New South Wales Court of Criminal Appeal CITATION: R v Sellars [2010] NSWCCA 133 HEARING DATE(S): 2 June 2010 JUDGMENT DATE: 25 June 2010 JUDGMENT OF: McClellan CJatCL at 1; Grove J at 27; Johnson J at 28 DECISION: 1. Appeal upheld and the sentence imposed in the District Court quashed. 2. Having regard to the matters on the Form 1 the respondent is sentenced to a non-parole period of 5 years commencing on 27 November 2008 with an additional term of 3 years. The respondent will be eligible for release to parole on 26 November 2013. CATCHWORDS: CRIMINAL LAW - Crown appeal - whether sentencing judge erred in failing to make a sufficient record of reasons for finding special circumstances justifying the balance of the term of sentence exceeding one third of the non-parole period - whether sentencing judge failed to adequately determine where the offence lay in the range of objective seriousness - whether sentencing judge had adequate regard to the standard non-parole period when sentencing Drug Misuse and Trafficking Act 1985 LEGISLATION CITED: Criminal Appeal Act 1912 Crimes (Administration of Sentences) Regulation 2008 Crimes (Sentencing Procedure) Act 1999 CATEGORY: Principal judgment Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [2002] 56 NSWLR 146 Le Cerf [1976] 8 ALR 349 Porter v R [2008] NSWCCA 145 R v Cheh [2009] NSWCCA 134 CASES CITED : R v Knight; Biuvanua [2007] NSWCCA 283; [2007] 176 A Crim R 338 R v McEvoy [2010] NSWCCA 110 R v Richards [1981] NSWLR 464 R v Snyder [2004] NSWCCA 134 R v Stanbouli [2003] NSWCCA 355; (2003) 141 A Crim R 531 R v Tadrosse [2005] NSWCCA 145 at [29]; 65 NSWLR 740 PARTIES: The Crown (applicant) Carl Desmond Sellars (respondent) FILE NUMBER(S): CCA 2009/11111 COUNSEL: P M Miller (Crown/applicant) R Burgess (respondent) SOLICITORS: Director of Public Prosecutions (Crown) Legal Aid Commission of NSW (respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2009/11111 LOWER COURT JUDICIAL OFFICER: Sides DCJ LOWER COURT DATE OF DECISION: 15 December 2009 IN THE COURT OF CRIMINAL APPEAL 2009/11111 McCLELLAN CJ at CL GROVE J JOHNSON J FRIDAY, 25 JUNE 2010 R v SELLARS, Carl Desmond Judgment 1 McCLELLAN CJ at CL: The respondent was sentenced to imprisonment for 6 years with a non-parole period of 3 years with respect to an offence of supply not less than the commercial quantity of the prohibited drug, amphetamine, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. The maximum penalty for the offence is imprisonment for 20 years and there is a standard non-parole period of 10 years. 2 The Crown appeals the sentence imposed on the respondent pursuant to s 5D of the Criminal Appeal Act 1912. 3 When sentencing the respondent the sentencing judge had regard to four other offences on a Form 1. These were supplying cannabis leaf contrary to s 25(1) (two offences) and possession of cannabis leaf and amphetamine contrary to s 10(2) of the Act. There is a maximum penalty of 2 years imprisonment for each of these offences. 4 The respondent pleaded guilty in the Local Court and his Honour determined that he was entitled to a discount of 25% for his plea. The facts 5 The sentencing judge had regard to an agreed statement of facts and consistent with that document summarised his factual findings as follows: "Lawful intercepts of the Offender's telephones between 29 July 2008 and 21 November 2008 indicated that, over that period of about four months, he was operating a business selling amphetamines and other prohibited drugs. The evidence showed that he worked in this illicit business seven days a week, and for long hours. Using his phone he would negotiate the purchase of drugs that he sold to customers from his home or at pre-arranged meetings. Although he usually demanded payment from customers at the time of supplying the drug to them, at times these sales to customers were on credit, exhibit A indicating that at one stage customers owed him $7,500. Usually he sold customers an eight ball of amphetamine (an eighth of an ounce or 3.5 grams) for $400, or half that amount (1.75 grams) for $200. On two occasions he sold a quarter of an ounce (7 grams) of cannabis leaf, which gives rise to the two offences on the Form 1 schedule. Over the four month period police intercepted over 10,000 calls and text messages in connection with the Offender, of which at least 2,000 demonstrated his involvement in the offence. Following his arrest the Offender participated in an ERISP interview during which he made admissions that are summarised in point form in exhibit A. He also identified his voice on the intercepted phone calls that the police played during that interview. He told the police that he would purchase the amphetamine at $2,400 per ounce and cannabis leaf at $275 per ounce and sell the latter at $300 per ounce. He indicated that customers usually placed their orders over the phone. The Court notes that, during the four month period, he used two different phone numbers, both of which had false subscriber names. When police searched the Offender's home they found 7 grams of cannabis and one of amphetamine, giving rise to the other two matters on the Form 1 schedule." Subjective matters 6 The sentencing judge was provided with a pre-sentence report, the report of a forensic psychologist Mr Watson-Munro, a letter from the Sydney South West Area Health Service relating to the respondent's partner and a certificate from the chaplain at Parklea Correctional Centre. His Honour made the following findings in relation to that evidence: "Now aged 51, the Offender has the disadvantage of a dysfunctional upbringing. His parents separated when he was two. It seems thereafter that his father left him with a babysitter during the week and only spent weekends with the Offender. This continued until his father entered a relationship when the Offender was about seven. However, the Offender claims that he was abused at the hands of his stepmother, which caused him to run away on a number of occasions. He spent some time in boys' homes. The Offender has three children born to two earlier relationships. The eldest is 21. The others are aged 11 and 12. They now live with their maternal grandmother. Until early last year they lived with the offender and his current partner but, shortly after he spent a month in custody at the beginning of 2008, they were removed from his care. He continued to have access to them until his arrest. He is concerned that he may not be able to regain custody of these two sons. The Offender's current partner has significant mental health issues and was heavily reliant upon the Offender to provide daily care. Since his incarceration community support for her has been significantly increased because of her level of dependency on the Offender. They had been in a relationship for about four years and, sadly, a stillborn child arrived early last year. It seems that the Offender's formal education ended when he was about 16 years old. He spent about two years in the army until discharged upon entering custody at the age of approximately 19. Because of his criminal history he has had a very limited work history since then. The Offender has had significant contact with the criminal law dating from when he was a juvenile. He has a long history of offences of dishonesty. In 1980 he received a sentence of 14 years imprisonment for seven armed robberies with seven other offences on a Form 1 schedule. He was dealt with for another armed robbery in 1981. During 1992 he was sentenced to 18 months with 12 months non-parole for supplying drugs. Since then he has been dealt with in 2000, when he was placed on a 2 year bond for being unlicensed, and again in 2001, this time for take and drive a conveyance. At the same time he was fined for drive whilst disqualified. During 2006 he was placed on another 2 year bond for being an unlicensed driver. In October 2007 he received a sentence of 24 days imprisonment for supplying drugs and, a few days later on 24 October, was placed on a 12 month bond for assault occasioning actual bodily harm. That bond was current for most of the time over which the offence was committed. That is an aggravating feature. On 30 January 2008 he was sentenced to one month imprisonment for goods in custody. At the time of the offence before the Court he was on bail for another matter that is due to be dealt with in the Local Court either today, or perhaps it was done yesterday." Grounds of appeal 7 The Crown filed an amended notice of appeal which contained five grounds. However, ground 1 was abandoned. Grounds 2 to 5 are as follows: Ground 2: The learned sentencing judge erred in failing to make a record or any sufficient record of his reasons for finding special circumstances justifying the balance of the term exceeding one third of the non-parole period; Ground 3: His Honour erred in failing to determine, or adequately determine, where the offence lay in the range of seriousness for offences of that type; Ground 4: His Honour failed to have adequate regard to the standard non-parole period; Ground 5: The sentence was manifestly inadequate. 8 It is convenient to consider the grounds together. As I have indicated an offence contrary to s 25(2) of the Drug Misuse and Trafficking Act has a standard non-parole period of 10 years. Although the respondent pleaded guilty with the consequence that the standard non-parole period required consideration as a guide post it was necessary for his Honour to determine where the offence lay on the scale of objective seriousness: Vu v R [2006] NSWCCA 188. His Honour made a finding that the objective seriousness of the offence fell below the middle of the range. 9 His Honour's finding is found in a paragraph where he firstly rejects the Crown submission that the offence was above the middle of the range. His Honour said that because the respondent was not in the upper echelons of the drug trafficking hierarchy this submission was not accepted. The Crown did not contend in its submission to this Court that his Honour was wrong to reject that submission and I need not say anything further in relation to it except to observe that it is not essential for an offence contrary to s 25(2) of the Act to fall above the mid range that the offender is in the upper echelons of the drug trafficking hierarchy. The quantity of drug involved and the level of sophisticated organisation involved in the offence are of importance when determining the criminality involved. 10 Immediately following his finding rejecting the Crown submission his Honour said: "Having considered all the relevant circumstances of the matter in accordance with R v Way (2004) 60 NSWLR 168 the court concluded that the offence falls below the middle of the range of objective seriousness for offences under this particular provision. Because of that, his guilty plea and the finding of special circumstances, the court did not impose the standard non-parole period, but used it as a guide post." 11 It is apparent that although his Honour found that the offence fell below the middle of the range he did not explain the basis of his finding and accordingly there is an error. As Simpson J said in R v McEvoy [2010] NSWCCA 110 at [89] the error is an error of process. Furthermore, this Court has said on a number of occasions that when sentencing for offences for which the Parliament has provided a standard non-parole period it is necessary for judges to specify the extent or degree to which an offence departs from a notional offence in the mid range of objective seriousness: see McEvoy [87] and the discussion of R v Cheh [2009] NSWCCA 134; R v Knight; Biuvanua [2007] NSWCCA 283; [2007] 176 A Crim R 338. 12 In McEvoy Simpson J suggested that there may be a difference in approach to this issue between that taken by Howie J and myself in these decisions. If so it was not intended. When I said in Cheh that a sentencing judge must identify "with precision" where an offence falls in the scale of objective seriousness (see [22]) I was endeavouring to emphasise that if an offence falls outside the mid range a sentencing judge should identify where it falls rather than merely state that it falls above or below the range. 13 In the present case because the sentencing judge failed to identify the extent to which the offence fell below the mid range the obligation required of him was not discharged. It is then necessary to consider whether that failure has led to an error in the ultimate sentence. When a judge does not identify where an offence falls upon the range of objective seriousness the possibility that the sentencing discretion will miscarry increases. This will be so both when an offender is being sentenced after trial or has pleaded guilty and the standard non-parole period confined to being used as a "guide post". 14 The present offence attracts a standard non-parole period of 10 years. Although his Honour said that he used the standard non-parole period as a guidepost as I have explained his Honour does not express his reasoning and how he has been assisted by it. 15 His Honour identified that the respondent had entered a plea of guilty and also made a finding of special circumstances. His reasons for the latter finding were confined to a statement that "because of his age and the need for an extended period on parole, the court found special circumstances." 16 The respondent was aged 51 at the time of sentencing and it is difficult to understand how this could justify a finding of special circumstances. He was not young but was not of an age where his advancing years were of any particular significance. His Honour does not explain why he was of the opinion that there was a need for an extended period on parole. Furthermore, apart from a reference to Way his Honour does not otherwise explain how it was that he arrived at a non-parole period of 3 years. 17 The offence for which the respondent was to be sentenced was serious and plainly, as his Honour found, was premeditated, being committed in the course of an illicit business which was part of an organised criminal activity. The statement of agreed facts which his Honour had before him indicated that from the telephone intercept material it was apparent that the respondent was operating a large scale business supplying amphetamine and other prohibited drugs. In some of those calls he identified the fact that he was on bail and referred to the fact that he was required to report as part of his bail conditions. The phone numbers which he used were subscribed to false names to avoid detection. The agreed facts include a statement that the respondent was working in the business of supplying drugs for 7 days a week for long hours. In another conversation he identifies himself as a "drug dealer." He said "I'm trying not to look like one. I know it's hard but still I already got the pigs watching me. I'm not going out tonight." 18 The sentencing judge identified the fact that the respondent was to be sentenced for supplying a commercial quantity of amphetamine and for the matters on the Form 1. When it is recognised that this offence was committed as part of a significant commercial enterprise in drug dealing and notwithstanding the plea of guilty and the finding of special circumstances to my mind a non-parole period of 3 years is manifestly inadequate. Even without the difficulties with his Honour's remarks on sentence to which I have referred the period is so low that it must be infected by error. 19 I am also satisfied that the total term which his Honour imposed was manifestly inadequate. Apart from the primary offence the matters on the Form 1 were not insignificant and the charges reflected the fact that the respondent was engaged in a major commercial undertaking. He committed the offences while he was on conditional liberty. Although that was a result of the respondent committing offences unrelated to drug dealing the critical fact is that a condition of his liberty required him to be of good behaviour. This was breached. See the discussion in Porter v R [2008] NSWCCA 145. 20 The sentencing judge appears to have been influenced by the fact that, although the respondent had a significant criminal record, including for supplying drugs and had previously been a drug user, he had abstained from taking drugs since about 1993 until stressful personal circumstances caused him to start using drugs again in 2008. His Honour found that the offending was related to the respondent's personal drug use. 21 The fact that the respondent had remained drug free and had not committed drug related offences for in the order of 14 years is obviously relevant and has some significance to the sentence which should be imposed. However, having returned to using drugs he developed a commercial drug dealing enterprise which generated activity far beyond any personal need he may have had. His personal circumstances did not justify either the full term or the non-parole period which his Honour imposed. 22 With respect to the issue of special circumstances there is no doubt that his Honour was justified in making that finding having regard to the obvious need for the respondent to receive assistance if he is to remain drug free after his release from prison and not fall back into his drug dealing activities. However, regulation 228 of the Crimes (Administration of Sentences) Regulation 2008 provides that the maximum period for which an offender, other than "a serious offender", will be supervised is 3 years. The sentence which his Honour imposed included a period of 3 years on parole. If this Court intervenes the finding of special circumstances could not justify a period greater than 3 years on parole. 23 As I have previously indicated I am satisfied that the sentence which his Honour imposed was manifestly inadequate. The offending involved a multiplicity of criminal acts committed over a 4 month period (s 21A(2)(m) Crimes (Sentencing Procedure) Act; R v Tadrosse [2005] NSWCCA 145 at [29]; 65 NSWLR 740. Although he was not in the upper echelons of a drug trafficking hierarchy the respondent's role in the distribution of illegal drugs was serious and deserving of severe penalty: R v Stanbouli [2003] NSWCCA 355; (2003) 141 A Crim R 531 at [111] where Hulme J quoted from Le Cerf [1976] 8 ALR 349. The objective seriousness of the offence placed it below, but only marginally below, the mid range. The respondent was on conditional liberty and subject to a good behaviour bond which significantly aggravated his offending: R v Richards [1981] NSWLR 464; R v Snyder [2004] NSWCCA 134 s 21A(2)(j). 24 In addition his Honour was required to sentence the respondent mindful of the matters on the Form 1 for which an additional penalty was clearly required: see Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [2002] 56 NSWLR 146. 25 The respondent is entitled to 25% discount for his guilty plea. To facilitate the maximum period of supervised release into the community I make a finding of special circumstances and will provide a period on parole of 3 years. 26 The orders I propose are: 1. Appeal upheld and the sentence imposed in the District Court quashed. 2. Having regard to the matters on the Form 1 the respondent is sentenced to a non-parole period of 5 years commencing on 27 November 2008 with an additional term of 3 years. The respondent will be eligible for release to parole on 26 November 2013. 27 GROVE J: I agree with McClellan CJ at CL. 28 JOHNSON J: I agree with McClellan CJ at CL. ********** 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.