Burgess v R

1. [1]

   HOEBEN CJ at CL:

Offences and sentence

1. [2]

   On 15 September 2017, her Honour Judge Wass SC sentenced the applicant to an aggregate term of imprisonment of 6½ years with a non-parole period of 4 years. The indicative sentence nominated for Count 1 was 5½ years with a non-parole period of 3½ years and for Count 2, a sentence of 3 years with a non-parole period of 2 years.

Factual background

1. [3]

   On 13 May 2013 police pulled over and searched the applicant’s car. Before this there had been an exchange of text messages between the applicant and another man concerning the supply of drugs.

2. [4]

   When police searched the car they found:

3. [5]

   Police also found measuring spoons, three mobile phones and resealable plastic bags in the car. The applicant’s home was later searched. There police found digital scales, three more mobile phones and ice pipes.

Application for leave to appeal

1. [6]

   The applicant relies upon the following grounds of appeal:

The applicant’s subjective case

1. [7]

   The applicant was born in June 1963 and was 49 at the date of offending and 54 when sentenced. In 2006, he was sentenced for offences of supplying a prohibited drug and supplying a prohibited drug in a commercial quantity. He was sentenced by this Court on a Crown appeal to a total term of imprisonment of 8 years with a non-parole period of 5 years and 6 months, to date from 29 April 2005 (Regina v Burgess [2006] NSWCCA 319). The offences before her Honour occurred two weeks after the expiration of that sentence.

2. [8]

   In recent times the applicant had commenced a relationship with Leanne Bunting. By the date of sentence, the applicant was living with Ms Bunting and her children. The family was described by the applicant’s psychologist (Ms Helen Baker) as “a very functional family”. Ms Bunting gave evidence in the sentence proceedings. She impressed her Honour as being not only honest and reliable but also “a thoughtful and intelligent woman with great compassion and support for the offender”.

3. [9]

   The applicant had suffered a number of traumatic incidents in his life, which were found to have precipitated his abuse of drugs. Ms Baker made a diagnosis that the applicant was suffering from the following conditions:

4. [10]

   Tragic events in the applicant’s life included sexual assault trauma between the ages of 10 and 12; watching his father gradually die as a result of emphysema brought on by cigarette smoking; the failure of his business as a butcher and bankruptcy because of the dishonesty of a trusted financial adviser; suffering a heart attack at the age of 38 which led him to believe that he would die early as his father and brother had; and inadvertently causing the death of a young child in a motor vehicle accident, as a result of which the child’s mother committed suicide.

History of proceedings following conviction

1. [11]

   The possibility of deferring the sentence proceedings under s 11 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act) was first raised by her Honour on 2 September 2016 at the close of evidence. Her Honour said that at that time she assessed the applicant’s prospects of rehabilitation as “very low”. However, her Honour observed that the applicant had never had the opportunity to complete any long term residential rehabilitation program. Her Honour asked the applicant’s counsel if the applicant wanted the opportunity to attend such a facility before going into custody. Counsel accepted this offer.

2. [12]

   On 2 December 2016 her Honour made an order deferring the sentence under s 11 of the Sentencing Act. However, after this order was made the applicant developed health problems which prevented him from completing such long term rehabilitation.

3. [13]

   The detail of his attempts to do so are set out in her Honour’s sentence judgment as follows:

4. [14]

   It was accepted by her Honour that the applicant had no practical choice but to leave the program in March 2017 since the in-house General Practitioner was unavailable for two weeks.

5. [15]

   On 8 June 2017, the applicant returned to Odyssey House and again ill health prevented him from continuing in the program. He was admitted to Campbelltown Hospital with chest pains as he had not been given his blood thinners while at Odyssey House. It was submitted on behalf of the applicant, and accepted by her Honour, that if his ill health had not intervened it was likely that he would have still been an inmate of that facility on 15 September 2017, i.e. the day on which sentence was imposed. Her Honour noted that it was not long after his discharge from Odyssey House that he received a stent and required a coronary angiogram graft study and percutaneous coronary intervention. The insertion of the stent was successful but the attendant angioplasty was difficult, and the outcome has not been entirely satisfactory.

The sentence judgment

1. [16]

   Based on the quantity of drugs involved, the way in which they were located, and the amount of money found, her Honour found that the applicant’s role was that of a supplier at the mid to low level range but was also a user of significant quantities of methamphetamine. Her Honour found that because of the low level of sophistication and the level of planning, the objective seriousness of the offending fell slightly below the mid-range of seriousness for offences of this kind.

2. [17]

   The applicant’s partner, Ms Bunting, gave evidence at the time of the deferral of the sentence and later in the proceedings. She had always been aware that the applicant had substance abuse issues and had tried to help him with his drug addiction. She was not a drug user. During the period of the referral, Ms Bunting had noted that the applicant increasingly accepted being in the family environment and was increasingly settled. They were looking to the future to see what could be done to provide help for him.

3. [18]

   Ms Bunting said that the applicant had been seeing a psychologist since December 2013 and those attendances had played a role in his improvement. Her Honour accepted that the applicant was finally getting the sort of help which he was looking for and perhaps for the first time in his life, appreciated that he needed help.

4. [19]

   Ms Bunting said that in the past if matters of difficulty arose, the applicant would resort to drugs as a way of coping. Ms Bunting said that while the addiction has not gone away, the applicant for the first time to her observation was at a point where he could meaningfully engage in rehabilitation. Ms Bunting said that the applicant had made useful progress in dealing with his “past torments” while seeing the psychologist.

5. [20]

   Ms Bunting said that the applicant had been seeing the psychologist from as early as December 2014 and that he was still using drugs daily in April 2014 when she moved in with him until his first admission to rehabilitation in February 2015. Her Honour accepted Ms Bunting’s evidence that to her observation the applicant realised for the first time that unless he resolved his underlying issues, he was going to be held back in his drug rehabilitation. Her Honour accepted that trauma treatment, mental health counselling and drug abuse issues were complex algorithms to address and would not always be immediately successful or have immediate results. Her Honour further accepted that the applicant at the time his sentence was deferred, was more motivated to engage in rehabilitation than at any other time and more motivated to be drug free. The applicant compared his position some 10 years before when he was sentenced for his previous drug supply offence and said that he was now more motivated than he had been.

6. [21]

   As a result of Ms Bunting’s evidence her Honour accepted that the applicant had continued to battle with his drug addiction and was making some progress. Her Honour noted that the applicant was honest with his rehabilitation counsellor in telling of his intermittent drug use during the adjournment period. The applicant had maintained contact with Professor Saunders, an expert on addiction issues, and had ongoing support from him and his staff. Even so, the applicant did continue to use drugs from time to time during that period.

7. [22]

   Ms Bunting’s evidence confirmed that she believed that his drug use had further reduced but she did not know if he had stopped completely. Ms Bunting said that she was not always present, and her Honour noted the applicant’s admission to his treating doctor of his continued intermittent use of drugs, relapsing on at least two occasions in the period of the adjournment. Her Honour accepted that notwithstanding this relapse, the applicant had taken meaningful steps towards dealing with his addiction.

8. [23]

   Her Honour took into account that there had been a significant deterioration in the applicant’s cardiac health which would need to be attended to while he was in custody and that because of this, he was likely to serve his sentence in more adverse circumstances than is the norm. Her Honour took into account the matters set out in the psychological reports and in particular the early abuse and trauma suffered by the applicant. Her Honour had particular regard to the car accident in which the applicant was involved and the tragic resulting matters. Her Honour took into account that the offences for which the applicant was sentenced were in respect of conduct dating back to August 2013 and that to some extent the applicant was not the same person. Her Honour noted that since that time, the applicant had achieved a stable home environment, demonstrated some progress in his drug rehabilitation, and had suffered a deterioration in his physical health.

9. [24]

   Her Honour accepted that other than the two admitted relapses into drug use, the applicant had been complying with his bail conditions which from time to time had included a curfew condition. Her Honour noted that the applicant had had restrictions on his liberty for more than four years, had been reporting to police since August 2013 and had not been charged in that time with any further offences.

10. [25]

    Her Honour took into account that these offences took place only weeks after his parole had expired in respect of similar matters for which he was sentenced in 2006. Her Honour also took into account the applicant’s intermittent use of ice, despite being on notice of the need for him to establish positive prospects of rehabilitation.

11. [26]

    Against that consideration, her Honour took into account the applicant’s honesty concerning his ongoing drug use. Her Honour’s conclusion was that the applicant’s prospects of rehabilitation were not hopeless or poor but “must be guarded” keeping in mind his genuine attempts at rehabilitation but also his inability to complete a residential program. Her Honour noted that the applicant was convicted after trial and accordingly was not entitled to any discount on his sentence. The applicant had a criminal record which disentitled him to any leniency which would be afforded to him if he were a first offender. Most particularly, the applicant had in the past been sentenced for a very similar offence and his history was consistent with someone who had long-standing substance abuse issues.

12. [27]

    Her Honour took into account that in relation to this most recent offending, he was supplying drugs as a commercial venture but was also engaging in supply to support his own drug habit.

13. [28]

    Her Honour was concerned that the applicant had continued to deny his involvement in these offences. Her Honour noted that in 2005, after being sentenced in respect of similar matters, the applicant had expressed his remorse for his offending. Despite this, he had continued to re-offend and had continued to use methylamphetamine while on parole after he was released for his 2005 offending. Her Honour considered that this gave some insight into the applicant’s lack of regard for ongoing offending in drug matters.

14. [29]

    Her Honour further noted that little had been done between 2005 and the present time by the applicant to address his underlying issues, such as the motor vehicle accident and sexual assault which were put forward by him as explaining his resort to drug use.

15. [30]

    Her Honour noted that in 2006 the applicant had expressed his concern at being removed from his children and his high level of guilt about his conduct and the effects on his then family. However, that concern did not lead to him modifying his behaviour notwithstanding those insights and his subsequent imprisonment.

16. [31]

    Her Honour further noted that as recently as 2016 the applicant had shown little insight into his offending, telling his psychologist at that time that he did not see himself as an addict and that he could stop whenever he liked. Her Honour rejected that evidence and concluded:

17. [32]

    Her Honour concluded that his prospects of rehabilitation were closely aligned to his drug rehabilitation and confirmed that those prospects must remain guarded, taking into account that the applicant’s drug use had been occurring for such a long time and was so pervasive.

18. [33]

    Her Honour further noted:

19. [34]

    In relation to totality, her Honour said:

Ground 1 – The sentence imposed was manifestly excessive.

1. [35]

   The applicant submitted that although it was open to her Honour to assess the offending giving rise to Count 1 as “slightly below the mid range”, such a finding could not be made when considering Count 2. The applicant submitted that the amount of drugs involved, i.e. 18.5g was more towards the lower end of seriousness than the mid range. The applicant further submitted that whereas the indicative sentences themselves might be said to be within range (albeit at the higher end) her Honour erred in failing to give any real reduction for the matters referred to in Grounds 2, 3 and 4 of the appeal.

Consideration

1. [36]

   The principles relating to a ground of manifest excess were recently summarised in Ngati v R [2018] NSWCCA 32 and Kresovic v R [2018] NSWCCA 37 as follows:

2. [37]

   The applicant accepted the characterisation of the objective seriousness of Count 1 at “slightly below the mid range”. His criticism was directed to that assessment applying to Count 2, having regard to the lesser amount of drugs involved. Significantly, no submission was made that her Honour erred in so doing. The burden of the submission appears to be that having regard to the lesser objective seriousness of Count 2, the notional accumulation of one year in the aggregate sentence was not justified.

3. [38]

   In the particular circumstances of this case, it was appropriate for her Honour to make the overall finding that “the offending” fell “slightly below the mid range” for the following reasons:

4. [39]

   It has been acknowledged by this Court and the High Court that questions of accumulation involve the exercise of discretion with which this Court would be slow to interfere (JT v R [2012] NSWCCA 133 at [7]; Chaouk v R [2017] NSWCCA 295 at [63]; Nguyen v The Queen [2016] HCA 17; 256 CLR 656 at [37]).

5. [40]

   Further, where an aggregate sentence is imposed, the appeal lies from the aggregate sentence. Another consequence of imposing an aggregate sentence is that questions of accumulation cannot be analysed in the same way as they can with traditional sentencing structures (Tuite v R [2018] NSWCCA 175 at [91]). Accordingly, the only relevant question is whether the sentence reflects the totality of the criminality. Since the extent of the notional accumulation does not dictate a conclusion that the aggregate sentence is unreasonable or plainly unjust, this ground of appeal has not been made out.

Ground 2 – Her Honour erred in failing to give effect properly (or at all) to her finding of the existence of special circumstances so as to allow for a variation from the statutory ratio.

1. [41]

   The applicant submitted that for the aggregate head sentence of 6½ years the statutory ratio would have yielded a non-parole period of 4 years and 10½ months. When that is compared with the 4½ years non-parole period specified, such a small allowance of 4½ months does no more than pay lip service to the concept of varying the statutory ratio to bring about a longer period under supervision for treatment purposes. The applicant submitted that this was inconsistent with her Honour’s finding of a need on the part of the applicant for protracted treatment for his drug addiction.

Consideration

1. [42]

   The applicant’s submission is based on a misstatement of the aggregate sentence imposed by her Honour. The aggregate sentence was imprisonment with a non-parole period of 4 years and a balance of term of 2½ years. The ratio of the non-parole period to the head sentence thus created is 61.5 per cent. This is a significant reduction from the statutory ratio and adequately fulfils the need for additional supervision identified by her Honour.

2. [43]

   This was not a case where a finding of special circumstances was made but the statutory ratio was either not adjusted or adjusted very modestly. No error has been identified. This ground of appeal has not been made out.

Ground 3 – Her Honour erred in giving undue weight to the need for specific deterrence.

1. [44]

   The applicant submitted that when considering the applicability of specific deterrence, her Honour failed to have regard to the very real steps taken by the applicant towards his rehabilitation and that his exit from treatment was not of his own volition. The applicant submitted that his “dogged persistence” in attempting rehabilitation, despite some backsliding, demonstrated an awareness of the need not to further offend and a lesser need for specific deterrence.

Consideration

1. [45]

   In Bugmy v The Queen [2013] HCA 37; 249 CLR 571 the plurality (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) said at [24]:

2. [46]

   A ground framed in terms of weight, such as this, is unlikely to establish House v The King [1936] HCA 40; 55 CLR 499 error. That this ground is more appropriately a particular of manifest excess than a ground capable of disclosing House v The King error appears to be acknowledged by the applicant in his submissions at [27].

3. [47]

   In any event, there was good reason for her Honour to place significant emphasis on specific deterrence. This arose from her Honour’s finding that the applicant’s prospects of rehabilitation (in terms of risk of recidivism) were “closely aligned to his drug rehabilitation” (Sentence judgment at 15). Her Honour found that his prospects of rehabilitation were no better than “guarded”. It followed, and her Honour found, that his prospects of rehabilitation (in terms of the risk of recidivism) were also “guarded”. These findings were supported by the evidence and well open to her Honour.

4. [48]

   Quite apart from the applicant’s drug problem, there were other reasons for placing considerable emphasis on specific deterrence, which are as follows:

5. [49]

   The submission that the applicant had taken “very real steps” towards rehabilitation ignores the fact that her Honour explicitly took all those matters into account. On the question of his rehabilitation from drug use, her Honour’s finding in that regard fed directly into her Honour’s finding in relation to his risk of re-offending, i.e. finding his prospects were “guarded” at best.

6. [50]

   This ground of appeal has not been made out.

Ground 4 – Her Honour erred in failing to give effect properly (or at all) to her finding that the applicant by virtue of his physical and mental condition was a less suitable candidate for general deterrence.

1. [51]

   The applicant submitted that her Honour had failed to properly take into account the principle that in the case of an offender suffering from a mental disorder or abnormality, general deterrence is a factor which should be given very little weight because such an offender is not an appropriate medium for making an example to others. The applicant submitted that this principle was not reflected to any degree in the sentence.

Consideration

1. [52]

   Her Honour said that she took into account the applicant’s significant mental health problems and physical problems as revealed by the reports. Her Honour accepted that his amphetamine use disorder and his PTSD both contributed in a material way to his offending and to that extent, made him a less suitable candidate for general deterrence than would otherwise be the case (Sentence judgment at 16).

2. [53]

   Those findings make it clear that her Honour took the applicant’s mental and physical disabilities into account. It also illustrates, however, that there was a limit to the extent to which the applicant’s “mental condition” would moderate the ultimate sentence by lessening the weight to be placed on general deterrence. This is because her Honour found that the applicant’s mental condition led to his drug use which directly caused the offending. In other words, the applicant’s mental health conditions pulled in different directions. On the one hand they suggested less weight should be placed on general deterrence (as her Honour acknowledged). On the other hand her Honour found that in the applicant’s case they rendered specific deterrence more significant.

3. [54]

   As this Court made clear in Aslan v R [2014] NSWCCA 114 (approved in Biddle v R [2017] NSWCCA 128), mental illness does not automatically lead to a reduced sentence. Mental illness can pull in different directions as it clearly did in this case. General deterrence did not cease to operate as a relevant sentencing principle simply because there may have been reasons to place less weight upon it.

4. [55]

   Ultimately, the weight to be placed on the applicant’s mental and physical illnesses and the way in which they operated upon the determination of the total term and the non-parole period were matters within her Honour’s sentencing discretion. It cannot be suggested that her Honour ignored those matters or failed to take them into account. This ground of appeal has not been made out.

5. [56]

   Accordingly, the orders which I propose are:

   1. (1)

      Leave to appeal be granted.

   2. (2)

      The appeal be dismissed.

6. [57]

   WRIGHT J: I agree with Hoeben CJ at CL.

7. [58]

   FAGAN J: I agree with Hoeben CJ at CL. I would add only the following with respect to ground 3.

8. [59]

   Regarding specific deterrence the learned sentencing judge said this:

9. [60]

   The facts found by her Honour and recited by Chief Judge show that the applicant’s personal misuse of illegal drugs has been a significant proximate cause of his commission of drug supply offences. Psychological disturbances have in turn contributed to his drug use. His failure to take control of his own behaviour and bring it within the law, over many years, is notable.

10. [61]

    At 38 years of age in 2005 he supplied a commercial quantity of methyl amphetamine and an amount of cannabis, for which he was sentenced to 8 years imprisonment with a non-parole period of 5 years and 6 months. In passing that sentence this Court referred to “the applicant’s mentally disordered state that resulted in his abuse of drugs”: R v Burgess [2006] NSWCCA 319 at [51] (Howie J, Sully and M Adams JJ agreeing). In the same paragraph Howie J noted:

11. [62]

    Upon release after 5 years and 6 months of that sentence the applicant resumed his use of illegal drugs during his parole. In May 2013, within about two weeks of expiry of the parole period, he committed the present offences (at age 49). After release on bail on 1 August 2013 the applicant continued to use illegal drugs up to his trial in July 2016. He was using methyl amphetamine daily during 2014 and early 2015. Following brief admissions to rehabilitation facilities in February and March 2015 he continued to use the drug. Even after his trial and conviction, during adjournment of sentence proceedings to permit assisted rehabilitation, the applicant intermittently used methyl amphetamine when ill-health prevented him from being in a residential program.

12. [63]

    There comes a point at which a sentencing judge must give significant weight to the need for specific deterrence of a repeat offender who, in mid-life, has not of his own volition corrected the drug addiction which evidently drives his drug supply offences. Making all due allowance for the applicant’s psychological disturbances, the point was reached in his case where specific deterrence had to be factored into penalty. He had failed to take responsibility and control despite the powerful incentive of previous engagement with law enforcement and despite many opportunities, over a substantial chapter of his adult life, to seek rehabilitation and to follow through with it. There was no error in her Honour’s approach in the paragraph of the remarks quoted above. Elsewhere her Honour paid full regard to the offsetting considerations of the applicant’s psychological problems and the support he derived from his partner during their five year relationship up to the date when sentence was passed.