Meis v R

SIMPSON AJA: On 19 October 2020 in the District Court the applicant entered pleas of guilty to two counts on an indictment, each of which alleged an offence against the Drug Misuse and Trafficking Act 1985 (NSW) (“DMT Act”). The first count was of an offence against s 24 of the DMT Act, of manufacturing a prohibited drug (methylamphetamine). The second count was of an offence against s 25(1), of supplying the same prohibited drug. A maximum penalty of imprisonment for 15 years is prescribed in respect of each offence. In addition, pursuant to s 166 of the Criminal Procedure Act 1986 (NSW), the applicant admitted his guilt of two offences against s 24A(1)(a) of the DMT Act, of possessing a precursor intended for use in the manufacture or production of a prohibited drug. The maximum penalty applicable to offences against s 24A(1) is imprisonment for 10 years. However, by s 168(3) of the Criminal Procedure Act, when sentencing under s 166, the District Court is subject to the jurisdictional limit of the Local Court, being a maximum, in respect of each offence, of imprisonment for 2 years: Criminal Procedure Act, ss 267, 268.

Pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Procedure Act”) the sentencing judge imposed an aggregate sentence of imprisonment for 3 years and 3 months to commence on the day it was imposed (12 February 2021) and specified a non-parole period of 1 year and 8 months, which will expire on 11 October 2022. As required by s 53A(2), his Honour nominated the sentences he would, if sentencing separately for the offences, have imposed. The nominated sentence in respect of each of the counts on the indictment (imprisonment for, respectively, 2 years and 2 years and 7 months) represented, in recognition of the applicant’s plea of guilty, a reduction of 25% on the sentence that otherwise would have been nominated; that assessment was made in accordance with the provisions of Pt 3, Div 1A of the Sentencing Procedure Act. The nominated sentence in respect of each of the s 166 offences (imprisonment for 11 months) represented a reduction of 5%.

The applicant seeks leave to appeal against the sentence imposed. He has identified two proposed grounds of appeal, each of which is directed to the manner in which the sentencing judge treated evidence of a prior conviction.

The relevant facts were put before the sentencing judge by way of an agreed statement.

The manufacturing offence was committed over a period commencing on 1 November 2017 and ending on 31 October 2018. The supply offence was committed on 31 October 2018. Each offence of possession of a precursor was committed between 30 September 2017 and 31 October 2018.

From November 2017 until October 2018 the applicant, in conjunction with two others (Ross Hitchen and Craig Bloom) was operating a clandestine laboratory out of the garage of his home in Glen Alpine, for the purpose of the manufacture of methylamphetamine. It is unnecessary to go into the detail of the roles played by the participants in the enterprise. At sentencing the Crown accepted that only a small quantity (1 gram) of methylamphetamine had been manufactured. These facts gave rise to the first count on the indictment.

On 31 October 2018 the applicant agreed to supply a quantity of methylamphetamine to a person called “Dianne 2” and travelled to an agreed location to complete the arrangement. The applicant was under surveillance and was arrested. He was in possession of 24.58 grams of methylamphetamine. These facts gave rise to the second count on the indictment.

At about the same time police executed a search warrant at the applicant’s home, where they located the laboratory and manufacturing equipment in the garage. Also located were 4 kilograms of iodine and 10 kilograms of hypophosphorous acid, each of which is a precursor for use in the manufacture of methylamphetamine. Possession of these substances was the foundation for the s 166 offences.

Although the sentencing judge had the benefit of a Sentencing Assessment Report, and a letter from a psychologist who had been treating the applicant, the evidence of the applicant’s personal circumstances emerged predominantly from his own oral evidence.

The applicant was born in Argentina in 1974 and was 43 years of age at the time of the offending. He presented a strong subjective case which, as I have come to the view that error has been shown and it will be necessary to re-exercise the sentencing discretion, it is necessary to outline.

The family migrated to Australia when the applicant was four or five years of age, and settled in Sydney. The applicant did not settle well into school and was expelled for alcohol consumption. He was thought to have a hyperactivity disorder but his father refused to allow him to be prescribed medication.

In 2006 the applicant was involved in a motor bike accident in which he suffered a serious back injury, as a result of which he has ongoing pain.

In 2008 a close friend, who was the godfather of the applicant’s daughter, committed suicide; this precipitated the applicant into drug use. He undertook a drug rehabilitation programme and was able, for a time, to stay off drugs. In 2010 his mother-in-law was diagnosed with cancer and died shortly after. In 2014 his father committed suicide. The applicant returned to drug use (methylamphetamine). In August 2015 his mother attempted suicide by taking an overdose of prescription medication. On that occasion she was saved, but a second attempt, in December, was successful.

The applicant was then a regular user of illicit drugs (marijuana and amphetamines). Early in 2017 he made an attempt on his own life.

In these circumstances the applicant came to be involved in the methylamphetamine manufacturing enterprise.

On a date not disclosed in the evidence, but, it seems, prior to his arrest, the applicant was referred for treatment to a psychologist, Mr Harold Hanlon, suffering from depression and (apparently) post traumatic stress disorder.

In 2008 the applicant was convicted of an offence of supplying a prohibited drug (in 2007), in respect of which a two year good behaviour bond under s 9 (as it then stood) of the Sentencing Procedure Act was imposed. No further details of this offence have been provided.

Thereafter, until he entered the pleas of guilty to the charges giving rise to the current proceedings, the applicant was not convicted of any offence.

The sentencing judge assessed the objective seriousness of the manufacturing offence as “below mid range, although not in the lower range”, and of the supply offence as “just below the mid range”. He considered the possession offences to be a “relatively serious form of an offence under s 24A” and “within the mid range”.

With respect to the applicant’s previous conviction, his Honour said:

His Honour did not elaborate on the manner in which he took the prior conviction into account, nor the weight he attributed to it.

His Honour found that the applicant had expressed “genuine remorse for his offending” and regarded his prospects of rehabilitation as “reasonable”, although dependent on continued psychological assistance and abstinence from drugs.

The proposed grounds of appeal are pleaded as follows:

By s 21A(1)(a), (b) and (c), respectively, of the Sentencing Procedure Act a court, in determining the appropriate sentence for an offence, is required to take into account such aggravating factors itemised in subs (2) as are known to the Court, such mitigating factors itemised in subs (3) as are known to the Court, and any other objective or subjective factor that affects the relative seriousness of the offence. A suffix to subs (1) emphasises that the matters itemised in subss (2) and (3) are “in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law.” By subs (4) the court is not to have regard to any aggravating or mitigating factor in sentencing “if it would be contrary to any Act or rule of law to do so”. These latter provisions have been taken to mean that common law sentencing principles are unaffected by the specification of aggravating and mitigating factors: R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131 at [56]-[57], [103] and [118]. The effect of subs (4) is to ensure that a factor is not taken into account in a way inconsistent with general sentencing principles and policy; it was the intention of Parliament to replicate the common law: R v Wickham [2004] NSWCA 193 per Howie J (with whom Bell and Hislop JJ agreed) (at [23]); see also Johnson v R [2004] NSWCCA 76 at [33].

Subsection (2) of s 21A contains a long list of aggravating factors that are required by subs (1)(a) to be taken into account. Subsection 3 contains an equally long list of mitigating factors that are required by subs (1)(b) to be taken into account. In some instances a factor that appears in subs (3) as a mitigating factor may be seen as the obverse, or counterpart, of a factor that appears in subs (2) as an aggravating factor. For example, par (g) of subs (2) identifies as an aggravating factor that:

and paragraph (n) of subs (2) identifies as an aggravating factor that:

Relevantly for present purposes, par (d) of subs (2) identifies as an aggravating factor that:

By subs (5) of s 21A, the fact that any aggravating or mitigating factor is relevant and known to the court does not require the court to increase or reduce the sentence imposed.

It is pertinent here to observe that, before a factor or circumstance may, for the purposes of sentencing, be taken into account adversely to an offender (that is, as an aggravating factor) it must be proved beyond reasonable doubt; by contrast, a factor to be taken into account favourably to an offender (that is, as a mitigating factor), need only be proved on the balance of probabilities: Olbrich v The Queen (1999) 199 CLR 270; [1999] HCA 54 at [27].

In this case, there was no issue that the applicant had, in 2008, been convicted of an offence of drug supply. There was, however, a live issue as to whether that conviction should be treated as an aggravating factor under s 21A(2)(d) or the applicant was entitled to be treated, pursuant to s 21A(3)(e), as an offender who had no (or no significant) record of previous convictions.

Both parties addressed the issue in written submissions provided to the sentencing judge. On behalf of the applicant it was submitted:

The Crown submitted:

The Crown’s submission was (at least) unfortunately worded. It may have been taken to suggest that a prior conviction is relevant to the assessment of the objective gravity of the offence for which sentence is to be imposed. That is incorrect; in Shankley v R [2003] NSWCA 253, Howie J pointed out (at [31]) that

The sentencing judge was not misled; he expressly noted that the prior offence was not relevant to the objective seriousness of the offences for which the applicant stood for sentence. No oral submissions were directed by either party to the use that could properly be made of the applicant’s prior conviction.

Application of s 21A of the Sentencing Procedure Act is not always straight- forward. In many cases its application will require findings of fact which may be contested. Paragraphs (g) of subs (2) and (a) of subs (3), to which reference has already been made, provide an example. Determination whether subs (2)(g) or subs (3)(a) is applicable will, in some cases, depend upon an assessment of whether any injury, emotional harm, loss or damage has been caused by the offence and, if so, an evaluation of whether that injury, emotional harm, loss or damage is “substantial”. The assessment will determine whether “injury, emotional harm, loss or damage” is to be treated as an aggravating or a mitigating factor.

A number of other examples may be given. Paragraphs (b) and (c) of subs (2) provide, respectively, that the actual or threatened use of violence, and the actual or threatened use of a weapon, constitute aggravating factors. Paragraph (f) of subs (2) declares gratuitous cruelty involved in the offence to be an aggravating factor. Each of these requires, not only a finding of fact about the circumstances of the offence, but also evaluation of the weight to be attributed to that fact. The same may be said of various of the circumstances that constitute mitigating factors – for example, pars (c) (provocation by the victim), (d) (that the offender was acting under duress) and (g) (that the offender is unlikely to reoffend) of subs (3) all require findings of fact followed by an evaluation (if the circumstance is established) of the weight to be attributed to the factor. Once the necessary factual findings or evaluations have been made it will be necessary for the sentencing judge to determine the weight (if any) to be given, in the synthesis of the sentencing considerations, to the factor.

A particular difficulty in this case arises out of the requirement, in s 21A (2)(d), that the sentencing judge take into account an offender’s “record of previous convictions”. Unlike the other examples I have given, par (e) of s 21A(3) is not a complete obverse of its counterpart in subs (2) of s 21A – par (d). Section 21A (2)(d) is absolute: subject to considerations identified below, a record of previous convictions is to be taken into account as an aggravating factor. Section 21A (3)(e), on the other hand, recognises that a record of previous convictions may exist but not be significant for sentencing purposes. A factual issue may therefore arise: is a record of previous convictions to be treated as significant? If it is, subs (2)(d) comes into play (although the degree of significance remains to be determined). If the previous conviction is not to be treated as significant, the offender is entitled to the benefit of his or her record as a mitigating factor (although, again, the weight to be attributed to it depends upon all of the circumstances).

The applicant’s argument may be seen as having two strands: the first calls for focus on the significance (or otherwise) of the previous conviction. If the previous conviction is found to be significant, the relevant provision is s 21A(2)(d) and no issue under s 21A(3)(e) arises. If the previous conviction is not assessed to have been significant, the relevant provision was s 21A(3)(e). The second strand of the argument arises only if the question is answered adversely to the offender (that the previous conviction is significant); the question then is what may properly be made of the previous conviction.

No attention was paid to the first question. The sentencing judge appears to have accepted that the applicable provision was s 21A(2)(d), an adoption of the Crown’s submission. Despite the issue having been raised in written submissions, the sentencing judge gave no reasons for preferring the Crown’s submission.

If it is accepted that the previous conviction was significant and therefore the sentencing judge was obliged, under s 21A(2)(d), to take it into account, a real question concerning the manner in which it was to be taken into account arises. That is because, as mentioned above, it could not be taken into account in a way that was inconsistent with common law principles.

The relevant principles were stated authoritatively by Mason CJ, Brennan, Dawson and Toohey JJ in Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 (“Veen (No 2)”) in the following way:

Accordingly, before the applicant’s previous conviction could properly be taken into account as an aggravating factor, it was necessary that the sentencing judge consider:

No consideration was given to these questions. In fairness to the sentencing judge, it should be pointed out that, while the applicant referred to s 21A in his submissions, neither party directed attention to Veen (No 2), and no argument was advanced as to the limitations inherent in the application of s 21A (2)(d).

Apart from the paragraph extracted above, the only reference in the remarks on sentence to the applicant’s previous conviction was in that part of the remarks where the sentencing judge concluded, favourably to the applicant, that his prospects of rehabilitation were “reasonable” (although dependent on continuing psychological support and abstinence from drug use).

The Crown argued in this Court that the fact of the applicant’s previous offending could be taken into account in a number of ways. It could not be overlooked that the offence was of the same kind as the offending for which he stood for sentence and the present offending could not therefore be seen as an aberration or isolated incident (see Frigiani v R [2007] NSWCA 81 at [25]). Further, the Crown pointed to the evidence that, in the interim, the applicant had been a regular user of illicit drugs in order to deal with stress and a fragile emotional state resulting from the circumstances of his life outlined above. The Crown also pointed out that the applicant was 33 years of age at the time of the original offending and a married father of two daughters and that the offending therefore could not be disregarded as attributable to youthful indiscretion.

All of that is correct. In the evidentiary matrix on which an appropriate sentence is to be determined the previous offending was a relevant circumstance. But that does not address Ground 1 of the proposed appeal. At the urging of the Crown the sentencing judge expressly took the previous offending into account as an aggravating factor. Notwithstanding subs (5) of s 21A, that is more than part of the factual matrix, it is a factor that bears directly on the sentencing decision in a manner that signifies a heavier rather than a lighter sentence.

Whether the applicant’s previous conviction was insignificant for the purposes of s 21A(3)(e) is a question to which there is no clear answer, a question about which reasonable minds might differ. It would not necessarily have been wrong for the sentencing judge to have accepted that it was significant, thus excluding s 21A(3)(e), and engaging s 21A(2)(d). Nor would it necessarily have been wrong for the sentencing judge to reach the opposite conclusion – that, in the circumstances of the case, the prior offending was insignificant, thus excluding s 21A(2)(d) and engaging as s 21A(3)(e). In those circumstances, an explanation of the reasoning to the conclusion was called for, particularly bearing in mind that a s 21A(2)(d) factor is to be proved beyond reasonable doubt.

I have concluded that the absence of a reasoned explanation for treating the previous offence as an aggravating factor is a sufficient basis for granting leave and upholding ground 2 of the appeal. I expressly do not uphold ground 1; it has not been shown that the use of the previous conviction was erroneous, merely that it was unexplained or inadequately explained. Since I would uphold ground 2, it will be necessary that this Court proceed to resentence, and to make its own assessment of the significance of the previous conviction: Kentwell v The Queen (2014) 252 CLR 101; [2014] HCA 37 at 35.

The first question is whether, for the purposes of s 21A(3)(e), it is shown (on the balance of probabilities) that the applicant does not have any significant record of previous convictions. No conviction for drug supply can be entirely discounted as insignificant. However, the applicant is entitled to the benefit of his record as a mitigating factor unless it can be said that the previous conviction is “not insignificant” for the specific purpose of determining the sentence to be imposed for the present offences.

Because the offence was of the same kind as the offences for which sentence was to be imposed, it is not possible to say that it had no significance. However, taking into account that it was committed 10 years earlier than the present offences and resulted in the imposition of a s 9 bond, its real significance was limited. It may be taken to deprive the applicant of a measure of leniency that may be afforded to a first offender, but (in the absence of any detail about the nature of the offence) it can be given no more weight than that. The significance of the conviction must be assessed in the context of its relevance for present sentencing purposes.

Even if the previous conviction is accepted to be “not insignificant”, and therefore within s 21A(2)(d), the use that may be made of it is limited by the principles stated in Veen (No 2). Was the present offending an uncharacteristic aberration? The manufacturing offence was committed over a lengthy period – one year. That is not suggestive of “uncharacteristic aberration” but it is the period over which the offending took place that establishes that, not the fact of a conviction in 2008. It might also be said, again on the basis of the period of time over which the manufacturing offence was committed, that the applicant manifested a continuing attitude of disobedience of the law. Again, it is the period over which the offending took place, not the fact of the prior conviction, that establishes that circumstance. Those circumstances are amply evidenced by the facts of the present offending without resort to the 2008 conviction. Similarly, the previous conviction does little to illuminate the moral culpability of the applicant in the present offences, it does not show a dangerous propensity or a need to impose condign punishment for the purposes of specific or general deterrence. I am therefore of the view that s 21A(2)(d), construed in accordance with the principles stated in Veen (No 2), is inapplicable.

Does that mean that s 21A(3)(e) necessarily comes into play? The answer to that is no; the applicant is not to be treated as having no (or no significant) record of previous convictions (in the sense that such a finding might point to a reduction in any sentence that otherwise would be imposed). Rather, his criminal history is to be treated as neutral.

No issue was taken with respect to the findings of fact and the assessments (for example, of objective seriousness of each of the offences) made by the sentencing judge, and I would adopt them. Even so, resentencing is not merely a matter of deducting a proportion of the sentence imposed that might be thought to represent that by which the sentence was affected by error. This Court is obliged to exercise an independent sentencing discretion.

For the purposes of resentencing, additional evidentiary material from each party was received. Some attention was paid to the conduct of the applicant while in custody, to which I will return.

The applicant provided affidavit evidence attesting to the conditions of his incarceration. He was taken into custody on 12 February 2021 and was immediately placed in an isolation cell for 14 days. In November 2021, following transfer to another prison, he was again placed in an isolation cell for 1 week, and again for 2 weeks in October. These appear to have been related to Covid pandemic precautions.

The applicant has worked in various positions while in custody. He has been assaulted by other inmates. His access to programmes and courses has been restricted, also due to the Covid pandemic. Family visits have been restricted due to Covid lockdowns and the location of the facility in which he is held.

The applicant recounted a sorry history of denial of access to medical treatment during his incarceration. He has seen a psychologist on one occasion, with little apparent benefit. He has sought, without success, to be admitted to a drug rehabilitation programme, being informed that places were limited, and that the claims of other inmates were of higher priority. He was advised by JusticeHealth that he suffers from high blood pressure and requires monitoring, but no monitoring has taken place. He continues to suffer from the back injury referred to above, for which, pre-incarceration, he was prescribed specific medication. A request for the same medication has been refused and alternative medication (non-prescription) has been ineffective. He suffers debilitating back pain.

All of this was contained in an affidavit sworn by the applicant on which he was not cross-examined. No issue was taken as to the content of the affidavit. Medical evidence adduced by the Crown does nothing to contradict the applicant’s account of the inadequacy of the medical care provided to him.

The applicant also disclosed his in-custody disciplinary history. In August 2021 officers at the correctional centre in which he was housed found, taped to the underside of the cell sink, a piece of wood, sharpened at one end (known in prison parlance as “shiv”). The applicant said that he was unaware of its presence in the cell and was not responsible for it. Not long after, he was found in possession of a piece of timber shaped like a baton. He admitted possession of this item, which he said he had received from a previous occupant of the cell and used for the purpose of holding open his window (which would not otherwise remain open) to allow for fresh air.

This rather lengthy account seems to me to confirm the sentencing judge’s assessment of the applicant’s prospect of rehabilitation. The disciplinary offences are not major (at least, if his denial of knowledge of the presence of the “shiv” is accepted, and no issue was taken about it) and he appears to be committed to obtaining assistance for his pre-incarceration drug dependence.

I am of the view that the conditions of applicant’s custody, including those caused by Covid restrictions and lockdowns, and the failure of any adequate response to his medical needs warrants some amelioration of the sentence that would otherwise be imposed.

Adopting the sentencing judge’s assessment of the objective seriousness of each offence, I propose that, pursuant to s 53A of the Sentencing Procedure Act, an aggregate sentence of imprisonment for 3 years be imposed, to commence on 12 February 2021 and expire on 11 February 2024, with a non-parole period of 1 year and 6 months to expire on 11 August 2022. I would indicate the following sentences in respect of the individual offences:

The orders I propose are therefore:

ROTHMAN J: I agree with Simpson AJA.

BUTTON J: I agree with Simpson AJA.