Polley v R

HOEBEN CJ at CL:

Sentence proceedings took place before Berman SC DCJ on 17 and 31 October 2014. His Honour then delivered an ex tempore sentencing judgment. The applicant was sentenced to two concurrent terms of 2 ½ years imprisonment with a non-parole period of 1 year and 3 months, commencing 31 October 2014 and expiring 30 January 2016. The head sentences will expire on 30 April 2017.

On 6 October 2013 the applicant, who had just turned 20, was sitting in a white Toyota utility with two friends. Another friend was outside the car. While the police were speaking to these persons, they saw a number of clear plastic resealable bags in the driver’s foot well. When they searched the vehicle, they found money, further clear, plastic resealable bags and drugs.

They found $750 in $50 notes, two mobile phones including one Samsung Galaxy which was later found to have recorded on it a number of text messages relevant to the question of dealing. 174 pills were found in the vehicle, which on analysis comprised 109 MDMA and 65 methylamphetamine tablets. This was the equivalent of 30.7 grams of MDMA and 20.36 grams of methylamphetamine. The purity of the MDMA was 19.5% and that of the methylamphetamine 4%. The applicant made admissions that these items belonged to him.

The text messages on the Samsung mobile phone disclosed something in the order of 12 – 14 customers acquiring drugs from the applicant in the two weeks before his arrest.

The applicant gave evidence in the sentence proceedings. On the basis of that and the reports of two psychiatrists (Dr Allnutt and Dr Roberts) and a report of a psychologist (Mr Watson-Munro) his Honour accepted that although he had just turned 20, the applicant was very immature for his age. His Honour found that although the applicant had been brought up in a caring and supportive family, by parents who clearly loved him, there were a number of events which had affected him in an adverse way as he was growing up.

The first of these was the sudden death of a school friend from illness when both he and the applicant were in year 9. The second event was the development of a heart condition on his part which produced episodes of collapse. Medication was unsuccessful and he required an operation. The condition and the operation were both life-threatening. The real possibility of death had a significantly adverse effect on the applicant.

Because of the psychological sequelae of these two events, the applicant’s school work deteriorated so that he was forced to change schools, which in turn caused difficulties for him when trying to fit in with his new school.

When he left school he began work as a builder and obtained a carpentry apprenticeship. At this time he again suffered a significant emotional setback. A friend was killed when struck by a train while applying graffiti. This caused his psychological wellbeing to rapidly deteriorate. He gave up work because of a lack of motivation and commenced using ecstasy, to which he had been introduced by his peers.

His Honour accepted that at the time of his offending the applicant was suffering from an underlying recurrent depressive disorder, which contributed to the offending. He found that the applicant had been made vulnerable to this disorder by the deaths of two friends and the very real fear that he had for his own life. His Honour found that this disorder led him to abuse drugs in an attempt to alleviate his depressive symptoms which in turn, led to a substance abuse and dependence disorder.

Although he made those favourable findings, his Honour observed “It is one thing to use drugs, another to supply them and another to supply them as enthusiastically as the offender did”. (ROS 4.5)

The applicant explained his conduct by saying that he had a friend who was a drug dealer, who was always cashed up, while he himself was short of money. In those circumstances, the applicant began dealing in drugs well beyond low level dealing of the type usually engaged in by drug users to support their own habit.

His Honour disregarded the applicant’s comparatively minor criminal history. His Honour noted that the applicant was dealt with under the Mental Health (Forensic Provisions) Act 1990 for a domestic violence matter involving his girlfriend in relation to which the report of Dr Allnutt was prepared. His Honour found the report of Dr Allnutt to be very helpful in describing the mental state of the applicant at the time of his offending.

His Honour found that after his arrest for these matters, the applicant’s mental state gradually improved. The effect of psychiatric reports, prepared as a result of attendances in May and September, was that the applicant was no longer mentally ill.

At the date of sentencing, the applicant was no longer using drugs and had commenced work in a real estate agency run by his godfather, Mr Bonaccorso. Mr Bonaccorso gave evidence and described the “incredible transformation” in the applicant which he had observed from March 2014 when he started working for him. He observed a substantial and pleasing turnaround in the applicant’s attitudes and behaviour.

In the course of his evidence, the applicant said that he was disgusted with himself because of the effect that his offending had on his family, but also because of the effect of drugs on other people. His Honour found that the applicant’s plea of guilty was consistent with these feelings of remorse and his Honour allowed a 25% discount on sentence.

His Honour then turned to the seriousness of the offending. He referred to the principle that if the applicant were trafficking to a substantial degree, he should receive a custodial penalty unless there were exceptional circumstances. By reference to the number of pills, the resealable bags, the money and the messages on the Samsung telephone, his Honour was satisfied that the applicant was trafficking to a substantial degree. His Honour was also satisfied that the applicant was trafficking for financial profit and that his motivation went well beyond an intention to supply only to fund his own drug habit.

His Honour found that although there were a number of matters which could be taken into account on behalf of the applicant by way of mitigation, they did not amount to exceptional circumstances justifying a sentence of other than fulltime custody. In that regard, his Honour took into account the applicant’s major depression at the time he committed these offences and the substantial rehabilitation he had achieved. His Honour found that these were circumstances which even in combination, could not be described as exceptional.

In support of that conclusion, his Honour noted that many people began their use of drugs because of significant unhappy events, such as those to which the applicant was subjected. His Honour noted that many persons were able to give up drugs once there was a real possibility that they would be sent to gaol, having been detected by police as a drug dealer.

His Honour observed that if a reason for using drugs, followed by rehabilitation, were enough to demonstrate exceptional circumstances the law would soon cease to have an adequate deterrent effect. His Honour found that the concept of “exceptional” did not include that which was commonplace. While his Honour appreciated that it was terribly sad to send a young man to gaol for the first time, it was even sadder when the person who appeared for sentence was in a real respect, a different person to the person who committed the serious offences.

His Honour appreciated that in all cases prison was very much a sentence of last resort, but that it was important not to lose sight of the fundamental purpose of sentencing, i.e. to protect the community. On occasions that was achieved by imposing significant even harsh sentences in an effort to deter the applicant and other offenders from committing such offences in the future. His Honour found that on occasions the fundamental purpose of sentencing was best achieved by focusing on an offender’s rehabilitation. Nevertheless, in this case consistent with binding authority, his Honour found that nothing less than a sentence of fulltime custody was necessary to reflect the objective gravity of the applicant’s conduct. His Honour observed that many immature young men were seduced by the opportunities to make money which drug dealing presented. Their conduct was of great harm to their individual customers and to society generally and had to be deterred.

While appreciating that there was some risk to the applicant’s already achieved rehabilitation, his Honour found that the requirements of general deterrence, moderated because of the applicant’s underlying depressive disorder, required the sentences which he had decided to impose.

These grounds of appeal can effectively be dealt with together. The applicant submitted that the combination of his subjective features was sufficient to amount to exceptional circumstances. He referred specifically to his youth, the very positive endorsement given by his employer, the positive changes observed in him by his employer, the exceptional advances which had been achieved in relation to rehabilitation, and the remorse expressed by him when giving his evidence.

The applicant also relied upon medical evidence. This evidence identified the basis for the underlying depressive condition referred to by the doctors. Apart from the shock and grief brought about by the sudden death of his friends, there were the serious consequences of the supraventricular tachycardia (SVT) condition. Initially, the SVT was not identified and when it was, the very real prospect of death as a possible outcome had a deleterious effect on his state of mind. The applicant submitted that while these medical issues were accepted as real by his Honour, appropriate weight was not given to them. The applicant did not, however, challenge the principle identified by his Honour:

The applicant accepted that his offending was of a type which was correctly characterised as “trafficking to a substantial degree”. What he challenged was the finding by his Honour that the combination of circumstances, referred to above, did not amount exceptional circumstances.

In support of that proposition, the applicant relied upon the following observation of Gaudron, Gummow and Hayne JJ in Wong v R [2001] HCA 64; 207 CLR 584 at [75]:

The applicant submitted that his Honour did not correctly apply that principle when he said:

The applicant submitted that “exceptional circumstances” involved an assessment of fact and degree. In this case, although his Honour had taken into account the applicant’s reason for using drugs and his subsequent rehabilitation, he had not given proper attention to the effect on general deterrence of those matters. The applicant submitted that the underlying depressive disorder properly taken into account, would have significantly reduced the extent to which general deterrence played a part in his sentencing.

The applicant submitted that there was nothing commonplace about the pressures of life which had been exerted upon him. He submitted that it was not common place to undergo heart surgery, following a series of unexplained collapses at school, in circumstances where he was subsequently advised that there was a real chance of death eventuating. The applicant submitted that the weight which the sentencing judge had given to the principle of general deterrence, was excessive in that it had effectively extinguished his subjective case.

The applicant submitted that his Honour had focused exclusively upon perceived similarities between certain subjective features of his and the general run of cases in an impermissible way. The applicant submitted that his Honour had not properly taken into account the marked differences between the specific circumstances of his case and those which frequently arose in more conventional drug supply matters.

The applicant submitted that his Honour had fallen into error by broadly characterising his subjective features and determining that those features gave rise to two common denominators:

The applicant submitted that his Honour had erred by treating him as part of an identifiable class of offenders, rather than giving proper weight to his individual circumstances.

The applicant submitted that the sentencing judge did not identify all of the “matters” upon which he was entitled to rely. His Honour made no mention in his sentence judgment that the applicant had about 370 daily bail reporting occasions and that more than 12 months had elapsed between the time of offending and the imposition of sentence. During that time he had undertaken voluntary community service work on Saturdays between April and October and this work had been favourably reported on by a Community Corrections Officer. He had completed a six week rehabilitation course. His Honour made no mention of these matters.

Put simply, the thrust of the applicant’s submissions is that his subjective case was so powerful that it should have neutralised the oft stated principle that in matters involving drug trafficking to a substantial degree, general deterrence should be given considerable weight. The corollary is that for general deterrence to be given considerable weight, a custodial penalty is usually imposed.

As Handley JA observed in Regina v Saba [2006] NSWCCA 214 at [17] the proposition that drug trafficking requires the imposition of a custodial sentence did not originate with the judgment of Hunt CJ at CL in R v Clark (NSWCCA, unreported, 5 March 1990) although that case is the one commonly cited as authority for it. In Clark Hunt CJ at CL (with whom Enderby and Sharpe JJ agreed) said:

In any event, the applicant has not challenged the application of that principle in this case. The issue identified by the applicant is whether the strength of his subjective case amounted to “exceptional circumstances”.

Not surprisingly, the courts have not defined the expression “exceptional circumstances”. Some guidance, however, has been provided. In R v Cacciola [1998] NSWSC 531; 104 A Crim R 178 Priestley JA said at 181:

Further elucidation was provided by Grove J (with whom Spigelman CJ, Wood CJ at CL, Foster AJA and James J agreed) in R v Carrion [2000] NSWCCA 191; 49 NSWLR 149 at 153 where his Honour said:

In Smaragdis v R [2010] NSWCCA 276 Fullerton J (with whom Simpson and R A Hulme JJ agreed) considered the question of what amounted to exceptional circumstances. Counsel for the applicant in that case had identified the following subjective circumstances as “special”:

That submission was rejected by the court for the following reasons:

It is clear from those authorities that the matters relied upon by the applicant were correctly characterised by the sentencing judge as matters which often arose in drug supply cases and as a result, have not been characterised as “exceptional”.

It is not correct that by approaching the matter in the way in which he did, the sentencing judge did not consider the particular circumstances of the applicant’s case but was in fact stereotyping him, or treating him as though he were a member of a class of offenders. On the contrary, his Honour had regard to the specific subjective case which the applicant put forward but in accordance with authority, concluded that the combination of those matters was not sufficient to constitute exceptional circumstances. There was nothing stereotypical in that approach.

It is also not correct that his Honour’s statement that hardship leading to the supply of drugs, followed by rehabilitation, was “common place” meant that his Honour was not taking those matters into account in deciding whether or not the applicant had established exceptional circumstances. That is to misread the context in which that observation was made. His Honour was doing no more than pointing out why those matters, in combination with the other matters which had been brought to his Honour’s attention, did not amount to exceptional circumstances.

The submission that his Honour did not take into account relevant matters because he did not refer to them should be rejected. The three matters identified were bail reporting conditions, voluntary community service and attendance at a six week rehabilitation course. The last two matters relate specifically to rehabilitation which was given considerable emphasis by his Honour in the course of his judgment. It is not accurate to say that his Honour did not give full effect and weight to the evidence of rehabilitation. It is true that his Honour made no mention of the bail reporting conditions. That is not surprising in an ex tempore judgment. Just because his Honour did not refer to that matter, does not mean he did not take it into account. In any event, compliance with his bail reporting conditions over a period of 12 months, taken with the other matters identified by the applicant would still not amount to exceptional circumstances.

It is clear that the sentencing judge formed the opinion that the applicant’s subjective features, although strong were not so wholly exceptional as to justify departure from the normal sentencing principle that a fulltime term of imprisonment was warranted for drug trafficking offences. This does not mean that his Honour overlooked the specific matters raised by the applicant. There is a difference between on the one hand noting that many young men who come before the courts have suffered events that have provided a reason to use drugs and have then exhibited promising signs of rehabilitation and on the other hand, “stereotyping” the applicant by failing to look at his individual circumstances.

The complaint that his Honour gave excessive weight to the principle of general deterrence, is not made out. The sentence imposed, which can only be described as light, made it clear that the principle of general deterrence was significantly discounted in this matter. This Court has consistently observed that questions of weight are matters for the sentencing judge and that the circumstances in which matters of weight will justify intervention by an appellate court are within a narrow compass (Bland v R [2014] NSWCCA 82; Richardson v R [2013] NSWCCA 218 at [90] – [91] and Yang v R [2012] NSWCCA 49; 219 A Crim R 550 at [25]).

Having fully reviewed the applicant’s subjective case, his Honour was conscious of the potential for error in placing too much weight on a strong subjective case when sentencing for drug supply offences. In that regard, the observations in R v Cahill [2015] NSWCCA 53 by Johnson J (with whom Leeming JA and Schmidt J agreed) at [102] – [104] are apposite:

His Honour’s reasons for reaching the conclusion that the case was not exceptional are consistent with authority. Should his Honour have acceded to the applicant’s submission in this regard, he would have failed to give weight to the principle of general deterrence and to maintain a reasonable proportionality between the gravity of the offending and the sentence imposed: R v Dodd (1991) 57 A Crim R 349.

No specific submissions were directed to Ground 4 (manifest excess). It can therefore be assumed that the applicant relied upon the arguments raised under Grounds 1 – 3 to support this ground. It is, however, still necessary for this ground to be made out for the applicant to establish that the sentence was “unreasonable” or “plainly unjust” (Markarian v The Queen [2005] HCA 25; 228 CLR 357). It is trite to observe that sentencing judges are to be allowed as much flexibility as is consonant with consistency of approach and applicable sentencing principle and that this Court may not interfere in the sentence only because it would have exercised its discretion differently.

What cannot be lost sight of is that the applicant committed offences of drug supply, each of which carried a maximum penalty of 15 years imprisonment. There was a finding that the applicant was “enthusiastically” involved in the supply of drugs to 12 – 14 persons and that he had the capability and motivation to supply more. There was no issue that the applicant was motivated by financial gain. Taking those matters into account, Ground 4 has not been made out.

It should also be noted that although his Honour did not find exceptional circumstances, he clearly gave considerable weight to the applicant’s strong subjective case. That is demonstrated by the relatively modest sentence which was imposed, despite the seriousness of the offending.

For the above reasons, none of the Grounds of Appeal have been made out. The orders which I propose are as follows:

PRICE J: I agree with Hoeben CJ at CL.

FAGAN J: I agree with Hoeben CJ at CL.