New South Wales Court of Criminal Appeal CITATION: Regina v Stricke [2007] NSWCCA 179 HEARING DATE(S): 28 March 2007 JUDGMENT DATE: 25 June 2007 JUDGMENT OF: Simpson J at 1; Howie J at 2; Hislop J at 3 DECISION: (1) Appeal upheld; (2) The sentence as to count 1 is quashed; (3) In lieu thereof the respondent is sentenced on count 1 to a fixed term of 6 years imprisonment commencing on 2 March 2006 and expiring on 1 March 2012; (4) The sentence as to count 2 is quashed; (5) In lieu thereof the respondent is sentenced on count 2 to a non parole period of 8 years imprisonment commencing on 2 March 2007 and expiring on 1 March 2015 with a balance of term of 5 years commencing on 2 March 2015 and expiring on 1 March 2020; (6) The sentences in respect of count 3 and the goods in custody offence dealt with pursuant to s 166 of the Criminal Procedure Act 1986 are confirmed. CATCHWORDS: Criminal law - Sentencing - Supply prohibited drug - Standard non parole period - Plea - Objective seriousness - Accumulation of sentences. Crimes (Sentencing Procedure) Act 1999 - ss 54A, 54B LEGISLATION CITED: Criminal Procedure Act 1986 - s 166 Drug Misuse and Trafficking Act 1985 - s 25 Mulato v Regina [2006] NSWCCA 282 Pearce v R (1998) 194 CLR 610 R v Drollett NSWCCA unreported 14 February 2002 R v Hammoud (2000) 118 A Crim R 66 CASES CITED: R v Knight [2004] NSWCCA 145 R v MAK [2006] NSWCCA 381 R v Mills [2005] NSWCCA 175 R v Wall (2002) NSWCCA 42 Regina v Way (2004) 60 NSWLR 168 PARTIES: Applicant - Regina Respondent - Max Sheldon Stricke FILE NUMBER(S): CCA 2006/2683 COUNSEL: Applicant - Ms J. Dwyer Respondent - Mr T. Game SC SOLICITORS: Applicant - Director of Public Prosecutions (New South Wales) Respondent - G.J. Goold & Co LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 06/11/0491 LOWER COURT JUDICIAL OFFICER: Tupman DCJ LOWER COURT DATE OF DECISION: 14 November 2006 - 1 - IN THE COURT OF CRIMINAL APPEAL 2006/2683 SIMPSON J HOWIE J HISLOP J 25 June 2007 REGINA v Max Sheldon STRICKE Judgment 1 SIMPSON J: I agree with Hislop J. 2 HOWIE J: I agree with Hislop J. HISLOP J: Introduction 3 The respondent pleaded guilty to the following charges: Count 1 – He did on 7 February 2006 supply an amount of a prohibited drug, to wit, 1.2 kilograms of methylemedioxymethylamphetamine (ecstasy), being an amount which was greater than the large commercial quantity applicable to that prohibited drug contrary to the Drug Misuse and Trafficking Act 1985 s 25(2); Count 2 – He did on 2 March 2006 supply an amount of a prohibited drug, to wit, 4.5 kilograms of methylemedioxymethylamphetamine (ecstasy), being an amount which was greater than the large commercial quantity applicable to that prohibited drug contrary to the Drug Misuse and Trafficking Act 1985 s 25(2); Count 3 – He did on 2 March 2006 supply a prohibited drug, to wit, 32.55 grams of cocaine contrary to the Drug Misuse and Trafficking Act 1985 s 25(1). 4 The maximum penalty for an offence under s 25(2) is life imprisonment or a fine of $550,000 or both. A standard non-parole period of 15 years imprisonment is applicable. The maximum penalty for an offence under s 25(1) is 15 years imprisonment or a fine of $220,000 or both. 5 The respondent was also convicted, pursuant to s 166 of the Criminal Procedure Act 1986, in respect of a charge of goods in custody. The maximum penalty in respect of that offence is imprisonment for 6 months. 6 On 14 November 2006, the respondent was sentenced for those offences by Tupman DCJ as follows: Count 1 – non parole period of 5 years imprisonment commencing on 2 March 2006 and expiring on 1 March 2011 with a parole period of 3 years commencing on 2 March 2011 and expiring on 1 March 2014; Count 2 – non-parole period of 6 years imprisonment commencing on 2 March 2006 and expiring on 1 March 2012 with a parole period of 3 years commencing on 2 March 2012 and expiring on 1 March 2015; Count 3 – fixed term of 2 years imprisonment commencing on 2 March 2006 and expiring on 1 March 2008. Section 166 - goods in custody offence a fixed term of 4 months imprisonment commencing on 2 March 2006 and expiring on 1 July 2006. 7 The aggregate sentence was thus 9 years imprisonment with a non parole period of 6 years. All sentences commenced on 2 March 2006. 8 The Crown has appealed against the sentences on the ground they are manifestly inadequate. It submitted that the individual sentences on counts 1 and 2 and the aggregate sentence did not adequately reflect the objective criminality involved. The Facts 9 The relevant facts, in short, were as follows: Count 1 – The respondent and a Mr Maule became the target of a drug squad investigation in late 2005 and into March 2006. Numerous telephone and other conversations of the respondent were lawfully monitored. The respondent spoke almost daily to Mr Maule during this period in relation to the supply of prohibited drugs. A controlled operation was set up. This resulted in the respondent supplying 5,000 ecstasy tablets weighing 1.2 kilograms to a police undercover operative on 7 February 2006 for the sum of $75,000 cash. The cash was never recovered. A sample of the tablets to be supplied given to the undercover operator before the supply was effected had a purity of 30.5%. Count 2 – On 2 March 2006 the respondent supplied a further 18,000 ecstasy tablets weighing 4.217 kilograms to the police undercover operative. This was part of 25,000 tablets which the respondent had agreed to supply. The respondent was arrested at that time. A sample of the tablets was given to the undercover operative before the supply had been affected. The sample had a purity of 22.5%. Count 3 – Following his arrest the respondent's premises were searched. Cocaine weighing 32.55 grams was located during that search. Section 166 – on his arrest the respondent was searched and $8,460 was located on him. He admitted the funds were unlawfully obtained. The findings 10 Her Honour made the following findings as to the objective seriousness of the offences: 1. All of the offences were very serious particularly counts 1 and 2. The quantity involved in counts 1 and 2 called for condign punishment. The maximum penalty of life imprisonment clearly indicated the seriousness of those two charges. 2. The respondent was involved in the trafficking of illegal drugs to a significant extent. He was more than a mere runner or courier but he did not appear to have any control over the manufacture of the drugs, nor any real ability to source them except through Mr Maule. 3. He was involved in this enterprise for financial gain in part to fund his own addiction to drugs though that was not the only motivation given the size of the enterprise. It was unclear how much the respondent was to receive for his involvement. 4. The fact that the supply was to undercover operatives did not decrease the seriousness of the offence though the fact that the drugs never did and never were likely to find their way to end users was to be taken into account though this was not known to the respondent. 5. The public funds used for the first purchase were never recovered though there was nothing to suggest they had been retained by the respondent. 11 Her Honour concluded the respondent had a very strong subjective case. She made the following findings in that regard: 1. The respondent was a young man (born on 13 May 1977). He had no prior criminal record. 2. He came from a very dysfunctional background being born in South Africa to a relatively well off family who were more concerned in advancing their business interests than the welfare of the respondent. The respondent was sent to boarding school at the age of 5. He started to drink alcohol at about 11 or 12 and to abuse prohibited drugs not long afterwards. His father sent him to Australia on two occasions to live with relatives virtually as a banishment or to get away from what was thought to be temptation. The Australian relatives were not informed of the respondent's problems with alcohol or drugs. 3. The respondent suffers from some brain damage though this does not seriously impact on his behaviour. He has some minor cognitive deficits on testing. This has some, although relatively minor, causal connection with his increasingly addictive behaviour and ultimate involvement in these offences. 4. The Australian relatives are now fully aware of the extent of the respondent's drug addiction and are committed to helping him overcome it. The respondent has been forced to recognise the full extent of his drug addiction and the impact it has on his life. If motivated the respondent can rehabilitate to the extent that hopefully he will not come before the Courts again. His prospects of rehabilitation however, are entirely dependent on remaining drug free and away from the drug milieu and environment. Her Honour accepted the opinion of Dr Greenberg that: … the respondent's overall prognosis was somewhat guarded because he has had such a long, ongoing addiction to drugs and thus his prospects of rehabilitation are somewhat guarded. 5. The respondent pleaded guilty at the first available opportunity. Her Honour assessed the pleas of guilty as giving rise to an overall discount of 30% taking into account both the utilitarian value of the pleas and the contrition and remorse represented by them. Quantification 12 Her Honour, in her Remarks on Sentence quantified the sentences as follows: (a) Count 1 – Absent the plea of guilty an overall term of imprisonment of 12 years would be called for which, reduced by 30%, gives rise to an overall period of 8 years. I would propose a non-parole period of 5 years on the finding of special circumstances. (b) Count 2 – The overall term of imprisonment called for was 14 years as a greater amount of ecstasy than in count 1 was involved. The 14 years is reduced by 5 years to take account of the plea giving rise to an overall period of 9 years. A non-parole period of 6 years was set on the finding of special circumstances. (c) Count 3 – An overall term of imprisonment of about 3 years would have been set, reduced to 2 years to take into account the plea. Discussion 13 The Crimes (Sentencing Procedure) Act 1999 provides: 54A(2) For the purposes of sentencing an offender, the standard non-parole period represents the non-parole period for an offence in the middle of the range of objective seriousness for offences in the Table to this Division. 54B(1) This section applies when a court imposes a sentence of imprisonment for an offence set out in the Table to this Division. (2) When determining the sentence for the offence, the court is to set the standard non-parole period as the non-parole period for the offence unless the court determines that there are reasons for setting a non-parole period that is longer or shorter than the standard non-parole period. (3) The reasons for which the court may set a non-parole period that is longer or shorter than the standard non-parole period are only those referred to in section 21A. (4) The court must make a record of its reasons for increasing or reducing the standard non-parole period. The court must identify in the record of its reasons each factor that it took into account. (5) The failure of a court to comply with this section does not invalidate the sentence. 14 The standard non parole period was framed upon the assumption that the case was determined at trial. Accordingly it is not directly applicable where there has been a plea of guilty. Nevertheless in that situation it serves a role as a reference point – Regina v Way (2004) 60 NSWLR 168 at [122], Mulato v Regina [2006] NSWCCA 282 at [15]. 15 In R v Mills [2005] NSWCCA 175 Wood CJ at CL, with whom the other members of the Court agreed, held: [49] I do not consider that this was a sufficient compliance with the requirements of s 54B(4). A mere statement of the conclusion, accompanied by a confirmation that the submissions of counsel, and the circumstances of the case, have been taken into account, does not constitute an identification of the reasons which are expected in the case which falls within the umbrella of the Division. As is also the case in relation to s 21A of the Act, more is expected than mere lip service to the legislation. What is required is the clear identification of the relevant factors, the weight given to them, and their role in the structuring of the sentencing order. [50] The present case, it may be accepted, was one involving pleas of guilty, so that the role of the standard non parole period was as a reference or check point. That circumstance does not however lessen the obligation to given adequate reasons in relation to this aspect of sentencing. [51] The absence of sufficient reasons does not necessarily guarantee intervention by this Court. 16 Her Honour in her Remarks on Sentence said: It seems to me when assessed objectively and to the extent that such a finding is necessary in any event given the plea of guilty, that none the less these two first offences are below the mid range in terms of objective seriousness. I stress that such a finding may not be necessary in terms of assessing the applicability of the standard non parole period but I make that finding in any event. Perhaps more significantly in terms of the issue of the standard non parole period is that this is a case in which there is a plea of guilty and one entered at the first available opportunity. In accordance with the dicta of the Court of Criminal Appeal in the R v Way , the standard non parole period does not apply strictly, though I am and have, taken it into account as an indicator or guidepost in reaching the appropriate sentence for these two first offences. 17 Her Honour did not identify the factors that caused her to conclude that the offences under counts 1 and 2 were "below the mid range in terms of objective seriousness". 18 It was submitted that the Court should infer from her Honour's starting points for counts 1 and 2 that she had erroneously treated the standard non parole period of 15 years as an indicator of the total sentence rather than an indicator of the non parole period. I would reject this submission. The sentencing Judge was very experienced and an elementary error of the type sought to be attributed to her is, in itself, improbable, particularly as in the relevant passage she made express reference to the "standard non parole period". 19 However the objective factors in this case are such that I am driven to the conclusion that her Honour's assessment of the objective seriousness of the count 1 and 2 offences was erroneous and has led to sentences which are definitely outside the appropriate range in respect of those counts – R v Wall (2002) NSWCCA 42 at [70] and which, notwithstanding this is a Crown appeal, require the intervention of this Court. 20 The objective factors include, in particular, those recorded by her Honour namely the maximum penalty of life imprisonment as an indicator of the seriousness of the offences, the respondent's involvement in trafficking to a significant level and at a level above that of a runner or courier and his involvement in a large scale enterprise for financial gain. To those factors may be added the fact that the total amount of ecstasy involved was more than 10 times the large commercial quantity of 0.5 kg, and the agreed fact that the total street value of the tablets supplied was over $1,150,000. There was nothing in the evidence which suggested that the respondent did not have a full appreciation of the nature, extent and seriousness of the offences. Indeed the respondent said in evidence he thought he was just lucky not to have been caught with drugs or offending at an earlier time. 21 In my opinion the objective seriousness of the count 2 offence places it, at least, in the middle of the range of objective seriousness for an offence under s 25(2) whilst the count 1 offence, because of the lesser quantity of ecstasy involved, is a little below that level. 22 Mathematically the discount which her Honour allowed for the pleas of guilty in respect of counts 1 and 2 exceeded the 30% nominated by her. That discount included an allowance for contrition. Such an allowance is to be avoided - R v MAK [2006] NSWCCA 381 at [42] and [44]. The appropriate discount for the utilitarian value of the plea on resentence is 25 percent. 23 Her Honour found special circumstances in that this was the first time the respondent had been in gaol, his relative youth, the need for rehabilitation and the somewhat longer than normal period of supervision in the community which he would require.The Crown in its written submissions stated: It is not disputed it was open to her Honour to find special circumstances, and the degree of variation of the statutory ratio as such is not the subject of complaint. Resentence 24 In resentencing I have proceeded on the basis the count 2 offence is in the middle of the range for objective seriousness and the count 1 offence a little below that range. I have had regard to the standard non parole period as a reference or check point. I have taken into account the respondent's subjective factors as found by her Honour and her finding of special circumstances. I have had regard to the fact the respondent commenced upon a course of drug abuse whilst in his early teens though this factor has limited importance having regard to the respondent's significant involvement for profit in commercial drug supply. I have had regard to the restraints referred to in R v Wall [2002] NSWCCA 42 at [70]. 25 In my opinion the appropriate sentence on count 2 is a non parole period of 8 years imprisonment with a balance of term of 5 years. 26 In my opinion the appropriate sentence on count 1 is a fixed term of 6 years imprisonment. I would decline to set a non parole period in respect of that sentence as it will be largely subsumed in the sentence imposed for the more serious offence under count 2. 27 I would not vary the sentences in respect of count 3 or in respect of the goods in custody offence. Accumulation 28 Her Honour determined that each sentence should commence on 2 March 2006. Her Honour said, as to the question of accumulation: They are separate offences, but if accumulated would give rise to a total overall period of imprisonment, as to the two more serious of them of 17 years with a non parole period of 11 years, which it seems to me is excessive to reflect the seriousness of the offence and the subjective circumstances of this prisoner. 29 Her Honour made all sentences concurrent. She made no reference in her Remarks on Sentence to the possibility of partial accumulation. The Crown submitted that her Honour erred in structuring the sentences so that they were entirely concurrent with no apparent consideration of the question of partial accumulation. 30 In Pearce v R (1998) 194 CLR 610 at 624 it was held: A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality. 31 It was held in R v Knight [2004] NSWCCA 145 at [31] that: The fundamental principle in sentencing for multiple offences is that the overall sentence imposed must reflect the totality of the criminality evidenced by those offences. 32 The count 1 and 2 offences were very serious. They involved two separate supplies and occurred at different times though each was part of the same police operation. The third count was a separate offence. It was serious and related to a different type of drug though the individual sentence for that offence was not the subject of submissions by the Crown. 33 In R v Hammoud (2000) 118 A Crim R 66 Simpson J said at [7]: Whether or not to accumulate sentences imposed in relation to multiple offences is, in the end, an exercise of discretion to be made in accordance with established principle. 34 In my opinion her Honour erred in the exercise of her discretion in failing to partially accumulate the sentences on counts 1 and 2. In my opinion there must be at least some measure of accumulation in the overall structuring of the individual sentences. Simply to date each of the sentences from a common commencing date entails, in a real sense, that the respondent is not being adequately punished for each of the serious criminal offences committed by him (c/f R v Drollett NSWCCA unreported 14 February 2002). 35 Counsel for the respondent at the sentencing hearing had submitted her Honour could partially accumulate or alternatively could increase the sentence on count 2 to reflect the totality of the criminality disclosed by all of the offences. It was submitted the Crown had said nothing against that submission and could not now assert that her Honour had erred in failing to accumulate the sentence. 36 This Court has interpreted Pearce as prohibiting the practice of increasing a sentence for one offence merely to reflect the totality of the criminality disclosed by all of the offences for which sentence was being passed – R v Knight [2004] NSWCCA 145. 37 A fair reading of the transcript of the sentencing hearing makes it clear that the Crown did not acquiesce in any such approach. A "non response" should not be taken as an acquiescence. Her Honour's approach was, in any event, equivocal. She initially said the count 2 offence required a slightly longer sentence because of the greater amount of ecstasy involved. She used a 14 year starting point as opposed to the 12 years starting point which was used for the count 1 offence and she set a non parole period of 6 years on the same findings of special circumstances as in the first count. Later she stated: I have come to the conclusion that as to the two most serious offences the non parole period of 6 years is sufficient to reflect the totality with a parole period of 3 years, and thus to give rise to that overall assessment of totality, I thus propose that the sentences for the first 2 offences be served concurrently. 38 Bearing in mind the constraints which are applied to Crown appeals as summarised in R v Wall I have concluded that the structure of the sentences should be varied to provide for a partial accumulation of 1 year. Orders 39 I propose the following orders: (1) Appeal upheld; (2) The sentence as to count 1 is quashed; (3) In lieu thereof the respondent is sentenced on count 1 to a fixed term of 6 years imprisonment commencing on 2 March 2006 and expiring on 1 March 2012; (4) The sentence as to count 2 is quashed; (5) In lieu thereof the respondent is sentenced on count 2 to a non parole period of 8 years imprisonment commencing on 2 March 2007 and expiring on 1 March 2015 with a balance of term of 5 years commencing on 2 March 2015 and expiring on 1 March 2020; (6) The sentences in respect of count 3 and the goods in custody offence dealt with pursuant to s 166 of the Criminal Procedure Act 1986 are confirmed. ********** 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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