Elliott v R

1. [1]

   LEEMING JA: I agree with Fullerton J.

2. [2]

   FULLERTON J: The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal the sentences imposed on him in the Dubbo District Court on 22 June 2017.

3. [3]

   On that date he entered pleas of guilty to two counts on an indictment, each of which the applicant had pleaded guilty to in the Local Court on 22 February 2017.

4. [4]

   Both counts were laid pursuant to the Drug Misuse and Trafficking Act 1985 (NSW).

5. [5]

   The first count alleged that between 11 December 2015 and 12 January 2016 at Dubbo the applicant supplied a prohibited drug for financial or material reward on three or more separate occasions. That offence was laid contrary to s 25A(1) of the Drug Misuse and Trafficking Act. It was referred to in the sentence proceedings and on appeal as “the ongoing supply count”. It involved the applicant supplying three different drugs between the nominated dates on five separate occasions. Three of the five supplies involved the supply of methamphetamine (totalling 6.125 grams). The remaining two supplies involved the supply of a 100mg fentanyl patch and a buprenorphine strip. The agreed facts tendered on sentence refer to telephone intercept material recording regular communication between the applicant and two other offenders (being a Mr Dunn and a Mr Kennedy) for the purpose of discussing and facilitating the supply of the three prohibited drugs.

6. [6]

   The second count alleged that on 6 July 2016 at Dubbo the applicant supplied 7.28 grams of methamphetamine. That drug was located at the applicant’s home upon the execution of a search warrant. The drug was contained within five plastic satchels. Other drug supply paraphernalia were also located including two sets of electronic scales, $850 in cash, a quantity of resealable bags and a closed circuit television system.

7. [7]

   A further offence of allowing his premises to be used as a drug premises pursuant to s 36Y(1)(a) of the Drug Misuse and Trafficking Act was before the Court on a certificate pursuant to s 166 of the Criminal Procedure Act 1986 (NSW). In respect of that offence, the sentencing judge imposed a fixed term of imprisonment of 3 months to commence on 6 July 2016; the date of the applicant’s arrest and his detention in custody bail refused. As at the date of sentence, that fixed term had expired.

8. [8]

   In respect of the second count, and after allowing a discount of 25 per cent for the plea of guilty, his Honour imposed a fixed term of imprisonment of 1 year and 8 months against a statutory maximum of 15 years imprisonment and or a fine of $220,000. That sentence was also ordered to commence on 6 July 2016. As at the date of the hearing of the appeal, that sentence has been fully served. It expired on 5 March 2018.

9. [9]

   In respect of the first count on the indictment, and again after allowing a 25 per cent discount for the plea of guilty, his Honour imposed a non-parole period of 20 months partly accumulated on the sentence the subject of the second count. That sentence commenced on 6 November 2016 and the non-parole period is due to expire on 5 July 2018. His Honour imposed an additional term of 12 months to date from the expiration of the non-parole period.

10. [10]

    The effective sentence of 3 years imprisonment with a non-parole period of 2 years expires on 5 July 2019. His Honour altered the statutory ratio between the non-parole period and the balance of term upon a finding of special circumstances.

11. [11]

    His Honour directed that the applicant be released to parole at the expiration of the non-parole period.

12. [12]

    The applicant gave evidence at the sentence proceedings in the course of which he asserted that he had engaged in the supply of the drugs the subject of both counts on the indictment due to threats or pressure applied to him by two co-offenders, Messrs Dunn and Kennedy. He gave evidence that the quantity of methamphetamine the subject of both counts had been given to him by Kennedy on instructions that it was to be supplied to Dunn.

13. [13]

    The sentencing judge was satisfied that the applicant’s offending was precipitated by reason of a drug debt the applicant owed to Kennedy and that Kennedy’s demand for payment to discharge that debt was to be acquitted on the applicant supplying drugs to Dunn on Kennedy’s behalf.

14. [14]

    His Honour also made a number of favourable findings referable to the applicant’s subjective circumstances including his use of drugs and alcohol from about age 13 in the context of a disturbed upbringing and in response to a number of traumatic events. His Honour noted that the applicant was able to extricate himself from drug use when, at about age 25, he relocated to Dubbo and obtained secure full-time employment. His Honour found that the applicant relapsed into drug use upon separation from his partner but addressed his drug use when he returned to work. However, when he sustained a compound fracture of his right leg in a “hit and run” accident his drug use again escalated with the use of prescribed opiates. The applicant participated in an opioid treatment program over successive periods in 2008, 2009 and 2012 before he again relapsed when he commenced to use amphetamines in 2015. At the time of his arrest for the index offences the applicant was dependent on that drug and had been for a period of 18 months.

15. [15]

    Upon admission into custody he commenced treatment under a custodial based methadone program. As at the date of sentence, the sentencing judge was satisfied the applicant was no longer using methadone as an opiate substitute and was taking prescribed anti-depressant drugs to treat an underlying depressive condition. His Honour also accepted that upon his eventual release the applicant was willing to participate in a drug and alcohol program to ensure he remained drug free. Further, his Honour accepted that the applicant had insight into his drug offending and was remorseful, although he regarded his chances of rehabilitation as “guarded” given his age and the duration, albeit intermittent, of his addiction to prohibited drugs. His Honour noted that there was no adverse record of any custodial infringements in respect of the use of drugs or otherwise, on the basis of which his Honour concluded the applicant’s rehabilitation had commenced and that it was to be encouraged.

16. [16]

    His Honour acknowledged the applicant’s criminal record was not extensive but that it was one that disentitled him to leniency.

17. [17]

    The applicant’s history of drug use coupled with an established and supportive relationship with his partner (who his Honour accepted had no knowledge that the applicant had been supplying drugs whilst they were living together) satisfied his Honour that the applicant and the community would benefit from a longer period on parole to ensure that he remained drug free under ongoing supervision by Community Corrections.

The grounds of appeal

1. [18]

   The applicant relied on two grounds of appeal:

   1. (1)

      The sentencing judge erred in finding that the objective criminality the subject of the supply of methamphetamine on Count 2 was aggravated by having been committed in company and that in making that finding, his Honour failed to afford the applicant procedural fairness.

   2. (2)

      The sentencing judge erred in finding that the objective criminality the subject of the ongoing supply count was aggravated because it involved planning and organised criminal activity as comprehended by s 21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Ground 1

1. [19]

   The sentencing judge’s findings as concerned the objective seriousness of the supply amphetamine count included the following:

2. [20]

   On the appeal the applicant submitted that, properly understood, his Honour had found as a statutory aggravating factor that the applicant acted in company with Messrs Dunn and Kennedy in the supply of the amphetamine the subject of the second count, having given no indication to the parties during the sentence proceedings that he was considering taking that approach, such as might have permitted the applicant’s counsel an opportunity to dissuade him from making that finding. On the appeal counsel submitted that, of itself, constituted an error in sentencing principle.

3. [21]

   Counsel referred the Court to Weir v R [2011] NSWCCA 123 at [64]-[67] where the relevant principles to be applied when a complaint is made concerning the lack of procedural fairness were summarised by Garling J (Macfarlan JA and Johnson J agreeing):

4. [22]

   The reasoning in Weir has been applied by this Court in a number of matters: Ng v R [2011] NSWCCA 227; R v Wang; R v Roizman [2013] NSWCCA 2; Dang v R [2014] NSWCCA 47; Thomson v R [2014] NSWCCA 88; Wills v R [2014] NSWCCA 253.

5. [23]

   Further, counsel submitted that s 21A(2)(e) of the Crimes (Sentencing Procedure) Act had no application to the facts underpinning the criminal conduct the subject of the second count.

6. [24]

   In that regard, counsel relied upon Gore v R [2010 NSWCCA 330; 208 A Crim R 353 per Adams J at [28]-[29] and Howie J at [101]-[103] where their Honours held that it was not sufficient for a Court to simply refer to a statutory aggravating factor without considering whether the factor truly aggravates the criminal conduct in the context of the commission of the particular offence. As Howie J held at [103]:

7. [25]

   The applicant also relied on White v R [2016] NSWCCA 190 where Simpson JA, with whom Bathurst CJ agreed, cited with approval the judgments of Adams and Howie JJ in Gore, and reviewed the case law in respect of the aggravating factor of being “in company”. At [94] her Honour held:

8. [26]

   There was some uncertainty in the sentence proceedings as to whether the conduct the subject of the second count was an actual supply or a deemed supply, that is, whether the applicant was to be sentenced for an actual supply in the sense the drug was being held in the applicant’s possession for supply to Dunn or a deemed supply because of the quantity of the drug (as provided for in s 29 of the Drug Misuse and Trafficking Act). Either way, it cannot, in my view, be meaningfully said that the applicant engaged either Kennedy, as the supplier to him of the drug, or Dunn, as the person to whom some or all of the drug was to be supplied, to assist him in his offending such as to support a finding that the applicant acted “in company” with them, or either of them.

9. [27]

   On the hearing of the appeal the Crown submitted that his Honour’s reference to “the offender [having] acted in company with two co-offenders” did not amount to a finding that the offending was aggravated by being committed “in company”. The Crown submitted that it was open to the Court to find that his Honour was doing no more than conveying what was common ground on the sentence proceedings, namely, that the applicant was involved with those two men in a milieu of drug supplying having admitted to intending to supply Dunn and others at Kennedy’s direction.

10. [28]

    The Crown submitted on that construction there was no error in his Honour’s factual finding. Further, the Crown submitted that there is nothing in his Honour’s reasons for sentence, or in the sentence imposed, to suggest that the sentence was increased because of a finding that the applicant acted “in company” with others as a drug supplier.

11. [29]

    The applicant submitted that was no answer to the error contended for. Even if this Court was not of the view that his Honour treated the involvement of the two named men as a statutory aggravating factor, a factual finding that the applicant acted “in company” with them by supplying drugs to one of them at the direction of another was not open on the evidence in any event.

12. [30]

    Whilst there is some doubt as to what his Honour intended by the finding that is under challenge, on either of the alternate bases contended for by the applicant I am of the view that the error the subject of Ground 1 is made out.

Ground 2

1. [31]

   In the applicant’s written submissions to the sentencing judge, reference was made to s 21A(2)(n) of the Crimes (Sentencing Procedure) Act as a “possible relevant aggravating factor” with counsel submitting that whilst he felt obliged to bring the potential application of that provision to his Honour’s attention, he did not rely on it. This prompted the following exchange between counsel and the sentencing judge:

2. [32]

   That submission, which appeared to be accepted by the sentencing judge, was consistent with a further submission advanced in writing on the applicant’s behalf that “the offending was not ‘a systematic criminal system’ for the purpose of profitable commercial operation”.

3. [33]

   The Crown who appeared at the sentence proceedings expressly disavowed any reliance on s 21A(2)(n) as a statutory aggravating factor.

4. [34]

   Notwithstanding that concession, the sentencing judge held as follows (emphasis added):

5. [35]

   His Honour made that finding without signalling his intention to find the factor of aggravation proved and without allowing counsel the opportunity to persuade him to the contrary.

6. [36]

   As is evident from his Honour’s sentencing remarks, it appears he was influenced in his ultimate determination that the applicant was involved in a planned and organised criminal activity (at least insofar as the ongoing supply of prohibited drugs the subject of the first count was concerned) by the fact the applicant was supplying more than one prohibited drug. That is reflected in the following remarks:

7. [37]

   It would also appear from the extract at 34 above that his Honour was influenced in concluding that the ongoing supply involved planning and organised criminal activity because the amphetamines actually supplied to Mr Dunn (that is, three of the five supplies the subject of Count 1) were in what his Honour described as amounts above pure street level. Somewhat curiously, his Honour also found that “[t]he agreed facts do not reveal in regard to [the] s 25A charge any well-organised system with the times and places of the supplies being variable” and “[t]here is nothing particularly sophisticated about [the applicant’s] involvement”. In my view, that finding cannot sit with his Honour’s finding that the applicant was involved in “a planned and organised criminal activity”.

8. [38]

   On the appeal the Crown submitted that the two findings were not contradictory and that while the variation in the time, place and type of drug supplied did not reveal a sophisticated or well organised system of drug supply, it was nonetheless open to his Honour to find that the activity was planned and organised, even if clumsy or haphazard (see Hewitt v R [2007] NSWCCA 353; 180 A Crim R 306 at [25]). The Crown also submitted that whilst supplying drugs on an ongoing basis does not have an inherent or necessary characteristic of planning or organisation, where the activity is more than what might be expected of the lowest level of offending of this kind a sentencing court may take planning and organisation into account as an aggravating factor (see Prculovski v R [2010] NSWCCA 274 at [43]).

9. [39]

   The applicant submitted that while the supply of two of the prohibited drugs, namely, the fentanyl patch and the buprenorphine strip, were two of the three prohibited drugs supplied on an ongoing basis, that did not allow for a finding that the applicant was well involved in the drug milieu, since the fentanyl patch was obtained by the applicant on prescription and the buprenorphine strip is an opioid used to treat opioid addiction. Although the applicant’s counsel accepted that there was no direct evidence that the applicant had access to that drug via his own treatment program for opioid treatment, she submitted that was, at least, an available inference and, on that basis, the ongoing supply of all three prohibited drugs is fairly characterised as conduct akin to “street dealing”. On that analysis, counsel relied upon Fahs v R [2007] NSWCCA 26 where, in relation to the application of s 21A(2)(n) to a charge of ongoing supply contrary to s 25A(1) of the Drug Misuse and Trafficking Act, Howie J, with whom Simpson and Buddin JJ agreed, observed as follows:

10. [40]

    In my view, even if it were open to his Honour to find that the ongoing supply of drugs of different types and different quantities was in some respects more elevated than that of a normal street dealer who purchases drugs from various sources to feed his or her own addiction, it does not follow that the applicant’s offending attracts the statutory aggravating factor of being a planned and organised criminal activity. I do not consider that finding was open on the evidence.

11. [41]

    Having found error in respect of the sentencing judge’s approach to sentence on the first count of ongoing supply, it is necessary for this Court to exercise the sentencing discretion afresh in accordance with Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601.

Evidence on re-sentence

1. [42]

   The applicant relied on an affidavit affirmed on 6 April 2018 on re-sentence in which he confirms that he has been “drug free” for two years having not used illicit drugs of any kind since entering custody. He says that with the assistance of Justice Health, he has progressively been able to withdraw from the methadone program and has not had the need for that drug for over a year.

2. [43]

   On self-assessment, he says his daily dose of anti-depressant medication has assisted in stabilising his mood and enhancing clarity in his thinking. He has recently completed two rehabilitation programs, being the EQUIPS addiction program which he completed on 18 January 2018 and the EQUIPS foundation program which he completed on 22 March 2018. Again on self-assessment, he says he believes the programs have reinforced the strategies he has been applying to date to remain drug free and the strategies he intends to employ in the future.

3. [44]

   He says his partner of three years remains supportive of him and that he has recently reconnected with a teenage son with whom he had lost contact many years ago. His son is currently in foster care but it is the applicant’s intention to make application for his son to be instated to his custody on his release from prison with the support of his partner and friends. He confirms that he has full-time work available to him upon his release which he welcomes as an additional means of staying motivated to remain drug free.

4. [45]

   I would propose the following orders:

5. [46]

   McCALLUM J: I agree with Fullerton J.