term of imprisonment of three years and four months commencing on 3 August 2003 and expiring on 2 December 2006 with a non-parole period of two and a half years commencing on 3 August 2003 and expiring on 2 February 2006. 4 At the same time that his Honour imposed this sentence he revoked a community service order imposed upon the applicant for the offence of demand money with menaces that he had committed on 5 December 1998. His Honour sentenced the applicant on the demand money with menaces charge to imprisonment for a fixed term of three months commencing from 4 March 2003 (the date upon which he entered into custody) and expiring on 3 August 2003. There is no appeal from that sentence. 5 The grounds of appeal are as follows: (1) The starting point used by his Honour when calculating the sentence was too high, having regard to his Honour's finding in respect of the objective seriousness of the offence. (2) His Honour gave insufficient weight to those factors indicating that there were special circumstances which justified a longer than usual period of parole. (3) The sentence is manifestly excessive. 6 The first ground in my view is unarguable. His Honour did not refer in his reasons to any starting point he used. The applicant seeks to infer a starting point from the sentence imposed and submits that the sentence itself is indicative of too high a starting point. This reasoning is circular and the ground is dependent on the validity of grounds 2 and 3. I shall therefore focus on those grounds. 7 The evidence showed that in the period the offence was committed the applicant supplied crystalline methylamphetamine to various customers on eleven separate occasions. The price range of those transactions was between $50 and $150. Analysis of white crystal substance found during a search of the applicant's residence revealed crystal amphetamine with a total weight of 63.39 grams and a purity of eighty-five per cent. 8 The police located scales and other drug paraphernalia in the applicant's bedroom and a further 0.09 grams of crystalline methylamphetamine with a purity of eighty-five per cent were located at the rear of the applicant's premises. 9 These matters went to establishing the offence under s 25A(1). They were also relevant to the nature of the supply; that is, being part of an organised criminal activity. The evidence was, in addition, relevant to matters of deterrence and rehabilitation. There is no suggestion that his Honour took these matters into account in any different or inappropriate way. 10 There was evidence that the applicant and another had had numerous telephone calls discussing drug amounts, prices and drop off locations. 11 In assessing the criminality involved in this offence his Honour said that he would regard the offence "as falling fairly and squarely in the middle of the range of criminality for offences of this nature". The applicant does not dispute this finding which has a significant bearing on the sentence imposed. 12 The applicant pleaded guilty at the earliest reasonable opportunity. Knight DCJ accorded a sentencing discount of twenty-five per cent for the utilitarian value of the plea. His Honour gave a further discount because of the remorse and contrition demonstrated by the plea and the overall discount accorded by him was one third. 13 At the time of the offence the applicant was twenty-three years of age. The judge noted that he had a criminal record dating from the time he was eighteen years old. His Honour observed that the record was not very substantial but it did include offences of resisting officers in the execution of their duty, demanding money with menaces and assault occasioning actual bodily harm. Despite his criminal record, the applicant had not previously been in custody and the judge took this into account. 14 The applicant was convicted on 22 May 2002 for the offence of assault occasioning actual bodily harm and he was placed on a good behaviour bond pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) for a period of twelve months in respect of this offence. Thus, at the time the applicant committed the offence the subject of this application he was on conditional liberty subject to the bond and the offence constituted a breach of the bond. 15 As further aggravating factors the judge took into account that the injury caused by the offence was substantial. He observed that it was well known that the drugs cause considerable problems in the community. The offence was committed while the applicant was on conditional liberty in relation to an offence and further, the offence was part of a planned or organised criminal activity. 16 His Honour proceeded to consider all the appropriate mitigating factors under s 21A(3) of the Crimes (Sentencing Procedure) Act 1999. 17 The applicant left school at the age of seventeen without completing the Higher School Certificate but managed to obtain employment as a labourer and had a fairly stable work history thereafter. He had some periods of unemployment but in general, his Honour noted, his work history was a good one and the applicant was in full time employment at the time he was arrested. A letter was tendered to the judge indicating that the applicant would be re-employed on his release from custody. The applicant had strong family and community support and these matters were all taken into account by his Honour. 18 The applicant was a user of illicit drugs and the drug the subject of the charge. Not only did he deal in the drug but used it himself and at least part of his dealings was to enable him to continue to use it himself. His Honour observed that, while the applicant had expressed some desire to avoid further use of the drugs, he had been reluctant to admit that he had any significant problem with them and had shown no real interest in coming to grips with his drug problem. 19 The judge said that he would take into account that the applicant had reasonable prospects of rehabilitation and he had already taken into account the remorse shown by the applicant for the offence and the plea of guilty. 20 There was a delay of almost twelve months between the date of the applicant's arrest and the date of his sentencing and his Honour observed that this would have added to the hardship experienced by him. This hardship would have been aggravated by the applicant being isolated from his family during this period. 21 In essence, the reasoning of Knight DCJ was unexceptionable and it is not suggested that he committed any error of principle. 22 The applicant submits that because of his relative youth, the fact he had never previously been imprisoned, that he was selling drugs at least in part to finance his own addiction and that at the very least there were reasonable prospects of rehabilitation, his Honour should have found that there were special circumstances within the meaning of s 44(2) of the Crimes (Sentencing Procedure) Act 1999 justifying a longer than usual period of parole. The principles governing the exercise of a discretion under s 44(2) are set out in R v Simpson (2001) 53 NSWLR 704 by Spigelman CJ. At 718 the Chief Justice observed that the non-parole period must reflect the criminality involved in the offence, including its objective gravity, and the need for general deterrence. In my view, by this criterion, the sentence imposed was relatively mild. 23 In R v Fidow [2004] NSWCCA 172 at 18, Spigelman CJ at para 22 said that he was stating the obvious when observing: "Simply because there is present in a case a circumstance which is capable of constituting a 'special circumstance' does not mean that a sentencing judge is obliged to vary the statutory proportion. To repeat what was said in Simpson at 68, it is necessary that the circumstances be sufficiently special to justify a variation." 24 In my opinion, the circumstances in this case do not come anywhere near a category of special. The quality of "special" connotes something unusual or extraordinary and the matters relied on by the applicant are by no means unusual. In saying this I take into account the fact that the sentence of three months for the offence of demand money with menaces was accumulated to the sentence imposed by his Honour but in my view, that accumulation does not constitute a special circumstance. 25 I am not satisfied, within s 6(3) of the Criminal Appeal Act 1912 (NSW), that another sentence in respect of the non-parole period should have been passed and I would reject the second ground of appeal. 26 The third ground is that the sentence was manifestly excessive. Once it is accepted that the offence was in the middle of the range of seriousness, I do not think it arguable that the sentence was manifestly excessive. It was plainly well within his Honour's discretion. It was open to the judge to have increased the non-parole period. He did not do so but that essentially was a discretionary matter that he was entitled to exercise in the way that he did. 27 In the circumstances, I would grant the application for leave to appeal but dismiss the appeal. 28 SPIGELMAN CJ: I agree. 29 ADAMS J: I agree with the orders proposed. I wish to add some comments of my own. 30 The applicant was a young man at the time of these offences. He had spent twelve months on remand in a maximum security prison away from his family before he came to be sentenced. It is clear that he had a drug problem which was unresolved. 31 Whilst I respectfully acknowledge the emphatic rejection by Ipp JA of the submission that special circumstances were shown here, I am of the view that indeed there were special circumstances. Whether those special circumstances justified a departure from the statutory calculus is a separate question and in my respectful view must be kept separate. 32 In this case, the learned sentencing judge considered that the circumstances did not justify departure. Merely because the Court of Criminal Appeal considers that they might have justified departure or even if this court considered that they did justify departure, that is not sufficient. An applicant must show that it was wrong for the sentencing judge not to have departed from the proportion. In this case, although I am troubled by the conclusion of the sentencing judge upon this point, I would not be prepared to go so far as to say that his Honour was wrong in the exercise of his discretion. 33 The next matter which I find troubling is the way in which his Honour dealt with the charges that he was considering. It was not contested that in the relevant period the applicant had in fact sold crystalline methylamphetamine, and I interpolate this is a dangerous drug, on eleven occasions. It could not be doubted that doing so in that period was a substantial dealing. When the applicant was arrested police searched his premises. The learned trial judge described what was discovered on that search in the following language: "I point out that if indeed you had supplied 633 individuals with $50 drug deals of crystalline methylamphetamine that would have meant a total receipt by you of $31,650." 34 His Honour also said, in dealing with s 21A(2)g) the following: "It is well-known that those drugs cause considerable problems in the community and I consider that the scale of dealing that was involved here has the consequence that the damage as a result of these offences would be considerable." 35 His Honour's language is capable of being read as limited to the scale of dealing disclosed in the thirty day period, namely, as involving eleven distinct supplies. At the same time, the emphasis and prominence given by his Honour to the drugs found on the search and the fact that his Honour did not specifically state how he brought that material into account leads me to a concern whether the applicant was being sentenced also for the drugs that were discovered. Part of my concern is that I regard the sentence here or at least the starting point for his Honour's sentence, (before giving the discounts) as high, although again I would not conclude that it was outside his Honour's proper sentencing range. 36 Certainly that material was relevant for a number of reasons which have already been referred to by Ipp JA. I would add that it also shows that, had the applicant not been arrested, it is almost certain he would have continued his unlawful activity. The breaking of the law for profit is rightly treated as serious and warrants substantial punishment. 37 Subject to those remarks, I otherwise respectfully agree with the judgment of Ipp JA. 38 SPIGELMAN CJ: The order of the court is that leave to appeal is granted, but the appeal is dismissed. ********** 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.