New South Wales Court of Criminal Appeal CITATION: Stuart Leslie WOOD v R [2008] NSWCCA 257 HEARING DATE(S): 24 October 2008 JUDGMENT DATE: 5 November 2008 JUDGMENT OF: McClellan CJ at CL at 1; Nettle AJA at 5; Simpson J at 6 By majority: (1) Leave to appeal granted; DECISION: (2) Appeal allowed, sentence imposed on count 1 quashed; (3) In lieu thereof, the applicant be sentenced to imprisonment comprising a non-parole period of 3 years commencing 16 November 2005 and expiring on 15 November 2008, with a balance of term of 2 1/2 years to expire on 15 May 2011; Sentences imposed in respect of counts 2 & 3 confirmed. CATCHWORDS: CRIMINAL LAW - appeal against severity of sentence - supply prohibited drugs - pleas of guilty - objective seriousness of the offence - whether insufficient weight given to subjective circumstances - utility of statistics on sentencing - appeal allowed LEGISLATION CITED: Drug Misuse and Trafficking Act 1985 Crimes (Sentencing Procedure) Act 1999 CATEGORY: Principal judgment R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 R v Way [2004] NSWCCA 131; 60 NSWLR 168 R v Letteri, (NSWCCA, 18 March 1992, Unreported) R v Engert (1995) 84 A Crim R 67 R v Scognamiglio (1991) 56 A Crim R 81 CASES CITED : R v Champion (1992) 64 A Crim R 244 R v Wright (1997) 93 A Crim R 48 R v Fahda [1999] NSWCCA 267 R v Benitez [2006] NSWCCA 21 R v Wong; R v Leung [1999] NSWCCA 420; 48 NSWLR 340 Wong v The Queen; Leung v The Queen [2001] HCA 64; 207 CLR 584 PARTIES: Stuart Leslie WOOD (Applicant) REGINA (Respondent) FILE NUMBER(S): CCA 2007/5831 COUNSEL: A Francis (Applicant) J Girdham (Respondent) SOLICITORS: S O'Connor (Legal Aid Commission) S Kavanagh (Solicitor for Public Prosecutions) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 07/51/0198 LOWER COURT JUDICIAL OFFICER: Black DCJ LOWER COURT DATE OF DECISION: 14 December 2007 IN THE COURT OF CRIMINAL APPEAL 2007/5831 McCLELLAN CJ at CL NETTLE AJA SIMPSON J 5 November 2008 Stuart Leslie WOOD v R Judgment 1 McCLELLAN CJ at CL: I have had the considerable benefit of reading in draft the judgment of Simpson J. I regret that I do not agree with her Honour's conclusion. 2 Her Honour has drawn attention to the sentencing statistics which have been collected for the relevant offences. The statistics maintained by the Judicial Commission are a valuable body of information and can provide guidance to sentencing judges. They can give an indication of the range of sentences which courts have imposed over time. However, notwithstanding the contribution which the statistics can make to consistency it is important in each case to consider the individual offence and the offender's relevant statutory regime when sentencing in a particular case. Unless this is done in each case there is a risk that reliance on the statistics will inappropriately confine the range of sentences for particular offences. The result may be that both the maximum sentence and, where relevant the standard non-parole period will not be reflected in individual sentences. 3 In the present case the first count carries a maximum penalty of twenty years with a standard non-parole period of ten years. I agree with the sentencing judge that the offence was less than a mid-range offence. The quantity of drug dealt was not insignificant but was not at a level which would make this a mid-range offence. However, it was not in my opinion substantially below the mid-range. Recognising that the applicant pleaded guilty I am not persuaded that the sentence imposed at first instance was not within the appropriate range. In my judgment the sentencing judge did not err so as to permit the intervention of this Court. 4 Although I would grant leave to appeal I would dismiss the appeal. 5 NETTLE AJA: I agree with Simpson J. 6 SIMPSON J: The applicant seeks leave to appeal against the severity of sentences imposed upon him by Black DCJ in the District Court at Lismore on 14 December 2007 following his pleas of guilty to 3 counts of supplying prohibited drugs, contrary to s 25(2) (1 offence) and s 25(1) (2 offences) of the Drug Misuse and Trafficking Act 1985 ("the Drug Misuse Act"). 7 The offences to which the applicant pleaded guilty were: count 1 : supply not less than the commercial quantity of MDMA (ecstasy); count 2 : supply not less than the indictable quantity of MDMA; count 3: supply not less than the indictable quantity of ketamine. 8 In addition, the applicant asked, pursuant to Pt 3 Div 3 of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Procedure Act") that a further offence (of supplying a small quantity of methylamphetamine) be taken into account. 9 In respect of the first count, the applicant was liable to a maximum penalty of imprisonment for 20 years. By Pt 4 Div 1A of the Sentencing Procedure Act, in respect of this offence a standard non-parole period of 10 years is fixed (see below). 10 On each of the remaining charges the applicant was liable to a maximum penalty of imprisonment for 15 years. No standard non-parole period is fixed. 11 Black DCJ imposed the following sentences: count 1 (taking into account the offence on the Form 1): imprisonment for 6 years, commencing on 16 November 2005, with a non-parole period of 3 ½ years; count 2 : a fixed term of imprisonment for 2 years, commencing on 16 November 2005; count 3 : a fixed term of imprisonment for 2 years, commencing on 16 November 2006. 12 Notwithstanding the partial accumulation of the sentence imposed in respect of the third count, those imposed in respect of counts 2 and 3 were fully subsumed in the non-parole imposed in respect of count 1. 13 In structuring the sentences as he did, his Honour found, pursuant to section 44(2) of the Sentencing Procedure Act, that special circumstances existed justifying departure from the ratio between the head sentence and the non-parole period there specified. The facts 14 The relevant facts are in very short compass. All offences were committed over a period of one month, in September and October 2005, in Kingscliff in northern NSW. 15 On the first occasion, 29 September, the applicant met a person who happened to be an undercover police operative at a hotel. He agreed to supply 1,000 ecstasy tablets, and almost immediately thereafter handed the operative a bag containing 999 tablets of the drug, together with a small amount (0.39 grams) of methylamphetamine, for which he made no charge. The undercover operative handed the applicant $16,500 in cash. The quantity of ecstasy was 321.4 grams. 16 Pursuant to s 3(1) and Schedule 1 of the Drug Misuse Act, a commercial quantity of ecstasy is between 0.125 grams and up to 0.5 kilograms, which quantity constitutes the large commercial quantity. 17 On the second occasion, 11 October, the undercover operative contacted the applicant and asked him to supply another 1,000 tablets. The applicant agreed, but told him that he could only supply 400 at that time and would attempt to obtain the remaining 600. No actual supply took place and no money changed hands. 18 On the third occasion, 27 October, the undercover operative again contacted the applicant, with the same request for 1,000 tablets. Later that day the applicant supplied 851 tablets of ketamine (343.2 grams) and was again paid $16,500. Subjective circumstances 19 The applicant did not give evidence in the sentencing proceedings. Evidence of his subjective circumstances was provided to Black DCJ in the form of letters written by himself and his mother, a pre-sentence report, a psychiatric report of Dr John Roberts, and several testimonial letters. 20 The case they put was a strong one. 21 The applicant was born in October 1975 and was 30 years of age at the time of his offending. He has no criminal record. His early life was unremarkable, although his parents, both of whom had issues with alcohol, separated when he was quite young and this caused him to take on additional responsibility in caring for his younger brother. He seems to have coped quite well with this disruption to his life. 22 He is a married father of two small sons. He lives with his family in Currumbin, Queensland; he and his wife are in the process of purchasing their home. 23 He had had employment in the construction industry until about 2 years prior to his arrest. At that time he suffered a back injury at work, and thereafter was in receipt of social security benefits. 24 He had occasionally used illicit drugs – marijuana, ecstasy, amphetamines, cocaine and anabolic steroids – but was certainly not addicted and was more committed to a healthy lifestyle. 25 Dr Roberts considered that the history he took suggested the existence of depressive symptoms over a period (prior to his arrest) with some hint, not substantiated, of a bipolar disorder. The history suggests that the depressive symptoms were attributable to the work injury. He had no treatment for this condition until he was in custody, after his arrest. 26 The author of the pre-sentence report was generally favourable to the applicant although he expressed some scepticism about the extent to which the applicant accepted responsibility for his offending. He cited the applicant's "workplace custodial officer" as describing the applicant as "the best worker he has had, one who has a positive influence on other inmates". He suggested that the "prognosis" for the future (in terms of the likelihood of re-offending) was "favourable". 27 The evidence showed that the applicant retained strong family support, in particular from his mother and his partner, who was in regular, virtually daily, contact with him. 28 In his letter the applicant expressed regret, recognition of the damage done to individuals and the community by drugs, and proffered apologies to his parents, his wife, her family and his children. He expressly recognised the hardship his incarceration caused to his wife and sons. 29 His mother's letter gives an account of the applicant's childhood, describing him as having been "a model child", and as "genuinely contrite and remorseful" for his offending. The remarks on sentence 30 Black DCJ recounted the facts of the offences. He accepted that the pleas of guilty had been entered at a time that entitled the applicant to a reduction in sentence, in accordance with principles stated in R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383, of twenty-five percent. Later, he said that, but for the pleas of guilty, the total substantive sentence would have been of 8 years imprisonment. His Honour noted the standard non-parole period applicable for the first count, but held that the applicant's offence was less than a mid-range offence. The principal reason for this appears to have been that his Honour considered that the quantity of drug dealt with by the applicant was not "particularly enormous", but he also made reference to "other factors" which he did not identify. 31 He also recognised that, by reason of the plea of guilty, the standard non-parole period did not strictly apply, although, in accordance with authority, it was relevant as: " … a reference point, or benchmark, or sounding board, or guidepost …": R v Way [2004] NSWCCA 131; 60 NSWLR 168. 32 His Honour noted the subjective factors, making specific reference to the letter from the applicant's mother, and one of the testimonials, and the psychiatric report. He accepted the applicant's expressed contrition as genuine; and found the prospects of rehabilitation to be "unusually good". It was these last findings that prompted him to make the finding of special circumstances, thus enabling him to expand the parole period and reduce the non-parole period. 33 Having regard to the nature of the arguments advanced on behalf of the applicant, it is convenient to set out in full two passages from the remarks on sentence. "The two main reasons for going below it [the standard non-parole period] are first of all that this is a plea and therefore strictly speaking, the period does not apply. Secondly I see that the amount involved was something over twice what is identified as the commercial quantity. I am not really going to get involved in the sort of level of commercial supplies that can or cannot take place. I would not have thought that this was a particularly enormous quantity, and that that is the reason why I will regard it as a lower than middle-of-the-road offence, without going any further into quantities or quantifications." "Having said all that, it is now for me to identify the non-parole period … and I say that despite [counsel's] forceful plea, partly because of the provisions about the standard non-parole period, but also because of the quantities involved in this case, it would be wrong in my view, for me to pass a sentence which allowed his either immediate or almost immediate release. The non-parole period in my view, will have to be one of 3 ½ years" The application for leave to appeal 34 Since, despite the partial accumulation of the sentence imposed in respect of the third count, all sentences are, in reality, to be served concurrently, the application concerns only the sentence imposed in respect of the first, and most serious, count. It was that sentence to which the argument was addressed. 35 Two grounds of appeal were advanced. They were pleaded as: "1. The learned sentencing judge erred in his approach to the application of s 54B of the Crimes (Sentencing Procedure) Act 1999 when determining the objective seriousness of the offence. 2. The learned sentencing judge gave insufficient weight to the applicant's subjective circumstances." Ground 2: subjective circumstances 36 Counsel who appeared for the applicant chose to argue first, and most forcefully, the second ground. In support of this ground she argued that inadequate weight was given to the subjective circumstances, which I have outlined above. In particular, she argued that inadequate weight was given to the psychiatric evidence, that is, concerning the applicant's depressive state. I do not accept that this is so. His Honour made adequate reference, although brief, to all matters. I would reject this ground of appeal. 37 This Court has considered on many occasions the ways in which evidence of psychiatric illness may be taken into account in mitigation of sentence: see, for example R v Letteri, (NSWCCA, 18 March 1992, Unreported); R v Engert (1995) 84 A Crim R 67; R v Scognamiglio (1991) 56 A Crim R 81; R v Champion (1992) 64 A Crim R 244; R v Wright (1997) 93 A Crim R 48; R v Fahda [1999] NSWCCA 267; R v Benitez [2006] NSWCCA 21. 38 It is sufficient to say that the applicant's case does not fit really – or at all – into any of the formulations. To the extent that it was relevant, it was taken into account by Black DCJ. 39 Counsel also referred to the evidence of the applicant's prior good character and the impressive assessment of his prison workplace supervisor. None of this persuades me that inadequate weight was given to any of the subjective circumstances or to the subjective case as a whole. Ground 1 40 In Way this Court held that the standard non-parole period applies to sentences for offences following a trial. Where a plea of guilty has been entered, the standard non-parole period continues to have application as a "reference point, or benchmark, or sounding board or guidepost". S 54B of the Sentencing Procedure Act relevantly provides: "1. … 2. When determining the sentence for the offence, the court is to set the standard non-parole period as the non-parole period for the offence unless the court determines that there are reasons for setting a non-parole period that is longer or shorter than the standard non-parole period. 3. The reasons for which the court may set a non-parole period that is longer or shorter than the standard non-parole period are only those referred to in s 21A. 4. … 5. …" 41 (S 21A of the Sentencing Procedure Act requires a sentencing court to take into account all relevant aggravating and mitigating features, and, in subs (2) and (3) sets out a catalogue of such features – and adds that any other relevant features not mentioned must also be taken into account.) 42 By s 54A(2) the standard non-parole period represents the non-parole period for an offence in the middle of the range of objective seriousness for offences of the kind under consideration. 43 Thus, any relevant aggravating or mitigating factor is available to be taken into account in the determination of whether or not the standard non-parole period is to be set in respect of any individual offence. 44 The nub of the argument advanced in support of the first ground was drawn from statistics maintained by the Judicial Commission of NSW. The caution that must be exercised in the use of these statistics is well known. That is for a number of reasons, including that the bare statistics do not expose the relevant objective and subjective facts and circumstances which, together, are the key to the selection of the appropriate sentence in any individual case. With that caution in mind, the statistics serve a useful purpose in promoting consistency in sentencing, and therefore enhancing confidence in the criminal justice system. 45 In written submissions (not prepared by counsel who appeared on the application) it was put that analysis of the statistics reveals that the head sentence here imposed lies within the top twenty percent of sentences imposed, and the non-parole period lies in the top sixteen percent of all non-parole periods imposed, for offences of the kind to which the applicant pleaded guilty. No primary material was provided to support those percentages. The Crown did provide some material, less favourable to the applicant. Those figures showed that the applicant's head sentence fell within the top twenty-eight percent of sentences imposed in respect of offences of supplying not less than the commercial quantity of prohibited drugs; and the non-parole period in the top thirty-one percent. (It may be that the discrepancy represents the pattern of sentencing since the applicant was sentenced.) It is of some significance that the documentation relied on by the Crown concerned only offences dealt with under the standard non-parole period regime introduced in 2003 by Pt 4 Div 1A. 46 In the written argument counsel focused heavily upon the quantity of the drugs involved. 47 In R v Wong; R v Leung [1999] NSWCCA 420; 48 NSWLR 340 this Court promulgated guideline sentences with respect to Commonwealth offences of importing prohibited drugs. The sentences proposed were graduated according to the weight or quantity of the drug involved. 48 On appeal, the High Court [Wong v The Queen; Leung v The Queen [2001] HCA 64; 207 CLR 584] allowed an appeal and set aside the orders there made. In doing so, five members of the Court rejected the proposition that the weight of a drug involved in such an offence is "the chief factor" to be taken into account in fixing sentences. Their Honours did not, however, exclude the quantity as one of a number of relevant circumstances to be taken into account. Gaudron, Gummow and Hayne JJ, in a joint judgment, said: "No doubt, within both of those categories [trafficable and commercial quantities], the particular amount of narcotic involved can have significance in fixing the sentence that is to be imposed on an offender." 49 I have earlier set out the quantities which amount to a commercial quantity of ecstasy; it includes anything from 0.125 grams to anything up to but under 0.5 kilograms. In the applicant's case, the quantity was a little over twice the commercial quantity, and a fraction of the upper limit of that quantity. 50 It may reasonably be assumed that the statistics on which the parties relied included supplies of the drug in substantially greater quantity than that the subject of the applicant's offence. It may also be assumed that they include some offenders with prior criminal histories, and with subjective cases less favourable than that of the applicant. 51 In response to the applicant's submissions, the Crown relied upon well-known authority to the effect that neither the sentence identified in the statistics as the upper end of the range, nor the standard non-parole period, represent the upper limit of the range of sentences open to a sentencing judge. That upper limit is represented by the statutory maximum. 52 The Crown is, of course, correct. But that does not provide an answer to the applicant's contention. The fact is that, even on the revised statistics (as provided by the Crown) for an offence involving a quantity of the drug very much towards the bottom of the commercial quantity range, the applicant was sentenced to a term of imprisonment towards the top of the range within which offenders are, as a matter of practice, ordinarily sentenced. And the selection of that sentence cannot be explained by any of the other factors to which the High Court referred in Wong. There were no aggravating circumstances, either specified in s 21A(2) of the Sentencing Procedure Act, or otherwise; the applicant's subjective case was extremely favourable, his prospects of rehabilitation held to be "unusually good', and he had no prior convictions. These circumstances do not suggest any justification for a sentence that might be seen as more appropriate to an offence of supplying the large commercial quantity, for which the maximum penalty is imprisonment for life. 53 I have come to the view that the applicant has made good this ground of the application and that, when regard is had to sentencing patterns, and particularly to the quantity of drug involved, the sentence imposed was manifestly excessive. I would reduce the head sentence and the non-parole period by 6 months. 54 The orders I propose are: (1) Leave to appeal granted; (2) Appeal allowed, sentence imposed on count 1 quashed; (3) In lieu thereof, the applicant be sentenced to imprisonment comprising a non-parole period of 3 years to date from 16 November 2005 and expire on 15 November 2008, with a balance of term of 2 ½ years to expire on 15 May 2011;. I would confirm the sentences imposed in respect of counts 2 and 3. ********** 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.