OGC v R

1. [1]

   WARD JA: I agree with Harrison J.

2. [2]

   HARRISON J: The applicant was committed for sentence on 5 June 2015 in the Gosford Local Court and came before the District Court at Gosford on 31 August 2015 to be sentenced for the ongoing supply of prohibited drugs between 23 December 2014 and 6 January 2015 contrary to s 25A(1) of the Drug Misuse and Trafficking Act 1985. The maximum penalty for that offence is imprisonment for 20 years.

3. [3]

   In sentencing the applicant, King SC DCJ took into account four further offences on a Form 1 as follows:

   1. (1)

      Supply prohibited drug, being 10.6 grams of methylamphetamine contrary to s 25(1) of the Act.

   2. (2)

      Possess prohibited drug, being 20.8 grams of cannabis, contrary to s 10(1) of the Act.

   3. (3)

      Possess unregistered firearm, being an air rifle, contrary to s 36(1) of the Firearms Act 1996.

   4. (4)

      Possess unregistered firearm, being an air rifle, contrary to s 36(1) of the Firearms Act 1996.

4. [4]

   On 1 September 2015, the applicant was sentenced to 3 years imprisonment with a non-parole period of 2 years and 3 months commencing on 1 September 2015. The non-parole period expires on 30 November 2017. The applicant received a 25 percent discount for the utilitarian value of his guilty plea.

5. [5]

   The applicant appeals against the severity of the sentence imposed upon him. He originally relied upon three grounds of appeal as follows:

   1. (1)

      Refusal of adjournment at hearing for the purpose of adducing psychological evidence.

   2. (2)

      The sentencing judge held that there was no evidence of remorse.

   3. (3)

      That there was an error in declining to find special circumstances in the case of the offender.

6. [6]

   The applicant’s written submissions in support of the appeal also foreshadowed an application for leave to adduce evidence of assistance to the police and to rely on such evidence in this appeal. Counsel for the applicant additionally contended that this evidence was also relevant or referable to the question of remorse that is raised by ground 2.

7. [7]

   Following discussion during the course of the appeal in this Court, the appellant indicated that he wished to reformulate his grounds of appeal. Accordingly, a document entitled Amended Grounds of Appeal was provided by his counsel in these terms:

   1. (1)

      That the appellant [sic] was by reason of the refusal of adjournment of the sentencing hearing for that purpose unable to adduce evidence for consideration by the Court in determining sentence to be imposed upon the appellant.

   2. (2)

      (In the event that this Court does uphold this ground the appellant seeks leave to rely upon a report prepared by David Diment psychologist).

   3. (3)

      That the sentence imposed was manifestly excessive by reason of the finding by the Court that there was no evidence in the sentencing proceedings of remorse and contrition on the part of the appellant.

   4. (4)

      That the sentencing court erred in finding that there were not, in the circumstances of the appellant, special circumstances.

   5. (5)

      That a miscarriage of justice was occasioned by reason of the refusal of the learned sentencing judge to grant an adjournment for the purposes of obtaining a psychological report.

8. [8]

   Regrettably, ground 4, in those terms, entirely misstates the additional ground of appeal foreshadowed during argument in this Court, which was directed to a perceived miscarriage of justice that resulted from a failure on the applicant’s behalf to tender evidence of assistance to the police. So much is clear from the transcript of the proceedings in this Court on 5 October 2016 at pages 4 and 5 as follows:

9. [9]

   For reasons to which it is presently unnecessary to refer, the applicant ultimately abandoned grounds 1 and 3 of his amended grounds of appeal. In other words, he indicated that his principal complaints were that the sentence was manifestly excessive, by reason of the way in which the sentencing judge dealt with the issues of remorse and contrition, particularly in the light of his assistance to authorities, which was also fundamental to new ground 4. In that last respect the applicant indicated that he wished to rely upon particular evidence of this assistance, in the form of a series of recent affidavits. That course was opposed by the Crown. This is referred to below. The applicant was otherwise content for this Court to accommodate his former complaints about the sentencing judge’s alleged failure to find special circumstances and his original attempt to rely upon the psychologist’s report by this Court taking each of them into account upon resentencing him if it formed the view that some other sentence was warranted.

Background

1. [10]

   The applicant was sentenced upon the basis of agreed facts as follows.

2. [11]

   Between December 2014 and February 2015, police attached to the Gosford Drug Unit were conducting investigations into the supply of prohibited drugs, namely crystalline methylamphetamine, by the applicant in the Gosford area. On the following occasions, police seized the prohibited drugs immediately after he was observed and recorded supplying the drugs to a purchaser.

3. [12]

   At about 12pm on 23 December 2014, in the car park of the Gosford waterfront boat ramp, the applicant was monitored as he supplied 8.1 grams of packaged crystal methylamphetamine for $2,300. The substance was seized by police and analysis confirmed it to be crystalline methylamphetamine with a weight of 6.8 grams and a purity of 77.5 percent.

4. [13]

   At about 11.30am on 30 December 2014, in the car park of the Gosford waterfront boat ramp, the applicant was monitored as he supplied 8.7 grams of packaged crystal substance to an undercover police officer for $2,300. The substance was seized by police and analysis confirmed it to be crystalline methylamphetamine with an official weight of 7.05 grams and a purity of 79.5 percent and 78 percent.

5. [14]

   At about 11am on 6 January 2015, in the car park of Adcock Park Sports Ovals, West Gosford, the applicant was monitored as he supplied 7.8 grams of packaged crystal substance to an undercover police officer for $2,300. The substance was seized by the police and analysis confirmed it to be crystalline methylamphetamine with an official weight of 7.05 grams and a purity of 79 percent.

6. [15]

   Accordingly, between 23 December 2014 and 6 January 2015, the applicant was monitored as he conducted three supplies of crystal methylamphetamine for financial and/or material reward, the total amount supplied being 20.9 grams and the total amount received by him being $6,900.

Form 1

1. [16]

   At about 10.20am on 18 February 2015, the applicant was stopped while driving a motor vehicle south along Masons Parade, Point Frederick. He was immediately arrested and a subsequent search of the vehicle located a clear plastic resealable bag containing a crystal substance believed to be crystal methylamphetamine, which was located in the centre console. The item was seized and weighed in front of him. It returned a weight of 11.02 grams. It was later analysed and confirmed to be crystal methylamphetamine, with an official weight of 10.6 grams and a purity of 79.5 percent.

2. [17]

   During the course of the search of the car, police located a number of items of interest which were sent for forensic analysis. The applicant was conveyed to Gosford Police Station where he was informed of his rights.

3. [18]

   At about 11.15am, police served an occupier’s notice on the applicant and informed him that a search warrant would be executed at his residential premises. He declined to be present during the search of his property.

4. [19]

   At about 11.45am, the search warrant was executed at the applicant’s premises. During their search of the garage, police located a total of 20.8 grams of cannabis, as well as locating and seizing two unregistered air rifles. Only one of the rifles contained a serial number.

Ground 2

1. [20]

   The applicant relied upon a series of testimonials at the sentencing hearing to support his contention that he was remorseful. The sentencing judge referred to these in some detail. Barbara Mann, who had known the applicant for 45 years, spoke highly of him, saying that he was “utterly remorseful for putting his family through this heartache”. Peter Strain, a barrister who had known the applicant since they attended St Edward’s College at East Gosford in the early 1970s, said that “there is no question that he is remorseful and contrite”. His Honour observed, however, that Mr Strain’s letter contained no material or information indicating how this remorse and contrition is said to have been expressed. The balance of written references tendered on the applicant’s behalf speak of his dedication to the care of his disabled mother but do not otherwise appear to address matters of remorse or contrition at all.

2. [21]

   His Honour dealt with these issues in specific terms, having regard to the evidence given by the applicant at the sentencing hearing. His Honour’s remarks on sentence were relevantly in the following terms:

3. [22]

   It was submitted on the applicant’s behalf that his plea of guilty was some evidence of remorse. He referred to what was said by Basten JA in R v Thomas [2007] NSWCCA 269 at [19]:

4. [23]

   I have reviewed the transcript of the applicant’s evidence at the sentencing hearing. I have some considerable difficulty detecting any error or misapplication of principle in the way in which his Honour dealt with the questions of the applicant’s contrition and remorse. In particular, my distinct impression, consistently with the view formed by his Honour, is that the applicant’s significant focus was self-interest and regret for the position in which he found himself, rather than shame for the external consequences of his actions or anything similar.

5. [24]

   His Honour was entitled to come to the view that he took. He was reliant upon the evidence before him. An assessment of the applicant’s evidence was a critical aspect of that equation. In that regard it is apparent that the applicant was not alive to the harm that his actions were capable of causing or, more particularly, was unable or unwilling to give expression to his attitude to these matters if he was. I have on previous occasions expressed caution about proceeding too readily to a conclusion that an offender has not demonstrated remorse when that failure is arguably or obviously the result of unfamiliarity with formal or public expressions of emotion or because of subjective disadvantages that interfere with that process. No such impediments exist in the present case. It is also apparent that his Honour was at least not satisfied that the applicant had established by evidence that he accepted responsibility for his actions. The material quoted above tends to suggest that he was instead inclined to blame others for his predicament. It is moreover apparent that the applicant’s acceptance of the damage caused by methylamphetamine (“insidious … and can destroy lives”) was a reference to the general effects of that drug rather than a specific acceptance or acknowledgment that the precise drugs he distributed actually had that effect.

6. [25]

   It is clear that his Honour carefully evaluated the evidence touching the question of the applicant’s remorse. That included the special advantage of observing the applicant give his evidence. I am unable to detect error in the exercise of the sentencing discretion. His Honour was perfectly entitled to conclude as he did.

Ground 4

1. [26]

   This ground raises potentially two areas of inquiry. The first is to consider whether the applicant should be permitted at this stage in this Court to adduce evidence of assistance to the authorities that was not led below. This question is informed by an understanding of why the evidence of assistance was not led at the sentencing hearing in the first place as well as the content of the evidence concerned. The second is to assess whether or not it would have made any difference to the sentencing outcome if the evidence had been received below.

2. [27]

   The applicant sought to rely upon three affidavits. The first was sworn by David Griffiths on 10 August 2016. Mr Griffiths arranged to take screen shots of a series of text messages found in the applicant’s mobile phone that had passed between the applicant and Detective Adam Noy in the period from 24 February 2015 to 14 August 2015. These screen shots were printed and annexed to Mr Griffiths’ affidavit. There is no controversy attending the fact that these messages were sent or received by the applicant and Detective Noy or that the screen shots accurately and completely reveal what they said.

3. [28]

   Two affidavits were sworn by the applicant on 27 June 2016 and 1 July 2016 respectively. Only the first affidavit is presently relevant. It included the following paragraphs:

4. [29]

   The applicant thereafter proceeded in general terms to refer to the text messages between him and Detective Noy. His affidavit does not contain details of any particular additional information that the applicant was able to provide to the police that was of assistance to them in their investigation of other crimes. The applicant refers to some names that were passed on to Detective Noy but it is fair to say that the references to these people and the details of their activities are sketchy and inconclusive.

5. [30]

   The principles governing the reception of additional evidence on an application for leave to appeal against sentence are well settled: see Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118 at [104]-[121]. The following relevant principles should be noted:

   1. (1)

      A distinction has been drawn between “fresh” evidence and “new” evidence. Evidence will be considered fresh if the applicant was not aware of the evidence and the evidence was not discoverable with reasonable diligence at the time: R v Abou-Chabake (2004) 149 A Crim R 417; [2004] NSWCCA 356 at [63]. New evidence is evidence which was available to the applicant but not relied upon at first instance, or evidence which was discoverable with reasonable diligence: Khoury at [107].

   2. (2)

      As a general rule, the principle of finality does not allow parties to produce fresh or new evidence on appeal: Cornwell v R [2015] NSWCCA 269 at [39]. The exceptions to this general rule are where there has been a miscarriage of justice (see R v Fordham (1997) 98 A Crim R 359 at 378) or where it is in the interests of justice for the Court to receive the evidence (see Cornwell at [59]).

   3. (3)

      The Court must use caution when exercising the discretion to receive fresh or new evidence and there must be proper grounds for it to do so: Khoury at [107].

   4. (4)

      The Court should have regard to the circumstances of, and any explanation offered for, the non-production of evidence and whether the evidence had the potential to affect the sentencing outcome at first instance: Khoury at [121].

   5. (5)

      In relation to new evidence, the mere fact that evidence available to the applicant at the time of sentencing was not put before the sentencing judge will not ordinarily be sufficient to establish a miscarriage of justice, even if the evidence could potentially have affected or influenced the sentence imposed on the applicant: Fordham at 377.

6. [31]

   As properly conceded by the applicant, the evidence contained in the affidavits upon which he proposes to rely cannot be considered “fresh” evidence. The application is premised upon the contention that the applicant was “unable” to adduce any evidence of assistance during the proceedings on sentence. Such a contention cannot be sustained.

7. [32]

   It was always known to the applicant and to his legal representatives at first instance that he had provided information to police about alleged criminal activities. So much is apparent from the affidavit of Peter James Kernan, sworn 5 August 2016, filed by the applicant, which contains the following paragraphs:

8. [33]

   The applicant’s contention that he was “unable” to adduce evidence of assistance to police is premised on the fact that Detective Noy did not provide a “letter of comfort”. This was not the only means available to the applicant for adducing such evidence. He chose to give evidence on sentence in relation to other matters in mitigation, but did not give evidence about any assistance he allegedly provided. It is otherwise clear that the applicant was still in possession of the mobile telephone he used to communicate with Detective Noy at the time of the sentencing proceedings and that he was in a position to lead the same evidence before the sentencing court as he now seeks to have admitted in this Court. The applicant has not alleged that he held fears for his safety, nor has he offered any other compelling explanation for the failure of his legal representatives at first instance to put the information before the sentencing court.

9. [34]

   Section 23(2) of the Crimes (Sentencing Procedure) Act 1999 sets out the factors relevant to the assessment of whether a lesser sentence is warranted as a result of assistance provided to authorities in the prevention, detection or investigation of an offence:

10. [35]

    Detective Noy affirmed an affidavit on 17 September 2016 dealing with the nature and extent of the assistance provided by the applicant. In summary, Detective Noy indicated that the information only resulted in the generation of one intelligence report that contained information that was largely already known to the police. It did not lead to an ongoing investigation or any arrests. The applicant has since been de-registered as a source. The police were unable to verify the majority of the information supplied. The “assistance” was in any event limited to the applicant offering rudimentary information concerning individuals who the applicant believed may have been involved in the supply of illegal drugs. The applicant did not provide statements and did not give evidence in court.

11. [36]

    There is no evidence in this Court to suggest that the applicant has suffered or will suffer any harsher conditions of incarceration as a result of the provision of information to the police or that his family has been affected in any way.

12. [37]

    The applicant has offered no reasonable explanation as to why his dealings with Detective Noy or evidence of any assistance that he contends he had provided were not raised before the sentencing judge. The applicant makes no complaint about his former legal advisers and in fact somewhat curiously relies upon the evidence of Mr Kernan, which appears clearly inimical to his present application. An obvious forensic decision not to lead this evidence was made in the court below. The applicant seeks to do now what he could have done in the sentencing proceedings but for unexplained reasons chose not to do. I am unable to conclude that the applicant’s considered decision not to call the evidence of his assistance has occasioned any miscarriage of justice. I would refuse leave to rely upon that evidence now.

13. [38]

    It also seems clear that the so-called assistance offered by the applicant was of such little value, and fell so far short of satisfying any relevant considerations, that it would not have made any difference to the sentencing outcome. The assistance provided could neither be described as significant or useful. It is in such circumstances difficult to conclude that the reception of the details of the applicant’s dealings with Detective Noy, and the ultimately inconsequential nature of the information supplied, would have led to the imposition of any different sentence.

Conclusion

1. [39]

   In my opinion the following orders should be made:

   1. (1)

      Grant leave to appeal against sentence.

   2. (2)

      Refuse leave to adduce evidence in the appeal.

   3. (3)

      Dismiss the appeal.

2. [40]

   RA HULME J: I agree with Harrison J.