Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Jayde FARRELL v R [2012] NSWCCA 245 Hearing dates: 17 May 2012 Decision date: 23 November 2012 Before: Hoeben JA at [1] Hidden J at [2] Beech-Jones J at [24] Decision: Leave granted, appeal allowed. Sentence passed in District Court quashed. Applicant re-sentenced to imprisonment for 6 ½ years, comprising a NPP period of 4 years, commencing 1 May 2010 and expiring 30 April 2014, and a balance of term of 2 ½ years, commencing 1 May 2014 and expiring 31 October 2016. Catchwords: CRIMINAL LAW - application for leave to appeal against sentence - applicant and co-offender involved in same drug dealing enterprise - charged with different offences - co-offender sentenced by different judge - issue of parity. Legislation Cited: Drug Misuse and Trafficking Act 1985 Cases Cited: - Jimmy v R [2010] NSWCCA 60, 77 NSWLR 540 - Green v The Queen [2011] HCA 49, 244 CLR 462 - Muldrock v The Queen [2011] HCA 39, 244 CLR 120 Category: Principal judgment Parties: Jayde Farrell (applicant) Regina (respondent) Representation: Counsel: J Hickleton (applicant) J Girdham (respondent) Solicitors: George Sten & Co (applicant) S Kavanagh - Solicitor for Public Prosecutions (respondent) File Number(s): 2008/1652 Decision under appeal Date of Decision: 2010-12-13 00:00:00 Before: Bennett DCJ File Number(s): 2008/1652 Judgment 1HOEBEN JA: I agree with Hidden J and the orders which he proposes. 2HIDDEN J: At a trial in the District Court the applicant, Jayde Farrell, was found guilty of supplying a commercial quantity of ecstasy, an offence under s 25(2) of the Drug Misuse and Trafficking Act 1985, carrying a maximum sentence of 20 years imprisonment and a standard non-parole period of 10 years. The trial judge, Bennett DCJ, sentenced him to imprisonment for 9 years with a non-parole period of 6 years and 9 months, to date from 1 May 2010. The sentence was backdated to that day to take account of a discrete period of pre-sentence custody. He seeks leave to appeal against that sentence. Facts 3The offence was committed in the course of a criminal enterprise in which the applicant was involved with Blake William Turner. Mr Turner sold ecstasy to an undercover police operative on four occasions between February and March 2007. On three occasions in February 100 tablets were supplied, on each occasion for $2,000. On 1 March, 500 tablets were supplied for $8,500. In all, 229.44 grams of the drug were supplied, the prescribed commercial quantity being 125 grams. 4It was the Crown case at the trial that the applicant was the source of the drugs which Mr Turner supplied to the undercover officer, and that he was involved in the enterprise for profit. It is unnecessary to detail the body of evidence against him, except to note that it included a number of intercepted telephone conversations and text messages, and the finding of more than half of the money paid by the undercover officer in his possession when he was arrested. 5In his remarks on sentence, Judge Bennett said that it was not clear whether the applicant's "status in these transactions was higher than Turner in some sort of hierarchical structure, or whether he was in a partnership with Turner upon an equal footing or a near to equal footing with him, but with access to sources in addition to those that Turner had available." His Honour found it "more probable than not that the latter was the case." He noted that the applicant was not a user of ecstasy, and found that he had "embarked upon this enterprise with organisation and planning for the sole purpose of making money." Subjective case 6The applicant was 26 years old at the time of the offence and 30 years old when he was sentenced. He is now 32. His criminal history consists of an offence of dishonesty committed when he was a juvenile, which his Honour saw as of little, if any, significance. His upbringing was not free of difficulty, but nothing about it casts any light upon his involvement in the offence. He is married, although without children. His wife and his mother provided statements for the purpose of the sentence proceedings, and they were supportive of him. He attained his Higher School Certificate, and completed a TAFE course in fine arts. He joined the army 3 years before the offence. Mr Turner was also in the army, and they were members of the same unit. 7Before Judge Bennett was a report of Dr Samson Roberts, psychiatrist. The applicant did not admit the offence, but Dr Roberts expressed the opinion that some explanation for his criminality might be found in his mental state at the time, engendered by personal difficulties and substance abuse. His Honour considered that opinion unreliable, finding that the history provided to Dr Roberts was inconsistent with the evidence in the trial of the applicant's conduct and with material in a pre-sentence report. No complaint about that finding is made in this application. 8Turning his attention to mitigating factors, his Honour noted that the applicant had maintained his innocence of the offence notwithstanding the jury's verdict. Apparently referring to his account to Dr Roberts of personal difficulties in his life, his Honour noted that he appeared to see those difficulties as "the product of the attitude of others." His Honour found that he failed "to demonstrate any capacity for self-examination for his own deficiencies that might have contributed to his difficulties at work and in his personal life." His Honour doubted "his capacity for introspection and realisation that he has done significant wrong," and saw a role for specific deterrence, as well as general deterrence, in the sentencing exercise. 9His Honour considered the question of special circumstances but was not persuaded that they had been established. That conclusion is the subject of complaint. Turner 10For his part in the criminal enterprise, Blake Turner pleaded guilty to ongoing supply of ecstasy, an offence under s 25A(1) of the Drug Misuse and Trafficking Act, which also carries a maximum sentence of 20 years imprisonment but not a standard non-parole period. He was sentenced by another judge, Armitage ADCJ, to imprisonment for 4 years with a non-parole period of 2 years. A number of related matters of a minor nature were taken into account on a Form 1, but nothing turns on this for present purposes. He was sentenced before the applicant, and Judge Bennett had the remarks on sentence of Acting Judge Armitage. 11Mr Turner was aged between 22 and 23 years old at the time of the offence, and was 23 at the time of sentence. Like the applicant, he had a minor criminal history of no significance. Unlike the applicant, however, he had pleaded guilty at the first opportunity and was accepted to be remorseful. Acting Judge Armitage found that he had "a genuine desire to improve himself and to succeed in a business career", and that he was unlikely to re-offend. 12Mr Turner had not given evidence, but had told a Probation and Parole officer who prepared a report that he had acted alone and that the present applicant was not involved. His Honour found it difficult to determine "with any certainty, precisely what sort of operation" he had been engaged in. It was apparent from the statement of facts that it was alleged that he had been in some way assisted by the applicant, but his Honour found that the "nature of that alleged assistance is not at all clear... ." His Honour found that Mr Turner had supplied the drugs for profit, but could not determine what the arrangement with the applicant had been. The application 13There are two grounds of the present application: that there is unjustified disparity between the sentence passed upon the applicant and that passed upon Mr Turner, and that Judge Bennett should have found special circumstances warranting a departure from the statutory proportion between sentence and non-parole period. As I am satisfied that the ground of disparity is made out, I do not find it necessary to determine the ground concerning special circumstances. Whether there are special circumstances would be a matter for this court to determine, in its own discretion, on re-sentence. 14The issue of parity of sentence was raised in submissions to Judge Bennett, but in his remarks his Honour did not expressly deal with it. However, I have referred earlier to his finding that the applicant was on an equal or near to equal footing with Mr Turner, albeit with access to sources of the drug additional to those available to Mr Turner. His Honour also referred to evidence in the trial of intercepted telephone calls from which it appeared that the applicant, unlike Mr Turner, "was a man in control, using care not to make overtly incriminating representations, and strident in his [efforts] to prevent Turner from doing so whilst he was engaging with him in conversation." As I have said, both offenders were found to have been involved in the enterprise for profit. His Honour also noted that, while both men stood for sentence for offences carrying a maximum sentence of 20 years, the offence to which Mr Turner pleaded guilty did not carry a standard non-parole period. 15There is no need to restate the principles bearing upon parity of sentence. They were dealt with comprehensively in the decision of this court in Jimmy v R [2010] NSWCCA 60, 77 NSWLR 540, and revisited by the High Court in Green v The Queen [2011] HCA 49, 244 CLR 462. The principles continue to apply in cases where participants in the same criminal enterprise have been charged with different crimes although, depending on the circumstances of the case, there may be practical difficulties in their application. No such difficulties arise here. The applicant and Mr Turner were sentenced for offences carrying the same maximum penalty, arising from the same criminal activity. 16The fact that the offence of supplying a commercial quantity of ecstasy, for which the applicant was sentenced, carries a standard non-parole period conveys that the legislature sees it as more serious than the offence of ongoing supply, for which Mr Turner was sentenced. Judge Bennett sentenced the applicant before the High Court handed down its decision in Muldrock v The Queen [2011] HCA 39, 244 CLR 120, having regard to the standard non-parole period in accordance with the law as it then stood. However, there is no ground of the application arising from that approach and it does not bear upon the issue of parity. 17Acting Judge Armitage allowed Mr Turner a 25% discount of sentence for his plea of guilty. The sentenced imposed being 4 years, the starting point must have been 5 years and 4 months. The applicant's sentence is 9 years. The disparity is marked. The sentence passed upon Mr Turner was undoubtedly lenient, but the Crown prosecutor in this court did not submit that it was inadequate. 18True it is that there were differences in the cases of the two men which warranted a heavier sentence for the applicant. Although Judge Bennett saw the roles of the two men in the offending as much the same, the applicant might fairly be seen as somewhat more in control of the enterprise than Mr Turner. Mr Turner is younger than the applicant and, unlike the applicant, had the benefit of positive findings that he was remorseful and unlikely to re-offend. Nevertheless, making due allowance for those matters and for the fact that the applicant's offence carried a standard non-parole period, I am of a view that the difference in the sentences passed upon the two men is excessive and is such as to engender in the applicant a justifiable sense of grievance. I am satisfied that this court should intervene and re-sentence the applicant. Re-sentence 19On the question of re-sentence there is another matter properly to be taken into account. The applicant was arrested on 1 March 2007, but the trial at which he was found guilty did not come to hearing until October 2010. Apparently there was an earlier trial which aborted, and there were unexpected difficulties in re-listing the matter for trial. None of these developments was the fault of the applicant or his legal representatives. 20The statements of his wife and his mother attested to the stress he underwent during this lengthy period and the deleterious effects it had on his relationship with them. After a period in custody following his arrest, he was released on bail. He developed something of an obsession with bodybuilding and began to use steroids to excess, a matter about which both his mother and Dr Roberts expressed concern. He obtained employment with a company supplying vitamin supplements for fitness and bodybuilding and his employer, aware of the charge which he was facing, supplied a favourable testimonial. 21He has an artistic bent and in this court, for the purpose of re-sentence, we received a recent statement by the acting co-ordinator of the Malabar Art Unit within the Long Bay Correctional Complex. The unit provides education in art, and the statement attests to his exemplary behaviour and his assistance of others in that course. Moreover, the display of some of his works in the Boom Gate Gallery at that prison have attracted the interest of a well known art dealer. 22Taking into account all the circumstances, and seeking to achieve an appropriate relativity with the sentence passed upon Mr Turner, I consider that the proper sentence is imprisonment for 6 ½ years. I would find special circumstances, not because such a finding was made in Mr Turner's case but because of the applicant's subjective circumstances. He must serve a substantial period in custody before being eligible for release on parole. He has the capacity and the skills to rehabilitate himself, but I am satisfied that that process would be assisted by a lengthy period of conditional liberty subject to supervision and the sanction of parole. I would fix a non-parole period of 4 years. 23Accordingly, I would grant leave to appeal, allow the appeal, and quash the sentence passed in the District Court. I would re-sentence the applicant to imprisonment for 6 ½ years, comprising a non-parole period of 4 years, commencing on 1 May 2010 and expiring on 30 April 2014, and a balance of term of 2 ½ years, commencing on 1 May 2014 and expiring on 31 October 2016. 24BEECH-JONES J: I agree with Hidden 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: 11 December 2012