New South Wales Court of Criminal Appeal CITATION: Scott v R [2010] NSWCCA 103 HEARING DATE(S): 19 May 2010 JUDGMENT DATE: 25 May 2010 JUDGMENT OF: Allsop P at 1; Grove J at 2; Hislop J at 3 DECISION: (1) Grant leave to appeal; (2) Quash the sentence on the indictment; (3) In lieu thereof, sentence the applicant to imprisonment for a non parole period of one year three months commencing on 4 May 2009 and expiring on 3 August 2010 with a balance of term of five months expiring on 3 January 2011; (4) Direct the release of the applicant on parole at the end of the non parole period, being 3 August 2010. CATCHWORDS: CRIMINAL LAW - sentence appeal - drug offence - availability of sentence other than full time custody. Drug Misuse and Trafficking Act 1985 LEGISLATION CITED: Criminal Procedure Act 1986 Crimes (Sentencing Procedure) Act 1999 R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704 Clarke v R [2009] NSWCCA 49 CASES CITED : R v Gu [2006] NSWCCA 104 R v Gip [2006] NSWCCA 115; (2006) 161 A Crim R 173 R v Pilley (1991) 56 A Crim R 202 R v Cacciola (1998) 104 A Crim R 178 PARTIES: David Stephen SCOTT v R FILE NUMBER(S): CCA 2008/9451 COUNSEL: B. Rigg (Applicant) F. Veltro (Respondent) SOLICITORS: Legal Aid Commission (Applicant) Solicitor for Public Prosecutions (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2008/9451 LOWER COURT JUDICIAL OFFICER: Woods ADCJ LOWER COURT DATE OF DECISION: 4 May 2009 IN THE COURT OF CRIMINAL APPEAL 2008/9451 ALLSOP P GROVE J HISLOP J Tuesday 25 May 2010 DAVID STEPHEN SCOTT v REGINA Judgment 1 ALLSOP P: I agree with Hislop J. 2 GROVE J: I agree with Hislop J. 3 HISLOP J: The applicant was charged on indictment that on 12 September 2007 at Lightning Ridge in the State of New South Wales he did supply a prohibited drug, namely 27.1 grams of methylamphetamine, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (DMTA). The maximum penalty for this offence was 15 years imprisonment. No standard non parole period was applicable. 4 The applicant was convicted by a jury and on 4 May 2009 was sentenced to imprisonment for a non parole period of one year ten months to commence on 4 May 2009 and expire on 3 March 2011 with a balance of term of eight months to expire on 3 November 2011. The applicant was also dealt with on a s 166 (Criminal Procedure Act 1986) certificate for related offences, being possession of a prohibited drug (cannabis leaf), possession of a prohibited drug (cannabis seeds) and possession of equipment used in the administration of a prohibited drug. He was sentenced to six months imprisonment in respect of the first two charges, whilst the third charge was dealt with under s 10A of the Crimes (Sentencing Procedure) Act 1999. All sentences were to be served concurrently. 5 The applicant has sought leave to appeal against sentence on the grounds that: (a) the sentence was manifestly excessive; (b) his Honour erred in failing to find special circumstances; (c) his Honour erroneously fettered his discretion to impose a sentence other than one of full time custody. 6 The facts of the offence were set out by the sentencing judge in his remarks on sentence as follows: "On 12 September 2007 acting on information and under the authority of a search warrant the police attended at the house where the [applicant] was residing in Lightning Ridge. Upon arrival and being served with the search warrant and being asked whether there were any amphetamines in the house the [applicant] said, 'Yes, in the freezer'. During the search some resealable plastic bags containing a white powder substance were located and also some seeds. There was also some scales and some further resealable bags found. An analysts certificate was in evidence that the powder found was identified as methylamphetamine, totalling 27.1 grams and of a purity of one percent. In his statement to the police the [applicant] admitted to the possession of the amphetamines, however he said that he had it for his own use. With reference to the scales he had stated that they were for weighing of opals and it is noted that Lightning Ridge is an opal mining town where many people have such scales to weigh the opals they mine and sell." 7 The applicant told police that he paid $200 for the drug to an unknown person in a bar and mixed it with 25-27 g of glucose. He also said that one set of scales was for the weighing of opals and the other for measuring or weighing cannabis. The resealable plastic bags were to be used for cut opals. 8 The Probation and Parole Service pre sentence report dated 24 April 2009 recorded that the applicant "stated that he commenced cannabis use at the age of 15 years. His use increased to two or three times a week, costing approximately $30. At the time of the offence [the applicant] stated that he had used amphetamines for approximately ten weeks." 9 The applicant gave evidence at the sentencing hearing that he was using amphetamines and cannabis at the time of the offence and that he had been using amphetamines for 10-12 weeks before his arrest. This evidence was not challenged in cross examination. 10 His Honour found the applicant was 29 years old; had no real history of criminal convictions; was in a stable relationship of 11 years with two young children; he had strong family support; he had experienced a change in attitude since his arrest and there was a good chance of rehabilitation. Ground 1: The sentence was manifestly excessive 11 The applicant was charged with supply. The deeming provision in s 29 DMTA was relied upon. At the trial the applicant admitted his possession of the drug but asserted it was for his own use, thereby seeking to rely upon the exception contained in s 29 DMTA. The jury found him guilty. 12 Consistently with the verdict, he stood for sentence on the basis he had possession for the purpose of supply. 13 His Honour found the offence was at the lower level of seriousness due to the amount involved and the level of the purity of the drug. 14 Applicant's counsel submitted the sentence was manifestly excessive. She relied upon his Honour's finding as to the lower level of seriousness of the offence, the applicant's good subjective case and statistics provided by the Judicial Commission of New South Wales. It was submitted that the statistics showed that the sentence imposed upon the applicant was well beyond the statistical mid point, thus demonstrating error. 15 His Honour referred to statistics: "The statistics suggest a range between 2 and 4 years with non parole periods of between 12 months and 2 years. After consideration of the above and of his limited criminal history, I would still have to consider a sentence of 2 years 6 months imprisonment. There is no leniency of the penalty to be considered for any plea of guilty and I must therefore consider then the ratio of parole and non parole." 16 The respondent asserted the sentence was within the available discretionary range and could not be categorised as manifestly excessive. 17 It is unnecessary to finally determine this issue as an error of principle has occurred in his Honour's determination that he was bound to impose a sentence of full time custody. Ground 2: His Honour erred in failing to find special circumstances 18 His Honour in his remarks on sentence said: "There is evidence before me from family as to his change of attitude since his arrest for this offence. This evidence also suggests that there may be a good chance of rehabilitation through the family influence. There is also laboratory reports of urine testing over the past few months showing free of prohibited substances. However such are not themselves special circumstances. They are more just normal circumstances that one should expect. The courts have emphasised that it is necessary that the circumstances be sufficiently special to justify variation. There is nothing sufficiently special here in the subjective circumstances of the offender to find that there are special circumstances to support consideration of a variation in the statutory ratio for parole and non parole." 19 The applicant submitted his Honour did not refer to the evidence that: (a) this was to be the applicant's first custodial sentence, at the age of 29; (b) the applicant had left Lightning Ridge and returned to Sydney where he was in regular contact with his parents, had obtained employment and had organised separate accommodation for himself, his partner and his young children; and (c) the applicant had commenced psychological counselling, with identified area of need. 20 It was submitted for the applicant that the whole of this evidence manifestly justified a finding of special circumstances, the applicant's prospects of rehabilitation were very good and there was a need to ensure that he continued on his path to rehabilitation. 21 The decision to find special circumstances is first one of fact – to identify the circumstances – and, secondly, one of judgment – to determine that those circumstances are special, ie justify a lower proportionate relationship between the non parole period and the head sentence. There are well known restraints on an appellate court from interfering with decisions of this character. As a practical matter, there are unlikely to be many cases in which this court will interfere unless the non parole period is found to be manifestly inadequate or manifestly excessive – R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704 at [73]. 22 His Honour identified certain facts which were relevant to a consideration of special circumstances but determined they did not constitute special circumstances. 23 The matters relied upon by the applicant were not expressly referred to by his Honour in his remarks on sentence but were part of the subjective circumstances of the case. I infer they were included in his Honour's comment "There is nothing sufficiently special here in the subjective circumstances of the offender." It is doubtful that, taken alone, the fact that this was the applicant's first custodial sentence would justify a finding of special circumstances – Clarke v R [2009] NSWCCA 49 at [12]. 24 In my opinion, the non parole period is not manifestly inadequate or manifestly excessive. His Honour's decision not to find special circumstances was within his sentencing discretion. This ground fails. Ground 3 His Honour erroneously fettered his discretion to impose a sentence other than one of full time custody 25 This ground was added, by leave, at the hearing. 26 His Honour in his remarks on sentence said: "The courts have emphasised many times since Clark's case in 1990 that in offences involving the supply of such drugs a custodial sentence must be applied… Of course, I should also consider the Crimes (Sentencing Procedure) Act , s 5 that 'a court must not sentence an offender to imprisonment unless it is satisfied that no penalty other than imprisonment is appropriate.' However, I have already noted the courts have reiterated that anyone involved in the supply of drugs must expect a custodial sentence… The law states 15 years. However, this case, because of the amount involved of what is sometimes referred to as a middle range drug and also the level of purity, it cannot be seen at the top end of seriousness rather at a lower end of seriousness but it still requires a custodial term as a deterrent both to the prisoner and as a general deterrent to others in the community who may feel inclined to so engage in the possession and propagation of such pernicious substances." 27 In the case of offences of supplying prohibited drugs the need for general deterrence is high. In R v Gu [2006] NSWCCA 104 Howie J (Grove and Simpson JJ agreeing) summarised the position as follows: "[27] … There has been a consistent line of authority in this Court that has made it quite clear that, unless there are truly exceptional circumstances present, a full-time custodial sentence ought to be imposed wherever the offender has been substantially involved in the supply of prohibited drugs…It applies whether or not the offender has made a profit from the supply of drugs and a profit is an aggravating circumstance…" 28 In R v Gip [2006] NSWCCA 115, (2006) 161 A Crim R 173 Rothman J said in respect of whether an offender has been substantially involved in the supply of prohibited drugs: "[43] … The question for the sentencing judge is whether there are facts, proven beyond a reasonable doubt, which facts give rise to an exercise of discretion consistent with the approach in Clark . Those facts may be an agreement to supply on another occasion, an attempt to supply on another occasion, participation in a process which envisages supply on more than one occasion, participation in a syndicate, or a number of other circumstances." 29 The respondent submitted that his Honour was correct in determining that a full time custodial sentence must be applied in the absence of the applicant demonstrating exceptional circumstances - R v Pilley (1991) 56 A Crim R 202 at 208, ie circumstances different from the general run of case that come before the courts – R v Cacciola (1998) 104 A Crim R 178 at 182, 184. His Honour in reviewing special circumstances had stated that the circumstances in this case were not exceptional. 30 The applicant submitted that his Honour sought to invoke the legal principle that exceptional circumstances are required before anything other than a full time custodial sentence can be imposed without having made the finding that the applicant was involved to a substantial degree in the supply of prohibited drugs. This was an error of principle and, in consequence, the court was entitled to look at whether a lesser sentence was warranted in law and should have been passed. 31 His Honour did not expressly consider whether the applicant was substantially involved in the supply of prohibited drugs. In my opinion, it could not be said that the evidence admitted of no conclusion other than that the applicant was substantially involved in the supply of prohibited drugs. Accordingly, error has been established and it is appropriate that the Court consider whether a lesser sentence is warranted in law and should have been passed. I do not find special circumstances. 32 In considering any resentence regard is to be had to the affidavit of the applicant affirmed on 13 April 2010 which evidences his further efforts at rehabilitation over the period during which he has been in custody. 33 In my opinion, a lesser sentence was warranted in law and should have been passed. The appropriate sentence, in my opinion, having regard to all of the circumstances, is imprisonment for a non parole period of 15 months with a balance of term of five months. 34 I propose the following orders: 1. Grant leave to appeal; 2. Quash the sentence on the indictment; 3. In lieu thereof sentence the applicant to imprisonment for a non parole period of one year three months commencing on 4 May 2009 and expiring on 3 August 2010 with a balance of term of five months expiring on 3 January 2011; 4. Direct the release of the applicant on parole at the end of the non parole period, being 3 August 2010. ********** 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.