Postlewaight v R [2007] NSWCCA 230

New South Wales Court of Criminal Appeal

CITATION: Postlewaight v R [2007] NSWCCA 230

HEARING DATE(S): 11/7/07

JUDGMENT DATE: 2 August 2007

JUDGMENT OF: Tobias JA at 1; Latham J at 2; Mathews AJ at 3

DECISION: 1. Leave to appeal granted. 2. Appeal allowed. 3. The sentence imposed by Sweeney DCJ on 13 October 2006 quashed. 4. In lieu, a sentence to imprisonment consisting of a non-parole period of one year, to date from 8 October 2006 and to expire on 7 October 2007, with an additional term of two years, to commence on 8 October 2007 and to expire on 7 October 2009.

CATCHWORDS: Sentencing appeal - plea of guilty to being knowingly concerned in the supply of cocaine - applicant's role in offence overestimated by sentencing judge - sentence above normal range for this offence - sentence manifestly excessive

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985

PARTIES: Jeremy George Postlewaight v R

FILE NUMBER(S): CCA 2007/894

COUNSEL: P Boulten SC (Appl) J A Girdham (Crown)

SOLICITORS: William O'Brien Solicitors (Appl) Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/11/0623

LOWER COURT JUDICIAL OFFICER: Sweeney DCJ

LOWER COURT DATE OF DECISION: 13/10/06

IN THE COURT OF CRIMINAL APPEAL 2007/894

TOBIAS JA LATHAM J MATHEWS AJ

THURSDAY 2 AUGUST 2007 JEREMY GEORGE POSTLEWAIGHT v R Judgment 1 TOBIAS AJ: I agree with Mathews AJ. 2 LATHAM J: I agree with Mathews AJ. 3 MATHEWS AJ: The applicant seeks leave to appeal against the severity of a sentence imposed by Sweeney DCJ at the Sydney District Court on 13 October 2006. Her Honour sentenced the applicant to imprisonment comprising a non-parole period of three years, to commence on 8 October 2006, with a balance of one year. This followed the applicant's plea of guilty to one count of being knowingly concerned in the supply of a prohibited drug, namely 5.2 grams of cocaine, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985. Two other offences under s 25(1), each concerning 28.4 grams of cocaine, were taken into account by her Honour on a Form 1. 4 In sentencing the applicant, her Honour had regard to a relatively brief statement of facts, a statement made by a co-offender Saxon Ball, and the transcript of several intercepted telephone conversations involving another co-offender, John Kazzi. 5 From these documents the following facts emerged. In the second half of 2004 Ball started to purchase quantities of cocaine, generally in one ounce lots, from Kazzi. The cocaine was partly for his own use, Ball said, and partly for resale. The usual pattern was for the transaction to take place at Kazzi's apartment at Bondi. However on three occasions, in January and February 2006, Kazzi arranged for Ball to drive his car to a particular place at a specified time. On each of these occasions the applicant went to Ball's car and placed in it the quantity of cocaine which Ball had previously arranged to purchase from Kazzi. There was no conversation between them except, on the first occasion, when the applicant asked "You Sax?" and Ball responded "Yep". 6 On the third of these occasions, on 17 February 2006, the amount delivered was 85.2 grams, or 3 ounces, of cocaine. It was this transaction which constituted the offence to which the applicant pleaded guilty. The two earlier transactions, which involved the delivery of 28.4 grams, or one ounce, of cocaine were taken into account under Form 1. On none of these occasions did Ball give the applicant any money. 7 In addition to these rather sparse facts, her Honour had a considerable body of material before her relating to the applicant's personal circumstances. This consisted of a report from the Probation and Parole Service, a report from a forensic psychologist Tim Watson-Munro, a report from Waverley Drug and Alcohol Centre, and references from various people who knew the applicant, including some of his previous employers. Two of his previous employers also gave evidence on his behalf during the sentencing proceedings. 8 From this material the following picture emerges. At the time of sentence, the applicant was 29 years old, having been born on 22 April 1977. When he was about 8 years old his parents separated. He moved to New Zealand with his father. However when he was about 13, his father started a relationship with a woman with whom the applicant did not get on, so he returned to Australia to live with his mother. It is clear that his mother had significant problems relating to depression and drug abuse. Indeed when the applicant returned to live with her in 1991, she was on a bond in relation to two charges of supplying cocaine. 9 The applicant left school after completing the School Certificate. He later undertook a number of courses in various subjects such as tourism, hospitality and security operations. He has worked in various different capacities, including as a builder's labourer, a car wholesaler, a driver, a maintenance worker, a security officer and others. At the time of his sentencing he had commenced his own property maintenance business. 10 The applicant's only previous conviction was for a drink driving offence in 2003. For about four years before his sentencing he had been in a close and supportive relationship with a woman who worked in the fashion industry. They had bought an apartment together and were planning to marry, but these plans were put on hold when the applicant was arrested. His partner remains fully supportive of him and they intend to continue their relationship and get married after his release. 11 The psychologist, Mr Watson-Munro, noted in his report dated 9 October 2006 that the applicant had long standing symptoms of depression and anxiety. Mr Watson-Munro considered that this related, at least in part, to his problematic childhood, which was characterised by an absence of appropriate parental supervision and role modelling. At about the age of 17 the applicant started to take cocaine. His addiction to this drug continued until shortly before his sentencing. Mr Watson-Munro attributed his drug addiction to his other psychological problems arising from his dysfunctional childhood. He considered that there was a direct nexus between the applicant's drug addiction, his impairment of judgement and the offences which were before her Honour. After the applicant was charged in relation to these offences he started attending counselling sessions at the Waverley Drug and Alcohol Centre. This was the first time he had taken positive steps to address his drug addiction. A very favourable report from the Centre was put before her Honour on sentence.