Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: O'Neile v R [2018] NSWCCA 291 Hearing dates: 12 October 2018 Date of orders: 14 December 2018 Decision date: 14 December 2018 Before: Simpson AJA at [1] Walton J at [2] Wilson J at [55] Decision: (1) Leave to appeal granted. (2) The appeal is allowed. (3) The sentence imposed on 19 October 2017 is quashed. (4) The applicant is sentenced to a term of 6 years 9 months commencing 17 January 2017 consisting of a non-parole period of 4 years and 4 months expiring on 16 May 2021 and a balance of the term of 2 years and 5 months expiring on 16 October 2023. Catchwords: SENTENCE – supply prohibited drug offences – methylamphetamine and cannabis – whether the sentencing judge applied the incorrect maximum sentence for the cannabis offence – error established as to maximum sentence – re-sentencing – orders Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Appeal Act 1912 (NSW) Drug Misuse and Trafficking Act 1985 (NSW) Cases Cited: Battersby v R [2018] NSWCCA 141 Bobbin v R [2016] NSWCCA 38 Kentwell v R (2014) 252 CLR 601; [2014] HCA 37 Lehn v R (2016) 78 MVR 353; [2016] NSWCCA 255 R v Wong [2018] NSWCCA 20 Category: Principal judgment Parties: Michael John O'Neile (Applicant) The Crown (Respondent) Representation: Counsel: D Dalton SC (Applicant) F Veltro (Respondent) Solicitors: Swan & Associates (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2017/16336 Decision under appeal Court or tribunal: Armidale District Court Jurisdiction: Criminal Date of Decision: 19 October 2017 Before: McLennan SC DCJ File Number(s): 2017/16336 Judgment 1. SIMPSON AJA: I agree with Walton J. 2. WALTON J: By a notice of application for leave to appeal filed 13 July 2018, the applicant, Michael John O'Neile, ("the applicant") sought leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) against the aggregate sentence imposed upon him by Judge McLennan SC sitting at the Armidale District Court on 19 October 2017 with respect to three drug supply offences. The appeal was filed within time having regard to the applicant lodging a Notice of Intention to apply for leave to appeal within time on 25 October 2017 which was extended until 13 July 2018. 3. The applicant pleaded guilty to the following charges on the indictment on 7 September 2017 as follows: 1. Count 1: Ongoing supply of methylamphetamine (261.7 g in total) contrary to s 25A of the Drug Misuse and Trafficking Act 1985 (NSW) ("the DMT Act"); 2. Count 2: Supply 13.88 g of methylamphetamine contrary to s 25(1) of the DMT Act; 3. Count 3: Supply 380.3 g of cannabis contrary to s 25(1) of the DMT Act. 1. The maximum penalties for the respective offences were: 1. Count 1: imprisonment for 20 years and/or 3 500 penalty unit fine; 2. Count 2: imprisonment for 15 years and/or 2 000 penalty unit fine; 3. Count 3: imprisonment for 10 years and/or 2 000 penalty unit fine. 1. The sentencing judge sentenced the applicant to an aggregate sentence with a non-parole period of 5 years to date from 17 January 2017 and to expire on 16 January 2022 with an additional two and a half years to date from 17 January 2022 to expire on 16 July 2024. 2. The indicative sentence for each offence was as follows: 1. Count 1: 6 years imprisonment; 2. Count 2: 18 months imprisonment; and 3. Count 3: 2 years imprisonment. 1. The applicant was sentenced at the same time as two other offenders, Mr Hayden O'Neill and Mr Joshua Ronald O'Neile. GROUNDS OF APPEAL 1. The grounds of appeal were as follows: 1. That even though his two co-offenders were found to be street level dealers and he was a mid-level dealer and while otherwise taking into account all relevant differences he had still been left with a justifiable sense of grievance given the sentences imposed upon them; 2. The individual indicative sentences and the overall aggregate sentence imposed upon him are manifestly excessive in any event; and 3. His Honour applied the incorrect maximum sentence for the cannabis offence. 1. Given an appropriately made concession by the Crown as to the third ground of appeal, it will be unnecessary to traverse the remaining two grounds. Ground 3: His Honour applied the incorrect maximum sentence for the cannabis offence 1. After referring to the maximum penalty for the supply methylamphetamine charge (count 2) as a 15 year maximum penalty, the sentencing judge then referred to count 3 and stated "that is an offence that also carries a maximum penalty of 15 years imprisonment". Given that remark was given in the context of the written submissions for the applicant on sentence incorrectly referred to the maximum penalty as being 15 years and the Crown neither correcting that submission on sentencing or during the sentencing itself, it may be concluded, that his Honour was expressing the view that the cannabis offence also carried a 15 year maximum penalty and that his Honour relied upon that conclusion in the course of sentencing the applicant. (The Crown also relied on the fact that his Honour had reserved judgment for four days before passing sentence). 2. As the present case involved the imposition of an aggregate sentence, both parties relied, in support of the Crown's concession, upon the principles as stated in Battersby v R [2018] NSWCCA 141 ("Battersby") (at [34]-[38]) as follows: [34] The question which arises for determination under this ground is whether the error as to the assessment of the maximum penalty had a material bearing upon the assessment of the aggregate sentence: AB v R [2014] NSWCCA 31 at [68] (per R A Hulme J with whom Beazley P and Schmidt J agreed),Sutton v R [2016] NSWCCA 249 at [37] (per Gleeson JA with whom Fagan and N Adams JJ agreed) and Elchiekh v R [2016] NSWCCA 225 at [32]-[33] (per Price J with whom Button and Fagan JJ agreed) (see Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 ("Kentwell") at [42]). [35] The applicant submitted that the Crown had not discharged the burden of establishing there was no real possibility the error by the sentencing judge as to the maximum penalty for the proceeds of crime offence. The sentencing judge had determined an indicative sentence for the offence and then determined the aggregate sentence taking into account the principle of totality. [36] The Crown submitted that, as the sentence was an aggregate sentence, the issue was whether the error was acted upon when imposing the aggregate sentence. The Crown contended that the reference to the incorrect maximum penalty should be regarded in the present matter as having had relatively little effect on the aggregate sentence. [37] That was because, it was submitted, the sentence on sequence 1 was by far the more significant indicative sentence and the effect of the aggregate sentence was that sequences 2 and 3, which were both given an indicative sentence of 5 years (and a non-parole period of 3 years for sequence 3) were, in combination, accumulated only modestly on the sentence for sequence 1 and, thus, were substantially subsumed by the aggregate sentence. The incorrect maximum penalty was applied in respect of sequence 3 in a situation where the other two offences carried a significantly higher maximum penalty and standard non-parole period. [38] There was some substance in the Crown's submission as to the significance of the indicative sentence for the sequence 1 offence. However, it did not follow that the error in the maximum penalty did not have a material impact upon the aggregate sentence imposed by the sentencing judge. 1. Those passages from Battersby were preceded by the statement of principles bearing upon the question raised by ground 3. It is convenient to also set out those passages (at [31]-[31]): [31] The applicant correctly submitted that an error of that kind would vitiate the exercise of the sentencing discretion unless the Crown satisfied the Court that it was not a real possibility that it affected the exercise of that discretion: Lee v R [2016] NSWCCA 146 at [37]; Mooney v R [2016] NSWCCA 303 at [33];Potts v R [2017] NSWCCA 10 at [37]; Nguyen v R [2017] NSWCCA 39 at [120]; Campbell v R [2018] NSWCCA 17 at [30]-[33]. [32] There was no demur from that submission by the Crown which also made reference to the judgment of Beech-Jones J (with whom Ward JA and Adams J agreed) in Andreata v R [2015] NSWCCA 239. In that matter, his Honour stated at [28]: [28] The present issue concerns the process of identifying error not the matter identified in the above passage from Baxter which is directed to what happens once error is identified. Consistent with House v R [1936] HCA 40; 55 CLR 499 at 504-505 and the above passage from Kentwell this requires a determination as to whether the sentencing judge "act[ed]" upon the wrong principle. As the latter part of the above passage from Kentwell makes clear there can be some misstatements of legal principle that are irrelevant or immaterial to the sentencing outcome and thus they do not establish that an error was acted upon in the sense discussed in House v R. It is in that context that Donaghey referred to an error as "material". Given the significance of the maximum penalty to the sentencing process (Markarian v R [2005] HCA 25; 228 CLR 357 at [31]) it is difficult to conceive of a circumstance in which the misstatement of the maximum sentence would not result in House v R error except perhaps, for example, if the balance of the reasons demonstrated that the sentencing judge in fact acted on the basis of the correct maximum penalty. 1. In sentencing the applicant, the sentencing judge imposed an indicative sentence for count 1 of 6 years. I accept the submission advanced by the Crown that the indicative sentences for counts 2 and 3 effectively resulted in the head sentence being increased, in total, by 18 months. 2. In those circumstances, there is a real possibility that the adoption of the wrong maximum penalty had an impact upon the exercise of sentencing discretion below. Ground 3 should be upheld. RE-SENTENCING 1. Having found error in the sentencing judgment, this Court must exercise the sentencing discretion afresh taking into account the purposes of sentencing and the factors the Crimes (Sentencing Procedure) Act 1999 (NSW) ("Sentencing Act") requires to be considered: Kentwell v R (2014) 252 CLR 601; [2014] HCA 37 at [42]-[43] and Lehn v R (2016) 78 MVR 353; [2016] NSWCCA 255 at [60], [65], [86] and [128]. Such an exercise involves the exercise of an independent discretion with a sentence fixed which is appropriate having regard to the offender and the offence. FACTUAL BACKGROUND 1. At trial, the Crown produced a Statement of Facts which was not in dispute. The applicant relied on a report of Dr Ellis, forensic psychiatrist, of 30 August 2017 together with character letters from the applicant's school friend and employer, Stafford Burney and his friend, Errol Carter. The applicant gave evidence and was cross-examined. 2. The applicant swore an affidavit on 5 October 2018 for the purposes of any re-sentencing arising from this appeal. 3. That material forms the basis for the following factual background. Facts of the offence 1. On 10 November 2016, the applicant supplied from his house 13.88 g of methylamphetamine (the indictable quantity is 5 g). This constituted count 2. The methylamphetamine was of 82.5 per cent purity. 2. The applicant was introduced to an undercover operative by Mr Hayden O'Neill who described the applicant as his "upline" supplier. The applicant indicated to the undercover operative that he was able to supply "ounces cheaper" than what he had charged at that date. The applicant received a financial reward of $4,200 for this transaction. 3. Count 1, the ongoing supply offence, concerned the supply by the applicant of methylamphetamine from his house on three occasions – 55.6 g on 29 November 2016; 10.36 g on 9 December 2016 and 195.74 g on 17 December 2016. The purity of the supplies and the financial reward were respectively: 77.5% for $12,000; 77% purity for $2,500 and 79% purity for $40,000. 4. During the supply the subject of count 1, the applicant indicated that he could supply a cheaper price if the undercover operative continued to purchase from him. On the occasion of the final supply, the applicant informed the undercover operative that he had only arrived home at 5 am that morning after returning from Sydney with "16 ounces of methylamphetamine straight from the cook". 5. For count 3, the applicant supplied 382.3 g of cannabis for $3,700. Facts bearing upon the subjective considerations 1. The applicant is 36 years of age. He has a partner of about 12 years and three children, all boys, out of that relationship. He has one other son from a previous relationship. 2. The applicant intends to marry his partner on release from custody (although he had separated from her prior to entering custody due to alcohol and drug use). His partner has experienced difficulties in his absence due to the absence of income and managing the children. One child has autism and requires specialised treatment. Another is misbehaving at school due to his father's absence. 3. The applicant has a substance abuse disorder, principally consisting of stimulants and alcohol. He began drinking at 16 years of age and taking ecstasy tablets at age 17. He started using methylamphetamine from age 29; using the drug on the fortnight he was not working. He also had a gambling disorder. 4. The applicant had an impoverished background. He witnessed domestic violence and "significant anger from his father particularly when he was drunk". He attended school until he was 14 years of age; thereafter he firstly worked as a farm hand and, later, full time as a miner. 5. The applicant reported to Dr Ellis that after he separated from his wife, he was approached by an "ice dealer" with a proposal to sell drugs to support his habit. He was also suffering financial stress due to bills related to child support, his mother's mortgage and gambling. 6. At the time of his arrest, he was on the verge of being dismissed from work due to his drug use. 7. Whatever profits were made by the applicant were spent on drugs and managing those debts or outgoings. There was no evidence of a lavish lifestyle or other indicia of a large profit making venture. 8. The applicant suffered from depressed and anxious moods associated with his heavy substance use. 9. In his affidavit, the applicant also deposes: 1. The applicant was assaulted by three inmates whilst initially in custody at Grafton Correctional Centre although he did not report the assault for fear of retaliation. 2. He abandoned a position of sweeper at Grafton but he was scared and had limited contact with his family. 3. When moved to the Mid-North Coast Correctional Centre, the applicant undertook textile work preparing prisoner clothing. Again, access to his family was limited. 4. After being sentenced, the applicant was moved to the minimum security wing at Grafton Correctional Centre where he commenced employment in the hardwood/softwood workshop. He was placed in charge of his work group and assisted other prisoners in their employment. He found the role of leader extremely insightful and rewarding. 5. After Grafton Correctional Centre, the applicant was transferred to Glen Innes Correctional Centre where he was employed in the saw-mill as a maintenance employee. At this location, he regularly saw his partner and children. He also obtained a forklift licence and renewed his heavy vehicle licence. He is treated as a trusted inmate and was able to accompany officers off the gaol complex to assist officers as required. 6. The applicant has undertaken regular counselling and rehabilitation services including alcoholics anonymous, narcotic anonymous and gambling anonymous. He intends to continue these programs when he is released. 7. The applicant intends to be "a better family member" attending to his children, his sister who required heart surgery and his mother who is dealing with breast cancer. 8. The applicant has full-time employment with his brother-in-law at a metal fabrication business awaiting his release. Submissions for the applicant 1. In summary, the applicant made the following submissions: 1. Having regard to the decision of Garling J (with whom Beazley P and Hidden AJ agreed) in R v Wong [2018] NSWCCA 20 ("Wong") and the decision of Wilson J (with whom Johnson and Schmidt JJ agreed) in Bobbin v R [2016] NSWCCA 38 ("Bobbin"), this Court should find that the offences fall within the mid-range of objective seriousness of offending for the offences charged. 2. Whilst the role of the applicant was clearly "above the co-offenders", he should be regarded as a "mid-level dealer" who was immediately above the level of street dealers and not "higher up the chain". 3. Even taking into account the ongoing supply offence, there was a limited number of transactions within a relatively confined period. There was a lack of financial reward. 4. The applicant was not engaged in any sophisticated organisation. He used his own phone on occasions (rather than separate phones which could not identify him), there were no ledgers and no other indicia found upon the search of his premises that would suggest a higher level of sophistication. In fact, he supplied the drugs from his personal premises. 5. In re-sentencing, the Court should have regard to the sentences imposed on the co-accused. Whilst their level of criminality was "much less" than that of the applicant, there was a "very strong case for special circumstances with regards to" the applicant. The applicant does not have the record of Mr Joshua O'Neile which saw him serving a sentence of 4 months for an unrelated type of offence, albeit a breach of a apprehended domestic violence order. Mr Joshua O'Neile had a much worse criminal record, including a prior term of imprisonment. The applicant's prior minimal criminal history was found of little consequence in the sentencing process before the sentencing judge. 6. There is a very strong case for special circumstances particularly having regard to the psychiatric history identified by Dr Ellis. The provision for special circumstances for the applicant should reflect that of Mr Hayden O'Neill who received a proportion of 50 per cent. 7. The applicant does not intend to return to drug taking. He has engaged in rehabilitation to change his behaviour so as to act as a provider for his partner, sons and wider family. He is reconciled to the fact that in all likelihood he will be required to work harder in physical jobs for less monetary reward. Dr Ellis opined that he had good insight into his substance use problem and emerging insight into his longer term difficulties with relationships and their connection to his earlier life experiences. Dr Ellis also opined that the applicant was motivated to attend treatment and rehabilitation suggestions put to him. Submissions for the Crown 1. In summary, the Crown put the following submissions: 1. The submissions for the applicant stand in stark contrast to the position that was taken in the Court below by the applicant. There, the applicant made a submission that the ongoing supply offence fell above the mid-range of the typical type of offence and "probably falls a distance above the mid-range, whilst not at the very top of the range". 2. Even though the cannabis offence was a one-off offence, as the sentencing judge found, it nevertheless reflected the ability of the offender to source different types of drugs on demand and was further evidence of the applicant's immersion in the drug world. 3. Both counts 1 and 2 involved quantities of methylamphetamine and called for some degree of notional accumulation in the sentence exercise. 4. In terms of parity, the Crown relied upon a helpful table which was set out in its submission. That Table is annexed to this judgment as Annexure A. The Table highlights the differences in the role and objective seriousness between the offences committed by the offenders such that, strictly speaking, they are not co-accused. 5. Little assistance can be obtained from comparative cases. The re-sentencing exercise involves a consideration of different objective and subjective circumstances. The judgment in Wong involved offending that was found to be below the mid-range as was the offence dealt with in Bobbin. 6. There was no issue with the sentencing judge's finding that the applicant had good prospects of rehabilitation and was unlikely to re-offend. Discernment 1. The applicant was involved in a serious level of drug dealing in methylamphetamine which has known significant adverse consequences for the community. He had, in fact, access to high purity methylamphetamine in escalating and significant quantities. The applicant transported the drugs from Sydney (on one occasion after a "cook") in order to traffic the drug for significant financial reward. His role was clearly distinguishable from a street dealer – a description which better fitted his co-accused. 2. Nonetheless, the applicant was appropriately described as overall being a mid-level dealer. Whilst the charges in count 1 concern ongoing supply, they involved limited number of transactions over a confined period, generally out of the applicant's home with a less than high sophisticated system or involvement in a wider organisation. 3. That analysis is productive of a conclusion that counts 1 and 2 fell within mid-range objective seriousness. 4. Count 1 represented ongoing supply and count 2 should be assessed, as the sentencing judge did, in the context of the applicant's activities in a 'mid-range supply' operation. 5. There was no dispute in these proceedings, and I accept, that the cannabis offence fell just below the mid-range of objective seriousness because it reflected the ability of the applicant to readily source different kinds of drugs due to his involvement in the drug world. 6. Those factors readily result in the conclusion that no other penalty than imprisonment is appropriate in the circumstances of this matter. It will be noted, in that respect, the maximum penalty for count 1 is 20 years imprisonment; count 2 is 15 years imprisonment and count 3 is 10 years imprisonment. 7. I would not describe the applicant's subjective features as unremarkable as submitted by the Crown. His upbringing was impoverished and immersed in domestic violence. The applicant developed an alcohol and drug dependence at an early age and was diagnosed by Dr Ellis with a substance use disorder and a gambling disorder each of which contributed to significant financial difficulties. He consumed significant amounts of ice. The supply of drugs did not result in the applicant experiencing an extravagant lifestyle. 8. The applicant has a minor criminal record. 9. Nonetheless, there is nothing in Dr Ellis' opinion as to the mental state of the applicant at the time of offending or by psychiatric diagnosis which would demand that this matter is other than appropriate vehicle of general deterrence. 10. There was no dispute as to the sentencing judge's remarks regarding prospects of re-offending and rehabilitation, namely, that it was more likely than not that the applicant would not re-offend. I will adopt that approach. 11. I am reinforced in this view by the further evidence given by the applicant in these proceedings which demonstrates that he has an appreciation of his wrongdoing and the need for further rehabilitation to support his family. 12. The applicant's behaviour in prison and his attitude to work enhance those conclusions. 13. Those conclusions also fit well with Dr Ellis' conclusions that the applicant has a positive prognosis should he be able to desist from substance use and re-established employment on release. Dr Ellis also makes it clear that the applicant will require treatment and rehabilitation in order to manage substance abuse problems when released including medium term psychiatric monitoring. 14. There was no demur from the sentencing judge's conclusion that there should be a 25% discount for an early plea of guilty (even though the discount was generous in the circumstances) and I shall adopt that approach. 15. The sentence which will be imposed recognises the significant differences in the objective seriousness of the offending and subjective features as set out in Annexure A between the applicant and the other offenders. 16. In my view, it is appropriate to impose an aggregate sentence. I accept the submission of the Crown that there should be some accumulation between counts 1 and 2 and that the criminality of count 3 is less than counts 1 and 2. 17. There is an appropriate matter to find special circumstances in fixing a non-parole period having regard to the applicant having a long standing drug abuse problem, his age and the need for rehabilitation. 18. Bearing in mind those considerations, I propose that the applicant be sentenced to an aggregate period of imprisonment of 6 years and 9 months with a non-parole period of 4 years and 4 months commencing 17 January 2017 and expiring on 16 May 2021 with an additional term of 2 years 5 months imprisonment to 16 October 2023. 19. The indicative sentences are: 1. Count 1: 5 years 6 months imprisonment; 2. Count 2: 16 months imprisonment; and 3. Count 3: 14 months imprisonment. ORDERS 1. In the result, I would propose the following orders: 1. Leave to appeal granted. 2. The appeal is allowed. 3. The sentence imposed on 19 October 2017 is quashed. 4. The applicant is sentenced to a term of 6 years 9 months commencing 17 January 2017 consisting of a non-parole period of 4 years and 4 months expiring on 16 May 2021 and a balance of the term of 2 years and 5 months expiring on 16 October 2023. 1. WILSON J: I agree with Walton J. Annexure A Comparative Table Parity consideration Applicant Hayden Joshua Supply Offences(s) methylamphetamine on 10 November 2016; Ongoing supply Ongoing supply methylamphetamine between 22 September 2016 to 20 October 2016 (4 transactions), in car parks, total of 4.42 g for $2350; Also a Form 1 of supply 1.7 g of methylamphetamine for $700; Ongoing supply methylamphetamine between 8 August 2016 and 7 September 2016 (5 transactions), in car parks, total of 11.65 g for $5350 methylamphetamine between 28 November 2016 and 17 December 2016 (3 transactions); Supply cannabis. Also possession of a unregistered .223 rifle at his home, not properly stored, aspect of his supplying Supplied in total over 260 g of methyl-amphetamine and over 380 g of cannabis for over $60,000 in total Role Mid-level dealer, access to high quality product in significant quantities, transporting it from Sydney, involved in substantial trafficking of 'ice/serious level of drug dealing. Street level dealer, no element of sophistication, reflective of his evidence on sentence No element of sophistication, but introduced Hayden to undercover operative Objective seriousness Count 1 - above mid-range, count 2 - mid-range, count 3 - just below mid-range Low scale dealing towards the bottom of the range Below mid-range Sentence Aggregate 5 year non-parole period, 2½ year additional term 8 months 27 days fixed term for the ongoing supply charge (i.e. pre-sentence custody) and 9 month suspended sentence for firearm offence 8 month non-parole period, additional term of 10 months Plea of guilty Early Early Early Prior record Minor record not relevant to sentencing Irrelevant to sentence Violence and contravene AVDOs Remorse/contrition Regrets his wrongdoing Remorseful Expressed contrition, impressed in witness box Prospects of rehabilitation/re-offending risk Good prospects of rehabilitation, more likely than not he will not re-offend in this way Good prospects of rehabilitation and unlikely to re-offend in this way Good prospects of rehabilitation, unlikely to return to drug offending Totality issue with other sentencing No No Yes (ROS 8.3) Special circumstances Yes - statutory ratio reduced to 66.6%. Need for rehabilitation Not applicable. Yes - statutory ratio reduced to 44.4% Willingness to engage in rehabilitation programmes, mercy to allow him to spend Christmas with family (ROS 11.5) Other subjective features Aged 36, three children, separated, gambling, worked in coal mine, drug user Aged 23, Drug user, sold to support his habit, borderline intelligence, unemployed Aged 25, Drug user, separated from partner, current AVO but she is supportive, skilled as tradesperson ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 December 2018