Reported Decision: 191 A Crim R 251 New South Wales Court of Criminal Appeal CITATION: Stack v R [2008] NSWCCA 271 HEARING DATE(S): 28 October 2008 JUDGMENT DATE: 3 December 2008 JUDGMENT OF: McClellan CJ at CL at 1; Simpson J at 2; McCallum J at 3 DECISION: Leave to appeal granted but appeal dismissed. CATCHWORDS: SENTENCING - one count of supply and one count of ongoing supply of methylamphetamine - appeal against sentence upon basis was disproportionate to comparable co-offender - appeal dismissed LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985 CATEGORY: Principal judgment R v Bacon (2000) 120 A Crim R 28 R v Decandia (unreported, Court of Criminal Appeal 8 July 1994) R v Fogg [2002] NSWCCA 395 CASES CITED : R v Majzoub [2006] NSWCCA 12 R v Morgan (1993) 70 A Crim R 368 R v Radisich [2006] NSWCCA 52 R v Schumacher [2006] NSWCCA 135 PARTIES: Steven Brett STACK (Appellant) Regina (Respondent) FILE NUMBER(S): CCA 2008/414 COUNSEL: Mr J O'Sullivan (Appellant) Mr G Rowling (Respondent) SOLICITORS: Nicolas Moir and Associates Pty Ltd (Appellant) S Kavanagh (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 06/31/0293 LOWER COURT JUDICIAL OFFICER: O'Connor QC DCJ LOWER COURT DATE OF DECISION: 22 January 2008 - 6 - IN THE COURT OF CRIMINAL APPEAL 2008/414 McCLELLAN CJ at CL SIMPSON J McCALLUM J WEDNESDAY 3 DECEMBER 2008 Steven Brett STACK v R Judgment 1 McCLELLAN CJ at CL: I agree with McCallum J. 2 SIMPSON J: I agree with McCallum J. 3 McCALLUM J: The applicant seeks leave to appeal against the sentences imposed on him in the District Court on 22 January 2008 after he pleaded guilty to one offence of ongoing supply of methylamphetamine contrary to s 25A of the Drug Misuse and Trafficking Act 1985 and one offence of supplying methylamphetamine contrary to s 25(1) of that Act. Two further offences of supplying methylamphetamine were taken into account on a Form 1 at the request of the applicant pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999. The statutory maximum penalties for the two counts on the indictment were 20 years and 15 years imprisonment respectively. 4 For the offence of ongoing supply, the sentencing Judge imposed a term of imprisonment with a non-parole period of 3 years and an additional term of 2 years. For the offence of supplying, the sentencing Judge imposed a term of imprisonment with a non-parole period of 2 years and an additional term of 2 years. The two sentences were wholly concurrent. 5 All of the offences involved sales to police officers working undercover. The charge of ongoing supply alleged that between 8 September 2005 and 8 October 2005 the applicant on three separate occasions during a period of 30 consecutive days supplied 60.95 grams of methylamphetamine for financial reward. The facts of that offence were that, on each of three occasions, an undercover operative approached the applicant to buy methylamphetamine. On each occasion, the applicant then contacted his co-offender, Anthony Hopkins, and arranged to obtain the drug from him, collecting it from Mr Hopkins' house and returning to his own home to complete the sale. The amounts supplied were 6.55 grams in exchange for $900, 27.4 grams in exchange for $3,200 (together with an extra $100 for the applicant) and 27 grams for $3,300. 6 The sentencing Judge found that the applicant did not control access to the drugs. Each time the applicant was approached, he contacted Mr Hopkins to obtain the drugs sought. 7 In respect of the charge of supply, sales occurred on two separate dates. The first was on 8 December 2005 when one of the undercover operatives met the applicant seeking to buy one ounce of methylamphetamine. The applicant sent a message to the co-offender, Hopkins, who joined them at the applicant's house and completed the sale in the presence of the applicant. The amount of the drug handed over was 26.9 grams in exchange for $3,300. 8 On 13 March 2006, the undercover operative rang the applicant to negotiate the purchase of 3 ounces of methylamphetamine. The following day, the applicant brought 3 ounces to the undercover operative as requested. He was arrested at that meeting by a plain-clothes police officer. The applicant was found to have 3 ounces of methylamphetamine in his pocket when he was arrested. 9 The two charges taken into account on the Form 1 were based on two small sales by the applicant to one of the undercover operatives at the outset of the undercover operation, each being a sale of about 0.7 of a gram of methylamphetamine in exchange for $100 cash. 10 The first ground of appeal is: "that the sentencing Judge erred in his fact finding in respect to the supply count." 11 The finding complained of is (at page 13 of the Remarks on Sentence): "I accept that the offender's role in the offences was that of a middleman whose responsibility it was to sell the drugs provided to him by Hopkins. In that sense he was not in business for himself making large profits, but rather doing sufficient to obtain a little cash and sufficient drugs for himself and his partner, the co-offender Cruickshank." 12 The applicant submitted that the sentencing Judge's finding on that issue was erroneous, because the applicant's involvement in the events giving rise to the charge of supply was not that of a middleman, but more akin to that of the co-offender, Ms Cruickshank, as a "facilitator". 13 The sentencing Judge had already sentenced Ms Cruickshank at the time he sentenced the applicant. In his Remarks on Sentence in respect of the applicant, his Honour repeated his finding when sentencing Ms Cruickshank that hers was the role of a facilitator because she did not attend the various locations where drugs were exchanged for money. Her role was to handle telephone inquiries, set up meetings, discuss qualities and relay that information to the applicant and Mr Hopkins. 14 The gist of the applicant's complaint was that it was erroneous to describe him as a middleman whose responsibility it was to sell the drugs provided to him by Hopkins, because the two sales the subject of the supply charge were negotiated directly between the undercover operative and Mr Hopkins. In my view, that complaint misconceives what the sentencing Judge meant when he described the applicant as a middleman. 15 The sentencing Judge's remarks disclose (at page 9) that, when sentencing the co-offender, Ms Cruickshank, his Honour drew a distinction between those who attended the various locations where drugs were exchanged for money and Ms Cruickshank, who did not attend on those occasions. On each of the occasions the subject of the charge of supply, the applicant was present when the sale took place. 16 Further, as noted in the Remarks on Sentence in a passage immediately preceding the finding complained of, Counsel for the applicant at the sentence hearing had conceded that the applicant played a more significant role than Ms Cruickshank and was higher in the order than her, as he was handling money and drugs. It is clear from that passage that the sentencing Judge did not draw any relevant distinction between the role of a "middleman" (the term adopted by the Crown) and the role of a "gofer" or "runner" (the term adopted by Counsel for the applicant at the sentence hearing). In my view, the first ground is without substance. 17 The second ground of appeal is that the sentence was manifestly excessive. Mr O'Sullivan, who appeared for the applicant, submitted that, on charges of ongoing supply with similar features to the present matter, "sentences imposed are around a non-parole period of about 2 years". In respect of the charge of supply, he submitted that the period is about 12 months. 18 The first observation to be made is that the applicant's submission misconceives the approach of this Court to a sentence appeal. A sentence will not be held to be excessive simply because more lenient decisions can be found. As stated in R v Morgan (1993) 70 A Crim R 368 at 371 by Hunt CJ at CL (Allen J and Loveday AJ agreeing), it is not the task of this Court to compare the sentence appealed from with those imposed on other offenders with similar characteristics who have committed similar offences. The question is: "whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence (other than that of a co-offender) which merely forms part of that range" (emphasis in original). 19 The cases referred to by Mr O'Sullivan do not demonstrate that the present sentence is outside the range appropriate to the gravity of the present offences. 20 In respect of the offence under s 25A, Mr O'Sullivan relied in particular on the decision of the Court of Criminal Appeal in R v Bacon (2000) 120 A Crim R 28. In that case, the Court held by majority (per Simpson J and Smart AJ, Carruthers J dissenting) that a sentence comprising a minimum term of 2 years and an additional term of 1 year for a charge of ongoing supply was at the top of the range legitimately available in relation to the objective circumstances of the applicant's offence. 21 The sentencing Judge had accepted in that case that the applicant had, at the instigation of his wife, ceased his participation in the supply of amphetamines before being apprehended. Simpson J referred to that factor at [16] as a "very compelling circumstance", the recognition of which did not appear to have translated into a benefit to the applicant on sentencing. The facts in the present case are quite different. 22 The applicant also relied on the decisions of Majzoub v R [2006] NSWCCA 128; R v Fogg [2002] NSWCCA 395 and R v Decandia (unreported, Court of Criminal Appeal 8 July 1994). 23 Majzoub involved a number of purchases of amphetamine by undercover officers over two days. The total amount of drugs seized was 1.2 grams. 24 Fogg involved six purchases of amphetamine by an undercover officer, over a longer period, but, again, the amounts were small and the purity low. In addition, the Court of Criminal Appeal placed considerable emphasis on the applicant's strong subjective case, which included the fact that he had been plunged into a state of deep despair following the death of his eldest son and had not been able to obtain employment on a full-time basis since that event. 25 Decandia does not indicate the range appropriate to the gravity of an offence under s 25A. That was a decision involving an offence of supply contrary to s 25(1) of the Act, and was in fact decided before s 25A was introduced. 26 The decisions relied on by Mr O'Sullivan to support the submission that the non-parole period of 12 months for the charge of supply was excessive were R v Radisich [2006] NSWCCA 52 and R v Schumacher [2006] NSWCCA 135. Radisich was a case involving the supply of 1.3 grams, being the fifth of 5 supplies of similarly small amounts. Schumacher was a severity appeal that was dismissed in circumstances where, as noted by the Crown in this appeal, the sentence was described as being lenient by Grove J at [10] and Hall J at [17]. 27 The orders I propose are that leave to appeal be granted but that the appeal be dismissed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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