New South Wales Court of Criminal Appeal Regina v Gidaro [2005] NSWCCA 18 CITATION: This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 7/2/05 JUDGMENT DATE: 7 February 2005 JUDGMENT OF: Grove J at 32; Hidden J at 33; Bell J at 1 DECISION: Leave to appeal granted; Appeal dismissed. Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: Drug Misuse and Trafficking Act 1985 R v Maessen [2004] NSWCCA 160 CASES CITED: R v Mason (unreported) 22 March 2000 R v Selim, unreported, 19 May 1998 Paul Gidaro (Applicant) PARTIES: Regina (Respondent) FILE NUMBER(S): CCA 2004/2632 Ms E Wilkins (Crown) COUNSEL: Ms L Flannery (Applicant) S Kavanagh SOLICITORS: SE O'Connor (Applicant) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 03/21/0134 LOWER COURT JUDICIAL OFFICER: Shillington DCJ IN THE COURT OF CRIMINAL APPEAL 2004/2632 GROVE J HIDDEN J BELL J Monday 7 February 2005 Regina v Paul Gidaro Judgment 1 BELL J: This is an application for leave to appeal against the severity of sentences imposed on the applicant by his Honour Judge Shillington QC sitting in the District Court at Parramatta on 16 April 2004. 2 The applicant pleaded guilty to an indictment to two counts. The first charged him with supplying a prohibited drug, namely, 3,4 methylenedioxymethamphetamine (commonly known as ecstasy) at Ashfield on 31 October 2002 in an amount not less than the trafficable quantity. The second count charged him with supply of a prohibited drug, namely, amphetamine, in an amount not less than the trafficable quantity on the same date and at the same place. Each offence is provided by s 25 of the Drug Misuse and Trafficking Act 1985. The maximum penalty for this offence is 15 years' imprisonment and/or a fine of 2,000 penalty units. 3 In relation to the first count on the indictment, the applicant asked the Judge to take into account three matters on a Form 1 pursuant to the provisions of s 33 of the Crimes (Sentencing Procedure) Act 1999. These comprised one offence of possession of cannabis, one offence of possession of heroin and one offence of possession of methylamphetamine, each being an offence proffered contrary to s 23(1)(c) of the Drug Misuse and Trafficking Act. 4 The applicant was sentenced in respect of each count to a term of three years' imprisonment to date from 2 April 2004. A non-parole period of 18 months was specified. His Honour directed the applicant's release on parole on 1 October 2005. 5 The facts upon which the Judge sentenced the applicant are set out in his reasons: " The facts are that on 31 October 2002 the offender was observed by police to be driving at speed in Croydon when stopped. He was noticed to be smelling of cannabis. On being searched, seven clear plastic bags of cannabis were found in his pockets and they are the subject of the form one. His wallet contained one foil of heroin weighing .33 grams also to be found on the form one, two plastic bags of speed, 1.43 grams in weight, also on the form one, twenty-eight tablets of ecstasy weighing 2.81 grams, the subject of the charge on the indictment, and seventeen tablets of speed weighing 4.38 grams, also the subject of the charge on the indictment. It is to be noted that the pleas were entered on arraignment and therefore the offender is entitled to a substantial recognition of that fact in the ultimate sentences. The wallet also contained twelve hundred and seventy dollars in denominations of fifties, twenties and tens. The offender has given evidence that this money was the balance of some two thousand dollars being saved by his grandfather to pay for his drug treatment in Israel. His grandfather died on 16 September 2002 and the offender says that he took the money from his grandfather's home some weeks after that date, that he spent some of the two thousand dollars on drugs and general living expenses since that time. It is to be noted that the wallet contained no smaller denominations or coins. The offender's evidence was that he was not selling the drugs but conceded that he was intending to provide some for friends. I am satisfied beyond reasonable doubt that the twelve hundred and seventy dollars came from the sale of drugs. There has been no independent evidence supporting the offender's account. His only other source of income was a Newstart allowance of four hundred and twenty dollars per fortnight and the explanation given by the offender for possession of the money appears unlikely." 6 The applicant was committed for trial on 10 March 2003. He entered pleas of guilty to each count upon his arraignment in the District Court on 1 May 2003. The Judge noted that the pleas had been entered on arraignment and that, accordingly, the applicant was entitled to a substantial recognition of that fact in the sentences to be imposed. His Honour did not quantify the discount. 7 The police brief of evidence was tendered at the sentence hearing. It included a lengthy interview conducted between Constable Maksymczuk and the applicant on 31 October 2002. In the course of the interview the applicant gave an account that the sum of $1270 in cash located by the police in his wallet was the balance of moneys that had been saved on his account by his grandfather and taken by him following the grandfather's death a matter of weeks prior to his arrest. He acknowledged that at the time of his arrest he had been driving a car that he had rented some time earlier. He had paid the rental fees out of the money obtained from his grandfather's savings. His only income was the Newstart allowance. 8 As to the drugs in his possession, the applicant gave an account in the interview that he had been intending to book into a hotel over the weekend and to throw a party at which he would have shared the drugs with friends. 9 The applicant gave evidence before the Judge and his account in these respects was rejected. His Honour was satisfied that the $1270 was the proceeds of the sale of drugs. 10 The applicant was aged 25 years at the date of sentence. He had a conviction for steal from the person in 1999 for which he was sentenced to perform 150 hours of community service. 11 The applicant completed Year 11 at school. After leaving school he had obtained diplomas in business management and real estate. He had worked in a variety of jobs, including as a courier and car park attendant and in the family business, a tobacconist store at Parramatta. This business had since failed. 12 The applicant started illegal drug use in Year 11 at school. Over time his use progressed and included the use of heroin. 13 The applicant lived with his grandparents from when he was in Year 9. The death of his grandfather had been a significant loss to him. 14 The proceedings had been stood over on the applicant's application to allow for an updated pre-sentence report. That report, dated 24 March 2004, recorded that the applicant had been directed to attend for an interview and that he had failed to do so. He had cancelled his appointment offering an excuse that was found to be false. He failed to make further contact with the service and the report was prepared without his assistance. 15 The author of the pre-sentence report noted that the applicant had failed to participate in drug counselling and that urine analysis conducted since an earlier report had returned positive results for the use of an illicit substance. The applicant was described as having been unco-operative with the Probation and Parol Service. It was noted that he had been unresponsive to directions by the Service since his first contact in September 2003. He was assessed as unsuitable for a community service order due to his unresolved drug issues and unreliability, and, for the same reasons, as unsuitable for a periodic detention order. 16 In evidence, the applicant admitted to continuing use of illicit substances. As at the date of giving evidence he was on the methadone program but acknowledged lapsing into the use of heroin from time to time. 17 The Judge found the applicant's evidence vague and unreliable. His Honour went on to say: "On the other hand his general demeanour did not suggest the personality of any drive or initiative. I am satisfied that his commercial dealings in drugs were more probably directed to satisfying his own cravings." 18 The Judge found special circumstances for the purpose of s 44(2) of the Crimes (Sentencing Procedure) Act which he identified as the applicant's need for supervision on release. 19 The sentence is challenged upon the single ground that it is manifestly excessive. In support of this submission counsel points to the relatively small quantities of the drugs involved in each offence and to the finding that the applicant's dealing in drugs was the result of his addiction. In this respect counsel relied on the decision of this Court in R v Selim, unreported, 19 May 1998, per Studdert J at p 5: "Since his Honour had found that there was a link between the applicant's addiction and her participation in this crime, that was a circumstance which, on the authorities, entitled the applicant to have her criminality regarded as on a lower level than had she been committing the offence purely for monetary gain: see Tulloh (unreported, CCA 16 September 1993, and in particular the judgment of Hunt CJ at CL)." 20 In seeking to demonstrate that the present sentences fall outside the range of discretion, counsel took us to the statistics maintained by the Judicial Commission of New South Wales for the offence of supplying amphetamine and ecstasy in an amount less than the commercial quantity. 21 For the supply of an amount less than a commercial quantity of amphetamines, counsel noted that only thirty eight percent of all offenders had been sentenced to full time imprisonment. Of those sentenced to full time imprisonment only twelve percent had been sentenced to a term greater than that imposed on the applicant. Looking at the disposition of all cases in the survey she noted that the sentence imposed on this applicant fell within the top 8.8 percent. 22 For the supply of less than the commercial quantity of ecstasy, counsel noted that only twenty six percent of offenders had been sentenced to terms of full time imprisonment and of those only twenty three percent had been sentenced to a term greater than that imposed on the applicant. Looking at the disposition of all cases, counsel noted that the sentence imposed on the applicant was within the top 9.5 percent. 23 In addition to the raw statistical material, counsel supplied a table containing short particulars of a number of cases dealt with in this Court involving the supply of amphetamine or methylamphetamine. 24 When regard is had both to the statistical pattern to which our attention has been directed and to the cases summarised in the table, it appears that the present sentences were at the high end of the range. This is so notwithstanding that the maximum sentence for this offence is one of fifteen years imprisonment. 25 The question for this Court is not whether the sentences may be shown to be severe but whether they exceed the bounds of discretion. Care has to be exercised in the use of the table since each case needs to be assessed on its own facts. 26 When one looks at some of the cases that are referred to in the table there are relevant points of distinction. Maessen [2004] NSWCCA 160 involved three counts of the supply of small quantities of amphetamines. This Court considered the sentence of two years and nine months to be excessive. Justice Adams explained the reason for that conclusion at [15]: "There was no evidence that justified a conclusion that he was standing in the market- place to supply amphetamines and these three examples were part of a continuing trade. Such an inference required proof beyond reasonable doubt, which it is not even suggested was established either below or in this Court. These charges represented but three incidental occasions that arose from the instigation of the police." 27 The applicant also relied on R v Mason (unreported) 22 March 2000. That was a case in which the sentencing judge was wrongly informed of the maximum penalty for the offence. 28 I refer to these two cases to illustrate the care that needs to be taken in extrapolating from material contained in a table of comparative sentences. I am persuaded by reference to the table that the pattern of sentencing places the present sentences at the higher end of the range. 29 As the Crown submitted, this was a case in which it was open to the Judge to consider that personal deterrence was to be accorded significant emphasis. 30 When regard is had to the circumstance that, small as the quantities were, this applicant was engaged in the supply of drugs for profit, albeit as a user/supplier, and that his prospects of rehabilitation were necessarily guarded, I do not consider that it can be said that the sentences exceeded the range of discretion. 31 For these reasons I would grant leave to appeal but I would dismiss the appeal. 32 GROVE J: I agree with the orders proposed by Bell J and with the reasons which she has given. 33 HIDDEN J: I also agree. 34 GROVE J: The orders of the Court therefore will be as proposed by Bell J. ********** 27/06/2005 - incorrect Christian name on coversheet - Paragraph(s) 1 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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