EF v R

1. [1]

   MACFARLAN JA: The reasons given by Schmidt J, and the supplementary remarks of Simpson J, reflect the substance of my reasons for joining in the orders made by the Court on 13 March 2015.

2. [2]

   SIMPSON J: I joined in the orders made on 13 March 2015 substantially for the reasons given by Schmidt J. I wish only to add briefly to those reasons.

3. [3]

   Although the applicant was legally represented in the District Court, he initially was unrepresented in this Court. (At the instigation of this Court, a grant of legal aid was made and counsel who had previously advised him appeared at very short notice and was of considerable assistance to the Court.)

4. [4]

   The only ground of appeal notified (whether by the appellant or on his behalf is not clear) was expressed as “sentence manifestly excessive”.

5. [5]

   The ground so expressed is an assertion of error of one - the last - of the categories of error identified in House v The King [1936] HCA 40; 55 CLR 499. It is, as Schmidt J has pointed out, an assertion that the sentence is “unreasonable or plainly unjust”.

6. [6]

   That a sentence is unreasonable or plainly unjust is not the only basis on which a sentence may be found to represent an erroneous exercise of the sentencing discretion. The judgment in House envisages error of a number of kinds:

7. [7]

   In my opinion, it has not been shown that a sentence of 2 years with a non-parole period of 6 months in respect of a course of drug dealing was unreasonable or plainly unjust. The error demonstrated was not of the last kind mentioned in House.

8. [8]

   The error, as pointed out by Schmidt J, fell into the fourth House category. It was failure to take into account a material consideration. The material consideration was the availability of sentencing options alternative to full-time custody.

9. [9]

   In this respect, his Honour was not adequately assisted by the applicant’s legal representative. It seems to have been assumed by all concerned that, because the offence was of drug dealing “to a substantial degree”, non-custodial options were not available.

10. [10]

    I was a party to the decision of this Court in R v Gu [2006] NSWCCA 104, in which Howie J reviewed a number of decisions to the effect that:

11. [11]

    In R v Cacciola (1988) 104 A Crim R 178, accepting that the proposition that drug dealing “to a substantial degree” calls for the imposition of a sentence of imprisonment, is a “policy” or even “a continuing rule”, Priestley JA said:

12. [12]

    I further observe that, at the time these statements of “policy” or “rule” were made, the option of an intensive correction order did not exist. That was introduced into the Sentencing Procedure Act with operation from 1 October 2010: Crimes (Sentencing Legislation) Amendment (Intensive Correction Orders) Act 2010 (NSW).

13. [13]

    It is not only sentencing judges who must give consideration, not only to the “policy” or “rule”, but also the legal representatives of persons charged with criminal offences. Generally speaking, offenders are bound by the conduct of their proceedings by their counsel: see, for example, Lambert v R [2015] NSWCCA 22. Failure to consider, and bring to the attention of the sentencing judge, an optional alternative to full-time imprisonment may be the cause of injustice.

14. [14]

    The transcript of the sentencing proceeding shows that no reference was made to any alternative to a sentence of imprisonment, including an order that a sentence be served in the community by way of an intensive correction order: see Sentencing Procedure Act, s 7.

15. [15]

    The Notice of Application for leave to appeal filed for the applicant did not plead error of the kind that has been found to have been established. Having regard to his unrepresented status, I would accept a notional amendment to the Notice.

16. [16]

    For these reasons I joined in the orders made.

17. [17]

    SCHMIDT J: On 8 April 2014, Blanch CJDC sentenced EF to a total term of imprisonment of 2 years with a non-parole period of 6 months, for one count of supplying methylamphetamine, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW) and one count of dealing with the proceeds of crime ($1,074.10) under s 193B(2) of the Crimes Act 1900 (NSW), to which he had entered pleas of guilty. He served his sentence until 4 June, when he was granted appeal bail.

18. [18]

    EF sought leave to appeal his sentence, on the ground that it was manifestly excessive. He was unrepresented until the hearing of the appeal. In its written submissions the Crown had objected to some of his submissions as being, in truth, evidence as to matters irrelevant to the appeal. At the hearing documents which raised similar matters were tendered without objection and the Crown led evidence as to EF’s post sentencing assistance. All that material was accepted as being relevant on his resentencing.

19. [19]

    Having heard the parties, leave to appeal was granted, the appeal upheld and EF was resentenced, with reasons for the conclusions reached to be given.

The facts

1. [20]

   The facts were agreed at trial. EF was arrested on 11 July 2013, when stopped by police for a random breath test. On search, cash and a plastic bag containing orange coloured crystals were found, as well as seven small resealable plastic deal bags which also contained traces of crystals. On examination the bags were found to contain methylamphetamine totalling 8.7 grams at 15% purity.

2. [21]

   EF gave short evidence on sentencing. He was aged 36 at the time of the arrest and 37 on sentence. He had been the manager of a cotton farm, where he lived. He began using methylamphetamine to keep awake while working 18 hour days. The property burnt down and he and his partner lost all of their possessions and he ended up out of work, when the owners engaged contract workers for whom they did not have to provide accommodation. He later received an insurance payout.

3. [22]

   EF was selling ice for $100 a gram and methylamphetamine for $300 a gram. He gave evidence that he had bought a 28.3 gram block of methylamphetamine for $3,500 and that he had mainly been selling drugs to support his habit and so that he and his partner could eat. He also described the help his partner had required during her pregnancy, while she had been unwell. He had recently obtained employment with an Aboriginal Corporation.

The sentencing remarks

1. [23]

   Blanch CJDC noted that:

2. [24]

   This conclusion rested on findings that EF’s offending behaviour had significantly related to his own drug use and that he had a prior criminal record. He had a juvenile record of offending which had been dealt with by way of bonds, an adult record for minor matters and driving matters, as well as a suspended sentence for assault in 2002. There were no drug offences before 2013. This was to be his first custodial sentence.

3. [25]

   His Honour accepted EF’s’ account that he had worked long hours, had begun taking amphetamines, became addicted and then progressed to dealing in drugs. There had also been a marriage breakdown. He had pursued Family Court proceedings to obtain access to his children. He was then in a new relationship and had had another child the day before the sentencing hearing. His partner was present in Court to support him. He was then still in employment, having been granted bail.

4. [26]

   His Honour noted a psychiatric report which revealed EF had been diagnosed with ADHD, for which he was receiving treatment. There was also in evidence a letter from EF’s partner’s treating doctor, explaining her two highly complicated pregnancies, while under his care.

5. [27]

   His Honour concluded that EF had “really quite good prospects for rehabilitation”. He was working and had settled down with a supportive partner. He found special circumstances, given that this would be EF’s first time in gaol; his significant drug habit; and his need for assistance on release.

6. [28]

   His Honour then sentenced EF to concurrent terms totalling two years, with non-parole periods of 6 months for each offence, commencing from 7 April 2014, the following day, given that he had spent only one day in custody after his arrest.

The parties’ cases

1. [29]

   EF’s case was that he had been advised by his solicitor to seek to have his sentence dealt with by way of an intensive correction order and had been told that this had not been accepted by the Court, but there was no record of such an application having been made or considered. Nor was there any reference to his co-operation with police on arrest, his admissions and the effect of the entry of his plea.

2. [30]

   The case on appeal was that his Honour erred in not considering an intensive correction order, s 5(1) of the Crimes (Sentencing Procedure) Act requiring that a court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate.

3. [31]

   EF’s case was that his sentencing hearing had been delayed while a DAL certificate was obtained. He had in that time worked hard at his rehabilitation. After years of infertility, he and his partner were expecting their first child. That had given him the drive to seek employment with the local Aboriginal Corporation.

4. [32]

   EF said that he had complied with all conditions of his bail, including curfew, for over 12 months, as well as the daily reporting required while on appeal bail. He also attended church and counselling to help him with his drug problems.

5. [33]

   EF said that while waiting for hearing of his appeal bail application, his prematurely born son had become ill and had required intubation and transfer to the Randwick Children’s Hospital. He had since had another hospital admission for respiratory distress and was very likely to experience similar episodes in the next 12 months.

6. [34]

   EF’s partner, who had a very complicated medical history had just discovered that she was pregnant. This was unplanned and given her history of repeated hospitalisation when pregnant, meant that there would be no one to care for their son, if she became ill. They leased their home from the local Aboriginal Corporation, which EF feared may not be available to them, if he has to serve his custodial sentence, because his partner is not Aboriginal. She had been given notice to vacate before he was released on appeal bail.

7. [35]

   The Crown’s case was that there was here no error in the conclusion reached on sentence that a full-time custodial sentence was required in EF’s case. The sentence imposed fell at the low end of the scale.

8. [36]

   EF’s admissions showed, however, that his drug offence had not been a one-off incident of supply, but that he had been dealing to a “substantial degree”. The two year term imposed reflected the view which his Honour reached as to EF’s circumstances, but they were not established to have been exceptional. Given the benefit which EF received from the finding of special circumstances, it could not be concluded that the sentence was manifestly excessive.

9. [37]

   The Crown accepted that no reference was made in the sentencing remarks for any discount for EF’s plea. There was no issue that, on the facts, a discount of 25% was warranted, but it was submitted to have been unlikely that Blanch CJDC had overlooked that consideration, even though it had not been mentioned in the ex tempore judgment delivered while his Honour was on country circuit (see R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566 at [48]).

10. [38]

    Events that post-date sentencing were submitted not to be relevant on appeal and could not be relied on to disturb the sentence (see R v Munday (1981) 2 NSWLR 177). Nor did the evidence establish exceptional circumstances.

11. [39]

    As to the ICO, the Crown submitted that such a sentence was not open. Why that was so was not explained. In oral submissions it was accepted that it was available as a matter of discretion under the statutory scheme, but submitted not to be a suitable sentence, given the nature and seriousness of EF’s drug offence and the leniency he had already been afforded

The appeal must be allowed

1. [40]

   In order to establish that a sentence is manifestly excessive, it must be shown to have been “unreasonable or plainly unjust” (see Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321 at 325).

2. [41]

   As the Crown submitted, in other than exceptional circumstances, in the case of drug supply offences, a custodial sentence will ordinarily be imposed on an offender (see the discussion in R v Gu [2006] NSWCCA 104).

3. [42]

   Error in this sentencing exercise was demonstrated by the failure to consider an ICO, which was, in this case, plainly unjust and contrary to the requirements imposed by s 5 of the Crimes (Sentencing Procedure) Act.

4. [43]

   As the Crown accepted, only certain sexual offences are excluded from the ICO system under s 66(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW). Drug offences are not. Section 5(1) requires that a sentence of imprisonment only be imposed, if it is also concluded that no penalty other than imprisonment is appropriate

5. [44]

   Section 7(1) provides that a court that has sentenced an offender to imprisonment for not more than 2 years, may make an intensive correction order. The conclusions which his Honour reached triggered that discretion, which only arises to be exercised, once a sentence of imprisonment of not more than 2 years has been imposed.

6. [45]

   The Crown’s case that his Honour’s sentence had already extended an appropriate degree of leniency to EF, given the nature of his offending, could not, in all of the circumstances, be accepted.

7. [46]

   The sentence which his Honour imposed fell at the lowest end of the available range. The maximum penalty for the drug offence was 15 years imprisonment or 2,000 penalty units and for the proceeds of crime offence, 15 years imprisonment. A total term of 2 years was imposed for each offence, with a non-parole period of 6 months. They were made totally concurrent.

8. [47]

   That sentence reflected not only the nature and seriousness of EF’s offending, but also his particular subjective circumstances; the remorse and contrition he had plainly demonstrated by his plea and other actions; the evidence of the steps he had pursued towards rehabilitation; and the conclusions which his Honour had reached in relation to considerations of deterrence and totality. Those considerations were also reflected in his Honour's finding as to the existence of special circumstances. The result was that this was to be EF’s first custodial sentence.

9. [48]

   Those same matters were also all relevant to a consideration of whether an ICO should be imposed. That was an important consideration in EF’s case, but one to which no attention was paid at all.

10. [49]

    As discussed in R v Pogson; R v Lapham; R v Martin [2012] NSWCCA 225; (2012) 82 NSWLR 60 at [56], eligibility of an offender for an ICO depends upon an assessment that the person is a "suitable person" (Crimes (Sentencing Procedure) Act (s 67(1)(b)) and the formation of an opinion by the sentencing judge that it is "appropriate in all the circumstances" that an ICO be used (s 67(1(c)). An assessment report is required, with s 70(2) requiring the report to address, amongst other things, matters prescribed by the Crimes (Sentencing Procedure) Regulation 2010.

11. [50]

    Regulation 14 provides:

12. [51]

    It is the Crimes (Administration of Sentences) Regulation 2014 which now deals with mandatory and other conditions for ICO’s. Relevantly, it provides:

13. [52]

    These conditions reflect that ICOs are directed at various purposes of sentencing, including deterrence and rehabilitation, as to which it was observed in Pogson at [122] - [125]:

14. [53]

    Those conditions include conditions with which EF had been complying while on bail, both before and after being sentenced. The evidence led on sentencing unquestionably raised for consideration whether an ICO should be utilised in EF’s case. That explains the advice he said he had been given by his solicitor, prior to sentencing. He had also been advised that he was likely to be assessed as suitable for such an order. Similar advice was obtained before the hearing of the appeal. It was not put in issue by the Crown,

15. [54]

    The failure to seek such an order, appears to have been the result of oversight. The transcript of the sentencing hearing reveals that it was very short. That efficiency was at the expense of justice.

16. [55]

    EF was called to give short evidence and was shortly cross-examined. The submissions advanced on his behalf were also brief. Reference was made to his record; his work to support his partner during her difficult pregnancy; his remorse and acceptance of responsibility for his offending; his good prospects of rehabilitation; and his candid admissions as to his offending. It was then submitted:

17. [56]

    The Crown’s submissions were even briefer. In their entirety they were:

18. [57]

    As recently discussed by Simpson J in Lambert v R [2015] NSWCCA 22 at [39], ordinarily an offender is bound by the conduct of his case at first instance, but that is not an absolute rule.

19. [58]

    Here it seems that his Honour was not adequately assisted in a busy circuit sitting. Neither he, nor either of the parties’ legal representatives, made any reference to the question of whether there should be a utilitarian discount for EF’s early pleas, as there obviously should have been. Nor were submissions directed to whether an ICO should be considered, even though the circumstances were such that it was a sentencing option which properly arose for consideration.

20. [59]

    His Honour’s reasons were shortly given and delivered ex tempore. Given his Honour’s experience and the conclusion which he reached that the concurrent sentences which he imposed would be at the lowest end of the scale, it should be accepted that the discount, while not mentioned, was not overlooked.

21. [60]

    The same conclusion is not available in respect of the question of an ICO. In this case, in my view, considerations of justice require that this important oversight be addressed on appeal. This was not a case where it was apparent that an applicant would not be found suitable, if assessed for an ICO. To the contrary, EF’s offending, his circumstances and his ongoing record of compliance with conditions of bail, all matters relevant to an assessment of his suitability for an ICO, suggested that there were real prospects that he would be found suitable, if assessed.

22. [61]

    In the result the proper course was for the appeal to be upheld and EF resentenced

Resentence

1. [62]

   Further evidence received on resentencing revealed relevant matters which had occurred post sentencing, which had to be taken into account. That included that EF had served some 2 months of his sentence, before being granted conditional bail; his compliance with those conditions; the ongoing efforts he had pursued at rehabilitation after sentencing; and that he had obtained permanent employment, in an environment where random drug testing is conducted.

2. [63]

   The Crown also led evidence as to EF’s very considerable assistance to law enforcement authorities, which gave rise to the exercise of the discretion to impose a lesser penalty under s 23 of the Crimes (Sentencing Procedure) Act (see R v Cartwright (1989) 17 NSWLR 243 per Hunt and Badgery-Parker JJ at 252).

3. [64]

   The starting point for the penalty imposed was a total sentence of 2 years and 6 months. That sentence was reduced by a combined 50% for the plea and the assistance provided. That reflected the considerable assistance revealed on the evidence, which was of such a kind that it was appropriate to grant a discount at the top of the available range, reserved for exceptional cases (see SZ v R [2007] NSWCCA 19).

4. [65]

   That sentence was suspended, on EF entering into a bond to be of good behaviour, on conditions proposed by the Crown. That was the appropriate course in circumstances where, in April 2014, imposition of an ICO would have been appropriate. Such a sentence was no longer appropriate in the circumstances which prevailed in March 2015. The sentence imposed on appeal is due to expire in several months.

5. [66]

   The result was a term of imprisonment of 1 year and 3 months, which, we were satisfied in the circumstances, reflected a sentence which was not unreasonably disproportionate to the nature and circumstances of the offences.