New South Wales Court of Criminal Appeal CITATION: Cicciarello v Regina [2009] NSWCCA 272 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 26 October 2009 JUDGMENT DATE: 11 November 2009 JUDGMENT OF: Allsop P at 1; Fullerton J at 1; McCallum J at 1 1. Extend time for the applicant to give notice of intention to appeal or to give notice of intention to apply for leave to appeal to 2 July 2009. 2. Grant leave to appeal. DECISION: 3. Allow the appeal. 4. Quash the sentences imposed on the applicant by Sorby DCJ in the District Court on 22 August 2008 and in lieu thereof: (a) As to count one, imprisonment for a non-parole period of three years commencing on 12 October 2007 and concluding on 11 October 2010; balance of term of one and a half years commencing on 12 October 2010 and concluding on 11 April 2012. (b) As to count two, imprisonment for a fixed term of 12 months commencing 12 April 2007 and expiring 11 April 2008. CATCHWORDS: CRIMINAL LAW – appeal against sentence – drug supply – supply of not less than a commercial quantity – Drug Misuse and Trafficking Act 1985 (NSW), s25(2) - objective criminality of the offence – aggravating factor – whether dealing for financial gain - proceeds of supply went to support own drug addiction – dealing not for financial gain – less severe sentence warranted in law - CRIMINAL LAW – appeal against sentence – aggravating factor - Crimes Sentencing Procedure Act 1999 (NSW) s 21A(2)(m) - series of criminal acts – series of acts leading to more serious criminal charge – prohibition against double counting – error to take same facts into account as aggravating factor that lead to more serious criminal charge – less severe sentence warranted in law - Crimes Sentencing Procedure Act 1999 (NSW) - s 21A(2)(m) - Drug Misuse and Trafficking Act 1985 (NSW) - s25(2) Crimes Sentencing Procedure Act (1999) (NSW) LEGISLATION CITED: Criminal Appeal Act 1912 (NSW) Drug Misuse and Trafficking Act 1985 (NSW) Firearms Act 1996 (NSW) CATEGORY: Principal judgment Bowden [2009] NSWCCA 45 CASES CITED : Day (1998) 100 A Crim R 275 Tadrosse [2005] NSWCCA 145; 65 NSWLR 740 Way [2004] NSWCA 131; 60 NSWLR 168 PARTIES: Carmelo Cicciarello The Crown FILE NUMBER(S): CCA 4577/08 COUNSEL: S Odgers SC (Applicant) V Lydiard (Crown) SOLICITORS: M Blair (Applicant) S Kavanagh, Solicitor for Public Prosecutions LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 0288/2008 LOWER COURT JUDICIAL OFFICER: Sorby DCJ LOWER COURT DATE OF DECISION: 22 August 2008 IN THE COURT OF CRIMINAL APPEAL 4577/08 ALLSOP P FULLERTON J McCALLUM J Wednesday 11 November 2009 CICCIARELLO v REGINA HEADNOTE Mr Cicciarello pleaded guilty to two charges, namely supplying not less that a commercial quantity of methylamphetamine based on Drug Misuse and Trafficking Act 1985 (NSW), s25(2) and possession of an unlicensed firearm based on Firearms Act 1996 (NSW), s7A(1). The sentencing judge assessed the seriousness of the drug supply offence as within the midrange of objective seriousness taking into account that the crime was committed for "financial gain" and that the offence involved a series of criminal acts. Mr Cicciarello was sentenced to a total term of seven and a half years with a non-parole period of five years, being comprised of seven years for the drug supply offence and one year for the firearms offence, accumulated by six months. The applicant sought leave to appeal from the sentences imposed. The appeal grounds against sentence included: 1. the sentencing judge erred in his assessment of the objective seriousness of the drug supply offence; 2. the sentencing judge erred in finding that an aggravating factor to be taken into account was that the drug supply offence was committed for financial gain; 3. the sentencing judge erred in finding that an aggravating factor to be taken into account was that the offence comprised a series of criminal acts. Held granting leave to appeal against sentence, allowing the appeal, quashing the sentence below and re-sentencing the applicant: The Court (Allsop P, Fullerton J and McCallum J) 1. There was evidence before the sentencing judge which His Honour accepted that the proceeds of the supply were used to fund the applicant's own drug addiction and therefore it was an error to characterise the circumstances of supply as selling for financial gain: [13] – [17]. 2. When the series of criminal acts leads to the more serious criminal charge being laid against the applicant, the prohibition against double counting is undermined if the same series of criminal acts is taken into account as an additional aggravating factor, in turn leading to an erroneous characterisation of the offence as one in the midrange of seriousness: [19]. 3. Given the above errors it was an error to characterise the offence under the Drug Misuse and Trafficking Act as falling in the mid-range of objective seriousness and a less severe sentence was warranted in law:[20] – [21]. IN THE COURT OF CRIMINAL APPEAL 4577/08 ALLSOP P FULLERTON J McCALLUM J Wednesday 11 November 2009 CICCIARELLO v REGINA Judgment 1 THE COURT: The applicant seeks an extension of time to apply for leave to appeal and leave to appeal from sentences imposed on him by a judge of the District Court (Sorby DCJ) on 22 August 2008 in respect of two offences to which he pleaded guilty. Those offences were: 1. Between 27 February 2007 and 12 April 2007 he supplied not less than a commercial quantity of methylamphetamine. 2. On 12 April 2007 he possessed an unlicensed firearm. 2 The former charge was based on the Drug Misuse and Trafficking Act 1985 (NSW), s 25(2) for which the maximum penalty is 20 years imprisonment and the standard non-parole period is 10 years. The latter charge was based on the Firearms Act 1996 (NSW), s 7A(1) for which the maximum penalty is five years imprisonment. 3 On a Form 1 there was one charge of possession of ammunition without holding a licence or permit or authority pursuant to the Firearms Act, s 65(3). 4 The applicant was sentenced to a total term of seven and a half years with a non-parole period of five years. With respect to the first charge, the drug offence, the applicant was sentenced to a non-parole period of four and a half years commencing on 12 October 2007 and concluding on 11 April 2012, with a balance of term of two and a half years concluding on 11 October 2014. With respect to the second charge, the firearm offence, he was sentenced to a fixed term of one year to date from 12 April 2007 and concluding on 11 April 2008. Thus, the two offences were accumulated by six months. 5 There was an agreed statement of facts before the sentencing judge from which the following facts were derived. On 1 February 2007, Redfern Police commenced an investigation and operation into the alleged supply of commercial quantities of prohibited drugs including crystal methylamphetamine or "Ice" by the applicant from his premises in Surry Hills. On 14 February 2007, in a controlled operation, an undercover policeman was authorised to purchase prohibited drugs from the applicant. On 20 February 2007, a warrant was granted by the Supreme Court to monitor and record conversations of the applicant and the undercover officer. 6 The facts of the first offence, being the supply of not less than a commercial quantity (390.31 grams) of methylamphetamine were as follows: 1. On Tuesday 27 February 2007, the undercover officer contacted the applicant at various times on a mobile phone and arranged the purchase of "eight ball" of Ice for $1,100. The applicant agreed and arranged for the undercover officer to attend the premises. He did attend and the applicant supplied him with 3.47 grams of Ice. This is in excess of three grams which is a trafficable quantity under the Drug Misuse and Trafficking Act . 2. On Thursday 1 March 2007, (two days later) the undercover officer contacted the applicant again at various times on a mobile phone and arranged the purchase of a quantity of Ice for $2,200 dollars. The applicant agreed and arranged for the undercover officer to attend the premises. He did attend and the applicant supplied him with 6.93 grams of Ice. 3. On Friday 9 March 2007, the undercover police officer again contacted the applicant at various times on a mobile phone and arranged to purchase a further quantity of Ice for $4,000. The applicant agreed and arranged to meet the officer at Mutch Park in Pagewood. The undercover officer drove there, met the applicant who supplied him with 13.9 grams of ice. 4. Between 16 March 2007 and 11 April 2007, a mobile telephone number belonging to the applicant was the subject of lawful interception and calls were intercepted containing both open and coded conversations relating to the supply of Ice. The transcripts of 14 of those calls were before the Court. They revealed a number of agreements to supply Ice under the extended definition of supply in the Drug Misuse and Trafficking Act , s 3. 5. Of the 390.31 grams the subject of count one, 24.30 grams were supplied to the undercover officer and the balance the subject of agreements to supply. 7 The facts of the second offence, being the firearm offence, were that on Thursday 12 April 2007 police attended the applicant's premises with a search warrant. Upon announcing their presence, the police heard footsteps within the premises, forced the door open and entered the premises. They observed the applicant climbing over a wall into the neighbouring premises. After a struggle the applicant was arrested and escorted back inside. He was wearing a "bum bag", a search of which revealed a Colt .38 calibre automatic pistol containing a magazine with six rounds of ammunition, though no round of the ammunition was chambered. 8 The remarks on sentence by the sentencing judge were summarised by the Crown on the application as follows: (a) Both offences were objectively serious and general deterrence and specific deterrence must play an important part in the sentencing exercise. (b) The applicant's attempts at rehabilitation so far and his determination to do more were accepted by the sentencing judge as special circumstances to allow him to vary the statutory ratio of non-parole to parole periods. (c) The applicant was entitled to a 25 per cent discount for his pleas. (d) The applicant had relatively minor criminal history with no similar offence. (e) This is the applicant's first experience of full-time custody which was to be taken into account as another special circumstance. (f) The applicant was unlikely to reoffend. (g) The offences were not part of a planned or organised criminal activity. (h) The offence under s 25(2) of the Drug Misuse and Trafficking Act involved a series of criminal acts and was committed for financial gain.* (i) The firearm offence was committed without regard to public safety, there being live ammunition in the firearm and the applicant was carrying the weapon. (j) The drug offence falls into the mid-range of objective seriousness.* 9 The two subparagraphs marked with asterisks were said by the applicant to contain material error. 10 The applicant raised initially six grounds of appeal. Grounds 4 and 6 were not pressed. Only grounds 1, 2 and 3 need be dealt with. 11 Grounds 1 and 2 were central to the application and appeal by the applicant. They were as follows: "Ground 1. The sentencing judge erred in his assessment of the objective seriousness of the drug supply offence. Ground 2. The sentencing judge erred in finding that an aggravating factor to be taken into account was that the drug supply offence was committed for financial gain." 12 The applicant gave evidence at the sentencing hearing. His evidence was clear that he sold the drugs and agreed to sell drugs to support his addiction to Ice. That addiction had begun after the break-up of his marriage. While he was in the personal difficulties he found himself under, he began seeing escorts or prostitutes who introduced him to the drug Ice. He testified that he was not making any profits from his supply in the sense that all the proceeds went into obtaining drugs for his own use. When the Crown Prosecutor began to investigate this in questioning, the sentencing judge indicated that he did not want any further information. It appears from the whole of the transcript that the sentencing judge accepted the applicant's claim that all the proceeds of his supplies went to support his own drug habit. This very proposition was submitted to the sentencing judge by counsel for the applicant to which the sentencing judge replied: "have to be, yes". 13 In Day (1998) 100 A Crim R 275 at 277 Wood CJ at CL said: "The objective criminality of an offender who traffics in drugs to feed a personal habit is somewhat less than that of a trafficker for greed …" 14 In Way [2004] NSWCA 131; 60 NSWLR 168 at 186-187 [86] Spigelman CJ said: "Some of the relevant circumstances which can be said 'objectively' to affect the 'seriousness' of the offence will be personal to the offender at the time of the offence but become relevant because of their causal connection with its commission. This would extend to matters of motivation ( for example duress, provocation, robbery to feed a drug addiction ) …" (emphasis added) 15 In Bowden [2009] NSWCCA 45 at [55]-[60] a distinction was drawn between selling drugs for commercial gain and for feeding a habit. 16 Notwithstanding the material that was before him which he apparently accepted the learned sentencing judge assessed the seriousness of the offence as within the mid-range of objective seriousness taking into account that the crime was committed for "financial gain". 17 Whilst one should be careful about generalising in relation to such factors outside the circumstances of any particular case, here, quite clearly, when one understands the background of this young man and what he was doing, he was not selling for greed or for financial gain, he was selling to feed a drug habit that he had acquired. This does not detract from the fact that he committed a serious offence, but what it does mean is that it was an error, and an important one, to characterise this as selling for financial gain and thus to characterise it as an offence falling within the mid-range. In our view, that latter conclusion must clearly have been affected by the finding of financial gain because no other basis in the facts could found such a conclusion. 18 In our view, there was an error of the sentencing judge in this regard. This error led to his Honour characterising the objective criminality of the offence as more serious than it was. It was not within the mid-range of objective seriousness. It was lower than that, in particular given that it was to feed his habit. A less severe sentence was warranted in law: the Criminal Appeal Act 1912 (NSW), s 6(3). For this reason the sentence on the first charge should be quashed. 19 Ground 3 concerned the way the sentencing judge took into account as an aggravating factor the fact that there was a series of criminal acts: the Crimes Sentencing Procedure Act (1999) (NSW), s 21A(2)(m). The difficulty with this is that those multiple criminal acts were the foundation for the more serious offence with which he was charged, namely supply of not less than a commercial quantity of the drug for which a maximum penalty of 20 years imprisonment was provided. They were not strictly elements of the offence charged, as for example they would have been in an offence of on-going supply under the Drug Misuse and Trafficking Act, s 25A. In such a case, the Crimes (Sentencing Procedure) Act, s 21A would expressly prohibit a sentencing court from having additional regard to such matters as an aggravating factor. The risk of double counting in the assessment of objective seriousness in that case would thereby be avoided. Here, when the series of criminal acts leads to the more serious criminal charge being properly laid against the applicant, the prohibition against double counting is undermined if the same series of criminal acts is taken into account as an additional aggravating factor, in turn leading to an erroneous characterisation of the offence as one of mid-range seriousness. The above is consistent with Tadrosse [2005] NSWCCA 145; 65 NSWLR 740 at 747 [29]. 20 In these circumstances, in our view, the sentence on the first charge affected as it is by these errors should be quashed and a less severe sentence imposed. No complaint was made about the sentence for the second offence. Nevertheless, for clarity, simplicity and the sake of good order we would quash both sentences and resentence the applicant for both offences. 21 In resentencing the applicant, we would take into account all the other matters legitimately, if we may respectfully say so, taken into account by the sentencing judge which we need not repeat. Counsel for the applicant put to the Court that an appropriate sentence on the first charge would be that suggested by counsel for the applicant below. Adopting that course, counsel for the applicant suggested that a non-parole period of three years with six months accumulation for the sentence for the firearms offence (being a fixed term of one year) would be appropriate. The Crown on appeal did not contest this approach, if it be found by this Court (as it has been) that a less severe sentence was warranted in law. In our view, the sentence suggested by counsel for the applicant at the sentencing hearing and adopted by his counsel in this Court is the appropriate sentence reflecting the objective criminality of the offence. The balance of term should be adjusted accordingly. 22 An extension of time for leave to appeal is required. No submission was put against that by the Crown. Therefore, the orders that we would make are: 1. Extend time for the applicant to give notice of intention to appeal or to give notice of intention to apply for leave to appeal to 2 July 2009. 2. Grant leave to appeal. 3. Allow the appeal. 4. Quash the sentences imposed on the applicant by Sorby DCJ in the District Court on 22 August 2008 and in lieu thereof: (a) As to count one, imprisonment for a non-parole period of three years commencing on 12 October 2007 and concluding on 11 October 2010; balance of term of one and a half years commencing on 12 October 2010 and concluding on 11 April 2012. (b) As to count two, imprisonment for a fixed term of 12 months commencing 12 April 2007 and expiring 11 April 2008. ********** 12/11/2009 - typographical errors - Paragraph(s) Second paragraph of headnote & order 2 line 1 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.