Regina v Hughes [2005] NSWCCA 235

New South Wales Court of Criminal Appeal

CITATION: Regina v Hughes [2005] NSWCCA 235

HEARING DATE(S): 20 June 2005

JUDGMENT DATE: 20 June 2005

JUDGMENT OF: Spigelman CJ at 1,23,25; Hunt AJA at 2; Howie J at 24

DECISION: Leave to appeal refused

CATCHWORDS: Deemed supply of heroin and methylamphetamine - proposed sale of methylamphetamine to pay for heroin for personal use - no statement of principle

Regina PARTIES: Karl Stuart Hughes

FILE NUMBER(S): CCA 2005/388

Applicant in person COUNSEL: V Lydiard for the Crown

SOLICITORS: Greg Murray (Newcastle) for the Crown

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/31/0450

LOWER COURT JUDICIAL OFFICER: Payne DCJ

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL 2005/388 SPIGELMAN CJ HUNT AJA HOWIE J Monday 20 June 2005 REGINA v HUGHES

Judgment 1 SPIGELMAN CJ: I will invite Hunt AJA to deliver the first judgment. 2 HUNT AJA: The applicant, Karl Stuart Hughes (who is also known as Karl Stuart Williams), pleaded guilty in the Newcastle District Court to two charges: supplying heroin, and knowingly take part in the supply of methylamphetamine. The amount of each of the drugs found in his possession was 12.9 grams of heroin and 6.68 grams of methylamphetamine. The applicant pleaded guilty to both charges at the earliest opportunity. 3 The charges of supply were based on the deemed supply of those drugs although the applicant admitted that the methylamphetamine was to be sold. Judge Payne accepted the applicant's evidence that the heroin was for his own use and the use of his de facto wife, Michelle Ann McAlister, and that the sale of the methylamphetamine was to pay for the heroin. In other words, the supply of the methylamphetamine by way of sale was said to be on a "need not greed" basis. 4 The applicant, who was forty-four years old at the time of sentencing, had a history of only minor crime up to 1998 — such as goods in custody, resist arrest and assault police, possession of housebreaking implements, larceny, break enter and steal and some drink-driving offences. He had only one drug conviction, that of possessing Indian hemp in 1980. There was also an assault occasioning actual bodily harm, but this resulted only in a good behaviour bond for twelve months. Up to that stage, the applicant had not been in custody. 5 In 1998, however, the applicant was convicted of a conspiracy to commit an armed robbery for which he received a total sentence of six years, consisting of a minimum term of three years and an additional term of three years. He was released on parole at the end of the minimum term, on 1 April 2001, but late in 2003 he was convicted of two offences of possessing methylamphetamine and sentenced to imprisonment for two months. He had not been charged in relation to any offences for a substantial period of time, approximately two years and four months. His parole was revoked, and he served five months and twelve days being the balance of his parole period. That period had expired by the time he came to be sentenced for the present offences. It was agreed between counsel at the sentencing hearing that the applicant was entitled to have taken into account an effective period of pre-sentence custody of seventy-four days in relation to the present offences. 6 The applicant gave evidence of a very long-standing addiction to heroin over almost twenty-five years, and of his efforts at different times to escape from that addiction by undertaking various and different programmes of treatment. At the time of these offences, he said, there was a substantial delay in the availability in Newcastle of the particular treatment programmes he needed. 7 At the sentencing proceedings, counsel then acting for the applicant put the sentencing statistics in relation to these two offences before the judge, and he proposed a total sentence of forty-eight months with a non-parole period of thirty months, with a partial accumulation of the two sentences in order to accommodate the effect of those statistics. The Crown prosecutor accepted that such a total sentence would be within the range suggested by the statistics, and said that he did not cavil at such a total sentence being imposed in this case in the light of the fact that the heroin was for the use of the applicant and his de facto wife only. 8 In sentencing the applicant, the judge (as I have said) accepted the applicant's case that the heroin was for the use of the applicant and his de facto wife only, she acknowledged the fact that he had remained in the community for a significant period without being charged with any offence, she accepted that he had positive plans for rehabilitation both in custody and on his release, and that he was genuine in his desire not to resort to illegal drugs and not to go back into custody. However, the judge very properly stated that both offences were objectively serious, particularly the proposed sale of the methylamphetamine, and she acknowledged the need for general deterrence, particularly in the sale of drugs, and that a salutary custodial sentence was required. As to the proposal put forward by the applicant's then counsel, the judge said that it did not sufficiently take into account the aggravating factor that the two present offences were committed by the applicant whilst he was on parole. 9 The judge gave a 25% discount for the early pleas of guilty, which was the maximum which could have been appropriate in the circumstances. After applying the 25% discount, she structured the sentences in this way — for the supply of heroin, a term of twenty-two months, without specifying a non-parole period because of the commencement of the proposed term for the supply of the methylamphetamine; and for the supply of the methylamphetamine, a term of forty months commencing twelve months after the commencement of the term for the supply of heroin, with a non-parole period of twenty-one months. There was thus an overlap of ten months. The effect of these sentences is a total term of fifty-two months, with an effective non-parole period of thirty-three months. In other words, the total of the two sentences was four months longer than that proposed by counsel then appearing for the applicant, and the effective non-parole period was three months longer than that proposed. 10 The applicant has appeared in person to argue his application for leave to appeal. He has provided the Court with careful and detailed submissions in support of his application for leave to appeal. 11 His first submission is that the sentence on supply of amphetamines was excessive. He says that, although the sentence was aggravated by the fact that it was committed on parole, he had survived for two years, four months and one week of the three year parole period without being charged with any offences. The judge acknowledged the fact that he had offended late in the parole period, and she took that fact into account in his favour, but she was correct in nevertheless still taking this aggravating feature into account. The applicant had abused his freedom on parole by committing these very serious offences, and the courts will always treat such abuse severely in order to deter those who take advantage by being released on parole to commit further offences, whether the offences are committed early or late during the parole period. 12 The applicant then says that this was his first serious charge in relation to drugs since his conviction for possessing Indian hemp in 1980. The judge took that fact into account as well, but such a consideration does not carry much weight in the light of the far more serious offence on his record of conspiracy to commit an armed robbery, to which the judge was entitled to have regard in sentencing him. 13 The applicant says that his sentence was affected by the judge's request during the sentencing hearing to know the purity of the methylamphetamine tested (which was approximately only one half of that substance found by the police). He claims that the other half would not have been so pure. Such an inquiry by the judge was relevant in a very general way to the extent of profit likely on the resale of that methylamphetamine when it would have been cut by glucose. It was appropriate for the judge to have this information in the light of the applicant's case that the methylamphetamine was sold only in order to pay for the heroin. It was unnecessary to know the precise expected profit for that purpose. The judge did not rely on the purity of the drugs in her remarks on sentence. The purity of the two drugs played no part in the sentences imposed. 14 The applicant next complains that, as the offences were committed at the same time, there should have been a greater degree of concurrency of the two sentences. The fact that the two sentences were committed at the same time does not entitle any accused to have both sentences served wholly concurrently. Each sentence is required to be effectively self-sufficient. The purpose of making them partly concurrent is to ensure that the separate sentences do not, if simply added together, exceed the totality of the criminality involved in both of them. 15 The judge was also very conscious during the hearing of the fact that the applicant had been in continuous custody for a period of at least nineteen months as at the date of sentencing, of which approximately six and a half months were related to the possession charge and the balance of parole, a matter she mentioned in her remarks on sentence. In my view, it should not be assumed against the judge that she did not also take into account the need to consider the totality of that period together with the sentences she was imposing to ensure that the continuous period the applicant would be under sentence did not exceed the totality of his criminality involved in all four matters. The total length of the sentences imposed by the judge was (as I have already pointed out) only four months longer than that proposed by counsel then appearing for the applicant, who no doubt was also aware of the need to consider the totality principle. This particular sentence for supplying methylamphetamine was within the appropriate range, and I do not accept the applicant's argument that it was excessive. 16 The applicant complains that the judge, who had shortly beforehand sentenced his de facto wife for an entirely separate drug offence, must have taken into account an allegation that his de facto wife had made, apparently recorded in the pre-sentence report tendered in her proceedings, to the effect that the applicant had been solely responsible for the particular offence for which she was then being sentenced. 17 The judge did draw to the attention of counsel then appearing for the applicant to the fact that she had sentenced the de facto wife, and she asked him to take specific instructions from his client as to whether there was any objection to her dealing with the applicant. She made it clear that she herself had no concern, but thought only that he should be made aware of that fact. The applicant gave instructions that the proceedings should continue. He now says that, if he had known then what was recorded in the pre-sentence report, he would not have agreed to the matter continuing before the same judge. 18 The applicant's present concern is, with respect, misplaced. The fact that the judge dealt with the de facto wife of the applicant for her commission of that unrelated offence necessarily means that she rejected the allegation made by his de facto wife that he was solely responsible for the offence for which she was being sentenced. There is in any event no sign in these proceedings that the judge was biased against the applicant. She accepted his evidence and the whole of his case as to the reason for which the two offences were committed. Before the applicant had given evidence, the judge had expressed some doubt as to whether she would accept the submission made by counsel that the applicant should be sentenced on that basis. Clearly, it was the applicant's evidence which persuaded the judge to accept that the supply of the methylamphetamine was in order to pay for the heroin purchased for his and his de facto wife's personal use. That is eloquent evidence that the judge had no bias against the applicant as a result of any information which had been put before her in the earlier proceedings against his de facto wife. She did increase the sentence proposed by the applicant's counsel by four months from forty-eight to fifty-two months, but she was correct in doing so because the proposed sentence did not give sufficient weight to the fact that his offences were committed whilst he was on parole. 19 The applicant has drawn attention to the fact that he is a heroin addict, but that fact does not of itself operate as a mitigating factor. The judge did take that fact into account in accepting the applicant's evidence that the heroin was for his own use and the use of his de facto wife only, and that was a substantial matter in his favour in the circumstances. 20 The applicant complains that his sentence is only slightly less than that imposed on his de facto wife despite the greater amount of drugs and the higher purity of the drugs with which she was involved. The two cases are, however, not comparable. The circumstances of the de facto wife's offences, so far as they are disclosed in the judge's remarks on sentence in that case, are very substantially different from the circumstances of this case, as was her previous criminal record substantially different from the applicant's criminal record. Moreover, she had spent very little time in custody previously. There can be no cause for complaint by the applicant based upon any suggestion of disparity. 21 The applicant has today tendered material by way of reports of the courses he has undertaken during the time he has been in custody. These are relevant only if this Court were to re-sentence the applicant. It is therefore unnecessary to refer to their detail. 22 In my opinion, the applicant has failed to demonstrate any basis on which leave for appeal should be granted. I propose that leave to appeal be refused. 23 SPIGELMAN CJ: I agree. 24 HOWIE JA: I also agree. 25 SPIGELMAN CJ: The order of the Court is that leave to appeal is refused.