Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Lawson v R [2012] NSWCCA 56 Hearing dates: 30 March 2012 Decision date: 05 April 2012 Before: Beazley JA Harrison J McCallum J Decision: Leave to appeal granted Appeal dismissed Catchwords: CRIMINAL LAW - sentence - whether the sentencing judge erred by failing to take into consideration statistics from the Judicial Commission - whether the judge erred in the assessment of the objective seriousness of the offences - whether the judge failed to take into account relevant mitigating factors - appeal dismissed. Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Drug Misuse & Trafficking Act 1985 Weapons Prohibition Act 1988 Cases Cited: House v The King (1936) 55 CLR 499 Louizos v R, R v Louizos [2009] NSWCCA 71 Muldrock v The Queen [2011] HCA 39 MLP v R (2006) 164 A Crim R 93 R v MacDonnell (2002) 128 A Crim R 44 Category: Principal judgment Parties: Randy Charles Lawson (Applicant) Crown (Respondent) Representation: Counsel: L Rowan (Applicant) P G Ingram SC (Crown) Solicitors: John Anthony Solicitors (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2009/62839 Publication restriction: None Decision under appeal Date of Decision: 2010-09-23 00:00:00 Before: Coolahan DCJ File Number(s): 2009/62839 Judgment 1BEAZLEY JA: I agree with McCallum J. 2HARRISON J: I agree with McCallum J. 3McCALLUM J: The applicant seeks leave to appeal against the sentences imposed upon him in the District Court after he pleaded guilty to two offences of supplying not less than a commercial quantity of a prohibited drug contrary to s 25(2) of the Drug Misuse & Trafficking Act 1985. The charges related to a quantity of methylamphetamine (907.5 grams) and a quantity of ecstasy (128 grams) respectively. The maximum penalty for each offence was imprisonment for 20 years. The offences carried a standard non-parole period of ten years under division 1A of part 4 of the Crimes (Sentencing Procedure) Act 1999. 4On 23 September 2010 Coolahan DCJ sentenced the applicant as follows: On count one (supply of methylamphetamine) to a term of imprisonment with a non-parole period of five and a half years and a balance of term of three and a half years. On count two (supply of ecstasy) to a term of imprisonment with a non-parole period of three and a half years and a balance of term of one and a half years. 5In passing sentence on count one, the judge took two additional offences into account, which were the subject of a Form 1, pursuant to s 33 of the Crimes (Sentencing Procedure) Act. They were an offence of possession of a prohibited weapon (a butterfly knife) contrary to s 7(1) of the Weapons Prohibition Act 1988 and an offence of dealing with property ($8,020 in cash) reasonably suspected as being the proceeds of crime contrary to s 193C(1) of the Crimes Act 1900. 6The sentences were backdated to the date of the applicant's arrest and were wholly concurrent. 7At the time the offences were committed, the applicant was serving a sentence by way of home detention for an offence of driving whilst disqualified. The imposition of that sentence followed a long string of similar offences. In entering into an agreement to serve that sentence by way of home detention, the applicant undertook to accept home visits by a supervisor at any time and to submit to searches as directed. The drugs were found in the applicant's home during a search conducted in accordance with that agreement. 8The methylamphetamine was found in a small freezer in the wardrobe of the applicant's bedroom. The drug was contained in 37 resealable plastic bags each containing approximately an ounce of powder. The supervisor conducting the search then called for assistance from police who conducted a more extensive search of the premises. Police found $8020 in cash hidden between the cushions of a lounge chair. That was the basis of the first offence on the Form 1. They also found two mobile telephones, two sets of electronic scales and two packets of unused plastic resealable bags. 9Within the roof cavity of the house, police found the ecstasy consisting of a large number of purple tablets in a single, vacuum-sealed plastic bag. Another bag of orange-coloured pills was located but, upon analysis, they proved not to be a prohibited drug. An examination of the mobile telephones revealed a number of text messages to and from the applicant disclosing dealings in drugs. 10The applicant's grounds of appeal were drawn, and the written submissions prepared, before the publication of the decision of the High Court in Muldrock v The Queen [2011] HCA 39. Counsel for the applicant acknowledged that the grounds of appeal relied upon by the applicant were in some respects overtaken by that decision. 11The first ground of appeal is: His Honour erred in constructing both sentences, taking into consideration part 4, division 1A and s 21A Crimes (Sentencing Procedure) Act together with the common law. 12The burden of the submission put in support of that ground was that the learned sentencing judge failed to take into consideration statistics from the Judicial Commission "as well as the emerging pattern in the range of sentences imposed in matters involving similar conduct". 13A failure to have regard to the statistics published by the Judicial Commission does not in itself amount to error in the sentencing process. Authority in support of the applicant's submission was said to be found in the judgment of Kirby J in MLP v R (2006) 164 A Crim R 93 at [33] to [34]. The applicant noted that his Honour's judgment in that case had subsequently been described by this Court as a "helpful summary of steps to be taken" by a sentencing judge in considering the application of a standard non-parole period: see Louizos v R, R v Louizos [2009] NSWCCA 71 at [97]. Those decisions must now be read with caution in light of the principles stated by the High Court in Muldrock. 14In any event, the decision in MLP does not suggest that the statistics kept by the Judicial Commission are a mandatory consideration when passing sentence. What Kirby J said at [33] in MLP was that the judge must at some point address a number of issues including: First, what term of imprisonment is appropriate having regard to the offence and the circumstances of the offender? Guidance may be provided by the maximum penalty, statistics from the Judicial Commission and the collective wisdom emerging from a range of sentences involving similar conduct. 15As noted on behalf of the Crown, the statistics for the offences in question were not tendered or provided to the judge at the proceedings on sentence and there is no suggestion that his Honour was invited to consider such statistics. To the extent that statistics were referred to in the submissions on appeal, they did not demonstrate that the sentences imposed were outside the statistical range. 16I am not satisfied that any error is established on the basis of ground one. 17Ground two is: His Honour erred in his assessment of the objective seriousness of the offences. 18The judge said: It was the submission of Mr Kidd [the Crown] that the offence involving the supply of methylamphetamine was at the mid level of objective seriousness or just above and that the offence involving the supply of the MDMA was just below the mid level. Mr Booth [for the offender] agreed with those assessments. So far as the objective seriousness of the offences are concerned, I also agree with those assessments. I am of the view that the supply of methylamphetamine was at the mid level of seriousness or thereabouts. As I say, a large amount was involved, close to the large commercial quantity. It is obvious that the offender was actively dealing in this drug. The drug was not being dealt with at street level amounts but was packaged in one ounce packages and, for these reasons, I have come to the conclusion that that offence falls to be determined at the mid level of seriousness. So far as the other offence is concerned, the amount of drug was much lower, there was no actual packaging, it is not quite clear what amounts were being supplied and, for those reasons, I would have thought that that offence fell to be determined just below the midpoint of seriousness. [Remarks on sentence, p 11] 19It should be noted that, following the decision of the High Court in Muldrock, there is no requirement for the Court to proceed to an assessment of whether an offence is within the mid-range of objective seriousness: at [25]. It may nonetheless be accepted that it remains important for the Court to assess the objective criminality of the offence. 20The applicant submitted that the learned sentencing judge erred in using the amount of the drug involved and the manner of packaging as the principal considerations on the question of the objective seriousness of the offences, citing R v MacDonnell (2002) 128 A Crim R 44. 21I do not think the judge fell into error in that respect. In MacDonnell, Wood CJ at CL accepted that the criminality of the offending cannot be determined merely by reference to the quantity of the drugs in question: at [33], Sully and Dowd JJ agreeing at [60] and [61] respectively. In the present case, the judge considered the quantity of the drug and the way in which it was packaged as factors pointing to the kind of dealing in which the applicant was engaged. His Honour said: Whilst there is no evidence and nor could it be said that the offender was a Mr Big or principal in the drug dealing milieu, in my view he was a mid level drug dealer who was supplying drugs in significantly larger portions than street deals and, in my view, substantially for profit. 22His Honour's reasoning on that issue was well open on the evidence before him. The offender had acknowledged in cross-examination that he was "dealing in large amounts". His plea of guilty to the offence of dealing with the $8,020 in cash reasonably suspected as being the proceeds of crime was significant in that context. I am not persuaded that the judge's remarks on sentence reveal any error in the assessment of the level of criminality involved in the offences. 23Ground three is: His Honour failed to take into consideration the relevant mitigating factors required pursuant to s 21A(1); s 21A(3); s 54B in addition to the applicant's mental state. 24The applicant submitted that the learned sentencing judge did not consider any mitigating circumstances of the applicant when determining the appropriate non-parole period. Two mitigating factors listed in s 21A(3) of the Crimes (Sentencing Procedure) Act were identified as having been erroneously overlooked. Separately, the applicant submitted that the sentencing judge did not take into account the applicant's mental health. 25The first matter relied upon under s 21A(3) of the Crimes (Sentencing Procedure) Act was the submission that the sentencing judge failed to take into consideration evidence as to the prospects of the applicant's future rehabilitation. 26The applicant accepted that the judge considered the issue of rehabilitation in the context of finding special circumstances such as to warrant a departure from the statutory ratio of the non-parole period to the balance of term prescribed in s 44(2) of the Crimes (Sentencing Procedure) Act. The judge said: So far as mitigating factors are concerned, I cannot say that the offender has good prospects for rehabilitation but I accept that he has a need in this regard. 27In those circumstances, as noted on behalf of the Crown, this ground cannot succeed unless the applicant demonstrates that the judge fell into error of the kind identified in House v The King (1936) 55 CLR 499. 28In my view, it was open to the sentencing judge to decline to make the finding that the applicant had good prospects of rehabilitation. There was evidence before the judge that the applicant had an extended history of using illicit drugs and that a previous attempt at rehabilitation, whilst helpful in the short term, had ultimately proved unsuccessful. In cross-examination, the applicant had frankly acknowledged that he could give no assurance that upon his release he would not have another relapse into illicit drug use. 29The second matter relied upon under s 21A(3) of the Crimes (Sentencing Procedure) Act was remorse. 30As with the first factor, this aspect of ground three overlooked the need to demonstrate error of the kind identified in House v The King. The applicant acknowledged that, in accordance with s 21A(3)(i), remorse may only be taken into account as a mitigating factor if the offender has provided evidence that he or she has accepted responsibility for his or her actions and the offender has acknowledged any injury, loss or damage caused by his or her actions and made reparation for such injury, loss or damage. 31It was submitted on behalf of the applicant that his evidence at the proceedings on sentence, taken together with the report of the psychologist, Dr Kate Seidler, "met both limbs required" and that remorse should accordingly have been taken into consideration in the formulation of the sentence. However, whether or not a different approach could have been taken to the issue of remorse, it cannot be said that the approach taken by the sentencing judge was not open. As noted on behalf of the Crown, the psychologist's report revealed that the applicant's regret for his behaviour was in large part self-focussed. Separately, the judge doubted the applicant's evidence as to his role in the offences, describing it as "totally unconvincing". In my view, it was plainly open to the judge to decline to make a finding in favour of the applicant on the issue of remorse. 32The final factor relied upon by the applicant as having been overlooked by the sentencing judge was the applicant's mental health. The uncontested evidence at the proceedings on sentence was that, as a child, the applicant was subjected to prolonged and sustained sexual abuse at the hands of his stepfather. Most troubling was his evidence that he had first been introduced to the use of cannabis by that man as a tool of seduction or form of bribery for the applicant's silence. 33The history of those events, recited at length in the psychologist's report, is extremely sad. Assuming the allegations are true, which was not doubted at the proceedings on sentence, I have no doubt that those events would have had an extremely detrimental impact on the applicant and, in particular, the development of his dependence on illicit drugs. 34It is trite to observe, however, that the role of this Court is confined to correcting appellable error. 35The applicant submitted that it was not "apparent" that any subjective element of the psychologist's report was taken into account by the judge when formulating the non-parole periods. Counsel for the applicant submitted that "there is a nexus, at least in part, between the mental condition and the offending behaviour". 36The sentencing judge expressly referred to the psychologist's report and rejected the existence of any significant causal relationship between the history of sexual abuse and the offences. The judge said: The reality is whilst I am prepared to accept that the offender was sexually abused at a young age and whilst this may have, in turn, led to his use of an addiction to illegal substances, I am not persuaded that it had any real effect on his deciding to sell these substances for profit and nor for him to be involved at such a significant level as to be supplying commercial quantities of the drug in the amounts which were found packaged. [Remarks on sentence, p 7.] 37Whilst it may be acknowledged that others may have reached a different conclusion on that issue, it cannot be said that his Honour's finding was not open on the evidence. Whilst his Honour's reasons for reaching that conclusion were stated briefly, I am not persuaded that his Honour failed to have due regard to the applicant's mental state in his assessment of the objective seriousness of the offence. 38Separately, the applicant submitted that his mental state warranted a shorter non-parole period to enable issues of rehabilitation and mental health to be adequately addressed. 39As submitted on behalf of the Crown, any departure from the statutory proportion of the non-parole period to the balance of term is a matter of discretion. The judge made a finding of special circumstances warranting some departure from the statutory ratio. The applicant's submission is that the degree of departure should have been greater. 40In that context, it must be observed that the structure of the sentences imposed will allow the applicant a period of two and a half years supervision on parole. That is a significant period. It was open to the judge to conclude that no longer period of supervision was warranted. I am not persuaded that any error is established in that respect. 41The orders I propose are that leave to appeal be granted but that the appeal be 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: 05 April 2012