New South Wales Court of Criminal Appeal CITATION: Livas v Regina [2006] NSWCCA 54 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 2 February 2006 JUDGMENT DATE: 10 March 2006 JUDGMENT OF: Grove J at 1; Rothman J at 2 DECISION: a Leave to appeal be granted; b The appeal be allowed; c The sentence imposed by his Honour Judge Hosking SC on 5 April 2005 be quashed and in lieu thereof the Court impose the following sentence: (i) Imprisonment for a term of 6 months to date from 1 February 2006 and to expire on 31 July 2006; (ii) Under s.12 of the Crimes (Sentencing Procedure) Act 1999 I order the execution of such sentence be suspended for the term of the sentence; (iii) I direct that the prisoner be released from custody on condition that the prisoner enter into a good behaviour bond for the term of the sentence. Conditions applying during the term of the bond are as follows: (a) To appear before the Court if called upon to do so at any time; (b) To be of good behaviour; (c) To advise the Registrar of the Court of any change in residential address; (d) To report to the office of the NSW Probation and Parole Service within 48 hours; (e) To accept the supervision, and obey all reasonable directions, of the NSW Probation and Parole Service during the term of the bond; (f) Not to consume any prohibited substance; (g) Such other standard conditions as are required by the NSW Probation and Parole Service. CATCHWORDS: Criminal law - sentencing - parity in sentencing - discretion - constraint on exercise of discretion - matters relevant to discretion - prohibited drugs - meaning of trafficking - necessity for full-time custodial sentence for isolated technical supply LEGISLATION CITED: Drug Misuse and Trafficking Act 1985 Crimes (Sentencing Procedure) Act 1999 s.5(1) Pilley (1991) 56 A Crim R 202 CASES CITED: Bardo (Unreported, NSWCCA, 14 July 1992 R v James (1995) 14 A Crim R 364 PARTIES: Applicant: James LIVAS The Crown FILE NUMBER(S): CCA 2005/1945 COUNSEL: Applicant: Mr J Korn Crown: Ms J Girdham SOLICITORS: Applicant: Bayside Solicitors Crown Director of Public Prosecutions LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/11/1478 LOWER COURT JUDICIAL OFFICER: Hoskings QC DCJ - 10 - IN THE COURT OF CRIMINAL APPEAL 2005/1945 GROVE J ROTHMAN J 10 March 2006 James LIVAS v REGINA Judgment 1 GROVE J: I agree with Rothman J. 2 ROTHMAN J: The applicant seeks leave to appeal, and, if granted, presses an appeal against the sentence imposed by his Honour Judge Hoskings QC in the District Court on 5 April 2005. The applicant pleaded guilty to possession (deemed supply) of a prohibited drug, being cannabis, and was sentenced to imprisonment for a fixed term of 6 months from 4 April 2005 which, ordinarily, would have expired on 3 October 2005. The applicant was granted bail on 5 May 2005 pending this appeal. The maximum penalty for the offence under s.25(1) and s.29 of the Drug Misuse and Trafficking Act 1985 is imprisonment for 10 years and/or a fine of 2,000 penalty units. 3 The applicant came to the attention of law enforcement agencies while they were conducting an investigation, code named S/F Corkscrew, into interstate trafficking of cannabis by a Melbourne resident, Peter Scott, and his associates (hereinafter "the Scott Syndicate"). 4 On 12 September 2003, one of the couriers in the Scott Syndicate was returning from Sydney to Adelaide, with a fresh shipment of cannabis and met with the applicant and supplied him with 2.26 kilograms of cannabis in exchange for an undisclosed amount of cash. 5 The material before his Honour disclosed that the applicant had been a user of cannabis since the age of 19 and that he had agreed, for a payment of $500, to collect this package for his usual supplier. It was not alleged that the applicant was a member of the Scott Syndicate. 6 2.26 kilograms of cannabis is slightly more than twice the indictable quantity and approximately one-tenth of the commercial quantity of cannabis. His Honour described the offence in terms of the quantity of drug involved as "at the lower end of the scale". With this description I agree. 7 His Honour took into account the sentence imposed on members of the Scott Syndicate and in particular an accused, Israel Gosling, "whose criminality was more like the criminality of [the applicant]", as described by his Honour, and who was sentenced by Hock DCJ to 9 months non-parole period with an additional term of 9 months. In sentencing the applicant, Hosking DCJ made clear that he was imposing a sentence that would have been higher but for the parity that he considered was needed with Mr Gosling's sentence. In so doing, he accepted that Mr Gosling's involvement at least included three times the quantity of cannabis with which the applicant was charged. His Honour does not seem to take account of the fact that Mr Gosling was a member of the Scott Syndicate and was therefore involved, in a real sense, with trafficking in cannabis. Indeed, it seems that his Honour did not look at those remarks on sentence or any statement of facts in relation to Mr Gosling. 8 The issue concerning Mr Gosling is further compounded by the fact that Mr Gosling was sentenced at the time by Hock DCJ, not only for deemed supply of over 7 kilograms of cannabis, but also with the supply of ecstasy and driving offences. There were also offences involving the possession of cannabis and goods in custody that were taken into account on a Form 1. Mr Gosling had a previous entry in his criminal history for stealing from a person and received some leniency for an otherwise unblemished record. 9 The applicant raises five grounds in the application which are: a The sentence imposed by his Honour was manifestly excessive; b His Honour failed to consider a sentence other than full time imprisonment and thereby erred in determining that the only available sentence was a sentence of full time imprisonment; c His Honour erred in his approach to the question of whether the appellant was a member of the "Scott Syndicate"; d His Honour erred in his application of the parity principle in relation to Mr Israel Gosling; e His Honour erred in finding that he was unable to determine whether the appellant was remorseful and/or likely to re-offend. Manifestly Excessive 10 In oral argument, Counsel for the applicant subsumed the ground, that the sentence was manifestly excessive, within the other grounds and particularly ground (b). Treating this ground as a separate and quite distinct ground and allowing for all the circumstances of this case to the benefit of the applicant, a fixed term of imprisonment of six months for a person involved in this activity is not outside the range of penalties available and could not be said to be manifestly excessive. If the applicant were otherwise incapable of pointing to a disclosed error in the reasoning of his Honour, the result of the sentence would not be such as to cause the Court to infer that there has been a failure to exercise properly the discretion which the law has reposed in the sentencing judge. Upon the facts before the sentencing judge, the sentence is not so unreasonable or so plainly unjust as to cause the Court to find that error has occurred. I do not find that the sentence imposed was manifestly excessive. Consideration of a Sentence other than Full-Time Imprisonment 11 Only in exceptional circumstances will a non-custodial sentence be appropriate for drug traffickers. Such a principle has been made clear by this Court on a number of occasions. Further, the foregoing policy, adumbrated by this Court, applies to all drug trafficking, not only those in which it has been demonstrated that a profit has been obtained. The policy is directed to the trafficking or dissemination of drugs to others. Where a profit has been made and there has been commercial exploitation, a more serious view of the offence may be appropriate, but the policy applies to trafficking simpliciter. (Pilley (1991) 56 A Crim R 202 at 208) 12 The circumstances of this particular offence do not, on the material before Hosking DCJ, go beyond that which is described above. In other words, it is not clear that the applicant was involved in actual trafficking. Facts used against an applicant, or against any defendant at a sentencing hearing, must be proven beyond a reasonable doubt. Facts proven by a defendant, to be used for the benefit of that defendant, need only be proven on the balance of probability. 13 In determining that the authorities required a custodial sentence, it was necessary for his Honour to find, beyond a reasonable doubt, that the applicant was involved in trafficking. The material before his Honour was not capable of satisfying such a burden on that issue. As was made clear by this Court in Bardo (unreported) NSWCCA, 14 July 1992: "The word 'trafficking' clearly carries with it the connotation of supply on more than one occasion. This present case of the supply of a relatively small amount of drug on one occasion does not amount to trafficking in a substantial degree, and the Judge was not bound to find exceptional circumstances before he considered other than a custodial sentence." (per Hunt CJ at CL, with whom Sheller JA and Badgery-Parker J agreed) 14 Notwithstanding my general agreement with the principles in the above quote, a person may be involved in "trafficking" without necessarily supplying on more than one occasion. But in the circumstances of the present case, there is, as a matter of law, no evidence that the applicant was involved in supply, in anything other than a deemed or technical sense, at all. 15 The Crown, in relation to this ground of appeal, correctly submitted that "merely because a person is found on one occasion to have in his or her possession for the purpose of supply, a quantity of drugs, it does not follow that a sentence of full-time custody is not appropriate." That statement of principle is correct. However, it misses the thrust of the submission of the applicant. The applicant does not say that a sentence of full-time custody may not be appropriate in a one-off transaction, only that a sentence other than full time custody was not necessarily precluded yet was not considered by his Honour. 16 As his Honour made clear in his remarks on sentencing, he was not prepared to consider a non-custodial sentence unless the applicant could show exceptional circumstances. His Honour found that there were no exceptional circumstances and therefore considered himself constrained by authority to fix a custodial sentence. In so doing, his Honour was in error in the exercise of his discretion by failing to take into account a relevant circumstance or, more accurately, by constraining his discretion in a way which was, as a matter of law, impermissible. Membership of the Scott Syndicate 17 His Honour concluded that a decision could not be made on the material before him whether the applicant was a member of the Scott Syndicate. As a finding of membership of the Scott Syndicate would disadvantage the applicant, it cannot be used against him unless there were proof of the fact beyond reasonable doubt. There was not. But, his Honour did not hold, or seemingly take into account, that the applicant was a member of the Scott Syndicate. There are some equivocal statements, one interpretation of which is that his Honour had regard to the applicant's association with the Scott Syndicate or its members. In the circumstances, the finding, or lack of finding, was not a matter which gave rise to an error in the sentencing. Parity with Israel Gosling 18 I have already dealt with the sentencing Judge's parity statements. There is no doubt that the applicant received a more lenient sentence than did Mr Gosling. For the two charges of which Mr Gosling was convicted, including the Form 1 offences Hock DCJ took into account, Mr Gosling received an effective sentence of nine months' non-parole period and a further nine months as the remainder of the sentence. As already stated, the applicant received a fixed term sentence of six months' imprisonment. I have already set out in very summary form the circumstances surrounding Mr Gosling. He was undeniably a member of the Scott Syndicate. He faced two charges, being the supply of ecstasy and cannabis. Even if one confined a comparison with the applicant to the supply of cannabis, Gosling was involved, in this single incident, in over 3.5 times the quantity of cannabis and his involvement in the Scott Syndicate leads one necessarily to the view that his moral culpability and criminal conduct was significantly greater than the applicant's. Further, in relation to Mr Gosling, Hosking DCJ said: "I have not seen Judge Hock's remarks on sentence or a statement of facts in relation to Gosling, nor do I know if he had a criminal record." 19 Judge Hock's remarks on sentence were said to have been handed up as part of the Crown Exhibit at the hearing on 31 March 2005 (see transcript pages 6 and 7) but were not originally part of the exhibit in our papers. It may be that they were not before his Honour notwithstanding the description on transcript. In circumstances where his Honour has applied principles of parity with Mr Gosling in sentencing the applicant, those remarks on sentence were matters relevant to the exercise of his Honour's discretion. In the circumstances his Honour has failed to take into account relevant material and in so failing, his Honour's discretion has miscarried. Failure to take into account relevant material in the exercise of a discretion is an error. Failure to find Remorse or Lack of Likelihood to Re-offend 20 This ground of appeal is not made out. While his Honour declines to find remorse or a lack of likelihood to re-offend, his Honour was not required to make such findings. Notwithstanding that there was material before his Honour upon which such a finding could have been made, there was no requirement that his Honour make such a finding. There may be circumstances where failure so to find would amount to error. This is not such an occasion. A plea of guilty, the compliance with bail conditions, his personal circumstances and his prior use of marijuana are each matters which go, in the circumstances in which they were raised, to the existence of contrition and remorse. However, they do not require such a finding. Practical Impact of Errors 21 The failure to take into account relevant material and the impermissible constraining of the exercise of discretion in which is Honour was involved are errors in the exercise of that discretion. The question remains as to whether or not such errors had a practical impact upon the sentence imposed by his Honour. It may be that they did not, because, as earlier stated, the sentence is not outside the range of sentences that could have been imposed by his Honour. Nevertheless it is impossible to conclude that the failure to consider a non-custodial term did not have a significant impact upon the sentence that was imposed. In those circumstances it is appropriate that the Court consider the sentence afresh. 22 An important principle in sentencing any offender is the proposition that a full-time custodial sentence should only be imposed when no other sentence is appropriate. (See s.5(1) Crimes (Sentencing Procedure) Act 1999; R v James (1995) 14 A Crim R 364) 23 Further, the legislature has made it clear that where a sentence of six months or less (as is the case here) is imposed, the Court must record its reasons for deciding that no penalty other than imprisonment is appropriate. In this case, his Honour's reason, as expressed, is that he was constrained to impose a full-time custodial sentence because of the authorities, as he understood them. In those circumstances, the Court must reconsider that issue. Resentencing 24 This Court has before it material that was not before his Honour below and has had the benefit of evidence disclosing the conduct of the applicant between the time of his original sentence and the date on which the matter came before the Court. As already stated, a judge of the Supreme Court granted bail to the applicant, pending the determination of this appeal, and the applicant has been on supervised liberty and complied with the bail conditions since that time. Part of that supervised liberty has been that the applicant has been drug free for that period and has continued to be the primary carer of his father and mother who suffer various serious health issues. The pre-sentencing report notes his remorse and evidences the maintenance of his drug-free status which has been confirmed by urinalysis results. 25 The same pre-sentence report assesses the applicant as suitable for a community service order but unsuitable for periodic detention. His lack of suitability for periodic detention is occasioned by his role as primary carer for his elderly and ill parents and because he presents with a self-disclosed history of depression. 26 Further, I am entitled to take into account the fact that the offender has already been incarcerated for one month of his sentence together with the other matters to which his Honour the sentencing Judge referred. I also have regard to the fact that the applicant has been under supervision since 5 May 2005 for a period far longer than the totality of the sentence originally imposed. There is much academic material that the most significant aspect of any punishment is the first few months of imprisonment, the level of discomfort reaching a plateau after an initial settling period. In the current situation, the imposition of a further gaol sentence would require two settling periods which, in and of themselves, may be harsher than the effect of the totality of the six months' sentence imposed below . 27 In all the circumstances, and taking into account all the subjective circumstances of the applicant, I propose that: a Leave to appeal be granted; b The appeal be allowed; c The sentence imposed by his Honour Judge Hosking SC on 5 April 2005 be quashed and in lieu thereof the Court impose the following sentence: i. Imprisonment for a term of 6 months to date from 1 February 2006 and to expire on 31 July 2006; ii. Under s.12 of the Crimes (Sentencing Procedure) Act 1999 I order the execution of such sentence be suspended for the term of the sentence; iii. I direct that the prisoner be released from custody on condition that the prisoner enter into a good behaviour bond for the term of the sentence. Conditions applying during the term of the bond are as follows: a) To appear before the Court if called upon to do so at any time; b) To be of good behaviour; c) To advise the Registrar of the Court of any change in residential address; d) To report to the office of the NSW Probation and Parole Service within 48 hours; e) To accept the supervision, and obey all reasonable directions, of the NSW Probation and Parole Service during the term of the bond; f) Not to consume any prohibited substance; g) Such other standard conditions as are required by the NSW Probation and Parole Service. 28 The practical and effective result will be that the applicant will have served one month's imprisonment and over 14 months' supervision, if he does not breach the conditions. The 14 months' period does not take account of the supervision under which he operated while on bail between May 2004 and May 2005. In all the circumstances that will be sufficient. ********** 10/03/2006 - typographical error - Paragraph(s) coversheet 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.