RESTUCCIA v REGINA [2012] NSWCCA 15

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: RESTUCCIA v REGINA [2012] NSWCCA 15 Hearing dates: Tuesday 21 February 2012 Decision date: 21 February 2012 Before: Macfarlan JA at [18], [20] RS Hulme J at [1] Garling J at [19] Decision: Leave to appeal granted. Appeal dismissed. Catchwords: Criminal law - sentencing - drug supply - ecstasy - indictable quantity Cases Cited: Howarth v R [2010] NSWCCA 211 R v Tirtabudi [2004] NSWCCA 328 Category: Principal judgment Parties: JAMIE RESTUCCIA v REGINA Representation: C: J Dwyer A: G Corr C: S Kavanagh A: Legal Aid Commission File Number(s): 2010/64329; 2010/77110 Decision under appeal Date of Decision: 2011-03-18 00:00:00 Before: King DCJ File Number(s): 2010/64329; 2010/77110

Judgment 1RS HULME J: On 18 March 2011, this Applicant for leave to appeal was sentenced by King SC DCJ in respect of three offences. Each was constituted by the supply - in this case deemed supply - of an indictable quantity of ecstasy or, to give it its scientific name, 3,4- methylenedioxymethylamphetamine. The maximum penalty prescribed for each of the offences is imprisonment for 15 years and a fine, a penalty that applies to quantities up to 125 grams. 2The circumstances of the first offence were that on 7 March 2010 near the front entry to the "Gay and Lesbian Mardi Gras Parade After-party", the Applicant was found in possession of 61 ecstasy tablets weighing a total of 17.83 grams. He was also found in possession of a pipette, a small glass bottle containing 22.5 grams of gammabutyrolactone and a mobile telephone containing as one of its "received" text messages an enquiry about his having pills available for supply at the Mardi Gras Party. Possession of the gammabutyrolactone was the subject of a Form 1 and taken into account in the sentencing for possession of the 61 ecstasy tablets. 3The Applicant was arrested, charged but later released on conditional bail. 4The second offence was committed after the Applicant agreed to meet a police undercover officer at the Columbian Hotel in Oxford Street, Darlinghurst. Around midnight on 26 March 2010, the Applicant supplied the officer with 10 ecstasy tablets weighing a total of 2.86 grams in return for the sum of $300. Shortly thereafter, the Applicant was again arrested. 5Following his arrest, police conducted a search of the Applicant's bedroom in the house of his parents. There, police found:- (i) A resealable plastic bag containing approximately 30 ecstasy tablets weighing a total of 8.93 grams. (ii) Six sets of digital scales. (iii) A "drug testing" kit. (iv) A number of other indicia of dealing in drugs. (v) A little over 100 grams of cannabis leaf. (vi) Tablets and fragments containing 2.7 grams of alprazolam. (vii) Two valium tablets consisting of 0.3 grams of diazepam. 6The three last-mentioned items were included on a second Form 1 and taken into account when the Applicant was sentenced for the second offence. The 30 ecstasy tablets found were the subject of the third offence charged. 7After allowing a 25% discount for the Applicant's plea, the sentences imposed by King DCJ were:- (i) First offence - a fixed term of imprisonment for one year commencing on 26 February 2011. (ii) Second offence - imprisonment for three years including a non-parole period of one year and six months, both such periods commencing on 26 August 2011. (iii) Third offence - a fixed term of imprisonment for 18 months commencing on 26 August 2011. 8The effective sentence was thus one of three years and six months including non-parole periods totalling two years, his Honour concluding that the Applicant was substantially involved in drug dealing at the time of his commission of the offences and he regarded the fact that the Applicant was on bail at the time of the second and third offences as a significant aggravating feature. 9The sole ground of appeal is that the sentences for Counts 2 and 3 are manifestly excessive. 10The Applicant and his father gave evidence on sentence and also tendered were a pre-sentence report dated 28 October 2010 and a report from an educational and developmental psychologist. There were significant inconsistencies between these various sources of information. 11The Applicant was born in January 1981. He left school was he was 17, commenced, but at the time of sentence had not completed, a plumber and gasfitter course at TAFE and had worked for a period his Honour was not able to determine between leaving school and the commission of the offence. 12Included in the evidence which the Applicant gave was that, though he had commenced using illicit substances at about the age of 14 or 15, he ceased such use on 7 March 2010. His Honour concluded that the later offences were thus clearly to obtain money. Surprisingly, given the inconsistencies in evidence on other topics, his Honour accepted statements by the Applicant that the drugs the subject of the second and third charges were, in fact, acquired prior to 7 March. His Honour said it was difficult to find there were good prospects for rehabilitation and the commission of the second and third offences indicated a significant disregard for compliance with the law. The Applicant's record and the fact that, at the time of all of the offences he was on a good behaviour bond, confirms his Honour's view. 13That record included three charges of possession of a prohibited drug and in respect of the third of which he was fined in December 2008, driving with a middle range PCA, driving with a high range PCA, and two charges of driving whilst disqualified. For the last of these offences, the Applicant on 30 April 2010, was placed on a one year good behaviour bond. 14The principal argument in support of the ground of appeal was that the second and third sentences were excessive, given the relatively small quantities of drugs the subject of the second and third charges. However, both the legislature and the courts have made it clear that it is important that the sentences imposed for drug dealing have a substantial deterrent element in them. It is apparent that the Applicant has not been deterred by sentences imposed in other cases, even though the illegality of his activities must have been brought home to him on the occasions when he was charged with drug possession offences. 15The Crown drew to the Court's attention two previous cases R v Tirtabudi [2004] NSWCCA 328 and Howarth v R [2010] NSWCCA 211. In the first of these, the offender had been sentenced to imprisonment for a period of 44 months including a non-parole period of 22 months for two offences involving the supply of about 14 grams of ecstasy and methylamphetamine. In the second, the sentences included a fixed term of two years for the supply of 39 ecstasy tablets and three years, including a non-parole period of 18 months, for the supply of 24 grams of methylamphetamine. The report does not indicate the degree of accumulation. These cases demonstrate that the sentences imposed in this case were well within King DCJ's sentencing discretion, a view I had formed in any event. 16During the hearing of the appeal, counsel for the Appellant submitted that one basis upon which the appeal should be allowed is that the sentences on the second and third charges were disproportionate when compared with the sentence imposed on the first charge. There are a number of answers to this submission. Firstly, there is no principle of parity applying between the sentences imposed at the one time on one particular offender and counsel was not able to refer the Court to any authority which supported his submission. A second answer is that at the time of the second and third offences not only was the applicant on bail but his arrest in respect of the first offence must have put him on full notice as to the illegality of the conduct IN which he was disposed to indulge. His second and third offences were a contumelious breach of the law. 17Another matter which should be noted is the fact of the concurrency of the sentences imposed on the third offence with the sentence imposed on the second. Prima facie that concurrency was unjustified and certainly if I had been disposed to interfere with the sentence imposed on the second offence I would have taken the view that there should be some accumulation by reason of the commission of the third offence. 18It follows that, while I would grant leave to appeal, the appeal should be dismissed. 19MACFARLAN JA: I agree. 20GARLING J: I also agree. 21MACFARLAN JA: The orders of the Court are leave to appeal is granted. The appeal is dismissed. 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. Decision last updated: 22 February 2012