Pearman v R [2007] NSWCCA 342

New South Wales Court of Criminal Appeal

CITATION: Pearman v R [2007] NSWCCA 342

HEARING DATE(S): 10 December 2007 JUDGMENT OF: Grove J at 1; Simpson J at 22; Barr J at 23

EX TEMPORE JUDGMENT DATE: 10 December 2007

DECISION: Appeal allowed; Sentenced imposed in District Court quashed; Resentenced

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - Supply of prohibited drug - Incidental involvement of offender - Assisting in delivery from home of his partner to her brother - No suggestion of commercial or other interest by offender - Low level of criminality - Co-offenders sentenced for other offences and as actual dealers - Parity - Difference in sentence justifying sense of grievance in appellant

CASES CITED: Lowe v The Queen (1984) 154 CLR 606

PARTIES: Troy Edward PEARMAN (Appellant) REGINA (Respondent)

FILE NUMBER(S): CCA 2007/2855

COUNSEL: I Nash (Appellant) D Woodburne (Respondent/Crown)

SOLICITORS: S O'Connor (Legal Aid Commission) S Kavanagh ( Public Prosecutions)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/31/0170

LOWER COURT JUDICIAL OFFICER: Bell DCJ

LOWER COURT DATE OF DECISION: 20 February 2007

IN THE COURT OF CRIMINAL APPEAL CCA 2007/2855

GROVE J SIMPSON J BARR J

10 December 2007 Troy Edward PEARMAN v REGINA Judgment 1 GROVE J: This is an application for leave to appeal against severity of sentence imposed by Bell DCJ at Gosford District Court. The applicant pleaded guilty to supplying a prohibited drug (methylamphetamine) and was sentenced to imprisonment consisting of a non-parole period of fourteen months and a balance term of ten months. 2 At the commencement of his remarks his Honour recorded the Crown's acceptance that the applicant's involvement was at the lower end of the scale of seriousness for the offence. I would comment that his actions, which I will recount, were minimal and it is not difficult to perceive how he may have considered his actions defensible until appropriate legal advice was given to him and he offered the plea of guilty. 3 The applicant had a long term relationship with a Ms Shelley Ward and was the father of two of her children. As at the date of the offence (23 March 2005) Ms Ward resided at Narara and the applicant resided in Terrigal. He was at her house on the day taking a shower. Ms Ward's brother Clinton telephoned her and said that one Dean Talbot would deliver something to her which he asked be brought to him. The applicant was told of the call when he emerged from the shower. Immediately thereafter Talbot arrived and handed the applicant an envelope. The applicant knew that the envelope contained drugs of some kind, in fact the content was two hundred and fifty four tablets of methylamphetamine. 4 Despite a suggestion from Clinton Ward that the envelope should be transported by being secreted in his sister's underclothing, the applicant, in what his Honour said might in some circles be regarded as a chivalrous act, put the envelope in his own "bum bag". The applicant, Ms Ward and two children set off on a journey with multiple intended destinations including delivery of the drug to Clinton Ward. Ms Ward was driving the vehicle. 5 Police were surveying the actions of Clinton Ward and Dean Talbot in particular, as well as lawfully intercepting and recording telephone conversations between them. They stopped the vehicle in which the applicant was riding and located the tablets. The applicant gave untrue responses to questions about the source of the drugs. However, his entire involvement was as above described, that is, taking possession of the drugs whilst Ms Ward provided transport to enable the drugs to be moved from her house to her brother. Whether this staggered delivery instead of Talbot taking the drugs directly to Clinton Ward was calculated to escape fears of surveillance by police is speculative. 6 The sole ground of appeal is in these terms: "The applicant has a justifiable sense of grievance arising out of the disparity between the sentence he is serving and the sentences imposed upon his co-offenders, Clinton Ward and Dean Talbot." 7 The principles to be applied when such a ground is advanced are well established (Lowe v The Queen (1984) 154 CLR 606 and cases following it), and do not require recapitulation. 8 Analysis is complicated by the circumstance that both Clinton Ward and Dean Talbot were dealt with for multiple offences including involvement in the offence charged against the applicant, and it is appropriate to assume that considerations of totality would be reflected in the construct of sentences received by those offenders. 9 Clinton Ward pleaded guilty to three charges as follows: "i knowingly take part in the supply of a prohibited drug (1,381.5 grams of cannabis leaf) between 1 December 2004 and 26 May 2005; ii knowingly take part in the supply of a prohibited drug (300 tablets containing methylamphetamine weighing 75 grams) between 1 December 2004 and 26 May 2005; and iii knowingly take part in the supply of a prohibited drug (250 tablets containing methylamphetamine weighing 90.5 grams) on 23 March 2005." 10 It is the third charge in which the applicant was also involved. Clinton Ward was sentenced by Andrew ADCJ to imprisonment consisting of a non-parole period of eighteen months with a balance term of six months for the first offence (cannabis) and for each of the second and third offences (methylamphetamine) to imprisonment consisting of a non-parole period of two years with a balance term of twelve months accumulated to the extent of twelve months on the firstmentioned sentence. The overall effect was an aggregate non-parole period of three years and a balance term of one year. 11 The remarks on sentence of Andrew ADCJ were placed before Bell DCJ when sentencing the applicant but he was not provided with the judgment of this Court when the sentences on Clinton Ward were varied resulting in the non-parole periods for the methylamphetamine offences being reduced to eighteen months but the balance terms extended to eighteen months. The consequent aggregate sentence became a non-parole period of two years and six months with a balance term of eighteen months. 12 Talbot pleaded guilty to seven charges, namely: "i manufacture a prohibited drug (164 grams of methylamphetamine) between 30 November 2004 and 27 May 2005; ii supply a prohibited drug (90.51 grams of methylamphetamine) on 23 March 2005; iii supply a prohibited drug (112.5 grams of 3.4 methylenedioxy methylamphetamine) between 12 January 2005 and 27 May 2005; iv supply a prohibited drug (98 grams of methylamphetamine) between 4 January 2005 and 27 May 2005; v supply a prohibited drug (5,932 grams of cannabis) between 12 January 2005 and 27 May 2005; vi supply a prohibited drug (14.19 grams of methylamphetamine) on 27 May 2005; vii possess prescribed restricted substances (Kynoslene, Stanazol and Sustanon) on 27 May 2005." 13 O'Connor DCJ, when sentencing Talbot was asked also to take into account five further offences on two separate Forms 1. He did so when imposing sentence for offences above numbered i and vi. 14 Talbot was sentenced as follows: "In respect of counts ii, iii, iv and vi, terms of imprisonment of 2 years commencing from 2 March 2007 and expiring on 1 March 2009. In respect of count v, a term of imprisonment of 12 months commencing from 2 March 2007 and expiring on 1 March 2008. In respect of count vii, a term of imprisonment of 9 months commencing from 2 March 2007 and expiring on 1 December 2007. In respect of count i, imprisonment for a term comprised of a non-parole period of 2 years commencing from 2 September 2008 and expiring on 1 September 2010, and a balance of term of 2 years expiring on 1 September 2012." 15 In each of the cases of Clinton Ward and Talbot the judge expressed himself as applying a 25 per cent "discount" for prompt plea of guilty. The applicant's plea was not prompt and he was granted a 15 per cent "discount". 16 The Crown Prosecutor has helpfully "back calculated" the terms for the methylamphetamine offences against those stated discounts. The notional starting sentences would therefore have been: (a) for the applicant, total term 28.2 months, non-parole period 16.5 months; (b) Clinton Ward, total term 4 years, non-parole period 2 years 8 months but, after appeal, total term 4 years, non-parole period 2 years and (c) Talbot, fixed term 2 years 8 months. 17 It should be noted that Talbot had no criminal record. The applicant had such a record but his Honour found that "to his credit" he had not been involved in any offence since 2000 and he placed "small weight" on the record of previous convictions. 18 Andrew ADCJ found that Clinton Ward was part of an organized activity of drug supply in which he participated at a number of levels. He was involved in arranging to obtain drugs and paying for them and on-selling and collecting the proceeds of sale. He was involved in the offences for commercial gain as well as a need to feed his own habit. 19 O'Connor DCJ found that Talbot (and his brother who was also involved in offences with him) was at a higher level of criminality than Clinton Ward and that they were "middle level suppliers" involved in the manufacture and supply of drugs. Although those aspects were found, focus needs to remain on what Talbot was actually charged with. 20 Making every allowance for matters of discrimination I conclude that the applicant's ground of appeal has been made good. My conclusion substantially is based upon the vast gap between the criminality observable in the activities of Clinton Ward and Talbot constituting their participation in the offence and the almost incidental part played by the applicant and I do not consider that the ultimate differences in the sentences sufficiently reflect the gap. That is not to trivialize the applicant's voluntary participation in what he undoubtedly knew was drug supply. It is, however, significant that there was no suggestion that he was involved for any commercial gain and his participation emerged from his coincidental presence at Ms Shelley Ward's house when Talbot made the delivery. 21 I propose the following: