New South Wales Court of Criminal Appeal CITATION: Renehan v R [2008] NSWCCA 334 HEARING DATE(S): 16 December 2008 JUDGMENT OF: Campbell JA at 19; Grove J at 1; Howie J at 20 EX TEMPORE JUDGMENT DATE: 16 December 2008 DECISION: Appeal against sentence dismissed. CATCHWORDS: CRIMINAL LAW AND PROCEDURE - Sentence - Drug trafficking - Ongoing supply and knowingly concerned in one further supply - Co-offender involved only in that further supply - Parity - No special point of principle CATEGORY: Principal judgment PARTIES: Matthew Mark RENEHAN - Applicant REGINA - Respondent/Crown FILE NUMBER(S): CCA 2007/15980 COUNSEL: S Odgers SC - Applicant N Noman - Respondent/Crown SOLICITORS: Danny Eid - Applicant S Kavanagh - Public Prosecutions LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 07/11/0931 LOWER COURT JUDICIAL OFFICER: Berman DCJ LOWER COURT DATE OF DECISION: 17 March 2008 IN THE COURT OF CRIMINAL APPEAL CCA 2007/15980 CAMPBELL JA GROVE J HOWIE J 16 December 2008 Matthew Mark RENEHAN v REGINA Judgment 1 GROVE J: This is an application for leave to appeal against severity of sentence imposed by Berman DCJ at Sydney District Court. The applicant pleaded guilty to two counts, the first charging an ongoing supply of prohibited drug and the second charging supply of a prohibited drug. In each case the relevant drug was methylamphetamine. The prescribed maximum penalties for those offences are 20 years and 15 years imprisonment respectively. 2 His Honour sentenced the applicant on count 1 to imprisonment for 12 months commencing on 27 August 2008 and expiring on 26 August 2009 with a balance term of 12 months and on count 2 to a fixed term of 12 months imprisonment commencing on 27 February 2008 and expiring on 26 February 2009. 3 In May 2007 authority was granted for a controlled operation to investigate the supply of drugs by the applicant. On 27 June an undercover officer (UCO) contacted him by telephone. On 28 June they met at the Bayview Hotel at Gladesville. Another person Benjamin McDonald was present. The applicant supplied the UCO with 3.3 grams of drug for $400. Further contacts resulted in supplies by the applicant of 3.1 grams for $450 on 12 July at a McDonalds Restaurant, Ryde and 3.2 grams for $450 on 19 July at the same location. These three supplies constituted the ongoing supply charged in count 1. 4 At this lastmentioned meeting conversation took place between the applicant and the UCO: "UCO: What's the chances of getting an ounce? Applicant: Of base? UCO: Yeah. Applicant: Yeah, easy. UCO: Yeah, easy, how much for that? Applicant: Um, about twenty-five. UCO: Twenty five. Applicant: Twenty five hundred. UCO: Mates discount, nuh just jokes. Applicant: Um, yeah, about twenty five hundred, let me clarify with him though." 5 On 25 July further conversation took place between them: "UCO: I was still after the one if that is OK. Applicant: Shouldn't be a problem, I will have to make a couple of phone calls and get back to you in about an hour. UCO: Did you manage to do some number crunching or is it still twenty five? Applicant: Yeah it is still the twenty five." 6 On 27 July the UCO tried unsuccessfully to contact the applicant, however at about 3 pm Benjamin McDonald contacted him and said that he would be able to supply an ounce of amphetamine on behalf of the applicant who had come down with an illness. The next day the UCO and McDonald met at Stanmore where 24 grams were supplied for $2,200. McDonald was thereupon arrested and later police arrested the applicant at his parents' home where he was residing at the time. 7 The applicant has filed two grounds of appeal: Ground 1 The Sentencing Judge erred in the way he took into account his finding that the Applicant was partially motivated to supply drugs to assist a friend. 8 The applicant gave evidence in the sentencing proceedings. He claimed that the main reason he became involved in the illicit trafficking was to help his friend McDonald's financial problems. The other reason was to obtain supplies for his own use, in effect, for nothing. 9 The applicant relied upon a passage which in written submissions had been extracted from his Honour's remarks on sentence. The passage needs to be understood in its full context and only the final two sentences were quoted in the submission. The full context is: "The offender is a person who has done much good in the world. He has, as I said, supported his daughter. He has been gainfully employed since leaving school and he apparently is good at his job. On the other hand, he did decide in the middle of last year to become a drug dealer. He said that this motive for offending was twofold. That he would get his drugs to use recreationally for free but also he was going to help Mr McDonald who was going through financial difficulties at the time. There is something of a paradox here, however, Mr McDonald's financial circumstances were unlikely to be significantly improved by any small scale drug dealing. The offender's motivation for helping his friend must have included a motivation to sell many more drugs than he actually did. He was really only going to help Mr McDonald if he got involved in drug supply at a much deeper level than that for which he is to be sentenced today. It is for this reason that he was prepared to use his IT sales skills when speaking to the undercover officer in order to sell more drugs. So although the offender seeks to rely on the circumstance that he was trying to help Mr McDonald, the fact that he could only really help Mr McDonald by becoming a serious and larger scale drug dealer is something which actually counts against him. It illustrates the offender's preparedness to supply drugs at a much more significant level and that in turn illustrates his character, at least in the middle of last year." 10 The Crown submission was that, in full context, his Honour was doing no more than acknowledging the extent of the applicant's preparedness to act out of character. Obviously the applicant would have to engage in more than a few small deals to alleviate McDonald's financial problems. The applicant had agreed with this in answer to some questions by his Honour when he gave evidence in the sentencing proceedings: "Q. You say you sold it for $450, it's not really going to solve Mr McDonald's financial problems unless there's a great many more supplies taking place, is there? A. No, that's correct. Q. I'm still puzzled as to why you did it then. You weren't going to solve Mr McDonald's financial problems, so what was the benefit of doing it to anyone? A. Probably the use of the drugs. Q. So it didn't really have much to do with Mr McDonald's financial problems at all, did it? A. It was helping somewhat. Q. Well, Mr McDonald was using drugs, wasn't he? A. I believe so, yes, yes, he was. Q. So was he spending his profit on drugs just the same as you were? A. I don't think – I don't think so. We were only given it by week to week, covering his bills week to week." 11 His Honour did not err as contended by this ground and I would reject the applicant's contention. Ground 2 The Applicant has a legitimate grievance arising from disparity of sentence with Benjamin McDonald. 12 McDonald had already been sentenced by another judge (English DCJ) when the applicant appeared. Berman DCJ had her Honour's remarks on sentence and he noted the contradiction in the evidence before him in the sense that the applicant placed blame on McDonald because he intended to help McDonald's finances and the evidence before English DCJ, during which McDonald effectively blamed the applicant for whom he was doing a favour on account of the applicant's then current illness. McDonald received the sentence of 17 months imprisonment which was suspended pursuant to s 12 of the sentencing legislation. 13 Irrespective of the contest, it needs to be observed that McDonald was not alleged to be involved in the more serious offence of ongoing supply which carried the longer possible maximum sentence. Importantly, Berman DCJ accepted as a matter of contrast, that McDonald's offence which was the same offence as charged in count 2 against the applicant, was, as English DCJ had found, a "one-off" offence whereas the applicant had been engaged in ongoing supply. 14 For reasons which he expressed, his Honour gave the applicant a benefit of the doubt regarding his having second thoughts about the conduct which constituted count 2, however, the offence was in fact committed and the applicant by his plea, acknowledged his guilty participation. 15 In broad terms, the applicant was sentenced for a pattern of offending whereas McDonald was sentenced for a single instance of criminality. 16 His Honour gave the applicant full measure of mitigation for the subjective matters advanced in his favour. The applicant has no justifiable grievance arising from the sentences received by him for his offending and that received by McDonald for his single offence. 17 There was no demonstrable error in his Honour's exercise of his discretion to determine that the sentences on count 1 and 2 be not served fully concurrently. The submission was made orally to the Court that there should have been some further adjustment in order to achieve parity between the 17 months assessed as the sentence (before suspension) received by McDonald and the 12 months fixed term received by the applicant. When analysis is made, in fact additional time to be served which has been visited upon the applicant on count 2 amounts to just 6 months. In my view that sufficiently allows for any concept of parity between the two offenders. There was nothing derived from parity as contended by senior counsel which should cause this Court to intervene. 18 I would grant leave to appeal against sentence but dismiss the appeal. 19 CAMPBELL JA: I agree. 20 HOWIE J: I agree. 21 CAMPBELL JA: The orders of the Court will therefore be as proposed by Justice Grove. ********** 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.