Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v Wicks [2012] NSWCCA 208 Hearing dates: 7 August 2012 Decision date: 20 September 2012 Before: McClellan CJ at CL at [1] R A Hulme J at [2] Schmidt J at [48] Decision: 1. Leave to appeal granted 2. Appeal dismissed Catchwords: CRIMINAL LAW - appeal and new trial - appeal against sentence - grounds for interference - parity between co-offenders - difference in sentences insignificant Legislation Cited: Drugs Misuse and Trafficking Act 1985 Cases Cited: Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462 Category: Principal judgment Parties: Brett Andrew Wicks (Applicant) Regina (Respondent) Representation: Counsel: Ms C Loukas (Applicant) Mr E Balodis (Respondent) Solicitors: Legal Aid NSW Solicitor for Public Prosecutions File Number(s): 2009/323731 Decision under appeal Date of Decision: 2011-04-21 00:00:00 Before: Coolahan DCJ File Number(s): 2009/323731 Judgment 1McCLELLAN CJ at CL: I agree with R A Hulme J. 2R A HULME J: Brett Wicks was sentenced for drug supply offences to a total of three years and three months imprisonment. His brother Danny Wicks was also sentenced for drug supply offences but received a total sentence of three years imprisonment. Brett Wicks complains in this Court that there is an erroneous disparity between his sentence and that of his brother. Certainly the sentence imposed upon Brett Wicks was longer than the sentence imposed upon Danny Wicks. But in my view the disparity is not such that it calls for the intervention of this Court. Facts 3Brett Wicks pleaded guilty to two charges that he supplied a prohibited drug, namely methylamphetamine. The first offence occurred between 3 and 9 November 2009 at Grafton and the second occurred on 20 November 2009 at Charlestown. These are offences against s 25(1) of the Drug Misuse and Trafficking Act 1985 for which there is prescribed a maximum penalty of imprisonment of 15 years and/or a fine of 2000 penalty units. 4Four further drug supply offences listed on a Form 1 document were taken into account in sentencing for the second offence. The drugs in these offences were either methylamphetamine or amphetamine and the supplies occurred on 13 August, 29 August and twice on 5 September 2009. 5A statement of agreed facts before the sentencing judge disclosed that a police strike force had been investigating the supply of drugs in the Grafton area. Warrants were obtained to intercept the telephone services used by the Wicks brothers. Relevant conversations were intercepted between the Wicks brothers, Brett Wicks' wife Tristen Davenport, Christopher Jones and Steven Stefanovski. It was alleged that Brett Wicks was involved in the supply of drugs to his wife and to Christopher Jones for on supply in the Grafton area. It was also alleged that he was a party to a joint criminal enterprise with Steven Stefanovski in supplying drugs. 6In relation to the first offence (at Grafton), the statement of facts details a series of text messages and telephone conversations between 3 and 9 November 2009 involving the Wicks brothers and Ms Davenport. Ultimately it states "The offender admits that he took part in the supply of one ounce of methylamphetamine, approximately 28 grams, with Danny Wicks." But it does not explain how it was that the applicant did that. In written submissions in this Court, the Crown suggested that Brett and Danny Wicks agreed as part of a joint criminal enterprise that Brett Wicks receive or possess the drug for supply. The written submissions for the applicant asserted that he arranged to obtain the drug from his brother. 7The second offence (at Charlestown) occurred on 20 November 2009 and was the subject of a series of communications over the preceding days. The communications are set out in the statement of agreed facts from which it can be concluded that the ultimate supplier of the drugs was Stefanovski, the ultimate purchaser was Jones, and that the Wicks brothers were intermediaries in arranging the transaction. The amount supplied was 26.9 grams of methylamphetamine with a purity of 10.5 per cent. 8In relation to the Form 1 offences, the intercepted communications indicate that Brett Wicks supplied small quantities of a drug to three different people on three different days. On the last day there were two supplies to the same person at different times. Subjective matters 9Brett Wicks was arrested on the 25 January 2010. He entered pleas of guilty in the Local Court on 18 November 2010 and was committed for sentence to the District Court. He was sentenced by his Honour Judge Coolahan on 21 April 2011. 10The judge noted that Brett Wicks was aged 22 at the time of the offences and was 24 when he stood for sentence. He and his co-offender, Ms Davenport, were married and had the care of 3 young children. The applicant had been educated to Year 10 level before doing a trade course at TAFE. He had been in continuous employment since and was described by his current employer as "a valued employee". 11The applicant told the author of a Pre-Sentence Report that he had used alcohol and cannabis to excess in his early life but that his main problem was with amphetamines. He told the author that he had not used any illicit drugs since his arrest and had lost the desire to do so. 12The applicant gave evidence in the sentence proceedings that his amphetamine habit had developed to the point where he was using five to six grams per day. He said, "it was a lot cheaper to buy in bulk". He claimed that he was not making a profit from drug supply but was "turning the drug over for his own use". In his remarks on sentence, the judge recounted further aspects of the evidence on this topic before announcing that the applicant was "completely unconvincing". He was not satisfied that the applicant was addicted to amphetamines at all. Whilst his Honour accepted that the applicant was "probably a recreational user", he did not accept that he was an addict who dealt solely to fund his own habit. 13The judge sentenced Ms Davenport at the same time as the applicant. He referred to a letter from her parents which had been tendered. It included that they had observed significant change in both offenders over the preceding 15 months. It was reported that the offenders had said that they were very remorseful for their actions and for the harm that they had caused to the community, family and friends. The judge accepted the contents of this letter but said that he suspected the offenders' remorse was a result of the circumstance they then found themselves in. 14The judge also took note of a number of character references that had been tendered "with all referees speaking highly of [the offenders] and suggesting that the commission of these offences was out of character". The judge accepted this evidence and concluded that, aside from the commission of the offences, the applicant and Ms Davenport had maintained a lawful lifestyle and were well regarded in their community. He also accepted that they appeared to have been good parents and otherwise good citizens. 15The judge referred to the applicant having no record of previous convictions and being otherwise of good character. He was unable to say that the applicant was unlikely to re-offend or that he had reasonable prospects of rehabilitation. He explained that there were aspects of his evidence that he could not accept. And for this reason his Honour found it difficult to reach positive conclusions, even on the probabilities, about those issues. The judge also indicated that whilst he was satisfied that the applicant was remorseful, he thought that this had more to do with being caught and the consequences of that for himself, his family and his reputation in the local community. His Honour doubted that the applicant had any real insight into the harm that hard drugs cause in the community. 16The judge indicated that he would reduce the sentences that he would have otherwise imposed by 25 per cent to reflect the utilitarian value of the applicant's pleas of guilty entered in the Local Court. 17Finally the judge announced that he found special circumstances for enlarging the parole period at the expense of the non-parole period. The basis of the finding was that "this will be his first time in custody and he is still a relatively young man. He also has the responsibility of caring for children upon his release." 18I have mentioned that the total sentence imposed was one of 3 years 3 months with a non-parole component of 1 year 9 months. This was achieved by ordering a degree of partial accumulation of the two sentences. The sentence for the first offence was a fixed term of imprisonment for 15 months, to date from 31 March 2011. The sentence for the second offence, taking into account the offences listed in the Form 1, was one of 3 years with a non-parole period of 18 months, to date from 30 June 2011. The applicant will be released on parole on 29 December 2012. Sentencing of Danny Wicks 19Danny Wicks was sentenced by her Honour Judge Syme on 30 September 2011. He had pleaded guilty to three charges of supplying a prohibited drug and asked that four further offences listed on a Form 1 document be taken into account. Two of the drug supply charges were in identical terms to those for which the applicant was sentenced and the statement of facts set out the details of those offences in identical terms. The third offence was one of supplying ecstasy tablets. The statement of agreed facts refers to various telephone conversations and a text message relating to that offence. It asserts that Danny Wicks admitted he was a party to a joint criminal enterprise with Stefanovski in supplying 150 ecstasy pills to a man called Houston. 20The Form 1 offences were described by her Honour as including "[one] similarly serious supply as the pleaded offences, one a less serious supply and two possession matter". She summarised the facts in relation to those matters as follows: "In relation to the Form 1 matters, in brief between 20 and 21 August 2009 the offender supplied to his brother, Jones and another a quantity of about 1 ounce or about 26 or 28 grams of methylamphetamine. During the car search that occurred on 20 November 2009 in the offender's car 1.03 grams of cocaine and 0.5 grams of methylamphetamine was found in separate compartments and in relation to the third amount of supply, it relates to the involvement of this offender in purchasing through another a small quantity, about 30 ecstasy pills, for about $600. It is agreed in relation to this amount that the purpose was to supply to others". 21Referring to all of the offences, the judge said that they represented "a systematic supply of some drugs including ecstasy and methylamphetamine over a period of around four months", to an unknown number of people, in quantities representing significantly more than what is defined as the trafficable amount. 22In considering the seriousness of the offences the judge referred to there having been "a joint criminal enterprise between [Danny] Wicks and Mr Stefanovski on the one hand and, on the other hand, others such as [Brett Wicks] and other persons who were involved". She referred to Danny Wicks stating that he was "acting as a go-between" and she said that the facts supported that proposition. She accepted that Stefanovski and Danny Wicks acted in a partnership in the enterprise. 23It was observed that there was no evidence of the profit, if any, that Danny Wicks made from the venture. She said his organisational role was to arrange, and in some cases collect, money and/or drugs. She described him as having acted as a "conduit" and concluded that he was "a middle level cog". Her Honour accepted that Danny Wicks' involvement in the supply began as a result of his own involvement with drug use. She said, "He developed ... a position of invincibility in the community and became at the end of 2009 part of a hard partying scene. His fall from grace has been dramatic." 24The evidence before her Honour was to the effect that Danny Wicks was an "occasional user of various drugs" but she also observed that there was no evidence that he had supplied the drugs to obtain a financial benefit. 25Subjective matters taken into account by her Honour included: * No previous convictions. * Prior good character. * An assessment by a psychologist of a "low to moderate risk of re-offending". * Family support. * Motivation for employment. * Motivation to remain free from substance abuse. * Early acceptance of responsibility. * Expressions of regret. * Extra curial punishment (see further below). * Good prospect of rehabilitation. 26Her Honour also took into account that Danny Wicks had pleaded guilty at an early opportunity and she allowed for the utilitarian value of his pleas by reducing his sentences by 25 per cent. Another matter that her Honour took into account was the delay in sentencing, although she observed that it would not affect the sentence "to any great degree". 27On the issue of extra curial punishment, her Honour noted that Danny Wicks had been a prominent footballer who lost a contract with the Newcastle Knights Rugby League Club. There was evidence of an estimated potential loss of income in excess of $1 million. But her Honour noted, that as this was a result of breaching a condition of his contract in relation to standards of behaviour; she did not regard it as a consequence of the offence. Nonetheless, it remained a matter that she took into account. Although she said that it was "not a matter that weighs heavily on my mind", it was still one of the range of matters that she took into account in finding special circumstances. 28Towards the end of her sentencing remarks her Honour referred to the issue of parity which she said was "a very important issue". She referred to aspects of the sentencing of Christopher Jones who she said received a sentence of 3 years with a non-parole period of 18 months for supplying 26.9 grams of methylamphetamine, with an offence of dealing with the proceeds of crime of some $1200 taken into account. She observed that Jones was a first offender and had "substantially rehabilitated himself while he was in pre sentence custody". This was "a significant sentencing consideration". 29Her Honour also took into account the sentencing of Brett Wicks. She noted the details of his offences including those on the Form 1. She noted that he was also a young man of only 24 years of age with no prior offences, but also that he was found to have "limited prospects of rehabilitation, with little contrition, and no finding of vulnerability due to claimed addiction or other matters, which in some circumstances, as I have noted, may assist." 30After referring to these matters her Honour said that Brett Wicks had been sentenced "to a non-parole period of 18 months with a similar additional term." As noted earlier, the sentence was in fact a non-parole period of 21 months with an additional term of 18 months. Evidence placed before this Court on the hearing of the application indicated that her Honour had received the correct information as to the sentences imposed upon Brett Wicks. But the manner in which this information was presented was not easy to read and that is perhaps the explanation for her Honour's erroneous description of the sentence. 31Her Honour also made passing reference to the sentencing of Ms Davenport. Given that she received a suspended term of imprisonment and there is no issue raised on the application concerning parity in relation to her sentence, nothing more needs to be said about it. 32Ultimately the sentence imposed upon Danny Wicks comprised 3 sentences each of 3 years with a non-parole period of 18 months all ordered to be served concurrently and to date from the day of sentencing, 30 September 2011. Ground of appeal: There is erroneous disparity between the sentence of the applicant and the sentence of the co-offender, Danny Wicks 33The principle of parity in sentencing participants in the same crime, or criminal enterprise, is raised by this ground. The argument advanced in support of the ground does not require any discussion of the principle beyond observing that the most recent and authoritative words on the subject may be found in Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462 at [28]-[34]; [105]-[106]. 34It was generally submitted by Ms Loukas on behalf of the applicant that he "would suffer a sense of grievance, and that grievance would be an objectively justifiable one" because of the lesser sentence imposed upon Danny Wicks. The following similarities and differences in the two cases were identified. (a)Both were involved in the same criminal enterprise. (b)Brett Wicks was sentenced in relation to two charges with a further four charges on a Form 1 whereas Danny Wicks was sentenced in relation to three charges with four further charges on a Form 1. (c)A finding was made that Danny Wicks was "a middle level cog" whereas no such finding was made in respect of Brett Wicks. (d)The additional charge for which Danny Wicks was sentenced involved the supply of 150 ecstasy tablets. (e)Both brothers received a 25 per cent reduction of their sentences for their pleas of guilty, had no previous convictions, and were of prior good character. (f)A finding of special circumstances was made in each case. (g)Both were found to be "trafficking to a substantial degree". (h)Both were "recreational users of drugs", with his Honour Judge Coolahan not being satisfied that Brett Wicks was an addict. (i)Both had expressed remorse but had no insight into the harm hard drugs caused in the community. (j)There were no aggravating features in either case. (k)Both had family support and good character references. (l)Brett Wicks on the one had did not have the advantage of a finding of reasonable prospects of rehabilitation whereas Danny Wicks was accepted to be of low to moderate risk of re-offending and there was a finding of good prospects of rehabilitation announced in the context of her Honour finding special circumstances. 35It was submitted that the sentences imposed upon Danny Wicks were not manifestly inadequate and so there was no need for this Court to show restraint in reducing the sentences imposed upon Brett Wicks for that reason. In other words, this was not a case where there was error inherent in the sentence under comparison and a reduction of the applicant's sentence would be to compound such an error. 36A further difference between the two cases, which was not mentioned in the written submissions but acknowledged at the hearing, was the delay in sentencing. Her Honour Judge Syme took this into account when sentencing Danny Wicks, albeit she said that it would not affect the sentence "to any great degree". 37The argument presented on behalf of the applicant can be summarised as follows. Brett Wicks has a legitimate sense of grievance because he received a greater sentence than did Danny Wicks. Danny Wicks' objective criminality overall was greater than that of Brett Wicks. It was acknowledged that Danny Wicks had some subjective matters taken into account in his favour that were unavailable to the applicant. But when balancing the two cases, there was no justification for a longer sentence to be imposed in Brett Wicks' case. Consideration 38I will first deal with the issue concerning the mistake made by her Honour Judge Syme in her recitation of the total sentence imposed upon the applicant when sentencing Danny Wicks. There is a question as to whether any sense of grievance that the applicant might have could be regarded as a legitimate one if the difference in the two sentences was attributable to her Honour's inadvertent mistake. In other words, if it was the case that her Honour sought to impose the same total sentence upon Danny Wicks as she thought had been imposed upon the applicant, the question of the legitimacy of any sense of grievance held by the applicant would need to be determined. Determination of that question is, in my view, unnecessary because I do not believe that the sentence imposed upon Danny Wicks was the product of mistake. 39Her Honour referred, mistakenly, to the sentence imposed upon Brett Wicks as being 3 years. But she also referred, mistakenly, to the sentence imposed upon Christopher Jones as being one of 3 years with a non-parole period of 18 months. The papers before her Honour indicated that for Mr Jones' supply offence he was, in fact, sentenced to 2 years 3 months with a non-parole period of 9 months and there was a wholly concurrent fixed term of 9 months for the offence of dealing with the proceeds of crime. 40After the sentences for Danny Wicks had been announced, his counsel informed her Honour that the non-parole period imposed upon Mr Jones "was nine months not six". Why he said, "not six" when she had referred to it being 18 months is not clear. In any event, her Honour remarked that "[Jones] was a lesser offender". The fact remains that she thought that his total term was one of 3 years, coincidentally the same as what she thought the total term imposed upon Brett Wicks had been, and the same total term that she imposed upon Danny Wicks. 41This leads me to conclude that her Honour was not seeking to impose a sentence upon Danny Wicks by reference to sentences which she thought had been imposed upon Jones and Brett Wicks, solely by a comparison to the objective gravity of their offending. If that had been the case, one would expect she would have imposed a greater sentence upon Danny Wicks than the sentence she thought was imposed upon Jones because she considered Jones to be "a lesser offender". 42Clearly, her Honour had regard to the sentences imposed upon the others and used them in the nature of benchmarks. It is equally clear that she took into account all the circumstances of the offences, and the offender, when arriving at the sentence she imposed upon Danny Wicks. In doing so she ensured that it remained proportional to the sentences imposed upon the others. 43I am of the view that, even if her Honour had correctly understood that Brett Wicks received a total sentence of 3 years 3 months, the sentence imposed upon Danny Wicks would still have been one of 3 years. 44The more significant consideration in relation to the ground of appeal is that there were differences in the findings made about the two brothers' circumstances that explain the difference in the terms of their sentences. Rehabilitation prospects, delay, and the "extra curial punishment" issue stood to the advantage of Danny Wicks. His criminality, on the other hand, was greater because he stood for sentence for three substantive supply offences as opposed to the two for which the applicant was sentenced. 45Reliance was placed upon the finding by Syme DCJ that Danny Wicks was "a middle level cog" in the hierarchy of this drug supply network. No such finding was made in relation to the applicant. That, however, does not mean that he was at a lesser level. On the facts that were before the District Court, their roles and responsibilities were incapable of much distinction at all. 46There was no justification for any significant difference in the sentences imposed upon the two brothers. But having regard to all of the objective and subjective circumstances of the two cases, I do not believe that 3 months is a significant difference. It is certainly not of sufficient significance to warrant the intervention of this Court. Orders 47The ground of appeal was arguable, particularly given the errors made by her Honour Judge Syme. However, I propose the following orders: 1. Leave to appeal granted 2. Appeal dismissed. 48SCHMIDT J: I agree with R A Hulme J. ********** 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: 20 September 2012