Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: B v R [2015] NSWCCA 314 Hearing dates: 24 November 2015 Decision date: 11 December 2015 Before: Johnson J at [1] Button J at [38] Fagan J at [39] Decision: Leave to appeal granted but the appeal dismissed. Catchwords: CRIMINAL LAW – sentencing – Applicant pleaded guilty to one count of supplying a commercial quantity of a prohibited drug (methylamphetamine) - quantity just short of large commercial quantity – sentenced to imprisonment for three years and six months with a non-parole period of two years after application of 60% discount for guilty plea and assistance to authorities – whether sentence was manifestly excessive – no error demonstrated – sentence not manifestly excessive – appeal dismissed Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985 Cases Cited: Blair v R [2005] NSWCCA 78; 152 A Crim R 462 Do v R [2008] NSWCCA 34 Hili v The Queen [2010] HCA 45; 242 CLR 520 Hockey v R [2006] NSWCCA 146 Mun v R [2015] NSWCCA 234 R v Anderson [2012] NSWCCA 175 R v Dang [2005] NSWCCA 430 R v Mendez [2005] NSWCCA 246; 155 A Crim R 241 R v Shi [2004] NSWCCA 135 SZ v R [2007] NSWCCA 19; 168 A Crim R 249 Thompson-Davis v R [2013] NSWCCA 75 Texts Cited: --- Category: Principal judgment Parties: B (Applicant) Regina (Respondent) Representation: Counsel: Mr T Edwards (Applicant) Ms T Smith (Respondent) Solicitors: SF Legal (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2013/292938 Publication restriction: --- Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: --- Citation: --- Date of Decision: 5 December 2014 Before: Berman SC DCJ File Number(s): 2013/292938 Judgment 1. JOHNSON J: The Applicant, B, seeks leave to appeal against a sentence imposed on 5 December 2014 for an offence of supplying a commercial quantity of a prohibited drug (methylamphetamine) contrary to s.25(2) Drug Misuse and Trafficking Act 1985. A pseudonym is used in this judgment to describe the Applicant because of evidence before the Court concerning his assistance to authorities. 2. After a plea of guilty, the Applicant was sentenced by his Honour Judge Berman SC at the Sydney District Court to imprisonment comprising a non-parole period of two years commencing on 26 September 2014 and expiring on 25 September 2016, with a balance of term of 18 months commencing on 26 September 2016 and expiring on 25 March 2018. 3. The maximum penalty for this offence is imprisonment for 20 years with a standard non-parole period of 10 years. Ground of Appeal 1. The Applicant relies upon a single ground of appeal which asserts that the sentence imposed was, in all the circumstances, manifestly excessive. Facts of Offence 1. It is not necessary to set out in fine detail the facts of the offence for the purpose of determining this application. The events which comprised the offence occurred in July-August 2013, when the Applicant was 41 years old. The sentencing Judge described the offence in the following way (ROS1-2): "There was a significant police operation in progress over the last few years. An undercover officer was involved. The undercover officer made arrangements to purchase drugs. A kilogram of methylamphetamine was what he was after and the person to whom he was speaking indicated that he could supply them. Unfortunately for that person, and probably unfortunately for the offender, that person's usual supplier of drugs was unable to come up with what was required and so the offender was approached. Through his involvement with others, who themselves are involved in organised crime, he was able to introduce the man who had promised to supply the undercover officer to those involved in organised crime who could supply a kilogram of methylamphetamine. The offender's role was as an essential conduit between purchaser and supplier. It was not simply a case, however, of making the introduction and leaving. The offender engaged, over a number of days, in communications, ensuring that the supply would actually take place, as it eventually did. On that occasion the offender was the person who carried the drugs into the premises where the transaction was to take place. He was given a relatively small sum of money after the transaction occurred and then he transported the bulk of the cash out of the premises returning it to another location where it was counted." 1. The sentencing Judge expanded upon the Applicant's role and his motivation (ROS2-3): "I should mention that the offender's role extended beyond what I have outlined by reason of the circumstance that the first people he approached to supply the drugs could not do so. Rather than giving in, he approached others who, as it turns out, did supply the drugs the subject of this charge. The offender's conduct was seriously criminal. The offender's motivation was relatively simple. He was not a drug user. He said that his desire was to help out a man who he thought was a friend. He realised he would probably get some money, but I rather gather that his motivation was simply to do something to assist the person he thought was a friend. Of course, once he was involved in the transaction, it was very difficult to back out. He saw a firearm at one stage and explains his involvement in the actual transaction, taking the drugs in and the money out, by saying that he felt pressured to do more than just put people in touch with one another, by the reputations and conduct of those involved. This was, of course, very serious conduct by the offender. It is fortunate that ultimately the drugs were purchased by an undercover police officer so they were not distributed to drug users which would have only added to the misery that drug supply causes." 1. The quantity of methylamphetamine involved was 999.6 grams (with a purity of 59%), four times the commercial quantity and a small amount short of the large commercial quantity of one kilogram as prescribed at the date of the offence. (From 1 September 2015, the threshold for a large commercial quantity has been reduced to 500 grams). The purchase price for the drugs was $235,000.00. The Applicant received $2,700.00 for his role in the drug supply. Some Other Findings by the Sentencing Judge 1. The sentencing Judge noted that the Applicant has a criminal history for fraud and driving offences but had no drug offences on his history. This was the Applicant's first full-time custodial sentence. 2. The sentencing Judge stated that the Applicant had assisted the authorities "to a remarkable degree". The assistance had been both past and promised future assistance. The sentencing Judge outlined aspects of that assistance, which supported the finding of assistance "to a remarkable degree". That finding is not challenged in this Court. It is the case that there have been significant consequences for the Applicant as a result of this assistance. 3. The sentencing Judge allowed the Applicant a combined discount on sentence of 60% for his early plea of guilty and his assistance to the authorities, both past and promised for the future. His Honour indicated that 15% of that discount was for promised future assistance. 4. His Honour had regard to the Applicant's family circumstances and work history. 5. The sentencing Judge was satisfied that the Applicant's expression of remorse was genuine. Regard was had, as well, to a psychological report which stated that the Applicant suffered from depression and post-traumatic stress disorder. 6. His Honour observed that, given the gravity of the offence, a significant component of general deterrence was required despite the Applicant's psychological matters. The Ground of Appeal - A Claim of Manifest Excess Submissions 1. Mr Edwards, counsel for the Applicant, submitted that a notional starting point of imprisonment for eight years and nine months, with a non-parole period of five years, supported the claim of manifest excess in this case. 2. He submitted that the Applicant had acted as a conduit, and that his principal motive was to assist persons he knew, rather than monetary gain alone. Counsel pointed to a number of other sentencing decisions which he submitted supported the Applicant, including R v Shi [2004] NSWCCA 135; Blair v R [2005] NSWCCA 78; 152 A Crim R 462; Hockey v R [2006] NSWCCA 146 and R v Anderson [2012] NSWCCA 175. 3. Mr Edwards sought to rely, as well, upon sentencing statistics which, he submitted, supported the claim of manifest excess in this case (by reference to a notional starting point). 4. The Crown submitted that the focus on a sentence appeal must be the sentence actually imposed rather than a notional starting point: Mun v R [2015] NSWCCA 234 at [54]-[55]. 5. It was submitted for the Crown that the sentencing Judge had characterised properly the Applicant's role as being essential, with a substantial quantity of methylamphetamine being involved. 6. The Crown pointed to a number of sentencing decisions which, it was submitted, indicated that the sentence imposed upon the Applicant was not manifestly excessive: R v Dang [2005] NSWCCA 430; R v Shi; Do v R [2008] NSWCCA 34; R v Mendez [2005] NSWCCA 246; 155 A Crim R 241; Blair v R. 7. The Crown submitted that manifest excess has not been demonstrated by the Applicant. Decision 1. To succeed on his single ground of appeal, the Applicant must demonstrate that the sentence imposed was unreasonable or plainly unjust. A claim of manifest excess is not justified simply because, if it be the case, the result arrived at at first instance is markedly different from other sentences that have been imposed in other cases: Hili v The Queen [2010] HCA 45; 242 CLR 520 at 538-539 [58]-[59]. 2. Caution must be exercised when a claim of error on sentence is sought to be supported by reference to a notional starting point rather than the sentence actually imposed: SZ v R [2007] NSWCCA 19; 168 A Crim R 249 at 257 [40]; Mun v R at [54]. 3. That said, I am not persuaded, in any event, that examination of the notional starting point discloses error in this case. This was a serious offence of supplying a commercial quantity of methylamphetamine. The quantity involved fell just short of the large commercial quantity, for which the maximum penalty is life imprisonment with a standard non-parole period of 15 years. 4. The Applicant played a significant role in the offence over a number of days. This role involved establishing contacts between people and having physical responsibility, at one stage, for the substantial quantity of drugs involved together with the large sum of cash which was the purchase price. 5. The standard non-parole period of 10 years was a guidepost on sentence. 6. The Applicant received a combined discount of 60% for his plea and his assistance to authorities. It is necessary to keep in mind, as well, that the sentencing Judge was obliged to comply with s.23(3) Crimes (Sentencing Procedure) Act 1999, which required that a lesser penalty imposed because of assistance to authorities "must not be unreasonably disproportionate to the nature and circumstances of the offence". 7. The sentencing Judge considered all relevant aspects of the case. The Applicant's subjective case was taken into account. The psychologist's report did not suggest any causal link between any condition and the offending conduct. General deterrence still had a role to play on sentence as well. After making the substantial (and appropriate) allowance for the Applicant's assistance to authorities, the Court imposed a sentence which reflected the objective seriousness of his offence. 8. The non-parole period was 57% of the head sentence, reflecting a finding of special circumstances in the Applicant's favour. 9. Sentencing statistics provide no real assistance on sentence in this case: Thompson-Davis v R [2013] NSWCCA 75 at [53]. 10. I accept the Crown submission that a comparison with sentences imposed in broadly similar cases such as R v Dang; R v Shi; Do v R; R v Mendez and Blair v R serve to demonstrate that the sentence imposed upon the Applicant was not manifestly excessive. Brief mention is made below to these decisions. 11. In R v Dang, a 24-year old offender was sentenced for supplying a commercial quantity of cocaine (983 grams) of 82.5% purity. The offender was more than a mere courier and was in contact with the supplier and the buyer. This Court (on a Crown appeal) imposed a sentence (after a 25% discount for a guilty plea) of imprisonment for nine years with a non-parole period of five years. 12. In R v Shi, a 19-year old offender was sentenced for supplying a commercial quantity of methylamphetamine (992.2 grams) of 84.5% purity. The offender had played a delivery role. This Court (on a Crown appeal) imposed a sentence (after a 25% discount for a guilty plea) of imprisonment for six years with a non-parole period of three years. 13. In Do v R, a 46-year old offender was sentenced for supplying a commercial quantity of methylamphetamine (497.4 grams) of 74% purity. The offender was more than a mere courier and provided bags of drugs to a co-offender who supplied an undercover officer. This Court (on Do's appeal) imposed a sentence (after a 20% discount for a guilty plea) of imprisonment for six years and six months with a non-parole period of three years and six months. 14. In R v Mendez, a 22-year old offender was sentenced for supplying a commercial quantity of methylamphetamine (478.8 grams) of 84% purity. He was not a mere courier and was involved in a number of aspects of the drug supply business. He was convicted after trial. This Court (on a Crown appeal) imposed a sentence of imprisonment for eight years with a non-parole period of five years and six months. 15. In Blair v R, the offender was sentenced for supplying a commercial quantity of methylamphetamine (371.3 grams) of 6-14.5% purity. He was a courier and storeman who collected and retained drugs. He was convicted after trial. This Court (on Blair's appeal) imposed a sentence of imprisonment for seven years with a non-parole period of five years and three months. 16. The Applicant has not demonstrated that the sentence imposed was manifestly excessive. Conclusion 1. I propose that leave to appeal be granted but that the appeal be dismissed. 2. BUTTON J: I agree with Johnson J. 3. FAGAN J: I agree with Johnson 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 2015