Chapman v R

1. [1]

   ADAMSON JA: I agree with Price J.

2. [2]

   PRICE J: On 1 September 2022, Christopher Jetson Chapman, also known as Christopher Rooskie, (‘the applicant’) was sentenced by English DCJ (‘the Judge’) in the District Court at Campbelltown for two offences to which he had entered pleas of guilty. The first offence was a charge of supplying on 9 July 2020 a large commercial quantity of the prohibited drug 1,4-Butanediol. The amount supplied was 5,508.6g. The maximum penalty for the offence which is contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (‘the DMT Act’) is life imprisonment with a standard non-parole period of 15 years’ imprisonment.

3. [3]

   As to the second offence, the applicant was driving a motor vehicle on 9 July 2020, whilst his license was cancelled. The maximum penalty for the offence which is contrary to s 54(4)(a) of the Road Transport Act 2013 (NSW) is 12 months’ imprisonment and/or a fine of 50 penalty units. An automatic period of 12 months disqualification applies with a statutory minimum period of disqualification of 6 months.

4. [4]

   For the first offence, the applicant was sentenced to 5 years’ imprisonment with a non-parole period of 3 years and 9 months commencing on 9 July 2020 and expiring on 8 July 2024. For the second offence, the applicant was sentenced to 9 months’ imprisonment commencing on 9 July 2020 and expiring on 8 April 2021. He was disqualified from driving for 12 months. As the sentence of imprisonment for the second offence is wholly concurrent with the sentence for the first offence, the total effective sentence is 5 years’ imprisonment with a non-parole period of 3 years and 9 months. The earliest date the applicant is eligible to be released on parole is 8 April 2024.

The grounds of appeal

1. [5]

   The applicant, who appeared in this Court unrepresented, appeals his sentence on the following grounds:

   1. (1)

      There should have been a finding of special circumstances.

   2. (2)

      His sentence in comparison to the sentence imposed upon his co-accused Radi El Dirani was excessive.

2. [6]

   The applicant requires the leave of the court to appeal against his sentence. [1]

Proceedings on sentence

1. [7]

   The Crown’s tender bundle included agreed facts and the applicant’s criminal histories in New South Wales and Western Australia. The applicant’s Commonwealth criminal history, a parole breach report dated 14 July 2020, a letter from the Director of Niagara House dated 30 March 2018 and the sentencing remarks of Gibson LCM on 3 July 2019 were also tendered.

2. [8]

   The applicant has a lengthy criminal history in New South Wales which includes offences of domestic violence, driving offences, possession of prohibited drugs, offences of dishonesty and common assault. He had been sentenced to terms of imprisonment in 2014, 2017 and 2018.

3. [9]

   The parole breach report concerned 11 offences of contravening prohibition/restriction in an apprehended domestic violence order. For these offences, he was sentenced in the Local Court at Coffs Harbour on 3 July 2019 by Gibson LCM to an aggregate sentence of 18 months’ imprisonment commencing on 30 January 2019 and concluding on 29 July 2020 with a non-parole period of 10 months commencing on 30 January 2019 and concluding on 29 November 2019.

4. [10]

   In the opinion of the author of the report, the applicant’s response to supervision was “unsatisfactory”. The author stated:

5. [11]

   The author made particular reference to the applicant’s response to supervision declining in March 2020 following the removal of the Domestic Violence Electronic Monitoring program to which he had been released on parole on 29 November 2019. The applicant failed to report on numerous occasions and made “minimal effort to address his criminogenic risk factors”. [3] The author acknowledged that the applicant commenced the EQUIPS Domestic Abuse program on 10 March 2020, however the program was cancelled after three sessions due to COVID-19. The author also referred to the applicant failing to report as scheduled on numerous occasions between 29 May 2020 and 15 June 2020.

6. [12]

   The applicant was on parole at the time he committed the offences for which he was being sentenced by the Judge. His parole was treated by the State Parole Authority as having been revoked on 9 July 2020.

7. [13]

   The applicant’s prior criminal history in Western Australia included an offence of possession of a prohibited drug with intent to sell and another offence of possession of drug paraphernalia. His prior criminal history for offences against the Commonwealth concerned two offences of use of a carriage service to menace or harass, for which he was sentenced to 2 months’ imprisonment in 2018.

8. [14]

   The remarks on sentence of Gibson LCM included the following:

9. [15]

   The applicant was represented by counsel in the District Court. A toxicology report from Dr Michael Robertson, a discharge referral letter from Lismore Base Hospital, a City Sleep Admission Agreement and accompanying letter, a report from Sam Borenstein, a clinical psychologist and a letter from the applicant were tendered on his behalf.

10. [16]

    The applicant was born in the United Kingdom (‘UK’) on 24 December 1981. He was one of four children. Mr Borenstein reported that there was no history of trauma, abuse or domestic violence in his family upbringing. The applicant was aged about 5 or 6 when the family moved to Australia. He left school in year 10 to commence a trade in horticulture, landscaping and greenkeeping. Following an apprenticeship at a golf club, he worked at Bunnings until he went to the UK to play rugby union. He returned to Australia after his sister’s death by suicide in 2006. Mr Borenstein referred to the applicant self-medicating with drugs, primarily methamphetamine, following his sister’s death. The applicant informed Mr Borenstein that his sister had been diagnosed with schizophrenia and he had been very close to her.

11. [17]

    Mr Borenstein reported that the applicant had been party to two significant relationships, the first with Bianca, the mother of his 9-year-old son and his most recent with Emily, the mother of his 5-year-old son and 2-year-old daughter. The applicant expressed difficulties establishing boundaries and limits and asserting his wants and needs, fearing possible consequences as he remained highly sensitive following his sister’s death.

12. [18]

    Mr Borenstein opined that the applicant’s mental health had been compromised since his sister’s death and the applicant understood that he needed to undertake intensive psychological treatment with emphasis on unresolved and complicated grief. Furthermore, the applicant understood the need to undertake specific drug and alcohol counselling.

13. [19]

    In his letter to the Judge, the applicant stated that since mid-2014, he had lived in denial and would not accept that he needed professional help for his addictions. He could see clearly that his offending had been linked to his drug use. He stated that the only way to take responsibility for the last 8 years was to “own” his drug addictions and mental health issues by placing himself into a fulltime rehabilitation program upon release. He informed the Judge that he had received a fulltime bed for a 9-month program and if released on parole, he would “go straight to the rehabilitation centre to start treatment”.

14. [20]

    The documents tendered included an unsigned admission agreement for a community rehabilitation program in the City Sleep Safe House and a letter dated 20 December 2021 confirming the applicant’s acceptance into the City Sleep Safe program.

15. [21]

    The discharge referral letter from Lismore Base Hospital concerned the applicant’s admission to that hospital in July 2022 when he underwent surgery for a fracture of the mandible and the removal of four teeth sustained from a blow to the jaw.

16. [22]

    The applicant gave evidence of the injuries he had suffered when assaulted at the Windsor Correctional Centre, that he had contracted COVID-19 on three separate occasions and the periods of time that he had been in a “COVID Lockdown” whilst in custody. He said that he had been using illicit drugs heavily since 2013 or 2014 and had been using illicit drugs whilst on parole. The applicant said that what he had written in his letter was the truth and he had expressed the desire to be rehabilitated before. He told the Judge that he needed to change the cycle of reoffending and be released into fulltime rehabilitation.

17. [23]

    The applicant said that he had registered his interest in participating in drug and alcohol rehabilitation programs whilst on remand, but the program had been cancelled because of COVID-19. He had also been on a waitlist to see the mental health team. He had attempted to go into fulltime residential rehabilitation at Niagara Lodge when he was released from custody a few years ago but no beds were available. He had received a bed at the City Sleep Safe rehabilitation centre where he would go upon release.

18. [24]

    When asked if he had contact with his former partner with whom he had started using drugs in 2013-2014, he replied that he did not as she now lives in Brisbane, but he has contact with his children via FaceTime. His mother and father who supported him were present in the courtroom.

19. [25]

    In cross-examination, he was referred to a letter dated 6 April 2018 under his hand in which he stated that he had received a bed “at a full-time rehab in Gosford” and attached a letter from Niagara Lodge which “accepted him” into a six-month rehabilitation program. [4] The applicant was further cross-examined on a letter dated 22 June 2018 which stated that he had completed “two months rehab”.

20. [26]

    In responding to the question “what he meant”, the applicant replied:

21. [27]

    The applicant was referred to his prior criminal history. He agreed that he had been released from custody on 10 August 2018 and had not returned into custody until 1 February 2019. He agreed that during those six months on release, he had done nothing about his mental health or drug addictions. He agreed that at that time, he made no effort to contact Niagara Lodge.

22. [28]

    When referred to his letter to the Judge in which he stated that he finally accepted that he needed treatment for his mental health and drug addiction, the applicant agreed that he had said that many times in the past.

23. [29]

    After reciting the offences for which the applicant stood for sentence, the Judge summarised the agreed facts and circumstances of the offences as follows:

24. [30]

    The Judge said that the applicant was 40 years of age and had lengthy criminal antecedents. Her Honour summarised his criminal histories in New South Wales, Western Australia and against the Commonwealth.

25. [31]

    Her Honour observed that the applicant committed the offences on parole which was a circumstance of aggravation. Her Honour recounted at length the applicant’s conduct whilst on parole and noted that whilst he had been in custody since 9 July 2020, the applicant had served the balance of parole and was bail refused on some other matters. Her Honour said that whilst he was at risk of having his bail revoked due to his poor compliance, his parole was revoked as a result of these offences.

26. [32]

    Her Honour summarised the toxicology report tendered on the applicant’s behalf. Her Honour said that 1,4-Butanediol is a central nervous system depressant, which when ingested is converted into gamma hydroxybutyrate, or GHB, in the blood within seconds. The “desirable effects” are relaxation and euphoria, with a loss of inhibitions. For that reason, it was known as the “date drug”. [6] Her Honour observed that the “non-desirable effects” include dizziness, drowsiness, nausea, vomiting, disorientation, confusion and loss of consciousness. Following ingestion, the effects are noticed within 15 to 30 minutes and may last for a few hours. Following ingestion and conversion to GHB, the drug is rapidly eliminated from the body and has a half-life of between 34 and 44 minutes. Her Honour noted that “[d]epending on the tolerance of the user, 1,4-Butanediol may be used in doses of between 20 and 100 milligrams per kilogram of body weight”. [7]

27. [33]

    The Judge observed that the applicant was admitted to Lismore Base Hospital and treated for a fracture of the mandible which he sustained following a blow to his jaw whilst in custody some days prior. He underwent operative management of the fracture and the removal of four teeth.

28. [34]

    The Judge said that the applicant had made enquiries seeking accommodation in the City Sleep Safe program, which is a community rehabilitation program in Newcastle for homeless persons suffering with addictions. Her Honour said that the letter confirming his acceptance into the program was dated December 2021. Her Honour also noted the applicant’s letter written to the Court “setting out his battles” with what he said were mental health issues and drug and alcohol addiction, and a desire to address the issues which caused him “to relapse and reoffend”. [8]

29. [35]

    After summarising submissions made by the Crown and the applicant’s counsel, the Judge found that the offence of supplying a prohibited drug fell just below the mid-range of objective seriousness.

30. [36]

    Her Honour found that the planning involved in the offence was no greater than the planning always involved in the supply of a prohibited drug.

31. [37]

    The Judge said that the quantity was approximately 1.5kg above the large commercial quantity which was significant but not the sole nor principal determinant for sentencing in relation to drug supply offences. The applicant, her Honour said, had paid a not insignificant sum for the quantity of the prohibited drug.

32. [38]

    The Judge found that the applicant’s activities were consistent with that of a drug dealer. He hired a car and used a mobile phone subscribed to someone else, making it less likely that he would be detected and he intended to supply to three persons.

33. [39]

    Her Honour observed that the applicant was not dealing to the general public at large but rather to a limited number of customers and found that he was a user-dealer supplying to support his own habit. The Judge said that he was using anywhere between 80 to 110g per day, throughout the day, normally in 10g doses.

34. [40]

    The Judge discounted the applicant’s sentence for the plea of guilty by 25% entered in the Local Court which she said had significant utilitarian value and demonstrated contrition. Her Honour said no causal link had been made between his mental health issues and his offending which would warrant a reduction in his moral culpability being made.

35. [41]

    The Judge noted that the applicant had a stable and loving upbringing and it was well into adulthood that he commenced abusing illicit substances. The Judge said that he had been on notice for a considerable period of time of the harm he was doing to himself by ignoring the need to address any mental health issues he may have, but more particularly his drug addiction.

36. [42]

    Her Honour said that she found his evidence regarding his commencement of the use of illicit drugs as “somewhat contradictory”. Either it was a result of his sister’s death or it was a result of the breakdown of a relationship in 2013 or 2014. Her Honour went on to say that the applicant’s usage escalated significantly as a result of the relationship breakdown but considered that his attempts to sheet the whole blame to his former partner for his increasing habit was not demonstrative of taking responsibility on his own behalf for decisions he made.

37. [43]

    Her Honour observed that the applicant had been afforded opportunities in the past to address the issues in order to prevent relapse and has been afforded help to seek treatment. Her Honour said that the applicant’s “somewhat lengthy” criminal antecedents did not aggravate the offending but tempered the leniency which he would otherwise be entitled to.

38. [44]

    The Judge found the applicant’s prospects of rehabilitation to be guarded, given that he had told the Court “time and time again” he was sorry and would address his drug addiction but had failed to do so.

39. [45]

    Her Honour found the applicant’s time in custody had been “more onerous on this occasion” due to the pandemic and the significant injury to his jaw. [9]

40. [46]

    Another finding that her Honour made was that the applicant was highly likely to reoffend unless he was able to complete a residential rehabilitation program and address whatever mental health issues he may have.

41. [47]

    The Judge said that general deterrence and specific deterrence had significant roles to play and protection of the community was now a paramount consideration.

42. [48]

    Her Honour said that the applicant’s family and the community “can only hope that he is committed to entering residential rehabilitation and reducing the likelihood of relapse and re-offending. Unfortunately, he has made that promise repeatedly before.” [10]

43. [49]

    Her Honour declined to find special circumstances. Her Honour said there would be ample opportunity for him on parole to enter residential rehabilitation if he was committed to doing so under supervision of Community Corrections. Otherwise, he could do it of his own accord. Similarly, it was up to him to pursue treatment for any mental health issue he may have. [11]

44. [50]

    After observing that the applicant had served time for matters which had been dismissed or withdrawn and had been on parole at the time he committed the offences, her Honour found it appropriate to backdate the sentence to the date he went into custody. Her Honour then imposed the sentences detailed at [4] above.

Ground 1: There should have been a finding of special circumstances

1. [51]

   In his written submissions, the applicant submitted that there should have been a finding of special circumstances based upon a number of factors which he contended were acknowledged by the Judge.

2. [52]

   He argued that the relationship between the non-parole period and the sentence should have been rearranged to allow sufficient time to enable him to spend a period in fulltime residential rehabilitation and receive mental health treatment, as well as providing an adequate period of time under supervision in the community. The applicant’s grounds for a finding of special circumstances were:

   1. (1)

      The impact of COVID-19; he referred to the COVID-19 related lockdowns which required him to spend 211 days in isolation. He submitted that combined with his mental health issues, his time in custody had been significantly more arduous than otherwise would have been the case. He had contracted COVID-19 on three occasions whilst in custody. The applicant stated that on 28 June 2022, the NSW Justice Health and Forensic Mental Health General Practitioner diagnosed him with Long COVID.

   2. (2)

      Injuries suffered while in custody; the applicant referred to the physical assault upon him by Corrective Services which required, in July 2022, an operation to repair a fractured mandible and the removal of four teeth. A Lismore Base Hospital discharge summary was annexure “A” to the written submissions. The applicant further referred to a follow up operation in February 2023 which was required as the initial repair to the mandible failed. A Nepean Hospital discharge summary was annexure “B”. The applicant further stated that ongoing treatment and further surgery had been indicated by his treating surgeon.

   3. (3)

      An error of fact by the Judge used to decline special circumstances. The applicant stated:

3. [53]

   The remarks of N Adams J at a bail hearing on 19 April 2021 was annexure “C”. The applicant placed emphasis on her Honour’s observation that the applicant was “at a cross roads of his life where he really needs intense therapy to assist in relation to his mental health issues and also the drug issues that flow from it”. [12]

4. [54]

   The applicant further submitted that since December 2022, he had been participating in the Alternate Sanctions Program at the John Morony Correctional Centre and had made significant strides toward his rehabilitation. A completion letter was annexure “D”. He also stated that he had obtained acceptance to a fulltime residential program with The Restoration Centre. An unsigned letter dated 10 March 2023 certifying that the applicant had been accepted into The Restoration Centre’s 12-month residential program “pending bed availability” was annexure “E”.

Consideration

1. [55]

   When appearing before this Court, the applicant was informed that his submissions and annexures which postdate the imposition of his sentence were not admissible. However, the Crown had no objection to this material being taken into account if the Court came to re-sentence.

2. [56]

   This Court has emphasised that a finding of special circumstances is a discretionary finding of fact in respect of which this Court would be slow to intervene. [13] As such, it is reviewable only on the principles stated in House v The King (1936) 55 CLR 499; [1936] HCA 40.

3. [57]

   The applicant’s complaint is that the Judge’s failure to find special circumstances does not allow him sufficient time on parole to complete a 12-month fulltime residential program and an extended period of supervision in the community is required to enable him to overcome his mental health issues and drug addiction. Amongst the matters he raised were the impact of COVID-19 and the injuries he suffered whilst in custody. These matters were taken into account by the Judge in determining the head sentence and were not to be “double counted” in a finding of special circumstances.

4. [58]

   The applicant’s contention that her Honour erred in finding that his prospects of rehabilitation were guarded is without substance. The applicant’s credibility was substantially diminished by his conduct on parole. When being sentenced in the Local Court, he had submitted to Gibson LCM that he had insight into his mental health and drug issues and needed help. However, he made no effort upon release to parole to enter into fulltime rehabilitation but went on to use prohibited drugs and to commit the serious drug supply offence.

5. [59]

   This Court has previously said that for special circumstances to be established “there must exist significant positive signs which show that if the offender is allowed a larger period on parole, rehabilitation is likely to be successful”. [14] It is hardly surprising that the applicant did not satisfy the Judge that a longer period on parole was warranted.

6. [60]

   Furthermore, her Honour was entitled to take into account considerations such as protection of the community, specific and general deterrence, as well as the applicant’s rehabilitation when sentencing the applicant. It was open to her Honour to conclude that in all the circumstances, the minimum period of incarceration that the applicant should serve for his offending was 3 years and 9 months. No error has been established.

7. [61]

   I would reject ground 1 of the appeal.

Ground 2: His sentence in comparison to the sentence imposed upon his co-accused Radi El Dirani was excessive

1. [62]

   The applicant complained that his “co-accused Mr El Dirani received a near same non-parole period when he had a much larger amount of a different type of drug”. Furthermore, Mr El Dirani “was supplying to a greater network and the purpose of supply was for financial gain”. The applicant pointed out that Mr El Dirani was “charged and sentenced on a number of firearm offences whilst on a[n] FPO”.

2. [63]

   The applicant accepted that he had to establish Mr El Dirani was his co-accused if the parity principle was to apply. He submitted that this had been established on the agreed facts. A further submission was that both he and Mr El Dirani were charged with an offence of supply of a large commercial quantity of a prohibited drug contrary to s 25(2) of the DMT Act. He contended that his sentence was excessive in comparison to that of his “co-accused”.

Consideration

1. [64]

   The relevant legal principles concerning parity were helpfully summarised by RA Hulme AJ (with whom Beech-Jones CJ at CL and Fagan J agreed) in Kiraz v R [2023] NSWCCA 177 at [42]-[43].

2. [65]

   Mr El Dirani was sentenced by Baly SC DCJ on 1 September 2021 – one year before the applicant was sentenced. He had pleaded guilty to the following offences:

3. [66]

   Mr El Dirani was sentenced to an aggregate term of imprisonment of 6 years with a non-parole period of 4 years. For sequence 15, with a 25% discount, the indicative sentence was 4 years and 6 months with a non-parole period of 3 years.

4. [67]

   The agreed facts for sequence 15 referred to the supply of GHB by Mr El Dirani to various customers on seven different occasions between 13 July 2020 and 1 August 2020. The applicant was not one of these customers. The applicant was neither alleged to have been involved in any of the transactions nor was it alleged that he was a participant in a joint criminal enterprise with Mr El Dirani.

5. [68]

   Mr El Dirani was not charged with the supply of 1,4-Butanediol to the applicant on 9 July 2020.

6. [69]

   The agreed facts on which the applicant was sentenced made no mention of other prohibited drug supplies by Mr El Dirani. They centred on the supply of the prohibited drug by Mr El Dirani to the applicant and the applicant’s on-supply to his “main three customers”. There is no mention in the agreed facts to the applicant being a party to a joint criminal enterprise with Mr El Dirani. During his sentence proceedings, the issue of parity with Mr El Dirani’s sentence was not raised.

7. [70]

   The applicant was not a participant in the same criminal enterprise as Mr El Dirani, who was the supplier of prohibited drugs to customers who contacted him by mobile phone calls or text messages. The applicant was one of Mr El Dirani’s customers. He had purchased the prohibited drug for his own use and to on-sell it to his own customers. They were not co-offenders in the same criminal enterprise and the parity principle does not apply.

8. [71]

   I would reject ground 2 of the appeal.

Orders

1. [72]

   I propose the following orders:

   1. (1)

      Grant leave to appeal;

   2. (2)

      Dismiss the appeal.

2. [73]

   DAVIES J: I agree with Price J.