New South Wales Court of Criminal Appeal CITATION: LANGHAM v REGINA [2006] NSWCCA 306 HEARING DATE(S): 7 September 2006 JUDGMENT DATE: 22 September 2006 JUDGMENT OF: Mason P at 1; Sully J at 41; Latham J at 42 DECISION: Leave to appeal granted, appeal dismissed. CATCHWORDS: APPEAL AGAINST SENTENCE – Imprisonment – Drug misuse and trafficking – Whether failure to take into account subjective factors and special circumstances – Post-traumatic stress and depression – History of drug use – Low recidivism risk – Whether sentence should have been partly cumulative. LEGISLATION CITED: Drug Misuse & Trafficking Act 1985 Crimes (Sentencing Procedure) Act 1999 PARTIES: Terence John LANGHAM REGINA FILE NUMBER(S): CCA 2005/1720 COUNSEL: Applicant: S Kluss Crown: W Dawe QC SOLICITORS: Applicant: R Hill Crown: S Kavanagh - Public Prosecutions LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 05/51/0025 Lismore LOWER COURT JUDICIAL OFFICER: Black DCJ LOWER COURT DATE OF DECISION: 24/02/06 IN THE COURT OF CRIMINAL APPEAL CCA 2005/1720 DC 05/51/0025 (Lismore) MASON P SULLY J LATHAM J Friday 22 September 2006 Terence John LANGHAM v REGINA Judgment 1 MASON P: On 26 October 2005 the applicant pleaded guilty to both counts in an indictment. The first count charged that between 20 and 30 October 2003 he and a co-offender Justin Spalding manufactured a prohibited drug, methylamphetamine. This is an offence under s24(1) of the Drug Misuse and Trafficking Act 1985 that, as to the quantity involved, carried a maximum penalty of 15 years imprisonment or a 2000 penalty unit fine or both. 2 The second count charged supplying methylamphetamine between 7 May and 7 June 2004. This is an offence under s25(1) of the said Act and carried a similar maximum penalty. 3 The applicant asked that one further matter on a Form 1 be taken into account, namely inciting K G Preston to be in possession of Telfast Decongestant tablets intending them to be used in the manufacture of methylamphetamine. This offence occurred on 3 June 2004 and it carried a maximum penalty of 10 years imprisonment or a 2000 penalty unit fine or both (see ss24A, 27). 4 The applicant and his co-offender were sentenced on 24 February 2006 by Judge Black QC in the District Court. 5 On count 1 and taking into account the matter in Form 1, his Honour imposed on the applicant a sentence of 3 years 4 months imprisonment commencing 19 July 2004 and expiring on 18 November 2007. There was a non-parole period of 2 years 6 months commencing on 19 July 2004 and expiring on 18 January 2007. 19 July 2004 was the date on which the applicant was taken into custody when charged with the instant offences. 6 On count 2 there was a sentence of 2 years imprisonment commencing on 18 July 2006 and expiring on 17 July 2008. The non-parole period of 18 months commenced on 18 July 2006 and expired on 17 January 2008. 7 There was thus an effective total sentence of 4 years with a non-parole period of 3½ years. 8 The applicant and his co-accused were engaged in manufacturing the drug between 20 and 30 October 2003. 9 On 29 September 2003 the applicant took a lease of a rural property at Bilambil. Shortly before 29 October 2003, his son and girlfriend left the premises and went to the police alerting them of suspicions of an illegal activity going on downstairs at the house. They had noticed very pungent smells and overheard conversations between the two men about manufacturing methylamphetamine. 10 On 29 October 2003 the police executed a search warrant at the property. They located a partly dismantled clandestine laboratory in the kitchen/laundry area of the lower portion of the house. The fingerprints of the applicant and of his co-offender were found on some of the items in the laboratory. Also located were 1541grams of liquid containing a mixture of methylamphetamine and pseudoephedrine. 11 Later on 29 October 2003 the applicant was interviewed by police at the property. In his wallet and motor vehicle were documents containing chemical formulas relevant to the manufacture of methylamphetamine. The police also found receipts for the purchase of implements which can be used in the manufacturing process. 12 The applicant denied any involvement in the manufacture of amphetamines at the premises. In relation to a piece of cardboard found in his wallet containing the words "1kg iodine at least 11 gms" he claimed to have picked it up from amongst some rubbish he noticed when arriving that evening at the premises. 13 The applicant was not charged on this occasion. Between May and June 2004 his telephone calls were intercepted under warrant. On 17 May there were separate calls in which the applicant arranged to supply methylamphetamine. Further supplies were arranged in calls on 25 May and 6 June 2004. 14 Also during this period the applicant supplied Mr Preston with small quantities of methylamphetamine in exchange for boxes of tablets containing pseudoephedrine. 15 On 7 July 2004 police attended the premises in relation to a fire. The applicant was occupying them at the time. In adjacent burnt bushland the police located 88 empty, weathered and partially burnt pill packets. Seventy one were Telfast Decongestant blister packs of 10 tablets, 15 were Sudafed 12 hour blister packs of 10 tablets and 2 were Actifed blister packs of 15 tablets. Telfast, Sudafed and Actifed tablets contain pseudoephedrine which is commonly used in the manufacture of methylamphetamine. 16 When re-interviewed about the matter on 19 July 2004 the applicant again denied any involvement despite having the intercepted phone calls played to him. He was nevertheless arrested, charged and refused bail. He remained in custody until sentenced. As indicated, the plea of guilty was entered in October 2005. 17 For the purpose of sentencing it was agreed that the two accused were expecting the manufacturing operation to produce 75 gms of pure methylamphetamine. The applicant submits that the operation was unsophisticated and relatively inefficient. 18 The applicant and his co-offender were addicted to methylamphetamine at the time they both agreed to become involved in the manufacturing enterprise. The applicant had the premises and had already organised the collection of pills from which the prohibited substances were to be created. 19 The sentencing judge recognised that the quantity of the drug produced was not as much as the offenders would have liked. He nevertheless described the matter as a significant criminal enterprise. He rejected the claim that the supply offence was only on a very small basis. 20 The applicant was aged 48 at the time of the offence. 21 There were nine separate matters in a list of previous convictions stretching between 1974 and 2005. These included three earlier drug-related offences. The sentencing judge acknowledged that the applicant had appeared before the courts in the past but in nothing as grave as the present charges. 22 His Honour declined to find special circumstances. He acknowledged that there was a significant record of previous convictions. He accepted that there were reasonable prospects of rehabilitation, but simply did not accept that the prospects were in any way exceptional. Notwithstanding the plea of guilty, he did not see any particular reason persuading him that there were special circumstances. 23 The applicant complains about there being no specific reference in the remarks on sentence to significant subjective features, particularly the uncontested evidence that he suffers from a post-traumatic stress disorder that was a significant precursor to his drug usage. 24 Furthermore, the sentences were the first period in full-time custody to be imposed on the applicant. (A sentence of 9 months imprisonment with hard labour imposed in 1983 was overturned on appeal and a sentence of periodic detention for 12 months substituted in lieu.) 25 The applicant was assessed by Mr Taylor, a clinical forensic psychologist. The psychologist records a family history in which the applicant was raised in a reasonably stable family. He left home at the age of 17 having commenced a de facto relationship that lasted seven years. There are three children from this relationship. A second de facto relationship commenced when he was about 24 and lasted about 16 years. The applicant was self-employed in a turf delivery and landscaping business for about 19 years but he had not worked for a number of years prior to the offences due to health problems. 26 In 1998 the applicant was assaulted and stabbed in the head three times. He began to experience blackouts and was subsequently diagnosed as having suffered from post-traumatic stress disorder. He was referred to a psychiatrist who put him on medication and conducted therapy for two years. He then went onto a disability pension. He still suffers from blackouts that are variable in their occurrence. He feels depressed and useless, has difficulty concentrating and has become socially withdrawn. 27 When he was 21 he commenced to smoke cannabis and he continued to do so until he was about 40. When about 45 years of age he began to use amphetamines and had continued to do so on a daily basis until he came to gaol. 28 The psychologist conducted tests indicating that there were symptoms of a chronic PTSD. There is also significant depression of a moderate severity. The applicant has poor self-esteem and focuses a good deal of anger towards himself. 29 The psychologist assessed the applicant as having a low moderate likelihood of recidivism. His most significant risk factor is the potential to become involved again in drug abuse. 30 Four grounds were urged in support of the appeal, namely: 1. Failure to give adequate weight to the offender's subjective circumstances; 2. Failure to consider totality with respect to the imposition of the non-parole period and the overall statutory ratio to be applied to the sentence; 3. Failure to find special circumstances; and 4. The sentences were in all the circumstances manifestly excessive. 31 In my view, the applicant has not demonstrated legal error or that inappropriate sentences were imposed. 32 The individual sentences were entirely within an appropriate range having regard to the criminality involved. The applicant cannot point to any specific error nor to sentences that were excessive for the conduct involved, having regard to the statutory maxima. 33 The reasons of the sentencing judge ought to have referred to Mr Taylor's diagnosis , indicating whether it was accepted or not in light of the slightly different conclusions of Dr Braganza. Be this as it may, the applicant's drug dependency did not excuse his conduct or reduce its criminality to such an extent as to show appealable error in the sentences imposed. 34 His Honour correctly recognised that manufacturing an illegal drug was a serious matter calling for a deterrent sentence. 35 The offence in the second count showed that the applicant was actively involved in supplying the drug months after the events covered by the first count. The decision to make the two sentences partially cumulative was if anything a generous one in all of the circumstances. 36 The primary complaint advanced at the hearing concerned the proportion between the non-parole period and the head sentence. It was submitted that the judge erred in the manner in which the individual sentences were made partly cumulative. 37 Mr Taylor assessed the applicant as having a "low moderate likelihood of recidivism". The risk of recidivism was assessed to less than about 30%. It was stated that the applicant's "most significant risk factor is his potential to again become involved in drug abuse". 38 The applicant went into prison with a history of substance abuse, symptoms of a chronic PTSD and what Mr Taylor described as moderate depression. These factors elicit a degree of sympathy for the applicant, but they do not establish a case for an exceptional period of post-custodial supervision. When the need to address the basic criminality with appropriate custodial sentences is given primary effect (as it should do: see s44(1) of the Crimes (Sentencing Procedure) Act 1999), no appealable error has been demonstrated. 39 Nothing has been advanced to show appealable error with regard to the refusal to find "special circumstances". It is true that Mr Taylor suggested that the applicant "would benefit from a lengthy period of supervision following his release, a condition of which could be that he continue with treatment for his emotional disturbance for as long as it deemed to be appropriate". The psychologist's report does, however, not reveal what he had in mind in his reference to a "lengthy period". In truth, the sentences imposed (in totality) provide for a six month non-parole period at the conclusion of the three and half year custodial sentence. 40 I would grant leave to appeal but dismiss the appeal. 41 SULLY J: I agree with Mason P. 42 LATHAM J: I agree with Mason P. ********** 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.