Gilmour v R

1. [1]

   HOEBEN CJ at CL: I agree with Johnson J.

2. [2]

   JOHNSON J: The Applicant, Jeffrey Robert Gilmour, seeks leave to appeal with respect to an aggregate sentence imposed at the Sydney District Court on 19 May 2017 for a number of serious drug supply offences.

The Offences, Indicative Sentences and Aggregate Sentence

1. [3]

   The Applicant pleaded guilty to two counts of supplying not less than the large commercial quantity of a prohibited drug, N-(2-methoxylbenzyl)-2, 5-dimethoxy-4-chlorophenethylamine (“25C-NBOMe”) contrary to s.25(2) Drug Misuse and Trafficking Act 1985 (“DMT Act”), for each of which the maximum penalty is life imprisonment with a standard non-parole period of 15 years.

2. [4]

   The Applicant requested the sentencing court to take into account (on a Form 1) on sentence for Count 2 two further offences:

3. [5]

   The sentencing Judge nominated the following indicative sentences:

4. [6]

   His Honour imposed an aggregate sentence of imprisonment for seven years commencing on 15 April 2017 and expiring on 14 April 2024, with a non-parole period of three years and six months commencing on 15 April 2017 and expiring on 14 October 2020.

5. [7]

   As the offences in Counts 1 and 2 each carry a standard non-parole period, the sentencing Judge ought to have specified a non-parole period as part of the indicative sentence in compliance with s.54B(4) Crime (Sentencing Procedure) Act 1999. However, the failure to do so does not invalidate the sentence (s.54B(7)) and no point was taken in this Court concerning this issue, which may be put to one side: JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297 at 538 [40](15).

The Applicant’s Grounds of Appeal

1. [8]

   By Notice of Application for Leave to Appeal filed on 31 August 2018, the Applicant relies upon the following grounds of appeal:

Facts of Offences

1. [9]

   Agreed Facts were placed before the sentencing Judge from which the following narrative is drawn.

2. [10]

   In June 2014, a controlled operation was authorised in relation to the supply of prohibited drugs in the alpine region of New South Wales as part of Strike Force Babyl. As part of this operation, undercover operative “P” (“the UCO”) was fitted with a lawfully sanctioned surveillance device to electronically record conversations.

3. [11]

   On 25 July 2014, the UCO met the Applicant and a co-offender, Joshua Hanley (“Hanley”), in Jindabyne. The Applicant and Hanley told him that they both used and supplied drugs, primarily cocaine and ecstasy, in the northern beaches of Sydney. The Applicant and Hanley said that the Applicant was the supplier and that Hanley was his accountant who “kept his [the Applicant’s] books”.

4. [12]

   At about 2.00 pm on 8 August 2014, the UCO met the Applicant at the Time and Tide Hotel in Dee Why. They travelled together to Bankstown to meet another co-offender, Vinh Anh Hoang (“Hoang”). The Applicant was given $5,200.00 for one pound (450 grams) of cannabis and 100 tablets said to be ecstasy. Through Hoang, the Applicant supplied the UCO with 450 grams of cannabis (the Sequence 2 offence on the Form 1) and 102 tablets embossed on one side with a Batman logo. These tablets were analysed and found to contain an unspecified quantity of 25C-NBOMe weighing 24.6 grams (the large commercial quantity supply offence in Count 1).

5. [13]

   Over the next week, a number of text messages and telephone calls were made between the Applicant and the UCO during which they discussed the supply of a further 500 tablets embossed with the Batman logo. The Applicant informed the UCO that they would cost $7,500.00.

6. [14]

   On 14 August 2014, the UCO gave Hanley $7,500.00. At about 5.00 pm on 15 August 2014, the Applicant met the UCO at the Eagle Hawk Hotel, Sutton. Outside the hotel, the Applicant handed the UCO a box containing 504 tablets which appeared identical in colour and style to the 102 tablets supplied to him on 8 August 2014. The 504 tablets were analysed and found to contain an unspecified amount of 25C-NBOMe, weighing 121.5 grams (the large commercial quantity supply offence in Count 2).

7. [15]

   The purchase of a further 500 tablets was discussed and, on 2 September 2014, the UCO paid the Applicant $8,000.00. The Applicant later met Hoang and paid him.

8. [16]

   On the afternoon of 5 September 2014, the UCO met the Applicant once again at the Eagle Hawk Hotel, Sutton, where a third co-offender, Zachary Fenson (“Fenson”), supplied the UCO with 144.3 grams of ecstasy (the Sequence 7 offence on the Form 1).

9. [17]

   The Applicant and Fenson were arrested during this transaction. The Applicant declined to answer questions in an electronically recorded interview with police.

10. [18]

    The Applicant was refused bail and remained in custody from 5 September 2014 until his release on conditional bail on 8 October 2014.

11. [19]

    At the time of these offences, the large commercial quantity for 25C-NBOMe was 0.002kg (or 2 grams), with the commercial quantity being 0.0005kg (or 0.5 grams).

The Applicant’s Subjective Circumstances

1. [20]

   The Applicant was 23 years old at the time of the offences and 26 years old at the time of sentence.

2. [21]

   The Applicant had no prior convictions.

3. [22]

   Tendered at the sentencing hearing were presentence reports concerning the Applicant dated 7 April 2015 and 30 August 2016. In addition, a report of Dr Thomas Clark, forensic psychiatrist, dated 25 June 2015 was tendered in the Applicant’s case on sentence together with a report of Nicholas Lavidis, clinical psychologist, dated 31 July 2015. A number of character references were tendered as well in the defence case on sentence.

4. [23]

   The Applicant did not give evidence at the sentencing hearing.

5. [24]

   Documents tendered on behalf of the Applicant in the District Court indicated that he had a loving and supportive upbringing and that he had been in a relationship with his partner for the previous five years. The Applicant was educated to Year 10 and went on to qualify as a sheet metal fabricator.

6. [25]

   The Applicant had a significant history of polysubstance abuse dating back to the age of 13-14 years but, according to the presentence report, his use of substances was “more recreational than addiction based” and he reported not taking any illicit substances since being charged in September 2014.

7. [26]

   When first interviewed in March 2015 for the purpose of the presentence report, the Applicant told the Community Corrections officer that he did not consider the use or sale of ecstasy to be harmful, and he would never sell anything that he “hadn’t tried personally”. He attributed the offending to a desire to finance his recreational drug use. The Community Corrections officer expressed the view that the Applicant “lacked insight into the consequences of his behaviour” although “on reflection, he acknowledged that his actions were stupid and he did not consider the consequences”.

8. [27]

   In the second presentence report dated 30 August 2016, it was stated that the Applicant “expressed fresh insight into his offending behaviour” and that he “acknowledged that [the] use of illicit substances can damage others”.

9. [28]

   The Applicant was assessed in the presentence report as being at a low-to-medium risk of reoffending.

10. [29]

    Given the issues raised by the second ground of appeal, it is appropriate to set out some features of the psychiatric and psychological reports.

11. [30]

    The report of Dr Clark indicated that he had examined the Applicant on 27 May 2015. Dr Clark formed the view that the Applicant had a hypomanic disorder largely manifested by his pressurised behaviour, speech, flights of ideas and affable manner. According to Dr Clark, another feature of the Applicant’s condition was “disinhibited risk taking”. Dr Clark expressed the view that the condition was present at the time of the offences and was still present at the time of examination, but that there was “no evidence he suffered from this disorder in the past”, noting that the Applicant was capable of completing his apprenticeship. Dr Clark concluded (page 7):

12. [31]

    Mr Lavidis agreed with Dr Clark’s diagnosis. Mr Lavidis was of the view that the Applicant had the condition from an early age and that it had remained undetected until recently. Mr Lavidis expressed the view that the Applicant’s “substance use is related to his hypomanic disorder” as a “manifestation of the higher risk taking component of bipolar disorder” and that the Applicant displayed “poor decision making regarding his offences” (page 7).

13. [32]

    According to the report of Mr Lavidis, the Applicant reported a high-level use of amphetamine, ecstasy and cocaine at the time of the offences (page 3).

14. [33]

    Mr Lavidis recommended that the Applicant continue with cognitive behaviour therapy, indicating that the Applicant would require three months of weekly sessions to address his disorder. Dr Clark was of a similar view that cognitive behavioural therapy would lead to a “substantial settling down of this condition within a period of three months”, with treatment recommended for two years to minimise the risk of reoffending.

15. [34]

    As the sentencing Judge observed, no further psychiatric or psychological report was provided on sentence (in May 2017) to demonstrate the Applicant’s progress during the period of almost two years following the preparation of the reports on 25 June 2015 (Dr Clark) and 31 July 2015 (Mr Lavidis).

16. [35]

    The sentencing Judge accepted that the Applicant was remorseful and that he was well on his way to being rehabilitated. The indicative sentences reflected a 25% discount in relation to each offence for the utilitarian value of the Applicant’s pleas.

The Co-Offenders

1. [36]

   In the same sentencing remarks delivered on 19 May 2017, the sentencing Judge also sentenced the two co-offenders, Hanley and Hoang.

2. [37]

   Hanley was sentenced in relation to two counts of supplying an indictable quantity of 25C-NBOMe contrary to s.25(1) DMT Act on 8 August 2014 and 15 August 2014 and one count of knowingly taking part in the supply of a commercial quantity of ecstasy contrary to s.25(2) DMT Act on 1 September 2014. The supply of cannabis on 8 August 2014 contrary to s.25(1) DMT Act was taken into account on a Form 1.

3. [38]

   The difference in the charges, as between Hanley and the Applicant, concerning the supply of 25C-NBOMe was attributable to what the sentencing Judge found to be Hanley’s honest belief that the tablets being supplied were ecstasy, which carried a lower threshold for commercial and large commercial quantities compared to 25C-NBOMe. Hanley was sentenced to an aggregate term of imprisonment of six years with a non-parole period of three years.

4. [39]

   On 26 November 2018, the Court of Criminal Appeal allowed an appeal by Hanley against sentence: Hanley v R [2018] NSWCCA 262 (Bellew J, Basten JA and McCallum J agreeing). The error established in that appeal was that asserted for the present Applicant in the first ground of appeal. He was resentenced by this Court to an aggregate sentence of imprisonment for four years with a non-parole period of two years. I will return to the Court’s determination of Hanley’s appeal later in this judgment.

5. [40]

   Hoang was sentenced in relation to two counts of supplying a large commercial quantity of 25C-NBOMe on 8 August 2014 and 5 September 2014 contrary to s.25(2) DMT Act. Offences of supplying cannabis on 8 August 2014, supplying a commercial quantity of ecstasy on 5 September 2014 and possessing cannabis on 5 September 2014 were taken into account on a Form 1. A second Form 1 contained one offence of supplying ecstasy on 5 September 2014.

6. [41]

   Hoang was sentenced to an aggregate term of imprisonment for eight years with a non-parole period of four years.

7. [42]

   Fenson had been sentenced by his Honour Judge Charteris SC in the Queanbeyan District Court on 24 March 2015 for a single offence of supplying a commercial quantity of ecstasy on 5 September 2014. A sentence of 15 months’ imprisonment was imposed, suspended under s.12 Crimes (Sentencing Procedure) Act 1999.

8. [43]

   The Applicant does not advance a parity ground on the application for leave to appeal against sentence. However, as will be seen, submissions were made for the Applicant (on resentencing) which were based upon the sentence imposed upon Hanley by this Court on 26 November 2018.

Ground 1 - The Sentencing Judge Erred by Constraining his Approach to the Test for the Imposition of a Gaol Sentence to “Exceptional Circumstances” in Drug Supply Cases

1. [44]

   Ms Kluss, counsel for the Applicant, submitted that his Honour had fallen into error by relying upon the decision in R v Clark (unreported, Court of Criminal Appeal, 15 March 1990) and invoking the concept of exceptional circumstances on sentence for a drug supply offence contrary to the decision of this Court in Parente v R [2017] NSWCCA 284, which post-dated the sentencing of the Applicant.

2. [45]

   The Crown conceded that Ground 1 should be upheld, but submitted that no lesser sentence was warranted in law under s.6(3) Criminal Appeal Act 1912.

3. [46]

   Under the heading “Exceptional Circumstances” in the sentencing remarks, his Honour said (ROS14):

4. [47]

   Counsel for the Applicant submitted in the District Court that there were exceptional circumstances in his case that arose from his youth, pleas of guilty, good character, rehabilitation and mental health issues. When dealing with the Applicant in the sentencing remarks, his Honour rejected this submission (ROS33):

5. [48]

   As this Court found in Hanley v R at [45], it is clear that the sentencing Judge erred in the way identified in the later decision of Parente v R by concluding that it is only in exceptional circumstances that a non-custodial sentence would be appropriate in cases of substantial trafficking in drugs. It follows that this ground of appeal has been made out. In effect, his Honour had regard to an extraneous or irrelevant consideration on sentence: Parente v R at [118].

6. [49]

   As error has been demonstrated, it will be necessary to re-exercise the sentencing discretion for the purpose of s.6(3) Criminal Appeal Act 1912.

Ground 2 - His Honour’s Sentence Failed to Reflect the Impact of the Applicant’s Mental Illness in the Offending Behaviour

1. [50]

   Although it is not strictly necessary to determine the second ground of appeal, it remains useful to do so because this matter bears as well upon the s.6(3) resentencing process.

2. [51]

   It was submitted for the Applicant that the sentencing Judge had erred in his approach to the medical evidence concerning the Applicant’s mental disorder and that this Court should take this aspect into account in resentencing the Applicant.

3. [52]

   It was submitted for the Crown that the sentencing Judge had expressed careful reasons for a finding that the Applicant had not demonstrated, on the balance of probabilities, that his drug supply activities were causally connected with his mental disorder. The Crown submitted that the Court should adopt this finding for the purpose of undertaking the s.6(3) exercise in this case.

4. [53]

   As noted earlier, Dr Clark examined the Applicant on 27 May 2015 and found that he had a hypomanic disorder largely manifested by his pressurised behaviour, speech, flights of ideas and affable manner.

5. [54]

   Mr Lavidis agreed with Dr Clark’s diagnosis although he was of the view that the Applicant had the condition from an early age and that it had remained undetected until recently. Mr Lavidis expressed the view that the Applicant’s substance use was related to his hypomanic disorder as a manifestation of the higher risk-taking component of bipolar disorder and that the Applicant displayed poor decision making regarding his offences.

6. [55]

   As noted earlier, Dr Clark’s report was dated 25 June 2015 and the report of Mr Lavidis was dated 31 July 2015. There was no further evidence concerning any counselling or treatment undertaken by the Applicant between July 2015 and the sentencing hearing on 5 May 2017.

7. [56]

   It was against this background that the sentencing Judge addressed, in some detail, issues pertinent to sentence with respect to the Applicant’s mental condition. His Honour said (ROS30-33) (emphasis added):

8. [57]

   It can be seen that the sentencing Judge explained his reasons for concluding that the Applicant had not demonstrated that his drug supply activities were causally connected with his mental disorder. This finding was open to the sentencing Judge and no argument was developed before this Court as to why this Court would find error in this conclusion.

9. [58]

   The findings made by the sentencing Judge reflect the approach made clear by this Court in Aslan v R [2014] NSWCCA 114 at [34]-[35], that a central question is whether a mental illness or other condition had a causative role to play in the commission of the offences for which the offender is to be sentenced. Evidence of the existence of a mental condition does not necessarily give rise to a finding of causal connection, with that aspect to be the subject of assessment in the circumstances of the particular case by the sentencing Judge. In this case, the sentencing Judge resolved this issue adversely to the Applicant and there is no reason why this Court should depart from that approach in resentencing him.

10. [59]

    It is appropriate to adopt the reasoning of the sentencing Judge on these issues for the purpose of undertaking the resentencing exercise under s.6(3) Criminal Appeal Act 1912.

Ground 3 – The Sentence Was Manifestly Excessive

1. [60]

   As the first ground of appeal has been upheld and it is necessary to resentence the Applicant, this ground of appeal need not be addressed separately. It is sufficient to note that I have taken into account arguments advanced with respect to this ground in considering the Court’s task under s.6(3) Criminal Appeal Act 1912.

Resentencing the Applicant

1. [61]

   An affidavit of Joseph Harb sworn 29 November 2018 was read for the Applicant on resentencing. The affidavit reveals that the Applicant has completed a number of TAFE courses in carpentry, construction and related areas whilst in custody.

2. [62]

   Counsel for the Applicant submitted that a lesser sentence should be imposed upon the Applicant for the offences, with the decision of this Court in Hanley v R assisting in that respect. It was submitted that the decision in Hanley v R operated to attract application of the parity principle, so as to fortify the conclusion that a lesser sentence should be imposed upon the Applicant. It was submitted, in effect, that the Applicant’s aggregate sentence should be reduced to maintain relativity with Hanley’s new sentence.

3. [63]

   The Crown submitted that the decision in Hanley v R did not assist the Applicant. It was submitted that having regard to the gravity of the Applicant’s offences, the maximum penalty and standard non-parole periods for his two major offences and the approach of this Court in Hanley v R with respect to the roles of the present Applicant and Hanley, the Court would reach the view that no lesser sentence was warranted for the purpose of s.6(3).

4. [64]

   In resentencing the Applicant, it is necessary to keep in mind the approach to sentencing in drug supply cases as outlined by the Court in Parente v R at [107]-[115]. These were serious drug supply offences which, because of the maximum penalties and standard non-parole periods involved as guideposts, were destined to attract an aggregate sentence of imprisonment which exceeded any period which might theoretically allow consideration of options short of full-time custody. Indeed, if an aggregate sentence of less than three years’ imprisonment was imposed upon the Applicant, a finding of manifest inadequacy would have been inevitable.

5. [65]

   Accordingly, although it is the case that (as in Parente v R at [118]), an extraneous or irrelevant matter has been taken into account on sentence, the extraneous or irrelevant consideration had no real work to do in the context of this case. The existence of the error, however, activates the resentencing discretion under s.6(3).

6. [66]

   It is necessary for this Court to re-exercise the sentencing discretion afresh: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at 617-618 [42]. The question for the Court is whether some other sentence, whether more or less severe, is warranted in law and should have been passed: s.6(3) Criminal Appeal Act 1912.

7. [67]

   This Court (differently constituted) in Hanley v R found error in accordance with a ground expressed in similar terms to the first ground of appeal in this case. The Court moved to resentence Hanley by way of imposition of an aggregate sentence of imprisonment for four years with a non-parole period of two years.

8. [68]

   There is a significant difference between the offences for which the Applicant was sentenced, two of which were punishable by life imprisonment with a standard non-parole period of 15 years, as against Hanley’s offences which were (as to two offences) punishable by a maximum penalty of 15 years’ imprisonment, with one offence being punishable by a maximum penalty of 20 years’ imprisonment with a standard non-parole period of 10 years. It remains necessary for the sentencing of the Applicant for these two offences to reflect the significant difference in the gravity of the offences for which sentence was to be passed.

9. [69]

   In resentencing Hanley, the Court addressed the respective positions of the present Applicant and Hanley at [57]:

10. [70]

    This Court was provided with the same comparative table which had been provided to the Court in Hanley v R.

11. [71]

    Submissions were made for the Applicant in this Court that the findings of the Court of Criminal Appeal with respect to the respective positions of the Applicant and Hanley do not align entirely with the conclusions reached by the sentencing Judge. Reference was made to the following statement by the sentencing Judge (ROS11):

12. [72]

    His Honour stated later in the sentencing remarks (ROS26):

13. [73]

    Later again, the sentencing Judge said (ROS40-41):

14. [74]

    The Applicant was to be sentenced for very serious offences which carry maximum penalties of life imprisonment and standard non-parole periods of 15 years. Two serious offences were also taken into account on a Form 1 in passing sentence on Count 2.

15. [75]

    Although it is appropriate to have regard to the sentence imposed by this Court on Hanley as a co-offender in the joint criminal enterprise, it is necessary to keep firmly in mind the fact that his offences were of a significantly different order of magnitude to those of the Applicant.

16. [76]

    The parity principle assisted Hanley when resentenced by this Court given that the Court concluded (at [69]) that there was an appropriate basis to place more distance between the aggregate sentence imposed upon the Applicant and the fresh sentence imposed upon Hanley. The reduction of Hanley’s sentence does not give rise to a legitimate grievance on the part of the Applicant so as to warrant downward movement in his aggregate sentence as well.

17. [77]

    As the Court noted in Hanley v R at [56], the difference between the offences committed by Hanley and the Offender did not mean that the parity principle had no role to play, but that the relevant comparison is more broad and impressionistic than might otherwise be the case: Dayment v R [2018] NSWCCA 132 at [65].

18. [78]

    The findings of the sentencing Judge with respect to the Applicant, when taken with the findings of this Court in Hanley v R, leave the Applicant as a substantial offender with Hanley being a subordinate.

19. [79]

    As the Applicant and Hanley were co-offenders and similar issues were to be raised on their appeals, it would have been preferable that their appeals were heard on the same day by the same Court: Hiron v R [2018] NSWCCA 10 at [52]. That did not happen. However, both the Court in Hanley’s appeal and this Court were called to resentence the two offenders by reference to the same sentencing remarks and the helpful comparative table which identified points of similarity and difference as between Hanley and the Applicant. At the hearing of the Applicant’s appeal, his counsel had the opportunity to address the Court by reference to the comparative table and the judgment of the Court in Hanley v R.

20. [80]

    Having considered the submissions made for the Applicant and the Crown on this appeal, I agree with the approach taken by the Court in Hanley v R at [57] (see [69] above). There is a clear basis for differentiating between the Applicant and Hanley as to their roles and the gravity of the offences for which they were to be sentenced. There is no substance in the submission of the Applicant’s counsel that the reduction in Hanley’s sentence should see a corresponding reduction in the Applicant’s aggregate sentence.

21. [81]

    As the Court observed in Hanley v R there is little separating the subjective cases of the Applicant and Hanley. Further, the findings of the sentencing Judge concerning the Applicant’s mental condition (at [56] above) provide very limited assistance to the Applicant on resentencing in this Court.

22. [82]

    In the synthesis of all considerations relevant to sentencing the Applicant, I have concluded that an aggregate sentence less than that imposed at first instance is not warranted in this case.

Orders

1. [83]

   I propose that leave to appeal against sentence be granted, but that the appeal be dismissed.

2. [84]

   CAMPBELL J: I agree with Johnson J.