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: (1) The applicant has a justifiable sense of grievance by virtue of the disparity between the sentences imposed upon him and his co-accused. (2) The sentence is manifestly excessive. 19 It is convenient to deal first with ground 2. 20 As above noted, his Honour assessed the objective level of criminality of the applicant's offences as at the lower end of the "drug hierarchy." Balanced against that relatively low level were cumulating subjective factors, including the applicant's age (he was only a few months older than would have seen him dealt with as a juvenile); prior good character, genuine remorse and favourable prospects of rehabilitation. All of these things were found and it is difficult to perceive that they have received the reflection which they ought to have contributed when it can be calculated that a starting point of 7 years 6 months has been assessed. 21 Whilst, as counsel for the applicant candidly acknowledged, statistics are a blunt tool, a survey revealed that of fifty nine cases of offenders sentencing for ongoing supply of prohibited drugs between 2001 and 2007, only three attracted a greater imposition than that received by the applicant and only one other received the same imposition. The maximum penalty prescribed by Parliament of twenty years is of course significant but the pattern of sentencing revealed in the survey strongly suggests that it would be inconceivable that this applicant, just beyond juvenile years, remorseful, rehabilitative and without prior offence should be sentenced in the upper range of that pattern. 22 I would uphold ground 2. 23 The principles upon the application of which this Court should proceed when a complaint about disparity with treatment of co-offenders is made are well established and do not require re-statement. 24 As the facts above summarized show, there were a number of persons involved in the drug supply activity particularly in and about the Castle Hill Tavern and surrounds. It is the Crown submission that, with the exception of Muschulu, co-offenders stood for sentence for single offences, or offences different from those charged against the applicant, or offences involving fewer tablets or lesser weight of drug. Reference can be made to this variety and where appropriate I will indicate parenthetically where an offence is coordinate with a count charged against the applicant. 25 It can be noted that Ellabban (count 1) has been found unfit to plead by reason of mental condition. 26 Muschulu (count 2) was sentenced to imprisonment consisting of a non-parole period of 2 years and a balance term of 1 year, however, he was also sentenced for supplies which he had made on 14 and 19 December 2006 which did not involve the applicant but in which he supplied quantities of 1,000 and 2,000 ecstasy tablets. Ultimately he received an effective sentence of imprisonment consisting of a non-parole period of 3 years and a balance term of 4 years. 27 Chadwick (count 3) was dealt with for ongoing supply and supply of prohibited drug. Allowing for orders for concurrency, he received an effective sentence of imprisonment consisting of a non-parole period of 15 months and a balance term of 21 months, the custodial element of which was ordered to be served in a juvenile detention centre. 28 Corby (count 3) drove Chadwick to a "sale point" as did Fox (count 3) on another occasion, each of them receiving good behaviour bonds for knowingly taking part in the supply of a prohibited drug and concealing a serious indictable offence respectively. 29 On 7 December 2006 Gaddie supplied prohibited drugs on three separate occasions to an UCO. Each supply consisted of two tablets of ecstasy, a total of six tablets. The offence in which he was involved with the applicant (supplying three tablets of ecstasy on 16 September 2006) was, similarly to him, taken into account on a Form 1. After remand on a bond, he received a nine months suspended sentence. 30 Durrington (count 3) was given a bond to be of good behaviour for 3 years for knowingly taking part in the supply of a prohibited drug. 31 Count 3 was of course a charge of ongoing supply by the applicant and the co-offenders were engaged in the constituent activity to the extent mentioned in the summary of facts which I have related above. 32 The foregoing record of dealing with co-offenders amply demonstrates why they were dealt with differently from the applicant. The discrimination contended by the Crown is evident and the applicant has not shown that he can harbour a justifiable sense of grievance by comparing how he was treated with the treatment of the co-offenders. 33 I would reject ground 1. 34 However, having regard to my conclusion that ground 2 should be sustained I turn to the issue of resentence. An affidavit by the applicant's solicitor shows from that which is exhibited thereto that the applicant has made good use of his time in custody. 35 I would adopt without repetition the favourable subjective findings made by Marien DCJ and his findings of special circumstances. The imminence of the eligibility date for consideration for release of the applicant to parole in accordance with the current imposition injects some practical implications into the issue of resentence. As earlier stated, the sentences on counts 1 and 2 have expired and there is no reason now for intervention in respect of them but the partial cumulation of the sentence on count 3 to those sentences should not be overlooked. 36 In those circumstances I propose the following orders: (1) Application for leave to appeal against sentence granted. (2) Appeal allowed in part. (3) Sentence imposed on count 3 quashed. (4) In lieu thereof, taking into account the offence on Form 1, the applicant sentenced on count 3 to imprisonment consisting of a non-parole period of 1 year 9 months commencing on 15 August 2007 and expiring on 14 May 2009 with a balance term of 1 year 3 months. (5) Order his release to parole on 14 May 2009. 37 HOWIE J: I agree. 38 HULME J: I agree. 39 GROVE J: The orders of the Court will be as I have proposed. ********** 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.