Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Egan v R [2018] NSWCCA 235 Hearing dates: 12 March 2018 Date of orders: 19 October 2018 Decision date: 19 October 2018 Before: Bathurst CJ at [1]; Fullerton J at [2]; Campbell J at [3] Decision: (1) Grant leave to appeal. (2) Appeal dismissed. Catchwords: CRIMINAL LAW – sentence appeal – supply greater than indictable quantity offences – dealing with property suspected of being proceeds of crime – whether the sentencing judge erred by failing to appropriately regard and allow a sufficient discount – applicant's childhood disadvantage – whether the sentencing judge erred by failing to have appropriate regard to prospects of rehabilitation – whether the sentence is unreasonably or plainly unjust – circumstances of offending – personal circumstances – loss of father and mother – migration to Australia – straightened financial circumstances – no genuine remorse – no profound childhood deprivation – findings open to sentencing judge Legislation Cited: Crimes Act 1900 (NSW), s 193C Criminal Appeal Act 1912 (NSW), s 5 Criminal Procedure Act 1986 (NSW), ss 166, 168 Drug Misuse and Trafficking Act 1985 (NSW), ss 10, 25 Cases Cited: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 Director of Public Prosecutions (Vic) v Dalgliesh (a Pseudonym) [2017] HCA 41; (2017) 91 ALJR 1063 Hili v R (2010) 242 CLR 520; [2010] HCA 45 House v The King (1936) 55 CLR 499; [1936] HCA 40 Neal v R (1982) 149 CLR 305; [1982] HCA 55 R v Fernando (1992) 76 A Crim R 58 R v Pham (2015) 256 CLR 550; [2015] HCA 39 Texts Cited: Nil Category: Principal judgment Parties: Patrick Egan (Applicant) Regina (Respondent) Representation: Counsel: C Lin (Applicant) B Hatfield (Respondent) Solicitors: Lloyd Legal (Applicant) Office of the Director of Public Prosecutions (Respondent) File Number(s): 2015/65731990 Decision under appeal Court or tribunal: Sydney District Court Jurisdiction: Criminal Date of Decision: 06 September 2016 Before: Colefax SC DCJ File Number(s): 2015/65731 Judgment 1. BATHURST CJ: I agree with the orders proposed by Campbell J and with his reasons. 2. FULLERTON J: I also agree with Campbell J for the reasons his Honour gave that leave to appeal should be granted and the appeal dismissed. 3. CAMPBELL J: Under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW), the applicant seeks leave to appeal from the sentence passed on him by his Honour Judge Colefax SC in the District Court on 6 September 2016. 4. For 2 counts of supplying greater than the indictable quantity of a prohibited drug and 1 count of dealing with property suspected of being the proceeds of crime, the applicant was sentenced to an aggregate term of imprisonment having a non-parole period of 3 years commencing on 2 August 2016 and expiring on 1 August 2019 and an additional term of 3 years, commencing on 2 August 2019 and expiring on 1 August 2022. Each of the drug supply offences carried a maximum penalty of 15 years imprisonment under s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW) ("Drug Misuse Act"). The proceeds of crime offending contrary to s 193C(1) of the Crimes Act 1900 (NSW) was dealt with on a certificate under s 166 of the Criminal Procedure Act 1986 (NSW) ("Criminal Procedure Act"). For this offence the District Court was subject to the limitation of the Local Court's jurisdiction of imposing a maximum penalty of 2 years imprisonment: s 168(2) of the Criminal Procedure Act. 5. The particulars of the charges are as follows: 1. the first charge of supplying more than the indictable quantity of a prohibited drug related to 29.01 grams of heroin having a purity of 31.5 per cent; 2. the second charge of that type related to 41.6 grams of methylamphetamine with a purity of 79.5 per cent; and 3. the proceeds of crime charge related to $39,540 in cash. There were 3 offences on a Form 1 appurtenant to the first drug supply charge. They were possessing 0.09 grams of heroin contrary to s 10(1) of the Drug Misuse Act; possessing 0.14 grams of heroin contrary to the same provision; and supplying more than the small, but less than the indictable, quantity of heroin, being 2.83 grams, contrary to s 25(1) of the Drug Misuse Act. 1. The applicant was arrested on 3 March 2015 and released on conditional bail by the police after he was charged. The bail was revoked at the proceedings on sentence on 2 August 2016 which explains the commencement date of the aggregate sentence. Grounds of appeal 1. The applicant propounds three grounds of appeal as follows: Ground 1: the sentencing judge erred by failing to appropriately regard and allow a sufficient discount with respect to the applicant's childhood disadvantage in accordance with Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 ("Bugmy"); Ground 2: his Honour erred by failing to have appropriate regard to the applicant's prospects of rehabilitation; and Ground 3: the sentence imposed is unreasonably or plainly unjust. 1. Ms Lin of counsel provided admirably succinct written submissions dealing with each ground and during the hearing she made it clear that she did not wish to supplement her written submissions with respect to Ground 2 stating, "I don't quarrel with the Crown's submissions in respect to that" (1.35T). No oral argument was addressed to the Court concerning Ground 3. However, it will be appropriate to say something about each of those grounds, at least briefly. The circumstances of the offending 1. The applicant was sentenced at the same time as a co-offender. They were co-occupiers of premises which had been under police surveillance and where drugs were found during the execution of a search warrant. However, they were not charged with common offending. No issue of parity was raised on the proceedings on sentence, although both had common representation. No question of parity arises on appeal, and in the circumstances it is unnecessary to say anything at all about the co-offender or his offending. 2. The premises occupied by the applicant were in Guilford West. At about midday on 3 March 2015 police pulled the applicant over at the corner of Fairfield and Leach Streets, Guilford West as the car he was driving had a defective tail light. Police advised the applicant that they suspected him of being in possession of prohibited drugs and they intended to exercise their powers to carry out a search of his person. The applicant requested that the search be conducted at a discrete location. The police officers agreed and indicated a nearby bus stop. As they turned to walk towards it, the applicant fled by running across Fairfield Street and into Leach Street in an attempt to evade police. 3. Police overtook the applicant outside an address in Leach Street where they conducted a body search during which they seized a small clear resealable bag containing 0.09 grams of heroin. This is the offence on the Form 1. 4. Police then searched nearby properties. They found a large resealable bag containing 10 smaller bags in a nearby garden bed. The smaller bags contained heroin weighing 2.83 grams in total. This is the third offence on the Form 1. The applicant denied any knowledge of the larger bag and denied residing at the premises that had been under surveillance. I interpolate that the sentencing judge accepted that the applicant may not reside at the premises, but his statements to police were misleading and deceptive given that he had a substantial connection to the residence (AB 10). 5. Using keys found on the applicant's person, police lawfully executed a search warrant at the premises later that afternoon. They gained access to the house and a granny flat in the yard using the applicant's keys. In the bedroom of the granny flat they found and seized 2 resealable bags containing a total of 0.14 grams of heroin and this constitutes the second offence on the Form 1. Again, using a key taken from the applicant, police unlocked a safe from which they seized $39,540 in cash. This constitutes the proceeds of crime offence. 6. Another safe unlocked by using another key taken from the applicant contained 2 large resealable plastic bags. One bag contained 8 smaller bags holding a total of 29.01 grams of heroin with a purity of 31.5 per cent. This is the first offence of supplying greater than the indictable quantity of a prohibited drug. The other bag contained 41.6 grams of methylamphetamine of 79.5 per cent purity, constituting the second offence of supplying greater than the indictable quantity of a prohibited drug. The offender's personal circumstances 1. As a submission based on the Bugmy principle was advanced at first instance and on appeal, it is necessary to set out the applicant's personal circumstances in some detail. 2. The applicant was born in the Philippines on 31 May 1991. He was 23 years and nearly 9 months of age when arrested; 25 and 4 months when sentenced; and is now 27 years and 4 months. 3. The evidence about his upbringing is substantially contained in a letter written by the applicant to the sentencing judge dated 2 August 2016, the history recorded in a report of Emily Dowling, registered psychologist, dated 28 July 2016 (Ex 1) and a pre-sentence report dated 1 August 2016 (Ex B). The narrative which follows is drawn from those sources, although I note there are conflicting accounts. 4. He was born in a southern province in the Republic of the Philippines to a Filipina mother and an Australian father. His mother was a high school teacher and his father a builder. The author of the pre-sentence report recorded that the area in which the applicant grew up in was dangerous, having a high population of religious extremists. The applicant recalled witnessing violence and living in constant fear as a child. In the applicant's letter of 2 August 2016 he told the sentencing judge that he lived in a region of the Philippines "where travel experts advised no foreigners to travel to as it was extremely dangerous". Ms Dowling, however, recorded that the applicant's early life was very happy. In any event it seems that his early life was good and his parents provided for him well. 5. Unfortunately, his father died in September 1998 apparently as a result of an epileptic seizure. The family were having lunch together when the applicant's father rose to go to the toilet, suffered a seizure, lost consciousness and fell striking his head heavily. He died from the effects of this injury. 6. After her husband's death the applicant's mother resolved to come to Australia where her husband had family. The family consisted of a brother, his wife and their five children. The applicant's mother apparently had the belief that her husband owned a house in Leichhardt which she may be entitled to inherit. This expectation was unfulfilled. It is unclear whether there was a house or the Australian family claimed an entitlement to it. 7. As the applicant's mother had entered the country on a tourist visa, it was necessary for her to return to the Philippines before she could apply for re-entry to extend her stay. When she did so she left the applicant with her husband's family. The applicant's uncle and his family cared for him and expressed an interest in adopting him. However, this did not proceed as his mother was able to secure a re-entry permit and returned to Australia. 8. There can be no doubt that the applicant and his mother lived in financially straightened circumstances. But she was able to find work in a rubber factory, initially on the factory floor, but progressing to the position of bookkeeper. The applicant attended school in the western suburbs, going to High School in Parramatta, completing his school certificate but leaving either at the end of year 10 or during year 11. 9. After leaving school he was able to obtain employment and held down various jobs until he injured his sacrum, lost his job and took up dealing in drugs. 10. A difficulty arose when he was about 18 years of age. It seems that his mother had developed a gambling problem and to feed it had embezzled funds from her employer. She was convicted and sentenced to six months in prison. During this time the applicant felt constrained to move out of the Housing New South Wales rental accommodation where the family had been living. He was, understandably, greatly depressed and ashamed by his mother's circumstances, but seemed to have continued working. 11. After his mother's release from gaol the family did it hard financially because she found it difficult to find work. The applicant worked hard to support them both. His mother seems to have been cheated out of her superannuation which she attempted to access on hardship grounds. 12. Tragically the applicant's mother died from a stroke when he was aged 22. He has feelings of guilt about this as he feels he was not sensitive to his mother's needs when she complained to him of symptoms which may have been associated with the disease which led to her demise. 13. Although reticent about making full disclosure, the applicant eventually told the community corrections officer who prepared the pre-sentence report that he had been using cannabis and other illicit drugs since his teenage years. He developed a daily cannabis habit and used ecstasy and ice on a regular basis for apparently recreational purposes. Following his mother's death in 2013, he began smoking opiates to assist his sleep. He claimed to have given up drugs entirely after his arrest until it was pointed out by the corrections officer that the drug screening test on 27 July 2016 had been positive for cannabis use. 14. The applicant was less forthcoming to Ms Dowling. He implied that he had only started using cannabis heavily following his mother's death when he had suffered the painful injury to his sacrum. From there he descended into selling drugs. He then explained to her that he had ceased using cannabis. Although he maintained in his evidence before the sentencing judge that he had made a full disclosure to Ms Dowling of his substance abuse, reading her report, only cannabis is mentioned, notwithstanding the full narrative of other circumstances contained within it. 15. It is clear from Ms Dowling's report that the applicant's life experiences from the disappointed expectations of financial support in Australia, the difficulties following his mother's arrest, subsequent unemployment and his own experience following his injury have left him with a feeling that the poor are extremely vulnerable. Given his lack of close family after his mother's death and the absence of extended family, the applicant "had no role models or advice from friends on how to conduct himself or build a secure future" (AB 56). 16. In oral testimony in the proceedings on sentence he said that at the time of the offending he was smoking cannabis in the morning and heroin in the evenings, the latter to promote sleep. He was also using methamphetamine and cocaine "recreationally on the weekend" (AB 89.35). He said the use of heroin started following his mother's death. He said he fell into selling drugs because of his injury which resulted in unemployment from which he had mounting debts. His motivation for offending was a combination of the need for drugs and financial gain. 17. Although he apologised for his offending in his letter of 2 August 2016, he did not seem able to volunteer any adequate expression of remorse in his oral testimony. He gave evidence that he thought he had learnt from his mistake and hoped to move forward with his life. Since his arrest he had started working as a contract personal trainer and he hoped to continue with this and to save for a house in the future. When asked by his counsel whether there was anything else he wished to say, he answered, "No" (AB 93.5). When asked specifically about remorse by the sentencing judge he said (AB 93.20): "I do understand that dealing drugs is a harm on the community and, to everyone else. I do understand that you have to make, you have to make an example of, people that sell drugs to make a deterrent in the future, but I also do ask that you take into consideration the positivity I can take out of this. I know, I think I'll be a better person after this." The trial judge did not understand this as a fulsome and genuine expression of remorse. Nor do I. Relevant findings of the sentencing judge 1. The sentencing judge found that the offending was both to obtain drugs for his personal use and "also for substantial financial gain" (AB 21). His Honour found at (AB 22): "[The applicant] expressed remorse in the witness box. However, I was left with the distinct impression that he was just going through the motions. With no meaningful remorse, no family support, no friends or relationship, his prospects for rehabilitation are at best guarded." 1. His Honour was unable to find on the balance of probability that the applicant had ceased using drugs. He pointed out that Ms Dowling had referred only to cannabis and that the history that the applicant had ceased using that drug was contradicted by the positive test of 27 July 2016. The applicant said that he had used the drugs as his sentencing hearing approached because of stress. 2. His Honour found despite the applicant's evidence to the contrary, that the psychologist "was [not] told about those other … drugs" (AB 22). This finding is supported by the consideration that the corrections officer reported that initially the applicant had been reticent about his past drug use until she pointed to his previous conviction for possessing a prohibited drug. 3. The sentencing judge did not regard the applicant's minimal past record as significant notwithstanding a conviction for possession of a prohibited drug for personal use. 4. So far as the Bugmy principle is concerned, his Honour found (AB 21 – 22): "[h]is criminal conduct for which he is to be sentenced today has, in part, been to help pay for those drugs – notwithstanding that he has been mostly in paid employment. But it was also for substantial financial gain. In this context, the psychologist's report tendered in the offender's case suggested that [the applicant's] background led him to believe that "money gives power; and those without money are extremely vulnerable". Assuming that is the correct description of [the applicant] it is not a mitigating factor. It is certainly not an R v Bugmy situation as was submitted on [the applicant's] behalf." The quote is from page 2 of Ex 1 (at AB 55). 1. His Honour indicated that a discount of 25 per cent would be applied to the various indicative sentences and made a finding of special circumstances to enhance the applicant's prospects of rehabilitation. The adjustment to the statutory ratio was a generous one, of 50 per cent. The indicative sentences were: 1. for the supply of greater than the indictable quantity of heroin, 5 years reduced by 25 per cent to 3 years and 9 months; 2. for the offence of supplying greater than the indictable quantity of methamphetamine, also 5 years, reduced by 25 per cent to 3 years and 9 months; and 3. for the proceeds of crime offence, 18 months, reduced by 25 per cent to 13 months. 1. His Honour recognised the need for partial accumulation (AB 24). None of the offences are standard non-parole period offences. The applicant's submission 1. So far as Ground 1 was concerned, the applicant reminded the Court of the evidence I have recounted above. Ms Lin argued that the evidence engaged the Bugmy principle which was relevant to sentencing the applicant as it reduced his moral culpability for the offending and lessened the relevance of specific and general deterrence as well as increasing the emphasis upon his need for rehabilitation. 2. In writing Ms Lin challenged the finding I have set out above concerning the applicant's prospects of rehabilitation. Ms Lin submitted that he was assessed as having a low/medium risk of reoffending by the corrections officer who provided the pre-sentence report. He had demonstrated the progress towards rehabilitation by becoming self employed as a personal trainer and completing two certificates in business administration. Ms Lin submitted the finding should have been one of "medium to high" prospects for rehabilitation (Applicant's Written Submissions at [21]). 3. Counsel argued the aggregate sentence was manifestly excessive repeating what she had said about the Bugmy principle. Ms Lin submitted that his Honour failed to adequately take account of remorse and additionally provided short particulars of 10 comparable cases decided in this Court between 2007 and 2017. 4. The Crown submitted that the evidence did not demonstrate the kind of profound social deprivation described by the High Court in Bugmy. There may have been disadvantages and some hardship growing up in a single parent household without the support of an extended family, but this fell a long way short of circumstances which engaged the Bugmy principle. It was pointed out when his mother was imprisoned and when she died the applicant had attained his majority and was in employment and apparently self-supporting. 5. As to Ground 2, the Crown submitted that the applicant had not demonstrated House v The King (1936) 55 CLR 499; [1936] HCA 40 error in his Honour's fact finding. His Honour gave cogent reasons for his guarded assessment of the applicant's prospects of rehabilitation and in any event generously adjusted the statutory ratio to maximise his opportunity for rehabilitation after his release to parole. 6. So far as Ground 3 is concerned, the Crown reminded the Court of the restraint that is exercisable by an appellate court in making a finding of manifest excess. His Honour was entitled to find that there was no genuine remorse demonstrated by the applicant. 7. So far as the comparable cases were concerned, the Crown reminded the Court of the limited utility of such material by reference to Director of Public Prosecutions (Vic) v Dalgliesh (a Pseudonym) [2017] HCA 41; (2017) 91 ALJR 1063 ("Dalgliesh") at [83] – [85]. By reference to a table provided the Crown pointed out the differences between each of the 10 cases relied upon by the applicant and the circumstances of the present case. Consideration 1. What is required to engage the principle discussed in Bugmy is evidence of "profound childhood deprivation" (at [44]). The unanimous High Court said (at [41]): "[i]n any case in which it is sought to rely on an offender's background of deprivation in mitigation of sentence, it is necessary to point to material tending to establish that background." (Emphasis added.) Where "the effects of profound childhood deprivation" are established that circumstance may serve to reduce the offender's moral culpability for the offending (Bugmy at [44]), and diminish the relevance of personal and general deterrence "in favour of other purposes of punishment including rehabilitation" (Bugmy at [46]). 1. It is important to bear in mind that this is not a case that was factually in any way like Bugmy or R v Fernando (1992) 76 A Crim R 58. The latter decision is normally treated as a source of the principle. I accept that the principle is part of the general law of sentencing and is not restricted in its operation to particular demographic groups or classes within the community. I bear in mind that in Neal v R (1982) 149 CLR 305; [1982] HCA 55 at 326, Brennan J (as the Chief Justice then was) said that "courts are bound to take into account … all material facts including those facts which exist only by reason of the offender's membership of an ethnic or other group". 2. This is not a case, however, of a person raised from childhood in circumstances characterised by the abuse of alcohol and alcohol fuelled violence. Nor is it the case that the applicant was raised in an environment where illicit substance abuse was funded by engaging in the supply, for profit, of such drugs was endemic; if such a circumstance was present profound childhood deprivation may have been relevant to the applicant's sentence. 3. His circumstances are very different. He fell into drug use as a teenager, which may have increased after his mother's death. The circumstances which lead him into drug dealing were circumstances which arose in his adulthood and had nothing whatsoever to do with any childhood deprivation, profound or otherwise. 4. In saying this, I accept that he was raised in straightened financial circumstances. There were doubtless difficulties and a degree of social disadvantage inherent in that. To the extent to which this may be deprivation, it is not deprivation which makes engaging in offending of this type more understandable such that moral culpability for the offending is reduced and the relevance of general and specific deterrence diminished. 5. In my judgment, the learned sentencing judge was correct to characterise the case as he did. The applicant's experience had led him to the belief that "money gives power and those without money are extremely vulnerable" (AB 21 – 22). Very many Australians, including migrants, overcome this vulnerability by hard work in legitimate pursuits as the Chief Justice remarked during the hearing (2.30T). As much as the applicant's background may excite sympathy, the sentencing judge was correct to say it was not a mitigating factor. It was certainly not a mitigating factor which reduced his moral culpability or the "high significance" (AB 22) of both specific and general deterrence in drug supply cases. 6. As I have said already, Ground 2 was but faintly pressed. In my judgment it was well open to the sentencing judge to make the finding he did about the lack of remorse. That finding was based partly upon his Honour's forensic advantage in seeing and hearing the applicant give evidence. It is not readily susceptible to challenge in this Court. For what it's worth, I formed the same impression from the written record. A finding about prospects of rehabilitation involves an evaluation of future probabilities based upon past circumstance. The factors identified by the sentencing judge: no meaningful remorse; no family support; and no friends or relationship are well-justified as a "guarded" assessment of those future probabilities (AB 22). In any event, to enhance the applicant's prospects for rehabilitation, the sentencing judge found special circumstances and took a generous approach to the relationship between the non-parole period and the total sentence. I would reject Ground 2. 7. To the extent to which Ground 3 is based upon the trial judge's assessment of remorse, I would reject it for the reasons I have already given. Comparable cases may have some relevance in the determination of a manifest excess ground of appeal. But in R v Pham (2015) 256 CLR 550; [2015] HCA 39, French CJ, Keane and Nettle JJ said (at [28]): "[a]ppellate intervention on the ground of manifest excessiveness or inadequacy is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle." In Dalgliesh, referred to by the Crown, Bell and Gageler JJ (at [83]) recalled that the history of past sentences does not establish that the range they suggest is the "correct range": Hili v R (2010) 242 CLR 520; [2010] HCA 45 at [54]. 1. I do not find it necessary to summarise each of the cases to which the Court was referred. The short particulars provided by the applicant and the submissions provided by the Crown demonstrate that there are both similarities and differences between each of the comparable cases and the present case. Bearing in mind that the sentencing judge was imposing an aggregate sentence for three significant drug supply related offences, and having regard to the indicative sentences he recorded, the sentence passed was in my view comfortably within the range provided by the comparable sentences to the extent to which they may be relevant. The sentence certainly does not differ in any significant degree from those sentences viewed as a whole. 2. I acknowledge that many of the offenders in the comparable cases had lengthy criminal records and that factor is absent here. But that is only one factor. 3. Having reviewed all of the facts, matters and circumstances relevant to fixing a sentence for these offences and this offender, I am not left with any impression that the sentencing judge's approach was affected by latent error. In my judgment his Honour made no mistake of fact, or error of principle. He took into account factors relevant to the case and did not take into account any irrelevant matter. I am not satisfied that it has been shown that the sentencing discretion miscarried in any way in this case. 4. I propose the following orders: (1) Grant leave to appeal. (2) Appeal dismissed. *********** 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: 19 October 2018