Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Radi v R [2013] NSWCCA 278 Hearing dates: 25 October 2013 Decision date: 14 November 2013 Before: Hoeben CJ at CL at [1] Johnson J at [36] Latham J at [37] Decision: Application for extension of time by the applicant dismissed. Catchwords: CRIMINAL LAW - sentence appeal - supplying a commercial quantity of a prohibited drug - applicant sentenced in June 2009 - whether decision in Muldrock v The Queen [2011] HCA 39; 244 CLR 120 entitled applicant to an extension of time for leave to appeal against sentence - importance of principle of finality - "Muldrock error" established - whether substantial injustice would result if an extension of time were refused - application of s6(3) Criminal Appeal Act 1912 - re-exercise of sentencing discretion by Court of Criminal Appeal - no lesser sentence warranted in law - application for extension of time dismissed. Legislation Cited: Criminal Appeal Act 1912 (NSW) - s6(3) Drug Misuse and Trafficking Act 1985 (NSW) - s25(2) Cases Cited: Abdul v R [2013] NSWCCA 247 Baxter v R [2007] NSWCCA 237; 173 A Crim R 284 Douar v R [2005] NSWCCA 455;159 A Crim R 154 Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 R v Niketic [2002] NSWCCA 425 Radi v R [2010] NSWCCA 265 Vandeventer v R [2013] NSWCCA 33 Category: Principal judgment Parties: Vasil Radi - Applicant Regina - Respondent Crown Representation: Counsel: Mr E Ozen - Applicant Ms M Cinque - Respondent Crown Solicitors: S O'Connor - Legal Aid NSW - Applicant S Kavanagh - Solicitor for Public Prosecutions - Respondent Crown File Number(s): 2008/00989 Decision under appeal Date of Decision: 2009-06-23 00:00:00 Before: Sorby DCJ File Number(s): 2008/00989 Judgment 1HOEBEN CJ at CL: Offence and sentence The applicant was found guilty following trial by a jury of one offence of supplying a commercial quantity of a prohibited drug, namely methylamphetamine, contrary to s25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The offence carries a maximum penalty of imprisonment for 20 years with a standard non-parole period of 10 years. 2On 23 June 2009 Sorby DCJ sentenced the applicant to imprisonment with a non-parole period of 7 years, and a balance of term of 3 years. The earliest date on which the applicant is eligible for release on parole is 23 April 2014, i.e. in approximately 5½ months. 3The applicant seeks an extension of time within which to apply for leave to appeal against the severity of that sentence. The applicant relies upon a single ground of appeal: Ground of Appeal: The sentencing judge erred in his approach to the standard non-parole period legislation in light of the principles identified in Muldrock v The Queen [2011] HCA 39; 244 CLR 120. 4It was common ground between the applicant and the Crown that "Muldrock error" had occurred in the sentencing process in that the sentencing judge had given excessive weight to the standard non-parole period and had engaged in a two stage sentencing process. On that issue generally, this judgment should be read with Abdul v R [2013] NSWCCA 247. Factual background to the offence 5At around 1pm on 10 May 2007 the applicant drove his motor vehicle to premises in The Avenue, Yagoona. At the same time, a motor vehicle driven by a co-offender, Han, was already parked outside that residence. The co-offender left his vehicle carrying an attaché bag, walked over to the applicant's vehicle and had a conversation with him before entering the undercover driveway of the residence. The applicant drove after Han in his vehicle and remained in it outside the door of the unit which Han had entered. 6Shortly thereafter, Han left the residence and walked towards the applicant's vehicle. Han had his right hand inside the left breast area of the black jacket that he was wearing at the time and it was bulging. Han leaned into the passenger side of the applicant's vehicle and then moved backwards, away from the car. His hands were empty. 7The applicant was stopped by police a short time after these events. In a black sports bag on the front seat the police found a plastic bag containing a yellow-brown crystal substance. The applicant was arrested and charged. 8Analysis of the crystal substance showed it to be 991 grams of methylamphetamine with a purity of 74 percent. That was 9 grams less than the amount which would have qualified as a "large commercial quantity". The value of the drug on the street was variously estimated at between $175,000 and $495,500, depending upon how it was sold. 9The following subjective matters were found by the sentencing judge. The applicant was born in 1962 in Albania. He is now 41. At the time of his arrest, he was a single man and was working as a cleaner. Before migrating to Australia in 1992, the applicant had been married but his wife and daughter remain in Albania. 10The applicant had no criminal antecedents and suffered from diabetes, which was first diagnosed in 2000. This condition on occasion affected his eyesight. A psychiatric assessment was carried out by a Dr Sokolovic, who described the applicant as "withdrawn and obviously [suffering] from reactive anxiety and deep depression. ..." In Albania he had been subject to some political persecution. 11The sentencing judge was not able to find any other matters in mitigation of the offending. His Honour did, however, assess the applicant's role as that of a courier, notwithstanding the amount of the drug involved. His Honour found that the offence fell below the mid-range of objective seriousness for this type of offence, but well above the low-range for such an offence. 12His Honour noted that general deterrence was an important consideration in the sentencing exercise because drug supply was far too prevalent in the community and a message needed to be sent to like-minded persons in the community that such activities would not be tolerated and that those caught face condign punishment. It was against that background that his Honour passed the sentence already described. Evidence of post sentence events 13The applicant provided an affidavit to the effect that he had been in custody since 11 May 2007, except for one month when he was on bail. The applicant deposed that he had attended every course that was available to him while in prison. On 3 December 2012 he started a job at Primo Australia's Scone Abattoir as an electrician in their maintenance section. He said that none of his relatives are in Australia and this makes his time in prison more difficult for him. He said that his mother was 80 years old and his father 85 and that he spoke with them by telephone most weeks. Background to this application 14The applicant was sentenced on 23 June 2009. He filed a Notice of Intention to Appeal on 25 June 2009. On 6 July 2009 he submitted an application for legal aid to Legal Aid NSW. The Notice of Intention to Appeal was extended until 29 May 2010. On 16 April 2010 the applicant withdrew his application for legal aid. 15The applicant subsequently retained a private solicitor and counsel to act for him in an appeal against conviction only. The appeal against conviction was dismissed (Radi v R [2010] NSWCCA 265). 16In January 2013 the applicant requested a review of his file by Legal Aid NSW. This review took place which resulted in an application being filed on 3 July 2013 and this matter coming before the Court. 17Although the parties accepted that "Muldrock error" had occurred, the Crown did not accept that, pursuant to s6(3) of the Criminal Appeal Act 1912 (NSW), any lesser sentence to that imposed by his Honour was warranted in law. Delay 18The sentence was imposed on 23 June 2009. The Notice of Intention to Appeal lapsed on 29 May 2010. Accordingly, an extension of time of approximately 4 years is sought by this application for leave to appeal against sentence. 19The competing submissions in relation to delay, finality and the Court's consideration of those submissions are set out in Abdul v R at [31] - [53]. Those submissions and the Court's conclusions in relation thereto are incorporated into this judgment. 20The extent of the delay is substantial and the explanation for it is not compelling. It can be inferred that when solicitors and counsel were retained to pursue the applicant's appeal against conviction, consideration was also given to appealing against sentence. The fact that no such appeal was pursued suggests that a decision was made not to appeal against sentence because there were insufficient prospects of success. The only change to those circumstances is the decision in Muldrock. The principle of finality stands against an extension of time. 21In those circumstances, the re-exercise of the sentencing discretion to determine whether "substantial injustice" would follow if an extension of time were not granted is determinative in this matter. None of the other factors identified in the decided cases favour the granting of an extension of time. Submissions 22Since "Muldrock error" was conceded by the Crown, the applicant's submissions focused on s6(3). This Court was invited to re-exercise the sentencing discretion and to determine for itself, on the whole of the facts including post sentence events, whether a less severe sentence is warranted in law and should have been passed (Baxter v R [2007] NSWCCA 237; 173 A Crim R 284, Douar v R [2005] NSWCCA 455;159 A Crim R 154). 23The applicant accepted the sentencing judge's characterisation of the objective seriousness of the offence as "below the mid-range ... but well above the low-range for such an offence". The applicant also accepted the sentencing judge's description of him as "a courier". By reference to those matters and by reference to his subjective case, the applicant submitted that the sentence passed was simply too high. 24The applicant also relied upon statistics. He submitted that out of 127 offenders who had been convicted of this offence, only 4 percent had received a sentence which was higher. The applicant noted that in relation to the non-parole period, only 4 percent of offenders had received a non-parole period of the same length or of greater length. The statistics relied upon related to persons convicted of this offence between September 2005 and October 2012. Consideration 25His Honour's finding that the present offence fell below the mid-range was based on his acceptance of the applicant's submission that his role was best described as that of a courier. That finding was open to his Honour. Nevertheless, the qualifications expressed in R v Niketic [2002] NSWCCA 425 (Wood CJ at CL, Howie J and Smart AJ agreeing) need to be kept in mind: "4 As the applicant did not give evidence in the sentencing proceedings, the Crown has not had the opportunity to test that account, and for the reasons discussed in R v Palu [2002] NSWCCA 2001 and R v Qutami [2001] NSWCCA 353, it must be given limited weight. I would add my voice to the dissatisfaction expressed in those decisions in relation to the wholly unsatisfactory practice whereby facts of relevance to an assessment of the role of an offender are sought to be proved through histories provided to third parties, which cannot then be tested. If the applicant sought to establish that his role was that of a courier, then he bore the onus of establishing that, albeit on the balance of probabilities: Olbrich v The Queen (1999) 199 CLR 270 at 281. 5 I am not persuaded in those circumstances that his Honour had any choice other than to find, as he did, that it was impossible to determine what role the applicant played beyond the fact of being the person who imported the drugs." 26As there was no evidence of the applicant's precise role in relation to the supply of the drugs this was the only assessment open to his Honour, but in the circumstances it was a generous one. It also needs to be kept in mind that at the time of his arrest the applicant had in his possession the sum of $2,800, 48 rounds of ammunition and 4 mobile telephones (3 of which were acknowledged by the applicant as belonging to him). The finding that the applicant was a courier, rather than a street level dealer, did not significantly diminish his culpability. As a courier, the applicant (who was not a drug user) was playing an important role in the distribution of the prohibited drug. 27The importance of the applicant's role can be inferred from the quantity of the drug involved. Moreover, the purity of the drug was 74 percent. As already indicated, the value of the drugs entrusted to the applicant was somewhere between $175,000 and $495,000, depending upon how it was distributed. Although his Honour made no finding that the offence was committed for financial gain, in the absence of any evidence to the contrary, that was the only inference which was reasonably available. In the circumstances, his Honour's failure to make that finding was either an oversight or was generous to the applicant. 28There was little in the way of matters which could mitigate the objective seriousness of the offence. The applicant expressed no remorse or contrition. As his Honour appreciated, specific and general deterrence loom large in drug offences such as these. The offence was objectively serious and the damage caused by drugs, particularly crystal methylamphetamine, is notorious. The principles of specific and general deterrence in drug supply matters should not merely be paid lip service but given real effect. 29As this Court has said on a number of occasions, sentencing statistics are of limited value when used to challenge a particular sentence based on particular facts. Some of these limitations were identified by the plurality in Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 where their Honours said: "54 In Director of Public Prosecutions (Cth) v De La Rosa, Simpson J accurately identified the proper use of information about sentences that have been passed in other cases. As her Honour pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. ... 55 As the plurality said in Wong: "[R]ecording what sentences have been imposed in other cases is useful if, but only if, it is accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal. The production of bare statistics about sentences that have been passed tells the judge who is about to pass sentence on an offender very little that is useful if the sentencing judge is not also told why those sentences were fixed as they were."" 30In Vandeventer v R [2013] NSWCCA 33 Adamson J (with whom McClellan CJ at CL and Rothman J agreed) said: "45 One cannot adjudge whether a sentence falls within an appropriate range by reasoning from particular instances. Applicants will always be able to find cases where offenders appear to have been dealt with more leniently. So, too, will the Crown be able to find cases where offenders have apparently been dealt with more severely than the applicant for leave to appeal on sentence. This is not, however, the way in which this Court determines whether a sentence is manifestly excessive. 46 The sentencing consistency to which the law aspires is, as the High Court said in Hili, at [18]: "...consistency in the application of relevant legal principles, not some numerical or mathematical equivalence."" 31As was properly conceded by the applicant, bare statistics are of limited assistance, particularly without knowing the facts of a case. The statistics relied upon by the applicant show little more than that the sentence imposed on the applicant was clearly within the range of sentences previously imposed, albeit on the high side. 32While the applicant has behaved well in prison and has, in effect, been a model prisoner, there is nothing in the events which have occurred post sentence which indicates that a lesser sentence is warranted in law. This is particularly so when so little of the sentence remains to be served. 33In summary, this was an objectively serious offence. The quantity of drugs involved was very much towards the top end of the "commercial quantity" classification. The nature of the drug was particularly pernicious in its effect on those who use it and, potentially at least, on those who come in contact with users. 34Even allowing for the applicant's strong subjective case, for the reasons given even if an extension of time were granted, and if leave to appeal against sentence were granted, I am not satisfied that pursuant to s6(3) of the Criminal Appeal Act, a lesser sentence than that which was imposed is warranted in law. In those circumstances, it would be futile to grant an extension of time. 35The order which I propose is that the application for extension of time be dismissed. 36JOHNSON J: I agree with Hoeben CJ at CL. 37LATHAM 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: 14 November 2013