Chippindall v R [2009] NSWCCA 127

New South Wales Court of Criminal Appeal

CITATION: Chippindall v R [2009] NSWCCA 127

HEARING DATE(S): 23 April 2009 JUDGMENT OF: Grove J at 1; Howie J at 37; RA Hulme J at 38

EX TEMPORE JUDGMENT DATE: 23 April 2009

DECISION: Appeal against sentence allowed. Appellant resentenced.

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - Sentence - User/supplier of prohibited drug (ecstasy) - Low place in drug hierarchy - Young offender - Admission of offending on arrest - Early plea of guilty - Valuable assistance to authorities - Whether starting point too high - Apparent sentencing pattern in which sentence near upper limit - No justifiable grievance regarding treatment of co-offenders - Whether sentence excessive in particular circumstances

CATEGORY: Principal judgment

PARTIES: Daniel Stephen CHIPPINDALL - Applicant REGINA - Respondent/Crown

FILE NUMBER(S): CCA 2007/5554

COUNSEL: W Hunt - Applicant P Leask - Respondent/Crown

SOLICITORS: Legal Aid Commission - Applicant Solicitor for Public Prosecutions - Respondent/Crown

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/21/0207

LOWER COURT JUDICIAL OFFICER: Marien DCJ

LOWER COURT DATE OF DECISION: 18 October 2007

IN THE COURT OF CRIMINAL APPEAL CCA 2007/5554

GROVE J HOWIE J RA HULME J 23 April 2009

Daniel Stephen CHIPPINDALL v R Judgment 1 GROVE J: The applicant seeks leave to appeal against severity of sentence imposed by Marien DCJ at Parramatta District Court on 18 October 2007. Pleas of guilty were entered to two charges of supplying a prohibited drug (counts 1 and 2) and one charge of an ongoing supply of prohibited drug (count 3). His Honour was asked to take into account on a Form 1 a further charge of supplying a prohibited drug. In each instance the drug was that commonly referred to as ecstasy. 2 On counts 1 and 2 the applicant was sentenced to fixed terms of imprisonment to be served concurrently with each other of 18 months imprisonment commencing on 15 February 2007 and expiring on 14 August 2008. Those sentences have been served and are now expired. On count 3, taking into account the Form 1 offence, the applicant was sentenced to imprisonment consisting of a non-parole period of 2 years commencing on 15 August 2007 and expiring on 14 August 2009 with a balance term of 2 years. 3 The effective sentence thus consisted of minimum custody of 2 years 6 months with a parole period of 2 years. 4 The offences were committed between 1 September 2006 and 8 February 2007 at which time the applicant was aged eighteen years. His Honour observed that, apart from traffic offences, the applicant had no prior convictions and he stated that he would approach sentence on the basis that the applicant was of prior good character. The considerable delay in bringing the application on for hearing was suggested to be attributable to difficulty in obtaining transcript of Remarks on Sentence relating to other offenders. The applicant has been in custody for over two years and, as above appears, he is eligible for consideration for release on parole on 14 August next, that is in less than four months time. 5 No challenge has been made to the facts as found by the learned sentencing judge. For present purposes a brief summary extracted from his remarks will suffice. 6 On 16 September 2006, in a tavern, an undercover police officer (UCO) approached the applicant and another named Gaddie and asked for pills. The applicant said, "You are in luck, my man, he and I look after the Castle Hill Tavern." He spoke of having a busy night and mentioned that, "Everyone comes to us for pills". He said they only had three left and Gaddie handed them to the UCO in return for $90. Both the applicant and Gaddie gave their mobile telephone numbers to UCOs. This offence is that acknowledged by the applicant on the Form 1. 7 Following several contacts, on 21 September 2006 two UCOs attended the Castle Hill Tavern to purchase fifty ecstasy tablets. The applicant telephoned a co-offender, Ellabban and ultimately the applicant directed the UCOs to a car park where Ellabban supplied that amount of drug for $810. The applicant's participation in this conduct was charged in count 1. 8 On 23 November 2006 an UCO met the applicant at the Red Rooster Restaurant in Mt Druitt seeking a further fifty tablets of ecstasy. Another co-offender, Muschulu, arrived by car. The applicant introduced him to the UCO and a supply for $1,100 was discussed. The applicant and Muschulu left the car park at the restaurant and later returned, after which the applicant supplied the UCO with the requested tablets of ecstasy. This action constituted count 2. 9 On 11 January 2007 the applicant met an UCO near the Castle Hill Tavern. While waiting he said that he received $100 for "organizing every transaction." Co-offenders Chadwick and Durrington arrived by vehicle and the applicant obtained fifty ecstasy tablets from them which he passed to the UCO for $1,100. 10 A similar arrangement was made on 25 January 2007 when Gaddie was again also present. Chadwick arrived and the applicant conducted an exchange with him after which he supplied the UCO with fifty tablets of ecstasy for $1,100. 11 On 1 February 2007, in the absence of Gaddie, an identical transaction again took place by the applicant supplying fifty tablets of ecstasy obtained from Chadwick to a UCO. 12 On 8 February 2007 an UCO contacted a co-offender named Fox by telephone. Fox handed the phone to the applicant who arranged to meet the UCO near the Castle Hill Tavern. The applicant and Gaddie met him there as arranged. Later Chadwick arrived and the applicant obtained fifty one tablets of ecstasy from him which he supplied to the UCO for $1,100. 13 The applicant's participation in those supplies between 11 January 2007 and 8 February 2007 constituted the ongoing supply charged in count 3. 14 On the last occasion Chadwick left in his vehicle alone but was stopped by police. He was found to be in possession of forty three blue tablets known as "rolling stones", about 1.6 grammes of cocaine, some powder and other tablets together with $900 which was identifiable as part of the $1,100 which had been paid by the UCO to the applicant for the fifty one tablets of ecstasy. 15 On 15 February 2007 the applicant was arrested. He has been in continuous custody since then. He was interviewed by police upon arrest and made full admissions regarding the offences. He told police, and gave evidence to his Honour to the same effect, that his reward for arranging the supply was $200 which he obtained by making deductions, as it were, at each end from the UCO and from the source. He obtained some tablets for himself as well. His Honour characterised him as a "user/dealer at the lower end of the drug hierarchy." 16 Of particular significance was the giving of an undertaking to assist authority including the giving of evidence against co-offenders if required. A senior police officer confirmed the applicant's assistance which was rated as valuable. He had pleaded guilty at the earliest opportunity and his Honour determined that to reflect that, and assistance, he would reduce sentence "by a figure in the order of 40 percent." Counsel have agreed that, given the impositions, his Honour must have commenced with a notional starting point of 7 years 6 months imprisonment. 17 His Honour made a number of findings relating to the applicant's subjective case, all of which were favourable to him. 18 The applicant relies upon two grounds of appeal: