New South Wales Court of Criminal Appeal CITATION: T v R [2007] NSWCCA 62 HEARING DATE(S): 1/3/07 JUDGMENT DATE: 16 March 2007 JUDGMENT OF: Sully J at 1; Bell J at 2; Hoeben J at 29 DECISION: Grant leave to appeal; Dismiss the appeal CATCHWORDS: Sentencing - offence subject to standard non-parole period - special circumstances applied to extend sentence Crimes Act 1900 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 Drug Misuse and Trafficking Act 1985 SZ v R [2007] NSWCCA 19 R v Barkho [2005] NSWCCA 211 R v Bloomfield (1998) 44 NSWLR 734 CASES CITED: R v P [2004] NSWCCA 218 R v Shi [2004] NSWCCA 135 R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 R v Way [2004] NSWCCA 131; 60 NSWLR 168 PARTIES: T (Applicant) Regina (Respondent) FILE NUMBER(S): CCA 2006/2530 COUNSEL: Ms C Loukas (Applicant) Mr R Herps (Crown) SOLICITORS: S.E. O'Connor (Applicant) S Kavanagh (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 05/21/2015 LOWER COURT JUDICIAL OFFICER: Knight DCJ IN THE COURT OF CRIMINAL APPEAL 2006/2530 CCAP SULLY J BELL J HOEBEN J Friday 16 March 2007 T v R Judgment 1 SULLY J: I agree with Bell J. 2 BELL J: This is an application for leave to appeal against severity of sentence imposed in the District Court on 13 April 2006. 3 The applicant pleaded guilty to an indictment charging him with doing an act with intent to pervert the course of justice contrary to s 319 of the Crimes Act 1900 (indictment 1). This offence carries a maximum penalty of 14 years' imprisonment. The applicant was sentenced to a fixed term of imprisonment for three months to date from 20 May 2005 and to expire on 19 August 2005 for this offence. There is no challenge to this sentence. 4 On the same date the applicant was sentenced for an offence under a second indictment; namely the supply of a prohibited drug, methylamphetamine, in an amount of 351.14 grams, being not less than the commercial quantity applicable to that drug, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (the DMTA) (indictment 2). This offence has a maximum penalty of 20 years' imprisonment and is subject to Div 1A of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Procedure Act). The standard non-parole period (SNPP) for this offence is 10 years. The applicant asked the Judge to take into account two offences on a Form 1 in sentencing him for the DMTA offence. The applicant was sentenced to a non-parole period of three years and nine months to commence on 19 August 2005 and to expire on 18 May 2009 with a balance of term of two years. This sentence will expire on 18 May 2011. The effective sentence is six years' imprisonment with a non-parole period of four years. The facts 5 The count of supply of methylamphetamine was a "rolled up" count relating to discrete supplies of the drug. Between 15 October and 6 December 2004 the applicant supplied an undercover police officer on five occasions with quantities of the drug ranging in amounts between 11.5 grams and 244.4 grams. In all, the five supplies involved 351.14 grams and had an estimated street value of $70,228. 6 The applicant was the subject of a police operation, which was targeting the distribution and supply of amphetamines in the Penrith area. During this investigation police intercepted the applicant's telephone service and learned of the attempt to pervert the course of justice. This involved the applicant agreeing to prepare a letter for presentation to the District Court stating, falsely, that employment was available to his brother who was before the Court for sentence. 7 The first offence on the Form 1 related to the possession of a prescribed restricted substance; anabolic steroids. The applicant told the police the steroids were obtained for his dog that was dying of cancer. The second offence on the Form 1 related to the possession of a considerable quantity of alcohol, which might reasonably be suspected of being stolen or otherwise unlawfully obtained. 8 The applicant pleaded guilty in the Local Court to the attempt to pervert the course of justice and to a charge arising out of the supply of methylamphetamine. Indictment 2 was framed in somewhat different terms to the charge to which he had pleaded guilty in the Local Court, however the Judge accepted that the pleas of guilty to both offences had been entered at the earliest opportunity. His Honour accordingly allowed a discount of 25 per cent to reflect their utilitarian value. The applicant's case 9 The applicant was aged 29 at the date of the commission of the offences and 30 at the date of sentence. He has an extensive criminal record, dating back to an appearance before the Children's Court when he was 12 years old. Since then he has committed a range of offences for which he has been sentenced to terms of fulltime imprisonment, periodic detention and other types of sentences. He has previously been convicted of drug offences for which he was sentenced to fulltime imprisonment. His Honour concluded that the criminal history did not entitle the applicant to leniency but was not such as to be an aggravating factor for the purposes of s 21A(2)(d) of the Sentencing Procedure Act. 10 A report prepared by Mr Ashkar, a psychologist, was tendered in the applicant's case. It contained a detailed history, which his Honour accepted. The applicant's parents separated when he was aged 14 years and from that point he had "gone completely off the rails" spending much of his adolescence in juvenile detention facilities. He exhibited learning and behavioural difficulties at school. Mr Ashkar assessed the applicant as in the borderline range (being better than 6 per cent of the population) and having an overall intelligence quota ranging between 72 and 84. 11 The applicant gave evidence. He maintains a close relationship with his father who has been diagnosed with kidney disease. The applicant has indicated his willingness to donate one of his kidneys to his father. 12 The applicant has four children aged between 10 and four years from a previous relationship. They are living with their maternal grandmother and the applicant maintains contact with them. He is involved in a new relationship and he and his partner have a baby son. His partner remains supportive of him. 13 The applicant has a history of alcohol abuse and addiction to prohibited drugs. Over the years he has made attempts to overcome these difficulties. In 2004 he successfully completed the Merit Court Drug Program. However, two months later he relapsed into drug use. Nonetheless, his Honour assessed the applicant as having made considerable efforts to overcome his drug addiction. His Honour considered that the applicant needed support on his release into the community. His Honour assessed him as having some reasonable prospects of successful rehabilitation. He found that the applicant had shown remorse. 14 The applicant provided valuable assistance to the authorities. He identified his supplier and this led to the arrest of the latter. The applicant has signed an undertaking to give evidence against the supplier. Without this evidence the prosecution will have no case. The applicant is being housed in protective custody and he is almost certain to remain in protective custody throughout his sentence. His conditions of custody will be harsher than the conditions that apply to the prison population generally. His Honour found that the applicant's partner and brother each have a basis for fearing for their safety as the result of his cooperation with the authorities. His Honour determined that a substantial discount should be given in recognition of the applicant's assistance and that this should be apportioned on the basis that one third reflects past assistance and two-thirds is referable to future assistance. Grounds of appeal 15 The sentence for the offence charged in indictment 2 is challenged on two, related, grounds: 1. His Honour erred by using the standard non-parole period as a starting point; and 2. his Honour erred in not taking into account his finding of special circumstances as a factor in setting the non-parole period. 16 The first ground contends that the Judge wrongly approached sentencing for the drug supply count by taking the 10 year SNPP as the starting point for the sentence contrary to the principles enunciated by this Court in R v Way [2004] NSWCCA 131; 60 NSWLR 168 at 191 – 192; [117] – [122] and R v Shi [2004] NSWCCA 135. Attention was drawn to observations made by the Judge in the course of the sentence hearing: My initial reaction is that particularly taking into account the matters on the Form 1, that had I been sentencing I would have thought that the offence as either or slightly above the mid-range, perhaps, the mid-range or slightly above it, which would put it fairly and squarely into the standard non-parole period but for the plea and for the other aspects of the matter, which means you are starting off with a general 10 year non-parole period … off that there is no doubt, no argument, about it from the Crown about 25 per cent comes off straight away in terms of the plea and I've been reflecting over lunch on both what you and Mr Crown said and I think the types of material I was indicating before lunch are probably a bit harsh. I have refreshed my memory of some of the cases over lunch and I think probably one needs to look at a discount of 50 per cent of what is left after the 25 per cent which I'm not sure what that works out in terms of mathematics. But if you take [sic] it's easy enough to do in terms of the 10 year non-parole period because it divides up … quite neatly, so that it becomes in effect 25 per cent discount for the plea, that leaves you with seven and a half years, 50 per cent … yes three years and nine months', as a non-parole period, and that's the type of figure I have in mind frankly (T 30.5). 17 His Honour's remarks made in the course of exchanges with counsel were expressed to be preliminary views (T 12.1). In his remarks on sentence his Honour said this: The next matter to which I wish to refer is that the offence of supplying a commercial quantity of methylamphetamine is an offence for which there is a standard non-parole period. It is established by the cases of R v Way [2004] NSWCCA 131 and R v Shi [2004] NSWCCA 135 that when sentencing in relation to an offence that has a standard non-parole period the sentencing judge must ask and answer the following questions. Namely, are there reasons for not imposing the standard non-parole period? That question is to be answered by considering first the objective seriousness of the offence and second the circumstances of aggravation and mitigation which are present in the particular case and which apply to the particular offender. I have followed that process in the present case. In my view on the facts of this case the objective seriousness of it falls fairly and squarely in the mid-range for an offence of this nature. During argument I had originally considered that it might be slightly above the mid-range but on reflection I have come to the view that it is in fact a mid-range offence. That would in the normal course of events have resulted in the standard non-parole period being imposed but there are two significant reasons why in this case that is not the case. The first one is that you have elected to plead guilty and you did so at the earliest reasonable opportunity. As Way and Shi make plain that in itself may constitute a reason for not imposing the standard non-parole period and in my view in this case it does. In addition there are matters concerning your assistance to the authorities with which I intend to deal with in more detail in a moment but which I mention at this point in order to indicate that they also in my view on the facts of this case justify the non imposition of the standard non-parole period. Having said that I am not going to apply the standard non-parole period I want to make it plain that in accordance with Way and Shi I have used that standard non-parole period as a reference point or benchmark or sounding board or guidepost, to use the phrases that are mentioned, in relation to the sentencing of this offence. The standard non-parole period I might add for this particular offence is 10 years' imprisonment (ROS 15-16). … I wish to make it plain that I have allowed a discount for 25 per cent for the utilitarian value of the plea. I have allowed a further discount to take into account the other matters to which I have referred other than the offering of assistance to the authorities and I have allowed you a discount of 50 per cent for your assistance to the authorities both up to date and in the future. Of that discount of 50 per cent, two-thirds of it is referable for future assistance and one-third is referable to assistance up to and including the present time. (ROS 21-22) 18 The applicant's counsel did not submit that his Honour erred in the statement of the relevant principles in his reasons for sentence. The contention is that notwithstanding his Honour's expressed intention to approach the sentence in accordance with Way and Shi, in the result his Honour took the SNPP as the starting point: deducting the 25 percent discount from 10 years and then allowing the discount of 50 per cent. This produced the non-parole period of three years and nine months. The allied complaint is that having first determined the non-parole period in this way, his Honour's finding of special circumstances led to an increase in the length of the balance of the sentence rather than a reduction in the non-parole period; R v P [2004] NSWCCA 218 at [24] – [27]. 19 In written submissions the Crown noted that: It is argued that his Honour's maths on the supply charge are clearly discernable as follows: (a) A finding that "in the facts of this case the objective seriousness of it falls fairly and squarely in the mid-range for an offence of this nature" (p 15 of the judgment) with the consequence that the SNPP of 10 years applies. (b) A 25 per cent discount for the utilitarian value of the plea (it having been entered in the Local Court at the first available opportunity) – (see p 15 and p 5 of proceedings on 02/02/06 and p 6, line 41 of proceedings on 13/04/06). (c) A further 50 per cent discount for his assistance to the authorities (p 21), 2/3 RDS being referable to future assistance and 1/3 RD for assistance "up to and including present time" p 22. These findings translate as follows: (i) The initial objective assessment of 10 years. (ii) A 25 per cent discount for the plea – to 7.5 years or 90 months. (iii) A 50 per cent discount for assistance – to 3 years & 9 months or 45 months. (iv) An additional term of 2 years (which is an alteration of the statutory ratio which would otherwise stand at 11.25 months) without any adjustment to the non-parole period. On this analysis, the Crown agrees with the applicant that there has been an alteration of the statutory ratio to reflect a finding of special circumstances, without a consequent adjustment to the non-parole period having been made (WS [15]). 20 The appeal is brought against the Judge's reasons for sentence. It is not brought against his Honour's observations, which may reflect provisional views, made in the course of the sentence hearing. His Honour correctly stated the principles that are to be applied in sentencing for offences that are the subject of a standard non-parole period. His Honour pronounced the sentence, as he was required to do by specifying the non-parole period and then the balance of the term. He said this: The balance of the total term of imprisonment exceeds one-third of the non-parole period because there are special circumstances. Those special circumstances are the need to accumulate this sentence on top of a previous sentence and the need for a lengthy supervised parole in order to assist in your rehabilitation (ROS 22). 21 His Honour's finding of special circumstances took account of the fact that that sentence was accumulated on a fixed term sentence imposed for the indictment 1 offence, as well as the need for the applicant to have a longer period on parole than the statutory proportion would allow. The non-parole period fixed for the offence in indictment 2 produces an effective non-parole period of four years against an aggregate sentence of six years. From this it may be thought that his Honour adjusted the non-parole period to arrive at an appropriate period taking into account the modest degree of accumulation. This would suggest that his Honour might not have arrived at the non-parole period of three years and nine months by the process of which the applicant complains. Nonetheless, the applicant's analysis when considered in the context of the exchange set out at paragraph [15] above has force as the Crown fairly acknowledges. On the hearing of the appeal the Crown conceded the error identified in ground 2. In these circumstances it is appropriate for this Court to consider whether any lesser sentence is warranted in law: s 6(3) of the Criminal Appeal Act 1912; R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 per Spigelman CJ at 720 –721. 22 In the Crown's submission his Honour erred in the applicant's favour by allowing an excessive discount for his assistance to the authorities. His Honour discounted the sentence by 62.5 percent reflecting the guilty plea and the applicant's assistance to the authorities (25 percent off the starting point and the balance discounted by a further 50 percent). The Crown submitted that this error produced a sentence that exhibits marked leniency and that the Court would not substitute a lesser sentence. 23 The applicant's assistance and his undertaking to provide assistance in the future are of considerable value to the Crown. However, in my opinion, it was not assistance of the exceptional kind that would justify a combined discount in excess of 50 percent of the sentence: SZ v R [2007] NSWCCA 19 per Howie J at [11] and Buddin J at [53]. 24 The applicant's counsel submitted that when one looks to the statistical pattern of sentences for this offence, taking into account that on any view the applicant was entitled to a substantial discount for his assistance to the authorities, a lesser sentence was warranted. She handed up the sentencing statistics prepared by the Judicial Commission of New South Wales for offences involving the supply of the commercial quantity of amphetamines. There are 15 cases recorded for the period since February 2003 (when Division 1A of the Sentencing Procedure Act came into operation). Sentences of full-time custody were imposed in 13 of these cases. Counsel noted that a sentence of six years falls in the mid range of sentences and that the applicant's non-parole period is in the top 39 percent of the statistical range. In her submission the applicant's sentence should be towards the bottom of the range identified in the statistics. 25 Statistical information may provide some assistance in determining the range of sentences for a particular offence, although this is subject to the limitations that are discussed in R v Bloomfield (1998) 44 NSWLR 734. In this case the sample is relatively small. The sentence is plainly one within the range. The statistics are called in aid of an argument that considerations particular to this applicant suggest his sentence should be well below the mid range. This points to the limitations of the material. One is not to know where on the continuum the objective criminality of the cases in the sample fell or what were the subjective circumstances of the offenders. In this case the applicant's criminality was assessed by his Honour as being considerable in that the supplies were for increasing amounts and took place over a period of months. The sentence took account of the two offences on the Form 1: the offence relating to the quantity of alcohol was itself one that his Honour assessed as involving considerable criminality. The applicant stood for sentence as a person with an extensive criminal record which deprived him of any claim for leniency. Considerations of this sort make a bald reference to the sentencing statistics of little assistance. 26 The applicant's counsel placed reliance on R v Barkho [2005] NSWCCA 211 as a case that was comparable to the present. In that case this Court allowed an appeal against the severity of sentence imposed on a count of supplying the commercial quantity of amphetamines. This court reduced a sentence of six years (with a non-parole period of four years) to five years and three months (with a non-parole period of three years and six months). The appellant in that case had only one prior conviction, for possession of a prohibited drug, for which offence he had been fined. The appeal was allowed on a ground which raised parity. The offence in that case was committed before the introduction of Division 1A into the Sentencing Procedure Act. In Way it was noted that the result of the introduction of Division 1A may see some change in the pattern of sentencing for such offences (at [54] and [140] – [142]). In considering the submission that a lesser sentence is warranted by reference to comparable cases, it is to be noted that this Court imposed a sentence of nine years and four months with a non-parole period of seven years on the successful appellant in Way. 27 This offence took place over a number of weeks and involved drugs with an estimated value of $70,000. Allowing a combined discount of 50 percent for the applicant's plea and his assistance to the authorities I consider the resulting sentence should not be less than six years. The non-parole period would be four and a half years unless adjusted downwards to reflect a finding of special circumstances. The sentence that is challenged comprises a non-parole period of three years and nine months and a balance of term of two years. I am of the opinion that no lesser sentence than that imposed by the Judge is warranted in law. 28 For these reasons the orders that I propose are: 1. Grant leave to appeal. 2. Dismiss the appeal. 29 HOEBEN J: I agree with Bell 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.