O'Brien v R [2010] NSWCCA 297

New South Wales Court of Criminal Appeal

CITATION: O'Brien v R [2010] NSWCCA 297

HEARING DATE(S): 20 October 2010

JUDGMENT DATE: 17 December 2010

JUDGMENT OF: Simpson J at 1; Hoeben J at 2; RA Hulme J at 3

1. Application for leave to appeal granted. 2. Appeal allowed. 3. The sentence for the offence of supply prohibited drug (1 October 2008) of imprisonment for a fixed term of 3 years to date from 1 October 2008 and expire on 30 September 2011 is confirmed. DECISION: 4. The remaining sentences imposed in the District Court are quashed and in lieu, the following sentences are imposed: Supply commercial quantity of prohibited drug (23 May – 27 September 2008): Sentenced to imprisonment comprising a non-parole period of 3 years 6 months with a balance of term of 2 years 6 months. The sentence is to commence 1 April 2009. The non-parole period will expire 30 September 2012. The total term will expire 31 March 2015. Supply commercial quantity of prohibited drug (21 May – 24 July 2008): Sentenced to imprisonment comprising a non-parole period of 4 years 6 months with a balance of term of 3 years 6 months. The sentence is to commence 1 October 2009. The non-parole period will expire on 31 March 2014. The total term will expire 30 September 2017. Supply commercial quantity of prohibited drug (14 August 2008): Sentenced to imprisonment comprising a non-parole period of 4 years 6 months with a balance of term of 3 years 6 months. The sentence is to commence 1 April 2010. The applicant will be eligible for release on parole upon the expiration of the non-parole period on 30 September 2014. The total term will expire on 31 March 2018.

CATCHWORDS: CRIMINAL LAW - appeal against severity of sentence - commercial supply of ecstasy - consideration of material in psychological report when offender gave evidence affirming the truth of the history provided - error in assessment of remorse - whether error in assessment of rehabilitation prospects - whether error in treatment of previous convictions - whether a mitigating factor that drugs supplied to undercover police officer - totality principle - excessive accumulation of sentences - sentence manifestly excessive

Drugs Misuse and Trafficking Act 1985 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912

CATEGORY: Principal judgment

CASES CITED : Regina v Chan [1999] NSWCCA 103 Regina v Way [2004] NSWCCA 131; 60 NSWLR 168

PARTIES: Ben Keith O'Brien (Applicant) Regina (Respondent)

FILE NUMBER(S): CCA 2008/76021

COUNSEL: Mr S Odgers SC (Applicant) Mr P Ingram SC (Respondent)

SOLICITORS: The Law Practice Solicitor for Public Prosecutions

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/11/1631

LOWER COURT JUDICIAL OFFICER: King DCJ

LOWER COURT DATE OF DECISION: 30 October 2009

IN THE COURT OF CRIMINAL APPEAL 2008/76021

SIMPSON J HOEBEN J R A HULME J

17 December 2010 Ben Keith O'BRIEN v Regina Judgment 1 SIMPSON J: I agree with R A Hulme J. 2 HOEBEN J: I agree with R A Hulme J and the orders he proposes. 3 R A HULME J: On 30 October 2009, the applicant, Ben Keith O'Brien, was sentenced in the District Court by his Honour Judge King SC in respect of the following offences.

4 For an offence of supplying a prohibited drug, namely 3,4 methylenedioxymethylamphetamine (MDMA) (on 1 October 2008), the applicant was sentenced to a fixed term of imprisonment for 3 years to date from 1 October 2008.

5 There were three offences of supplying not less than the commercial quantity of MDMA. For one that was committed between 23 May and 27 September 2008 the sentence was 6 years 6 months, with a non-parole period of 3 years 6 months, to date from 1 October 2009. Another such offence committed between 21 May and 24 July 2008 brought a sentence of 8 years 6 months, with a non-parole period of 4 years 6 months, to date from 1 April 2011. For a further such offence committed on 14 August 2008 there was a sentence of 8 years 6 months, with a non-parole period of 4 years 6 months, to date from 1 October 2012.

6 The overall sentence was one of 12 years 6 months, with a non-parole component of 8 years 6 months, with effect from 1 October 2008.

7 An offence of supplying a prohibited drug contrary to s 25(1) Drugs Misuse and Trafficking Act 1985 (the Act) attracts a maximum penalty of imprisonment for 15 years and/or a fine of $220,000.

8 An offence of supplying not less than the commercial quantity of a prohibited drug contrary to s 25(2) of the Act attracts a maximum penalty of imprisonment for 20 years and/or a fine of $385,000. A standard non-parole period for this offence of 10 years is also prescribed in Div 1A of Part 4 Crimes (Sentencing Procedure) Act 1999.

9 The judge also sentenced a number of other offenders who were involved in the same drug supply network as the applicant. Three of them also applied for leave to appeal against the sentences imposed. Although they were dealt with on separate occasions by his Honour, the applications were heard together by consent. However, as no issue of parity was raised, it is convenient to deal with each application in a separate judgment. The other applications are the subject of the following judgments: McKellar v R [2010] NSWCCA 295; Locke v R [2010] NSWCCA 296; Ellis v R [2010] NSWCCA 298.

Facts

10 There were agreed facts before his Honour in each of the four cases which began with general observations to the following effect. The applicants (and others) were involved in a drug distribution network on the Central Coast of New South Wales. Mark Locke and Cameron Ellis were said to be primarily responsible for street level distribution within the network, frequently conducting their supplies as a joint criminal enterprise. They generally operated from a hotel in Toukley. At times they would use "runners" who worked for them.

11 Locke initially sourced his drugs from others, including Ryan McKellar, who had a number of customers. At a later stage Locke was sourcing his drugs from the applicant. Ellis and another offender, Michael Streater, sourced their drugs primarily from the applicant who, in turn, obtained them from his older brother.

12 From that point the agreed facts focussed upon the offences committed by the individual offenders. In relation to the present applicant, the commercial supply offence committed between 21 May and 24 July 2008 involved the supply of MDMA tablets to undercover police operatives on 3 occasions. The total quantity supplied was 1,096 tablets, weighing 282.42 grams.

13 The commercial supply offence committed between 23 May and 27 September 2008 involved the supply of MDMA tablets on 12 occasions to persons the judge described as "sub-distributors or others". The total quantity supplied was an estimated 683 tablets, weighing an estimated 170.75 grams.

14 The commercial supply offence committed on 14 August 2008 involved the supply of 1,000 MDMA tablets, weighing 296.1 grams, to an undercover operative.

15 The applicant was arrested on 1 October 2008. His house was searched and police found a total of 53.72 grams of MDMA in various packages which the applicant admitted were his. This constituted the final charge of supplying (possessing for the purpose of supply) more than the indictable quantity of MDMA. Police also found a number of mobile phones, numerous SIM cards, something that was referred to as a "tick list", electronic scales and glucose. There were also financial records, personal papers and receipts which were said to indicate that the applicant was living a lifestyle beyond his declared income.

16 In setting out his findings as to the objective seriousness of the offences the judge first made some general observations. He referred to the individual transactions as involving in excess of 50 tablets on all but 3 occasions. He said that the applicant was "at the apex of a broadening chain of distribution" and was the only link to his bulk supplier, his elder brother. Reference was made to the applicant obtaining large quantities of 1,000 tablets on short notice and that he otherwise warehoused bulk supplies until they were needed by the "sub-distributors". The judge concluded these general remarks by saying: "His role was clearly a senior role, and the criminal enterprise was dependant on his ability to source MDMA from his older brother".

17 When assessing the objective seriousness of each of the offences, the judge stated the conclusion that the three commercial supply offences were "at least at the high end of the mid-range of objective seriousness" and that the indictable supply offence was "below mid-range". No point is taken as to these findings. Indeed, it was conceded by counsel who appeared for the applicant in the court below that the offences were "objectively very serious" and that they were "towards the middle or just above the middle of the range".

Subjective circumstances

18 The applicant did not give evidence on sentence but an affidavit was tendered. Information as to his background was provided by way of oral evidence of an aunt and a report by Mr Philip Gorrell, psychologist and social worker. The applicant's affidavit merely said that he had read the report and asserted that "the history referred to there as having been supplied by me is correct".

19 The applicant turned 20 during the period of the offences and was 21 at the time of sentencing. He is the youngest of three siblings. His parents separated when he was aged eight due to his father's alcohol consumption and domestic disharmony. Thereafter the applicant lived with his father but he died as a result of a serious illness some two years later. This was the cause of significant distress. The applicant returned to live with his mother and her new partner. There was evidence suggesting that his mother lacked certain parenting skills and the children did not receive adequate guidance and attention.

20 The applicant left school upon completion of the School Certificate. At the age of 14 he moved out of home and shared accommodation with his brother, who was 6 years older, and eventually some of his brother's friends.

21 After leaving school he had a variety of jobs but not for any substantial time. At the age of 18 he went to Western Australia where he worked for 6 months before returning to the Central Coast to live in shared accommodation with friends.

22 The applicant commenced using cannabis at the age of 14 when he was living with his brother and used it daily until he was 16. At that point he replaced cannabis with ecstasy and continued to use this drug until his arrest. He said that he was using up to 10 tablets per night, and was also consuming cocaine and "speed". The judge referred to the applicant's claim that he commenced selling ecstasy to pay for his own use and "the word spread". The judge referred to the applicant's claim that he was addicted but noted that he had not sought any treatment. He had, however, completed a drug and alcohol course after going into custody and claimed to be "clean".

23 The judge referred to evidence that the applicant always looked up to his brother who had represented something in the nature of a role model for him.

24 The applicant's criminal history comprised convictions for two drink/drug driving matters in 2006 and 2007 and a matter of destroying or damaging property in 2007. Such a record would justify the description that the applicant had no significant record of previous convictions, a mitigating feature pursuant to s 21A(3)(e) Crimes (Sentencing Procedure) Act. There is however a ground of appeal relating to the manner in which the judge had regard to these previous convictions and so I will say more about it later.

25 The judge concluded that there was no evidence of remorse and this is also the subject of a ground of appeal. Similarly he found that there was no evidence upon which a conclusion could be reached that the applicant had good prospects of rehabilitation, the subject of another ground of appeal.

26 The judge specified that he would reduce the sentences he would otherwise have imposed by 25 percent on account of the applicant's pleas of guilty which were entered in the Local Court.

27 Finally, the judge indicated that he found special circumstances warranting a reduction of the non-parole periods that he would impose, they being "the offender's age and the fact that this will be the first period of imprisonment that the offender has been subject to, and in view of the length of the sentence to be imposed". He said this was "particularly having regard to the assistance that the offender will need in the future to reintegrate into society as an adult".

Ground 1 – The sentencing judge erred in approaching the psychologist's report with circumspection.

28 The judge said in relation to certain claims made in the psychological report that "the court must approach such reports and conclusions with circumspection where the offender has not given evidence".

29 Mr Odgers SC referred to the fact that the applicant had sworn an affidavit asserting that the history set out in the report was correct and the prosecutor had not sought to cross-examine him. Further, there was no question raised as to the author of the report being made available for cross-examination concerning the opinions he had expressed.

30 Accordingly, whilst it was conceded in oral submissions that it was open to the judge not to accept the claims made by the offender, it was submitted that approaching the report with circumspection involved a procedural error. The applicant and his counsel were not given any notice prior to sentence being pronounced that the judge was not minded to accept everything that was in the report.

31 The opinions of Mr Gorrell that it was asserted the judge should have accepted were that the applicant committed the offences because of his "childhood upbringing of neglect and abuse" and because of the influence of his brother. There was also the opinion that the applicant "genuinely desires to rectify his past errors and develop a worthwhile life for himself".

32 A similar ground was raised in the appeal by McKellar (R v McKellar at [39] – [54]). For reasons which were unique to his case the ground was rejected. In the present case, however, it is unnecessary to express a concluded view about this matter. The conclusions I have reached in relation to other grounds mean that this Court should give its own consideration to the material in the report.

Ground 2 – The sentencing judge erred in finding that there was no evidence of remorse or contrition.

33 The judge said the following on the question of remorse: There is no evidence of remorse or contrition. His counsel … suggested that the pleas were evidence, together with his admissions when arrested, of contrition. That submission is not accepted. The offender was caught with a substantial quantity of ecstasy. The Crown had a strong case based on telephone intercepts, listening devices and covert surveillance in respect of the offences. In those circumstances, the plea does not of itself do anything more than acknowledge the strength of the prosecution case.

34 There was other material before the judge that bore on the question of whether he was remorseful. For example, the applicant's aunt gave evidence that he had expressed to her his shame and disappointment for what he had done and his regret for the hurt he had caused to people who loved him. There were statements by the applicant, and by members of his family, recorded in the psychological report in a similar vein. Whether this other evidence established that the applicant had accepted responsibility for his actions and had acknowledged the damage they had caused (s 21A(3)(i) Crimes (Sentencing Procedure) Act) was a matter for judgment.

35 The applicant's counsel made no reference to any of that other evidence in support of a submission that the judge should find that his client was remorseful. For this reason it is, perhaps, explicable that the judge confined his attention to the submission that the admissions to police and the plea of guilty were evidence of contrition. Nevertheless, the statement, "There is no evidence of remorse or contrition" is difficult to understand in the light of the type of evidence referred to in the preceding paragraph. I am satisfied this ground has been made good.

Ground 3 – The sentencing judge erred in finding that the only prospect of rehabilitation arose from "age and increasing maturity"

36 It was submitted for the applicant that there was material before the judge that should have led to a finding that the applicant had "good prospects of rehabilitation if he received the necessary assistance". However his Honour said: There is no evidence other than what is contained in the psychological/social work report that he is "clean", or has done an alcohol and drug course in custody, or any other evidence on which the court could find a good prospect of rehabilitation. Age and increasing maturity may provide the only hope of rehabilitation, and assist the offender to not re-offend.

37 The report included that the applicant had said, "I'm off it now. I'm clean" and that he had "completed a drug and alcohol course" in custody which had taught him that "drugs are not good for you"; "they get you nowhere" and "they take all your money". Mr Gorrell offered his opinion that the applicant did not appear to have a "hardened personality" like other inmates and that he appeared to have insight into the fact that he would be better off leaving the Central Coast so as to avoid negative influences. His view was that the applicant was genuine in his stated desire to rectify his past errors and develop a worthwhile life for himself. Reference was also made to the evidence of the applicant's aunt that she thought that he wanted to take advantage of opportunities and make something of himself.

38 The applicant's submissions sought to construe what the judge said in the passage extracted above as meaning that he did not think there was any evidence concerning rehabilitation prospects apart from the two matters he mentioned. If the judge had said that it would most obviously have been wrong. However, that, with respect, is a misreading of the sentencing remarks. I would not readily conclude that the judge ignored or overlooked the evidence to which the applicant referred. All the judge said was that there was no evidence, apart from the two matters he mentioned, that supported a finding that the applicant's rehabilitation prospects were "good".

39 A conclusion as to an offender's prospects of rehabilitation is largely intuitive and is a discretionary decision about which minds may differ. Evidence that an offender genuinely wants to be rehabilitated, which is the effect of the evidence relied upon by the applicant under this ground, does not compel a finding that rehabilitation prospects are "good". There is no merit in this ground.

Ground 4 – The sentencing judge erred in sentencing the applicant on the basis that his criminal record "can have no impact on the sentencing in respect of these matters", "other than noting the fact of those offences and his poor record of compliance with orders for supervision relating to the offence of drive whilst under the influence of alcohol or drug".

40 It was submitted that the judge erred in failing to find that it was a mitigating feature that the applicant did not have a significant record of previous convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act. The judge simply referred to the three relatively minor entries in the applicant's criminal history before stating, "his criminal record can have no impact on the sentencing in respect of these matters".

41 This ground corresponds to ground 1 in Locke's appeal. The judge had made an almost identical statement about Locke's criminal history. I am satisfied in this case, as I indicated I was in the case of Locke, that his Honour was simply saying that whilst there were previous convictions, they could be ignored. I reiterate that I would not readily conclude, in the absence of anything definitive to the contrary, that his Honour did anything other than deal with the applicant as if he was a person with no (significant) previous convictions.

Ground 5 – The sentencing judge erred in failing to sentence the applicant on the basis that no "injury, emotional harm, loss or damage" was caused by the offence constituted by the first and second counts in the indictment.

42 It is contended that in respect of the offences that involved supplies to undercover operatives the judge erred in not finding the mitigating feature that the "injury, emotional harm, loss or damage caused by the offence was not substantial": s 21A(3)(a) Crimes (Sentencing Procedure) Act. The statement of the ground is erroneous in referring to the "first and second counts in the indictment" but should be understood as a reference to the commercial supply offences committed between 21 May and 24 July 2008 and on 14 August 2008.

43 The same point was argued in the case of Locke. Unlike in that case, however, in this case a submission was made to the judge that this finding should be made. The judge said nothing about it. Mr Odgers drew attention to the fact that the two offences which concerned supplies to undercover operatives brought the highest of the four sentences. This, he submitted, supported the proposition that the judge did not take into account this mitigating feature. However, Mr Odgers conceded in oral submissions that, even if taken into account as a mitigating factor, it was of "relatively small" weight.

44 In Regina v Chan [1999] NSWCCA 103 at [21], Smart AJ said of a supply of drugs to a police undercover operative that, "Of itself this is usually unlikely to lead to other than a very minor diminution of culpability". Moreover, such "very minor diminution of culpability" maybe counter balanced by the aggravating feature that the offence was committed with disregard for public safety: Regina v Way [2004] NSWCCA 131; 60 NSWLR 168 at [172]. Accordingly, there is no merit in this ground.

Ground 6 – The sentencing judge erred in making the commencement date of sentence for the first offence on the indictment 18 months after the commencement date of the sentence for the third offence on the indictment.

45 Because there was no indictment, but simply court attendance notices that were before the District Court following committal for sentence, there was some confusion in written and oral submissions as to which offences were referred to. It is clear, however, that this ground concerns the sentences imposed for the commercial supply offences that were the subject of sentences of 8 years 6 months commencing on 1 April 2011 and 1 October 2012.

46 The submission was in short compass. The offence that occurred between 23 May and 27 September 2008 involved supplies to "sub-distributors and others" of a total of 170.75 grams. The offence that occurred between 21 May and 24 July 2008 involved supplies to undercover operatives of a total of 282.42 grams.

47 All of the supplies covered by the two charges could have been the subject of a single commercial supply charge within the same period as the first offence just mentioned. The combined total amount supplied was 453.17 grams which is under the large commercial quantity threshold of 500 grams. The only thing differentiating the activity in the two charges is the recipient of the drugs, undercover police operative or not undercover police operative. Accordingly, upon a consideration of the principle of totality, it was submitted that accumulating the sentence for one upon the other by 18 months was excessive.

48 Although the judge did make reference to the totality principle, it was a passing one: "The court has also taken into account the totality of the sentences to be imposed". There was no explanation as to why the second sentence to be served was accumulated upon the first by 12 months, the third sentence was then accumulated upon the second by 18 months, and the fourth sentence was accumulated upon the third by 18 months. I note that in the cases of McKellar and Locke the judge accumulated each of the sentences by 12 months and in the case of Ellis the sentences were accumulated by 9 months. Why he chose a significantly greater degree of accumulation in the applicant's case, particularly where there were four sentences imposed, is not clear. I am satisfied that in all of the circumstances the level of accumulation was excessive.

Re-Sentence

49 Apart from a reduction in the degree of accumulation, Mr Odgers also submitted that this Court should conclude in relation to each individual offence that less severe sentences were warranted and should have been passed: s 6(3) Criminal Appeal Act 1912. I am satisfied that is so. The offences were undoubtedly serious and so the degree to which there should be a reduction of individual sentences should be modest and only in respect of the total terms for the two longest sentences and not at all in respect of the non-parole periods for reasons which appear below. It is the degree of accumulation that should receive the most attention.

50 In a consideration of re-sentencing, the applicant should retain the recognition of the utilitarian value of his pleas of guilty. I am prepared to accept that he regrets his involvement in drug supply activity and that he has an appreciation of the harm that drugs cause in the community. I would assess his rehabilitation prospects as reasonable. (It was implicit in the submissions that this was an available finding when Mr Odgers wrote that the applicant had "good rehabilitation prospects if he received the necessary assistance" (emphasis added)). He has no significant record of previous convictions. The finding of special circumstances should be maintained.

51 The circumstances of the applicant's upbringing as disclosed in the evidence (both documentary and oral), particularly that he was introduced to illicit drug abuse when vulnerable and young, and the fact that he was still a very young man at the time of the offences are also relevant matters. I am prepared to infer from his age that there was some measure of immaturity in his decision making processes.

52 Those matters must, of course, be appropriately balanced against the objective seriousness of the offences. The primary judge's findings were not the subject of any direct challenge. I would act upon those findings, although I would ignore the words "at least" in the expression "at least at the high end of the mid-range".

53 Finally, I record that the standard non-parole period should not be applied for the same reasons as those given by the primary judge but remains relevant as a benchmark. The subjective matters I have briefly alluded to justify a significant departure from the 10 year prescription but not to any extent further than in the original sentencing orders. The overall non-parole component will be reduced because of the lesser degree of accumulation.

Orders

I propose the following orders: 1 Application for leave to appeal granted. 2 Appeal allowed. 3 The sentence for the offence of supply prohibited drug (1 October 2008) of imprisonment for a fixed term of 3 years to date from 1 October 2008 and expire on 30 September 2011 is confirmed. 4 The remaining sentences imposed in the District Court are quashed and in lieu, the following sentences are imposed: Supply commercial quantity of prohibited drug (23 May – 27 September 2008) : Sentenced to imprisonment comprising a non-parole period of 3 years 6 months with a balance of term of 2 years 6 months. The sentence is to commence 1 April 2009. The non-parole period will expire 30 September 2012. The total term will expire 31 March 2015. Supply commercial quantity of prohibited drug (21 May – 24 July 2008) : Sentenced to imprisonment comprising a non-parole period of 4 years 6 months with a balance of term of 3 years 6 months. The sentence is to commence 1 October 2009. The non-parole period will expire on 31 March 2014. The total term will expire 30 September 2017. Supply commercial quantity of prohibited drug (14 August 2008) : Sentenced to imprisonment comprising a non-parole period of 4 years 6 months with a balance of term of 3 years 6 months. The sentence is to commence 1 April 2010. The applicant will be eligible for release on parole upon the expiration of the non-parole period on 30 September 2014. The total term will expire on 31 March 2018. The overall term is one of 9 years 6 months with a non-parole component of 6 years. **********

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