Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Perdija v R [2012] NSWCCA 244 Hearing dates: 20 July 2012 Decision date: 23 November 2012 Before: Allsop P at [1] Davies J at [1] Campbell J at [1] Decision: 1.Grant leave to appeal. 2. Allow the appeal against sentence. 3. Set aside the sentence for the offence in count 4 imposed by the District Court on 24 May 2011 and in lieu thereof sentence the applicant (taking into account the 13 offences on a Form 1) to imprisonment for a non-parole period of two years and nine months commencing 6 February 2011 and expiring 5 November 2013 with a balance of term of two years and nine months expiring 5 August 2016. Catchwords: SENTENCING - four counts of supplying prohibited drug - six year non-parole period - first offence - applicant with good prospects of rehabilitation - totality - sentence manifestly excessive Legislation Cited: Drug Misuse and Trafficking Act 1985 (NSW), s 10(1), s 25(2) Poisons and Therapeutic Goods Act 1966 (NSW), s 16(1) Cases Cited: Eedens v R [2009] NSWCCA 254 Herbert v R [2003] WASCA 61; 27 WAR 330 Muldrock v R [2011] HCA 39; 244 CLR 120 R v Clinch (1994) 72 A Crim R 301 R v Nassif [2005] NSWCCA 38 Vu v R [2006] NSWCCA 188 Wong v R [2001] HCA 64; 207 CLR 584 Category: Principal judgment Parties: Matthew Perdija (Applicant) Regina (Respondent) Representation: P Boulten SC (Applicant) P Ingram SC (Respondent) Bannisters Lawyers (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2009/79671 Decision under appeal Date of Decision: 2012-11-23 00:00:00 Before: Solomon DCJ File Number(s): 2009/79671 Judgment 1THE COURT: The applicant seeks leave to appeal against sentence. On 24 May 2011 he was sentenced by a Judge of the District Court to nine years and nine months imprisonment after pleading guilty to four counts of supplying a commercial quantity of a prohibited drug, namely 3,4 methylenedioxymethamphetamine (or MDMA) contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). A commercial quantity of MDMA is between 125 and 499 grams. The maximum penalty for each offence is 20 years imprisonment. The standard non-parole period is 10 years. The offences 2The offences arose out of a series of drug sales and proposed sales by the applicant between June and August 2009. Those transactions were entered with an undercover police officer and during the relevant period the applicant was subjected to physical and electronic surveillance by police, including the interception of telephone calls and text messages. 3The offence comprising count 1 on the indictment was the sale of 1,001 tablets found to contain MDMA with a purity of 11.5% and a net weight of 277.6 grams. On 25 June 2009, the applicant sold those tablets to an undercover officer for $10,500. 4Count 2 was a deemed supply of 1,000 tablets found to contain MDMA with a purity of 16% and a net weight of 294.9 grams. On 9 July 2009, after offering or agreeing to supply those tablets to an undercover officer, the applicant met with a co-offender. That co-offender then contacted another co-offender, whose car was intercepted by police and found to contain the 1,000 tablets. 5Count 3 was another sale of 1,000 tablets, containing MDMA of 25% purity and a net weight of 214.9 grams. On 21 July 2009, after agreeing to sell these tablets to an undercover officer, the applicant obtained them from a co-offender and supplied them to the undercover officer for $11,500. 6Count 4 related to a deemed supply of 2,000 tablets. This was constituted by events on 5 August 2009, being a request for 3,000 tablets by an undercover officer, in response to which the applicant offered to supply 2,000. No tablets were in fact supplied as the applicant was arrested the next day. The sentences imposed 7The following sentences were imposed: On count 1 - a non-parole period of 2 years and 9 months commencing 6 August 2009 and expiring 5 May 2012, with a balance of term of 2 years and 9 months expiring 5 February 2015; On count 2 - a non-parole period of 2 years and 9 months commencing 6 May 2010 and expiring 5 February 2013, with a balance of term of 2 years and 9 months expiring 5 November 2015; On count 3 - a non-parole period of 2 years and 9 months commencing 6 November 2010 and expiring 5 August 2013, with a balance of term of 2 years and 9 months expiring 5 May 2016; On count 4 (also taking into account 13 offences on a Form 1) - a non-parole period of 3 years and 9 months commencing 6 November 2011 and expiring 5 August 2015, with a balance of term of 3 years and 9 months expiring 5 May 2019. 8The aggregate sentence imposed was therefore a non-parole period of 6 years commencing 6 August 2009 and expiring 5 August 2015, with a balance of term of 3 years and 9 months expiring 5 May 2019. The approach of the sentencing judge 9After reciting the facts, the learned sentencing judge addressed himself first to the objective seriousness of the offending. His Honour considered the role of the applicant in the supply offences to be that of a facilitator who played a vital role in drug dealings with an undercover police officer. The applicant's activities led police to other participants in the drug trade. His Honour also noted the maximum penalty and standard non-parole period provided for such offences. 10His Honour accepted the evidence of the applicant that prior to committing the offences, he (the applicant) owed a drug debt of some $1,600 to his suppliers and that he earned $1,000 ($500 each time) from the two concluded sales of MDMA (counts 1 and 3). It was accepted that the offending was committed solely for financial gain. 11The learned sentencing judge also accepted the opinion of a psychologist, Mr Watson-Munro, which evidence indicated that the applicant's offending behaviour took place after he suffered a number of stressful life events which went untreated and led to the applicant developing a substance abuse disorder. His Honour also took into account the quantity and the purity of the drugs supplied. 12After considering these matters, the learned sentencing judge assessed the offences in counts 1-3 as lying towards the middle of the low range of objective seriousness. In relation to the offence in count 4, his Honour made an assessment that, because of the greater quantity of drugs supplied, namely 2,000 tablets, it lay towards the top of the low range of objective seriousness. 13In having regard to the objective seriousness of the offences, the learned sentencing judge said that the sentences to be imposed must contain strong elements of individual and general deterrence. 14Turning to subjective factors, his Honour took into account the applicant's age at the time of the offences (21 years), his lack of prior offending and his good character. He also noted that the applicant pleaded guilty at the earliest opportunity and applied a 25 per cent discount accordingly. 15His Honour considered evidence from the applicant, his mother and Mr Watson-Munro, and found the applicant to come from a good family background. He lived in the family home and shared a bedroom with his brother. He had played a substantial role in caring for his grandparents prior to their recent deaths. He had been in a steady relationship with his girlfriend for five years and she indicated her preparedness to continue that relationship through the applicant's period of incarceration. 16The applicant completed his Higher School Certificate in 2006 and had been in constant employment since leaving school. At the time of the offending he worked as a property manager with a real estate agent and was well regarded by his employer, as well as many in the community. He tendered 44 references at the sentencing and numerous supporters accompanied him to court for his appearances. The applicant had had a promising soccer career at the youth level until an injury at age 20. His injury caused him considerable depression and disappointment. 17The applicant was introduced to the drug ecstasy (as MDMA is commonly known) around the age of 18, at which time he also occasionally smoked cannabis. At some point he also took up cocaine and he told Mr Watson-Munro, the psychologist, that at the time of his offending he would consume four ecstasy tablets and half a gram of cocaine on a typical weekend. The learned sentencing judge accepted the opinion of Mr Watson-Munro that the applicant's drug use had significantly impaired his judgment by causing him paranoia, anxiety and depression. 18The sentencing judge noted that since his incarceration, the applicant had enrolled in the SMART rehabilitation programme. At the time of sentencing he worked full-time in the prison metal shop and had enrolled in a number of TAFE courses. The sentencing judge found that the applicant's offending was out of character and his Honour was satisfied that the applicant is unlikely to re-offend if he completes his rehabilitation. His Honour thought that the applicant was likely to respond well to rehabilitation given the steps he had already taken and his strong support network. He had also shown genuine contrition. 19The learned sentencing judge found special circumstances, namely the need for the applicant to undergo rehabilitation in the community and the fact that this was his first custodial sentence. Further, for reasons of totality, his Honour partially accumulated the sentences for the offences in counts 1-3, on which counts he also took into account the factor of parity with the applicant's co-offenders. 20The complaints on appeal primarily relate to his Honour's approach to count 4. In imposing that sentence, his Honour took into account 13 other offences contained on a Form 1. Five of those offences related to small quantities of MDMA, benzylpiperazine and cocaine which the applicant supplied by way of sample to the undercover officer before the larger supplies constituting the offences on the indictment were proceeded with. The other eight offences on the Form 1 related to small quantities of MDMA, benzylpiperazine, alprazolam, stanozolol, tamoxifen and testosterone which were found when police searched the applicant's home. These were charged as possession offences contrary to s 10(1) of the Drug Misuse and Trafficking Act or s 16(1) of the Poisons and Therapeutic Goods Act 1966 (NSW). 21The maximum penalty for each of the five supply offences on the Form 1 was 15 years imprisonment and/or a fine of $220,000. The maximum penalties for the eight possession offences ranged from 6 months to two years imprisonment and/or a fine of $2,200. Grounds of appeal and submissions thereon Ground 1 22Ground 1 is that the sentencing judge erred in his assessment of the objective seriousness of count 4 on the indictment. In this respect, senior counsel for the applicant noted that the charge that became count 4 on the indictment was initially an additional charge on the Form 1. The transfer of that charge from the Form 1 to the indictment was a step precipitated by the sentencing judge at a point during the proceedings below. His Honour indicated at the sentencing hearing that he was not comfortable with the presence on the Form 1 of an offence against s 25(2), which carries a standard non-parole period. Referring to Eedens v R [2009] NSWCCA 254, his Honour thought that such a course might be seen as defeating the purpose of the standard non-parole period legislation. 23No complaint was made on appeal about the change, but senior counsel for the applicant began his argument by submitting that the fact that count 4 was initially on the Form 1 is "at least some indication that the objective seriousness of that charge was not as high as his Honour ultimately found it to be." 24As has already been noted, the sentencing judge found count 4 to lie towards the top of the low range of objective seriousness, as opposed to counts 1-3, which were toward the middle of the low range. The distinction that his Honour drew was grounded in the greater quantity (2,000) of pills in count 4, whereas counts 1-3 were each charges of 1,000 pills being supplied. 25Senior counsel for the applicant submitted that this distinction was insupportable. First, he argued that while 2,000 pills is double 1,000 pills, nevertheless the two quantities are still "of the same order of magnitude" in the sense that there was no escalation into the tens of thousands of pills, or into supplies measured in kilograms rather than grams. Moreover, he contended, the offending conduct was of the same level of objective seriousness in the sense that the applicant's role continued to be the same - a facilitator or intermediary - and the increase in the number of pills was simply a function of the increased request of 3,000 pills from his customer (the undercover officer) and his own supplier's capacity to meet that request only up to 2,000 pills. If the undercover officer had requested some other number less than 2,000, then the applicant's offer of supply would, it was argued, simply have extended to that requested amount. 26It was also submitted that the sentencing judge should have balanced the increase in the number of tablets offered against the facts that the pills were not actually supplied and were not in the applicant's possession for the purpose of immediate supply. While counsel for the applicant accepted that there is no rule that an agreement to supply drugs is to be regarded as any less serious than a proven act of supply, he submitted that that is not to say that a sentence for agreement to supply, as opposed to a sentence for actual supply, ought to be the same. It was submitted, citing R v Nassif [2005] NSWCCA 38 at [30] and Vu v R [2006] NSWCCA 188 at [88], that attention has to be directed to the actual offending conduct. When that is done, it was said, the offer to supply 2,000 pills ought not to be characterised as objectively more serious than the offers or supplies of 1,000 pills that comprised counts 1-3. 27In sum, at the heart of senior counsel's submissions in support of ground 1 was the contention that the learned sentencing judge placed undue emphasis on the number of pills rather than directing himself to a qualitative assessment of the actual offending conduct. 28As against this, the Crown submitted that the offer to supply 2,000 pills did represent an escalation in objective seriousness. The quantity was double that in the other counts and, based on the net weights involved in the other offences, this may have taken the count 4 offence into a new category of seriousness - large commercial quantity - carrying a maximum penalty of life imprisonment and a standard non-parole period of 15 years. 29The Crown argued that the sentencing judge's approach disclosed no error, being founded on a viewing of count 4 in the context of the series of transactions that comprised counts 1-3 and some of the Form 1 offences. His Honour did not, it was submitted, focus solely on the question of quantity. Ground 2 30The second ground of appeal is that: "The sentencing Judge erred in imposing a total effective non-parole period and total effective overall term that were manifestly excessive, and in particular the sentencing Judge: (a) erred in imposing an excessive sentence for the 4th count on the indictment; (b) erred in the extent of accumulation of the 4th count on the indictment; [and] (c) erred in setting a total effective sentence and total non-parole period that was disproportionate to the gravity of [the] offending behaviour." 31The applicant received the same sentence for each of the offences in counts 1-3: five and a half years imprisonment with a non-parole period of half that, namely two years and nine months. As has already been noted, the sentencing judge partially accumulated the sentences: count 2 commenced nine months after count 1, and count 3 commenced six months after count 2. Thus, the overall effective sentence for counts 1-3 was a non-parole period of four years with a balance of term of two years and nine months. 32On count 4 - which included the 13 offences on the Form 1 - his Honour imposed a sentence of seven and a half years with a non-parole period of half that (three years and nine months). This was partially accumulated on the other sentences so as to commence a year after the count 3 sentence. The practical effect was that the sentence for count 4 took the applicant's non-parole period from four years to six years and added a year to his balance of term. 33This was attacked on two bases. The first was that the sentence on count 4, resulting in a 50 per cent increase in the non-parole period from four to six years, was manifestly excessive. Reference was made to some remarks of Malcolm CJ in R v Clinch (1994) 72 A Crim R 301 at 306 and in particular of Anderson J in Herbert v R [2003] WASCA 61; 27 WAR 330, the upshot of which were that the prescribed objectives of sentencing - protection of the public, deterrence, punishment, retribution, reformation and so on - are not necessarily served in the same proportion as an arithmetical increase in sentence. 34This dovetailed with a second, related point, namely totality. Even if the sentence for count 4 was not excessive, it was submitted, a proper regard for the principle of totality would have resulted in less accumulation of that sentence upon the sentences for counts 1-3. 35Senior counsel for the applicant submitted that the effect of the sentence for count 4 was to impose "a crushing sentence on a young man with no prior convictions". In support of the case for greater leniency, he placed considerable reliance on subjective circumstances. These have been summarised above. An overall non-parole of six years, and the two year contribution to that period by count 4 alone, were said to amount to an excessive period of actual imprisonment for a young man with good prospects of rehabilitation. 36For its part, the Crown submitted that each of the offences on the indictment carried a maximum of 20 years and a standard non-parole period of 10 years. Five of the Form 1 offences carried a maximum of 15 years. That is, this was said to be a course of objectively serious offending. It disclosed that the applicant was, in short, running a drug business and had established links with at least three suppliers. His involvement in selling drugs was continuing and escalating. An effective non-parole period of six years, it was said, represented a sound level of accumulation in circumstances where the standard non-parole period for one offence, let alone four, is ten years and there are additional, serious Form 1 offences. The sentence, it was submitted, appropriately reflects the totality of this applicant's course of offending. Disposition 37The resolution of the appeal requires a proper approach to offences with a standard non-parole period. No particular ground of appeal was based upon Muldrock v R [2011] HCA 39; 244 CLR 120; but it is difficult to come to the view that these sentences are within a just and proportionate range in their aggregate, and on count 4 alone, without a degree of overemphasis upon the role of the guidance from the standard non-parole period. The submissions were directed in substance to the sentence for the offence in count 4 and its degree of accumulation. 38Senior counsel for the applicant was correct to submit that it was an error of law for the learned sentencing judge to treat as decisive, for sentencing purposes (as his Honour appears to have done), the number of pills, or to put it another way, the quantity of the deemed supply involved in count 4. As Gaudron, Gummow and Hayne JJ pointed out in Wong v R [2001] HCA 64; 207 CLR 584 at 609 [67]: "the particular amount of narcotic involved can have significance in fixing the sentence that is to be imposed on an offender." However, it is an error to attribute "chief importance to the weight of narcotic in fixing sentences for the offence" (at 609 [70]). Their Honours went on to say: "The selection of weight of narcotic as the chief factor to be taken into account in fixing a sentence represents a departure from fundamental principle." This is because such an approach does not take account of the fact that there are many conflicting and contradictory elements which bear upon sentencing an offender. Focusing upon one or some only contravenes the mandated "instinctive synthesis" approach. Their Honours said (see Wong at 611 [75]): "This expression is used, not as might be supposed, to cloak the task of the sentencer in some mystery, but to make plain that the sentencer is called on to reach a single sentence which, in the case of an offence like the one now under discussion, balances many different and conflicting features." 39We would broadly accept the submission of senior counsel for the applicant that even taking account of the offences on the Form 1, the sentence for count 4 was excessive. There was very little upon which any rational distinction could be made between the first three offences and the fourth offence, especially when the applicant did not have the drugs the subject of count 4. Further, count 4 was accumulated for a longer period than the earlier accumulations. There was no reasoned foundation for that. 40Senior counsel for the applicant accepted that some accumulation of the fourth count was appropriate. 41Taking into account all the matters before the sentencing judge, the sentence for count 4 was excessive and the overall sentence was excessive by reason of the accumulation provided for. A resentencing is necessary. 42The evidence led on the application confirms many of the findings of the sentencing judge. The applicant has a loving and strong family. He is using his time in prison wisely. He is a young man who appears to have a basal good character. The Court should not risk a crushing sentence. 43Given that no real challenge was made to the sentence for counts 1-3, the orders that we would make are as follows: 1. Grant leave to appeal. 2. Allow the appeal against sentence. 3. Set aside the sentence for the offence in count 4 imposed by the District Court on 24 May 2011 and in lieu thereof sentence the applicant (taking into account the 13 offences on a Form 1) to imprisonment for a non-parole period of two years and nine months commencing 6 February 2011 and expiring 5 November 2013 with a balance of term of two years and nine months expiring 5 August 2016. 44The accumulation for the offence in count 4 may seem to be lenient in the light of the number of offences in the Form 1. Nevertheless, assessing the overall criminality involved and applying the principle of totality, a just and appropriate sentence calls for this degree of concurrency and accumulation. ********** 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: 23 November 2012