Ballard v R

1. [1]

   MACFARLAN JA: I agree with Fullerton J.

2. [2]

   FULLERTON J: On 27 May 2016, after being committed for sentence to the District Court for four offences of supply of a prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW), the applicant was sentenced by English DCJ to an effective term of imprisonment of 6 years comprised of a non-parole period of 3 years, 10 months and 24 days.

3. [3]

   The drug offences were committed on various dates between January 2013 and August 2013 as follows:

4. [4]

   In respect of Count 4, her Honour took into account a further offence on a Form 1 pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW), namely that on 3 December 2013 at Frenchs Forest, New South Wales, he knowingly dealt with proceeds of crime, being $10,800 in cash, contrary to s 193B(2) of the Crimes Act 1900 (NSW).

5. [5]

   The following sentences were imposed:

6. [6]

   After orders for partial accumulation of the sentence of all counts and a finding of special circumstances, an effective sentence of 6 years with a non-parole period of 3 years, 10 months and 24 days was imposed.

7. [7]

   The application for leave to appeal under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW), initiated by the filing of a notice of appeal on 15 March 2017, has had a chequered history in this Court. There have been multiple breaches of orders made by the Registrar for the filing and serving of materials in support of the application on what was, at that time, the sole ground of appeal, namely that by reason of the applicant’s medical condition his incarceration has proved more onerous than was appreciated at the time of sentence. There have also been multiple applications before the Registrar for adjournments and an application to vacate the hearing of the appeal before this Court, pending what was said to be the need to obtain updated medical evidence to be relied upon as fresh evidence on the hearing of the appeal.

8. [8]

   As recently as 9 November 2017, the applicant applied to the Registrar to vacate the hearing date of 22 November 2017. That application was refused. The applicant was advised that he should be ready to proceed on 22 November 2017 and that any application to vacate the date should be made to the Court at the hearing.

9. [9]

   On the afternoon of 21 November 2017, the applicant’s newly retained counsel advised the Crown and the Court that he intended to abandon the sole ground of appeal upon which leave was to be sought and that he would not be relying upon the detailed written submissions that had been filed by his predecessor. He further advised that on the hearing of the appeal he proposed to seek leave to amend the grounds of appeal and substitute a fresh ground of appeal, namely that the sentence imposed on Count 4 was manifestly excessive.

10. [10]

    On the hearing of the appeal, the Crown did not oppose leave being granted to amend the grounds of appeal but submitted that leave to appeal should be refused and the appeal dismissed.

11. [11]

    The Court resolved to permit the applicant’s counsel to advance the arguments foreshadowed in his written submissions filed in support of the contention that the sentence imposed on the fourth count was manifestly excessive, being “unreasonable and plainly unjust”, and to reserve the question whether leave should be granted to amend the notice of appeal until the Court had the opportunity to consider the merits of the application.

12. [12]

    With some considerable reluctance, I have resolved that leave should be granted to permit the applicant to challenge the sentence on the fourth count as manifestly excessive. I would, however, refuse leave to appeal, there being in my view insufficient merit in the submissions advanced in support of the contention that the sentence on the fourth count is “unreasonable or plainly unjust”. I am of that view irrespective of whether the focus is on the sentence for that discrete drug supply or on the total effective sentence imposed which comprehends the overall criminality constituted by that offending and the three drug supply offences that preceded it in time.

The agreed facts

1. [13]

   On 25 January 2013, the applicant discussed the supply of 100ml of methylamphetamine oil with a person on a lawfully intercepted telephone call. Thereafter, the applicant met with that person at a freeway service centre at Jilliby where he supplied 100ml (equivalent to 100g) of methylamphetamine oil for the sum of $20,000 (Count 1).

2. [14]

   On 6 May 2013, the applicant and a co-offender met another person in the carpark at McDonalds in Menai where they discussed the supply of methylamphetamine oil. After a further conversation on 7 May 2013, the applicant met with that person the following day when the applicant supplied him with a bottle of methylamphetamine oil (Count 2).

3. [15]

   In a recorded conversation on 7 June 2013, the applicant stated he could supply MDMA (referred to as “M”) to a third person. Further communications between the applicant and that person ultimately resulted in that person agreeing to purchase the MDMA.

4. [16]

   On 10 June 2013, the applicant met him in the vicinity of Lithgow where he supplied at least 28.4g (1 ounce) of MDMA, or a drug being passed off as MDMA for $2,500. The Crown could not discount that the supply was of Methorphan (a facsimile for the drug MDMA but a prohibited drug under the Drug Misuse and Trafficking Act) (Count 3).

5. [17]

   On 9 August 2013, the applicant met with a fourth person at Moorebank and offered to supply him 1,000 tablets of Methorphan for $10 each.

6. [18]

   On 19 August 2013, the applicant supplied the same person with a further 1,000 tablets of Methorphan for $10,000 (Count 4).

7. [19]

   On December 2013, the applicant was arrested. Following his arrest, the applicant told police they would locate money in the kitchen of his home. The police located $10,800 in a kitchen cupboard. (This was the subject of the offence on the Form 1.)

The applicant’s subjective case in summary

1. [20]

   The applicant was 37 years old at the time of sentence. He was married with three children. He and his wife operated a successful business of loading shipping containers, together with providing casual labour for warehousing and forklift drivers.

2. [21]

   The applicant had a history of drug abuse dating from his teenage years, associated with episodic “binge drinking”. He commenced the use of ecstasy at the age of 22, later progressing to the use of cocaine. He estimated that at the peak of his drug dependence he was using 2 grams of cocaine per day and self-medicating with the antidepressant Xanax. He continued to use illicit drugs until his arrest. He told the sentencing judge that as a result of his drug addiction he accumulated a drug debt in excess of $50,000 which he claimed precipitated his involvement in the supply of prohibited drugs. (In the extract at [25] which follows, her Honour rejected this account.)

3. [22]

   Since his release to bail pending sentence, the applicant claims to have been drug free and to have finally acknowledged the deleterious impact of drug dependence on his own health and that of his family.

4. [23]

   The applicant relied upon medical evidence on sentence detailing a combination of significant health problems in support of a submission that this would render his time in custody as a serving prisoner more onerous. Her Honour considered that material and found:

5. [24]

   In considering the applicant’s subjective circumstances and other matters relied upon in mitigation of sentence, her Honour found:

6. [25]

   Her Honour made the following further factual findings which are, in my view, well supported by the evidence adduced on sentence:

7. [26]

   In summary, it is my view that an effective non-parole period of 3 years, 10 months and 24 days with a head sentence of 6 years for a committed course of drug supply over a period of seven months, increasing in magnitude over that period, and with the only count the subject of challenge being the last in time, was a sentence of considerable leniency. To the extent that counsel submitted the applicant had a strong subjective case (as to which I have some reservations), the maximum leniency that his subjective circumstances might have attracted is more than sufficiently reflected in the sentence imposed on the fourth account which has translated, after application of totality principles, into a sentence that the applicant has not established to be unreasonable or plainly unjust.

8. [27]

   The orders I propose are:

9. [28]

   BUTTON J: I agree with Fullerton J.

10. [29]

    In my opinion, neither the length of the impugned sentence, nor its place in the sentencing structure, nor any other factor, demonstrates that the sentence imposed is beyond the discretion reposed in the learned sentencing judge.