Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Wienand v R [2013] NSWCCA 202 Hearing dates: 15 July 2013 Decision date: 30 August 2013 Jurisdiction: Criminal Before: Hoeben CJ at CL at [1] McCallum J at [46] Schmidt J at [50] Decision: 1. In relation to grounds of appeal a. and b. leave to appeal refused. 2. In relation to ground of appeal c., leave to appeal granted but appeal dismissed. Catchwords: CRIMINAL LAW - sentence appeal - supply a large commercial quantity of a prohibited drug - whether sentence manifestly excessive - parity - sentence of co-offender reduced by Court of Criminal Appeal - whether necessary to reduce applicant's sentence - no basis for justifiable sense of grievance - different subjective case and higher position in drug supply hierarchy. Legislation Cited: Drug Misuse and Trafficking Act 1985 - s25(2) Cases Cited: Butler v R [2012] NSWCCA 23 Dinsdale v R [2008] HCA 54; 202 CLR 321 DPP (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 Hill v R [2012] NSWCCA 265 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 R v Olbrich [1999] HCA 54; 199 CLR 270 Regina v Wei Pan [2005] NSWCCA 114 Category: Principal judgment Parties: Paul Christopher Wienand - Applicant Regina - Respondent Crown Representation: Counsel: Ms S Kluss - Applicant Ms V Lydiard - Respondent Crown Solicitors: SE O'Connor, Legal Aid NSW - Applicant S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown File Number(s): 2010/401944 Decision under appeal Date of Decision: 2012-08-10 00:00:00 Before: Sorby DCJ File Number(s): 2010/401944 Judgment 1HOEBEN CJ at CL: Offence and sentence The applicant pleaded guilty to one offence of supply a large commercial quantity of a prohibited drug, namely methylamphetamine, contrary to s25(2) of the Drug Misuse and Trafficking Act 1985 for which the maximum penalty is life imprisonment with a standard non-parole period of 15 years. The amount was 1,848.6 grams. 2On 10 August 2012 the applicant was sentenced by Sorby DCJ to imprisonment with a non-parole period of 5 years and 6 months commencing 2 December 2010 and expiring 1 June 2016, with a balance of term of 2 years and 6 months, expiring 1 December 2018. 3The applicant seeks leave to appeal from that sentence on the following grounds: a. The sentence imposed on the applicant was manifestly excessive. b. The sentence imposed started from a notional starting point that was too high. c. The sentence imposed caused the applicant to have a justifiable sense of grievance when the sentence is compared to the sentence imposed on Hill, his co-offender. Factual Background 4The facts of the offending were set out in an Agreed Statement of Facts which became part of Exhibit "A" in the sentence proceedings. The Crown and defence each supplied a summary of facts. The following were the facts found by the primary judge. 5In May 2010 NSW Police commenced a controlled operation investigating the criminal offending of Mr Paul Robinson (Robinson). As part of the operation an authorised participant (AP), who was a previous criminal associate of Robinson, was authorised to buy prohibited drugs from Robinson. The controlled operation utilised telephone intercepts, listening devices and surveillance. 6In late October 2010 the AP made contact with Robinson. On 26 October 2010 the AP introduced an undercover police officer (UCO) with the intention that the UCO would purchase prohibited drugs directly from Robinson. During the phone call Robinson advised the UCO that he supplied the drugs from someone who sourced them from another person. 7The head of the supply chain was an accused person "AM". He would hand the drugs to the applicant, who would then deliver them to the co-offender, Hill, at his place of business where Robinson went to collect them to supply to the UCO. This place of business was known as "Razorback Inflatable Boats". 8The first supply was on 4 November 2010. On that occasion Hill met the applicant at his private residence the day before "to make sure that you know everything is all right". The applicant, Hill and Robinson then attended Razorback Inflatable Boats at about 6.10pm. 9The UCO remained outside the premises during the transaction. Robinson supplied the drugs to the UCO while Hill and the applicant remained inside the premises. Five minutes after the transaction, the applicant left the premises. The actual supply by Robinson to the UCO was captured on a listening device and video surveillance. The drugs were seized by the police and the UCO immediately thereafter. A DAL certificate confirmed that the drugs comprised 249 grams of methylamphetamine, 978 tablets at 3.5 percent purity. 10The next supply was on 11 November 2010. On this day, Hill told the applicant by telephone that the money would be dropped off that day. The applicant replied "same as last week," and Hill replied "yes". They then arranged for the drugs to be dropped off at 6pm with Hill telling the applicant that he could just wait in the car "so he doesn't see you". There was a further telephone conversation in which those arrangements were confirmed. 11At 3pm the applicant had a telephone conversation with AM who told him that he was on his way. The UCO was supplied with methylamphetamine by Robinson at 6.04pm in exchange for $14,000 outside the Razorback premises. Hill remained inside the premises during the transaction. The applicant was not present. At 6.45pm the applicant had another telephone conversation with AM to organise a meeting place to "pick up my pay". 12The actual supply by Robinson to the UCO was captured by a listening device and video surveillance. The drugs were seized by the police from the UCO immediately afterwards. A DAL certificate confirmed that the drugs comprised 248.6 grams of methylamphetamine, 995 tablets at 3 percent purity. 13The next supply was on 18 November 2010. On that occasion, at 4.43pm the applicant had a telephone conversation with AM. The applicant told him that he was approaching Dolls Point. He picked up the methylamphetamine from AM shortly thereafter. At 5.27pm the applicant had a telephone conversation with Hill and told him that he would be there at 6.10pm. The applicant thereafter attended the Razorback premises where he delivered the methylamphetamine to Hill. Robinson and the UCO arrived shortly afterwards. Robinson supplied the drugs to the UCO. 14At 7.56pm the applicant had a telephone conversation with AM in which he asked where he was. Shortly thereafter, the applicant was observed handing over a parcel to AM. The actual supply by Robinson to the UCO was captured on a listening device and video surveillance. A DAL certificate confirmed that the drugs comprised a total of 486 grams of methylamphetamine at 4 percent purity, with 958 tablets in one bag and 951 tablets in another bag. 15The fourth supply was on 2 December 2010. On 23 November 2010 the applicant and Hill discussed by telephone the next supply. On 24 November 2010, the applicant exchanged text messages with AM. The two agreed to reduce the sale price to $8.50 per pill in exchange for supplies of 5,000 every week until Christmas. On 24 November 2010 the applicant and Hill discussed by telephone the applicant's supply of the tablets to Hill for $10 who would on-supply to Robinson for $10.50. 16On 1 December 2010, text messages were exchanged between the applicant and AM, organising a supply for the following day. On 2 December 2010 text messages were exchanged between the applicant and AM, organising a supply for the following day at 3pm. At 2.55pm the applicant telephoned and said that he was lost. At 2.56pm the applicant met AM in the foyer of the building where AM lived. At 3.19pm the applicant left that building alone, holding a green bag which was earlier seen to be held by AM. The applicant was arrested shortly thereafter with 864 grams of methylamphetamine. This consisted of 3,105 tablets at 35 percent purity and 88 grams of powder at 7 percent purity. Proceedings before primary judge 17A number of documents were before the primary judge, including his remarks on sentence in relation to Hill, whom he had sentenced on 18 November 2011. 18A report of a psychologist, Mr Watson-Munro, was tendered on behalf of the applicant. This report stated that the applicant was born in 1965 in South Africa. He came to Australia with his family when he was aged 12. He completed his school certificate and did two years of a panel beating course before joining the Army where he completed his apprenticeship as a panel beater. He ran his own panel beating business for six years from the age of 30. He went out of business, as a result of psychiatric problems due to his substance abuse, long working hours and the breakdown of his marriage. He had four children from the marriage. Thereafter, he had various jobs in the smash repair industry until his arrest in 2010. 19The applicant told the psychologist that he had started smoking cannabis at the age of 17 and using amphetamines at the age of 19. This had continued until the time of his arrest. He had also abused ecstasy and cocaine. 20His Honour noted that the applicant did not give evidence, or express any remorse for his behaviour, although he did tell the psychologist that he was remorseful. His Honour was prepared to accept that the applicant was genuinely remorseful because of testimonials tendered on his behalf. His Honour found special circumstances because of the applicant's need for ongoing rehabilitation. 21The applicant had only minor convictions on his record and none for drug use or supply. The most serious offences concerned contravening apprehended violence orders. His Honour found "his general good character is attested to by letters tendered on his behalf ... the offender's character is a relevant factor in the offender's rehabilitation prospects". 22Because the applicant pleaded guilty at the first opportunity, he was given a 25 percent discount for the utilitarian value of his plea. His Honour found that the offence committed by the applicant "was both for his drug problem and for profit". His Honour considered that drug supply for profit was an aggravating factor. 23In relation to the offence, his Honour said: "These facts reveal an objectively serious offence. The amounts of the drug were significant, well above the thousand-gram threshold. If it had made its way into the community, rather than to the UCO, it would have been capable of doing a great deal of harm, particularly among the young. General deterrence is particularly important in a sentencing exercise, to send a clear message to like minded individuals in the community that such activities will not be tolerated. The role of this offender, as in any such offence, is an important issue going to the assessment of the objective gravity of the offence. The offender was not the principal - that role could be, on the facts, the person AM from whom the offender obtained the drugs, on each occasion before supplying them to Hill and Robinson and ultimately to the undercover officer known as UCO. Neither Robinson nor Hill dealt with AM. It was only through this offender and this placed this offender close to the source of the drugs, higher up the hierarchy, although in supplies 1, 2 and 3 he only delivers the drugs from AM to Hill and Robinson. In the fourth deal he is involved in price negotiation, an indicator of a greater role in the supply chain than that of a mere courier. He holds discussions with someone on the end of a telephone as to price and quantity, and then negotiates with Hill and Robinson. The purity of the drugs however was relatively low. This offence is objectively serious, and in my view of a similar level of seriousness to that of the offender Hill." (ROS 5) 24The primary judge was conscious of the principle of parity between the applicant and Hill. In that regard, he summarised the relevant factors as follows: (i) Both were involved in the same four transactions and with the same amount of drugs. (ii) Hill was given a 50 percent discount for his plea of guilty in the Local Court and his assistance to authorities was described as being "of great importance". (iii) The objective seriousness of Hills's offending was found to be "below, but not far below the mid range of objective seriousness of such offences." (iv) There was a finding of special circumstances for Mr Hill. (v) Hill had no criminal history and was found to be of good character, for his community work and research on behalf of the community. (vi) Hill was the middle man between the applicant and Robinson. The applicant acted as a middle man between the principal supplier AM and Hill. (vii) AM was head of a supply chain and this applicant had direct dealings with him as opposed to Hill. (viii) This applicant was the intermediary between the principal AM and Hill, and therefore higher within the drug hierarchy. (ix) Hill received no financial benefit from the first two transactions. For the third transaction, he received $1,000 and had anticipated a profit of $1,500 for the fourth transaction. (x) Following the second transaction, the applicant spoke with AM and discussed a meeting place to "pick up my pay" indicating some financial remuneration for that transaction. The applicant anticipated a profit of $3,500 for the last transaction which was significantly greater than the $1,500 Hill had just received for that transaction. 25It should be noted that Hill was sentenced to imprisonment with a non-parole period of 4 years, with a balance of term of 2 years. On appeal to this Court, that sentence was reduced to imprisonment with a non-parole period of 2 years and a balance of term of 1 year. The basis for the reduction in the sentence was the opinion of the Court that the sentencing judge had given insufficient weight to Hill's strong subjective case. In that matter: Hill v R [2012] NSWCCA 265, Harrison J (with whom Simpson and Adamson JJ agreed) said: "6 His Honour also referred to the fact that the applicant had either been, or at least felt that he had been, threatened by Robinson and Wienand. The extent if at all to which his Honour took account of this material as evidence of some form of coercion is unclear. It seems on balance likely that his Honour did take that material into account. ... 24 There is in my view much to be said for the contention that the sentence imposed upon the applicant is incongruously at odds with the strong subjective case. Nowhere is this more apparent than from the terms of the applicant's own letter to his Honour for sentencing purposes. That letter chronicles a frightening and rapid descent into an unpredictable involvement with his co-accused, wholly foreign to the life he had lived to that point. He put the safety of himself and his family at risk for no good purpose and for little tangible or other reward or benefit. ... 27 I consider this applicant to have a very strong subjective case, both with respect to his position before the offences were committed and since he has been charged. It seems to me that his Honour has failed in his analysis to incorporate some matters particularly affecting the applicant, and has thereby erroneously given inadequate and correspondingly improper consideration to his subjective case. This has in my view resulted in a failure to take into account some material consideration in the way explained in House v The King [1936] HCA 40; 55 CLR 499 at 504-5." THE APPEAL a. The sentence imposed on the applicant was manifestly excessive. b. The sentence imposed started from a notional starting point that was too high. 26The applicant dealt with these two grounds of appeal together. It is convenient to follow the same approach. 27The applicant submitted that the standard non-parole period played a significant role in the calculation of the sentence in such a way as to give rise to the error identified in Muldrock v The Queen [2011] HCA 39; 244 CLR 120. To support that proposition, the applicant relied upon the assessment of objective seriousness which the primary judge made when sentencing Hill. There his Honour assessed the offence as "below but not far below the mid-range of objective seriousness for such offences". The applicant submitted that because his Honour said in relation to the applicant "this offence is objectively serious and in my view, of a similar level of seriousness to that of the offender Hill", he had incorporated the same erroneous concept into his assessment of the objective seriousness of the applicant's offending. As a result, the applicant submitted that the starting point for the sentence imposed on him was too high. Consideration 28In oral submissions, these grounds of appeal were but faintly pressed. In order to make out the first ground of appeal, i.e., that the sentence is manifestly excessive, it was necessary to persuade this Court that the sentence was unreasonable or plainly unjust: Dinsdale v R [2008] HCA 54; 202 CLR 321 at 325. No reason was put forward as to why the sentence imposed on the applicant was unreasonable or plainly unjust. In those circumstances, this ground of appeal should be dismissed. 29I have some difficulty in understanding the reasoning behind the second ground of appeal. No Muldrock error was raised in the ground of appeal and yet it appears to be the focus of the submissions in support of the ground. 30In any event, there is no substance to the submission that the primary judge committed the error identified in Muldrock. His Honour did not engage in a two-stage process, nor did he give undue emphasis to the standard non-parole period. His Honour did no more than refer to the fact of the non-parole period and by reference to the sentence imposed on Hill, his Honour assessed the objective seriousness of the offending to be "below, but not far below, the mid-range of objective seriousness of such offences". The assessment of the objective seriousness of offending remains an important part of the sentencing process and of the intuitive synthesis upon which it is based. 31In that regard, the observation of Davies J (with whom Whealy JA and Rothman J agreed) in Butler v R [2012] NSWCCA 23 is apposite: "26 ... Merely showing that a sentencing judge sentenced pre-Muldrock following the dictates of Way will not be sufficient to demonstrate error. What should be ascertained in each case is whether a reliance on Way has sufficiently infected a sentence with such error that this Court must intervene. Ordinarily this might occur in cases where an applicant is found guilty by a jury, with the result that the sentencing judge will have considered that a two-stage process must be applied and that the standard non-parole period is mandatory unless factors can be found to justify a variation from it. It is far less likely that intervention will be required from this Court where a sentence has been imposed following a plea of guilty and the sentencing judge has referred to the standard non-parole period as simply a guideline or yardstick." 32This ground of appeal has not been made out. Ground c: The sentence imposed caused the applicant to have a justifiable sense of grievance when the sentence is compared to the sentence imposed on Hill, his co-offender. 33This was the ground to which the applicant's submissions, both oral and in writing, were substantially directed. The applicant submitted that in the case of Hill, the start point for the sentence imposed by the primary judge was 12 years with a non-parole period of 8 years. After adjustment for an early plea of guilty and assistance, that was reduced to a head sentence of 6 years with a non-parole period of 4 years. After the intervention of this Court, the final sentence became imprisonment for 3 years and with a non-parole period of 2 years, i.e. a start point of imprisonment for 6 years. In the case of the applicant, the start point was 10 years and 8 months with a non-parole period of 7 years and 4 months. After adjustment for the early plea of guilty, the sentence became imprisonment for 8 years with a non-parole period of 5 years and 6 months. 34The applicant submitted that a comparison of this sentence with the sentence ultimately imposed on Hill, engendered in him a justifiable sense of grievance, i.e., that a reasonable person looking at the circumstances of the case would regard the applicant's sense of grievance as justified. 35In that regard, the applicant relied upon Regina v Wei Pan [2005] NSWCCA 114. There Johnson J (with whom Giles JA and Hoeben J agreed) said: "34 The elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community - the issue is whether the particular sense of grievance or injustice is a legitimate one: Lowe v The Queen [1984] HCA 46; 154 CLR 606 at 611 per Mason J. The test for determining the existence of a sense of grievance is objective not subjective. What has to be demonstrated by the person complaining on the grounds of parity is not that he feels aggrieved, but that a reasonable mind looking overall at what has happened would see that the offender's grievance is justified: R v Doggett (NSW Court of Criminal Appeal, 24 March 1996, unreported) per Sully J; R v Ilbay [2000] NSWCCA 251 at paragraph 6." 36The applicant submitted that because Hill had received a longer sentence than the applicant from the primary judge, it followed that the primary judge must have accepted that the objective criminality of the applicant was less than that of Hill. Accordingly, it was submitted, the applicant should be re-sentenced to a sentence which was less than that imposed by the Court of Criminal Appeal on HilHHill. The applicant submitted that the comparison of the circumstances of Hill and the applicant, set out by the primary judge in his remarks on sentence, made it clear that both had strong subjective cases, minimal criminal histories and good prospects of rehabilitation. It also made clear that the objective seriousness of their offending was similar. Consideration 37The difference in the starting point for the sentences of the applicant and Hill, with Hill having a higher starting point was never explained by the primary judge. Such a result was not justified by his Honour's fact finding. While his Honour regarded the objective criminality of the offending as the same, it is also clear that his Honour found that the applicant occupied a higher position in the drug distribution hierarchy than did Hill. The applicant dealt directly with the principal, AM, whereas Hill was further down the chain and dealt with either the applicant or Robinson. A proper appreciation of their respective positions in the drug distribution hierarchy can be seen by a comparison of what each was to receive as a result of the fourth transaction. Hill was to receive $1,500 whereas the applicant was to receive $3,500. This fact was specifically noted by the primary judge. 38It follows that an important point of distinction between the applicant and Hill is that the applicant clearly occupied a higher position in the drug distribution hierarchy than did Hill. This has always been regarded as an important consideration in drug supply cases (DPP (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 at [67]; R v Olbrich [1999] HCA 54; 199 CLR 270 at [19]). 39Another important point of distinction is the difference in the subjective cases of the applicant and Hill. This Court found that the primary judge erred in his failure to adequately assess Hill's subjective case. The Court found that the strength of his subjective case was such that his sentence should be halved. This was because of the significant element of coercion, to which reference has already been made at [25]. There was no similar important factor in the applicant's subjective case. 40The final consideration is that to which the majority (French CJ, Crennan and Kiefel JJ) referred in Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 at [33]: "33 There is a question whether a sentence which would otherwise be appropriate can be reduced on the ground of disparity to a level which, had there been no disparity, would be regarded as erroneously lenient. In Lowe that question was answered explicitly in the affirmative by Mason J and less explicitly but to like effect by Dawson J, with whom Wilson J agreed. It has also been answered in the affirmative in a number of cases in the Court of Criminal Appeal of New South Wales. On the other hand, as Simpson J correctly pointed out in R v Steele, the existence of a discretion, where unjustified disparity is shown, to reduce a co-offender's sentence to one which is inadequate does not amount to an obligation to do so. Certainly, the discretion of the Court of Criminal Appeal to reduce a sentence to a less than adequate level would not require it to consider reducing the sentence to a level which would be, as Street CJ put it in R v Draper, "an affront to the proper administration of justice." Moreover, if the relevant sentencing legislation, on its proper construction, does not permit an inadequate sentence to be imposed, there can be no discretion on appeal to impose one. Whether or not the discretion to reduce a sentence to an inadequate level is available, marked and unjustified disparity may be mitigated by reduction of the sentence appealed against to a level which, although lower, is still within the range of appropriate sentences." 41In this case, there is no basis for a justified sense of grievance on the part of the applicant. There were important differences between his case and that of Hill. He occupied a higher position in the drug supply hierarchy and Hill had a much stronger subjective case. 42Finally, the criminality of this offence was significant, albeit that the primary judge regarded it as "below, but not far below the mid-range of objective seriousness of such offences". The maximum sentence was life imprisonment. There was a standard non-parole period of 15 years. These are clear indicators of how seriously the community regards this kind of offence. The applicant occupied an important position in the drug supply hierarchy. The quantity of drugs involved was substantial. The offence was committed for financial gain. The applicant neither offered nor provided assistance to the authorities. The only positive features were his subjective case and good prospects of rehabilitation. In my opinion, no lesser sentence was warranted. 43I am not persuaded that a breach of the principle of parity has taken place. Even if it had, to impose a lesser sentence would be likely to produce a sentence which was erroneously lenient. 44This ground of appeal has not been made out. 45The orders which I propose are: 1. In relation to grounds of appeal a. and b. I would refuse leave to appeal. 2. In relation to ground of appeal c., I would grant leave to appeal but would dismiss the appeal. 46McCALLUM J: I agree with Hoeben CJ at CL that there is no merit in grounds 1 and 2. The parity ground raises a more difficult issue. The starting point of the sentences passed at first instance (by the same judge) was 12 years in the case of Mr Hill and 10 years and 8 months in the case of the applicant. That was difficult to reconcile with the judge's findings, including his Honour's conclusion that the applicant was higher within the drug hierarchy than Mr Hill and the higher remuneration the applicant expected to receive. Notwithstanding that circumstance, there was no parity ground in Mr Hill's appeal. The Court of Criminal Appeal made a finding of patent error and saw fit to pass a lesser sentence without reference to the sentence passed on the present applicant and notwithstanding the considerable leniency reflected in the combined discount of 50% for Mr Hill's early plea (25%) and past and future assistance to authorities (a further 25%): see Hill v R at [3]. 47The sentence imposed by the Court of Criminal Appeal upon Hill's re-sentence was extremely lenient. However, since it is a sentence passed by this Court, I do not think it is open to approach the present application on the premise that it was erroneously so. The result is that the respective starting points are now 10 years and 8 months for the applicant compared with 6 years for Mr Hill. Acknowledging the greater discount obtained by Mr Hill, the disparity between the sentences is revealed more acutely in the fact that the applicant faces a non-parole period of 5 years and 6 months compared with 2 years in Mr Hill's case. In my view, the two sentences entail a measure of disparity that warrants a justifiable sense of grievance on the part of the applicant, even having regard to the matters considered above by the Chief Judge. 48The High Court in R v Green; R v Quinn considered the authorities as to whether a sentence which would otherwise be appropriate can be reduced on the ground of disparity to a level which, leaving aside the disparity, would be regarded as erroneously lenient. In the passage set out above in the Chief Judge's judgment, the Court said, "whether or not the discretion to reduce a sentence to an inadequate level is available, marked and unjustified disparity may be mitigated by reduction of the sentence appealed against to a level which, although lower, is still within the range of appropriate sentences." 49Although the sentence passed on the applicant was in my view entirely appropriate, I consider that there is marked and unjustified disparity between his sentence and that passed on Hill in his appeal such that, in order to afford equal justice to the two men, this Court should reduce the applicant's sentence. I would accordingly have exercised my discretion to reduce the sentence to a level which was lenient but still within the appropriate range. My conclusion that a reduced sentence would still be within the appropriate range is necessarily informed by the required premise that, since the comparator was imposed by this Court, it is not open to me to regard it to be erroneously lenient. Since mine is a dissenting view and having regard to the matters to which I have referred, it is not necessary and arguably not appropriate to articulate the lesser sentence I would have imposed 50SCHMIDT J: I agree with Hoeben CJ at CL. ********** 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: 30 August 2013