New South Wales Court of Criminal Appeal CITATION: Tapai v Regina [2009] NSWCCA 246 HEARING DATE(S): 16 September 2009 JUDGMENT DATE: 16 September 2009 JUDGMENT OF: Spigelman CJ at 1; McClellan CJatCL at 39; Grove J at 40 1 Extend time for filing notice of an application for leave to appeal up to and including 28 May 2009. DECISION: 2 Grant leave to appeal. 3 Appeal dismissed. CATCHWORDS: CRIMINAL LAW - sentence - relevant factors - parity between co-offenders - may consider sentencing reasons for co-offender but not whether that sentence manifestly excessive or inadequate. - CRIMINAL LAW - sentence - sentencing procedure - factual basis for sentence - role of guilty plea or depositions - discount for utilitarian value - remorse and contrition encompassed by plea discount - s 21A Crimes (Sentencing Procedure) Act 1999. - CRIMINAL LAW - sentence - non-parole period or minimum term - New South Wales - aggravating or mitigating factors - fact that aggravating factors which might be present in other cases were not present does not detract from significance of other elements of aggravation. - CRIMINAL LAW - sentence - sentencing procedure - sentencing statistics, schedules, tariffs, comparisons, etc - statistics of limited use when based on limited data. LEGISLATION CITED: Drug Misuse and Trafficking Act 1985 Crimes (Sentencing Procedure) Act 1999 Hutton v Queen [2008] NSWCCA 99 CASES CITED : Kite v R [2009] NSWCCA 12 R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 R v Yildiz [2006] NSWCCA 97; (2006) 160 A Crim R 218 PARTIES: Gorica Tapai (Appellant) Regina (Respondent) FILE NUMBER(S): CCA 2007/15232 COUNSEL: M Ramage QC (Appellant) F Veltro (Respondent) SOLICITORS: Slattery Thompson (Appellant) Solicitor for Public Prosecutions (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2711171 LOWER COURT JUDICIAL OFFICER: Toner DCJ LOWER COURT DATE OF DECISION: 4 July 2008 - 3 - IN THE COURT OF CRIMINAL APPEAL CCA 2007/15232003 SPIGELMAN CJ McCLELLAN CJ at CL GROVE J Wednesday 16 September 2009 Gorica Tapai v Regina Judgment 1 SPIGELMAN CJ: The applicant pleaded guilty on the first day of the trial to one count of supplying a commercial quantity of a prohibited drug, namely cocaine, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. The applicant was sentenced on Friday 4 July 2008. 2 The notice of application for leave to appeal was received in this Court on 28 May 2009. The applicant applies for an extension of time on the basis that the transcript of the sentencing hearing was only received by the applicant's solicitor in late May 2009. This is not contested. The Crown does not oppose an order for an extension of time. The Court should order that time for filing notice of an application for leave to appeal should be extended up to and including 28 May 2009. 3 The facts were not in issue before the sentencing judge. His Honour summed-up the facts as follows: "In December 2006 the State Crime Command Drug Squad commenced an investigation into the supply of prohibited drugs by the offender Gorica Tapai and her partner Fuga Smith, the co-offender, both of [address 1]. I should note that Mr Smith's other name and the name under which he was sentenced is Vasich. Between 22 January and 25 January 2007 police obtained the following evidence from physical surveillance and by monitoring lawfully intercepted telephone calls. On 23 January 2007 the offender met a person, who was to act as a go-between, at her Arncliffe home. On 25 January 2007 the same person attended the offender's home at 2pm, and again at 3pm. Between 3.30pm and 5.30pm the offender arranged for an acquaintance to sample the prohibited drug at a nearby house at [address 2]. At 5.55pm an unknown male carrying a blue plastic bag arrived at [address 1] by car and entered the house. At 6pm Tapai walked from her house to [address 2]. She returned at 6.10pm and confirmed that the 'sampler' had tested the product and said that she should proceed with the purchase. Between 6.20pm and 7.30pm Tapai and the co-offender negotiated via the telephone with various people the on-supply of the purchased prohibited drug, approximately 24 ounces of cocaine. At 8.55pm Tapai and the co-offender left the premises at [address 1] in vehicle AN-[XXX]-C. They stopped at a service station on Forest Road at Rockdale. Smith, the name of Vasich, the driver, alighted, presumably they mean got out, and started to put petrol in the tank. Police approached him and arrested him. Tapai was arrested in the front passenger seat of the car. On her lap there was a black handbag and a small blue nylon toiletry bag. She moved the blue bag from her lap towards the centre console. When police searched the toiletry bag they found four purple coloured balloons. When later analysed they were found to contain 657.3 grams net of cocaine with a purity of 60.5 per cent." 4 Pursuant to s 54B and Table Item 18 of the Crimes (Sentencing Procedure) Act 1999 the standard non-parole period for this offence is ten years. Toner DCJ applied the decision of this Court in R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168. His Honour determined that this offence was in the middle of the range for offences of this character. 5 His Honour also said: "The aggravating features of the offence as described by s 21A(2) of the Crimes (Sentencing Procedure) Act seem to me that the offence represents a danger to the public in that all drug supply offences are but, save for what I am about to say, each of the aggravating characteristics seem to be elements of the offence itself. I should note that the facts themselves reveal a degree of planning, but it seems to me not one which was overly elaborate or unusual in the circumstances of such offences but, nonetheless, it could be considered to aggravate it. The mitigating features which are attracted to this case include the age of the offender; namely, that she is now fifty-six. She is in poor health. I have evidence from her daughter … who said that her mother has significant difficulties with her back and ongoing problems with her bladder and kidneys. She had an operation for this in 2006 which apparently has not been entirely successful. The offender's history is unusual. As noted, she is now fifty-six. Her criminal history contains only one other entry; namely, a conviction for the supply of a prohibited drug in 1995. She was sentenced then to a minimum term of fifteen months with an additional term of fifteen months. Save for that, there is nothing on her criminal record." 6 His Honour went on to set out a number of other subjective features of the applicant's personal background together with reference to her medical history, specifically, her history of depression. 7 The applicant was arrested together with a co-offender, Makjal Vasich (aka Fuga Smith). His Honour had before him the remarks on sentence of Sweeney DCJ, concerning Vasich. Her Honour concluded that Vasich played a subordinate role to the applicant. Furthermore, the sentence imposed upon Vasich of seven years with a non-parole period of four years and 9 months reflected a discount of 45 percent allowed in respect both to an early plea of guilty and assistance to the authorities. 8 In these circumstances Toner DCJ was concerned with the issue of parity between the sentence he was about to impose on the applicant and that already imposed on Vasich. His Honour noted in this respect: " … The facts as found by her Honour included the proposition that Mr Vasich was the lesser participant of the two in this criminal enterprise on the facts found by her. I should note that on the facts as disclosed in this sentencing exercise and as found by me, I cannot make that determination and, in fact, I find that each of them were essentially equal participants in the enterprise. Of course, the facts as found by her Honour have no bearing on my sentencing this offender, save for the fact that they lend an understanding to the sentence that she imposed upon Mr Vasich." 9 His Honour also made reference to the evidence of the applicant's daughter to the effect that the applicant was "dependent on and emotionally subservient to" Vasich and that this was "consistent with what is reported in the pre-sentence report" with respect to the applicant. 10 His Honour calculated that the sentence imposed upon Vasich, but for the substantial discount, would have been about 13 years with a nine year non-parole period. His Honour went on to say: "I have found that the offender's culpability for this crime is about the same as that of Mr Vasich. Of course, the offender does not get the advantage of any discount for assistance to authorities, as he did. She was about the same age as Mr Vasich. Mr Vasich had no prior criminal history, and he gave evidence before Judge Sweeney expressing his remorse and contrition and acceptance of his responsibility for this offence, unlike this offender, although I an prepared to accept the evidence from her daughter of her expressions to her of her shame and contrition for her role in this crime. Mr Vasich was diagnosed as suffering from high blood pressure, some back and neck problems for which he had had surgery, and it was noted that he suffered from a heart attack in 1998. He was on anti-depression medication at the time he was sentenced. He had pleaded guilty at the earliest opportunity, unlike the offender in this case." 11 His Honour noted that the applicant entered a plea on 21 April 2008. However, her trial was originally listed for 26 November 2007 and that date was vacated to enable Vasich to be sentenced, prior to fulfilling his undertaking to give evidence against the applicant. Accordingly, as his Honour put it, the significance of the utilitarian value of the plea was lessened by this delay. His Honour went on to note that there was still some utilitarian value and was prepared to allow a 15 percent discount. 12 His Honour made reference to the applicant's prior conviction for the supply of heroin which had occurred in 1995. His Honour stated that that had "limited significance" because it was "a somewhat isolated matter and was about 13 years ago". 13 After his Honour had set out a number of considerations his Honour said: "It is difficult, if not possible, [sic, presumably impossible] to determine, as I have said, that this case stands below the middle of the range for offences of this type and thus attracts the standard non-parole period as a guidepost to the sentencing process." 14 His Honour went on to refer to the fact that he accepted the applicant's expressions of contrition and remorse as genuine. He also found special circumstances on the basis of "a deteriorating state of health and her various medical conditions" which he said "can best be attended to in the community". He also found that the applicant's prospects of rehabilitation were good and that, by reason of her age and the support of her family, he found that it was unlikely that she would re-offend. Accordingly, he held that an extended period on parole would be beneficial. 15 Mr M Ramage QC, who appeared for the applicant, made a number of submissions in support of the challenge to the sentence imposed by Toner DCJ. I will deal with the assertions of specific error first and then return to the applicant's general submission that the sentence was too severe in all the circumstances. 16 Mr Ramage submitted that the sentencing judge erred in finding that the offence was in the middle of the range for offences of this type. He submitted that his Honour gave no reasons for this finding. Although it is preferable for a sentencing judge to expressly address this issue by way of identifying the most pertinent considerations, in my view his Honour did give such reasons. He expressed this conclusion both at the commencement and at the conclusion of a detailed recitation of relevant facts. His Honour's reasons were contained in his outline of the relevant facts and various evaluative statements he made in the course of assessing those facts. 17 Mr Ramage also submitted that the objective facts did not support the finding that this was a mid range offence. He said inter alia, that that there was only one count being a discrete act of supply; unlike many other offences of this nature the Court was not requested to take into account other offences on a Form 1; the period of time involved was comparatively short; there was no evidence of what Mr Ramage described as a 'sophisticated ongoing operation', there being no drug paraphernalia or evidence of possession of unexplained funds. 18 In oral submissions Mr Ramage relied on the absence of indicators of a significant business of supply usually revealed by multiple relevant telephone intercepts and, perhaps, use of techniques to avoid surveillance such as 'cut out cars' and multiple sim cards, etc. The fact that some other cases may have particular aggravating features of the character described in these submissions does not detract from the correctness of his Honour's decision. In my opinion, it was open to his Honour to hold that this was a middle level offence. 19 His Honour took into account the quantity of the drug involved, which was more than double the commercial quantity, and the degree of planning on the part of the applicant, which his Honour indicated was not substantial, through the applicant had been the subject of surveillance for a period of some four days prior to arrest. During this period, the applicant appeared to be involved in liaising with other persons, arranging for someone to sample the drug, confirming with a supplier that the product be tested and that she could proceed with the transaction, and also negotiating with various people for the on supply of the drug. This suggests a degree of planning albeit there is no evidence of an ongoing operation. Circumstances which may arise in other cases, on the absence of which Mr Ramage relied, are such as may take an offence above the mid range. However, in view of the circumstances identified by his Honour in this case in my opinion it was within the scope of his Honour's discretion to form a judgment that the offence was in the mid range. 20 Complaint was also made of his Honour's failure to refer to sentencing statistics. I will discuss this matter further below with respect to the manifest severity ground. It was in this context that the applicant made the submission that the sentencing judge did not make a finding as to where within the range of the sentencing statistics, the objective criminality of the applicant lay. This is a discrete proposition which should be rejected. 21 The Judicial Commission sentencing statistics, particularly where the total number of cases is not large, do not provide a range which is relevant to the exercise of the sentencing discretion with respect to the facts of a particular case. There was nothing in the statistics to which his Honour, or this Court, could refer which suggest that there was anything in the nature of a tariff for this kind of offence. 22 Mr Ramage submitted that the Vasich sentence was excessive and was not an appropriate starting point even for parity purposes. His Honour did refer to the circumstances of the co-offender and the sentence imposed on him. This was perfectly proper, indeed necessary, in order to ensure his Honour took into account issues of parity. It is not appropriate to consider whether the sentence imposed on Vasich was manifestly excessive. I will consider further the applicant's submissions to the effect that the sentence imposed on her was manifestly excessive. 23 Mr Ramage also submitted that his Honour, in effect, simply "followed the sentence imposed by a fellow sentencing judge on Vasich and mathematically adjusted it". I have set out above references to his Honour's consideration of the sentence of Vasich in the parity context. I have not quoted it in full. However, I can detect nothing that indicates that that was some sort of starting point which his Honour "mathematically adjusted". No particular passage in his Honour's remarks on sentence were relied upon for this proposition and I find it not to be substantiated. I note in this context that his Honour specifically rejected the finding of fact made by Sweeney DCJ, when sentencing Vasich, that the applicant had a higher degree of involvement in the criminal enterprise than her co-offender. 24 The applicant contended that Toner DCJ erred in finding that the offence was aggravated. This is based on the two paragraphs set out above at [5] from the remarks on sentencing commencing with the words "The aggravating features …" and "The mitigating features …". 25 Mr Ramage submitted that on the agreed facts there was in reality minimal planning involved; certainly less than would be involved in other drug supply offences. There is an element of emphasis involved in this. His Honour himself said, as quoted above, that the planning was not "overly elaborate or unusual in the circumstances of such offences". It does not appear, on this basis, that this was a consideration to which his Honour gave significant weight. There was a degree of planning in terms of testing and other steps, to which I have referred, based on the surveillance of the two offenders over a period of four days. This is sufficient to justify his Honour's finding that there was a aggravating factor, even though it was not high on the relevant scale. 26 The Crown is correct to say that his Honour's language makes it clear that this had only a minimal effect on the sentencing. (See R v Yildiz [2006] NSWCCA 97; (2006) 160 A Crim R 218 at [39].) 27 The applicant also submitted that his Honour failed to take into account the applicant's subjective factors, particularly her age and poor health. These were considerations, Mr Ramage submitted, that point to hardship in serving the sentence, because the older a prisoner the greater the significance of a lengthy sentence, so that serving a gaol sentence is more onerous. Additionally, he submitted that general deterrence is of a lesser importance with respect to older persons. Mr Ramage also referred to the evidence of dependence and emotional subservience to the co-offender, which his Honour appeared to accept. He submitted that this did not appear to have been taken into account in assessing criminality. With respect to age and health, the applicant submitted that his Honour took these matters only into account on the issue of special circumstances. 28 Each of the matters referred to are expressly mentioned by his Honour. It is the case that he returned to the issue of health and age with respect to the question of special circumstances and dealt with it expressly in that context. Nevertheless, all of the matters, repeated in that context, had already been mentioned in his Honour's earlier remarks on sentence. Clearly his Honour, in my opinion, did take these considerations into account. 29 I refer again to the considerations set out in the second paragraph of the passage at [5] above, which commences with the words "The mitigating features", where there are references to age and health. These comments were made in the context of his Honour deciding whether or not the standard non-parole period should be imposed. As the Crown submitted there may have been an element of double counting in this regard, but that would have been favourable to the applicant. 30 The applicant also submitted that his Honour failed to give sufficient weight to the plea. He allowed a discount of 15 percent. The utilitarian value of the plea was significantly attenuated by the fact that it was only proffered on the first day of the trial. Indeed, in this case, being the second occasion on which the trial had been set down for hearing, the discount of 15 percent was, if anything, at the high range of what was appropriate. 31 Mr Ramage QC suggested that this percentage did not include the remorse element. However, particularly since the introduction of s 21A into the Crimes (Sentencing Procedure) Act 1999 it has not been the practice to quantify other than the utilitarian value. (See Kite v R [2009] NSWCCA 12 at [12].) His Honour expressly indicated that he would give weight to the applicant's remorse and contrition when, immediately after identifying what he would impose as a non-parole period, his Honour said: "This incorporates the discount for the utilitarian value of the plea and a consideration of her expressions to her daughter of contrition and remorse that I accept as genuine". 32 Finally, the applicant submits that the sentence was manifestly excessive. In this respect the applicant invoked a range of matters upon which his Honour made findings, including her subjective circumstances and the acceptance as genuine of her remorse and contrition, together with the finding of her good prospects of rehabilitation. 33 The applicant submitted that on the basis of a 15 percent reduction of sentence for the plea, the starting point must have been in excess of 10 and a half years and that the objective criminality of the applicant did not warrant such a sentence. 34 In this respect the applicant relied on the sentencing statistics for this offence in the period after the standard non-parole period came into effect. There were in fact only eight such cases and the head sentences varied from five to 10 years and the non-parole periods ranged from seven months to seven years. Reliance was also placed on the statistics where there was a plea of guilty and no matters to be taken into account on a Form 1. There were only four such cases, with one sentence each of five, six, seven and 10 years. 35 The paucity of the number of examples is such that these statistics are of very little assistance in an individual case. (See eg Hutton v The Queen [2008] NSWCCA 99 at [31].) 36 His Honour identified the range of mitigating factors which induced him not to impose the standard non-parole period. In the event, the non-parole period he did impose was five years and six months, almost half the period suggested by his Honour's finding that this case involved a mid range offence. As I have indicated above, that judgment should not be disturbed in this Court. 37 On that basis, in my opinion, it cannot be said that, in view of the statutory guidance given by the standard non-parole period, this sentence is manifestly excessive. The sentence was, in my opinion, within the permissible range for the exercise of the sentencing discretion. 38 The orders I propose are: 1 Extend time for filing notice of an application for leave to appeal up to and including 28 May 2009. 2 Grant leave to appeal. 3 Appeal dismissed. 39 McCLELLAN CJ at CL: I agree with the Chief Justice. 40 GROVE J: I also agree. ********** 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.