New South Wales Court of Criminal Appeal CITATION: HOWARTH v REGINA [2010] NSWCCA 211 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 14 September 2010 JUDGMENT DATE: 20 September 2010 JUDGMENT OF: McColl JA at 1; Hulme J at 2; Latham J at 3 1. Leave to appeal granted. DECISION: 2. Appeal allowed in part. 3. The sentence imposed on count 2 is set aside. In lieu, a non parole period of 18 months is imposed, to date from 25 August 2010, expiring 24 February 2012, with a balance of term of 18 months, expiring 24 August 2013. The applicant is eligible for release to parole on 25 February 2012. CATCHWORDS: CRIMINAL LAW - appeal against sentence - pleas of guilty to two counts of supplying drugs (ecstasy and methylamphetamine) - two counts of unauthorised possession of a pistol and one count of dealing with proceeds of crime - whether sentences imposed on supply offences were manifestly excessive - whether aggregate sentence was manifestly excessive - whether Judge failed to give effect to a finding of special circumstances CATEGORY: Principal judgment CASES CITED : Braithwaite v R [2005] NSWCCA 451 Jackson v R [2010] NSWCCA 162 PARTIES: Dylan Noel Howarth - (Applicant) Regina - (Respondent) FILE NUMBER(S): CCA 2009/1734 COUNSEL: W Hunt - (Applicant) D Arnott SC - (Respondent) SOLICITORS: S O'Connor - (Solicitor for Legal Aid Commission) S Kavanagh - (Solicitor for Public Prosecutions) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2009/1734 LOWER COURT JUDICIAL OFFICER: Sorby DCJ LOWER COURT DATE OF DECISION: 28 August 2009 IN THE COURT OF CRIMINAL APPEAL 2009/1734 McCOLL JA HULME J LATHAM J 20 SEPTEMBER 2010 DYLAN NOEL HOWARTH v REGINA Judgment 1 McCOLL JA : I agree with Latham J. 2 HULME J : I agree with the orders proposed by Latham J and with her Honour's reasons. 3 LATHAM J : The applicant seeks leave to appeal against a sentence imposed by Sorby DCJ (the Judge) on 28 August 2009, following pleas of guilty to five offences, namely, supply ecstasy (count 1), supply methylamphetamine (count 2), two counts of unauthorised possession of a pistol and deal with the proceeds of crime. 4 The applicant complains that the sentence imposed on each of the supply prohibited drug offences was manifestly excessive, that the total effective sentence was manifestly excessive, and that his Honour failed to give effect to a finding of special circumstances, such that the aggregate non parole period represents 80% of the aggregate sentence. 5 The Judge imposed a fixed term of 2 years on count 1. On count 2, the Judge sentenced the applicant to a non parole period of two years, with a balance of term of one year. Each offence carried a maximum penalty of 15 years imprisonment. Given the Judge's findings with respect to the objective gravity of these offences, which the applicant does not challenge, and taking account of three further offences on a Form 1 which were factored into the sentence on count 2, I am of the view that the ground of manifest excess in respect of the drug offences cannot succeed. My reasons for that conclusion may be briefly stated. 6 The circumstances of the supply offences established that the applicant was engaged in the business of distributing drugs on the NSW Central coast. The amount of the drugs (39 tablets of ecstasy and 24 gms of methylamphetamine in paste form) was in each case significantly above the traffickable quantity and there were a number of SMS messages on the applicant's mobile phone in the nature of advance orders for ecstasy and amphetamine. The applicant admitted under cross-examination that he was a drug dealer. He was spending $200 to $300 a day on drugs and gambling, yet he had not been employed for four years. 7 Moreover, the sentence on count 2 reflected the further offences of possess cannabis, possess ammunition without a licence and possess a precursor for use in the manufacture of a prohibited drug. 8 The nub of the applicant's argument on this ground is that a comparison with the circumstances in Braithwaite v R [2005] NSWCCA 451 justify a downward revision of the sentences imposed by the Judge. That argument, even if accepted, does not establish that the sentences imposed upon the applicant were outside the range of a legitimate sentencing discretion. 9 The applicant's submission that the aggregate sentence is manifestly excessive depends in part on the asserted manifest excess of the sentences imposed for the drug offences. Accordingly, that contention falls away. There is no complaint in respect of the sentences imposed on the remaining offences. Rather, the applicant submits that the Judge accumulated the individual sentences to "a high degree". 10 The partial accumulation of the sentences resulted in an aggregate non parole period of 4 years, with an aggregate balance of term of one year. Leaving to one side the proportion between the aggregate non parole period and the balance of term, an effective sentence of five years imprisonment for the totality of the applicant's criminality is, in my view, far from excessive. 11 As I have already noted, the two drug offences each carried a maximum penalty of 15 years imprisonment, and there were further offences on a Form 1. The firearms offences each carried a maximum penalty of 14 years imprisonment. The applicant's criminal history consisted of 8 convictions for summary offences and he had not previously received a sentence of imprisonment, but any leniency that could be extended to him on that account was offset by the serious nature of these offences. At 27 years of age, he had deliberately embarked upon the business of supplying prohibited drugs, and his possession of the firearms and ammunition, and the $5340 the subject of the proceeds of crime charge, were indicative of that course of conduct. 12 I turn to the remaining ground of appeal. 13 The applicant's background revealed a history of poly substance abuse since adolescence. The applicant came under the supervision of Probation and Parole in 2001 and had undergone drug and alcohol counselling. The service terminated supervision in June 2002, largely because the applicant appeared to have responded favourably to that intervention. However, the commission of the instant offences demonstrated that the applicant's rehabilitation was far from assured. The Judge noted that, since the applicant had entered custody, he had completed a drug and alcohol education course and that he remained committed to addressing his substance abuse. 14 This was reflected in the Judge's remarks during sentence, that "this drug rehabilitation to date and the need for ongoing rehabilitation I find to be a special circumstance." Later, the Judge said :- Taking into account all the evidence including the text message on the offender's phone, indicating his modus operandi and the use of codes, the plastic bags, the scales and the other indices of supply together with the two firearms for his protection or to instil fear in others, I conclude that the totality of the criminality warrants a non parole period of four years imprisonment with a further period of parole of 12 months. 15 The Crown submits that these statements are not contradictory. Rather, the Judge found special circumstances for the purposes of varying the statutory proportion on the sentence imposed for count 2, but was nevertheless of the view that a non parole period of 4 years was the minimum period in custody capable of reflecting the applicant's criminality. 16 This is the same submission that was advanced to the Court in Jackson v R [2010] NSWCCA 162 in almost identical circumstances. Fullerton J (McClellan CJ at CL and Simpson J agreeing) found that, notwithstanding the expression of an intention by the sentencing judge that the offender serve a stipulated non parole period, there was a failure to give full effect to a finding of special circumstances after the accumulation of several sentences. 17 I respectfully agree with that approach. The rationale for the finding of special circumstances in this case was the need for ongoing rehabilitation. That can only mean rehabilitation in the community, because if the Judge was contemplating rehabilitation within the prison setting, there was no need to make such a finding. The Judge must have intended that the applicant have the benefit of a more extended period of supervision after release to parole than would otherwise be the case. In accumulating the sentences, the Judge failed to give effect to that intention. 18 Accordingly, this ground of the appeal succeeds. I propose the following orders :- 1. Leave to appeal granted. 2. Appeal allowed in part. 3. The sentence imposed on count 2 is set aside. In lieu, a non parole period of 18 months is imposed, to date from 25 August 2010, expiring 24 February 2012, with a balance of term of 18 months, expiring 24 August 2013. The applicant is eligible for release to parole on 25 February 2012. ********** 21/09/2010 - Wording of Justice Hulme's comment - Paragraph(s) 2 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.