Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Elliott v R [2018] NSWCCA 69 Hearing dates: 9 April 2018 Date of orders: 13 April 2018 Decision date: 13 April 2018 Before: Leeming JA at [1]; Fullerton J at [2]; McCallum J at [46] Decision: 1. Grant leave to appeal against sentence. 2. Appeal allowed. 3. Quash the sentences imposed by North DCJ on 22 June 2017 and in lieu thereof, impose the following sentences: On Count 2, the charge of supply of 7.28 grams of methamphetamine, a fixed term of imprisonment of 18 months commencing 6 July 2016 and expiring on 5 January 2018. On Count 1, the charge of ongoing supply, a non-parole period of 18 months commencing on 6 November 2016 and expiring on 5 May 2018 with a parole period of 12 months expiring on 5 May 2019. The overall sentence therefore is 2 years and 10 months. Catchwords: CRIMINAL LAW – appeal against sentence – whether the applicant acted "in company" in supplying prohibited drugs – whether the degree of planning and organisation in the supply of prohibited drugs permitted a finding that the applicant's offending was aggravated – whether the sentencing judge denied the applicant procedural fairness by finding factors of aggravation without notice to the applicant Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(n) Criminal Appeal Act 1912 (NSW), s 5(1)(c) Criminal Procedure Act 1986 (NSW), s 166 Drug Misuse and Trafficking Act 1985 (NSW), ss 25A(1), s 36Y(1)(a) Cases Cited: Dang v R [2014] NSWCCA 47 Fahs v R [2007] NSWCCA 26 Gore v R [2010 NSWCCA 330; 208 A Crim R 353 Hewitt v R [2007] NSWCCA 353; 180 A Crim R 306 Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601 Ng v R [2011] NSWCCA 227 Prculovski v R [2010] NSWCCA 274 R v Wang; R v Roizman [2013] NSWCCA 2 Thomson v R [2014] NSWCCA 88 Weir v R [2011] NSWCCA 123 White v R [2016] NSWCCA 190 Wills v R [2014] NSWCCA 253 Category: Principal judgment Parties: Shane Elliott (Applicant) The Crown (Respondent) Representation: Counsel: J Paingakulam (Applicant) H Roberts (Crown) Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2016/204783 Decision under appeal Court or tribunal: District Court Date of Decision: 22 June 2017 Before: North DCJ File Number(s): 2016/204783 Judgment 1. LEEMING JA: I agree with Fullerton J. 2. FULLERTON J: The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal the sentences imposed on him in the Dubbo District Court on 22 June 2017. 3. On that date he entered pleas of guilty to two counts on an indictment, each of which the applicant had pleaded guilty to in the Local Court on 22 February 2017. 4. Both counts were laid pursuant to the Drug Misuse and Trafficking Act 1985 (NSW). 5. The first count alleged that between 11 December 2015 and 12 January 2016 at Dubbo the applicant supplied a prohibited drug for financial or material reward on three or more separate occasions. That offence was laid contrary to s 25A(1) of the Drug Misuse and Trafficking Act. It was referred to in the sentence proceedings and on appeal as "the ongoing supply count". It involved the applicant supplying three different drugs between the nominated dates on five separate occasions. Three of the five supplies involved the supply of methamphetamine (totalling 6.125 grams). The remaining two supplies involved the supply of a 100mg fentanyl patch and a buprenorphine strip. The agreed facts tendered on sentence refer to telephone intercept material recording regular communication between the applicant and two other offenders (being a Mr Dunn and a Mr Kennedy) for the purpose of discussing and facilitating the supply of the three prohibited drugs. 6. The second count alleged that on 6 July 2016 at Dubbo the applicant supplied 7.28 grams of methamphetamine. That drug was located at the applicant's home upon the execution of a search warrant. The drug was contained within five plastic satchels. Other drug supply paraphernalia were also located including two sets of electronic scales, $850 in cash, a quantity of resealable bags and a closed circuit television system. 7. A further offence of allowing his premises to be used as a drug premises pursuant to s 36Y(1)(a) of the Drug Misuse and Trafficking Act was before the Court on a certificate pursuant to s 166 of the Criminal Procedure Act 1986 (NSW). In respect of that offence, the sentencing judge imposed a fixed term of imprisonment of 3 months to commence on 6 July 2016; the date of the applicant's arrest and his detention in custody bail refused. As at the date of sentence, that fixed term had expired. 8. In respect of the second count, and after allowing a discount of 25 per cent for the plea of guilty, his Honour imposed a fixed term of imprisonment of 1 year and 8 months against a statutory maximum of 15 years imprisonment and or a fine of $220,000. That sentence was also ordered to commence on 6 July 2016. As at the date of the hearing of the appeal, that sentence has been fully served. It expired on 5 March 2018. 9. In respect of the first count on the indictment, and again after allowing a 25 per cent discount for the plea of guilty, his Honour imposed a non-parole period of 20 months partly accumulated on the sentence the subject of the second count. That sentence commenced on 6 November 2016 and the non-parole period is due to expire on 5 July 2018. His Honour imposed an additional term of 12 months to date from the expiration of the non-parole period. 10. The effective sentence of 3 years imprisonment with a non-parole period of 2 years expires on 5 July 2019. His Honour altered the statutory ratio between the non-parole period and the balance of term upon a finding of special circumstances. 11. His Honour directed that the applicant be released to parole at the expiration of the non-parole period. 12. The applicant gave evidence at the sentence proceedings in the course of which he asserted that he had engaged in the supply of the drugs the subject of both counts on the indictment due to threats or pressure applied to him by two co-offenders, Messrs Dunn and Kennedy. He gave evidence that the quantity of methamphetamine the subject of both counts had been given to him by Kennedy on instructions that it was to be supplied to Dunn. 13. The sentencing judge was satisfied that the applicant's offending was precipitated by reason of a drug debt the applicant owed to Kennedy and that Kennedy's demand for payment to discharge that debt was to be acquitted on the applicant supplying drugs to Dunn on Kennedy's behalf. 14. His Honour also made a number of favourable findings referable to the applicant's subjective circumstances including his use of drugs and alcohol from about age 13 in the context of a disturbed upbringing and in response to a number of traumatic events. His Honour noted that the applicant was able to extricate himself from drug use when, at about age 25, he relocated to Dubbo and obtained secure full-time employment. His Honour found that the applicant relapsed into drug use upon separation from his partner but addressed his drug use when he returned to work. However, when he sustained a compound fracture of his right leg in a "hit and run" accident his drug use again escalated with the use of prescribed opiates. The applicant participated in an opioid treatment program over successive periods in 2008, 2009 and 2012 before he again relapsed when he commenced to use amphetamines in 2015. At the time of his arrest for the index offences the applicant was dependent on that drug and had been for a period of 18 months. 15. Upon admission into custody he commenced treatment under a custodial based methadone program. As at the date of sentence, the sentencing judge was satisfied the applicant was no longer using methadone as an opiate substitute and was taking prescribed anti-depressant drugs to treat an underlying depressive condition. His Honour also accepted that upon his eventual release the applicant was willing to participate in a drug and alcohol program to ensure he remained drug free. Further, his Honour accepted that the applicant had insight into his drug offending and was remorseful, although he regarded his chances of rehabilitation as "guarded" given his age and the duration, albeit intermittent, of his addiction to prohibited drugs. His Honour noted that there was no adverse record of any custodial infringements in respect of the use of drugs or otherwise, on the basis of which his Honour concluded the applicant's rehabilitation had commenced and that it was to be encouraged. 16. His Honour acknowledged the applicant's criminal record was not extensive but that it was one that disentitled him to leniency. 17. The applicant's history of drug use coupled with an established and supportive relationship with his partner (who his Honour accepted had no knowledge that the applicant had been supplying drugs whilst they were living together) satisfied his Honour that the applicant and the community would benefit from a longer period on parole to ensure that he remained drug free under ongoing supervision by Community Corrections. The grounds of appeal 1. The applicant relied on two grounds of appeal: 1. The sentencing judge erred in finding that the objective criminality the subject of the supply of methamphetamine on Count 2 was aggravated by having been committed in company and that in making that finding, his Honour failed to afford the applicant procedural fairness. 2. The sentencing judge erred in finding that the objective criminality the subject of the ongoing supply count was aggravated because it involved planning and organised criminal activity as comprehended by s 21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999 (NSW). Ground 1 1. The sentencing judge's findings as concerned the objective seriousness of the supply amphetamine count included the following: [G]iven the amount of 7.28 grams found within the five plastic satchels in the lounge room, which forms count 2, it falls, in my opinion, into the category of the offender being substantially involved in supply. The Crown can rely on s 29 of the Act to 'deem' supply and of course the offender has pleaded guilty. Further, the offender has acted in company with two co-offenders at least, namely, Mr Dunn and Mr Kennedy. In all the circumstances, this offence falls in the middle of midrange and the bottom range in terms of objective seriousness. 1. On the appeal the applicant submitted that, properly understood, his Honour had found as a statutory aggravating factor that the applicant acted in company with Messrs Dunn and Kennedy in the supply of the amphetamine the subject of the second count, having given no indication to the parties during the sentence proceedings that he was considering taking that approach, such as might have permitted the applicant's counsel an opportunity to dissuade him from making that finding. On the appeal counsel submitted that, of itself, constituted an error in sentencing principle. 2. Counsel referred the Court to Weir v R [2011] NSWCCA 123 at [64]-[67] where the relevant principles to be applied when a complaint is made concerning the lack of procedural fairness were summarised by Garling J (Macfarlan JA and Johnson J agreeing): [64] It is clear that an offender is entitled to procedural fairness during criminal proceedings, including proceedings on sentence: Pantorno v The Queen (1989) 166 CLR 466 at 472-3 per Mason CJ and Brennan J, 482-483 per Deane, Toohey and Gaudron JJ; Parker v DPP (1992) 28 NSWLR 282; Baroudi v Regina [2007] NSWCCA 48; Button v Regina [2010] NSWCCA 264. [65] The particular form which procedural fairness dictates may vary. That is because the content of the requirement of fairness may be affected by what is said and done during the proceedings: Re Minister for Immigration & Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1 at [34] per Gleeson CJ. Here the relevant process was the sentencing of Mr Weir by King DCJ in circumstances where, the applicant contends that, King DCJ indicated the sentence that he proposed to impose. [66] The key to determining whether there has been a breach of the requirement of procedural fairness is to ascertain the consequence of any departure from the dictates of proper procedure because what is ultimately in issue is whether unfairness has resulted from the process: See Lam at [34]. The concern of the law is to avoid practical, and not merely theoretical, injustice: Lam at [37]. [67] One common basis for demonstrating that practical injustice and unfairness has occurred is where an individual has lost the opportunity to make submissions to the decision maker in opposition to a proposed course and in support of a course which he urges: Lam at [36]; Button at [18]. 1. The reasoning in Weir has been applied by this Court in a number of matters: Ng v R [2011] NSWCCA 227; R v Wang; R v Roizman [2013] NSWCCA 2; Dang v R [2014] NSWCCA 47; Thomson v R [2014] NSWCCA 88; Wills v R [2014] NSWCCA 253. 2. Further, counsel submitted that s 21A(2)(e) of the Crimes (Sentencing Procedure) Act had no application to the facts underpinning the criminal conduct the subject of the second count. 3. In that regard, counsel relied upon Gore v R [2010 NSWCCA 330; 208 A Crim R 353 per Adams J at [28]-[29] and Howie J at [101]-[103] where their Honours held that it was not sufficient for a Court to simply refer to a statutory aggravating factor without considering whether the factor truly aggravates the criminal conduct in the context of the commission of the particular offence. As Howie J held at [103]: Like conspiracy, an offence may be aggravated because the offender has employed others to carry out, or assist, in the commission of a crime. But this is not because the offender is in company with those he employs. Such a circumstance is aggravating because the offender has involved others, perhaps for reward, in carrying out his crime. 1. The applicant also relied on White v R [2016] NSWCCA 190 where Simpson JA, with whom Bathurst CJ agreed, cited with approval the judgments of Adams and Howie JJ in Gore, and reviewed the case law in respect of the aggravating factor of being "in company". At [94] her Honour held: The decisions concerning the construction to be placed on the element of an offence being committed in company are, therefore, in my opinion, relevant to the construction to be given to s 21A(2)(e). I do not take those statements to be an exhaustive statement of what might be held to be "in company". Each case will depend upon its own facts. It is appropriate, however, to focus on at least three questions: (i) whether the presence of the other person is such as to have a potential effect on the victim, by way of coercion, intimidation, or otherwise; (ii) whether the presence of the other person is such as to have a potential effect on the offender, by offering support or encouragement, or "emboldening" that person; (iii) whether the evidence establishes that the other person is present, sharing a common purpose with the offender. 1. There was some uncertainty in the sentence proceedings as to whether the conduct the subject of the second count was an actual supply or a deemed supply, that is, whether the applicant was to be sentenced for an actual supply in the sense the drug was being held in the applicant's possession for supply to Dunn or a deemed supply because of the quantity of the drug (as provided for in s 29 of the Drug Misuse and Trafficking Act). Either way, it cannot, in my view, be meaningfully said that the applicant engaged either Kennedy, as the supplier to him of the drug, or Dunn, as the person to whom some or all of the drug was to be supplied, to assist him in his offending such as to support a finding that the applicant acted "in company" with them, or either of them. 2. On the hearing of the appeal the Crown submitted that his Honour's reference to "the offender [having] acted in company with two co-offenders" did not amount to a finding that the offending was aggravated by being committed "in company". The Crown submitted that it was open to the Court to find that his Honour was doing no more than conveying what was common ground on the sentence proceedings, namely, that the applicant was involved with those two men in a milieu of drug supplying having admitted to intending to supply Dunn and others at Kennedy's direction. 3. The Crown submitted on that construction there was no error in his Honour's factual finding. Further, the Crown submitted that there is nothing in his Honour's reasons for sentence, or in the sentence imposed, to suggest that the sentence was increased because of a finding that the applicant acted "in company" with others as a drug supplier. 4. The applicant submitted that was no answer to the error contended for. Even if this Court was not of the view that his Honour treated the involvement of the two named men as a statutory aggravating factor, a factual finding that the applicant acted "in company" with them by supplying drugs to one of them at the direction of another was not open on the evidence in any event. 5. Whilst there is some doubt as to what his Honour intended by the finding that is under challenge, on either of the alternate bases contended for by the applicant I am of the view that the error the subject of Ground 1 is made out. Ground 2 1. In the applicant's written submissions to the sentencing judge, reference was made to s 21A(2)(n) of the Crimes (Sentencing Procedure) Act as a "possible relevant aggravating factor" with counsel submitting that whilst he felt obliged to bring the potential application of that provision to his Honour's attention, he did not rely on it. This prompted the following exchange between counsel and the sentencing judge: Counsel: At para 11, when I say that I had a professional duty and obligation to turn your Honour's mind to whether or not there was an aggravating factor, I respectfully submit the only possibly aggravating factor is whether the offence is part of a planned or organised criminal activity. His Honour: That's part of the system and repetition and everything. Counsel: I don't rely on it. His Honour: That's all right. I'll deal with that. Counsel: To which we swiftly say it's not. 1. That submission, which appeared to be accepted by the sentencing judge, was consistent with a further submission advanced in writing on the applicant's behalf that "the offending was not 'a systematic criminal system' for the purpose of profitable commercial operation". 2. The Crown who appeared at the sentence proceedings expressly disavowed any reliance on s 21A(2)(n) as a statutory aggravating factor. 3. Notwithstanding that concession, the sentencing judge held as follows (emphasis added): Accordingly, this offender, although in the business of supplying drugs, was not a leading principal, but was able to supply drugs to Mr Dunn in amounts above pure street level. So he was involved in a planned and organised criminal activity, which is an aggravating factor. As I have said, he was not a principal but was above those who could be termed street level user/dealers. 1. His Honour made that finding without signalling his intention to find the factor of aggravation proved and without allowing counsel the opportunity to persuade him to the contrary. 2. As is evident from his Honour's sentencing remarks, it appears he was influenced in his ultimate determination that the applicant was involved in a planned and organised criminal activity (at least insofar as the ongoing supply of prohibited drugs the subject of the first count was concerned) by the fact the applicant was supplying more than one prohibited drug. That is reflected in the following remarks: The fact that this offender could supply other drugs shows that he was, at the time of committing this offence, well involved in the drug milieu. 1. It would also appear from the extract at 34 above that his Honour was influenced in concluding that the ongoing supply involved planning and organised criminal activity because the amphetamines actually supplied to Mr Dunn (that is, three of the five supplies the subject of Count 1) were in what his Honour described as amounts above pure street level. Somewhat curiously, his Honour also found that "[t]he agreed facts do not reveal in regard to [the] s 25A charge any well-organised system with the times and places of the supplies being variable" and "[t]here is nothing particularly sophisticated about [the applicant's] involvement". In my view, that finding cannot sit with his Honour's finding that the applicant was involved in "a planned and organised criminal activity". 2. On the appeal the Crown submitted that the two findings were not contradictory and that while the variation in the time, place and type of drug supplied did not reveal a sophisticated or well organised system of drug supply, it was nonetheless open to his Honour to find that the activity was planned and organised, even if clumsy or haphazard (see Hewitt v R [2007] NSWCCA 353; 180 A Crim R 306 at [25]). The Crown also submitted that whilst supplying drugs on an ongoing basis does not have an inherent or necessary characteristic of planning or organisation, where the activity is more than what might be expected of the lowest level of offending of this kind a sentencing court may take planning and organisation into account as an aggravating factor (see Prculovski v R [2010] NSWCCA 274 at [43]). 3. The applicant submitted that while the supply of two of the prohibited drugs, namely, the fentanyl patch and the buprenorphine strip, were two of the three prohibited drugs supplied on an ongoing basis, that did not allow for a finding that the applicant was well involved in the drug milieu, since the fentanyl patch was obtained by the applicant on prescription and the buprenorphine strip is an opioid used to treat opioid addiction. Although the applicant's counsel accepted that there was no direct evidence that the applicant had access to that drug via his own treatment program for opioid treatment, she submitted that was, at least, an available inference and, on that basis, the ongoing supply of all three prohibited drugs is fairly characterised as conduct akin to "street dealing". On that analysis, counsel relied upon Fahs v R [2007] NSWCCA 26 where, in relation to the application of s 21A(2)(n) to a charge of ongoing supply contrary to s 25A(1) of the Drug Misuse and Trafficking Act, Howie J, with whom Simpson and Buddin JJ agreed, observed as follows: [22] Had the only relevant factor been the existence of planning in the commission of the offence, there might have been a valid argument that planning was an inherent characteristic of every offence involving on-going or commercial drug trafficking: see Elyard v R [2006] NSWCCA 43. But it is not an inherent characteristic of supplying drugs that it is "part of a planned or organized criminal activity" in the sense that those words convey. For example, I do not believe those words apply to the normal street dealer who purchases drugs from various sources simply to obtain the wherewithal to purchase drugs for his own use. Therefore, in an appropriate case this aggravating factor can be taken into account when sentencing for drug trafficking offences. In this case it would have been open to the Judge to find that such a factor existed in respect of each of the offences because it was clear that the applicant was committing the crimes as part of a drug trafficking organisation capable of supplying large amounts of different types of drugs to order. 1. In my view, even if it were open to his Honour to find that the ongoing supply of drugs of different types and different quantities was in some respects more elevated than that of a normal street dealer who purchases drugs from various sources to feed his or her own addiction, it does not follow that the applicant's offending attracts the statutory aggravating factor of being a planned and organised criminal activity. I do not consider that finding was open on the evidence. 2. Having found error in respect of the sentencing judge's approach to sentence on the first count of ongoing supply, it is necessary for this Court to exercise the sentencing discretion afresh in accordance with Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601. Evidence on re-sentence 1. The applicant relied on an affidavit affirmed on 6 April 2018 on re-sentence in which he confirms that he has been "drug free" for two years having not used illicit drugs of any kind since entering custody. He says that with the assistance of Justice Health, he has progressively been able to withdraw from the methadone program and has not had the need for that drug for over a year. 2. On self-assessment, he says his daily dose of anti-depressant medication has assisted in stabilising his mood and enhancing clarity in his thinking. He has recently completed two rehabilitation programs, being the EQUIPS addiction program which he completed on 18 January 2018 and the EQUIPS foundation program which he completed on 22 March 2018. Again on self-assessment, he says he believes the programs have reinforced the strategies he has been applying to date to remain drug free and the strategies he intends to employ in the future. 3. He says his partner of three years remains supportive of him and that he has recently reconnected with a teenage son with whom he had lost contact many years ago. His son is currently in foster care but it is the applicant's intention to make application for his son to be instated to his custody on his release from prison with the support of his partner and friends. He confirms that he has full-time work available to him upon his release which he welcomes as an additional means of staying motivated to remain drug free. 4. I would propose the following orders: 1. Grant leave to appeal against sentence. 2. Appeal allowed. 3. Quash the sentences imposed by North DCJ on 22 June 2017 and in lieu thereof, impose the following sentences: On Count 2, the charge of supply of 7.28 grams of methamphetamine, a fixed term of imprisonment of 18 months commencing 6 July 2016 and expiring on 5 January 2018. On Count 1, the charge of ongoing supply, a non-parole period of 18 months commencing on 6 November 2016 and expiring on 5 May 2018 with a parole period of 12 months expiring on 5 May 2019. The overall sentence therefore is 2 years and 10 months. 1. McCALLUM J: I agree with Fullerton 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: 13 April 2018