HEROD v R [2010] NSWCCA 17

New South Wales Court of Criminal Appeal

CITATION: HEROD v R [2010] NSWCCA 17

HEARING DATE(S): 9 December 2009

JUDGMENT DATE: 22 February 2010

JUDGMENT OF: James J at 1; Hulme J at 2; Hidden J at 23

DECISION: Leave to appeal granted. Appeal dismissed.

PARTIES: Wayne Robert HEROD Regina

FILE NUMBER(S): CCA 2008/10497

COUNSEL: Applicant: Mr I McLachlan Respondent: Ms M Cinque

SOLICITORS: Applicant: S O'Connor Respondent: S Kavanagh

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/10497

LOWER COURT JUDICIAL OFFICER: King DCJ

- 1 - IN THE COURT OF CRIMINAL APPEAL 2008/10497

JAMES J RS HULME J HIDDEN J

Monday, 22 February 2010 Wayne Robert HEROD v REGINA Judgment 1 JAMES J: I agree with RS Hulme J that, for the reasons given by his Honour, leave to appeal should be granted but the appeal against sentence should be dismissed. 2 RS HULME J: On 16 December 2008, the above named Applicant for leave to appeal was sentenced by King DCJ in respect of three offences. They and the sentences imposed were:- 1. Knowingly take part, between 14 June 2007 and 6 February 2008 in the supply of a prohibited drug, namely methylamphetamine – imprisonment for 4 years including a non-parole period of 2 years both periods commencing on 14 May 2008. 2. Knowingly deal, between 14 June 2007 and 6 February 2008, with the proceeds of crime – imprisonment for a fixed term of 18 months commencing on 14 May 2008. 3. Possess more then 3 unregistered firearms – imprisonment for a fixed term of 6 months commencing on 14 February 2008. 3 The offences arise pursuant to, respectively, Section 25(1) of the Drug Misuse and Trafficking Act 1985, Section 193B(1) of the Crimes Act and Section 51D(1) of the Firearms Act. The maximum penalties prescribed in respect of the offences are, respectively, imprisonment for 15 years, imprisonment for 20 years and imprisonment for 10 years. 4 In sentencing the Applicant in respect of count 1, his Honour took into account an offence of possess ammunition without permit or authority and an offence of not keeping a firearm safely. I refer to his Honour's remarks as to the significance he gave these matters below. 5 The Applicant's arrest occurred in consequence of information the police gained while targeting people selling drugs in Tamworth and Kootingal, a village some 5kms north. On 6 February 2008, police executed a search warrant at premises occupied by the Applicant and his de-facto wife, Sharon Mitchell. There they found, inter alia:- (i) Between the toilet and vanity unit in the ensuite bathroom a small fridge on the top of which were some small resealable plastic bags, a knife and scales. (ii) In the fridge a pasty substance which amount to 26.9 grams of methylamphetamine of a purity of 4.5%. (iii) Elsewhere a small plastic tub containing .18 grams of methylamphetamine powder. (iv) In the vanity unit, two further sets of small electronic scales and a bottle of liquid containing 28.14 grams of methylamphetamine of less than 1% purity. (v) Elsewhere in the premises a large number of empty resealable plastic bags some of which contained small amounts of methylamphetamine totalling 1.93 grams. (vi) In the house approximately $24,000 in cash, most of it in bags under the mattress in the bedroom that the Applicant and Ms Mitchell shared. (vii) In a vehicle, in Ms Mitchell's handbag and on the Applicant, further sums of money totalling something in excess of a further $2,000. 6 In a shed on the premises to which, according to the Applicant, only he and Ms Mitchell had keys, a Sterling .22 calibre rifle with the bolt in it and an open packet of .22 bullets or cartridges beside it, a Lithgow .22 rifle with scope, a dismantled .22 stock and barrel in a brown rifle case, a Gecado brand air rifle, loaded and cocked, and other point 22 calibre ammunition and air rifle pellets. 7 None of the firearms were registered. The Applicant had previously held a firearms licence but it had been revoked. 8 It might be mentioned also that some of the money found consisted of marked notes that had been provided by an under cover police officer in the course of purchasing drugs from Ms Mitchell. 9 The sole ground of appeal relied on in relation to the sentences imposed on both counts 1 and 2 is that "the sentencing judge erred in overstating the role of the Applicant in the ongoing supply of methylamphetamine". 10 The circumstances of the Applicant's offending were set out in a "Facts on Sentence" document which was tendered by consent. It revealed an extensive pattern of dealing by Ms Mitchell with one Gerrard Michell including telephone calls, regular attendance by Michell at the premises occupied by the Applicant and Ms Mitchell and the supply of drugs by Ms Mitchell to Michell. Michell's activity was as the middleman between Ms Mitchell and street level users. 11 On at least one occasion Michell spoke to the Applicant who agreed that Michell could drop down to see Sharon and although the statement of facts contains little detail of the Applicant's involvement, it does contain the statements that he "was an active participant in a joint criminal enterprise" and Sharon Mitchell was "from time to time assisted by her de facto partner Herod". 12 During the course of testimony during the sentencing proceedings, the Applicant maintained that he didn't actually sell any drugs but agreed there were times when he answered the telephone and handed it over to Ms Mitchell. He acknowledged that on occasion persons calling on the phone would indicate they were ringing about drugs. He agreed also that he had told the author of a Probation and Parole report that people coming to and going from the property in relation to drug dealing were older people and that he was aware the business conducted by Ms Mitchell was a fairly substantial one. 13 The Applicant asserted he had no idea how much Ms Mitchell was making but said that in addition to her own use she was supplying him with about 3 to 4 grams, or $400 to $600 worth, of methylamphetamine a day. 14 According to the Applicant his use of methylamphetamine commenced many years earlier when he was a truck driver and used it in order to keep awake and keep going. He continued to use it after he stopped driving trucks. He has only two previous convictions, one of which may be ignored but the other, on 28 January 2004 was for three counts of possessing a prohibited drug which in fact was amphetamine of some type. 15 Other matters to which reference should be made are that the Applicant pleaded guilty at an early stage and his Honour allowed a 25% discount for the utility of the plea and indicated he regarded the Applicant has entitled to some further, unquantified, discount in respect of remorse. He found the Applicant had good prospects of rehabilitation. 16 In support of the appeal, attention was directed to remarks made by his Honour:- "… although he was not the active day to day dealer with the amphetamines, making arrangements and supplying them to people, it was however being done effectively as part of a joint enterprise, he supplying the premises from which it could be done more safely that if Ms Mitchell was doing it on her own elsewhere. That is, he was providing premises to assist her in that supply, he was a party to the supply knowing exactly what was the overall scheme, even if he did not deal individually with people that she supplied to. He was also benefiting to a significant extent from the ongoing supply. As I said, approximately $3,500 per week to his own usage. In those circumstances there may be a marginal distinction between his role and the role of Ms Mitchell, however any distinction in terms of sentencing or parity of sentencing is to some extent counterweighted by the second charge on the form one of not keeping the firearms safety, for which there is a specified maximum term of imprisonment of twelve months and/or twenty penalty units."