Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Dries v R [2014] NSWCCA 228 Hearing dates: 1 October 2014 Decision date: 23 October 2014 Before: Hoeben CJ at CL: [1] Rothman J: [2] RA Hulme J: [49] Decision: 1.Grant leave to appeal; 2.Appeal dismissed. Catchwords: CRIMINAL LAW - SENTENCING - appeal - agreed facts contained error as to purity affecting one smaller quantity of drugs in one offence - two offences - no error disclosed - no real possibility that error impacted on aggregate sentence imposed, nor relevant indicative sentence - applicant conceded could not have affected non-parole period - error by counsel did not affect result Legislation Cited: Crimes Act 1900 Criminal Appeal Act 1912 Drug Misuse and Trafficking Act 1985 Cases Cited: House v R [1936] HCA 40; (1936) 55 CLR 499 R v Blair [2005] NSWCCA 78; (2005) 152 A Crim R 462 Category: Principal judgment Parties: Shannon Dries (Applicant) Regina (Respondent) Representation: Counsel: C Simpson (Applicant) NJ Adams (Respondent/Crown) Solicitors: Thompson Madden (Applicant) J Pheils, Solicitor for Public Prosecutions (Respondent/Crown) File Number(s): 2012/237563 Publication restriction: None Decision under appeal Date of Decision: 2013-10-29 00:00:00 Before: Sides QC DCJ File Number(s): 2013/237563 Judgment 1HOEBEN CJ AT CL: I agree with Rothman J. 2ROTHMAN J: Shannon Dries, the applicant, seeks leave to appeal a sentence imposed upon him following a plea of guilty. The effective sentence imposed was a non-parole period of three years' imprisonment, commencing 31 July 2012 and concluding 30 July 2015, with the remainder of term being a period of three years and six months expiring 30 January 2019. 3A plea of guilty was entered on 26 April 2013 at the Local Court and confirmed before the District Court at all stages. 4The applicant was sentenced, in the District Court, following his plea, for the following offences: Sequence 6: Supply prohibited drug, 122 grams cannabis leaf, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (for which the maximum penalty is 10 years' imprisonment and/or a fine of $220,000 and for which there is no prescribed standard non-parole period); Sequence 7: Supply commercial quantity of prohibited drug, 477.9 grams of methylamphetamine, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985; Sequence 8: Supply commercial quantity of prohibited drug, 192.3 grams of 3, 4-methylenedioxyamphetamine (ecstasy) contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. [Sequences 7 and 8 above each carry a maximum penalty of 20 years' imprisonment and/or $385,000 fine and have a prescribed standard non-parole period of 10 years' imprisonment]. 5Further to the above, the applicant was sentenced, in relation to Sequence 7, bearing in mind two charges notified on a Form 1, which were: (1)Two counts of supply prohibited drug, cannabis leaf, pursuant to s 25(1) of the Drug Misuse and Trafficking Act 1985 for which a maximum penalty is 10 years' imprisonment and/or $220,000 fine; (2)Three counts of unlawfully obtained goods on premises, motor vehicle parts, pursuant to s 527C(1)(c) of the Crimes Act 1900, for which is prescribed a maximum penalty of 12 months' imprisonment and/or a $1,100 fine. 6The sentencing judge imposed an aggregate sentence, which is set out below, together with the indicative sentences: Sequence 6: Conviction, but, pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 the imposition of no other penalty; Sequence 7 (Indicative Sentence): Taking account of the Form 1 offences, imprisonment for a non-parole period of two years and six months with a remainder of term of a further two years and nine months; Sequence 8 (Indicative Sentence): Imprisonment for a non-parole period of two years and six months with a remainder of term of a further two years and six months. Pursuant to the provisions of s 53A of the Crimes (Sentencing Procedure) Act, an aggregate sentence was imposed of a non-parole period of three years' imprisonment, commencing 31 July 2012 and expiring 30 July 2015 with a remainder of term of a further three years and six months expiring 30 January 2019. 7The applicant raises one ground of appeal, which, as filed, was in the following terms: (1)His Honour was led into error by a statement of facts which erroneously recorded the purity level of a prohibited drug, causing the sentencing judge to take into consideration the purported very high purity level of the drug in imposing sentence, where that purity level was in fact unknown. 8During the hearing, on questioning from the Court, the applicant sought, and was granted leave, to amend the ground to the following: (1)The sentence proceedings miscarried by reason of an error in the statement of agreed facts which erroneously recorded the purity level of a prohibited drug, causing the sentencing judge to take into consideration the purported very high purity level of the drug in imposing sentence, where that purity level was in fact unknown. Facts 9On 22 April 2012, the applicant engaged in a telephone conversation with an unknown person and agreed to supply that person with an amount of cannabis. This is one of the offences notified on the Form 1. On 2 May 2012, the applicant engaged in a further telephone conversation with another person, a male, and agreed to sell and supply cannabis (the second supply offence notified on the Form 1). 10On 28 May 2012, the applicant engaged in a further telephone conversation with a male that was intercepted by police. The applicant was subsequently stopped by police while driving to a townhouse in Penrith, where the other person involved in the telephone conversation resided. Police found 122 grams of cannabis leaf in four bags in the applicant's car. This is the charge preferred, and described above, as Sequence 6. 11On 24 July 2012, police executed a search warrant at the home of the applicant and found a box containing four clear plastic bags in his bedroom. Subsequent analysis found two of the bags contained a combined total of 477 grams of methylamphetamine (Sequence 7) and the other two bags contained a combined total of 192.3 grams of ecstasy (Sequence 8). 12In the course of the sentencing proceedings a statement of Agreed Facts, which the Crown tendered set out the purity of the prohibited drug found in each bag. Both bags containing methylamphetamine were said to have a purity of 14%. The bag containing 129.3 grams of ecstasy was said to have a purity of 17% and the smaller bag containing 63 grams of ecstasy was, in the Agreed Facts, stated to have a purity of 63%. No Analyst Certificate was tendered to the Court. 13The Analysts' Certificates were provided to the applicant as part of the police brief of evidence, but were not tendered. The Analysts' Certificates demonstrate the correctness of the Agreed Facts in relation to the purity of each of the bags containing methylamphetamine and the larger bag containing 129.3 grams of ecstasy. However, the Analysts' Certificates show the purity of the smaller bag of 63 grams of ecstasy was not tested. 14It seems that in compiling the Agreed Facts, the weight of ecstasy in the smaller bag was repeated, mistakenly, as the purity of the ecstasy in that bag. None of the Analysts' Certificates was before his Honour, as already stated, and his Honour was unaware of any issue as to purity other than that stated in the Agreed Facts. Remarks on Sentence Objective Circumstances 15I do not repeat all that was the subject of comment by his Honour in describing the objective circumstances. The facts giving rise to the offences have already been set out and were repeated by his Honour in his Remarks on Sentence. His Honour referred (ROS, 6) to the purity of the ecstasy, but it was in the context of a passage that referred to there being little or no indicia of actual supply. His Honour said: "During the course of his evidence, the Offender said he had it [the methylamphetamine] for his own use and to give to nine or ten mates without profit. He may well have had the funds to make the purchase of these drugs via the combination of his payout and the sale of his dogs that he bred and trained. His own usage, however, would mean that these drugs would have lasted him a long time. Apart from what is referred to as a debt ledger, there is no indicia of supply. The facts, which the Offender signed, referred to this debt ledger as being consistent with a tick list recording supplies of prohibited drug. His signing of the facts is no more than an acknowledgment that it is consistent with that and does not amount to an acceptance or admission on his part that that is what it was. During evidence, he said it was a reflection of people paying him for the dogs that they had bought from him after he bred and trained them." 16Generally, his Honour came to the view, to the advantage of the applicant, that the applicant was using the supply to his nine or ten mates as a means of covering the outlay for his own use, which the Court remarked "explains but does not excuse his offending behaviour" (ROS, 7). 17The sentencing judge came to the conclusion that, while the acts of supply to his mates must have been intended to be on a very regular basis, it was "not in the higher echelons of the drug trafficking hierarchy" and accepted that the applicant "was trafficking drugs to a relatively small group of individuals whom he knew were users for the purposes of funding his own habit" (ROS, 7). 18Understandably, even though the sentencing judge made reference to the purity of the drugs, the reference was very much a passing reference and, the entirety of the Remarks on Sentence (at least in relation to objective circumstances) referred to the usual factors to conclude that the objective circumstances of the offences were "below the middle of the range of objective seriousness but not at the bottom of the range, indeed far from it". Subjective Circumstances 19His Honour allowed a discount for the plea of guilty of 25%, the plea having been entered at the earliest opportunity. His Honour took account of the applicant's relatively young age although, correctly, remarked that 24 years of age, the age of the applicant at the time the offences were committed, was at the "very upper echelons of what might be regarded as young", and, notwithstanding that comment, gave slight weight to deterrence and greater weight to rehabilitation (ROS, 8). Consideration was also given to the applicant's substance abuse issues and mental health issues. However, due to their lack of causal connection, his Honour did not give less weight to deterrence because of these issues (ROS, 8). 20His early years, noted by the sentencing judge, were affected by his mother's mental health issue. The applicant was the middle of three children, but also lived with four younger foster children. The applicant was diagnosed with ADHD and oppositional defiance disorder and prescribed medication as a child for those conditions. Schooling was intermittent and employment was casual and irregular. 21The applicant has a son, born in 2008, and the applicant separated from his child's mother, and was separated at the time of his arrest. An allowance was made, as a subjective factor favouring the applicant, that he was responsible for the care of his son for three or four days per week and would have full time custody of the child when released (ROS, 3). 22The applicant was given the benefit of the fact that he was a victim of a glassing when he was 21 and lost some sight in one eye. He was also given the benefit of medical conditions discovered, at or just prior to, his incarceration. The applicant has a substance abuse problem that commenced when he was about 12 years of age. 23The sentencing judge also gave the applicant the benefit of an assessment that he suffered PTSD and high levels of anxiety and stress, which had been described by experts as extremely severe, while his level of depression was described as moderate. 24The sentencing judge found, due to the requirement that the applicant be in protective custody (ROS, 4) and his physical and mental health issues, that the applicant's time in custody would be more burdensome (ROS, 4). 25The sentencing judge also found that the applicant's prospects of rehabilitation were very good and the likelihood of reoffending very low, particularly if the applicant addressed his substance abuse problems and treated his mental health issues (ROS, 7). 26Lastly, the sentencing judge gave the applicant the benefit of leniency, extended to first offenders as a consequence of a criminal history that consisted only of traffic offences (ROS, 5) and found that the applicant was remorseful (ROS, 2). Consideration 27The applicant concedes that the Analysts' Certificates were not tendered at sentence. His Honour relied upon the Agreed Facts, which was the evidence before him. In so doing, his Honour committed no error. 28Rather, the agreement between the parties as to the relevant facts occasioned, it is said, a miscarriage in the sentencing proceedings. 29In effect, the applicant submits that this Court should go behind the evidence adduced in the proceeding, because the evidence may have led his Honour into error, or, as last framed, led to a miscarriage. 30Significantly, the applicant does not argue that the sentence imposed was manifestly excessive (or excessive, at all). 31The Crown concedes that the Agreed Facts upon which his Honour relied were, to the extent that it specified a purity of 63% for the smallest bag of ecstasy, not based on any source evidence and ought not to have been put to his Honour. 32His Honour came to the view that the objective seriousness of the offence fell below the middle of the range of objective seriousness (ROS, 7), but not at the bottom of the range. It is not suggested that such an assessment was wrong, manifestly or otherwise. Nor is it suggested that, were the purity of the smallest bag of drugs stated as "unknown" in the Agreed Facts (as should have been the case), the assessment would have been different. 33While the sentencing judge referred to the purity of the drugs in the smallest container on three separate occasions in the course of his Remarks, at no stage did he expressly link the purity of the smallest of the quantity with the assessment of criminality. As earlier stated, the sentencing judge expressly accepted, albeit with some reluctance, that the drug supply was to persons whom he knew and who, he knew, were drug users and effected by the applicant for the purpose of funding his own drug abuse. 34It is not absolutely clear, from the submissions of the applicant, that which is said to be the error into which his Honour was led (as originally agitated) or what the miscarriage was. Sentencing is an intuitive synthesis which in part seeks to reconcile sometimes conflicting goals. This Court will intervene in a sentence only where one of the specified and narrow bases for intervention has been established. 35It is not an error for the sentencing judge to rely on the only evidence before him. When the High Court remarked that an appeal court will intervene in the sentence only on grounds, which include that the sentencing judge "mistakes the facts", it was referring to the facts that have been adduced in evidence before the Court: see House v R [1936] HCA 40; (1936) 55 CLR 499 at 504-505. 36In truth, the ground of appeal is that the sentence proceedings miscarried. Both the Crown and the applicant's counsel had the Analysts' Certificates, which formed the basis for the Agreed Facts. 37As is conceded by the applicant in his submissions to this Court, the sentencing judge did not differentiate, in terms of the assessment of objective seriousness, between the offence described in Sequence 7 and the offence described in Sequence 8. Yet the error in relation to purity affected only the circumstances of Sequence 8 and only a minority of the drugs subject to Sequence 8. 38There is no necessary nexus between the purity of a drug and the offences under the Drugs Misuse and Trafficking Act. There exists no legislative requirement to connect purity with the applicable statutory maximum penalties. Nevertheless, purity is a factor considered when determining whether an offence falls into the mid-range of seriousness: R v Blair [2005] NSWCCA 78; (2005) 152 A Crim R 462 at [56]. 39The indicative sentence for Sequence 7, as has been stated, takes account of Form 1 offences. Each of those offences involves supply of small amounts of cannabis or possession of stolen goods. No one submits that any of those offences would have had an effect (or substantial effect) on the sentence, particular in light of the judge's attitude to Sequence 6. 40Where, as here, the sentencing judge does not differentiate between the objective seriousness of two different offences, coupled with the absence of a legislative requirement connecting purity with the maximum penalty imposed for particular offences, it becomes difficult to maintain a proposition that an error of fact applicable to only one part of one of them has affected, or significantly affected, the assessment of objective seriousness of that offence. 41In this instance, the maximum sentences for each of the offences for which a custodial sentence was imposed was 20 years' imprisonment. Yet, the sentencing judge imposed an indicative sentence of a non-parole period of 2 years and 6 months for each, and a further 2 years and 9 months or 2 years and 6 months respectively. 42An aggregate sentence of 3 years non-parole period with a further 3 years and 6 months as the remainder of sentence, compared to a maximum penalty of 20 years' imprisonment and a standard non-parole period of 10 years' imprisonment for each offence is hardly reflective of a proposition that the sentencing judge has imposed a sentence that is too high (or higher than it should or could be) because of a misrepresentation to him by counsel of the purity of the smallest amount of drugs in one of four bags. On the contrary, if the sentencing judge has taken into account, to any significant degree, the level of purity of the 63 gram bag of ecstasy, the sentence is extraordinarily light. 43No error was committed by his Honour. His Honour sentenced on the basis of the evidence before him. If error were to have occurred in the process, it is error by counsel that has led to a miscarriage or an irregularity in the proceedings. Unless the error renders the sentencing process or the result irregular, the foregoing kind of error can only give rise to interference by this Court if it can be shown that the error had an effect, or substantial effect, on the sentence imposed and the sentence is, on that account, inappropriate. 44The objective seriousness of the offence described in Sequence 8 could not have been different from that assessed by the sentencing judge, even adjusting any possible assessment for the correct (or unknown) purity of the small ecstasy bag. The applicant has failed to establish any difference, or likely difference, in the assessment of objective seriousness, nor in the sentence that would otherwise have been imposed. 45Further, any arguable error would impact on only one of the two indicative sentences and no submission has been made as to how that would have impacted on the aggregate sentence imposed. Indeed, counsel for the applicant conceded that, if error were to be found, this would not affect the non-parole period set by his Honour, but only possibly the remainder of term. 46The objective error in the facts admitted into evidence before the sentencing judge has not been shown to have given rise to any substantial effect and has not been shown to have resulted in a sentence that is, on the true facts, inappropriate, or unwarranted. 47Even if it were otherwise, the applicant has, in my view, failed to satisfy the threshold in s 6(3) of the Criminal Appeal Act 1912 that a less severe sentence is warranted. 48In my view, the appeal must fail and I propose that the Court make orders granting leave to appeal and dismissing the appeal. 49RA HULME J: I agree with Rothman 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: 23 October 2014