Allen v R [2014] NSWCCA 193

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Allen v R [2014] NSWCCA 193 Hearing dates: 2 September 2014 Decision date: 25 September 2014 Before: Beazley P at [1]; R A Hulme J at [2]; Garling J at [34] Decision: 1. Leave to appeal against sentence granted. 2. Appeal dismissed. Catchwords: CRIMINAL LAW - appeal against sentence - knowingly take part in supply of commercial quantity of prohibited drug - no error in characterising offender as above "mere" courier - focus should be on actual activity - sentence not unreasonable or plainly unjust - sentence does not offend parity principle Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Drug Misuse and Trafficking Act 1985 (NSW) Cases Cited: Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 Makarian v The Queen [2005] HCA 25; 228 CLR 357 Paxton v R [2011] NSWCCA 242; 219 A Crim R 104 The Queen v Olbrich [1999] HCA 54; 199 CLR 270 Category: Principal judgment Parties: Andrew Charles Allen (Applicant) Regina (Respondent) Representation: Counsel: Mr A Miller (Applicant) Ms S Dowlling (Crown) Solicitors: William Whitby Lawyers Solicitor for Public Prosecutions File Number(s): 2013/87363 Decision under appeal Jurisdiction: 9101 Date of Decision: 2013-12-13 00:00:00 Before: Frearson SC DCJ File Number(s): 2013/87363

Judgment 1BEAZLEY P: I have had the advantage of reading in draft the reasons of R A Hulme J. I agree with his Honour's reasons and with the orders he proposes. 2R A HULME J: Andrew Charles Allen (the applicant) was sentenced in the District Court by his Honour Judge Frearson SC on 13 December 2013 for an offence of knowingly taking part in the supply of a commercial quantity of the drug known as "ecstasy". 3The maximum penalty for the offence is imprisonment for 20 years (ss 25 and 33 of the Drug Misuse and Trafficking Act 1985 (NSW)). There is also prescribed a standard non-parole period of 10 years (Pt 4 Div 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW)). 4The learned judge imposed a sentence of 2 years 9 months with a non-parole period of 1 year 8 months. It was back-dated to the date of the applicant's arrest when he was refused bail, namely 21 March 2013. He will be entitled to be released on parole when the non-parole period ends on 20 November 2014. 5The sentence was reduced by 25 per cent from what it otherwise would have been to give credit for the utilitarian value of the applicant's early plea of guilty. 6The grounds of the appeal are that the judge erred in characterising the applicant's role as being above that of a "mere courier"; the sentence is manifestly excessive; and there is insufficient disparity with the sentence imposed upon a co-offender, Jade Reberger.

Facts 7The facts relating to the applicant's offending were agreed. 8Police were intercepting the telephone service of Nathan Martin. On 20 and 21 March 2013 they intercepted conversations between Martin and Jade Reberger (the applicant's brother-in-law) relating to arrangements for Reberger to travel from Ulladulla to Sydney to purchase 1000 tablets of ecstasy for $10,000 from a person identified as "Aaron". Half of the tablets were for Reberger and the other half were for a man identified as "Tony from Huskisson". 9The applicant drove Reberger in the applicant's car to Sydney in the afternoon of 21 March. They stopped at Daceyville and the pair alighted and spoke with "Aaron". They returned to the car and left. Several hours later they returned and another car arrived. Two occupants of that car alighted and spoke with the applicant and Reberger. One of those men then drove away, leaving the other with the applicant and Reberger. The man who had driven away returned a short time later, alighted and approached the applicant and the other man who were standing at the front of the applicant's car with the bonnet up. The applicant received the drugs and they were placed into the air filter of his car so as to conceal them. Reberger handed over $10,000 in cash. He and the applicant then drove away. 10Police stopped the car a short distance away. After some hesitation the applicant showed them where the drugs were secreted. Subsequent analysis revealed that there were in excess of 1000 tables comprising 304.7 grams of 3,4-methylenedioxymethylamphetamine with a purity of 14 per cent. (The commercial quantity for this drug is 125 grams.) 11The pair were arrested. They were taken to a police station where the applicant is said to have made "full and frank admissions". He told police that he had driven Reberger to Sydney to meet some people. He confirmed that he told police at the scene of the arrest that the drugs comprised about 1000 tablets. He believed they were ecstasy. He said he did not pay for them; that they did not belong to him; and that he was just the driver. He said Reberger had approached him earlier in the week and asked him if he wanted to drive to Sydney to make some money. He "assumed it would be something illegal, drugs". He was to be paid $500 for his involvement. 12In oral evidence at the sentence hearing the applicant said that he did not know what type of drug was involved, nor how much (although he then conceded that he had overheard that it involved 1000 tablets). He was not involved in the purchase. His role was just to drive the car to Sydney and back in exchange for payment of $500. He was in financial difficulties at the time.

The sentencing remarks concerning the facts 13There was a joint hearing of the applicant's case on sentence and that of his co-offender Reberger. 14In relation to the co-offender there was a separate statement of facts to which the judge referred in his sentencing remarks. It detailed how Reberger had numerous communications with Nathan Martin involving discussion of Martin's arrangement with "Aaron" for Reberger to be supplied with the 1000 tablets. 500 of the tablets were for Reberger to on-supply and the balance were for "Tony" to do likewise. Information derived from telephones seized by police following the arrests persuaded the judge that Reberger was substantially involved in the supply and distribution of drugs in the preceding six months. Accordingly, the offence for which he was to be sentenced was "not an isolated one". 15His Honour accepted that Reberger suffered from anxiety, depression and obsessive compulsive disorder but concluded that this "cannot weigh too heavily in the sentencing process". It was "blatant and substantial drug dealing for profit in circumstances in which the offender was fully aware of the gravity [and consequences] of his conduct". He accepted that his motivation was to pay off a drug debt; "it was clearly for financial gain". It was submitted that Reberger was "an underling" and the judge said, "in one sense he was an underling, but he was a vital cog in a drug distribution network". 16As to the applicant, the judge found beyond reasonable doubt that he "knew very well" what he was asked to be involved in. He referred to submissions that were made by the solicitor on the applicant's behalf about the objective seriousness of the offence. His Honour said: "The ultimate contention is this is really at the very bottom of the range for the offence it is. I do not accept it is at the bottom of the range. He was a courier, that is true, but I do not describe him as a mere courier. When one looks at what he physically did and the organisation involved, he was there present at the actual transaction; he did the driving; he was present when the drugs were placed into the air filter, and it seems to me that he has played an important physical role in the drug offence for financial gain. I consider it is between the bottom and the mid range, probably closer to the mid than the bottom. On any view, he took part in this substantial drug venture for profit." (AB 23) (Emphasis added)

Ground 1 - His Honour erred in characterising the appellant's role as being above that of a "mere"courier 17The submissions made to the judge did not employ any characterisation of the applicant as being either a "courier" or "mere courier"; they were focused upon what the applicant actually did. As can be seen from the above extract, his Honour used those two terms but then immediately looked at what the applicant actually did. 18I see no error in this approach. The role of an offender in drug supply offences is better determined by focussing on what an offender actually did, rather upon trying to assign a label or categorising the role of the offender in a drug enterprise: Paxton v R [2011] NSWCCA 242; 219 A Crim R 104 at [135]. As was observed by the majority in The Queen v Olbrich [1999] HCA 54; 199 CLR 270 at [19]: "Characterising the offender as a 'courier' or a 'principal' must not obscure the assessment of what the offender did." 19In oral submissions, Mr Miller, counsel for the applicant accepted that it was difficult to know what the judge meant when he referred to a "courier" and a "mere courier". He also accepted that the judge had proceeded to correctly identify the physical activities of the applicant that constituted his involvement in the offence. He agreed that the complaint with which this ground was concerned was more directed to the judge's assessment of the seriousness of the offence. 20There was no challenge to the findings of fact by the primary judge. They were clearly based upon the material in the statement of agreed facts. In short, in return for a promise of payment of a modest sum, the applicant deliberately provided material assistance to a person acquiring a substantial quantity of a prohibited drug for what must obviously have been the purpose of on-supplying it. 21There is an element of imprecision about the expression by the judge of his conclusion as to the level of objective seriousness of the offence ("between the bottom and the mid range, probably closer to the mid than the bottom"). However, I am not persuaded that the ground has been made out. The matters raised in support of it remain relevant to the determination of the next ground.

Ground 2 - the sentence imposed upon the appellant is manifestly excessive 22It was submitted that "in the light of the limited role that the appellant played in relation to the offence, the strong subjective case of the appellant, the good prospects of rehabilitation and the finding that the appellant would be unlikely to reoffend, the non-parole period imposed by his Honour was manifestly excessive" (AWS [58]). Judicial Commission sentencing statistics were said to support the submission. 23The statistics simply demonstrate that the sentence of 2 years 9 months is within the bottom 13% of sentences passed for this offence in the period January 2007 to December 2013. The non-parole period is within the bottom 41% in that period. Similar figures are derived when focussing only upon cases in which there was a plea of guilty (90 out of 96 cases). Without any information about the circumstances of any of those cases, the statistics do not advance the applicant's case. 24The applicant had a number of subjective matters that were taken into account in his favour. His criminal record contained only relatively minor matters. His fiancée remained supportive of him. He had an offer of employment in the mining sector in Queensland. His stepfather gave evidence in which he spoke highly of him. The judge accepted that he was a person of otherwise good character and had many positive attributes. He accepted that he was remorseful; had good prospects of rehabilitation; and was unlikely to re-offend. He had pleaded guilty. 25The judge found special circumstances for the purposes of s 44 of the Crimes (Sentencing Procedure) Act and reduced the proportion of the sentence represented by the non-parole period by about 5 months. He did so "principally on the basis it is his first time in custody and the pre-sentence custody as well as the custody being more onerous". There was no evidence about custody being more onerous; his Honour appears to have accepted a submission that conditions of custody for remand inmates are more onerous than for sentenced prisoners because "there are no courses" and "it's certainly been a very unpleasant experience". 26The maximum penalty prescribed for the offence (20 years) is of reduced significance as a yardstick for an offence that, in my view, was of a comparatively low level of seriousness having regard to the matters discussed in the context of the previous ground. However it is not something that can be completely ignored. Likewise the 10 year standard non-parole period. There is also a particular need for general deterrence in drug supply cases. A sentence of 2 years 9 months, and a non-parole period of 1 year 8 months, is not, in my view, unreasonable or plainly unjust: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [25]. I would reject this ground.

Ground 3 - The sentence imposed by his Honour on the appellant offends the parity principle 27The parity principle is so commonly invoked on appeals to this Court that it does not need to be recited. Generally, see Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 at [28]. 28The essence of the applicant's complaint is that his co-offender Jade Reberger received a sentence of 4 years 5 months, with a non-parole period of 2 years 8 months. He was more significantly involved in the transaction than the applicant but the applicant's non-parole period is only one year shorter than he received. 29The written submissions for the applicant helpfully set out a summary of the subjective features of each offender. The differences between them were few and the overall mitigating effect was not significantly dissimilar. 30The findings of the sentencing judge to which I earlier referred make clear that Reberger's offence was at a significantly higher level of objective seriousness. But the finding of special circumstances in his case was for more compelling reasons than in the applicant's case. There was evidence that Reberger suffered from anxiety, depression and obsessive-compulsive disorder whereas the basis for finding special circumstances in the applicant's case was generous, to say the least. 31There is no complaint raised under this ground about the extent of the difference between the head sentences imposed upon the two offenders. The complaint is confined to an assertion that the applicant's non-parole period is not less than that imposed upon Reberger by a greater extent. But the finding of special circumstances in each case resulted in the setting of non-parole periods that are an identical proportion (60 per cent) of the head sentences. That is unlikely to have been a coincidence; I assume it was intended by the judge as a matter of consistency and fairness. 32In these circumstances, I am not persuaded that there is any legitimate and objective basis for the applicant to be aggrieved that his non-parole period was only 1 year less than that imposed upon his co-offender.

Orders 33I propose the following orders: 1. Leave to appeal against sentence granted. 2. Appeal dismissed. 34GARLING J: I agree with the orders proposed by R A Hulme J, and with his Honour's reasons.

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