Hanley v R

1. [1]

   BASTEN JA: I agree with Bellew J.

2. [2]

   McCALLUM J: I agree with Bellew J. I wish only to add the following additional remarks concerning the sentence to be imposed.

3. [3]

   The sentencing judge acknowledged the strength of the applicant’s subjective case. In assessing the significance of those considerations, his Honour posed for himself the following questions:

4. [4]

   The judge’s resolution of that issue was firmly anchored in the constraint now recognised to reflect error:

5. [5]

   Freed of the erroneous constraint that the applicant had to fall within “exceptional circumstances” or else go to gaol, a non-custodial option of the kind referred to may have been within the proper exercise of the sentencing discretion. The decision in Parente stands for more than the removal of a formulaic constraint; it recognises the sentencing judge’s discretion not to impose a custodial sentence, even for serious drug offences, in an appropriate case.

6. [6]

   In the present case, the judge accepted (amongst other things) that the applicant’s significant rehabilitation would be “substantially interrupted” by a custodial sentence. That was a powerful consideration. The principles reiterated in Parente should be understood to permit sentencing judges to imagine alternative, more constructive penalties in such cases.

7. [7]

   However, the applicant now having served a substantial portion of his custodial sentence, it would not be appropriate to consider referral for an Intensive Correction Order at this stage, even if it were concluded that a sentence of no more than 2 years was appropriate, and the applicant (understandably) did not seek that course. In the circumstances, I agree with the orders proposed by Bellew J.

8. [8]

   BELLEW J: Joshua Lee Hanley (“the applicant”) seeks leave to appeal against sentences imposed by his Honour Judge McLennan SC in the District Court on 19 May 2017.

THE CHARGES

1. [9]

   The applicant appeared for sentence with two co-offenders, Jeffrey Robert Gilmour (“Gilmour”) and Vinh Anh Hoang (“Hoang”). He was initially arraigned on an indictment containing the following counts:

2. [10]

   The applicant entered the following pleas:

3. [11]

   The pleas of guilty to counts 2 and 5 were entered in circumstances where there was an issue as to whether the applicant could be found guilty of such counts in circumstances where he asserted that he had an honest, but mistaken, belief that the prohibited drug in question was in fact MDMA, as opposed to 25C-NBOMe. The significance of that issue stemmed from the substantial differences between the quantities prescribed by the Drug Misuse and Trafficking Act 1985 (NSW) for MDMA on the one hand, and 25C-NBOMe on the other. The sentencing judge treated the pleas entered by the applicant to counts 2 and 5 as pleas of not guilty, following which the applicant stood trial before his Honour, and without a jury.

4. [12]

   At the conclusion of the trial, his Honour found (inter alia) that in respect of each of counts 2 and 5 it was necessary for the Crown to prove, beyond reasonable doubt, that the applicant knew the nature of the drug which had been supplied. In respect of count 2, his Honour found that the applicant supplied 25C-NBOMe and that his belief that it was MDMA was both erroneous and irrelevant. He came to the same conclusion in respect of count 5. He then entered the following verdicts:

5. [13]

   It is noted that in respect of count 3, his Honour declined to act upon the plea of guilty which had been entered by the applicant, and regarded that plea as being an admission as to the state of his belief which was relevant only to count 1.

THE SENTENCE PROCEEDINGS

1. [14]

   When the proceedings came before the Court for sentence, the applicant asked his Honour to take into account two additional matters on a Form 1, namely:

2. [15]

   After the sentence proceedings had concluded, but before sentence was imposed, the sentencing judge raised the fact that the second of the offences on the Form 1, which alleged the supply of more than the commercial quantity of a prohibited drug, was more serious than the offending in either of counts 2 or 5 in respect of which the applicant had been found guilty. The Crown then withdrew that Form 1 and presented an ex-officio indictment against the applicant containing one count of knowingly taking part in the supply of a commercial quantity of MDMA. The applicant pleaded guilty to that count. He then signed a new Form 1 which contained only the offence in [14](i) above, and asked that it be taken into account on sentence.

THE SENTENCES IMPOSED UPON THE APPLICANT

1. [16]

   The sentencing judge gave the following indicative sentences:

2. [17]

   His Honour imposed an aggregate sentence of 6 years imprisonment, with a non-parole period of 3 years.

Gilmour

1. [18]

   Gilmour pleaded guilty to the following offences:

2. [19]

   In respect of count 2, Gilmour asked the sentencing judge to take into account the following matters on a Form 1:

3. [20]

   His Honour gave the following indicative sentences:

4. [21]

   His Honour imposed an aggregate sentence of 7 years imprisonment, with a non-parole period of 3 years and 6 months.

Hoang

1. [22]

   Hoang pleaded guilty to the following offences:

2. [23]

   In respect of count 1, Hoang asked the sentencing judge to take into account the following matters (Form 1A):

3. [24]

   In respect of count 2, Hoang asked the sentencing judge to take into account the following additional matter (Form 1B):

4. [25]

   His Honour gave the following indicative sentences:

5. [26]

   His Honour imposed an aggregate sentence of 8 years imprisonment, with a non-parole period of 4 years.

THE FACTS OF THE OFFENDING

1. [27]

   The sentencing judge found the facts of the offending to be as follows: [1]

THE OBJECTIVE SERIOUSNESS OF THE APPLICANT’S OFFENDING

1. [28]

   The sentencing judge noted [2] that an analysis of the objective seriousness of the applicant’s offending required focus upon (inter alia) his activities, their duration, his knowledge of the enterprise, his role, the quantities of drug involved and the extent to which the applicant’s conduct formed part of an organised criminal activity. Taking into account all of those factors, his Honour found that the applicant’s offending was “well within the mid-range of objective seriousness for the offence of the supply” [3] . In reaching that conclusion, his Honour had particular regard to [4] :

THE APPLICANT’S SUBJECTIVE CASE

1. [29]

   The documentary material tendered in the applicant’s case on sentence included:

2. [30]

   Mr Cicchini reported (inter alia) [5] that the applicant did not meet the diagnostic criteria for substance dependence, and did not demonstrate any of the common psychological indicators associated with vulnerability to criminality. He expressed the opinion that the applicant had a low risk of relapse in relation to substance abuse, and that his risk of recidivism was extremely low.

3. [31]

   Doctor Teoh reported [6] that the applicant’s prognosis was good, that he was slowly gaining insight into his problems, and that he had expressed remorse. He also reported [7] that the applicant was “progressing well with his counselling”. In the last of his reports [8] Dr Teoh expressed the opinion that the applicant had a good prognosis, good insight, and was motivated to remain well.

4. [32]

   The testimonials tendered on the applicant’s behalf spoke of (inter alia) his diligence in community activities, his management skills, and his trustworthiness. The pre-sentence report [9] noted that the applicant had developed insight into his offending behaviour, and had demonstrated a willingness to address identified social, anxiety and substance abuse issues.

5. [33]

   In terms of the applicant’s subjective case, the sentencing judge found that the applicant [10] :

6. [34]

   His Honour concluded [11] :

7. [35]

   His Honour also addressed the issue of the delay in the finalisation of the proceedings, which had resulted in the applicant being on bail for a period of 2 years and 8 months at the date of sentence [12] . He declined, in the exercise of his discretion, to reduce the applicant’s sentence on the basis of the period he had spent on bail. His Honour concluded that such period had allowed the applicant to demonstrate his rehabilitation, and that it was not appropriate in those circumstances to extend leniency on the grounds of delay.

The reasons of the sentencing judge

1. [36]

   Under the heading “Exceptional Circumstances” [13] his Honour said the following:

2. [37]

   Having considered the evidence, his Honour concluded that the applicant’s case fell completely within the general realm of cases, and that his subjective circumstances were not exceptional. His Honour said [14] :

3. [38]

   His Honour rejected [15] a submission made by senior counsel then appearing for the applicant that a sentence of 2 years or less should be imposed, and that consideration should then be given to the applicant’s eligibility for an intensive correction order. His Honour then imposed the aggregate sentence previously set out.

Submissions of the applicant

1. [39]

   It was submitted on behalf the applicant that his Honour erred in finding that where there is trafficking of illicit drugs, a custodial sentence must be imposed absent exceptional circumstances. It was submitted that as a consequence of that error, his Honour’s sentencing discretion had become inappropriately constrained. It was further submitted that his Honour’s consideration of the appropriate penalty was fettered, in that his Honour concluded that the range of appropriate sentences was limited by a need to find exceptional circumstances in order to determine that a sentence of 2 years or less was appropriate.

Submissions of the Crown

1. [40]

   Whilst submitting that the sentencing discretion had been exercised in conformity with the law as it stood at the time, the Crown accepted that his Honour’s approach, and in particular his conclusion that a custodial sentence was to be imposed absent exceptional circumstances, was at odds with the instinctive synthesis approach to sentencing. In these circumstances, the Crown conceded that error was established, and that this ground of appeal was made out.

Consideration

1. [41]

   In R v Clark [16] Hunt J (as his Honour then was) observed [17] :

2. [42]

   Subsequently in Robertson v R [18] Simpson JA, having referred to a number of authorities including Clark, said [19] :

3. [43]

   More recently, in Parente v R [20] this Court (Macfarlan JA, Hoeben CJ at CL, Leeming JA, Johnson J and R A Hulme J) said [21] :

4. [44]

   Having referred to a number of authorities, the Court continued [22] :

5. [45]

   The applicant was sentenced prior to this Court’s decision in Parente. However, it is clear that the sentencing judge erred in the way identified in that decision, namely in concluding that it is only in exceptional circumstances that a non-custodial sentence will be appropriate in cases of substantial trafficking in drugs. It follows that this ground of appeal has been made out and the Court must proceed to re-sentence in the fresh exercise of sentencing discretion. In this regard, it should be noted that the applicant also relied on a second ground of appeal, namely that he had been left with a justifiable sense of grievance in light of the sentences imposed upon Gilmour and Hoang. Because ground 1 has been made out, it is not necessary to specifically consider this second ground. However in re-sentencing the applicant, I have taken into account the submissions made on his behalf in respect of that ground, along with those made on behalf of the Crown.

Submissions of the applicant

1. [46]

   The written and oral submissions of senior counsel for the applicant emphasised the applicant’s strong subjective case. Senior counsel highlighted, in particular, the fact that the applicant:

2. [47]

   Senior counsel further submitted that the evidence before the sentencing judge had established that the applicant had, by the time of sentence, made substantial progress towards successful rehabilitation. He submitted that the affidavit of the applicant’s solicitor, which was read on the question of re-sentence supported the conclusion that such progress had continued after the applicant had been taken into custody.

3. [48]

   Senior counsel for the applicant also sought to draw a number of distinctions between the position of the applicant on the one hand, and that of Gilmour and Hoang on the other. He submitted that the most significant difference was that both Gilmour and Hoang had each been sentenced for offences of supplying not less than large commercial quantities of 25C-NBOMe, whereas the applicant was to be sentenced for two offences of supplying not less than the indictable quantity of that drug, and one offence of supplying not less than the commercial quantity. Senior counsel emphasised that as a consequence, the maximum penalties that each of the offenders faced were substantially different. He submitted that any sentence imposed upon the applicant was necessarily required to reflect these matters, all of which supported a conclusion that there should be a significant difference in the sentences imposed upon the applicant on the one hand, and each of his co-offenders on the other. He submitted that in all of the circumstances the period of time served by the applicant to date amounted to an appropriate non-parole period.

Submissions of the Crown

1. [49]

   The Crown submitted that this Court should conclude that no lesser sentence than that imposed by the sentencing judge was warranted in law. In support of this submission, the Crown relied upon a number of factors.

2. [50]

   Firstly, the Crown highlighted the objective seriousness of the applicant’s offending which, it was submitted, was reflected in its deliberateness, its duration, and the quantities of prohibited drug involved. It was submitted that such matters placed the applicant’s offending well within the mid-range of objective seriousness, as his Honour had found.

3. [51]

   The Crown further submitted that the applicant’s admitted role of “bookkeeper” for Gilmour reflected his intimate knowledge of the enterprise, and that his development of the drug dealing “app” demonstrated his level of commitment.

4. [52]

   The Crown submitted that in all of the circumstances, any sentence imposed should reflect the “relatively slight” variation between the role of the applicant and that of Gilmour. However, the Crown took no issue with the positive findings made by the sentencing judge concerning the various aspects of the applicant’s subjective case.

Consideration

1. [53]

   Although it might be regarded as unsophisticated in some respects, the enterprise of which the applicant was a part was nevertheless an organised one. As Gilmour’s bookkeeper, the applicant was an integral part of that enterprise, in association with which he had developed the drug dealing “app” to which the sentencing judge referred. As a consequence of the role he played, the applicant necessarily acquired an intimate knowledge of the enterprise as a whole. He had a vested interest in its success, given that he stood to benefit from it by the receipt of both drugs and cash. Further, and whilst not, of themselves, determinative of the objective seriousness of the offending, the amount of prohibited drug supplied on each occasion was substantial. In my view, the applicant’s offending falls within the mid-range of objective seriousness.

2. [54]

   Equally, the applicant has a strong subjective case. He pleaded guilty at the first available opportunity. He clearly used the period time on bail to commence and progress, his process of rehabilitation. His progress towards successful rehabilitation was well advanced by the time he was sentenced. Moreover, the affidavit of Mr Ziade establishes that the applicant has diligently continued his efforts towards rehabilitation by using his time in custody in a productive way. He was initially employed in a number of clerical capacities in custody, before obtaining approval to enrol in a distance education course with a view to attaining a Bachelor of Business Degree. He gained high distinctions in the two subjects which he completed. His inability to further pursue that course arose because the remaining subjects required completion by way of online study, an avenue which is not open to him whilst in custody. However, his efforts in that respect are consistent with a desire to enhance his employment opportunities upon release. Mr Ziade’s affidavit also establishes that since entering custody the applicant has involved himself in the work of various committees operating within the correctional services system, including a committee whose role is to liaise with management to address issues raised by inmates. He has also been a participant in a number of supervised community projects.

3. [55]

   In my view, the applicant’s prospects of rehabilitation are both positive and well advanced. His rehabilitation will be further assisted by an extended period of supervision on parole and for that reason I am satisfied that special circumstances are made out. I am also satisfied that he is genuinely remorseful for his actions.

4. [56]

   Although each of the applicants, Gilmour and Hoang was sentenced for offences arising from the one set of circumstances, the specific charges were different as between the applicant on the one hand, and each of Gilmour and Hoang on the other. As a consequence, the charges carried differing maximum penalties. This necessarily has some impact upon the application of the parity principle. In Dayment v R [23] R A Hulme J observed that in such a case the relevant comparison is more broad and impressionistic than might otherwise be the case.

5. [57]

   In his submissions before this Court, senior counsel for the applicant placed particular emphasis upon the respective positions of applicant and Gilmour. The comparative table which was helpfully incorporated into the written submissions of the Crown demonstrates that there is little separating their respective subjective cases. However, a distinction must be drawn between them in terms of their respective offending. Clearly, whilst the role played by the applicant was significant, he was at all material times Gilmour’s subordinate. It follows that any sentence imposed upon the applicant must be less than that imposed upon Gilmour to the degree necessary to reflect that difference.

ORDERS

1. [58]

   Taking all of these matters into account I propose the following orders:

   1. (1)

      Leave to appeal granted.

   2. (2)

      Appeal against sentence allowed.

   3. (3)

      Set aside the aggregate sentence imposed upon the applicant in the District Court.

   4. (4)

      In lieu thereof impose an aggregate sentence of 4 years imprisonment commencing on 12 May 2017 and expiring on 11 May 2021, with a non-parole period of 2 years, commencing on 12 May 2017 and expiring on 11 May 2019.

   5. (5)

      Pursuant to s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) indicate to the applicant, and record, that an aggregate sentence is imposed and that:

   6. (6)

      The earliest date on which the applicant is eligible for release on parole is 11 May 2019.