Connell v R

1. [1]

   MACFARLAN JA: I agree with Bellew J.

2. [2]

   FULLERTON J: I agree with Bellew J.

3. [3]

   BELLEW J: Andrew James Connell (the applicant) pleaded guilty in the District Court to the following charges:

   1. (1)

      supplying a prohibited drug on an ongoing basis between 5 August 2014 and 21 August 2014 (the ongoing supply offence), contrary to s 25A of the Drug Misuse and Trafficking Act 1985 (NSW) (the DMT Act);

   2. (2)

      dealing with the proceeds of crime (namely, $2,950.00) on 21 August 2014 (the proceeds of crime offence), contrary to s 193B(2) of the Crimes Act 1900 (NSW) (the CA); and

   3. (3)

      supplying a prohibited drug in an amount not less than the indictable quantity (375.45 grams of Gamma-Butyrolactone) (the supply offence), contrary to s 25(1) of the DMT Act.

4. [4]

   The respective maximum penalties were as follows;

   1. (1)

      the ongoing supply offence – 20 years imprisonment.

   2. (2)

      the proceeds of crime offence – 15 years imprisonment.

   3. (3)

      the supply offence – 15 years imprisonment.

5. [5]

   In addition, the applicant asked the sentencing judge to take into account five matters on a Form 1, namely:

   1. (1)

      resisting an officer in the execution of his duty, contrary to s 58 of the CA;

   2. (2)

      possessing a prohibited drug (39.3g testosterone), contrary to s 10(1) of the DMT Act;

   3. (3)

      possessing a prohibited drug (1.76g methylamphetamine), contrary to s 10(1) of the DMT Act;

   4. (4)

      possessing a prescribed restricted substance (melatonin), contrary to s 16(1) of the Poisons and Therapeutic Goods Act 1966 (NSW); and

   5. (5)

      being on drug premises, contrary to s 36X(1)(a) of the DMT Act.

6. [6]

   The sentencing judge gave the following indicative sentences:

   1. (1)

      the ongoing supply offence: 2 years and 8 months imprisonment (taking the Form 1 matters into account).

   2. (2)

      the proceeds of crime offence: 18 months imprisonment.

   3. (3)

      the supply offence: 8 months imprisonment.

7. [7]

   The sentencing judge imposed an aggregate sentence of 3 years and 6 months imprisonment, with a non-parole of 2 years imprisonment.

8. [8]

   The applicant now seeks leave to appeal against that sentence on the grounds more fully set out below.

The facts of the offending

1. [9]

   His Honour found the facts of the offending to be as follows: [1]

2. [10]

   His Honour reached the following conclusions as to objective seriousness: [2]

The applicant’s subjective case

1. [11]

   The material tendered in the applicant’s case on sentence included reports of Stephen Woods, Forensic Psychologist, and Dr Antony Henderson, Forensic Psychiatrist, both of whom had treated the applicant. In his report of 5 December 2016, Dr Woods noted [3] that at the time of the applicant’s initial presentation in August 2014, he had a Major Depressive Disorder with suicidal ideations. Dr Woods expressed the view that the applicant’s level of depression had improved since that time, but had not fully resolved. However, he said that the applicant had “made remarkable therapeutic progress”. [4]

2. [12]

   In his report of 5 December 2016, Dr Henderson said [5] that the applicant had presented to him in October 2014 with a significant psychiatric history, including childhood ADHD and a Stimulant Use Disorder for which he had been admitted to Northside Clinic at the age of 17. During that admission the applicant was diagnosed with Bipolar II Disorder [6] which Dr Henderson concluded was in sustained remission.

3. [13]

   The applicant had also been diagnosed, in March 2016, with chronic gastroenteritis and malabsorption. He was found to have a neoplasm, or abnormal tissue growth, in the bowel, which was thought to carry with it a high likelihood of a malignant recurrence. Dr Henderson said that the applicant had experienced a deterioration in his mental state following this diagnosis, and had self-medicated. He recommended [7] ongoing treatment for the Bipolar Disorder, and concluded that the applicant demonstrated a reasonably good prognosis and a low risk of recidivism. That assessment was based upon what Dr Henderson regarded as the applicant’s motivation to attend to his mental health treatment, his intention to abstain from illicit drug use, his employment prospects and the support of his family. Regrettably, that assessment proved to be somewhat inaccurate.

4. [14]

   The sentencing judge noted [8] that the applicant had entered a plea of guilty in the Local Court and was entitled to a discount of 25% to reflect the utilitarian value of that plea.

The sentence imposed on the co-offender

1. [15]

   Nicholas Gouliaditis (the co-offender) pleaded guilty to the following offences:

   1. (1)

      supplying a prohibited drug on an ongoing basis between 23 July 2014 and 21 August 2014, contrary to s 25A of the DMT Act; and

   2. (2)

      possessing a prohibited weapon contrary to s 7(1) of the Weapons Prohibition Act 1998 (NSW).

2. [16]

   In sentencing the co-offender for the first of those matters, his Honour Judge Berman SC was asked to take into account the following matters on a Form 1:

   1. (1)

      supplying a prohibited drug (2.25g of Methylamphetamine), contrary to s 25(1) of the DMT Act;

   2. (2)

      resisting arrest, contrary to s 58 of the CA;

   3. (3)

      possessing a prohibited drug (1.38g of Methylamphetamine), contrary to s 10(1) of the DMT Act;

   4. (4)

      possessing a prohibited drug (106.4 ml 1,4 Butanediol), contrary to s 10(1) of the DMT Act; and

   5. (5)

      dealing with property suspected of being the proceeds of crime ($1,145.00), contrary to s 193C(1) of the CA.

3. [17]

   On 2 September 2016 the co-offender was sentenced in respect of the charge supplying a prohibited drug on an ongoing basis to 2 years imprisonment, to be served by way of an Intensive Corrections Order. In respect of the charge of possessing a prohibited weapon, he was sentenced to imprisonment for 9 months, to be served by way of an Intensive Corrections Order. The two sentences were ordered to be served concurrently.

4. [18]

   Judge Berman SC applied a combined discount of 40% to reflect the utilitarian value of the co-offender’s early plea of guilty and another factor. [9] His Honour found [10] that there were exceptional circumstances justifying the co-offender serving his sentence other than by way of full-time imprisonment. Implicit in that finding was his Honour’s acceptance of the submissions of senior counsel for the co-offender that there were a series of factors which, when combined, justified that course being taken. In that regard, senior counsel had submitted, [11] inter alia, that the co-offender:

5. [19]

   The evidence before Judge Berman SC included a letter from William Booth House which made reference to the fact that the co-offender was “doing exceptionally well”, was “honest about the issues that underpinned his addiction”, had “spoken positively about how his life had improved”, and had “the foundations of a strong recovery”. [12] His Honour observed [13] that by virtue of his employment, the co-offender’s rehabilitation was effectively being assessed on a daily basis. His Honour also referred to other material [14] which supported a conclusion that the co-offender’s progress towards rehabilitation was well advanced.

The reasons of the sentencing judge

1. [20]

   The sentencing judge was cognisant of parity considerations, and the sentences imposed upon the co-offender. In particular, his Honour said: [15]

Submissions of the applicant

1. [21]

   Counsel for the applicant submitted that any differences between the respective criminality of the co-offender and the applicant were not sufficient to justify what he described as the “significant disparity” in the respective sentences which were imposed. It was submitted, in particular, that the sentence imposed upon the co-offender was lenient in the sense that it did not incorporate any component of full-time custody, and that this supported the conclusion that there was unjustified disparity.

2. [22]

   Counsel also made reference to the differentiating factors between the respective subjective cases, and submitted that none of those matters warranted a disparity of the significance of that which had resulted. Counsel also relied upon the fact that the applicant was in his mid to late twenties at the time of his offending, whereas the co-offender was in his early thirties.

3. [23]

   Counsel submitted that in all of these circumstances, the applicant had a justifiable sense of grievance.

Submissions of the Crown

1. [24]

   The Crown submitted that there were a number of distinctions between the two cases which explained the differences in the sentences which were imposed. These included:

Consideration

1. [25]

   The principle of parity in sentencing allows for different sentences to be imposed on like offenders, in order to reflect varying degrees of culpability, and/or differences in subjective circumstances. The same principle also recognises that as between co-offenders, there should not be a marked disparity which gives rise one offender having a justifiable sense of grievance. [16] In my view, when those principles are applied to the present case, the applicant can have no justifiable sense of grievance. This is so for a number of reasons.

2. [26]

   Firstly, counsel’s reliance upon the difference in the ages of the applicant and the co-offender is of little or no significance. Whilst the applicant was obviously younger, both were adults at the time of the offending.

3. [27]

   Secondly, the applicant’s criminality was found by the sentencing judge to be higher than that of the co-offender.

4. [28]

   Thirdly, the discount applied by Judge Berman SC to the co-offender’s sentence was greater than that afforded to the applicant, by reason of another factor which formed no part of the applicant’s subjective case.

5. [29]

   Fourthly, there was a marked difference between the applicant and the co-offender in terms of the paths that each had taken towards rehabilitation. I have already set out some of the evidence which was before Judge Berman SC in relation to that issue, [17] on the basis of which his Honour reached conclusions favourable to the co-offender. [18] His Honour specifically found that the co-offender had, in no small way, done much good for the community following his arrest by assisting people who had been harmed as a consequence of drug-dealing activities: [19]

6. [30]

   The applicant’s case on the question of rehabilitation was significantly different from that of the co-offender. The applicant’s sentence proceedings were successively adjourned for periods of time to allow ongoing management, assessment and treatment of his medical issues, including his mental health issues. A number of events adverse to the applicant occurred during those adjournments.

7. [31]

   Firstly, the applicant was stopped by police for driving a motor vehicle in a dangerous manner and was found to be in a semi-conscious state. When attempting to arrest the applicant, police were forced to employ the use of “approved strikes” to stop him resisting, and to control him. Results of blood and urine testing were consistent with the applicant having ingested prohibited substances, including methylamphetamine and amphetamine.

8. [32]

   Secondly, the applicant commenced a rehabilitation program at Dooralong Transformation Centre. After a period of lecture and tutorial sessions over several weeks, he was granted day release. He returned one day exhibiting signs of obvious physical injuries which had been inflicted in the course of an altercation. This led to him being discharged from the program.

9. [33]

   Thirdly, it was during an adjournment of the sentence proceedings that the applicant committed the supply offence. He was a passenger in taxi which was stopped by police and was observed to be under the influence of drugs. He was removed from the vehicle and subsequent search located 375.45 grams of Gamma-Butyrolactone. An iPad which was in the applicant’s possession at that time, and which was seized by police, contained screen shots of messages consistent with dealing in prohibited drugs. At that time, the applicant was on bail in relation to the ongoing supply offence and the proceeds of crime offence. The sentence proceedings in respect of those matters had been adjourned for the purpose of assessing the applicant’s suitability for an Intensive Corrections Order. Upon his arrest, the applicant’s bail was revoked and he was detained in custody.

10. [34]

    Fourthly, having been granted bail by Campbell J of this Court on the condition that he again attend the Dooralong Centre rehabilitation program, the applicant (having been admitted back into the program) was seen by staff running naked with another male in the grounds of the Centre, apparently under the influence of a prohibited drug. That incident resulted in the applicant’s exclusion from the program at Dooralong. It also constituted a breach of his bail conditions, which saw him returned to custody.

11. [35]

    It will be apparent that in terms of rehabilitation, there was a great deal separating the progress of the applicant on the one hand, and the progress of the co-offender on the other. That, of course, is to say nothing of the other subjective factors which the co-offender was entitled to have taken into account, but which played no part in the applicant’s case. Those matters included the extra curial punishment he had suffered, his vulnerability in prison and the 11 month period of quasi custody spent at Odyssey House and William Booth House.

12. [36]

    Finally, I am not persuaded that there is any unjustified disparity arising from the fact that the sentence imposed upon the co-offender did not involve a requirement that he serve any period of full-time custody. That too is explained by the various differences in the respective cases to which I have referred.

13. [37]

    In all of these circumstances, the applicant can have no justifiable sense of grievance arising from the sentences imposed. For these reasons this ground is not made out.

Submissions of the applicant

1. [38]

   Counsel for the applicant submitted that the sentencing judge should have indicated that the sentence for the proceeds of crime offence was to be wholly concurrent with the sentence imposed for the ongoing supply offence. Counsel acknowledged that no such submission had been made to the sentencing judge by the applicant’s then representative, but submitted that the two charges were directly connected, and that the error on the part of the sentencing judge should be corrected by this Court.

2. [39]

   It was submitted that by failing to indicate that the two sentences were to be concurrent, the sentencing judge had failed to apply what was described as the “principle” that in circumstances where an offender is to be sentenced for a supply (or ongoing supply) offence and a proceeds of crime offence, the sentences must always be wholly concurrent. Counsel submitted that the decision of this Court in Jadron v R [20] was authority for that proposition.

Submissions of the Crown

1. [40]

   The Crown submitted that questions of concurrency and accumulation are inevitably matters within the discretion of a sentencing judge, and are therefore matters with which this Court will not generally interfere. It was submitted that the aggregate sentence imposed on the applicant properly reflected the totality of his criminality, and that the issue of whether or not a sentence for one offence was capable of comprehending and reflecting the criminality of another offence, so as to justify complete concurrence, was necessarily a matter for the sentencing judge. The Crown also submitted that when imposing an aggregate sentence, there is no obligation upon a sentencing judge to fix the degree of concurrency or accumulation within each individual indicative sentence.

2. [41]

   Finally, the Crown submitted that there was no fixed principle that in each and every case where a person is to be sentenced for a supply offence and a proceeds of crime offence, the sentences must be concurrent. The Crown submitted that the decision of this Court in Jadron did not stand as authority for any such proposition. It was also pointed out that in Jadron the Crown had expressly conceded that wholly concurrent sentences were appropriate in the particular circumstances of that case. The Crown emphasised that no similar concession was made in the applicant’s sentence proceedings.

Consideration

1. [42]

   For a number of reasons I am unable to accept the submissions advanced by counsel for the applicant in support of his ground.

2. [43]

   To begin with, such submissions ignore the fact that there is no general rule that determines whether sentences should be imposed concurrently or cumulatively. Issues of concurrence or accumulation are to be determined according to principles of totality, and by considering whether the sentence for one offence can comprehend and reflect the criminality of the other. [21]

3. [44]

   Further, and more specifically, the submissions of counsel for the applicant misunderstood the decision of this Court in Jadron. In that case, separate sentences (as opposed to an aggregate sentence) had been imposed at first instance in respect of charges of supplying a prohibited drug and dealing with the proceeds of crime. Fagan J (with whom Leeming JA and Hamill J agreed) concluded, having regard to a concession made by the Crown, that in the particular circumstances of that case the sentences which had been imposed at first instance should not have been accumulated. [22] The decision in Jadron is not authority for the proposition that in each and every case where an offender is to be sentenced for such offences, wholly concurrent sentences must, as a matter of principle, be imposed. To so conclude would be to unreasonably and impermissibly fetter the discretion of a sentencing judge.

4. [45]

   It may be that in some cases it will be possible to make a connection between the act of supplying a prohibited drug, and the act of dealing in proceeds of crime. For example, the evidence may make it plain that money found in an offender’s possession, and which is said to be the proceeds of crime, was derived from the supply of prohibited drugs. In such a case, wholly concurrent sentences may be appropriate. However, as is always the case, whether this will be so will depend upon a consideration of the issues set out in [43] above. Contrary to the submissions advanced by counsel for the applicant, there is no fixed principle which mandates such an outcome. Each case must be evaluated on its own facts.

5. [46]

   In the present case, no submissions were made to the sentencing judge in respect of this issue at all. It is perhaps unsurprising in those circumstances that the sentencing judge made no specific finding as to the existence of any connection between the ongoing supply offence and the money which was the subject of the proceeds of crime offence. Whether there was any such connection was clouded by the fact that there were a number of drug related matters contained on the Form 1. In all of these circumstances there was no error in the indicative sentences which the sentencing judge expressed.

6. [47]

   The submissions of counsel for the applicant also fail to recognise that where an aggregate sentence is imposed, this Court is not in a position to analyse issues of concurrence and accumulation in the same way that it is able to analyse traditional sentencing structures. This is because a sentencing judge is not under an obligation to explain how questions of accumulation and concurrence were resolved. [23] To require a sentencing judge to engage in that task would run contrary to the simplified process of imposing an aggregate sentence for which the Parliament has made provision [24] .

7. [48]

   The ultimate question is whether, in all of the circumstances, an aggregate sentence which has been imposed reflects the overall criminality of the offender. In my view, the aggregate sentence which was imposed in the present case did so. The ongoing supply offence involved the applicant performing a vital role in systematic drug supply. The proceeds of crime offence was also serious, although at the lower end of the scale in light of the amount of money involved. The supply offence was committed whilst the applicant was on bail, and within the period of an adjournment which he had been granted for the purposes of undergoing an assessment as to his suitability for an Intensive Corrections Order. Quite apart from these considerations, that offence involved the applicant being in possession of seven times the indictable quantity of a prohibited drug, for the purposes of supply. Taking all of these factors into account, it could not be said that the aggregate sentence which was imposed was manifestly excessive.

8. [49]

   For these reasons, this ground is not made out.

CONCLUSION

1. [50]

   I propose the following orders:

   1. (1)

      Leave to appeal granted.

   2. (2)

      Appeal dismissed.