Reported Decision: 185 A Crim R 74 New South Wales Court of Criminal Appeal CITATION: Stokes v Regina [2008] NSWCCA 123 HEARING DATE(S): 28 May 2008 JUDGMENT DATE: 4 June 2008 JUDGMENT OF: Giles JA at 1; Barr J at 2; Hall J at 46 DECISION: Leave to appeal against the sentences is granted. Appeal is dismissed. CATCHWORDS: CRIMINAL LAW - sentencing - supply of prohibited drugs - whether aggravated by organisation and planning - whether sentence excessive LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 s21A, s44(2) Criminal Appeal Act 1912 s6(3) R v Tadrosse [2005] NSWCCA 145 R v Fahs [2007] NSWCCA 26 R v Elyard (2006) NSWCCA 43 CASES CITED : R v Dougan [2006] NSWCCA 34 R v Hewitt (2007) NSWCCA 353 R v Smiroldo (2000) NSWCCA 120 R v Hammoud [2000] NSWCCA 540 PARTIES: Tyson Stokes Regina FILE NUMBER(S): CCA 2007/4277 COUNSEL: Mr T Gartelmann (Appellant) Mr P Miller (Crown) SOLICITORS: Legal Aid Commission (Appellant) Solicitor for Director Public Prosecutions(Crown) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 06/31/0296 LOWER COURT JUDICIAL OFFICER: Neild DCJ LOWER COURT DATE OF DECISION: 13/04/07 IN THE COURT OF CRIMINAL APPEAL 2007/4277 GILES JA BARR J HALL J 4 JUNE 2008 TYSON STOKES V REGINA Judgment 1 GILES JA: I agree with Barr J. 2 BARR J: Tyson Stokes seeks leave to appeal against sentences imposed in the District Court. For knowingly taking part in the supply of a prohibited drug on 6 January 2006 the applicant was sentenced to imprisonment for a period of one year six months with a non-parole period of one month and fourteen days. For the offence of supplying a prohibited drug on 13 January 2006 he was sentenced to imprisonment for a period of one year and six months with a non-parole period of one year one month and fourteen days. For the offence of supplying a prohibited drug other than cannabis on three occasions during thirty consecutive days for financial or material reward committed between 30 December 2005 and 27 January 2006 the applicant was sentenced to imprisonment for three years with a non-parole period of two years. The sentences for the first two counts were ordered to run concurrently. That for the third count was accumulated by one year upon the non-parole period for the first two. The resulting sentence was a non-parole period of three years and a balance of term of one year. The maximum penalty for each of the first two counts was 15 years and for the third 20 years. 3 In December 2005 and January 2006 police conducted a controlled operation in a nightclub in Gosford. Their operatives approached the applicant and negotiated the supply of prohibited drugs. On the first occasion, 30 December 2005, the applicant said that he could supply as many pills as the operatives required and provided his mobile telephone number for future transactions. On that occasion he supplied for $70 two pills which he said were ecstasy but which in fact contained the prohibited drug ketamine. The weight was 0.55g and the purity 36.5%. That was the first of the three transactions contemplated by the third count, the charge of ongoing supply. 4 The second incident contemplated by that count took place on 7 January 2006. One of the operatives, calling herself Sarah, telephoned the applicant, who was at the nightclub, and asked for a gram of cocaine. The applicant said that the price was $200 per gram and that he would telephone her to confirm that it was available. He later returned the call and said that he could supply only a few points of cocaine at $50 per point. A point is 0.1g. They came to an agreement that the applicant would sell the operative five ecstasy pills for $25 each and that he would throw in a point of cocaine. Eventually the operative handed over $120 and received from the applicant a plastic bag containing five pills. They talked about cocaine and the applicant said that he normally sold grams rather than points. It turned out that the pills did not contain ecstasy at all but 1.26g methylamphetamine at 6% purity. 5 The third transaction in that count took place on 27 January 2006. Three operatives spoke to the applicant at various times at the nightclub and one of them came to an agreement to purchase two ecstasy pills. A second joined in the conversation and asked him to increase the supply to five pills. The applicant said that he could supply the pills within an hour. A short time later he told one of the operatives that he could sell ecstasy pills at $40 per pill and that they cost him $30 each. The operative said that she would take only three at that price. The applicant handed over three pills for $120. Those pills proved on analysis to contain ecstasy, two of them weighing 0.5g altogether at 27% purity and the other weighing 0.24g at 25.5% purity. 6 The offence the subject of the first count was committed on 6 January 2006. One of the operatives, who was at the nightclub, telephoned the applicant on his mobile phone. He was not in the vicinity. A series of text messages followed, with the applicant supplying a further telephone number for the operatives to call. They did so and an anonymous person agreed to supply two ecstasy pills for $60. There were further calls and the operatives asked for five pills at the same price. A deal was made. The anonymous person told the operatives to wait in the car park and look for a red Lancer car. They did so and the car arrived. A man introduced himself as Keith. One of the operatives gave the man $150 and he gave her five tablets in exchange. The operative asked whether they could contact Keith in future but he told them to go through Tyson. In a telephone conversation that took place later on the same night the applicant asked whether Josh had met the operatives. He was told that he had not and that Keith had met them. The conversation ended with the applicant promising to get "the good stuff" on the following day. The pills supplied on that occasion weighed 1.8g and contained ketamine at 36.5% purity. 7 The second count was based upon the events of 13 January 2006. One of the operatives, calling herself Felicity, telephoned the applicant at the nightclub. He asked her whether she wanted the same as the week before and told her that he had cocaine. Felicity asked for about a gram and he said that he had it on him. They agreed on a price of $200. They met as arranged. The operative had a drink with her and the applicant said that he wished to place in the drink the gram of cocaine which he had. That was because he was worried about her having a bag with his fingerprints on it. The operative refused. She said that she wanted the whole gram to use. She declined a taste test. The applicant went to the toilet and on emerging told the operative that he had used most of the cocaine. There was one point left, he said, which the operative could have for $20. The operative paid $20 and the applicant supplied the substance. It turned out not to contain any prohibited drug. 8 The first ground of appeal asserts that the sentencing judge erred in finding present the aggravating factor referred to in s21A(2)(n) Crimes (Sentencing Procedure) Act 1999. 9 Features which aggravate the criminality of an offence are dealt with in s21A Crimes (Sentencing Procedure) Act. Relevantly, the section is as follows - (1)In determining the appropriate sentence for an offence, the court is to take into account the following matters: (a) the aggravating factors referred to in subsection (2) that are relevant and known to the court, … The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law. 2)Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows: … (n) the offence was part of a planned or organised criminal activity, … The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence. … 10 The sentencing hearing took place on 3 April 2007. After the close of the evidence the legal representative of the applicant made his submissions. He did not mention any aggravating feature. The Crown responded, saying this among other things - …In relation to s21A(2) there are no aggravating features I put before you… 11 Understandably, the representative of the applicant did not take issue with that statement. His Honour adjourned the matter to 13 April 2007 for sentence. 12 On 13 April 2007 his Honour imposed sentence, and as part of the remarks on sentence said this - In determining an appropriate sentence to impose upon the offender for each of the offences to which he has pleaded guilty, I must recognise the purposes of sentencing outlined in section 3A of the Crimes (Sentencing Procedure) Act and I must take into account such of the aggravating factors referred to in s21A(2) of that Act as are present…I consider that the only aggravating factor is that lettered (n) in s21A(2)… 13 It was submitted on appeal the hearing had been conducted unfairly to the applicant. His representative had been led to believe that the Crown was not asserting the presence of any aggravating feature. No mention was made of any fact which might be seen as aggravating the offences. His Honour did not express any intention of taking into account any feature as aggravating the applicant's criminality. If the matter had been aired, the legal representative of the applicant would have been able to deal with it and, perhaps, persuade the sentencing judge that no such aggravating feature was in fact present or should be taken into account in imposing sentence. 14 As Howie J said in R v Tadrosse [2005] NSWCCA 145 at [19], it is prudent for sentencing judges to raise with the parties during addresses whether any of the factors listed in s21A(2) apply to the sentencing exercise being undertaken. If the sentencing judge considers that any of the aggravating factors listed is present, in fairness to the offender, the judge should indicate to the offender's legal representative that he or she is considering taking that matter into account so that, if necessary, the court might be persuaded that the aggravating feature is not present or for some reason it should not be taken into account in the peculiar circumstances of the case under consideration. 15 In the result, the ultimate sentencing decisions were made on a basis of fact which included a feature that the applicant believed was absent and with which he had no opportunity to deal. In my opinion this ground of appeal has been made good. 16 The power of the court in such an instance lies in s6(3) Criminal Appeal Act 1912, which provides (for present purposes) that the court, if it is of opinion that some other less severe sentence is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal. 17 The question whether any sentence less severe than that imposed on the applicant is warranted in law requires a consideration not only of the question of aggravation but of every factor going to sentence. 18 In addition to the facts of the offences themselves, which I have extracted from the agreed statement of facts tendered on sentence, these are the most important of his Honour's unchallenged findings of fact. The applicant and his younger sister were raised by their mother after their parents separated. That had happened when the applicant was about four years of age. He no longer had any relationship with his mother or father, though he was trying to re-establish that with his mother. He pursued an apparently normal school career until leaving with the School Certificate at the end of Year 10. That was in 1999. He began consuming intoxicating liquor and smoking cannabis when he was about 14 years old. He began an apprenticeship as a mechanic but terminated it after 14 months. Since then he had held various casual labouring and unskilled jobs. 19 He moved onto the use of other prohibited drugs when he was about 16. He limited his consumption of intoxicating liquor, however, and stopped using prohibited drugs when he was about 20 years old. He was not using any prohibited drug when he committed these offences. He was then 22 years old and unemployed. He was in good physical and mental health, though he believed he might have an undiagnosed mental illness. 20 He was arrested on 21 March 2006 and charged with having committed the present offences. On 24 August 2006 he pleaded guilty to them all at the Local Court. He appeared in the District Court on 3 April 2007 and maintained his guilty pleas. 21 At the hearing before his Honour the offender said that he was depressed, following the breakdown of a relationship he had had with a girl, and that, not thinking clearly, he agreed to supply the drugs to the undercover police officers. His Honour rejected that evidence and concluded that the offender knew what he was doing and was in control of what happened. 22 His Honour noted a submission made on behalf of the applicant that he gained little from the sale of the drugs. His Honour thought that that observation might have been accurate but concluded that the applicant nevertheless did what he did for financial or material reward. The point was that the applicant was in the business of dealing in drugs and was not, as some persons sometimes are, selling drugs in order to finance their own habit. His Honour noted the variety of drugs the applicant was able to supply. 23 A pre-sentence report was put before his Honour. The author of the report noted the prior custodial history of the applicant and reported him as having performed poorly while supervised. He thought him unsuitable for any further supervision or for any Community Service Order or Order of Periodic Detention. 24 His Honour noted that the offender had been dealt with in the past for 17 offences, four of them concerned with drugs. He had spent two periods of time in gaol, totalling together somewhat less than a year. One of them was for the supply of a prohibited drug early in 2004. 25 His Honour said no more about aggravating features than the passage I have extracted. 26 His Honour rejected the applicant's claim to be remorseful and regarded the pleas of guilty as an acceptance of the inevitable. He thought the prospects for rehabilitation impossible to assess because of the lack of family support, accommodation and employment. He considered the applicant likely to re-offend in order to derive money to live on. 27 His Honour drew attention to the need for general and personal deterrence. 28 His Honour took as the starting point for the offence of the ongoing supply imprisonment for four years and for the other offences imprisonment for two years. His Honour reduced those periods by 25 percent to take account of the early pleas of guilty. 29 His Honour found no circumstances which were special for the purposes of s44(2) Crimes (Sentencing Procedure) Act and expressed the intention by partly accumulating the sentences to impose an overall sentence of four years with a non-parole period of three years. 30 The arguments put on appeal against the finding of aggravation constituted by planning and organisation were as follows. It was submitted first that there was nothing out of the ordinary in the way the applicant went about the business of selling drugs. Selling drugs directly to consumers ordinarily requires some planning and organisation. Suppliers have to be available. Means of communication have to be set up between those suppliers and the seller and between the seller and those who might buy for consumption. It was submitted that some aspect of the applicant's operation going beyond that normally expected in offences of this kind had to be identified and had not been identified. Even if this aggravating feature were found to apply to one or more of the offences, it did not follow that it should apply to them all. Reference was made to R v Tadrosse, R v Fahs [2007] NSWCCA 26 and R v Elyard (2006) NSWCCA 43. Some expression of reasoning was required to explain why any offence was thereby aggravated. Reference was made to R v Dougan [2006] NSWCCA 34. 31 In R v Hewitt (2007) NSWCCA 353 Hall J, with whom McClellan CJ at CL and Price J agreed, said at [25] - (25) The provisions of s.21A(2)(n) have been the subject of consideration on a number of occasions. The following propositions may be derived from relevant decisions:- (a) The wording of the provision conveys more than simply that the offence was planned: Fahs v Regina [2007] NSWCCA 26 per Howie J at [12] (Simpson and Buddin JJ agreeing). His Honour further observed:- "… The fact that there was a 'level of planning in the offences' as found by the judge does not necessarily give rise to the aggravating factor in s.21A(2)(n). In Wickham [2004] NSWCCA 193, the Court stressed the importance of making findings under s.21A in accordance with the words of the provision ..." (b) In a case where an offender has been charged with multiple drug trafficking offences, a conclusion may be drawn that it is part of a planned or organised criminal activity. In Fahs (supra), Howie J observed:- "… In this case, it would have been open to the judge to find that such a factor existed in respect of each of the offences because it was clear that the applicant was committing the crimes as part of a drug trafficking organisation capable of supplying large amounts of different types of drugs to order." (c) The expression "organised criminal activity" may embrace the activities of several people or it may involve activity carried out by one person. In NCR Australia v Credit Connection [2005] NSWSC 1118, Campbell J observed at [72]:- "In deciding whether the aggravating factor in para (n) is present, there is first a question of construction about what is meant by 'organised criminal activity'. In one sense, 'organised criminal activity' involves the activities of several people that are planned or co-ordinated to carry out the crime. That is the sense involved in media discussion about whether organised crime is on the increase. In another sense, however, it can include activity that is carried out by just one person, concerning which that person engages in planning or preparation." His Honour also observed:- "… as a matter of ordinary English, to think that 'planned criminal activity' has any necessary element in it of there being more than one person involved … For these reasons, I conclude that the factor in para (n) can be present if there is planned organised criminal activity engaged in by just one person." (at [74] and [75]). (d) Offences committed over a period of time may involve sufficient repetition and system to lead to the conclusion that they were organised within the meaning of paragraph (n): NCR Australia (supra) at [76]. (e) In determining whether the facts give rise to "planning" as an aggravating factor, it is necessary to consider and refer to both the evidence that may affirm, and the evidence that may negative the drawing of such a conclusion. This Court in Regina v Reynolds [2004] NSWCCA 51, in determining on the facts of that case that evidence of planning was very limited but that it did exist and was of greater significance than that considered by the sentencing judge, observed at [39]:- "It may be that, had he considered the evidence in detail, his Honour would nevertheless have reached a factual finding similar to that which he did. The error lies in his failing to make reference to evidence pointing to a contrary conclusion. In particular, the list of businesses was, in my view, quite strong evidence of a degree of planning. The absence of a disguise is only one factor pointing in the other direction, or pointing to poor, rather than no, planning." (f) Planning that is "…somewhat haphazard, clumsy in many respects and bound to fail…" may nevertheless be sufficient so as to enliven the application of s.21A(2)(n): Regina v Willard [2005] NSWSC 402 per Whealy J at [32]. 32 It may be accepted from those authorities and from what Hulme J said in R v Smiroldo (2000) NSWCCA 120 about the likely attributes of those who offend against s25A, that something over and above the ordinary attributes of a dealer must be identified before a conclusion under para (n) may properly sound in sentence. 33 Returning to the facts of the present case, it seems to me that there were several attributes of the applicant's operation that might amount to organisation and planning that was somewhat more extensive than that which one would ordinarily expect to find in the operation of a person selling directly to consumers. 34 First, the applicant was not a man dealing at the simple level necessary to fund his own habit, as to which see the remarks of Howie J in R v Fahs at [22]. 35 Secondly, there was the variety of drugs he was able to supply, with the implied variety of contacts and sources from which they could be obtained. Mr Gartelmann, for the applicant, submitted that the applicant was not always able to supply that which he said he could supply. That may be true, or it may simply be that he was a liar, as he was over the final deal. However that may be, the fact remains that he was able to supply a range of goods. 36 Thirdly, the events show that the applicant had a rather more extensive organisation than one would ordinarily expect to find. In particular, provision was made for supply while he was absent. There were the means to send and receive text messages by which to divert the enquirer to a deputy supplier. It seems also that there were at least two deputies and a system for bringing them into contact with consumers. 37 Mr Gartelmann pointed to the small quantities of drugs dealt in and the modest amounts of money involved, but to my mind they were precisely the quantities and amounts one would expect to be involved in sales direct to consumers. I do not think that it could be said that a seller direct to consumers was by reason of that fact alone incapable of being categorised as more than usually planned or organised. 38 Then it was submitted that even though the applicant might be found to be planned or organised above the norm for one or more of the offences it did not follow that he was so planned or organised for all of them. There was particular reference to the three sales constituting the offence on the third count. 39 I do not know of any principle by which a Court which concludes that a dealer in drugs is particularly well planned and organised on one occasion cannot use that evidence to imply that he was so planned or organised on another which was close in time and similar in circumstances. The inference seems inescapable. I think that his Honour's not attributing aggravation to any particular count shows that he drew it. I would reject that submission. 40 My conclusion is that the finding was and is open that the offences, and each of them, were aggravated by the planning and organisation apparent in the applicant's operation. 41 The second ground of appeal was that the sentences were manifestly excessive, and it is appropriate to consider the submissions made under that ground in answering the question whether any less severe sentence is warranted than that which was imposed by his Honour. It was submitted that the offences contemplated by the first and second counts took place within the period of time spanned by the ongoing supply offence. It was pointed out that the facts relied on to prove the offence of ongoing supply often, if not usually, include more than three individual sales. It would not be unusual or unexpected to find five sales, which is all that took place here, constituting a single offence of ongoing supply. 42 Then it was submitted that all the offences occurred in the context of a relationship established by the undercover police operatives. No particular transaction involved conduct significantly disparate from that involved in the other transactions. The offences thus shared common features, a factor pointing towards concurrency. Reference was made to R v Hammoud [2000] NSWCCA 540 in the judgment of Simpson J at [7]-[12]. 43 It was further submitted that the offences the subject of the first and second counts did not involve substantial criminality in addition to that contemplated by the third. The small quantities involved were pointed to. 44 I have taken all these matters into account. The applicant was still a young man, but a man of some experience, having previously served prison terms and having previously dealt in prohibited drugs. He did his business on these occasions for profit. The deterrence of him and others who would act likewise was bound to feature large in the imposition of sentence. There were the aggravating features that I have identified. In my view there is nothing remarkable about an overall sentence of four years' imprisonment with a non-parole period of three years. In my opinion no lesser sentence is warranted in law. 45 I propose that leave to appeal against the sentences be granted but that the appeal be dismissed. 46 HALL J: I agree with Barr 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.