New South Wales Court of Criminal Appeal CITATION: Lorraway v R [2010] NSWCCA 46 HEARING DATE(S): 8 February 2010 JUDGMENT DATE: 31 March 2010 JUDGMENT OF: McClellan CJatCL at 1; Howie J at 43; Harrison J at 44 DECISION: 1. Grant leave to appeal. 2. Appeal dismissed. CATCHWORDS: CRIMINAL LAW - appeal against sentence - whether low quantity and purity of drug mitigates seriousness of offence - appeal dismissed LEGISLATION CITED: Drug (Misuse and Trafficking) Act 1985 CATEGORY: Principal judgment Anderson v R [2008] NSWCCA 211 Do, Van Nghiem v R [2008] NSWCCA 34 Hockey v R [2006] NSWCCA 146 Martinelli v R [2009] NSWCCA 175 Mulato v R [2006] NSWCA 282 R v Barker [2009] NSWCCA 225 CASES CITED : R v Blair [2005] NSWCCA 78; 152 A Crim R 462 R v Deng [2005] NSWCCA 430 R v Knight; R v Biuvanua [2007] NSWCCA 283 R v Mendez (2005) 155 A Crim R 241 R v Shi [2004] NSWCCA 135 R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 Sivell v R [2009] NSWCCA 286 PARTIES: Joshua Keith Lorraway (Applicant) The Crown FILE NUMBER(S): CCA 2008/19352 COUNSEL: H Cox (Applicant) M Grogan (Crown) SOLICITORS: Legal Aid of NSW (Applicant) Director of Public Prosecutions (Crown) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2008/19352 LOWER COURT JUDICIAL OFFICER: Black DCJ LOWER COURT DATE OF DECISION: 27 March 2009 THE COURT OF CRIMINAL APPEAL 2008/19352 McCLELLAN CJ at CL HOWIE J HARRISON J WEDNESDAY 31 MARCH 2010 LORRAWAY, Joshua Keith v R Judgment 1 McCLELLAN CJ at CL: The applicant came before the District Court for sentencing in relation to matters for which he was convicted and sentenced in the Local Court and other matters to which he pleaded guilty in the District Court. In the District Court he pleaded guilty to four counts as follows: Count 1: supply 1.24 grams of 3-4 methylenedioxymethylamphetamine (Ecstasy) on 4 July 2008. He was sentenced to a fixed term of 6 months imprisonment to date from 20 February 2009 and expire on 20 August 2009. Count 2: supply 3.08 grams of methylamphetamine for which he was sentenced to a fixed term of 12 months imprisonment to date from 20 February 2009 and expire on 19 February 2010. Count 3: supply 1.28 grams of methylamphetamine for which he was sentenced to a fixed term of 12 months imprisonment to date from 20 February 2009. Count 4: supply not less than the commercial quantity of methamphetamine (259.2 grams) for which he was sentenced to a non-parole period of 4½ years imprisonment to date from 20 February 2009 and expire on 19 August 2013 with an additional term of 2½ years to expire on 19 February 2016. This offence carries a maximum penalty of 20 years imprisonment and a standard non-parole period of 10 years (s 25(2) of the Drug (Misuse and Trafficking) Act ) . 2 The applicant seeks leave to appeal against the sentence in relation only to count 4. 3 The applicant appealed against his sentence in relation to the matters which were dealt with in the Local Court. They all related to domestic violence. The District Court judge dealt with that appeal before considering the drug matters. The matters in relation to which the applicant had been sentenced in the Local Court were as follows: Contravene a domestic violence order for which he was sentenced to 2 months imprisonment to commence on 3 November 2008 with a non-parole period of 9 months. Assault occasioning actual bodily harm for which he was sentenced to 12 months imprisonment commencing on 3 November 2008 with a non-parole period of 9 months. Common assault for which he was sentenced to a fixed term of 6 months imprisonment commencing on 3 November 2008. 4 The sentencing judge confirmed the sentences which had been imposed in the Local Court. The consequence was that notwithstanding the fact that the applicant had been convicted of breaching the domestic violence order and separately of assault occasioning actual bodily harm, he received concurrent sentences in relation to all of the domestic matters. Because the sentences in relation to the drug matters took effect from 20 February 2009 the period by which his Honour provided separate punishment for the domestic offences would appear to be 3 months and 16 days. However, in the course of his remarks on sentence his Honour acknowledged that the applicant had been in custody since 21 August 2008 and, it would seem that it was this fact that influenced him to order the sentences in relation to the drug matters to commence on 20 February 2009. This had the effect, in real terms, of extending the period which the applicant served in custody in relation to the domestic matters by a little over 2 months. 5 The effect of all of the sentences which his Honour imposed was a head sentence of 7 years 3 months and 17 days with a total non-parole period of 4 years 9 months and 17 days. However, as I have indicated the effective sentence included the period in custody from 21 August 2008. Facts relevant to the drug offences 6 On 4 July 2008 at Nimbin the applicant was introduced to undercover officers, "Felicity" and "Hayley", as someone who could supply "pills". He asked police how many pills they wanted. He told police he would sell two pills for $60 and five pills for $100. This led to the supply of five tablets of ecstasy on that day for $100 (count 1). The drug weighed 1.24g with a purity of 21.5%. During conversations shortly after this supply, the applicant said that he could "get as many [tablets] as you [the undercover police] want." Later he told the undercover police that he had a thousand tablets on him and that they were "good stuff". He supplied police with a telephone number so that they could contact him if they wanted further amounts of the drug. 7 On 29 July and 13 August 2008 undercover police telephoned the applicant on the number he had supplied and discussed purchasing five more ecstasy tablets from him. 8 On 15 August 2008, "Felicity", "Hayley" and another undercover police officer, "George", were approached by the applicant at Byron Bay. The applicant supplied one of the officers with a sample of 12 tablets for $200 (count 2). The applicant told the officer that the pills were the same pills as he had sold the officer on 4 July 2008 but that they had been made with a different pill press. When analysed the drug weighed 3.08g with a purity of 1% methylamphetamine. 9 Shortly after the earlier supply the applicant sold undercover officer Felicity five tablets for $100 (count 3). The drug weighed 1.28g and contained methylamphetamine but was not tested for purity. The tablets purchased on 15 August 2008 had a different logo to those purchased on 4 July 2008. 10 On 15 August 2008 while an undercover officer was being supplied a sample of pills by the applicant, he commenced negotiations in relation to the supply of a further 1000 ecstasy pills from the applicant. The applicant informed the undercover officer that the pills would cost $12,500. 11 On 19 and 20 August 2008 the applicant had further conversations with undercover police about the supply of 1000 tablets. On 21 August 2008 the applicant attended a car park at Byron Bay and had in his possession a plastic bag containing 1005 tablets. As he started to supply the tablets to the undercover officer he was arrested (count 4). The drug weighed 259.2g with a purity of less than 1% methylamphetamine. The tablets appeared similar to those purchased on 15 August. After legal advice, the applicant declined to be interviewed. He remained in custody in relation to the supply matters until sentence. Subjective matters 12 A report by psychologist Anna Robilliard dated 20 March 2009 and various character references were tendered on the applicant's behalf. The applicant's mother gave evidence and confirmed, in so far as she could, the history given to Ms Robilliard by the applicant. The sentencing judge also had the benefit of a pre-sentence report prepared by the Probation and Parole Officer at the Grafton District Court, Ms Mary Deen dated 30 January 2009. 13 The applicant and his sister grew up in the country as part of a large extended family. He was over-active and had trouble at school in accepting directions. In 1997 at the age of 12 years he was diagnosed as suffering from Attention Deficit Hyperactivity Disorder (ADHD). 14 The applicant was placed on medication for about six months but had not maintained it because with it "he didn't feel normal." He reported that the medication heightened his mood more than calmed him. For four months he was in a special program for children suffering that condition. 15 The applicant started smoking cannabis at 14 and by 16 was smoking daily. 16 As he grew older the applicant could "not fit in" and finished school in Year 10, aged 16. He had no further treatment for his condition. His family decided to send him to Queensland to work, partly because they thought that instead of medication he needed to use his hands and keep active. His best friend was to join him but he committed suicide. The applicant was devastated by this, which, in his mother's opinion changed the applicant's life path. 17 After the death of his friend, the applicant lived a comparatively isolated existence at home with his parents until he was 21 when he left home. He worked as a scaffolder in Kingscliff where he remained for about two years. While there he started using alcohol and then ecstasy and cocaine. In early 2008 the long term relationship he had had with a young woman broke up. The relationship started when he was 14 and when she left him he felt devastated. In response to this his ecstasy and cocaine use increased substantially to the point where he had developed a cocaine addiction. His drug use cost him his job and he returned to live with his parents about five months before his arrest for the present matters. By that time he was drug dependent and remained so until he was arrested. 18 The applicant's mother spoke of his remorse and his realisation of what he had done and his plans upon release. She noted that he had much support in the community. This was confirmed by references which indicated that the applicant had helped organise youth activities in the local area and was well respected. 19 The sentencing judge was told that the applicant did not apply to undertake any drug and alcohol education courses in custody because he always anticipated being moved, but proposed to enquire about such courses after being sentenced. He acknowledged that he still had cravings for cocaine but said that he would do "whatever it takes" to deal with his addiction. 20 The applicant told Ms Robilliard that he committed the offences after becoming involved in a subculture where ecstasy and cocaine were part of the lifestyle. He was extended credit to purchase drugs but when his debt became large he came under pressure from his supplier. He said he committed the offences to clear his debt and avoid injury. Ms Robilliard thought his primary motivation was to ameliorate the debt but secondary motivations were to avoid retribution and preserve his ongoing supply of drugs. 21 The applicant said that since being arrested he had seen that he was just "a runner with a drug habit." He said that when released, he did not expect to have any problem staying away from the drug scene. He said he would now prefer to "sit back and get a job." 22 Ms Robilliard said the applicant's presentation was consistent with the residual features associated with childhood ADHD. She said people with a history of ADHD are typically drawn to stimulating activities (Ms Robilliard notes that the applicant broke his arm twice riding motorbikes). They are also drawn to stimulant drugs as they paradoxically experience calmness and relaxation they do not experience naturally. She noted the well-researched relationship between ADHD and substance abuse as well as criminal offending. 23 Ms Robilliard said that the applicant had shown signs of maturing when he moved to Kingscliff but despite stopping smoking cannabis and having full time employment, he found himself attracted to a group through their stimulus seeking activities. She said the applicant's manner and appearance would have made him an ideal candidate for a group whose activities were also focused on stimulant drugs. She thought it probable that his social contacts deliberately facilitated his access to drugs so that they could later use his indebtedness as a means to persuade him to engage in criminal behaviour. 24 Ms Robilliard's testing led her to conclude that the applicant had some insight into the seriousness of his drug use and there are some promising signs for rehabilitation. 25 Ms Robilliard assessed the applicant as being in the moderate to high risk of reoffending and recommended that he be placed in programs that deal with these issues, including facility run substance abuse programs and ongoing post release community and Probation and Parole Service support. 26 In her presentence report Ms Deen noted the applicant's increasing drug use. She further noted that he had become involved in the offence as a means to maintain his own supply, repay his significant drug debt and benefit financially. She said that the applicant needed to address issues of drug rehabilitation, vocational counselling and anger management. 27 The applicant had a criminal record for minor offences, one of which concerned the possession of a prohibited drug for which he was fined. His record is not otherwise of significance in the sentencing exercise. 28 The applicant advances three grounds of appeal: 1. His honour erred in finding that the low quantity and purity of drug was not a matter that mitigated the seriousness of the offence. 2. His Honour erred in his assessment of the objective seriousness of the offence. 3. The sentence imposed is manifestly excessive. 29 Count 4 was a breach of s 25(2) of the Drug (Misuse and Trafficking) Act 1985 for which the maximum penalty is 20 years imprisonment. There is a standard non-parole period of 10 years. The sentencing judge accepted that the applicant had entered an early plea and was entitled to an appropriate discount. Because of that plea his Honour was satisfied that although a standard non-parole period applied to the offence its significance was as a "guidepost." His Honour was conscious of the fact that the drug offence was committed while the applicant was on bail in relation to the domestic violence offences. He concluded that this was an aggravating factor. Although this was not the first time he had supplied drugs and obviously had access to a supplier his Honour did not consider the degree of planning for count 4 to be in any way exceptional. 30 Although the sentencing judge did not find the applicant to be a person of good character, he found that he was remorseful and that he had good prospects of rehabilitation both because of his youth and the salutary effect of his imprisonment. His Honour concluded that the applicant was a drug addict with the consequence that the offence was committed partly to support his drug habit. 31 At the sentencing hearing his Honour was invited to consider both the quantity and purity of the drug supplied by the applicant. It was submitted that the quantity being only modestly in excess of the minimum commercial quantity (250 grms) and more particularly of modest ie 1% purity should be considered to be mitigating factors. His Honour rejected this submission and concluded that the quantity and purity were neither aggravating nor mitigating features. It is this conclusion which is challenged in the appeal. 32 In R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 at [159] this Court (per Spigelman CJ, Wood CJ at CL, Simpson J) concluded that when defining where a supply offence came in the range of objective seriousness the amount of the drug was a relevant factor: see also R v Shi [2004] NSWCCA 135 at [34] and [37] (per Wood CJ at CL, Spigelman CJ and Simpson J agreeing); R v Blair [2005] NSWCCA 78 at [50] (per Grove J, James and Barr JJ agreeing). This Court has also indicated that when sentencing for an offence contrary to s 25(2) both the amount and the purity of the drug supplied may be relevant: R v Deng [2005] NSWCCA 430. A larger quantity of a drug with a higher concentration may, after all other matters have been considered, require a heavier penalty. However, it is inappropriate to speak in terms of aggravation or mitigation. It is also important to bear in mind that although a supplier will be aware of the quantity of the drug which he or she has supplied it will often be the case that they have little, or perhaps, any idea of its purity. 33 Central to the applicant's argument was a submission that by reason of the low concentration of amphetamine in the pills supplied the drugs had little or no potential for harm to the community. It was further submitted that they could not be used or cut or further disseminated. However, the latter argument is of no consequence. Because the drugs were supplied in pill form there was no suggestion that they were ever to be cut or in some manner transformed before their distribution. Whether consumed by the person to whom they were supplied or by someone else the intention was that they should be ingested in the form in which they were sold. 34 In the present case his Honour was correct to conclude that the fact that the amount of the drug was modestly in excess of the minimum required for the offence and its purity was minimal were not mitigating factors. They were matters which required consideration. However, I am satisfied that there is nothing to indicate that his Honour was not mindful of them when imposing the sentence. 35 I would reject ground 1 of the appeal. 36 The submission in relation to ground 2 was to similar effect to the argument put forward in relation to ground 1. His Honour made a finding that the "gravity of the offence is that it is below mid range." I am not persuaded that this finding was in error. I note however that his Honour proceeded from that finding, and in the same sentence, to consider the appropriate head sentence which he said, but for the plea of guilty, would have been somewhat in excess of 9 years. This may indicate a confusion. The objective seriousness of the offence is a matter of direct relevance to the non-parole period appropriate for an offence for which a standard non-parole period has been provided: Sivell v R [2009] NSWCCA 286 at [4]-[5]; R v Barker [2009] NSWCCA 225 at [42]; R v Knight; R v Biuvanua [2007] NSWCCA 283 at [4]; Anderson v R [2008] NSWCCA 211 at [17]. However, if his Honour was under a misapprehension it could only have been favourable to the applicant. 37 In support of ground 3 the applicant's counsel referred to a number of previous decisions where offenders had been sentenced for breaches of s 25(2) of the Act: R v Shi [2004] NSWCCA 135; R v Blair (2005) 152 A Crim R 462; R v Mendez (2005) 155 A Crim R 241; Hockey v R [2006] NSWCCA 146; Mulato v R [2006] NSWCA 282; Do, Van Nghiem v R [2008] NSWCCA 34; Martinelli v R [2009] NSWCCA 175. 38 It is unnecessary for me to consider the detail of each of these matters. In some cases the sentences imposed were greater, some considerably greater than the sentence imposed on the applicant (see Blair and Martinelli). Other sentences are similar (see Do, Mendez and Mulato) and the others less. However, each matter has its own particular facts and the sentence imposed is explicable by reference to those matters. They do not indicate that the sentence imposed on the applicant was excessive to the extent that an error has occurred. 39 There is an important consideration with respect to the applicant. Each of the counts for which he was sentenced constituted a separate offence although not unrelated. Nevertheless by structuring the sentences so that the sentence for count 4 subsumed the sentences imposed on each of the other counts the applicant was given a significant concession. A period of imprisonment separately identified for at least one of those counts would have been appropriate. Accordingly if I had been persuaded that an error had occurred in relation to count 4 it would have been necessary to consider whether the sentences should be restructured. I am not persuaded that the sentence in relation to count 4 would not have been the appropriate overall result having regard to the total criminality involved in the applicant's offending. 40 On the hearing of the appeal the applicant advanced a further ground of appeal expressed in the following terms: His Honour erred in failing to take into account the presentence custody served by the applicant in relation to the offence 41 I have already addressed this ground. As I have indicated his Honour was mindful of the fact that the applicant had been in custody since 21 August 2008 and for this reason delayed the commencement of the sentences for the drug matters so as to ensure that the applicant served an appropriate period in custody for the domestic violence matters including the period since his arrest. Although as this Court has previously indicated, those sentences should have been commenced on the date he was taken into custody, I am not persuaded that his Honour has not had appropriate regard to the time served in custody before sentence. I reject this ground of appeal. Orders 42 Although I would grant leave to appeal the appeal should be dismissed. 43 HOWIE J: I agree with McClellan CJ at CL. 44 HARRISON 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.