Regina v Denholm [2005] NSWCCA 30

New South Wales Court of Criminal Appeal

CITATION: Regina v Denholm [2005] NSWCCA 30

HEARING DATE(S): 01/02/05

JUDGMENT DATE: 1 February 2005

JUDGMENT OF: James J at 2; Grove J at 31

DECISION: Leave to appeal be granted. Appeal allowed to the extent of quashing the non-parole period of four years and substituting a non-parole period of three years seven months. Otherwise, the appeal against sentence is dismissed.

CATCHWORDS: CRIMINAL LAW - sentencing - supply of prohibited drug - not less than the commercial quantity of cocaine - whether justifiable sense of grievance, given the penalties imposed on the co-offenders - whether the sentence imposed was manifestly excessive

LEGISLATION CITED: Crimes (Sentencing Procedure) Act

CASES CITED:

PARTIES: Regina v Anthony Denholm

FILE NUMBER(S): CCA 2004/2362

GIO Rowling - Respondent COUNSEL: C Smith Applicant

S Kavanagh (Solicitor for Public Prosecutions) Respondent SOLICITORS: SE O'Connor - Applicant

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/11/1259

LOWER COURT JUDICIAL OFFICER: Urquhart DCJ

IN THE COURT OF CRIMINAL APPEAL 2004/2362

GROVE J JAMES J

Tuesday 1 February 2005 REGINA v Anthony DENHOLM Judgment 1 GROVE J: The Court is in a position to give judgment and I ask Mr Justice James to give the first judgment. 2 JAMES J: Anthony Denholm has applied for leave to appeal against a sentence imposed on him in the District Court on 21 November 2003 by his Honour Judge Urquhart for an offence, that on or about 12 October 2001 he supplied a prohibited drug being not less than a commercial quantity of cocaine, of which the applicant had been found guilty at a trial before Judge Urquhart and a jury. He was sentenced to a term of imprisonment for six years commencing on 22 October 2003, when the jury returned its verdict of guilty, 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 offence, the standard non-parole period for an offence of that kind was not applicable. 3 The applicant was one of three co-offenders who were sentenced by Judge Urquhart. Another offender Matthew Glen Keller had stood trial in the same trial as the applicant and had been found guilty of the same offence. The other offender Shannon Leslie Purdie, who was to have stood trial in the same trial, did not appear at the trial and was subsequently sentenced for an offence, to which he pleaded guilty, of knowingly taking part in the supply of not less than a commercial quantity of cocaine. 4 For the offence of supplying a prohibited drug being not less than a commercial quantity of cocaine, Judge Urquhart sentenced Keller to imprisonment for eight and a half years, commencing 22 October 2003, with a non-parole period of five years four months. For the offence of knowingly taking part in the supply of not less than a commercial quantity of cocaine, Judge Urquhart sentenced Purdie to imprisonment for five years nine months, with a non-parole period of four years, commencing on 24 October 2003, the day on which Purdie was arrested, after returning to Australia. In sentencing Purdie Judge Urquhart took into account a discrete period of pre-sentence custody which Purdie had served between 20 June 2002 and 20 December 2002. 5 Earlier today the Court heard and determined an application by Purdie for leave to appeal against the sentence imposed on him. The Court granted Purdie leave to appeal and allowed his appeal against sentence, to the extent of quashing the non-parole period set by Judge Urquhart of four years and substituting therefor a non-parole period of three years three months. In arriving at its decision on the application by Purdie the Court decided that the non-parole period which should be set was 60 percent of the total sentence. 6 In his remarks on sentence in sentencing the applicant Denholm Judge Urquhart summarised the objective facts in a way which has not been the subject of any criticism on this application. At pages 2 to 4 of his Honour's remarks his Honour said: "On the afternoon of 12 October 2001 the offender Denholm was arrested by the Australian Federal police officers at Sydney central railway station. He had with him a back pack within which was found in one packaged lot 505.5 grams of cocaine of a 67.4 percent purity. The offender had been the subject of some surveillance by Australian officers of the Australian Federal Police earlier that day although that surveillance was not constant. Apart from the surveillance on 12 October the investigation established that the offender had travelled from Melbourne to Sydney the day before by aeroplane and had been in contact with the offender Keller by phone on 11 and 12 October. The investigation also established that the offender Keller had been in contact prior to that with a Shannon Purdie and that such phone contact continued into 11 and 12 October. The investigations included phone conversations lawfully intercepted and recorded. All of that being said, however, it is important to note that the offender Denholm is to be sentenced for the offence of which he has been found guilty and that may better be understood and appreciated by briefly stating the criminal enterprise as to which the 505.5 grams of cocaine related. The offender Keller and the man Shannon Purdie discussed and negotiated the purchase of a kilogram of cocaine. Purdie was to find a seller. Those discussions and negotiations reached a station where a seller was found and the handing over of cocaine and money therefore was necessary. It was within that handing over aspect that the offender Denholm had a role. He and Keller had been friends for many years and although Denholm had secure employment and a good trade in the printing industry he had taken some leave and during that leave period assisted Keller in some jobs around Keller's home. He accepted another job from Keller, however, and that was to travel to Sydney taking with him cash and to bring back to Melbourne from Sydney, for Keller, cocaine". 7 In his remarks on sentence Judge Urquhart noted that when Denholm left Melbourne he had more than $40,000 in cash and that when arrested in Sydney he had a backpack which in fact contained the cocaine. His Honour remarked that the jury must have rejected Denholm's case at the trial that he had the cash for a purpose other than a drug transaction and that he had not been aware that the cocaine had been put into the backpack. 8 His Honour commented at p 6 of his remarks on sentence that: "Clearly the jury had no reasonable doubt that Denholm had come from Melbourne to Sydney on a job for Keller to hand over $40,000.00 and to collect not less than the commercial quantity of a prohibited drug. He, in fact, collected 505.5 grams of cocaine. The commercial quantity for cocaine is 250 grams". 9 In his remarks on sentence Judge Urquhart addressed the question of the role played in the criminal enterprise by the applicant. His Honour found: "As to the offender Denholm I am not satisfied that he had much more of a role than that of courier. His role did include the delivery of cash, the waiting around and the intended return. It was not restricted to collecting the backpack". 10 His Honour noted that there was no evidence before him of what the applicant received or was to receive for his participation in the enterprise. However, his Honour said that in his view there was to be some benefit to the applicant but his Honour said that he did not propose to say any more than that any such benefit should be regarded as having been "quite small". 11 As regards the subjective circumstances of the applicant, his Honour noted that the applicant was born on 13 November 1964 and had just turned 39 at the time of sentence; that apart from a minor offence committed many years before he had no criminal antecedents; that he resided in Victoria; that he had considerable family support; that he was in a stable relationship with a woman; that he had completed an apprenticeship and had been continuously employed as a lithographer and that his last employer had regarded him as a trusted employee; that in the proceedings on sentence there were many testimonials to the applicant's good character; and that the applicant was not a user of prohibited drugs. 12 His Honour concluded that all the material before him confirmed that the applicant's participation in the criminal venture had been a one-off involvement and the benefit to the applicant had been quite small. His Honour observed that the absence of criminal antecedents, the applicant's previous good character and the applicant's good employment history were to be taken into account in his favour. 13 On the other hand, having stood trial, the applicant was not entitled to any discount such as he would have received if he had pleaded guilty, and, not having shown any contrition, he was not entitled to any discount on the grounds of having shown contrition. On the basis of the applicant's age, his strong support network of family and friends, the absence of criminal antecedents and the appellant's previous good character, his Honour found that the applicant was unlikely to re-offend and had good prospects of rehabilitation; and also found that the same circumstances amounted to special circumstances within s 44 of the Crimes (Sentencing Procedure) Act. 14 On this application two grounds of appeal were relied on, namely, (1), that the applicant has a justifiable sense of grievance, given the penalties imposed on the co-offenders and (2) the sentence imposed was manifestly excessive. 15 In support of both grounds of appeal counsel for the applicant relied on the sentencing judge's findings about the role of the applicant, that the applicant was not much more than a courier and that any benefit that he received from his participation in the criminal venture was quite small. 16 In sentencing Keller Judge Urquhart found that Keller was the principal, that Keller had discussed with Purdie the purchase of one kilogram of cocaine for the price of $140,000, that Keller's motive was monetary gain for himself, that Keller had provided $40,000 of the purchase price and that Keller had had discussions about the on-sale of the cocaine. In sentencing Purdie his Honour found that his role was to find a vendor of cocaine, to negotiate the financial aspect of the sale, to receive the purchase money from the applicant and to pass the purchase money on to the vendor, who was to hand the drugs over to the applicant, who was then to deliver the drugs to Keller for on-supply by Keller. Purdie himself had contributed $20,000 of the purchase price. 17 His Honour found that the criminality of the applicant was less than the criminality of Purdie, which in turn was less than the criminality of Keller. 18 It was submitted that the applicant had strong subjective circumstances and that there was no real distinction between the subjective circumstances of the applicant and those of Keller. They were of similar ages, had minor or negligible criminal records and both had been found by Judge Urquhart to have good prospects of rehabilitation and to be unlikely to re-offend. Keller had a past history of successfully carrying on legitimate businesses and the applicant had a good employment record. 19 It was submitted that Purdie's subjective features were different. He was younger and had a history of alcohol and drug abuse and had a criminal history, although all of his offences had been dealt with by fines or bonds and his criminal history did not include any drug offences. 20 As regards ground 1, it was submitted that, although the sentences passed by his Honour did to some extent reflect the differences in the objective criminality of the offenders, the sentences did not properly reflect those differences and a greater disparity was required between the sentence passed on Keller and the sentence passed on the applicant, in order that the sentences should be properly proportional to the different degrees of criminality. 21 As regards ground 2, it was submitted that, having regard to his Honour's findings about the objective criminality of the applicant and the applicant's strong subjective case and sentencing statistics kept by the Judicial Commission, the sentence passed on the applicant should be regarded as manifestly excessive. 22 I do not consider that these submissions should be upheld. 23 As regards the second ground of appeal, that is, that the sentence passed was manifestly excessive, the criminal enterprise in which the applicant participated was serious, being the intended purchase of one kilogram of cocaine for a price of $140,000. The role of the applicant was taking a sum of $40,000 from Melbourne to Sydney, handing over the money to Purdie, receiving the cocaine and transporting the cocaine to Melbourne. Even allowing for the applicant's subjective case, I do not consider that the sentence passed by Judge Urquhart on the applicant exceeded the upper limit of a proper exercise of his Honour's sentencing discretion. 24 It is to be recalled that the applicant pleaded not guilty and stood trial, and the statistics kept by the Judicial Commission for sentences passed on offenders who had pleaded not guilty to this kind of offence were limited to three instances. The sentence passed on the applicant was in the middle of the sentences passed in those instances. 25 As regards the first ground of appeal, his Honour was clearly mindful of the need to impose sentences on the various offenders which reflected the differences in their objective criminality and any differences in their subjective features. The sentences imposed by his Honour on the applicant, Purdie and Keller correctly reflected the need to impose a less severe sentence on the applicant than on either Keller or Purdie. His Honour had a wide discretion in determining what would be the extent of the difference between the sentence passed on the applicant and the sentence passed on Keller. 26 As I indicated previously, the Court earlier to-day heard and allowed to a limited extent the appeal by Purdie against the sentence passed on him. Naturally, counsel for the present applicant sought to derive some advantage from the success of a co-offender. However, a comparison between the sentence passed on the applicant and the sentence passed on Purdie, and particularly a comparison of the non-parole periods of the two sentences, is made more difficult by the circumstances that Purdie, unlike the applicant, pleaded guilty, albeit belatedly, and received a discount for his plea of guilty; and that Purdie, unlike the applicant, was found by his Honour to have demonstrated contrition for his wrongdoing, and received a discount for the contrition he had shown. In his remarks on sentence in sentencing the applicant his Honour expressly noted that the applicant was not entitled to any discount on either of those grounds. Furthermore, unlike the applicant, who was released on bail almost immediately after being arrested and remained at liberty on bail until he was found guilty by the jury, Purdie served a discrete period of pre-sentence custody of six months, which had to be taken into account in determining both the head sentence and the non-parole period set for Purdie. In accordance with what the Court considers to be the correct procedure, the Court, when setting a non-parole period in re-sentencing Purdie, deducted the full term of the pre-sentence custody from the putative non-parole period, in order to arrive at the non-parole period which was ultimately set. 27 I have come to the conclusion that, although the applicant's application for leave to appeal against sentence should be granted, the applicant's appeal against sentence should, except in one respect, be dismissed. The respect in which I consider that the applicant's appeal against sentence should succeed, lies in the setting of the non-parole period. 28 As I have stated earlier in this judgment, the Court decided that in re-sentencing Purdie the Court should set a non-parole period equivalent to 60 percent of the head sentence. The non-parole period set by his Honour Judge Urquhart in sentencing the present applicant was 662/3 percent of the head sentence. Although it could be argued that a proportionally greater parole period should be set for Purdie, because of his greater need for a period of supervised liberty in which to overcome his addiction to alcohol and drugs, I consider that the present applicant Denholm would have a justifiable sense of grievance, if the non-parole period of his sentence remains at 662/3 percent of the head sentence. 29 I would accordingly allow the appeal against sentence by the present applicant, to the extent of quashing the non-parole period set by Judge Urquhart and substituting a non-parole period equivalent to 60 percent of the head sentence. 30 Accordingly, I consider that the application for leave to appeal should be granted, the appeal should be allowed to the extent of quashing the non-parole period set by Judge Urquhart of four years and substituting a non-parole period of three years seven months, being approximately 60 percent of the head sentence. Otherwise, the appeal against sentence should be dismissed. The earliest date on which the applicant would be eligible for release on parole would be three years and seven months from 22 October 2003, which is 21 May 2007. 31 GROVE J: I agree with Mr Justice James and the orders of the Court will be as proposed.