New South Wales Court of Criminal Appeal CITATION: Regina v Brett Raymond Walker [2005] NSWCCA 109 HEARING DATE(S): 29 March 2005 JUDGMENT DATE: 31 March 2005 JUDGMENT OF: Giles JA at 1; Hoeben J at 2; Johnson J at 3 DECISION: 1. Leave to appeal granted; 2. Appeal dismissed. CATCHWORDS: Sentencing - supplying prohibited drugs - whether impermissible use of prior criminal record as aggravating factor - appropriate sentence and non-parole period. Drug Misuse and Trafficking Act 1985 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 Veen v The Queen (No. 2) (1988) 164 CLR 465 R v Johnson [2004] NSWCCA 76 R v Wickham [2004] NSWCCA 193 CASES CITED: R v Shankley [2003] NSWCCA 253 R v Berg [2004] NSWCCA 300 Attorney General's Application under s.37 Crimes (Sentencing Procedure) Act 1999 (No. 1 of 2002) (2002) 56 NSWLR 146 Regina (Respondent) PARTIES: Brett Raymond Walker (Applicant) FILE NUMBER(S): CCA 2004/3294 Mr C Smith (for the Applicant) COUNSEL: Mr G Rowling (for the Respondent) Mr S E O'Connor (for the Applicant) SOLICITORS: Mr S Kavanagh (for the Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 03/31/0447 LOWER COURT JUDICIAL OFFICER: Coolahan DCJ IN THE COURT OF CRIMINAL APPEAL 2004/3294 Giles JA Hoeben J Johnson J 31 March 2005 Regina v Brett Raymond Walker Judgment 1 Giles JA: I agree with Johnson J. 2 Hoeben J: I agree with Johnson J. 3 Johnson J: The applicant, Brett Raymond Walker, seeks leave to appeal against sentences imposed by Coolahan DCJ at the Taree District Court on 28 May 2004 with respect to two counts of supplying a prohibited drug contrary to s25(1) of the Drug Misuse and Trafficking Act 1985. The maximum penalty for an offence under s25(1) is imprisonment for 15 years or a fine of $220,000.00: s32(1)(c) and (g) Drug Misuse and Trafficking Act 1985. 4 Both offences were committed at Forster on 25 June 2003. On the first count, which alleged the supply of a prohibited drug, namely 3,4-methylenedioxy-methylamphetamine, commonly known as ecstasy, his Honour fixed a non-parole period of two years to commence on 25 July 2003 and to expire on 24 July 2005, with a balance of sentence of 18 months to expire on 24 January 2007. With respect to the second count of supplying a prohibited drug, cannabis oil, his Honour imposed an 18 months fixed term of imprisonment to date from 25 July 2003. 5 In passing sentence upon the first count, his Honour took into account five matters on a Form 1: (a) possession of a prohibited drug, being 2.86g of methylamphetamine; (b) possession of a prohibited drug, being 0.9g of cannabis; (c) possession of a prohibited drug, being 0.47g of methylendioxymethylamphetamine; (d) goods in custody of $4,145.00 in cash; (e) goods in custody of a quantity of electronic, computer and photographic equipment. The Offences 6 A statement of facts was tendered, by consent, in the District Court. That statement of facts was relied upon by Coolahan DCJ and revealed the following facts. On 26 May 2003, police commenced surveillance of the residential premises of the applicant at 6/47 Wharf St, Tuncurry. This surveillance was conducted over a period of three and a half hours with 14 people attending the premises for short periods of time. They consisted of males and females from teenage years to middle age. Police believed that during this surveillance, they observed actions that were consistent with the methodology of persons supplying prohibited drugs. 7 About 1.15 pm on Wednesday 25 June 2003, police were patrolling in Forster when a beige Toyota four-wheel drive was followed into Macintosh St. The vehicle was stopped and police spoke to the applicant who was seated in the front passenger seat. While speaking to the applicant, police smelt a strong odour of cannabis emanating from his person. The applicant was removed from the vehicle and searched. 8 Police located a man's wallet in the applicant's track-pants pocket. This wallet was searched and it contained numerous pieces of identification in the name of Brett Walker. In the notes section of the wallet, police located a medium sized resealable plastic bag containing white powder and $120.00 in cash. 9 Police then located a bum-bag in the applicant's possession. Upon opening the bum-bag, police saw a large bundle of cash made up of $50.00 notes, two small resealable bags containing white powder, ten tablets contained in a plastic resealable bag, and a plastic resealable bag containing cannabis leaf. Police also located a wallet in the bum-bag that contained $1,025.00 in cash. 10 The applicant was arrested, cautioned and conveyed to the Forster Police Station where he underwent custody procedures. Once the applicant went through this process, the drugs were weighed in his presence. A medium, resealable plastic bag of white powder located in his wallet weighed 3.7g, and the two small, resealable bags found in the bum-bag weighed 0.5 and 0.4g including packaging. Upon later analysis, the white powder was identified as 2.86g of methylamphetamine with an estimated street value of $1,000.00 (Number 1 Form 1). Police weighed the ten tablets found in the applicant's bum-bag and they amounted to 3.2g including packaging. Upon later analysis, the tablets were identified as 2.45g of 3,4 – methylenedioxy-methylamphetamine, otherwise known as ecstasy, with an estimated street value of $500.00 (Count 1 Indictment). Police weighed the resealable plastic bag containing cannabis that had been located in the applicant's bum-bag. It amounted to 1.3g including packaging. Upon later analysis, it was identified as containing 0.9g of cannabis (Number 2 Form 1). When questioned in relation to all drugs, the applicant stated that he had found them on the rear seat of a car in which he was a passenger. 11 The cash located on the applicant was counted in his presence. The total amount of cash was $4,145.00 (Number 4 Form 1). When questioned in relation to the cash, the applicant stated he had withdrawn it from his bank account for bond money. 12 With the applicant's permission, police searched his premises at Wharf St, Tuncurry, later on 25 June 2003. Located on the premises were a number of personal and electrical items packed into boxes. When questioned in relation to the boxes, the applicant stated that he was about to move and had packed the boxes that day and the previous day. Police searched the boxes and inside one they located a hand-made cardboard tablet holder. This holder contained 27 separate capsules which in turn contained a dark oily substance. Also in this box, police located a red-coloured lolly tin which contained two tablets and a piece of plastic. These tablets appeared similar to the ten tablets located earlier that day. Upon analysis, the capsules were found to contain 19.6g of cannabis oil with an estimated street value of $540.00 (Count 2 Indictment). The two tablets contained 0.47g of ecstasy (Number 3 Form 1). 13 In the case of ecstasy, the applicant possessed more than three times the traffickable quantity and almost double the indictable quantity (1.25g). With respect to the cannabis oil, the applicant possessed almost four times the traffickable quantity (5.0g) and almost double the indictable quantity (10.0g). 14 At the time of the applicant's arrest, he was in possession of a Nokia mobile phone. An examination of messages stored on this phone revealed communications which supported the charges of supplying prohibited drugs. 15 A number of items of electronic, computer and photographic equipment which were reasonably suspected of being stolen or otherwise unlawfully obtained were located in the applicant's premises (Number 5 Form 1). 16 The applicant gave evidence in the sentencing proceedings. The sentencing judge described aspects of his evidence concerning the offences as being "somewhat fanciful" and "a nonsense". His Honour concluded (remarks on sentence, p9): "The overwhelming inference from all the material tendered in the case is that, at the time of his offence, the offender was in the business of supplying drugs for profit. Whilst it may have been that the offender had some of the drugs set out on the Form 1 for his own use, there is no evidence from him or anywhere else that he was a user of either ecstasy or cannabis oil, and I am not prepared to accept that he had any of those drugs in his possession other than for the purpose of supply." 17 His Honour observed that the offences were "obviously serious" but noted that it had not been alleged that the applicant was in any way a "Mr Big" in the drug dealing business. The Applicant's Background 18 The applicant was 39 years old at the time of the offences and 40 years at the time of sentence. He told the District Court that he was a fisherman who had been working on a fishing boat occasionally up to the time of his arrest. He had worked in other areas before then, including roof tiling, handyman work and in a bakery. The applicant had been in relationships, the last of which had ended in January 2003 because of his drug use. 19 The applicant had a criminal history which he accepted in evidence as being "absolutely appalling". In 1983, he was dealt with for offences of supply, possession and use of Indian hemp. Again, in 1983, he was fined for imposition, forgery and uttering. In 1984, he was sentenced to terms of imprisonment for larceny, assault and break, enter and steal and was fined for a firearm offence. In 1985, he was fined for possession of Indian hemp. In 1986, he was fined for assault. In 1987, he was dealt with for driving offences and possessing equipment to administer a prohibited drug. In 1988, he was imprisoned for driving whilst disqualified, driving whilst licence cancelled and for firearm offences. In 1988, he was dealt with for another firearm offence, further driving offences and using heroin. In 1989, he was imprisoned for break, enter and steal, assault and using heroin. In 1990, he was sentenced to terms of imprisonment for break, enter and steal, assault and false pretences. In 1997, he was sentenced to imprisonment by way of periodic detention for embezzlement. Again, in 1997, he was sentenced for imprisonment for armed robbery. Following his release from prison in 2000, he was convicted of possession of a prohibited drug in 2001 and was imprisoned for driving whilst disqualified in 2003. 20 A report dated 11 April 2004 of Dr Allan White, Consultant Psychiatrist, was tendered in the applicant's case in the District Court. Dr White did not find any psychological or psychiatric disorder. He referred to the applicant's long history of substance abuse. He expressed the opinion that it would be helpful for the applicant to be in the community where he can have access to regular treatment to assist him with his rehabilitation from drugs. 21 Coolahan DCJ accepted that the applicant was a person who was addicted to drugs, but that he had made efforts to deal with that addiction and had a resolve to continue in that regard. 22 His Honour accepted that the applicant was in protective custody and was likely to continue to be on protection for the balance of his sentence. The applicant's protective custody flowed from an assertion by another prisoner that the applicant had reported him to the authorities. Other Findings by Sentencing Judge 23 Coolahan DCJ found that the pleas of guilty had not been entered at the first available opportunity, but nonetheless attracted utilitarian value which his Honour assessed as being in the order of 20%. 24 His Honour found that "special circumstances" existed because of the applicant's protective custody and his resolve to deal with his drug addiction. Ground 1 – His Honour Erred in Regarding the Applicant's Criminal Record as an Aggravating Factor 25 In the course of his remarks on sentence, Coolahan DCJ said (page 17): "In dealing with the offender, I have taken into account those matters which are required to be taken into account under section 21A of the Crimes (Sentencing Procedure) Act. Aggravating factors, of course, include the fact that he has a record of prior convictions . So far as mitigating factors are concerned; anecdotally, I suppose, he is at an age where people who have had a criminal history tend to change their lives around. This is a factor referred to by Dr White in his report, and in that regard I am prepared to accept that he has some prospects of rehabilitation." (emphasis added) 26 Section 21A(2) Crimes (Sentencing Procedure) Act 1999 includes the following provision: "(2) Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows: … (d) the offender has a record of previous convictions, …". 27 Section 21A(4) of that Act provides that the court is not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so. It has been held that the effect of s.21A(2)(d) and (4) is to require the court to apply the common law principles in Veen v The Queen (No. 2) (1988) 164 CLR 465 with respect to use of a prior criminal record on sentence: R v Johnson [2004] NSWCCA 76 at paragraphs 32-37; R v Wickham [2004] NSWCCA 193 at paragraph 24. In R v Shankley [2003] NSWCCA 253, Howie J expressed the principle in Veen (No. 2) as follows (paragraph 31): "The effect of the prior criminal record of the offender, where it is relevant to sentencing, is not to increase the objective seriousness of the offence committed but rather that 'retribution, deterrence and protection of society may indicate a more severe sentence is warranted'." 28 The applicant submits that the sentencing judge erred in treating the applicant's record of prior convictions as an aggravating factor in this case. Counsel for the applicant submits that the record was relevant, but was not a factor which aggravated the offence. It was pointed out that, despite the applicant's lengthy criminal record, he had only one prior conviction for supplying a drug and that was in 1983. Further, it was noted that at the time of his arrest in June 2003, he had been out of custody for more than three years and had been convicted of only two offences, both of which were dealt with by way of fines. 29 Apart from a recital of the applicant's criminal record, and a reference to the applicant's concession that his criminal history was "appalling", the only reference to the applicant's criminal record by the sentencing judge was that contained in the passage set out in paragraph 25 above. 30 The Crown submitted that, applying Veen (No. 2), the applicant's criminal record, which included convictions for possession, use and supply of prohibited drugs, was such that personal deterrence had to be given more significance than would otherwise have been the case: R v Berg [2004] NSWCCA 300 at paragraph 29. It was submitted that the applicant had not demonstrated that the sentencing judge's treatment of his criminal record was otherwise than in accordance with the applicable principles. 31 I am not persuaded that error had been demonstrated in this case in the use by the sentencing judge of the applicant's criminal history. As in Berg, there were parts of the applicant's criminal history which the sentencing judge would have been entitled to take into account in accordance with the principles in Veen (No. 2). 32 It should be observed, however, that a passing reference to s.21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999, without reference to the precise manner in which the sentencing judge takes that factor into account on sentence, is unsatisfactory. A failure to explain the manner in which the factor is taken into account does not enlighten the sentencing process, in a manner which s.21A appears to have been designed to achieve. Nor does it inform the offender, the Crown and the community of the use which the sentencing judge has made of this factor. In a case where the offender's criminal history is not capable of attracting the principles in Veen (No. 2), error may be demonstrated which affects the sentencing process. It is important that sentencing judges keep firmly in mind the limited purpose for which an offender's criminal record may be taken into account, in a manner adverse to the offender, in the exercise of sentencing discretion. 33 In the circumstances of the present case, however, I am not satisfied that impermissible use of the applicant's criminal history has been established. I reject this ground of appeal. Ground 2 - The Sentence Imposed is Manifestly Excessive 34 The applicant submitted that the sentences imposed were manifestly excessive, based upon the following contentions: (a) objectively, the counts in the Indictment involved relatively small quantities of drugs (as to ecstasy: the indictable quantity is 1.25g and the commercial quantity is 125g; as to cannabis oil: the indictable quantity is 10g and the commercial quantity is 500g) and the combined street value of the drugs in question was $1,040.00 only; (b) there was insufficient weight given to the subjective circumstances of the applicant. 35 With respect to the objective seriousness of the offences, the Crown submits that this was part of a planned criminal activity. The evidence before the sentencing judge pointed to persons visiting the applicant's premises in a manner indicative of drug supplying, the presence of text messages on his mobile phone which again indicated the business of supply of drugs, the applicant's possession of resealable plastic bags and a substantial sum of money, all of which contributed to the finding of Coolahan DCJ that the applicant was "in the business of supplying drugs for profit". The Crown submits that these were objectively serious offences. The Crown points to the fact that the sentences imposed upon the applicant were wholly concurrent despite the fact that two different drugs were being supplied by him. 36 In my view, it would be an unduly narrow and artificial approach to confine attention to the quantity of the particular drugs possessed by the applicant and their street value to determine the objective seriousness of those offences. There is a broader factual context which was revealed by the evidence which supports the finding by the learned sentencing judge that the applicant was "in the business of supplying drugs for profit". These were not isolated offences. They were committed by an offender with a prior history of supplying drugs. There were offences on the Form 1 which justified the imposition of a longer sentence for the first count on the Indictment: Attorney General's Application under s.37 Crimes (Sentencing Procedure) Act 1999 (No. 1 of 2002) (2002) 56 NSWLR 146 at paragraph 18. 37 The applicant contends that insufficient weight was given to what was described as a reasonably strong subjective case involving pleas of guilty, the applicant's resolve to stop using illicit drugs, his prospects of rehabilitation in the context of his mature years and his more onerous custodial conditions whilst subject to protective custody. Reference was made to his improved (but not offence-free) criminal record between 2000 and 2003. Reliance was also placed upon Judicial Commission statistics for the offence of supplying a prohibited drug. 38 I am not satisfied that the applicant has demonstrated error in the imposition of the sentence passed in this case. It is clear that the sentencing judge took into account the pleas of guilty, the applicant's prospects of rehabilitation and his protective custody in passing sentence, including a finding of special circumstances. In my view, the sentences imposed by the sentencing judge were well within the range of sentences appropriate for the offences for which the applicant stood to be sentenced. Further, his Honour's direction that the sentences be wholly concurrent was favourable to the applicant in the circumstances of this case. 39 In my view, the sentences imposed were such that, even had there been error shown, the Court would not have intervened as no lesser sentence is warranted in law: s.6(3) Criminal Appeal Act 1912. 40 I propose that the application for leave be granted, but that the appeal be 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.