New South Wales Court of Criminal Appeal CITATION: BUTTON v R [2010] NSWCCA 264 HEARING DATE(S): 11 November 2010 JUDGMENT DATE: 11 November 2010 JUDGMENT OF: Simpson J at 1; Kirby J at 2; Latham J at 3 EX TEMPORE JUDGMENT DATE: 11 November 2010 1. Leave to appeal granted. 2. Appeal allowed DECISION: 3. Quash the sentence imposed on 4 June 2010 on Count 1 4. In lieu, taking into account the offence on the Form 1, a non parole period of 12 months, to date from 25 September 2009 expiring 24 September 2010, with a balance of term of 21 months expiring 24 June 2012. 5. The applicant is entitled to be released forthwith. CATCHWORDS: CRIMINAL LAW - appeal against sentence - plea of guilty to one count of supply a prohibited drug (ecstasy) on an ongoing basis and one count of supply ecstasy - whether applicant was denied procedural fairness during the sentencing proceedings - whether sentence manifestly excessive. LEGISLATION CITED: Drug Misuse and Trafficking Act 1985 CASES CITED : Baroudi v R 92007) NSWCCA 48 Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR PARTIES: Brett Michael Button - (Applicant) Regina - (Crown Respondent) FILE NUMBER(S): CCA 2009/214356 COUNSEL: M Johnston - (Applicant) V Lydiard - (Respondent) SOLICITORS: Steve O'Conor (Legal Aid Commission) - (Applicant) S Kavanagh - Solicitor for Public Prosectutions (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2009/214356 LOWER COURT JUDICIAL OFFICER: Blackmore SC DCJ LOWER COURT DATE OF DECISION: 4 June 2010 IN THE COURT OF CRIMINAL APPEAL 2009/214356 SIMPSON J KIRBY J LATHAM J 11 NOVEMBER 2010 BRETT MICHAEL BUTTON v REGINA Judgment 1 SIMPSON J : I agree with Latham J. 2 KIRBY J : I agree with Latham J. 3 LATHAM J : The applicant seeks leave to appeal against a sentence imposed by Blackmore SC DCJ (the Judge) on 4 June 2010 at Orange, following the applicant's pleas of guilty to supply a prohibited drug (ecstasy) on an ongoing basis (count 1) and supply ecstasy (count 2). A further three offences of supply ecstasy were taken into account on a Form 1 when the sentence for the count 1 was imposed. 4 The offence of ongoing supply pursuant to s 25A(1) of the Drug Misuse and Trafficking Act 1985 carries a maximum penalty of 20 years imprisonment. On this offence, the applicant received a non-parole period of one year and three months with a balance of term of one year and six months. The further count on the indictment of supply prohibited drug pursuant to s 25 of the Drug Misuse and Trafficking Act carries a maximum penalty of 15 years imprisonment. On this offence, the applicant received a fixed term of nine months. A minor degree of accumulation resulted in an aggregate sentence of three years imprisonment, including a non-parole period of 18 months. 5 The applicant complains of a denial of procedural fairness during the sentencing proceedings. The applicant also contends that "in the particular circumstances of this case the sentence is manifestly excessive". 6 The facts relating to the matter are in a short compass. They were set out in full by the Judge in the course of his remarks on sentence. It is sufficient for present purposes to note that the offence constituted by count 1 on the indictment was committed between 31 July 2009 and 30 August 2009, during which the applicant supplied undercover police operatives with a total of 10 ecstasy tablets for the sum of $300. The applicant first met with the undercover operatives at a hotel in Orange where discussions were held about the supply of ecstasy tablets and the applicant provided a contact mobile phone number. Over the following month, police contacted the applicant by way of text messages and on his mobile phone in order to arrange for the supply of ecstasy tablets on three separate occasions. 7 Count 2 on the indictment arose from the applicant's admission to police that he intended to sell 26 ecstasy tablets found on his person when he was arrested on 25 September 2009. The applicant further admitted that he had supplied three separate persons with ecstasy tablets on 25 September 2009. These three supplies constituted the offences on the Form 1. Police described the applicant as a "street level dealer". 8 It is convenient to recount briefly the applicant's subjective circumstances. As the Judge noted, the applicant's upbringing was unremarkable. He had completed an apprenticeship as a bricklayer and had obtained qualifications as a forklift driver. He was in full-time employment and was highly regarded by his employer. His prospects of rehabilitation were very favourable. The applicant commenced drinking alcohol to excess at about the age of 18 years. That excessive consumption of alcohol continued up to the commission of the offences when the applicant was 23 years of age. His criminal history consisted of one conviction for low range PCA which, the Judge found, entitled him to be treated with some leniency. The Judge found special circumstances. 9 Dealing firstly with the alleged denial of procedural fairness, the applicant relies upon an exchange that occurred on 24 May 2010 during submissions on sentence. The applicant's then legal representative made a number of submissions in relation to the length of the proposed sentence. The exchange commenced with a submission that a head sentence of somewhere around two years "or something like that" was appropriate. The Judge responded to the effect that a head sentence needed to be "somewhere between 2 1/2 and three years". There followed a comment from the Judge to the effect that, given the applicant's status as a first-time offender and his strong prospects of rehabilitation, "release after one year in jail and perhaps 18 months or two years on parole" would be appropriate. The applicant's legal representative further submitted that his "thought was about 12 months in". 10 The Judge then said "well, that's what I was thinking too. What do you want to say Mr Crown?" The Crown replied that he would not speak against that course and that it would be appropriate. However, the Crown went on to bring to the attention of the Judge the case law in relation to section 25A offences and the fact that the Form 1 offences needed to be reflected in the sentence ultimately imposed. Shortly thereafter, the Judge said that he would reserve, but that "the effect of it will be I intend to release him within a year of his going into custody … and there will be supervised parole but probably for between 18 months and two years". 11 It is apparent from this exchange that the Judge had an aggregate sentence in the order of three years imprisonment in mind, and that the proposed aggregate non parole period would be one year. When the Judge came to impose sentence 11 days later, he imposed an aggregate non parole period of 18 months without further hearing from the applicant or the Crown. 12 The applicant relies upon the decision of this Court in Baroudi v R [2007] NSWCCA 48, wherein Price J. (with whom Sully and Howie JJ. agreed) found that there had been a failure to accord procedural fairness to the offender in circumstances where the Crown effectively nominated an appropriate sentence, in response to which the judge asked the offender's legal representative whether he wished to say anything in opposition to that course. Not surprisingly, the offender's counsel confined his submissions on sentence in accordance with the concession made by the Crown Prosecutor, which he understood the judge to have accepted. A more lengthy sentence than the Crown had nominated was imposed. 13 In this context, Price J. noted that -: it was open to the Judge to indicate that either his views were tentative or that he neither accepted nor rejected the Crown concession. Such an indication would have afforded counsel the opportunity to dissuade the Judge from imposing a lengthier sentence. With respect to his Honour, his inadvertent failure to do so denied the applicant procedural fairness. 14 At the heart of the denial of procedural fairness claimed in this appeal is the absence of an opportunity to be heard further in relation to a matter of penalty, where the applicant relied upon a representation by the Judge that a particular sentence was to be imposed, and the Judge departed from that representation without notice to the applicant. 15 Gleeson CJ said in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6 at [35] and [37] ; (2003) 214 CLR 1 at 14 :- But what must be demonstrated is unfairness, not merely departure from a representation. Not every departure from a stated intention necessarily involves unfairness, even if it defeats an expectation. In some contexts, the existence of a legitimate expectation may enliven an obligation to extend procedural fairness. In a context such as the present, where there is already an obligation to extend procedural fairness, the creation of an expectation may bear upon the practical content of that obligation[13]. But it does not supplant the obligation. The ultimate question remains whether there has been unfairness; not whether an expectation has been disappointed. …………………………………………………………………… Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice. 16 There are essentially two explanations for the Judge's departure from the representation that he made in the course of submissions. One is that, in the intervening 11 days in the course of a busy country sittings, without the benefit of a transcript, his Honour had simply forgotten the details of the exchange with counsel. The other is that his Honour arrived at a different sentence after further consideration of the matter. If the latter is the explanation, one would have expected some reference to the reason for the revision, either in the remarks on sentence or by way of a further conversation with counsel, before delivery of sentence. Had that occurred, this Court could not be confident that further submissions from the applicant's counsel would not have persuaded the Judge to reinstate his previous representation. 17 If the former is the explanation, it would be surprising if a reminder from the applicant's legal representative of the Judge's earlier proposed sentence would not have prompted the Judge to revise the sentence. 18 It is not necessary to determine what the explanation is. In either case, the applicant has demonstrated a "practical injustice". The Judge went beyond a mere indication of sentence and announced the sentence he was going to impose. The applicant is entitled to receive the sentence that was accepted by the Judge and the parties as an appropriate sentence in all the circumstances. There is no suggestion from the Crown in this Court that such a sentence is manifestly inadequate. 19 It is also unnecessary to deal with the ground of manifest excess, although I would incline to the view that the sentence imposed was within the range of a legitimate sentencing discretion. 20 The orders I propose are :- 1. Leave to appeal granted. 2. Appeal allowed. 3. Quash the sentence imposed on 4 June 2010 on count 1. 4. In lieu, taking into account the offences on the Form 1, a non parole period of 12 months, to date from 25 September 2009 expiring 24 September 2010, with a balance of term of 21 months expiring 24 June 2012. 5. The applicant is entitled to be released forthwith. ********** 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.