New South Wales Court of Criminal Appeal CITATION: STEVENS v REGINA [2008] NSWCCA 294 HEARING DATE(S): 04/06/08 JUDGMENT DATE: 9 December 2008 JUDGMENT OF: McClellan CJ at CL at 1; Hulme J at 2; Hidden J at 10 DECISION: Leave to appeal granted. By majority appeal dismissed CATCHWORDS: CRIMINAL LAW - application for leave to appeal against sentence - supply methylamphetamine, possess prohibited firearm - further offences on Form 1 - sentencing judge's approach to assessing significance of Form 1 matters - partly cumulative sentences - proportion of effective non-parole period to aggregate sentence Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: Criminal Appeal Act 1912 Drug Misuse and Trafficking Act 1985 Firearms Act 1996 CATEGORY: Principal judgment Schaal (unreported, NSWSC, 8 September 1989) CASES CITED : Attorney General's Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518, 56 NSWLR 146 Markarian v The Queen (2005) 228 CLR 357 R v Attard [2004] NSWCCA 376 PARTIES: Gary Noel Stevens (applicant) Regina (respondent) FILE NUMBER(S): CCA 2007/2965 COUNSEL: A Francis (applicant) G Rowling (respondent) SOLICITORS: S O'Connor (Legal Aid Commission) S Kavanagh (solicitor for Public Prosecutions) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 06/31/0278 LOWER COURT JUDICIAL OFFICER: McLoughlin DCJ LOWER COURT DATE OF DECISION: 26/04/07 IN THE COURT OF CRIMINAL APPEAL 2007/2965 McCLELLAN CJ at CL HULME J HIDDEN J Tuesday 9 December 2008 Gary Noel STEVENS v REGINA Judgment 1 McCLELLAN CJ at CL: I agree with Hulme J. 2 HULME J: In this matter I have had the advantage of reading the reasons for judgment of Hidden J and am indebted to his Honour for the account of the facts and the circumstances of the Applicant's offending. 3 However, I am unable to agree with what his Honour proposes as to the disposition of the appeal. In my view it should be dismissed. 4 I agree that the sentencing judge may have overlooked the fact that the accumulation of sentences resulted in a non-parole period that exceeded the 75% ratio referred to in s44 of the Crimes (Sentencing Procedure) Act and which was reflected in the individual sentences imposed. However, s6(3) of the Criminal Appeal Act requires this Court to dismiss an appeal unless persuaded that some other less severe sentence is warranted and should have been passed. I am not so satisfied. Indeed I am persuaded to the contrary. 5 Facts referred to by Hidden J – that the Applicant had possession of 53.93 grams of methylamphetamine, 90 grams of cannabis, a set of scales several resealable bags, a stolen DVD player, digital camera and fishing reel, a stolen commodore sedan, and $17,900 in cash - lead inevitably to the conclusion that the Applicant was a serious operator in the business of drug dealing. His criminal record indicates that he has little regard for the law and the fact that he was on a bond at the time of the subject offences demonstrates that he has no regard for court orders or his own undertaking to be of good behaviour. 6 McLoughlin DCJ observed that the supply of methylamphetamine fuels the commission of crime and antisocial behaviour in the community and is well recognised for the social and psychological harm that it does. His Honour could well have expressed himself by reference to the destruction the drug inflicts on the lives of many users and those on whose lives users impact. 7 Against the statutory maximum of 15 years imprisonment for the Applicant's supply offence, the sentencing judge's starting point of 3 years and 4 months for an offender who pleaded not guilty was by no means high. Drug dealing for profit is conscious deliberate criminality where it is difficult to believe that there is not some weighing up of the risks and benefits and advantages and disadvantages. It behoves the courts to ensure that the disadvantages are substantial. As Wood J remarked in Schaal (unreported, NSWSC, 8 September 1989), "just as those stakes (in the drug trade) are high, so, however, must be the risks if caught". 8 Nor does the addition of merely one year to this on account of the offences on the Form 1 suggest undue weight was given to the considerations of personal deterrence and retribution in the sentencing for the offence charged - the limited use to which, according to the decision of this Court in Attorney-General's Application under s37 of the Crimes Sentencing Procedure) Act 1999 (2002) 56 NSWLR 146 at 156, the offences on the Form 1 can be put. Indeed, I suspect that many in the community would think that, having regard to the number and seriousness of those offences, the weight given to personal deterrence and retribution was small. 9 As I said, I am satisfied that no lesser sentence should have been imposed. I would grant leave to appeal but dismiss the appeal. 10 HIDDEN J: The applicant, Gary Noel Stevens, pleaded guilty in the District Court to two counts on an indictment: (1) Supplying methylamphetamine, an offence under s25(1) of the Drug Misuse and Trafficking Act 1985 which carries a maximum sentence of 15 years imprisonment; (2) Possessing a prohibited firearm without a licence or permit, an offence under s7(1) of the Firearms Act 1996, carrying a maximum sentence of 14 years imprisonment and a standard non-parole period of 3 years. He asked the sentencing Judge, when sentencing him for the first count, to take into account five offences on a Form 1: a further offence of supplying amphetamine, two offences of goods in custody, receiving a stolen motor vehicle and possessing a quantity of cannabis. 11 On the second count he was sentenced to imprisonment for 1 year and 8 months, comprising a non-parole period of 15 months and a balance of term of 5 months, commencing on 23 December 2005. On the first count, taking into account the matters on the Form 1, he was sentenced to imprisonment for 3 years and 8 months, comprising a non-parole period of 2 years and 9 months and a balance of term of 11 months, commencing on 23 December 2006. I shall explain later how those somewhat unusual figures were arrived at. The overall sentence, then, was imprisonment for 4 years and 8 months with an effective non-parole period of 3 years and 9 months, dating from 23 December 2005. The applicant seeks leave to appeal against those sentences. Facts 12 At the relevant time the applicant was living on a rural property at Possum Brush with his partner, Charesse Hyde. On 13 April 2004 police executed a search warrant at the property. Ms Hyde was present but the applicant was not. In the freezer compartment of the refrigerator they found a re-sealable plastic bag containing a substance which, on later analysis, proved to be 2.13g of methylamphetamine. This gave rise to the first charge on the Form 1, described as supplying amphetamine. Ms Hyde indicated to police some items which she believed to have been stolen, including a DVD player, a digital camera and a fishing reel. Those specified items were the subject of the second charge on the Form 1, goods in custody. 13 Police then went to a property in the same area occupied by Rick and Wendy Lang, where they found a Holden commodore sedan which the applicant had left there. It had been stolen from Girraween towards the end of 2003. This led to the fourth charge on the Form 1, receiving. 14 On the following day, 14 April, police went to the premises of the applicant's son at Forster, where he showed them a plastic shopping bag in a bedside drawer which was found to contain cash totalling $17,900. Also in the drawer were some other items, together with personal papers in the applicant's name. That money was the subject of the third charge on the Form 1, also goods in custody. 15 On 16 April Ms Hyde spoke to the applicant by phone and told him that she needed some "ice". He told her to locate a backpack in a trailer on the property. Inside it she found a sandwich bag containing powder which, on analysis, was found to be 51.8g of methylamphetamine. It was this which gave rise to the first count in the indictment. 16 On the next day, 17 April, the applicant phoned Ms Hyde and asked her to locate a plastic bag in the garden, which she was to pass on to Rick Lang. When she found the bag, concealed behind a choko vine, she saw that it contained a rifle. That evening, she contacted police at Forster and told them what she had found. Police took possession of the weapon, which was found to be a .22 self-loading rifle in working order. This was the firearm the subject of the second count in the indictment. 17 Finally, on 22 April police executed another search warrant at the applicant's property. On this occasion Ms Hyde handed them a backpack containing a shopping bag with a quantity of cannabis, a re-sealable bag of methylamphetamine, a small set of scales and several other re-sealable bags. The applicant's possession of the cannabis, some 90g, was the fifth charge on the Form 1. Subjective case 18 The applicant was 51 years old at the time of the offences and is now 56. He has a reasonably lengthy criminal record, comprised mainly of offences of dishonesty between 1969 and 1990. No further offences are recorded until 2001, but between that year and 2004 he was convicted of a number of driving offences and an assault occasioning actual bodily harm. In November 2003 he received a 12-month suspended sentence for driving whilst disqualified, and he was subject to the bond associated with that sentence at the time of the present offences. In June 2007 that bond was revoked and he was sentenced to imprisonment for a fixed term of 6 months, which he has served concurrently with the sentences the subject of this application. 19 He is the father of two young children, who at the time he was sentenced were living with Ms Hyde in Victoria. He gave evidence that he suffered from acute gout, exacerbated by the prison diet. He described the offences as the biggest mistake of his life. He said that, upon his release, he wanted to resume his relationship with Ms Hyde and the children in Victoria and find employment. He said that he would not re-offend, but the sentencing judge was sceptical about his evidence because of his early history of dishonesty offences. 20 The applicant's pleas of guilty were late, but his Honour saw them "as having public utility and as some evidence of possible contrition". He considered that, but for the pleas of guilty, the count of supplying methylamphetamine, taking into account the matters on the Form 1, called for a sentence of 4 years and 4 months and the count of possessing a prohibited firearm a sentence of 2 years. Because of the pleas of guilty, he reduced those sentences to 3 years and 8 months and 1 year and 8 months respectively. The application 21 Counsel for the applicant, Ms Francis, pursued the application on two grounds. Firstly, she submitted that his Honour fell into error in the way in which he took into account the Form 1 matters when sentencing for the first count. Secondly, she argued that the proportion of the effective non-parole period to the aggregate sentence is unduly high. Form 1 matters 22 It appears that, in assessing the gravity of the offence of supplying methylamphetamine, his Honour had regard to the third charge on the Form 1, the offence of goods in custody involving $17,900 cash. His Honour said in his remarks: The facts indicate a series of supply over a period of time, and the facts supporting other charges are all significant indicia of drug activity by the offender. …As to the possession of the methylamphetamine…the $17,900 indicates that such an offence is at least in the middle of any scale of the criminality constructed for such an offence. 23 Later in his remarks, his Honour explained how he arrived at the undiscounted sentence of 4 years and 4 months for that first count, taking into account the Form 1 matters. He said: Conviction on trial would, in the view of this court, result in a sentence for supplying methylamphetamine of three years and four months imprisonment. Taking into account the matters on the form 1, I would increase that sentence to four years and four months. 24 Ms Francis accepted that it was open to his Honour to have regard to the Form 1 matters, particularly the possession of a large amount of money likely to be the proceeds of drug sales, in assessing the objective gravity of the offence of supplying methylamphetamine. She also accepted that it was open to his Honour to quantify the amount by which the sentence for that count had been increased because of the Form 1 matters. In the joint judgment in Markarian v The Queen (2005) 228 CLR 357 at [41]-[43], it was held that that approach is permissible. It is still not the practice to do so, consistently with the view earlier expressed by Spigelman CJ in Attorney General's Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518, 56 NSWLR 146 at [44]: The manner and degree to which the Form 1 offences can impinge upon elements relevant to sentencing for the principal offence will depend on a range of other factors pertinent to those elements and the weight to be given to them in the overall sentencing task. For that reason it would rarely be appropriate for a sentencing judge to attempt to quantify the effect on the sentence of taking into account the Form 1 offences. 25 Ms Francis' complaint is that, in assessing the gravity of the first count, his Honour has effectively indulged in double counting. Not only did he have regard to the offence involving the money on the Form 1, he also increased the sentence otherwise appropriate by 12 months to take account of the Form 1 matters. While it may have been open to his Honour to have done one or other of those things, she argued, to do both was to fall into error. 26 In my view, this argument is not supported by a careful reading of his Honour's remarks. True it is that in the first of the passages quoted above his Honour appears to be saying that all the offences, that is, the two charges on the indictment and the Form 1 matters, together indicate "drug activity" by the applicant. However, from the second quoted passage it is clear enough that his Honour had regard only to the goods in custody involving the money in assessing the objective gravity of the offence of supplying methylamphetamine. When it came to determining the sentence for that offence it was necessary to have regard to all of the matters on the Form 1, comprising not only other drug offences but also the goods in custody relating to the DVD player and other items and the receiving of the stolen motor vehicle. The totality of those offences called for a significant increase of the sentence appropriate for the first count standing alone, and it cannot be said that an increase of 12 months was outside the bounds of the proper exercise of discretion. 27 This ground is not made out. Non-parole period 28 His Honour did not find special circumstances, noting that there had been no submission that he should. On each count, the non-parole period is 75 % of the sentence. However, as I have said, the overall sentence is 4 years and 8 months with an effective non-parole period of 3 years and 9 months. That effective non-parole period, in round figures, is 80 % of the aggregate sentence. 29 Such a proportion, is, of course, permissible but it is likely that it is not what his Honour intended: cf. R v Attard [2004] NSWCCA 376, per Buddin J (with whom Giles JA and Smart AJ agreed) at [21]-[22]. The result is a custodial component of 3 years and 9 months with a period of parole eligibility of only 11 months. While his Honour was not asked to find special circumstances in the light of the applicant's subjective case, the accumulation of sentence was itself a reason to adjust the non-parole period in respect of one of the sentences to achieve an overall proportion of 75 %. The effective non-parole period would then become 3 years and 6 months. Such an adjustment, while relatively minor, cannot be said to be insignificant. 30 I would achieve that result by dividing the sentence on the first count, 3 years and 8 months, into a non-parole period of 2 years and 6 months and a balance of term of 1 year and 2 months. Accordingly, I would grant leave to appeal and allow the appeal against the sentence on the first count. I would confirm the sentence on the second count. On the first count, I would sentence the applicant to a non-parole period of 2 years and 6 months, to commence on 23 December 2006 and expire on 22 June 2009, and a balance of term of 1 year and 2 months, commencing on 23 June 2009 and expiring on 22 August 2010. ********** 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.