New South Wales Court of Criminal Appeal CITATION: Lal v R [2006] NSWCCA 197 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 20 June 2006 JUDGMENT DATE: 26 June 2006 JUDGMENT OF: Studdert J at 1; Kirby J at 24; Johnson J at 25 DECISION: Leave to appeal granted; appeal allowed; sentence quashed; in lieu thereof, the applicant is sentenced to a non parole period of twelve months to date from 13 October 2005 and to conclude on 12 October 2006. A parole period of eight months is set, to date from 13 October 2006. LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 CASES CITED: R v Bardo (unreported, NSWCCA, 14 July 1992) R v Clark (unreported, NSWCCA, 15 March 1990) R v Eastway (unreported, NSWCCA, 19 May 1992) PARTIES: Neil Ravindra Lal v Regina FILE NUMBER(S): CCA 2006/1267 COUNSEL: P. Byrne SC (Applicant) G. Rowling (Crown) SOLICITORS: Macquarie Lawyers (Applicant) S. Kavanagh (Crown) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 05/11/0721 LOWER COURT JUDICIAL OFFICER: Sorby DCJ LOWER COURT DATE OF DECISION: 11 November 2005 IN THE COURT OF CRIMINAL APPEAL 2006/1267 STUDDERT J KIRBY J JOHNSON J Monday 26 June 2006 NEIL RAVINDRA LAL v REGINA Judgment 1 STUDDERT J: The applicant, Neil Ravindra Lal, seeks leave to appeal against the sentence imposed upon him by his Honour Judge Sorby on 11 November 2005. On that date the applicant, having earlier pleaded guilty to the offence of supplying a prohibited drug, was sentenced to a non parole period of eighteen months, to date from 13 October 2005, and a further period of twelve months parole was set, to date from 13 April 2007. 2 The drug the subject of the charge was ecstasy and there were ten tablets containing that drug, weighing in aggregate an estimated 2.88 grams. The weight was estimated because the evidence did not disclose the passing of possession of any tablets. The prosecution case, based upon an intercepted telephone conversation in which the applicant participated, was one of an agreement to supply. 3 The quantity of drug was just above the indictable quantity as fixed by the Drug Misuse and Trafficking Act for this category of drug, namely 1.25 grams. 4 The judge took into account two additional offences pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999. The earlier of these offences took place on 9 September 2004, which was two days prior to the supply charge for which the applicant came to be sentenced. The offence on 9 September 2004 was that of knowingly taking part in a cannabis deal in which cannabis contained in a resealable plastic bag was exchanged for a $20 note. 5 The second matter taken into account on the schedule concerned a transaction on 25 September 2004. On that date the applicant knowingly took part in the supply of cannabis, and the weight referred to in the conversation was "half an ounce". 6 The offence charged was in a category for which the maximum penalty imposed is fifteen years imprisonment: s 32 of the Drug Misuse and Trafficking Act. In order to take into account the scheduled offences, the judge was required to give appropriate weight to the need for personal deterrence and for the extraction of retribution: see Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 (2002) 56 NSWLR 146, and in particular the judgment of Spigelman CJ. 7 The offence which the applicant committed on 11 September 2004 was committed after the applicant had been granted bail for the scheduled offence committed on 9 September 2004. This, of course, was an aggravating factor. 8 The first of the grounds of appeal relied upon by Mr Byrne of Senior Counsel is that the sentencing judge fell into error in not giving due weight to the change in circumstances of the applicant at the time he came to be sentenced compared with his circumstances at the time the offence was committed. Put shortly, it is contended that the applicant had taken significant steps towards his rehabilitation. This ground calls for consideration of the applicant's subjective circumstances. 9 The applicant was born in Fiji on 11 August 1979 and his parents came to Australia from Fiji in 1988. The applicant was one of three siblings and it is apparent from the evidence that his mother gave in the sentencing proceedings that the applicant enjoyed strong family support. Indeed, his Honour expressly found this to be the case. The applicant completed his schooling in Western Australia, after which he had a significant motorbike accident which disrupted his studies. Whilst disabled, he fell into bad company and the environment in which the offences were committed. It is to be noted that the three offences were all committed within a period of sixteen days. He was given bail on 26 October 2004 after having been arrested on 28 September 2004, and was on bail for a lengthy period until the date he was sentenced, some twelve months later. In that period he obtained full time employment and embarked upon a TAFE course in warehouse management. The judge expressly found (at ROS 5) that the applicant had made "with strong family support every effort to rehabilitate himself". He also noted (ROS 6) that the applicant had "no criminal antecedents whatsoever to suggest the life of crime". He accepted that the applicant had good prospects of rehabilitation and he also accepted that the applicant pleaded guilty at the first opportunity. 10 The subjective features to which I have referred were features to which the judge referred in his sentencing remarks, and Mr Byrne points to no error in what has been recorded. Rather, the submission is that error is manifest in the sentence which was set. 11 The second mater raised by Mr Byrne was that the sentence imposed was the kind of sentence that might be expected where there was an established course of commercial dealing, and that the applicant's offence did not fit into this category. It was submitted that neither the decision in R v Clark (unreported, NSWCCA, 15 March 1990) nor the decision in R v Bardo (unreported, NSWCCA, 14 July 1992) supported the course here taken by the sentencing judge. 12 In his sentencing remarks, the judge referred to what Hunt J, as he then was, said in Clark in the context of considering a case in which the offender pleaded guilty to two charges of supplying amphetamines, and asked to have taken into account two summary offences, one of possession of cannabis and one of administering amphetamine. The offender was found in possession of three clip seal plastic bags of amphetamine, weighing 13.4 grams, and he admitted he made three or four sales per week, and had been doing so for about one month. The offender had $2002 in cash, which was found to be the proceeds of drug sales. It was in this setting that Hunt J said what was cited by the sentencing judge in the present case, namely: "This court has emphasised on occasions too numerous to mention that sentences involving a substantial general deterrence are to be imposed on drug traffickers, and it has indicated that only in exceptional circumstances will a non custodial order be appropriate. That statement is not, as has been suggested, restricted to cases in which a profit has been obtained." 13 In Bardo reference was made to the principle expressed in Clark, and Hunt CJ at CL said in Bardo: "The point which was made [in Clark ] was that custodial sentences were normally required, whether or not a profit had been obtained, for 'trafficking alone in any substantial degree'. The word 'trafficking' clearly carries with it the connotation of supply on more than one occasion." 14 Mr Byrne submitted that the applicant here could not be categorised as trafficking to a substantial degree. In considering that submission, it seems to me that it would be unrealistic to ignore the scheduled offences, and it is relevant to heed the content of the intercepted conversation in which the applicant participated relevant to the agreement to supply. That conversation had the flavour of supply in other than an isolated transaction. 15 I do not consider that the reference to Clark was inappropriate in the present case, or that it indicates error in approach. Ultimately however, the issue is whether the length of the sentence imposed manifests error. 16 The third ground of appeal is that the judge was too much influenced by the circumstance that the offence committed on 11 September 2004 was committed whilst the applicant was on bail. The judge was correct to refer to this as an aggravating feature. Section 21A(2)(j) of the Crimes (Sentencing Procedure) Act required that he do so. 17 Having reflected on the submissions advanced, I detect no error of fact or of principle in the remarks of the sentencing judge. This leaves, of course, the issue as to whether or not the sentence imposed was manifestly excessive. There was evidence that the applicant had been a drug user but that at the time of the commission of the offence he smoked only "a bit of marijuana" and that whilst on bail he took no drugs. It was open to the judge to find as he did that the applicant was dealing for financial gain (ROS 5). 18 In Clark this court intervened to impose a head sentence of twelve months imprisonment where at first instance sentence had been deferred. Clark was a more serious case than the present one. The sentence set by this court was set with the restraint attendant upon re-sentencing on a Crown appeal. Bardo was a case that involved an isolated episode of supply of 4.9 grams of heroin, less than the indictable quantity of the drug. This court regarded a sentence of community service imposed at first instance to be manifestly inadequate but declined to intervene because of delay on the part of the Crown. 19 Plainly, neither the outcome in Clark nor the outcome in Bardo is determinative of this appeal. The sentence appropriate in this case is to be determined by reference to its own particular features, and this Court has to recognise the discretion available to the sentencing judge. 20 An important feature that the sentencing judge was required to duly weigh was the extent to which the applicant had rehabilitated himself in the period of approximately twelve months during which he was on bail before sentence. This was a feature justifying a shorter custodial sentence than would otherwise have been called for. In R v Eastway (unreported, NSWCCA, 19 May 1992) Hunt CJ at CL cited many cases supporting such justification (see his Honour's judgment at pp 4-5). 21 Here the sentencing judge was, in my view, correct to conclude that this case called for a full time custodial sentence and that there were special circumstances for the purposes of s 44(2) of the Crimes (Sentencing Procedure) Act 1999. His Honour was faced with a difficult sentencing task, but I have come to the conclusion that the length of the sentence determined fails to make due allowance for the rehabilitation level achieved by the applicant, and I consider that in the result the sentence calls for intervention by this Court. 22 The material introduced as Exhibit A further evidences what the applicant has done to rehabilitate himself. 23 I would grant leave to appeal, allow the appeal and quash the sentence imposed. In lieu thereof, I would propose that the applicant be sentenced to a non parole period of twelve months to date from 13 October 2005 and to conclude on 12 October 2006. I would set a parole period of eight months, to date from 13 October 2006. 24 KIRBY J: I agree with Studdert J. 25 JOHNSON J: I agree with Studdert J. ********** 05/10/2006 - "Non parole" period of eight months should read "Parole" period of eight months. - Paragraph(s) Cover sheet - decision. 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