Griffiths v R

1. [1]

   THE COURT: The applicant, Mr Kirt Griffiths, seeks leave to appeal under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) against the sentences imposed on him by Ellis DCJ in the District Court at Newcastle on 31 October 2018.

Background

1. [2]

   The applicant pleaded guilty in the Local Court to four charges:

   1. (1)

      supplying a prohibited drug on an ongoing basis, sequence 40;

   2. (2)

      supplying a commercial quantity of a prohibited drug, sequence 28;

   3. (3)

      attempting to supply a commercial quantity of a prohibited drug, sequence 29; and

   4. (4)

      supplying a commercial quantity of a prohibited drug, sequence 30.

2. [3]

   On 13 June 2018, the applicant was committed for sentence to the District Court.

3. [4]

   The sentence proceedings were heard on 25 October 2018. The applicant asked that a number of offences on a Form 1 be taken into account. On that occasion, the sentencing judge also dealt with two co-offenders: Ms Everingham and Mr Henderson. Another offender who was involved in two of the transactions the subject of the applicant’s offending, Mr Winner, had been sentenced by Ellis DCJ on 16 March 2018.

4. [5]

   On 31 October 2018, the sentencing judge imposed on the applicant the sentences set out in the table below.

5. [6]

   The total effective sentence imposed on the applicant was, therefore, imprisonment for 11 years and 9 months commencing on 21 December 2016 and expiring on 20 September 2028, with an effective non-parole period of 6 years and 9 months expiring on 20 September 2023.

Grounds of appeal

1. [7]

   The applicant’s notice of application for leave to appeal identified two grounds of appeal as follows:

2. [8]

   At the hearing of the appeal, the Court drew the parties’ attention to the following sentencing remarks in relation to count 2:

3. [9]

   These remarks contained obvious errors in that the non-parole period was said to start on 21 June 2018, one year after the start of the sentence on 21 June 2017, and the head sentence was said to expire on 20 March 2025, 7 years and 9 months after the start of the sentence, not the stated 6 years and 9 months. These same errors were also evident in the Particulars of Trial filed in this Court on 13 August 2021.

4. [10]

   At the hearing, the applicant sought and was granted leave to add a further ground of appeal (ground 3) as follows:

5. [11]

   After the hearing, however, it appears that the parties listened to the sound recording of the sentencing judge’s remarks and it was noted that his Honour had said that the sentence commenced on 21 June 2018, not 21 June 2017 as recorded in the transcript and in the Particulars of Trial. The sentence for sequence 28 was also recorded in JusticeLink as commencing on 21 June 2018. Thus, there was no error on his Honour’s part in relation to the commencement date of the sentence and the non-parole period for sequence 28. The only error was in the transcript and the Particulars of Trial. In these circumstances, the applicant formally abandoned ground 3 and it is not necessary to consider it further.

The sentencing judgment

1. [12]

   After identifying the offences and some of the circumstances relating to the offending as well as the maximum penalties and any relevant standard non-parole periods, the sentencing judge noted that the applicant had pleaded guilty in the Local Court and was entitled to the full utilitarian discount of 25%.

2. [13]

   His Honour also noted that the offences on the Form 1 would be taken into account in relation to sequence 30 (which was also referred to as count 4).

3. [14]

   The sentencing judge referred to the facts contained in the agreed statement of facts (which was also before this Court) and he did not propose to go into any further detail beyond what he identified. In large measure the agreed facts simply outlined each of the many transactions by which the applicant supplied, or acquired for supply, methylamphetamine, commonly known as ice.

4. [15]

   More specifically, his Honour found that:

   1. (1)

      sequence 40 (also referred to as count 1) involved 16 transactions in which the applicant supplied a total of 125 g of ice;

   2. (2)

      sequence 28 (count 2) involved 490 g of ice purchased from an upline supplier via the auspices of Mr Henderson who did so without receiving any financial remuneration;

   3. (3)

      sequence 29 (count 3) was an attempt to have Mr Winner make or remake or refine the 490 g of ice supplied in count 2, given its very low quality; and

   4. (4)

      sequence 30 (count 4) was a straight supply to the applicant from Mr Winner of 499 g of ice which was purchased for $82,000.

5. [16]

   As to the offences on the Form 1 taken into account in relation to sequence 30, the first two matters were noted to be offences of ongoing supply of a prohibited drug involving 18 transactions in which a total of 69.75 g was supplied by the applicant.

6. [17]

   The sentencing judge made a number of specific comments in relation to the applicant’s co-offenders and parity. First, his Honour noted that Mr Henderson was also charged with count 2 but said that he had decided to start Mr Henderson’s sentence at seven years, prior to any discount, because, in his view, Mr Henderson’s criminality was lower as he simply facilitated the applicant’s purchase. It was found that the applicant was the person who intended to supply the prohibited drugs, once they had been acquired, who paid the $50,000 and who was to make money, whereas Mr Henderson did not gain financially. In this regard his Honour said “[i]n effect there was no strict parity but some relativity.”

7. [18]

   In relation to count 3, the sentencing judge observed that he had started Mr Winner’s sentence at 12 years, prior to any discount, and he proposed to start the applicant’s at 10 years on the basis that his criminality was less than that of Mr Winner, as it was Mr Winner who was to do all the work in terms of refining the material, albeit that the applicant participated in the attempt by purchasing various items under instruction from Mr Winner.

8. [19]

   The sentencing judge noted, in relation to count 4, that Mr Winner was also charged in relation to that transaction because he in fact supplied the 499 g for $82,000 to the applicant and had made money in that process. It seemed to the sentencing judge that in relation to that matter, while there may be slightly less criminality for the applicant, on that charge he asked the sentencing judge to take into account five matters on a Form 1, at least three of which were very serious. As a result, his Honour proposed to start the sentence for the applicant, prior to any discount, at the same point as for Mr Winner, that is, at 12 years.

9. [20]

   The sentencing judge noted that he had taken into account the provisions of ss 3A and 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW) and had determined that no sentence other than a sentence of imprisonment would be appropriate. His Honour also noted that he had considered the mitigating and aggravating factors referred to in s 21A of that Act. In addition, the sentencing judge noted what had been said by this Court in Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284 and Robinson v R [2012] NSWCCA 26.

10. [21]

    The sentencing judge then stated that he would apply the principles set out by the High Court in Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 by imposing discrete sentences to reflect the criminality of each of the individual counts and that he would apply the principle of totality by partly accumulating the sentences so that the total effective sentence represented his assessment of the total level of criminality.

11. [22]

    Ellis DCJ noted that the applicant had been in custody since 21 December 2016 and that the first of the sentences would be dated from that date to reflect the time spent in custody.

12. [23]

    After indicating what the sentences would have been without the discount for the pleas of guilty, the sentencing judge imposed the sentences set out in the table above. The total effective sentence and total non-parole period were also identified.

Ground 1 – Error in taking into account Mr Winner’s sentence

1. [24]

   The substance of the applicant’s submission was that his Honour impermissibly gave significant, if not determinative, weight to the sentence imposed on Mr Winner having regard to:

   1. (1)

      the “virtually identical lengths” of the sentences imposed on the applicant and Mr Winner, after allowing for the additional 15% discount applied in Mr Winner’s case (Mr Winner’s aggregate sentence was 9 years and 7 months after applying a 40% discount and was equivalent to 12 years with a 25% discount whereas the applicant’s overall sentence was 11 years and 9 months after applying a 25% discount); and

   2. (2)

      what the sentencing judge said in the final paragraph of his remarks, which is quoted in full below at [33].

2. [25]

   It was submitted that his Honour approached the sentencing exercise in the applicant’s case on the basis that both men were involved in the same criminal enterprise. It was contended that, while Mr Winner and the applicant were both involved in the offending in counts 3 and 4, there was no evidence of the applicant being involved in Mr Winner’s offence of supplying a large commercial quantity, over 1 kg of methylamphetamine, which was the most serious offence for which Mr Winner was sentenced. To determine the applicant’s punishment by reference to that most serious offending by Mr Winner was said to amount to determining the sentence by reference to an irrelevant consideration and thus to be in error.

3. [26]

   The Crown submitted that the comment by his Honour relied upon by the applicant was no more than an observation after sentence had been imposed on the applicant that the criminal conduct engaged in by Mr Winner was similarly serious to that engaged in by the applicant, in that they were both engaged in the distribution of illegal drugs and that when assessing all of the objective and subjective features the criminality of each of them was about the same. It was contended that, when considering overall criminality, it was significant that the Form 1 matters attached to sequence 30 in the applicant’s case were far more serious than the Form 1 matters related to the most serious offence for which Mr Winner was sentenced.

4. [27]

   The Crown submitted that there was no misapplication of principle in the sentencing judge’s observation that, while allowing for the different discounts, the sentences of the applicant and Mr Winner were not dissimilar. The Crown also submitted that to the extent that the parity principle applied between the applicant and Mr Henderson for the sequence 28 offence, and between the applicant and Mr Winner for the sequence 29 and 30 offences, there was no error by the sentencing judge. Moreover, to the extent that the parity principle did not apply, it was submitted that there was no error in the sentencing or in taking into account the sentence imposed on Mr Winner for similar offences for the purpose of promoting consistency of sentencing. The Crown also drew attention to the statements of principle in various cases, including Baladjam v R [2018] NSWCCA 304; (2018) 341 FLR 162 and Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 (Green and Quinn).

5. [28]

   The principle which applies in determining this ground was explained by Bell J, in Green and Quinn at [125]:

6. [29]

   Whilst Mr Winner was involved in two of the transactions for which the applicant was sentenced, there was a fundamental difference between the offenders. In relation to the two transactions where Mr Winner and the applicant were each involved, (counts 3 and 4) Mr Winner pleaded guilty to offences involving a large commercial quantity of methylamphetamine, carrying a life sentence. The applicant in counts 3 and 4 pleaded guilty to offences involving a commercial quantity, carrying a 20 year maximum sentence. In such a case, care needs to be taken so as not to confuse or conflate the principle of parity with ideas of proportion in the sentencing of offenders for different offences arising out of the same criminal enterprise. That is even more so when, as here, an aggregate sentence was imposed on Mr Winner and the most significant offence faced by Mr Winner was unrelated to the activities of the applicant. That unrelated offending involved the possession, and deemed supply, of just over 1kg of methylamphetamine at his residence on 20 December 2016. This was a large commercial quantity of methylamphetamine and also carried a maximum sentence of life imprisonment.

7. [30]

   No doubt because of these very substantial differences, the sentencing judge in the course of argument made clear that parity between Mr Winner and the applicant was not a relevant issue in sentencing the applicant:

8. [31]

   Further, in course of submissions, the sentencing judge stopped counsel from addressing the issue of the hierarchy of the relationship between the applicant and Mr Winner:

9. [32]

   Yet when he came to sentence the applicant, the sentencing judge conducted just such a comparison between Mr Winner’s offending and the applicant’s. The sentencing judge expressly considered the involvement of Mr Winner in the offences the subject of the applicant’s counts 3 and 4 and, in relation to those offences, made an assessment of the criminality of the applicant compared with the criminality of Mr Winner. Contrary to what he had said in argument, his Honour did so in the context of applying the parity principle. The starting point of any comparison between the offending of Mr Winner and the applicant in counts 3 and 4 is the different offences for which they were being sentenced. Mr Winner’s offending carryied a life sentence for each offence. The maximum carried by the applicant’s offences was 20 years imprisonment. The sentencing judge made the following comparisons:

   1. (1)

      for the applicant’s count 3, before discount, 10 years for the applicant and 12 years for Mr Winner; and

   2. (2)

      for the applicant’s count 4 (taking into account the Form 1 offences), before discount, 12 years for the applicant and 12 years for Mr Winner.

10. [33]

    If this was the only reference to parity principles by the sentencing judge error may not have been established. It may be that this could be treated as a case, like Baladjam v R, which was relied upon by the Crown, where the comparison of the offending could be understood as an exercise promoting consistency in sentencing. There is, however, an important additional consideration in this case. At the conclusion of the sentencing judge’s remarks, his Honour returned to comparing the aggregate sentence imposed on Mr Winner, in which by far the longest indicative sentence was that in relation to the 1 kg of ice which was not a transaction in which the applicant was involved, and the total effective sentence imposed on the applicant:

11. [34]

    This was a quite inappropriate comparison, whether viewed as “parity” reasoning or as an attempt to explain proportionality in the sentencing of offenders for different offences arising out of the same criminal enterprise. Despite some overlap in relation to the applicant’s counts 3 and 4, the comparison made was between quite separate and different offending. The sentencing judge’s approach obscured a proper consideration of the appropriate sentence for the applicant.

12. [35]

    Mr Winner’s aggregate sentence involved three offences carrying a maximum life sentence and included the separate serious offending of supplying more than a kilogram of methylamphetamine. [1] It is true that the applicant was being sentenced for an additional two offences, counts 1 and 2, which involved transactions to which Mr Winner was not a party. This underlines, rather than detracts from, the error. It was an error to compare the effective sentence for the applicant with the aggregate sentence previously imposed on Mr Winner. The sentences were not apt for comparison on parity principles and did not arise out of the same criminal enterprise. The overlapping nature of two of the transactions involved does not permit the comparison which was undertaken.

13. [36]

    In sentencing the applicant, the sentencing judge placed at least significant weight on the aggregate sentence his Honour had earlier imposed upon Mr Winner. So much is apparent from the virtually identical lengths of the applicant’s effective sentence and Mr Winner’s aggregate sentence (Mr Winner’s additional s 23 discount aside) and the express terms of the final substantive paragraph of the sentencing judgment quoted at [33] above. Whilst his Honour said in that paragraph that parity did not “strictly” apply, the reference to the “different roles” of Mr Winner and the applicant and each’s serious involvement “in the distribution of illicit substances” is only explicable on the basis that the sentencing judge approached the sentencing exercise on the basis that both men were relevantly involved in the same criminal enterprise. This was a material error.

14. [37]

    For these reasons the sentencing judge erred in taking into account an irrelevant consideration as contended by the applicant.

15. [38]

    Error having been established it is necessary to re-sentence the applicant: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37. It is appropriate in this case to make the same findings about the objective and subjective matters relevant to the applicant’s offending as the trial judge did: DL v The Queen (2018) 265 CLR 215; [2018] HCA 32.

16. [39]

    We find that the applicant was 23 years old at the time of his offending. He did have prior matters on his record, including, in 2014, stalking and assault occasioning actual bodily harm, in 2015, assault and assault occasioning actual bodily harm, and, in 2016, possessing a prohibited drug, possessing explosives and possessing a prohibited weapon. We make the same finding as the sentencing judge that, while the applicant was still relatively young, he was not a youthful offender.

17. [40]

    We take into account the evidence led on re-sentence. Ms Janet Witmer, the applicant’s solicitor, provided an affidavit annexing four Statements of Attainment dated 7 May 2021 issued by TAFE NSW to the applicant in Breadmaking, Warehousing Employment Preparation, Espresso Coffee and Foundation Skills for Writing and Numeracy, and a Statement of Attainment dated 15 September 2019 issued by TAFE NSW in Espresso Coffee. These attainments are to the applicant’s credit.

18. [41]

    The applicant also gave evidence by an affidavit affirmed 19 May 2021. In that affidavit the applicant said that he has completed a number of courses and would like to enrol in further programs, including the EQUIPS addiction program, which is not at present available to him. The applicant works in a bakery, where he has been employed for well over 2 years. The applicant expressed remorse for his past use of drugs and stated his aspiration upon release from prison to get back on his feet and start a productive life by spending time with and starting his own family and opening a small business. The applicant enjoys the support of a close and living family together with a stable friendship group. We take this evidence into account in favour of the applicant and, in particular, his prospects of rehabilitation.

19. [42]

    We take into account, in the same way as the sentencing judge, the psychiatric reports dated 8 May 2017 and 22 October 2018 prepared by Dr Antony Henderson. We find that the applicant’s conditions fell within the principles set out by this Court in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 (De La Rosa).

20. [43]

    We find that the applicant had been diagnosed with attention deficit hyperactivity disorder (ADHD) at the age of five and treated with dexamphetamine and that he was formally diagnosed at 14 with a major depressive disorder and anxiety. We find that since going into custody the applicant had been reviewed by the Corrective Services Mental Health Service which recommended his use of mood stabiliser medication. We find that as at the time of re-sentence the applicant had received no disciplinary charges since being incarcerated and note the diagnoses of major depressive disorder, obsessive-compulsive disorder (OCD) and ADHD extending into adulthood, as well as cannabis and stimulant use disorder.

21. [44]

    We accept Dr Henderson’s opinion that the applicant had suffered from significant and largely untreated mental illnesses and conditions since his childhood and that his mental health issues had provided a motivation for the applicant to be involved in the use of illicit substances by reason of his desire to self-medicate. We accept Dr Henderson’s opinion that the applicant’s mental illnesses and conditions, no doubt including ADHD, OCD and a major depressive disorder, mean that his time in custody would be served in harsher conditions than would otherwise be the case.

22. [45]

    We find, as did the sentencing judge, that the applicant represented a low risk of recidivism. We are bolstered in that conclusion by the evidence on re‑sentence we have summarised above about the supportive family environment the applicant enjoys.

23. [46]

    We note that the custodial records showed that the applicant had been placed in protection on the basis of his fears and that this was the applicant’s first time in custody. Those who are placed in protection usually serve their sentence in harsher circumstances than would otherwise apply, although it was accepted that it was not possible finally to determine that factor given the variation between the facilities that were offered for those on protection from one place to another.

24. [47]

    In summary, we accept that it was likely that the applicant’s time in custody would be served in harsher circumstances because of a combination of the protection issues and his mental health issues. We find special circumstances, especially on the basis that the applicant will benefit from a longer than normal period to deal with substance abuse relapse issues upon his release to parole.

25. [48]

    We take into account the character references that had been provided, the report of Dr Michael Robertson, which establishes that the applicant had been drug-free for the bulk of 2018 while in custody, and his certificates of attainment. There is no suggestion of any relapse in drug taking to the present time.

26. [49]

    In relation to the applicant’s mental illness, we find in the application of the principles in De La Rosa that general deterrence had a lesser role to play in this sentencing exercise, that the need for specific deterrence was reduced, that the mental health issues might provide some reduction in moral culpability.

27. [50]

    The applicant pleaded guilty in the Local Court and is entitled to the full utilitarian discount of 25%. We take the offences on the Form 1 into account in relation to count 4.

28. [51]

    By reference to the provisions of ss 3A and 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW) we have determined that no sentence other than a sentence of full-time imprisonment would be appropriate. We have considered the mitigating and aggravating factors referred to in s 21A of that Act.

29. [52]

    We have decided to impose an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act. We have concluded that an aggregate sentence of 10 years and 8 months should be imposed, to date from 21 December 2016, expiring on 20 August 2027. A non parole period of 5 years and 8 months should be imposed, expiring on 20 August 2022. The following indicative sentences are identified:

    1. (1)

       count 1: 3 years 9 months, with a non-parole period of 2 years 3 months;

    2. (2)

       count 2: 6 years 9 months, with a non-parole period of 4 years;

    3. (3)

       count 3: 7 years 6 months, with a non-parole period of 4 years;

    4. (4)

       count 4: 9 years, with a non-parole period of 4 years and 4 months.

Ground 2 – The sentences were manifestly excessive

1. [53]

   The applicant’s second ground of appeal was to the effect that the sentences imposed on the applicant were manifestly excessive. Given the conclusion we have reached on ground 1 it is unnecessary and undesirable to consider this ground.

Conclusion and proposed orders

1. [54]

   Accordingly, the Court orders:

   1. (1)

      The applicant is granted leave to appeal on ground 1;

   2. (2)

      The appeal is allowed;

   3. (3)

      The orders made by Ellis DCJ on 31 October 2018 are quashed and in lieu thereof the offender is sentenced as follows: