Lee, Matthew v R

1. [1]

   BASTEN JA and McCALLUM J: Matthew Robert Lee (“the applicant”) seeks leave to appeal against the sentences imposed upon him by Berman SC DCJ on 21 March 2014.

2. [2]

   The applicant was arrested on 20 December 2012 and charged with a series of drug and firearms offences (the detail of which is set out below). He pleaded guilty in the Local Court to all but one of the charges, which was committed to the District Court for trial. On 20 January 2014, he was arraigned on an indictment containing five counts to which he pleaded guilty. At the proceedings on sentence, the Crown accepted that the pleas should be taken to have been entered at the first available opportunity and that the applicant was entitled to a discount of 25% in accordance with well-established principle.

3. [3]

   The applicant’s entitlement to that discount was expressly referred to at the proceedings on sentence in an exchange between the Crown and the learned sentencing judge. However, the judge made no reference to it in his ex tempore judgment given later that day. The sole ground of appeal is that his Honour erred in failing to take the early pleas of guilty into account.

Extension of time

1. [4]

   The notice of appeal was not filed until 20 January 2016 and is accordingly out of time. The delay is adequately explained in an affidavit affirmed by the applicant on 15 December 2015. In short, the applicant took steps shortly after he was sentenced to commence an appeal (by completing the relevant form and asking that it be faxed to the Court). He was representing himself at that time, having insufficient funds to retain his previous solicitor for an appeal. For a considerable period of time after that, the applicant was labouring under the misapprehension that the form had been lodged with the Court. Apparently due to administrative error, that had not occurred. That, in turn, held up the processing of his application for Legal Aid. Time should be extended to the date on which the notice was filed, namely 20 January 2016.

Circumstances of offending

1. [5]

   At the time of the offences, the applicant was living in Tamworth with his partner and their two young children (aged one and two years). Surveillance carried out by police over a period of about two months prior to the applicant’s arrest disclosed that he was supplying both methylamphetamine and cannabis from his home to “a substantial clientele” by day and night, often when the children were home.

2. [6]

   Counts 1 and 3 on the indictment were an offence of ongoing supply of a prohibited drug (methylamphetamine) contrary to s 25A of the Drug Misuse and Trafficking Act 1985 (NSW) and an offence of supplying a prohibited drug (cannabis) contrary to s 25(1) of the Act. The offence of ongoing supply carried a maximum penalty of imprisonment for 20 years with no standard non-parole period. The offence of supplying cannabis carried a maximum penalty of imprisonment for 10 years with no standard non-parole period. Those counts were based on the surveillance evidence. In the case of the count of supplying cannabis, the Crown also relied on the fact that, during the period of surveillance, the applicant was observed travelling to meet someone at a service station from whom he purchased 10 pounds of cannabis for re-supply.

3. [7]

   The surveillance revealed that the applicant was doing a good trade in both drugs, on some days supplying as many as 22 customers. The agreed facts provided a lengthy narrative of the relevant conduct in chronological order. The sentencing judge asked the Crown to summarise the frequency and quantity of the supplies to assist in an assessment of the offender’s criminality. The Crown provided a handwritten document listing the following detail: there were 140 separate attendances (presumably with some repeats) over the period of offending (the Crown could not distinguish between purchases of cannabis and purchases of methylamphetamine); the offending related to a total of 227 grams of methylamphetamine and ten pounds of cannabis; as to particular supplies of methylamphetamine, there were five sales to one particular customer, one sale of 3.5 grams to one customer and one sale of 7 grams to one customer; as to the range of quantity sold, the supplies of methylamphetamine were between 1 gram and 7 grams while the supplies of cannabis were between 1 gram and half a pound.

4. [8]

   Count 2 on the indictment was an offence of supplying methylamphetamine contrary to s 25(1) of the Drug Misuse and Trafficking Act. That charge related to an amount of 58.46 grams of methylamphetamine found in various containers when police executed a search warrant on the day of the applicant’s arrest. The maximum penalty for that offence was 15 years imprisonment with no standard non-parole period.

5. [9]

   Count 4 on the indictment was an offence for unauthorised possession of a prohibited firearm contrary to s 7(1) of the Firearms Act 1996 (NSW). The maximum penalty for that offence was imprisonment for a period of 14 years. The offence carried a standard non-parole period of imprisonment for 3 years. That charge related to a shortened double barrel shotgun found by police in a cupboard in the kitchen of the house when they executed the search warrant. The surveillance material revealed that the applicant had deliberately shortened that firearm and that he was intending to fit it with a silencer.

6. [10]

   Count 5 was an offence of knowingly dealing with the proceeds of crime contrary to s 193B(1) of the Crimes Act 1900 (NSW). That offence related to an amount of $7,250 in cash found in the applicant’s pocket and $150 found in his car when he was arrested.

7. [11]

   The applicant asked the sentencing judge to take two further offences into account on a Form 1 when sentencing him for count 1 on the indictment. One was an offence of not keeping a firearm safely, which related to the fact that the shotgun was found unsecured in a kitchen cupboard in the family home. The second was an offence of receiving, relating to the applicant’s possession of a large quantity of clothing stolen from Target.

8. [12]

   In addition, there were several offences listed on a s 166 certificate. One was an offence of conducting drug premises contrary to s 36Z(2) of the Drug Misuse and Trafficking Act, which carries a maximum penalty of imprisonment for 14 months. The other was an offence of shortening a firearm contrary to s 62 of the Firearms Act, which then carried a maximum penalty of imprisonment for 10 years (since increased).

9. [13]

   The applicant did not give evidence at the proceedings on sentence. A report was tendered on his behalf from Dr Richard Furst, a consultant forensic psychiatrist. The report recorded that the applicant had no signs of depression or psychosis but was suffering from substance abuse disorder relating to his use of methylamphetamine and cannabis. The report recorded a history of sexual abuse of the applicant by his uncle which Dr Furst considered may well have triggered the applicant’s general low mood and addiction to drugs throughout his adolescence and adult years. However, the sentencing judge observed during the proceedings on sentence that it was difficult to know whether that history was truthful in circumstances where the applicant had not given evidence. He made no reference to it in the sentencing judgment.

10. [14]

    Dr Furst’s report also recorded that the applicant had injured his back in an accident while working at an abattoir about 10 years earlier and that he had sustained injuries which prevented him from working for a period of about three months. He was subsequently diagnosed with chronic lower back pain. He had a car accident in 2012 and later complained of left-sided sensory disturbance, the cause of which was being investigated but had not been ascertained by the date of his arrest on 20 December 2012. A medical report from a consultant neurologist was tendered at the proceedings on sentence confirming those matters.

11. [15]

    Dr Furst’s report also recorded that the applicant’s father died in 2007 when the applicant was aged 22 years and that the applicant had struggled to come to terms with that death, prompting him to begin using more drugs as “a maladaptive means of coping under stress and in relation to grief issues”. It was Dr Furst’s opinion that, although grief in relation to his father’s death was probably a factor in the escalation of his drug use, the applicant’s pattern of addiction had subsequently taken on “a life of its own”.

The sentences imposed

1. [16]

   The sentencing judge found that the applicant was “a significant drug dealer motivated to a large extent by money, who not only got his wife involved in his drug dealing activities but conducted them in his home where his two very young children lived”. The judge said that finding was enough to indicate the seriousness of the applicant’s conduct and to explain why he must go to jail “for a very long time”. [1]

2. [17]

   The judge found that there was little in the applicant’s background to explain why he would decide to conduct such a large scale drug supply operation and further found that “a large part of what motivated this offender were the large financial rewards that large scale drug dealing can bring”. [2] His Honour accepted that the offences were closely interrelated and that a significant overlap in the sentences would be appropriate. He made a finding of special circumstances on the basis of the need for rehabilitation but said the variation would be modest.

3. [18]

   The judge sentenced the applicant as follows:

4. [19]

   The overall sentence was accordingly a term of imprisonment for 9 years with a non-parole period of 6 years. The applicant is first eligible to be released to parole on 20 December 2018.

Ground of appeal

1. [20]

   Despite the commendable simplicity of the ground as formulated, it relied upon an inference that the judge did not take the early pleas into account, an inference drawn from the absence of any reference in the judgment on sentence to the pleas, or to the availability of a discount. The ground might have been better formulated in the alternative, namely that the trial judge erred, (a) in failing to take into account the early pleas of guilty, or (b) in failing to explain in the reasons for judgment how such pleas had been taken into account. Despite the fact that the ground was not so expressed, we propose to deal with it on the basis that it was so expressed. Both parties acknowledged that there was no reference to the pleas or the discount in the reasons of the sentencing judge. The Director nevertheless submitted that it should be inferred that they had been taken into account; the applicant submitted that the absence of any reference, taken with other factors, demonstrated that they had not.

2. [21]

   It is not possible to reach a firm preference for one view or the other; however, it is that unresolvable uncertainty which demonstrates error in failing to deal with the matter in the judgment. The Director should not succeed on a basis which denies an error of law. For that reason, the appeal should be upheld. That has consequences for resentencing, which will be addressed below.

Rationale for reasons

1. [22]

   Some decades ago, reasons given by sentencing judges were cursory, even exiguous, according to modern standards. (The same could be said for judgment on sentencing appeals in this Court.) Over time, appellate courts have tended to impose higher standards in the interests of transparent justification for the exercise of the coercive powers of the State. A significant impetus was given to that trend by the enactment of the Crimes (Sentencing Procedure) Act 1999 (NSW) which specified in some detail (without codifying) the nature of the sentencing exercise. The process of sentencing became more sophisticated; reasons for sentences became longer and more discursive and the practice of delivering ex tempore judgments in most sentencing appeals was abandoned, so that now judgment is reserved in most appellate cases in this State.

2. [23]

   Whether welcomed or deplored, these changes required different language for the expression of principle: what in the past were somewhat dismissively characterised as “remarks on sentence” must now be understood as reasons for judgment. That is because the giving of reasons is, generally, an essential part of the judicial function and never less so than when exercising the coercive powers of the State over the individual.

3. [24]

   While the obligation to give reasons “is a normal but not a universal incident” of the judicial function, [3] more importantly it is variable in its content. Further, if reasons are inadequate according to the legal standard, there will have been a failure to exercise properly the judicial function. As was said in a civil case: [4]

4. [25]

   In the criminal context, on an appeal from a trial conducted by a judge alone, Douglass v The Queen, [5] the High Court referred with approval to the explanation given by Doyle CJ in R v Keyte [6] as to why a judge is required to give reasons for a verdict following trial:

5. [26]

   Two propositions may be derived from this reasoning. First, the failure to give proper reasons is an error of law. Secondly, the reasons must be adequate to demonstrate the absence of a real “possibility” that the judge failed to apply correct legal principle. In other words, where the possibility of error was open, the appellate court should not have assumed that, because the legal principle was well known and indeed fundamental, it had been applied.

6. [27]

   In relation to the discount for a plea of guilty, Spigelman CJ stated in R v Thomson; R v Houlton: [7]

7. [28]

   The statutory provision to which the Chief Justice was referring was s 22 of the Crimes (Sentencing Procedure) Act, which now reads as follows:

8. [29]

   Although s 22(4) states that the failure of the court to “comply with this section” does not invalidate the sentence, that provision does not affect the obligation under the general law to explain how the fact of the plea is taken into account in the sentencing.

9. [30]

   Thomson was a “guideline judgment”; thus, the Chief Justice identified “[t]he discount range propounded for a guilty plea based on utilitarian considerations”. [8] The range was set out in the conclusions expressed at [160]. However, those conclusions started with the following propositions;

10. [31]

    Although expressed as part of the “guideline”, the propositions set out above go further. That a sentencing judge should explicitly state that the plea of guilty has been taken into account and, indeed, how it has been taken into account, may be accepted as an aspect of the general law principle discussed above. Whether failure in that regard will indicate that the plea “was not given weight” falls into a different category: it is a statement of an inference which may be drawn, but will surely depend upon the circumstances of the particular case and the content of the reasons. The language of obligation (“should explicitly state”) was used at a time when a change in judicial practice was thought to be necessary; today, statements in these terms are an almost universal feature of sentencing judgments where there has been a plea. Their omission is now seen to be noteworthy; the issue is whether it is always synonymous with legal error.

11. [32]

    The importance of transparency was reiterated by the Court in Regina v Lawrence [9] where Spigelman CJ (with the concurrence of Grove and Bell JJ) stated: [10]

12. [33]

    A similar view, based on the inference available from the omission of reference to a discount for the plea, may be seen in the reasoning of R A Hulme J in Opacic v R. [11] The following passage was relied upon by the Director: [12]

13. [34]

    There are three points to make about the Director’s reliance on this passage. First, the error complained of was a failure to characterise the seriousness of the offences. That involved an evaluative judgment of quite a different kind to the provision of a discount for a plea. Where the critical facts have been addressed, a complaint of opacity would rarely succeed. Secondly, the importance of an expression of reasons is to provide an explanation of how issues in dispute were resolved and why they were resolved in a particular way. It may be apparent from the submissions made by the parties that a particular matter was not in dispute, as appeared to be the case in Opacic. Thirdly, and by way of qualification to the last point, it would be wrong to read the observations set out above as a justification for referring more generally to issues raised in the course of submissions. An opinion expressed by the judge in the course of argument may or may not be adopted as part of the final analysis; indeed, it is common that a judge will express a proposition in apparently definitive terms, in order to test whether there is resistance or qualification proffered. Great care should be taken in assuming that an issue which is truly in dispute has been resolved by a statement made by the judge in the course of submissions. To the extent that the reasons for judgment constitute part of the “record” of the court (as provided by s 69(4) of the Supreme Court Act 1970 (NSW)) the distinction between the reasons and matters dealt with in the course of argument is legally significant. While it is undesirable to discourage ex tempore reasons, especially in sentencing, the minimal standard of adequacy for reasons should not be diminished on that account. (Instances of infelicitous expression clearly fall within a different category.)

14. [35]

    Finally, in Woodward v The Queen, [13] which was, coincidentally, an appeal from the same sentencing judge in respect of a failure to refer to a plea of guilty, Hamill J stated: [14]

15. [36]

    Accepting that “the record” which should reflect that fact is a reference to the reasons for judgment, that proposition should be accepted, while noting that it would be no less important in a case where the plea did not result in any amelioration of the sentence.

16. [37]

    Because the plea is a mandatory consideration (s 22 says the court “must take [it] into account”), it must form part of the reasoning process and should therefore be addressed in the judgment. If the appellate court can be affirmatively satisfied that the plea was taken into account and an appropriate discount allowed, the failure to so state in the sentencing judgment may be treated as an immaterial error. Where there is a real possibility that it was not properly considered, failure to refer to the issue in the judgment should be treated as a material error.

Failure to apply discount

1. [38]

   In circumstances where the prosecutor accepted that the pleas had been entered at the earliest possible opportunity and expressly stated that a discount of 25% was appropriate, there would have been a manifest case of procedural unfairness had the sentencing judge failed to adopt such a discount, without foreshadowing that course to the offender. Given the powerful effect of the surveillance evidence, there may have been reason to reduce the level of discount, but no such issue was raised at the sentencing hearing.

2. [39]

   Although there was no reference to the pleas, or the standard discount, in the course of the judge’s reasons, it would be surprising if the judge had not taken the pleas into account and applied the standard discount. That conclusion was at least open, as reflected in the absence of any ground asserting that the sentences in fact imposed were manifestly excessive. A different conclusion would be inevitable if, as in Convery v R, [15] had the relevant discount been applied, the starting point would have exceeded the maximum penalty for the offence.

3. [40]

   Both Convery (decided on 27 May 2015) and Woodward (decided on 3 October 2014) involved the same sentencing judge and the same ground of appeal (amongst others), but both were decided after the sentencing judgment in the present matter (delivered on 21 March 2014). In Woodward, the consequence of the failure to identify the discount was not addressed, the Court accepting that the sentence was manifestly excessive.

4. [41]

   Because, in this case, there is uncertainty as to whether the sentencing judge in fact took the pleas into account and applied the discount accepted by the prosecutor, the failure to make any reference to the pleas or the appropriate discount in the reasons for sentencing constituted an error which warrants intervention by the Court.

Resentencing

1. [42]

   In these circumstances, it is necessary for the Court to re-exercise the sentencing discretion according to the principles identified in Kentwell v The Queen. [16] It is common ground that the Court is entitled to and could properly impose an aggregate sentence. Indicative sentences must be recorded, though not imposed, for each offence.

2. [43]

   The offences can be grouped in two categories. The primary offence involved the ongoing supply of methylamphetamine (count 1), which carried a maximum penalty of 20 years imprisonment. The separate offences of supplying methylamphetamine, supplying cannabis, conducting drug premises and possession of the proceeds of crime may be seen as inter-related with count 1.

3. [44]

   Secondly, the offence of unauthorised possession of a prohibited firearm (count 4) may properly be grouped with the separate offence of shortening a firearm.

4. [45]

   It is clear that the ongoing supply offence was a mid-range offence of its kind. As submitted by the prosecutor before the sentencing judge:

5. [46]

   There was some discussion at the hearing on sentence as to whether the operation was “sophisticated”. In that regard, the prosecution summarised the offending in the following terms:

6. [47]

   The statement of agreed facts included extracts from the surveillance of the premises and records of conversations within the offender’s home. The facts noted that on 8 December 2012 he was visited by 22 customers wanting cannabis and methylamphetamine. They referred to his purchase on 9 December 2012 of 10 bags of cannabis for which he paid $29,000. The amount of methylamphetamine for count 1 was 249 grams, supplied in November/December 2012. The amount of cannabis forming the basis of the supply count exceeded 4.5kg. The amount of methylamphetamine involved in the separate supply count (count 2) involved 58.46 grams found in a search of the offender’s premises.

7. [48]

   In relation to the ongoing supply charge, there were two additional matters to be taken into account, namely an offence of not keeping a firearm safely (the shortened shotgun was found in a kitchen cupboard) and “receiving” (the subject matter being a large quantity of clothing stolen from a Target store). It would have been more appropriate to include the former charge on a Form 1 with respect to the major firearms offence. However, both matters are to be taken into account in sentencing for the ongoing supply. Despite the lack of a prior record for any similar offence, the additional charges remove any significant element of leniency with respect to this offence. Although not a high level supplier, the operation involved large sums of money, with the primary motivation being financial gain. A starting point of approximately 6 years 6 months would have been appropriate which, when reduced by 25% for the guilty plea, would produce an indicative sentence of 4 years 6 months.

8. [49]

   The supply of an indictable quantity of cannabis carried a maximum sentence of 10 years imprisonment. The offence covers quantities of cannabis leaf between 1kg and 25kg. According to the agreed facts, the offender was making a profit of some $1,800 on every “pound” of cannabis sold and claimed to be “taking” $8,000 a day, every day for several months. He was undoubtedly engaged in a substantial drug supply operation with respect to cannabis, for financial gain. An appropriate starting point for the sentence would have been 4 years imprisonment, reduced for the plea to 3 years. Because it was part of the ongoing supply of drugs (though involving a different drug from that charge), the prosecution’s submission that the sentences for each should be entirely cumulative should not be accepted, but, if separate sentences were to be imposed, there would have been a substantial proportion of accumulation.

9. [50]

   With respect to the offence of conducting drug premises, dealt with on a certificate under s 166 of the Criminal Procedure Act 1986 (NSW), a sentence of 1 year imprisonment, reduced for the plea to 9 months, is indicated, to be served wholly concurrently with the sentence for the ongoing supply. For the separate offence of supplying the methylamphetamine found in the offender’s home the same sentence of 9 months was indicated.

10. [51]

    Turning to the firearm offences, the most serious, namely unauthorised possession of a prohibited firearm, carried a maximum sentence of 14 years imprisonment. There is no doubt that the offender feared a robbery and obtained the firearm and ammunition in order to be able to defend himself. While the motivation was understandable given the scope of his commercial operation, that operation being illegal provided no justification for obtaining the firearm and keeping it readily available in his home. The most common sentences for such offences where there have been pleas of guilty range from 30 months to 48 months. Although a first offence of its kind, given the surrounding circumstances it cannot be treated as below the mid-range of objective seriousness for such offences. A sentence of 4 years imprisonment, reduced for the plea to 3 years would have been imposed. It constituted a serious element of criminal behaviour beyond the drug supply operation. Accordingly, the sentence would have been cumulative upon any non-parole period for the drug offences.

11. [52]

    The offence of shortening the firearm was contained on a s 166 certificate. It constituted a contravention of s 62 of the Firearms Act, and carried a maximum penalty of 10 years imprisonment. Again, the offending was not low level. The offender was recorded discussing the shortening of his firearm saying, “I’m getting all of this taken off the barrel, getting a thread put on it so I can put my silencer on it.” (Similar conversations took place on 8 and 11 December, the cutting with an angle grinder taking place on 10 December 2012.) The purpose of shortening the weapon was malign. For that offence, a sentence of 2 years imprisonment, reduced to 18 months on account of the plea is indicated, partly accumulated on the offence of unauthorised possession of a prohibited firearm.

12. [53]

    Finally, there was the offence of possession of $7,400 cash, knowing it to be the proceeds of crime and intending to conceal that fact. The offence, contrary to s 193B(1) of the Crimes Act, carried a maximum penalty of 20 years imprisonment. A sentence in the order of 18 months imprisonment, reduced to 13 months on account of the plea would have been imposed, to be served wholly concurrently with the sentence for the ongoing supply.

13. [54]

    In the case of a series of related offences, each carrying a significant custodial penalty, care must be taken to avoid the imposition of a sentence which is unduly severe, having regard to the totality of the offending conduct. On the other hand, the need for a significant degree of accumulation in respect of certain of the offences requires recognition in the aggregate sentence to be imposed.

14. [55]

    Taking these various considerations into account, a sentence of 8 years imprisonment is warranted. Adopting the same proportion as the trial judge with respect to the non-parole period, the 8 years translates into a non-parole period of 5 years 4 months, with an additional term of 2 years 8 months. The sentence should date from 20 December 2012. The applicant is first eligible to be released to parole on 20 April 2018.

15. [56]

    The Court orders:

    1. (1)

       Extend time for commencement of the application for leave to appeal to 20 January 2016.

    2. (2)

       Grant leave to appeal.

    3. (3)

       Allow the appeal and quash the sentence imposed in the District Court on 21 March 2014.

    4. (4)

       Resentence the offender as follows:

16. [57]

    DAVIES J: Except for what appears at [23], I agree with the judgment of Basten JA and McCallum J.