Wayne William Reid v R [2009] NSWCCA 37

New South Wales Court of Criminal Appeal

CITATION: Wayne William Reid v R [2009] NSWCCA 37

HEARING DATE(S): 19 February 2009

JUDGMENT DATE: 25 February 2009

JUDGMENT OF: McClellan CJatCL at 1; James J at 2; Buddin J at 3

DECISION: Leave to appeal granted. Appeal dismissed.

CATCHWORDS: Criminal law - sentencing - offences of supplying drugs - discount for assistance -special circumstances - totality - parity

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999

CATEGORY: Principal judgment

Elmir v R [2009] NSWCCA 22 Pearce v The Queen (1998) 194 CLR 610 R v El-Arja [2009] NSWCCA 8 CASES CITED : R v Gallagher (1991) 23 NSWLR 220 R v Gu [2006] NSWCCA 104 R v Hammoud (2000) 118 A Crim R 66 R v Zamagias [2002] NSWCCA 17

PARTIES: Wayne William Reid (Applicant) Regina (Respondent)

FILE NUMBER(S): CCA 2007/13112

COUNSEL: Ms S Kluss (Applicant) Ms V Lydiard (Respondent)

SOLICITORS: Homeless Persons Legal Service (Applicant) S Kavanagh (Solicitor for Public Prosecutions)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/21/0195

LOWER COURT JUDICIAL OFFICER: Marien DCJ

LOWER COURT DATE OF DECISION: 16/05/2008

IN THE COURT OF CRIMINAL APPEAL 2007/13112

McCLELLAN CJ at CL JAMES J BUDDIN J

WEDNESDAY 25 FEBRUARY 2009 WAYNE WILLIAM REID v R Judgment 1 McCLELLAN CJ at CL: I agree with Buddin J. 2 JAMES J: I agree with Buddin J. 3 BUDDIN J: The applicant seeks leave to appeal against sentences imposed upon him in the District Court. The applicant originally pleaded guilty in the Local Court to four separate charges of supplying drugs and adhered to those pleas when he appeared for sentence. 4 Charge 1 involved the deemed supply of MDMA in the form of twenty ecstasy tablets which had a total weight of 4.99 grams. Charge 2 involved the deemed supply of methylamphetamine with a total weight of 3.31 grams. Charge 3 involved the supply of 0.1 – 0.2 grams of crystal methylamphetamine or "ice" and Charge 4 involved the applicant knowingly taking part in the supply of 0.08 grams of methylamphetamine or "base". Each of those offences attracts a maximum penalty of 15 years imprisonment and/or a fine of 2,000 penalty units. 5 The sentencing judge took into account when sentencing the applicant four offences of possessing a prohibited drug and one offence of goods in custody which related to a sum of $396.35 in cash which was found in the applicant's possession. 6 In respect of Charge 4, the applicant was sentenced to a fixed term of 6 months imprisonment to date from 16 May 2008 which was the date he went into custody. In respect of Charge 3, he was sentenced to a fixed term of 6 months imprisonment to date from 16 August 2008. In respect of Charge 2, he was sentenced to a fixed term of 6 months imprisonment to date from 16 November 2008. In respect of Charge 1 and taking into account the Form 1 matters, a non-parole period of 7 months to date from 16 February 2009 and ending on 15 September 2009 was fixed. The total sentence imposed is due to expire on 15 June 2010. The effective non-parole period is thus one of 1 year 4 months (16 months) and the total sentence is 2 years 1 month (25 months). The applicant's release date to parole is accordingly 15 September 2009. 7 The factual background to these offences, which is not in dispute, can be briefly stated. On 5 January 2007 police observed three people sitting in a parked car. The applicant was in the driver's seat. In the front passenger seat was a young woman named Asha Wyles and seated behind her was a man named Matthew Barnes. Mr Barnes was seen to hand a cigarette packet to the applicant. When a police officer approached the vehicle he saw that the applicant was holding a cigarette packet. Ms Wyles was observed holding a set of scales on top of her right leg. Located inside the cigarette packet was a clear plastic bag which was wrapped inside another clear resealable bag containing 20 ecstasy tablets which weighed, as I have said, 4.99 grams (Charge 1). Also located inside the cigarette packet was one small clear resealable bag containing another clear resealable bag which in turn contained 1.83 grams of methylamphetamine (the first of the Form 1 matters). 8 The occupants of the vehicle were removed from it and when police searched the applicant they discovered three ecstasy tablets weighing 0.74 grams inside a container in his top pocket. In the same container police located two clear resealable sachets containing 0.16 grams of methylamphetamine. The applicant's possession of those two quantities of drugs gave rise to the second and third matters on the Form 1 document. The fourth offence on the Form 1 arose from the discovery of an amount of $396.35 which was located in the applicant's back pocket. That money was believed to have been obtained from the supply of drugs. 9 The applicant then directed the attention of police officers to other drugs. He said that "there is base [or methylamphetamine] on the floor". On the floor behind the driver's seat and centre console of the vehicle police located a clear resealable sachet containing 3.31 grams of methylamphetamine (Charge 2). Located on top of the centre console was a set of scales. Police also located 8.7 grams of cannabis in a clear plastic resealable bag which was discovered inside a zippered case that was near the front passenger seat (the possession of those drugs gave rise to the fifth and final matter on the Form 1 document). 10 The applicant was taken to a police station where he was interviewed. He told police that prior to their arrival he and his co-offender had been to an address in Redfern where he had supplied Ms Wyles with about 0.1 – 0.2 grams of crystal methamphetamine or "ice" for which he received $300 (Charge 3). The applicant also informed police that when they arrested him he had been about to supply Mr Barnes with the rock substance known as methylamphetamine or "base" which weighed 0.08 grams (Charge 4). He also said that Ms Wyles had been holding the scales in preparation for him weighing the drugs. 11 The applicant gave evidence that he was going to provide the ecstasy tablets to a friend who would pay him later. He said that the three ecstasy tablets located in his top pocket were for his personal use. 12 The applicant was aged 34 at the time of the offences and is now 36. He had little contact with his biological parents and was adopted when he was 3. However when the applicant was about 10 difficulties arose with his adoptive parents. His adoptive parents made arrangements for the applicant to have contact for the first time with his biological mother and sister. Subsequently his adoptive parents terminated that contact and since that time the applicant has had no contact with his biological family. 13 A report from Mr Watson-Munro, a forensic psychologist, was in evidence. He reported that the applicant told him that the cessation of contact with his biological mother had led him to experience feelings of abandonment and confusion. Those feelings were apparently exacerbated when shortly thereafter the applicant was sent away to boarding school in Bathurst. Upon finishing school the applicant returned to Sydney where he took up employment for about 2 years with his father as an electrician. At various times he has been employed in real estate, security work and the car industry. At the time of the offences he was working in a panel beating shop and was also delivering pizzas. At the time of sentence he was casually employed as a landscape gardener. 14 The applicant has never married and has no children. He informed Mr Watson-Munro that because of his anxiety and depression he found it difficult to maintain employment and also relationships. The sentencing judge accepted that the applicant was addicted to "ice" at the time of these offences and that he was motivated to supply drugs to feed his own habit. Nevertheless his Honour noted that there was some discrepancy in the evidence as to precisely how long the applicant had been addicted to "ice" and the circumstances in which he had acquired a significant dependency upon it. Mr Watson-Munro reported that the offender had told him that he had been addicted to amphetamines which he had started using in his late twenties. In more recent times the applicant told him that he had become addicted to "ice". In evidence the applicant told the sentencing judge that he had begun using "ice" only after moving in to share a house with a woman named Natalie. This had occurred, he said, about 8 months prior to his arrest. The applicant said that he began to deliver drugs for her and in return he received a "couple of points of drugs" a day as well as petrol money. The pre-sentence report also stated that the applicant began heavy amphetamine use only after meeting Natalie (by which time he was of course considerably older than his late twenties). Until then his drug use had been confined to the occasional use of amphetamines, a fact which prompted the author of that report to conclude that the applicant did not appear to have a significant drug history. 15 Since his arrest the applicant had made various endeavours to address his drug problems. To that end, although he did not complete the course, he did spend 2-3 months in The Bridge drug rehabilitation program conducted by William Booth House and thereafter attended Narcotics Anonymous meetings at Matthew Talbot Hostel on a weekly basis. The applicant gave evidence that he had stopped using drugs after attending The Bridge program. 16 The applicant had no criminal record as an adult and accordingly the sentencing judge treated him as a man of prior good character. In all the circumstances his Honour concluded that the applicant had "favourable prospects of rehabilitation". That was one of the factors which led the sentencing judge to make a finding of "special circumstances". 17 It was common ground that the applicant pleaded guilty to these offences at the earliest available opportunity. For that reason, the sentencing judge extended to him a discount "by a figure at the top of the range as identified by the Court of Criminal Appeal in R v Thomson & Houlton". His Honour also found that the applicant was remorseful and that, in respect of some of the offences, he had made a voluntary disclosure to the police, a consideration which entitled him to a further discount on sentence. The sentencing judge also took into account in the applicant's favour that he had provided what was described as "valuable information" to police upon his arrest. That information resulted in a search warrant being executed at premises occupied by the person whom the applicant nominated as his cannabis supplier. A quantity of cannabis was seized from those premises with the result that that offender was placed on a bond in the Local Court for supplying cannabis. The applicant gave evidence that as a result of his disclosures to police he was assaulted in the street by his supplier's associates. The applicant also supplied information about other persons involved in the supply of amphetamine and ecstasy but that information was assessed by police as being of no value. Nor was the applicant prepared to provide information about his amphetamine and ecstasy supplier. An overall discount of 30% was extended to the applicant to reflect the fact that he had both pleaded guilty and had provided assistance to the authorities. 18 The applicant told the author of a pre-sentence report that he had committed the offences solely in order to finance his and his then girlfriend's drug use and that the drugs were supplied only to people within their immediate circle of friends. The sentencing judge was not disposed to accept that claim. Although his Honour found that the applicant was at the lower end of the drug distribution network he nevertheless concluded that "his role was important and essential in that drug distribution network". At one stage during the proceedings the sentencing judge described the applicant as operating a "drug supermarket". 19 Although the sole ground of appeal that was notified in the Notice of Appeal was a contention that the sentences were manifestly excessive, a number of individual complaints were raised both in written submissions and at the hearing of the application. It is convenient to deal with each of those complaints.