New South Wales Court of Criminal Appeal CITATION: Budin v Regina [2006] NSWCCA 393 HEARING DATE(S): 8 December 2006 JUDGMENT DATE: 8 December 2006 JUDGMENT OF: McClellan CJ at CL at 16, 18; Simpson J at 1; Hall J at 17 EX TEMPORE JUDGMENT DATE: 12/08/2006 DECISION: Leave to appeal granted. Appeal dismissed. CATCHWORDS: CRIMINAL LAW - application for leave to appeal against severity of sentence - supply of prohibited drug (methylamphetamine) - plea of guilty - special circumstances - subjective circumstances - no error in approach of sentencing judge LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Part 3, Division 3, s44(2) Drug Misuse and Trafficking Act 1985 s25 CASES CITED: R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 PARTIES: Neil Robert Budin - Applicant Crown - Respondent FILE NUMBER(S): CCA 2006/2064 COUNSEL: AP Cook - Applicant D Frearson SC - Respondent SOLICITORS: SE O'Connor - Applicant S Kavanagh - Respondent LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 05/31/0288 LOWER COURT JUDICIAL OFFICER: Woods QC DCJ IN THE COURT OF CRIMINAL APPEAL 2006/2064 McCLELLAN CJ at CL SIMPSON J HALL J Friday 8 December 2006 Neil Robert BUDIN v REGINA Judgment 1 SIMPSON J: On 20 September 2005 the applicant entered a plea of guilty to a charge on an indictment of taking part in the supply of a prohibited drug (methylamphetamine), in an amount of 102.39 grams. The offence was committed on 15 June 2005. The applicant asked that two further offences, identified on a Form 1, be taken into account pursuant to the procedures provided for by Part 3, Division 3 of the Crimes (Sentencing Procedure) Act 1999 ("the Act"). They were one offence of possession of a precursor with the intent that it be used in the manufacture of the prohibited drug, and one offence of possession of a prohibited drug (the drug commonly known as LSD). 2 The charge on the indictment was brought under the provisions of s25 of the Drug Misuse and Trafficking Act 1985, and carries a maximum penalty of imprisonment for 15 years. On 8 December 2005 Woods DCJ sentenced the applicant to imprisonment with a total term of four and a half years, made up of a non-parole period of two years and three months and a balance of term of two years and three months. In order to do so, he found that special circumstances pursuant to s44(2) of the Act existed, justifying departure from the ratio between the non-parole period and the head sentence there stated. The applicant seeks leave to appeal against the sentence. The facts 3 The facts may be simply stated. During the day of 15 June 2005 the applicant called at a number of pharmacies in the Taree district. At each he obtained one packet of Sudafed. Sudafed is a substance used in the manufacture of methylamphetamine. It is restricted in the sense that, while it is available without prescription, by convention pharmacists will supply only one packet at a time to any one individual. The applicant was found to be in possession of eight packets. He was also in possession of five separate plastic bags, containing a total of 10.8 grams of amphetamines, another four resealable bags containing amphetamines, a set of electronic scales, and 10.5 tablets of LSD, valued at $210. The activities undertaken by the applicant in obtaining the Sudafed constituted the offence on the indictment; the applicant's possession of the Sudafed tablets constituted the first of the offences on the Form 1, and his possession of the LSD tablets the second Form 1 offence. 4 After obtaining some Sudafed tablets from a Taree pharmacy, the applicant left in a motor vehicle driven by his wife. Police stopped the vehicle and approached the applicant, who was seated in the passenger seat. The applicant attempted to crumple some paper bags in his hands. The bags were from a number of different pharmacies. He immediately admitted that he had visited the pharmacies for the purpose of picking up Sudafed, and told police where in the vehicle the substance could be found. He also told police that there was amphetamine in the back seat of the car. 5 The applicant was taken to Taree Police Station, where he was interviewed. He continued to cooperate and to make admissions. He said that he was collecting the Sudafed for another person, whom he did not name. 6 He was to be paid $500 for his participation, together with $300 towards his expenses. The applicant remained in custody until sentenced on 8 December 2005. Subjective circumstances 7 The applicant was born on 28 January 1947. He was, therefore, 58 years of age at the time of the offences. While he had some criminal history, it was relatively minor, and well in the past. His most recent previous conviction was in 1990. He was in receipt of an invalid pension. Medical evidence showed that he suffered from "multi-system disease". His diagnosed conditions included (but were not limited to) alcoholic hepatitis, pancreatitis, hernia, bronco-pneumonia, anxiety and depression. Apparently the most significant condition was Paget's disease, a degenerative condition of the bones. A medical report dated 10 November 2005 described him as "a definite candidate for sudden death syndrome". The applicant had had a number of hospital admissions over the years, the most recent in April – May 2004, for leg ulcers. The sentencing proceedings 8 The sentencing proceedings were brief. The applicant gave some oral evidence, principally directed to his state of ill health and the treatment he was able to obtain while in prison on remand. By that time he had been in custody for almost four months (since 15 June). He gave evidence that he was receiving little treatment for his Paget's disease, although he seemed to accept (and the contrary was not suggested) that there is, in truth, little treatment available for that disease. It was suggested that at least he could be more adequately monitored than he had been while on remand in prison. He expressed regret for his involvement in the offences, which he characterised (realistically) as "stupid". 9 In cross examination the applicant agreed that he had become involved simply for the money, and that he himself did not have, and never had had, a drug habit. The remarks on sentence 10 The remarks on sentence were also relatively brief. The sentencing judge found that the plea of guilty had been entered at the earliest opportunity, and allowed a discount of 25% on sentence, in accordance with the principles stated in R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383. 11 His Honour found that the applicant's role in the enterprise was as a "courier", but also found that, notwithstanding that description, his role was "significant" and "important". 12 His Honour considered that the applicant has reasonable prospects of rehabilitation. He concluded that, but for the plea of guilty, an appropriate sentence would have been of a total term of six years, and discounted that by the 25% he had foreshadowed. He found special circumstances by reason (it seems) of the applicant's ill health, particularly the Paget's disease, which was likely to cause deterioration, and the fact that the applicant had not previously served a prison sentence. The application for leave to appeal against sentence 13 It was submitted that, in all the circumstances, the sentence imposed was manifestly excessive. On behalf of the applicant, it was put: · that, properly viewed, the offence was towards the lower end of the hypothetical hierarchy of offences of its kind (as indicated by the quantity of drug involved which, relative to other instances of the offence, was not large); · that the sentence indicates that the sentencing judge either overestimated the applicant's criminality or gave insufficient weight to the medical evidence; · that the applicant's role was merely as a courier (that the applicant was a courier was expressly found by the sentencing judge; "merely" is, perhaps, not an appropriate description given the additional findings that the applicant's role was "significant" and "important"); · that the applicant cooperated with police immediately; · the applicant's effectively clear record; · that the applicant was expressly found to have reasonable prospects of rehabilitation; · that the applicant pleaded guilty at the earliest opportunity (this was explicitly recognised in the reduction of the sentence originally considered to be appropriate); · the applicant's unusually high degree and combination of health deficits; · the applicant's evidence that he was not receiving the medical attention that he required (this, in my opinion, somewhat overstates the evidence: there was no medical evidence that the applicant was in need of any treatment that he was not receiving, and, indeed, his own evidence, to which I have already referred, suggests otherwise). Again, reference was made to the possibility of more extensive monitoring than was able to be given to the applicant while on remand; · the applicant's age (58), providing additional emphasis to his otherwise clear record. 14 Other than those matters to which I have appended some comment in the catalogue above, I accept that what has been put on the applicant's behalf are all relevant sentencing considerations. However, these were all before the sentencing judge, and were, in my opinion, plainly taken into account, either explicitly or by clear implication. 15 I can detect no express error in the approach taken to sentencing by the sentencing judge. I am not persuaded that error can be implied by reason of the length of the sentence. In my opinion, leave to appeal should be granted, but the appeal dismissed. 16 McCLELLAN CJ at CL: I agree. 17 HALL J: I also agree. 18 McCLELLAN CJ at CL: Accordingly, the orders of the court are as proposed by Simpson J. ********** 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.