Abbas, Bodiotis, Taleb and Amoun v R - [2013] NSWCCA 115

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115
Hearing dates: 14/02/2013
Decision date: 22 May 2013
Before: Bathurst CJ at [1]
Basten JA at [31]
Hoeben CJ at CL at [67]
Garling J at [110]
Campbell J at [255]
Decision:
In the application of Amoun:
1. Application for leave to appeal granted.
2. Appeal upheld.
3. Sentence imposed on 23 March 2012 quashed.
4. In lieu thereof Amoun is sentenced as follows:
(i) On Count 1, taking into account the three matters on a Form 1, a non-parole period of 4 years and 4 months commencing on 30 April 2012, with a balance of term of 2 years and 7 months. The total sentence will expire on 29 March 2019.
(ii) On Count 2, a non-parole period of 3 years and 5 months commencing on 30 January 2011, with a balance of term of 1 year and 9 months. The total sentence will expire on 29 March 2016.
The first day upon which Amoun will be eligible to be released is 29 August 2016.
In the application of Bodiotis:
1. Leave to appeal granted.
2. Appeal be dismissed.
In the application of Taleb:
1. Leave to appeal granted.
2. Appeal be dismissed.
In the application of Abbas:
1. Leave to appeal granted.
2. Appeal be dismissed.

Catchwords:
CRIMINAL LAW - applications to appeal against sentence - four applicants - all applicants convicted of offences relating to six transactions of supply of a commercial quantity of a prohibited drug(s) and knowingly dealing with the proceeds of the supply of prohibited drug(s) - applicants plead guilty
SENTENCING - whether Form 1 offences were properly taken into account at sentencing - purpose of Form 1 procedure - whether in taking into account Form 1 offences the applicants were effectively sentenced for offences that were not charged on the indictment - whether sentences lacked parity - whether sentence was manifestly excessive - whether sentence reflected appropriate discount for provision of assistance to authorities.
Legislation Cited: Crimes Act 1914 (Cth)
Crimes Act 1900
Criminal Code (WA)
Criminal Procedure Act 1986
Crimes (Sentencing Procedure Act) 1999
Drug Misuse and Trafficking Act 1985
Cases Cited: Anderson v Director of Public Prosecutions (1978) AC 964;
Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146;
DGM v R [2006] NSWCCA 296;
Dionys v The Queen [2011] NSWCCA 272; (2011) 217 A Crim R 280;
Einfeld v R [2010] NSWCCA 87; 200 A Crim R 1; 266 ALR 598;
Giles v Director of Public Prosecutions [2009] NSWCCA 308; 198 A Crim R 395;
Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348;
Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606;
Markarin v The Queen [2005] HCA 25; (2005) 228 CLR 357;
Metropolitan Water Board v Assessment Committee of the Metropolitan Burrough of St Marylebone (1923) 1 KB 86;
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120;
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295;
R v AEM Senior [2002] NSWCCA 58;
R v Barton [2001] NSWCCA 63; (2001) 121 A Crim R 185;
R v Calcutt [2012] NSWCCA 40;
R v Grube [2005] NSWCCA 140;
R v JCW [2000] NSWCCA 209; 112 A Crim R 466;
R v Jones (1978) Tas SR 126;
R v Miles [2006] EWCA Crim 256;
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270;
R v Syres (1908) 25 TLR 71;
R v Toudevin [1996] 2 VR 402;
Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252;
The Queen v De Simoni [1981] HCA 31; (1981) 147 CLR 383;
Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465;
Weininger v R [2003] HCA 14; (2003) 212 CLR 629
Category: Principal judgment
Parties: Mohammad ABBAS - Applicant
Khaled TALEB - Applicant
Con BODIOTIS - Applicant
Ghassan AMOUN - Applicant
Regina - Respondent Crown
Representation: Counsel:
Mr P Lange - Applicant Abbas
Ms A Betts - Applicant Taleb
Mr I McLachlan - Applicant Bodiotis
Mr T Game SC - Applicant Amoun
Ms H Wilson - Respondent Crown
Solicitors:
Hanna Legal - Applicant Abbas
SF Legal - Applicant Taleb
O'Brien Solicitors - Applicant Bodiotis
William O'Brien & Ross Hudson Solicitors - Applicant Amoun
S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown

File Number(s): 2008/56292, 2009/136346, 2009/134916, 2009/152421
Decision under appeal

Before:

Zahra SC DCJ

Judgment

BATHURST CJ: Mr Mohammad Abbas pleaded guilty to two counts of knowingly taking part in the supply of a commercial quantity of a prohibited drug, Methylamphetamine, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. The amount of the drug the subject of Count 1 was 500 grams, whilst in respect of Count 2 it was 372 grams.

In respect of Count 1 the sentencing judge was asked to take into account four other offences pursuant to s 33 of the Crimes (Sentencing Procedure Act) 1999 ("the Sentencing Act"), which were set out on a Form 1. These offences in respect of which the applicant, Abbas, had been charged but not convicted were as follows:

"1. H36754416/2 Between about 11 and 12 May 2008 at Auburn NSW did knowingly take part in the supply of the commercial quantity of methylamphetamine (284 g). (Section 25 (2) of the Drug Misuse and Trafficking Act 1985)

2. H36754416/3 Between about 11 and 12 May 2008 at Auburn, NSW did knowingly take part in the supply of the commercial quantity of 3,4 methylendioxymethamphetamine (400g). (Section 25 (2) of the Drug Misuse and Trafficking Act 1985)

3. H36754416/7 On 31 May 2008 at Auburn, NSW did participate in a criminal group knowing that his participation contributed to criminal activity. (Section 93T(1) Crimes Act 1900)

4. H38175717/1 Between 30 and 31 May 2008 at Holbrook, NSW did agree to supply 56g cocaine (56g) (Section 25 (1) of the Drug Misuse and Trafficking Act 1985)"

The offences the subject of Counts 1 and 2 carried a maximum penalty of 20 years' imprisonment. The first two matters on the Form 1 carried a similar maximum penalty. The third matter carried a maximum penalty of 5 years' imprisonment. The fourth matter carried a maximum penalty of 15 years' imprisonment.

Abbas was sentenced on Count 1, in respect of which the Form 1 offences were taken into account, to imprisonment for 7 years to commence on 26 December 2011 and to expire on 25 December 2018, with a non-parole period of 4 years to expire on 25 December 2015. In relation to Count 2, the applicant was sentenced to imprisonment for 4 years and 6 months commencing on 26 December 2010 and expiring on 25 June 2015, with a non-parole period of 2 years and 6 months to expire on 25 June 2013.

Abbas relied on three grounds of appeal:

"1. His Honour erred in increasing the sentence in respect of count 1, in order to reflect the additional criminality of the Form 1 offences.

2. The Applicant has a justifiable sense of grievance in the light of the sentence imposed upon the co-offender, Con Bodiotis.

3. The sentence imposed was manifestly excessive."

Ground 1

In relation to the Form 1 offences the sentencing judge made the following remarks:

"The proper treatment of Form 1 matters was considered by the Court of Criminal Appeal in the guideline judgment in Attorney General's Application Number 1/2002 (2002) NSWLR 147.

The fact that there are matters to be taken into account on the Form 1 means that in an appropriate case, greater weight should be given to the need for personal deterrence and the community's entitlement to extract retribution. The point of the process may be to impose a longer sentence or to alter the nature of the sentence that would be imposed if the primary sentence stood alone.

Here the criminality in the matters on the form one is substantial. The offender acted as a conduit between the supplier and purchaser. Significant quantities of prohibited drug were involved.

There are two further counts involving the commercial quantities of prohibited drugs together with an additional supply offence of some significance. The offender is also charged with participating in a criminal group. Whilst the drug the subject of the counts of commercial supply were not ultimately supplied to the first intended recipient they were procured for the purposes of supply to the first intended recipient and ultimately disseminated. The additional criminality in the form one offences needs to be reflected in the sentence imposed for the primary offence.

I will not be specifying a separate sentence for the matters on the Form One but rather take them into account in accordance with s32 of the Crimes (Sentencing Procedure) Act 1999 (NSW); and I do not impose a separate sentence in that respect."

The applicant, Abbas, submitted that although the sentencing judge stated that he was not imposing a separate sentence for the matters on the Form 1, his remarks that greater weight be given to the need for the community's entitlement to extract retribution and that the additional criminality in the Form 1 offences needed to be reflected in the sentence imposed for the primary offence were erroneous and contrary to the principles laid down in TheQueen v De Simoni [1981] HCA 31; (1981) 147 CLR 383, Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 and Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629.

Abbas accepted that the construction placed on s 33 of the Sentencing Act by this Court in Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146 ("Attorney General's Reference") was correct. However, he submitted that Attorney General's Reference had been wrongly applied by the sentencing judge insofar as he expressed the view that the additional criminality in the Form 1 offences needed to be reflected in the sentence imposed for the primary offence. The applicant submitted that the approach to be adopted was set out in the judgments of Adams J in Dionys v The Queen [2011] NSWCCA 272; (2011) 217 A Crim R 280 and R v Calcutt [2012] NSWCCA 40, rather than the approach taken by the majority in those cases.

The relevant provisions of the Sentencing Act provide as follows:

"32(1) In any proceedings for an offence (the principal offence), the prosecutor may file in the court a document that specifies other offences with which the offender has been charged, but not convicted, being offences that the offender has indicated are offences that the offender wants the court to take into account when dealing with the offender for the principal offence.

(2) A list of additional charges may be filed at any time:

(a) after the court finds the offender guilty of the principal offence, and

(b) before the court deals with the offender for the principal offence.

(3) A copy of the list of additional charges, as filed in the court, is to be given to the offender.

(4) A list of additional charges:

(a) (Repealed)

(b) must be signed by the offender, and

(c) must be signed by or on behalf of the Director of Public Prosecutions or by a person, or a person belonging to a class of persons, prescribed by the regulations.

(5) A list of additional charges is taken to be signed on behalf of the Director of Public Prosecutions if it is signed by a person who is authorised to do so by means of a written order signed by the Director of Public Prosecutions or who belongs to a class of persons so authorised.

(6) A failure to comply with the requirements of this section does not invalidate any sentence imposed by the court for the principal offence.

33(1) When dealing with the offender for the principal offence, the court is to ask the offender whether the offender wants the court to take any further offences into account in dealing with the offender for the principal offence.

(2) The court may take a further offence into account in dealing with the offender for the principal offence:

(a) if the offender:

(i) admits guilt to the further offence, and

(ii) indicates that the offender wants the court to take the further offence into account in dealing with the offender for the principal offence, and

(b) if, in all of the circumstances, the court considers it appropriate to do so.

(3) If the court takes a further offence into account, the penalty imposed on the offender for the principal offence must not exceed the maximum penalty that the court could have imposed for the principal offence had the further offence not been taken into account.

(4) A court may not take a further offence into account:

(a) if the offence is of a kind for which the court has no jurisdiction to impose a penalty, or

(b) if the offence is an indictable offence that is punishable with imprisonment for life.

(5) For the purposes of subsection (4) (a), a court is taken to have jurisdiction to impose a penalty for an offence even if that jurisdiction may only be exercised with the consent of the offender.

(6) Despite subsection (4) (a), the Supreme Court, the Court of Criminal Appeal and the District Court may take a summary offence into account.

...

35(1) If a further offence is taken into account under this Division:

(a) the court is to certify, on the list of additional charges, that the further offence has been taken into account, and

(b) no proceedings may be taken or continued in respect of the further offence unless the conviction for the principal offence is quashed or set aside.

(2) This section does not prevent a court that has taken a further offence into account when dealing with an offender for a principal offence from taking the further offence into account if it subsequently imposes a penalty when sentencing or re-sentencing the offender for the principal offence.

(3) An admission of guilt made for the purposes of this Division is not admissible in evidence in any proceedings relating to:

(a) the further offence in respect of which the admission was made, or

(b) any other offence specified in the list of additional charges.

(4) An offence taken into account under this Division is not, merely because of its being taken into account, to be regarded for any purpose as an offence of which an offender has been convicted.

(5) In or in relation to any criminal proceedings, reference may lawfully be made to, or evidence may lawfully be given of, the fact that a further offence has been taken into account under this Division in imposing a penalty for a principal offence of which an offender has been found guilty if, in or in relation to those proceedings:

(a) reference may lawfully be made to, or evidence may lawfully be given of, the fact that the offender was found guilty or convicted of the principal offence, and

(b) had the offender been found guilty or convicted of the further offence so taken into account, reference could lawfully have been made to, or evidence could lawfully have been given of, the fact that the offender had been found guilty or convicted of that further offence.

(6) The fact that a further offence has been taken into account under this Division may be proved in the same manner as the conviction for the principal offence."

A number of matters may be noted about these sections. First, a further offence can only be taken into account if there is an admission of guilt and an indication by the offender that he or she wishes the offence to be taken into account. Second, the combined effect of s 32 and s 33(2) means that the procedure can be adopted only with the consent of both the Prosecutor and the offender. Third, notwithstanding that consent, the Court has a residual discretion whether or not to take those offences into account. Finally and importantly, the penalty imposed cannot exceed the maximum penalty that the Court could have imposed for the principal offence. In Attorney General's Reference, Spigelman CJ held at [35] that the reference to the maximum penalty which could be imposed was the maximum penalty prescribed by statute for the principal offence. That conclusion is not contested by Abbas or for that matter two of the other applicants, Amoun and Bodiotis.

Section 33 of the Sentencing Act has its origin in a non-statutory procedure adopted by the judges of the English Courts, ultimately set down in R v Syres (1908) 25 TLR 71. Its purpose was explained by Lord Diplock in Anderson v Director of Public Prosecutions (1978) AC 964 in the following terms (at 977):

"My Lords, in referring to cases taken into consideration in determining sentence, which the draftsman of the Act did in section 39 (2) and also in section 35 (1) which relates to compensation orders, he was using what has become a well-known term of legal art. It refers to a practice, which apparently has existed since the turn of the century and which received in 1908 the express approval of the newly created Court of Criminal Appeal in Rex v. Syres (1908) 25 T.L.R. 71. The laudable object of the practice is to give to a convicted offender the opportunity when he has served his sentence to start with a clean sheet and not to be arrested at the prison gates for some other offence which he committed before the particular offence which was the cause of his conviction. In effect, this practice involves the convicted offender who has been convicted of one offence in being punished for other offences for which he has never been formally arraigned, tried or convicted and to which he has never formally pleaded guilty."

It will be noted that Lord Diplock spoke of the effect being that the offender was punished for other offences for which he had never been formally arraigned, tried or convicted. As was pointed out in Attorney General's Reference at [24], the qualification on this statement expressed by Neasey J in R v Jones (1978) Tas SR 126 should be accepted. The qualification was to the following effect (at 131-132):

"The difficulty is to know to what extent, if any, the sentence may include punishment which is separately referable to the offences taken into account, as distinct from the principal offence. Some judicial statements appear to suggest that part of the sentence may be related specifically to the offences taken into account. For instance, Lord Diplock in D.P.P. v Anderson, in the passage earlier cited, said that the practice involves the offender in being punished for other offences for which he has never been arraigned, tried or convicted. Perhaps his Lordship meant that the effect is to punish the offender for the other offences even though the technical substance of the matter is that the offender may only receive an increased sentence for the principal offence, the increase being justified from considerations arising out of the existence of the other admitted offences. Again, in R. v. Batchelor, Lord Goddard L.C.J. giving judgment for the Court of Criminal Appeal said that the practice of taking other offences into account 'means that the court can give a longer sentence than it would if it were dealing with him only on the charge mentioned in the indictment. But, technically, taking offences into account does not amount to a conviction.' Margrave-Jones, op.cit., at p. 197, refers to the sentence given when this practice is adopted as a 'comprehensive sentence', covering both the substantive crime for which the prisoner stands convicted, and also the other offences which he wishes to be taken into consideration.

However, the Court of Criminal Appeal in England has clearly laid down that the sentence remains one for the principal offence only, notwithstanding the taking into account of other offences."

(Citations omitted)

The original precursor of the section, s 447B of the Crimes Act 1900, was introduced by the Crimes (Amendment) Act 1955. In the course of the Second Reading Speech the Attorney General made the following remarks:

"...The purpose of this new section is to empower courts before whom persons are convicted on indictment to take into account other offences which the accused admits. In this the Government is following what is an established practice in England in this same regard, although in England the basis for the practice is not statutory.

The object of the practice is to enable an accused person on release from prison to face civil life without fear of being charged with earlier offences, and it also has the advantage of avoiding multiplicity of proceedings. There has always been a danger that, after a person is released from prison, some vindictive person will invoke the law again, and this provision will prevent that type of action.

It is recognised that care will be needed not to put forward for consideration, when an accused is convicted of one offence, charges that might be of great seriousness. It is felt that this will present no insuperable difficulties, and the frequency with which Attorney-Generals have felt compelled to abandon further criminal charges against accused persons already convicted of two or more offences for which they have received concurrent sentences, suggests that our adopting the English practice will result in a great saving of work and time. Let me illustrate. An accused person may be charged with fifteen cases of break and entering, or fifteen cases of fraudulent misappropriation. He is convicted of one charge and sentenced to, say, three years' imprisonment. He is then convicted of the second charge and, in this case, to show evidence of system, the fact of the other thirteen offences or some of them, may be placed before the judge. The judge, having regard to all the circumstances, imposes a second sentence of three years' imprisonment, but orders that it shall be concurrent with the first sentence so that, in all, the accused will merely serve three years' imprisonment, subject to such automatic remissions as are prescribed by regulations for good conduct.

Where this situation arises, it is quite pointless to proceed with the other thirteen charges. They have already been considered by the judge and he has indicated quite unmistakably that for the whole of the accused's conduct the appropriate penalty is three years' imprisonment, less remissions, concurrent with the original sentence. As the position stands, all of these thirteen cases must now be the subject of a separate report by the Crown Prosecutor, a separate report by the assistant law officer, and then consideration by the Attorney-General."

What needs to be interpreted are the words of the section in context and not the Minister's Second Reading Speech: Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 at [32]-[33]. However, it does seem apparent that the object of the section was not to impose a distinct penalty for the offences to be taken into account. That is reflected in s 33(3) of the Sentencing Act which provides that any increase in penalty must not exceed the maximum penalty that the Court could have imposed for the principal offence.

So much was made clear in Attorney General's Reference. In that case Spigelman CJ, with whom the other members of the Court agreed, expressly rejected what he described as a "top down" approach involving the identification of an appropriate penalty for the full gamut of offences and then the application of a discount to take account of the principle of totality: see Attorney General's Reference at [24]-[29]. His Honour's ultimate conclusion on this issue was summarised at [29]:

"[29] I do not understand Wood CJ at CL's reference in R v Bavadra to the 'totality of criminality' to suggest that a sentencing judge should determine sentences for all the offences before the judge, whether on the indictment or on the Form 1. I understand his Honour to have intended no more than the proposition for which Simpson J referred to R v Bavadra as authority in R v Harris (2001) 125 A Crim R 27 at 31 [23] that a sentencing judge '... should give due recognition to the gravity of those offences'. If, contrary to my understanding, the reference in R v Bavadra was intended to suggest that a sentencing judge was imposing punishment for the Form 1 offences, I would respectfully disagree that this is permissible under the statute. The focus, as I will show below, must be on 'the principal offence' alone."

His Honour's approach was summarised in the following paragraphs of his judgment:

"[18] A number of propositions with respect to the process of taking into account matters on a Form 1 are well established and are uncontroversial. First, the entire point of the process is to impose a longer sentence (or to alter the nature of the sentence) than would have been imposed if the primary offence had stood alone. Secondly, it is wrong to suggest that the additional penalty should be small. Sometimes it will be substantial. (See, eg, R v White (1981) 28 SASR 9 at 13; Murrell v The Queen (1985) 4 FCR 168 at 179, per Blackburn J; R v Vougdis (1989) 41 A Crim R 125 at 128-129; R v Morgan (1993) 70 A Crim R 368 at 371-372).

[19] These authorities focus on the sentence that is appropriate for the charge on the indictment, with a view to increasing it by reason of the Form 1 offences for which guilt has been admitted. This can be characterised as a 'bottom up' approach.

...

[23] The Court must, of course, give effect to the statutory regime. However, it does so in a context in which the basic principle of the common law is that no-one should be punished for an offence of which he or she has not been convicted. (R v De Simoni (1981) 147 CLR 383 at 389, 395-396; R v Olbrich (1999) 199 CLR 270 at 278 [18].) The offences on a Form 1 constitute an admission of guilt, but there is no conviction.

...

[39] The sentencing court is sentencing only for the 'principal offence'. It is no part of the task of the sentencing court to determine appropriate sentences for offences listed on a Form 1 or to determine the overall sentence that would be appropriate for all the offences and then apply a 'discount' for the use of the procedure. This is not sentencing for the principal offence.

[40] In my opinion, it is pertinent to identify the elements to be considered in determining the sentence for the primary offence upon which the commission of other offences, for which no conviction is being recorded, may impinge. The case law has identified a number of distinct and sometimes overlapping purposes to be served by sentencing. In my opinion, not all these purposes are relevant to the process of taking other offences into account, when sentencing for a particular offence, that is, the primary offence.

[41] In R v Barton (at 195 [64]), in a passage subsequently referred to in R v AEM Snr (at [81]) and R v Perese (at 522 [81]), I made some observations which I repeat.

[42] The position, in my opinion, is that, although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The Court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community's entitlement to extract retribution for serious offences when there are other offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence. There are matters which limit the extent to which this is so. The express provision in s33(3) referring to the maximum penalty for the primary offence is one. The principle of totality is another."

The principal difference between the parties in the present case involves what Spigelman CJ meant in par [42] of his judgment, where he referred to the Court giving weight to the community's entitlement to extract retribution for serious offences when there are other offences for which no punishment has been imposed. As I indicated earlier, each of the applicants, other than Taleb, submitted the correct approach was that of Adams J in Dionys supra and Calcutt supra. In the former case his Honour made the following comments at [9] and [10]:

"[9] In Grube the appellant submitted that, where an offence, considered by itself could attract a sentence in a posited range, Form 1 offences might justify a sentence at the top of that range but no further. Hall J (Grove and Howie JJ agreeing) in the course of rejecting this submission, said -

'[36] Many of the 42 offences on the Form 1 involved invasions of residential premises and property stolen was of considerable value. When the court is required to take into account a multiplicity of serious offences, as in this case, it is required to allow for the total criminality revealed by the whole course of the offender's conduct as appropriately reflected in the sentence. If there was, as argued in the present application, a requirement to apply a proportionality or relativity concept, then in some circumstances, including those that arise in the present matter, there would be a risk of the imposition of a penalty that did not adequately reflect the total criminality. The seriousness of such an outcome is apparent for it would potentially, if not actually, tend to bring the administration of justice into disrepute in certain cases by mandating a process or approach that produced a manifestly inadequate sentence determined on an unduly narrow or artificial basis.

[37] The number and magnitude of the offences in the Form 1 in the present matter, in my opinion, justified the sentence imposed ... which increased the sentence that was appropriate for the principal offence to reflect the total criminality that took place over a considerable period of time arising from so many offences committed over a widespread geographical area in Sydney and beyond. [The judge] was required to have regard to the elements of personal deterrence and retribution in relation to the Form 1 offences and I believe he did so without any double counting as asserted by the applicant.

(Emphasis added.)

[10] If the italicised phrase is taken to suggest that, in punishing for the substantive charges, the court can punish additionally for the Form 1 charges, in my respectful opinion it is inconsistent with the principle for which AG's Reference No 1 of 2002 stands. The 'total criminality revealed by the offender's conduct' of course includes all the offences including those on the Form 1. It was necessary, as Hall J explained, for the primary judge to have regard to the 'elements of personal deterrence and retribution in relation to the Form 1 offences'. In my respectful opinion, it is simply not open to punish for the criminality involved in the Form 1 offences, nor to increase the sentence otherwise necessary in respect of the substantive offence to deter the offender from committing offences such as the substantive offence nor to exact retribution for the Form 1 offences. The Form 1 offences inform both the objective nature of the criminality involved in the substantive offence and the subjective features such as remorse and the prospects for rehabilitation and may therefore justify or even require a heavier penalty than would have been imposed had that offence stood alone. But, with respect, that sentence cannot in any sense exact retribution, that is to say, punish, for the Form 1 offences."

Hoeben J, as his Honour then was, with whom McClellan CJ at CL agreed, gave a somewhat wider interpretation of the section:

"[65] What is clear from the above paragraphs is that while the Court is sentencing only for the principal offence and not for the Form 1 offences, the entire point of the process is to impose a longer sentence and that the additional component may not be small. While not excluding other considerations, the Chief Justice referred specifically to greater weight being given to personal deterrence and to 'the community's entitlement to extract retribution for serious offences when there are other offences for which no punishment has in fact been imposed'."

A similar difference of opinion arose in Calcutt supra. In that case Adams J, after referring to his discussion of Attorney General's Reference in Dionys supra, made the following remarks:

"[42] Firstly, it is not in issue, of course, that the Form 1 offence must be taken into account. The crucial question concerns the way in which this is to be done. In my respectful view, the sentence for the primary offence can only be increased to take account of a Form 1 offence to the extent that the commission of that offence indicates that

'the need for personal deterrence ... ought to be given greater weight by reason of the course of conduct in which the accused has engaged ... [and] the community's entitlement to exact retribution for serious offences when there are other offences for which no punishment has in fact been imposed': Re Attorney General's Application No 1 of 2002 per Spigelman CJ at [42].

The first consideration is easily appreciated; so far as the second is concerned it must be understood as subject to the fundamental principle that 'the focus throughout must be on sentencing for the primary offence' (ibid at [43]) and the approach that 'in some senses [semble, in any sense] sentences were being imposed for the Form 1 offences ...[must be] rejected' (ibid at [45]). The extent to which the second consideration is 'always material in the sentencing process' gives some guidance as to the way in which it is to be understood. It is, with respect, clear that his Honour was not suggesting that the offender can be punished for uncharged (though admitted) crimes. Rather, the criminality of the primary crime is to be assessed in light of those other offences. The significance of the other offences will vary from case to case but committing an offence in the course of other criminality is, to a greater or lesser degree, more inherently serious than committing that offence in isolation and the measure of retribution is accordingly greater. The other offences may well also be material to the offender's subjective case. Thus, the Form 1 procedure is no more than a convenient and transparent process that allows the uncharged offences to be taken into account to the extent that they reflect on the seriousness of the primary offence and the other factors relevant to assessing the appropriate sentence for that offence and also giving the offender the certainty that he or she will not be further or separately punished for them.

[43] Put somewhat differently, I do not accept that the Court intended in Re Attorney General's Application No 1 of 2002 to qualify in the slightest degree the fundamental principle that a person cannot be punished for offences for which he or she has not been convicted, as the passages to which I have referred demonstrate. Thus, the significance of the Form 1 offences can never be considered in isolation but always and only by assessing their impact on the relevant issues which fall to be considered in sentencing for the primary offence and for that offence alone. Those issues are not expanded, though of course they might well be informed, by the commission of the Form 1 offence. I therefore respectfully disagree with interpretations of Re Attorney General's Application No 1 of 2002 that give to the reference to retribution the effect, in substance if not in form, that directly or indirectly subverts the fundamental principle to which I have referred."

Whealy JA and Latham J took a different view. In par [24] of his judgment, Whealy JA expressed agreement with what was said by this Court in R v Grube [2005] NSWCCA 140:

"[24] In R v Grube [2005] NSWCCA 140, this Court rejected an argument that where matters are taken into account on a Form 1, the penalty for the principal offence is limited by the appropriate range for that offence. Hall J (with whom Grove and Howie JJ agreed) observed:

'Thus in the hypothetical example posed by Howie J in argument, taking into account matters on a Form 1 may well put the appropriate penalty above the range of 3 to 5 years that would otherwise apply to the principal offence. An appeal to notions of proportionality or relativity is then neither supported by the terms of Div 3 of Pt 3 nor by the principles as stated by the Chief Justice in the guideline judgment.'"

See also Latham J at [76].

It may be that on many occasions the differing approaches will not give rise to different results. However, the critical difference is that the view of Adams J, particularly as expressed in Dionys supra, is that it is not open to provide in sentencing for the criminality involved in the Form 1 offences, nor to exact retribution for them.

In my respectful opinion, the approach suggested by Adams J is incorrect if it is interpreted as meaning that a sentence cannot be increased to take into account an additional need for deterrence and retribution in respect of the offences charged by virtue of the Form 1 offences being taken into account. Such an interpretation is contrary, in my opinion, to the meaning of s 33 properly construed and to what was said by Spigelman CJ in Attorney General's Reference. Section 33(1) empowers the Court to take the further offences into account where the preconditions in that section and s 32 are met. It is clear from the provisions of s 33(3) that that could lead to an increase in penalty up to the maximum penalty for the principal offence. The existence of these additional offences may demonstrate the greater need for personal deterrence and retribution in respect of the offence charged. This does not mean the Court is imposing a separate penalty for the Form 1 offences. Rather, as part of the instinctive synthesis approach to sentencing explained by McHugh J in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [51]-[54], it takes these matters into account as required by the statute in determining the appropriate penalty for the offence for which the offender is convicted.

That approach would generally, but not universally, lead to the imposition of a sentence longer, and in some cases significantly longer, than would otherwise be required if the Form 1 offences were not taken into account: R v Barton [2001] NSWCCA 63; (2001) 121 A Crim R 185. That does not mean that the principle of proportionality referred to by the High Court in cases such as Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348 at 354; Veen v The Queen (No 2) supra at 472 and 477; Markarian supra at [83], is offended. Rather, the fact that the sentence is to be determined by reference to the additional need for personal deterrence and retribution for the offence for which the offender is being sentenced as a result of the Form 1 charges means that the principle of proportionality falls to be assessed by reference to matters which include those additional factors. That does not involve any injustice to the offender who has chosen to avail him or herself of the s 33 procedure. Nor does it mean that the offender is being sentenced for offences for which he or she has not been convicted. This is because the sentence is imposed by reference to the offence for which the offender has been convicted, by contrast to the "top down" approach rejected in Attorney General's Reference.

That approach, in my opinion, is consistent with the judgment of Spigelman CJ in Attorney General's Reference. I have set out the relevant paragraphs of the judgment above. Spigelman CJ expressly rejected the "top down" approach to the question. At [23], his Honour stated that the statutory regime must be given effect in the context of what was decided by the High Court in De Simoni supra and R v Olbrich [1999] HCA 54; (1999) 199 CLR 270. At [42], his reference to retribution was a reference to retribution in respect of the offences for which the sentence was imposed, albeit in the context of the existence of offences for which no punishment had been imposed. Further, at [67], his Honour emphasised that the Court had a discretion whether or not to take the Form 1 offences into account.

I would add two matters. First, the manner in which Form 1 offences are to be taken into account is not the same as the manner in respect of which prior convictions are considered. That is because the Form 1 offences have not been the subject of punishment: R v Barton supra at [63].

There may be cases in which it is not possible to properly take Form 1 offences into account by reference to the additional need for punishment and retribution in respect of the convicted offence. This will generally only occur in cases where the gravity of the Form 1 offence is far in excess of those for which the offender is being sentenced, or when the magnitude of the offences on the Form 1 make it impossible to take them into account in sentencing for the convicted offence. In these circumstances the Court should decline to take the Form 1 offences into account. That approach is consistent with the approach taken in R v Jones supra. In that case Neasey J declined to take into account offences which he considered to be of far greater gravity than the offences for which the offender was committed for sentence. At 134, his Honour summarised the position as follows:

"The 'other offences' are of a gravity far in excess of those in respect of which the defendant has been committed for sentence, and of themselves would be likely to attract a substantially greater sentence. They have, it is said, been committed over approximately the same time span as the principal offences; they are not offences which would be likely to be unknown to the Crown if the defendant had not revealed them; the means of proof of the 'other offences' available to the Crown would appear to be much the same as that available in respect of the offences charged in the complaints. In all the circumstances, therefore, I decline to take the other offences into account."

In the case of Abbas, the sentencing judge was conscious of the guideline judgment. His reference to the community's entitlement to extract retribution is plainly a reference to what was said in par [42] of Attorney General's Reference. His Honour emphasised that he was not imposing a separate sentence for the Form 1 offence. In those circumstances, there does not seem to be any error of discretion.

It follows that Ground 1 of the application is not made out.

In each of the applications of Amoun and Bodiotis, in so far as they raise an identically expressed ground dealing with their Form 1 offences, for the reasons I have just expressed, I am not persuaded that there has been any error of discretion by the sentencing judge.

There were other grounds argued in respect of each of the other applications. I agree with the reasons of Garling J on these grounds and with the orders which he proposes in each application.

BASTEN JA: It is a fundamental principle of the criminal law that no person should be punished except for an offence for which he or she has been convicted, whether following a plea of guilty or a jury verdict: The Queen v De Simoni [1981] HCA 31; 147 CLR 383 at 389 (Gibbs CJ). However, like most bald statements of principle, its application in particular circumstances may be contestable and it may be qualified by statute. The present case concerns the qualification required in "taking further offences into account", in accordance with the scheme so described in Part 3, Division 3 of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Procedure Act"), being ss 31-35.

The statutory scheme identifies an offence known as "the principal offence" and other or further offences which the court may "take into account when dealing with the offender for the principal offence": ss 32(1) and 33(2). The further offences must be ones with which the offender has been charged, but not convicted (s 32(1)) but in respect of which the offender "admits guilt" and wishes the court to take them into account in dealing with the principal offence: s 33(2).

As an administrative matter, the further offences are to be set out in a "list of additional charges" which is required to be in an approved form: Crimes (Sentencing Procedure) Regulation 2010, cl 4(1). The approved form is "Form 1" made under the Regulation, which has given rise to the popular description of such further offences as "Form 1 offences".

A number of aspects of the principles and procedures to be adopted in dealing with Form 1 offences were identified by this Court in Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146. A guideline judgment, delivered pursuant to s 37(1) of the Sentencing Procedure Act does not contain orders, but rather "guidelines to be taken into account by courts sentencing offenders": s 36. It may be inferred that Attorney General's Application No 1 of 2002 (delivered by Spigelman CJ; Woods CJ at CL, Grove, Sully and James JJ agreeing) was intended to apply generally to courts sentencing offenders in circumstances where Form 1 offences were sought to be taken into account.

The primary propositions to be derived from Attorney General's Application No 1 of 2002 are that the exercise being undertaken is sentencing only for the principal offence (at [39]) but that the further offences can affect the sentence for the principal offence, for example, by demonstrating an increased need for personal deterrence or justifying a greater entitlement on the part of the community to exact retribution: at [42].

Issue in contention - context

No party sought to challenge any aspect of Attorney General's Application No 1 of 2002. Nor is this a guideline judgment, but rather a set of appeals, some of which raise related questions as to the correct approach in sentencing for further offences.

Furthermore, no party queried the manner in which principles in a guideline judgment should operate in particular circumstances. Perhaps ironically, the statutory provision for guideline judgments requires that they contain guidelines "to be taken into account" by courts sentencing offenders.

How a particular matter is to be "taken into account" by a court exercising a discretionary power is not a question which gives rise to a single or precise answer. Much will depend on the particular matters in question. Further, the problems raised by Form 1 offences are not unique: other circumstances may give rise to analogous problems. These points may be illustrated by considering, for example, the following broad factors:

(a) the relationship between the further offences and the principal offence, and

(b) the relationship between the further offences and other factors relevant to sentencing for the principal offence.

The first broad factor, namely the relationship between the further offences and the principal offence, may take a number of different forms. For example, the relationship may be temporal only. Thus, counsel for Mr Abbas suggested as an example the driver of a car stopped and tested for alcohol in circumstances giving rise to suspicion as to the purpose of the trip; a search of the car revealed a package containing a kilo of cocaine. Those circumstances might give rise to a serious drug charge as the principal offence, with a 'high range prescribed content of alcohol' charge on a Form 1. Realistically, the driving offence could have no significant impact on the appropriate sentence for the drug offence, although it might itself invite a custodial penalty if separately charged.

By contrast, the further offences on the Form 1 might be highly relevant to the principal offence because they are of a like kind. They would then provide a basis for treating the principal offence as representative of an ongoing course of conduct. However, the description of charges as "representative" may arise otherwise than by way of identifying further offences on a Form 1. In some circumstances, such as child sexual assault cases, the difficulty of identifying further offences with sufficient precision may preclude their inclusion on a Form 1. Nevertheless, it is obviously desirable that there be conformity in approach in sentencing for representative charges and in dealing with further offences on a Form 1, where they and the principal offence are of a like kind. If different approaches are required, the differences should be identified.

The second broad factor involves the relationship between the further offences and other circumstances relevant to sentencing on the principal offence. Counsel for Mr Abbas posited, by way of example, an offender with a long record of similar offences and poor prospects of rehabilitation. In that situation, the inclusion of further similar offences on a Form 1 might have little or no effect on the sentence imposed for the principal offence. The example appeared to assume that had the further offences been dealt with in their own right, they would have attracted significant punishments.

The purpose of the examples was to demonstrate the differential effects of the further offences (1) in determining whether an increased penalty should be imposed for the principal offence because the further offences would have warranted additional punishment if separately charged and (2) in assessing their effect, if any, on the sentence which would otherwise have been imposed for the principal offence. The ultimate submission was that the trial judge, in taking account of the seriousness of the Form 1 offences, had in effect imposed a penalty referable specifically to those offences, rather than taking them into account in determining the appropriate sentence for the principal offence.

Counsel for Mr Abbas sought to illustrate the significance of the distinction by reference to the decision of this Court in R v Calcutt [2012] NSWCCA 40. The principal charge in that case involved knowingly taking part in the manufacture of a large commercial quantity of MDMA, commonly known as ecstasy. When the police searched the applicant's home, the manufacturing process was in operation and officers seized a quantity of MDMA weighing almost 60 kilograms. An amount of cocaine, weighing 102.7 grams, was also located. There was no evidence of actual supply of cocaine, but a charge of supply cocaine was included on the Form 1, on the basis of the quantity involved. In sentencing the offender, the trial judge, Hock DCJ, noted that "the supply cocaine is a separate and serious matter, the amount being 20 times the indictable quantity of 5 grams" which, she concluded, "must lead to an increase in the sentence." The majority in Calcutt (Whealy JA and Latham J) concluded that no error was involved in this approach. In dissent, Adams J held that the Form 1 offences "did not add significantly to the criminality of the principal offence and, accordingly, ought not to increase the sentence otherwise appropriate for that offence": at [40]. After referring to passages in the judgment of Spigelman CJ in Attorney General's Application No 1 of 2002, Adams J stated at [43]:

"Put somewhat differently, I do not accept that the Court intended in Re Attorney General's Application No 1 of 2002 to qualify in the slightest degree the fundamental principle that a person cannot be punished for offences for which he or she has not been convicted, as the passages to which I have referred demonstrate. Thus, the significance of the Form 1 offences can never be considered in isolation but always and only by assessing their impact on the relevant issues which fall to be considered in sentencing for the primary offence and for that offence alone. Those issues are not expanded, though of course they might well be informed, by the commission of the Form 1 offence. I therefore respectfully disagree with interpretations of Re Attorney General's Application No 1 of 2002 that give to the reference to retribution the effect, in substance if not in form, that directly or indirectly subverts the fundamental principle to which I have referred."

Adams J expressed similar views in Dionys v R [2011] NSWCCA 272.

Limits on sentence

Before turning to the substance of the contention, it is convenient to dispose of one matter of statutory interpretation which was not in issue. The Sentencing Procedure Act provides:

"33 Outstanding charges may be taken into account

...

(3) If the court takes a further offence into account, the penalty imposed on the offender for the principal offence must not exceed the maximum penalty that the court could have imposed for the principal offence had the further offence not been taken into account."

There is an element of ambiguity in this provision. The reference to "the maximum penalty" could refer to that which could properly be imposed having regard to the circumstances of the offending, but disregarding the further offences. Alternatively, it could refer to the maximum penalty for the generic offence. By way of example, the maximum penalty for robbery under s 94 of the Crimes Act 1900 (NSW) is imprisonment for 14 years; on the other hand the maximum penalty which could be imposed in a particular case (that is one which would not be reduced on appeal) may be four years.

It might be thought that the reference to the maximum penalty was intended to refer to that prescribed by statute. The ambiguity arises for two reasons. First, instead of saying the maximum penalty for which the offender was liable in respect of the principal offence, the provision refers to the maximum penalty that "the court could have imposed" for the principal offence. Secondly, the provision introduces a final contingency, by the words "had the further offence not been taken into account". Taking the further offence into account could not have changed the statutorily prescribed maximum penalty, but could only have changed the maximum penalty appropriate to the principal offence the subject of the charge. If s 33(3) did not refer to the statutory maximum, taking into account a further offence might merely remove a basis for leniency. In that way it would have the same limited effect as treating a charge as a representative offence, preventing the charged offences being seen as aberrant conduct, rather than as part of a course of misconduct. As will be noted below, the Form 1 is understood to have a broader scope for increasing the penalty for a particular offence.

The ambiguity was resolved in Attorney General's Application No 1 of 2002 as a reference to the statutory maximum penalty for the generic offence: at [35], final bullet point; adopting the reasoning of Neasey J in Regina v Jones [1978] Tas SR 126 at 133-134. However, that case discussed a predecessor to s 33(3), being s 447B of the Crimes Act 1900 (NSW), which Neasey J said contained "a proviso that when offences are taken into account the sentence imposed may not exceed the maximum penalty allowed for the principal offence". Section 447B as then in force contained the following proviso to sub-s (1):

"Provided that the sentence passed in any such case upon the person so convicted shall not exceed the maximum sentence that may be passed in respect of the offence of which he has been convicted."

That, it may be remarked, is not the same language as that now contained in s 33(3), but the change in language appears to have been treated as inconsequential.

Reference in s 33(3) to the maximum penalty "the court could have imposed" would cover the case of a local court with limited powers, regardless of the maximum penalty prescribed in the offence-creating legislation: Criminal Procedure Act 1986 (NSW), s 267; Crimes (Sentencing Procedure) Act 1999 (NSW), Part 4, Div 2.

An analogy - representative charges

Cases dealing with "representative charges" are instructive, because they are distinct from the situation where further offences are admitted and dealt with pursuant to the statutory Form 1 procedure. The available approach was discussed in Giles v Director of Public Prosecutions [2009] NSWCCA 308; 198 A Crim R 395 by reference to the judgment of Spigelman CJ in R v JCW [2000] NSWCCA 209; 112 A Crim R 466.

"47 There are two reasons why the problems generated by representative charges are intractable. One is that they involve a tension between the jealous protection properly afforded by the courts to the principle that no one should be punished for an offence without the conduct being proved beyond reasonable doubt, or admitted: Anderson v DPP [1978] AC 964 at 977-978 (Lord Diplock); Murrell v R (1985) 4 FCR 168 at 175 (Fox J, Bowen CJ agreeing); R v O'Connell [1993] 2 NZLR 442 at 443. On the other hand, there is a pragmatic consideration that the prosecution be able 'to strike the proper balance between overloading an indictment, on the one hand, and, failing to reflect the alleged criminality by charging a limited range of counts, on the other hand': JCW at [64] (Spigelman CJ). ...

...

51 It is undoubtedly important that where a charge is treated as 'representative' of a broader range of conduct, two further criteria must be fulfilled, namely:

(a) the conduct relied upon by the prosecution is identified with a degree of precision, and

(b) the trial judge is satisfied that the conduct so specified is either proved or admitted by the offender.

The purpose of requiring a degree of precision is to ensure that the offender understands what he or she is conceding and the Court understands what it is taking into account: see, JCW at [63] and [67].

52 The last-mentioned purposes can, to an extent, be satisfied by the use of statutory provisions permitting outstanding charges to be taken into account: cf Sentencing Procedure Act, s 33 and the use, adopted in this case, of a 'Form 1' listing other offences which the offender may invite the Court to take into account. Such a procedure will ensure that the offender is conscious of the precise matters to which he or she is admitting guilt and that the Court has identified offences before it. However, that procedure has its limitations. Such offences can only be taken into account once in relation to a specified offence and do not in terms involve an overall course of conduct.

...

56 The real issue in this case is whether it is appropriate to take a course of conduct into account, to the extent it has been admitted, in order to place the individual offences in a higher range of objective seriousness than would otherwise be the case."

In JCW, Spigelman CJ concluded that the general question as to whether, and if so when, a higher sentence could be imposed did not require a definitive answer, but indicated that the preferred course was to adopt the statutory scheme provided by Part 3, Div 3 of the Sentencing Procedure Act, stating at [63]:

"In my opinion, to use such matters as a circumstance of aggravation, if permissible at all, requires, at the least, sufficient particularisation so that the sentencing judge can tell with precision what range of conduct the charges admitted to be 'representative' are in fact representative of. The extent, if any, to which an admission, other than in the context of the statutory procedure to which I have referred above, can be taken into account as a matter of aggravation, should be carefully confined.

It is thus apparent that the Form 1 procedure has been viewed, at least in this State, as the course by which other offending can properly be taken into account to increase the severity of the sentence imposed for the principal offence. The further offences are the subject of charges and are formally admitted.

Abbas - ground 1

Mr Abbas was charged with two offences: each involved knowingly taking part in the supply of methylamphetamine over two consecutive periods in May 2008. Each involved a commercial quantity: in respect of count 1 the actual quantity was 500 grams and in respect of count 2 it was 372 grams. Count 1, but not count 2, was accompanied by a Form 1 with four further offences, namely:

(1) knowingly taking part in the supply of a commercial quantity of methylamphetamine (284g).

(2) knowingly taking part in the supply of a commercial quantity of MDMA (400g);

(3) participating in a criminal group, knowing participation contributed to criminal activity, and

(4) agreeing to supply cocaine (56g).

Judge Zahra dealt with the further offences towards the end of a carefully reasoned judgment: at pp 36-37. He noted that the "proper treatment of Form 1 matters" was considered by this Court in Attorney General's Application No 1 of 2002 and continued:

"Here the criminality in the matters on the Form 1 is substantial. The offender acted as a conduit between the supplier and purchaser. Significant quantities of prohibited drug were involved.

There are two further counts involving the commercial quantities of prohibited drugs together with an additional supply offence of some significance. The offender is also charged with participating in a criminal group. Whilst the drug[s] the subject of the counts of commercial supply were not ultimately supplied to the first intended recipient they were procured for the purposes of supply to the first intended recipient and ultimately disseminated.

The additional criminality in the Form 1 offences needs to be reflected in the sentence imposed for the primary offence."

In accordance with the contentions identified above, it was the last sentence of these reasons which was said to reveal error.

The sentences were significantly different. Thus, in respect of count 2, which involved no offences on a Form 1, the offender was sentenced to imprisonment for four years six months, with a non-parole period of two years and six months. On the first count (involving the Form 1 offences) the offender was sentenced to seven years imprisonment with a nonparole period of four years.

The conduct the subject of counts 1 and 2 was closely related both in time and in the nature of the arrangements. The role of the applicant in each case appears to have been similar, although it is possible to infer from the reasons at pp 36-38 that the applicant played a somewhat more serious role in relation to count 1 than in relation to count 2. The personal circumstances of the applicant were common in respect of both counts. There can be no doubt that at least a large part of the discrepancy in the sentences should be attributed to the further offences on the Form 1.

Resolution of appeal - ground 1

Despite counsel for all parties disowning any challenge to Attorney General's Application No 1 of 2002, it is difficult to avoid the conclusion that such was the substantive effect of the submissions. Thus, if the further offences required greater personal deterrence, that followed from the need for punishment for those offences, the additional punishment being only notionally applied to the principal offence. Similarly, if the community was entitled to exact retribution on account of the further offences, again the increased penalty was only nominally attributable to the principal offence.

The tension within the reasoning in Attorney General's Application No 1 of 2002 requires resolution in order to dispose of the appeal. The tension, however, does not require the Court to revisit the correctness of the judgment. The tension arises from the following passages:

"22 The choice between a 'top down' approach and a 'bottom up' approach, raises an important issue of principle with respect to which there is uncertain and perhaps conflicting guidance in previous decisions of this Court.

23 The Court must, of course, give effect to the statutory regime. However, it does so in a context in which the basic principle of the common law is that no-one should be punished for an offence of which he or she has not been convicted. (R v De Simoni ... at 389, 395-396; R v Olbrich ... at [18].) The offences on a Form 1 constitute an admission of guilt, but there is no conviction.

24 The 'top down' approach which, notionally, identifies an appropriate penalty for the full gamut of offences, appears to me to be inconsistent with this principle. No doubt it can be said that even the 'bottom up' approach involves, in a sense, punishment 'for' the Form 1 offences, because the penalty for the primary offence is increased."

Although Spigelman CJ referred to a person not being punished for an offence for which he or she "has not been convicted", the references to De Simoni suggest the bar should not be placed so high. True it is that Gibbs CJ at 389 referred to an offence for which the person "has not been convicted", as did Wilson J at 395. Wilson J was in dissent, but he elaborated on the basic principle in terms which are not in doubt.

"The primary rule is that the judge must sentence the prisoner for the offence of which he has been convicted. He must not, even though the actual sentence may be within the range allowed for that offence, sentence for some other more serious offence which he is satisfied has been committed .... On the other hand, the judge is not only entitled but bound to take into consideration the circumstances surrounding the offence of which the prisoner has been convicted, so long as those circumstances are not inconsistent with the plea or verdict .... But he must not punish the prisoner for additional offences with which he has not been charged ...."

De Simoni was not concerned with the kind of issue raised in the present case; it concerned a person convicted on a charge of robbery with actual violence, but without reference to wounding, which constituted a "circumstance of aggravation". Section 582 of the Criminal Code (WA) stated that "if any circumstance of aggravation is intended to be relied upon, it must be charged in the indictment". Thus the majority concluded that the offender could only be sentenced on the basis of an assault resulting in wounding if the charge of which he had been convicted included wounding as the circumstance of aggravation.

As this Court noted in Einfeld v R [2010] NSWCCA 87; 200 A Crim R 1; 266 ALR 598:

"144 There are various ways in which conduct constituting an uncharged offence may properly be taken into account. In De Simoni, Gibbs CJ referred to the decision of the English Court of Criminal Appeal in R v Huchison [1972] 1 WLR 398, in support of the principle his Honour was stating: at 390. Huchison involved a charge of a single count of incest between father and daughter, to which the appellant had pleaded guilty. However, the daughter's statement referred to repeated courses of intercourse over a significant period. This material was relied upon by the sentencing judge. That was held to be inadmissible, but Phillimore LJ, in delivering the judgment of the Court, stated at 399:

"Of course there are cases where the prosecution puts forward a count as a sample count, and in those cases it is well-understood that if that course is taken and the defence are notified, a judge is entitled to deal with the whole matter on the basis that the offence in fact was repeated more than once, or there were some other similar incidents. But that is not this case; this was put forward as a single offence ...."

...

146 To read the principle established by De Simoni beyond its immediate context would give rise to consequences which were not addressed and which would involve an extrapolation of the principle beyond that which is necessary to give effect to its purpose. For example, a course of unlawful conduct may well give rise to a number of possible charges. If the prosecution proceeds on one count only, it does not follow that the surrounding conduct cannot be taken into account in sentencing. The surrounding conduct cannot give rise to a more serious offence, but it can demonstrate the degree of seriousness with which the charged offence should be viewed.

147 The purpose underlying the principle is to avoid unfairness to the accused who may be faced (on the sentencing hearing) with complaints about his conduct which did not form part of the charge and which he did not expect to meet when he pleaded guilty. However, the fact that such conduct may be relevant often leads an offender to seek to establish the factual basis upon which the matter will proceed if he or she pleads to a particular count. Further, the elements identified in the present case as false, although not the subject of separate charges, were conceded by the plea in respect of the particular false statement. The applicant did not deny making the statements, nor could he deny their falsity. However, it was not the moral culpability flowing from their falsity which was taken into account; it was the characteristic attaching to the charged false statement, for which they provided the evidential basis."

In The Queen v Olbrich [1999] HCA 54; 199 CLR 270 at [18], the Court noted that it would be "quite wrong to sentence an offender for crimes with which that offender is not charged" (Gleeson CJ, Gaudron, Hayne and Callinan JJ). That was said in a context where the precise role of the offender in a drug importation was unclear. The question of charge or conviction was not directly relevant: whether or not the offender was a courier, a principal or occupied some other role in the criminal enterprise was not revealed by the plea or by the statement of agreed facts upon which the sentencing was based. The offender had claimed that he was a courier but had been disbelieved. The case is important because it illustrates the difficulties which can arise in identifying the correct basis for sentencing an offender where a statement of agreed facts is incomplete, where the offender or other witnesses are called on sentence and give evidence inconsistent with the agreed facts and where the plea or verdict does not clearly reveal circumstances of the offending which might be relevant on sentence.

Importantly, the Chief Justice in Attorney General's Application No 1 of 2002 noted that the court must give effect to the statutory regime. He expressly envisaged that taking into account further offences might increase the sentence imposed for the principal offence in a way which could be said to punish "for" the further offences. In this respect, the logical analysis undertaken by Adams J in Calcutt was inappropriate. What was clearly rejected in Attorney General's Application No 1 of 2002 was an approach which sought to assess possible sentences with respect to the further offences, discount them and then impose an appropriate additional penalty in respect of the principal offence: [34]. It did not reject an effective increase in the sentence for the principal offence on account of the additional criminality revealed in the admitted further offences.

In the present case the approach explained by Judge Zahra was not that rejected in the guideline judgment: nor, despite the substantially greater sentence imposed on count 1, was there any reason to suppose that the sentencing judge in fact did what he had expressly eschewed. Accordingly, no error has been demonstrated. Ground 1 should be rejected.

In respect of the other matters raised in these applications for leave to appeal, orders should be made as proposed by Garling J, for the reasons he gives.

HOEBEN CJ at CL: On 14 February 2013 these four matters came before this Court by way of applications for leave to appeal against sentence. The appeal of Abbas raised the approach by this Court to offences on a Form 1, in accordance with ss31-35 of the Crimes (Sentencing Procedure) Act 1999 (the Act). When these matters came before the Court, counsel for Messrs Amoun and Bodiotis advised that they wished to take the same point. The issue did not arise in the case of Taleb.

Counsel for those applicants raising the issue, submitted that they did not challenge the correctness of the guideline judgment in Attorney-General's Application under Section 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146 (the guideline judgment). The decisions they challenged in various respects, were R v Grube [2005] NSWCCA 140, Dionys v R [2011] NSWCCA 272 and R v Calcutt [2012] NSWCCA 40. As a result, the applications were heard by a five judge bench. Another reason for a bench of five was that a special leave application in Calcutt was before the High Court (Calcutt v The Queen [2012] HCA Trans 221) and had been adjourned to enable the issue to be argued in this Court.

In Abbas the issue was raised by the following ground of appeal:

Ground 1: His Honour erred in increasing the sentence in respect of Count 1 in order to reflect the additional criminality of the Form 1 offences.

In Amoun the relevant ground of appeal was:

Ground 3: His Honour erred in the manner in which he took into account in sentencing for the offence on count 1, the offences on the Form 1 schedule.

Mr Bodiotis relied upon the same ground of appeal as Amoun.

These reasons relate only to the Form 1 issue raised by these grounds of appeal. I have had the opportunity of reading the reasons of the Chief Justice on this issue. I respectfully adopt the reasons of the Chief Justice and his conclusion. I wish, however, to make the following additional observations.

Factual background

The factual background to each application for leave to appeal has been set out by Garling J and I adopt that summary. In these reasons, I have focused on the application for leave to appeal by Mr Abbas because his was the application in which written submissions were filed. Moreover, the approach of the sentencing judge to the Form 1 offences was the same in each matter.

Mr Abbas pleaded guilty to the following counts:

Count 1 - That he between 7 May 2008 and 10 May 2008 at Auburn in the State of New South Wales did knowingly take part in the supply of an amount of a prohibited drug to wit, 500 grams of Methylamphetamine, being an amount not less than the commercial quantity applicable to that prohibited drug.

Count 2 - That he between 17 May 2008 and 18 May 2008 at Auburn in the State of New South Wales did knowingly take part in the supply of an amount of a prohibited drug to wit, 372 of Methylamphetamine, being an amount not less than the commercial quantity applicable to that prohibited drug.

Both those counts involved offences contrary to s25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) and each carried a maximum penalty of imprisonment for 20 years and/or a fine of 3,500 penalty units. An offence under s25(2) also carried a standard non-parole period of 10 years.

The sentencing judge was asked to take into account the following matters on a Form 1.

(i) Between about 11 and 12 May 2008 at Auburn in the state of NSW did knowingly take part in the supply of the commercial quantity of Methylamphetamine (284 g).

(ii) Between about 11 and 12 May 2008 at Auburn in the State of NSW did knowingly take part in the supply of the commercial quantity of 3,4 Methylendioxymethamphetamine (400 g).

(iii) On 21 May 2008 at Auburn in the State of NSW did participate in a criminal group knowing that his participation contributed to criminal activity, contrary to s93T(1) Crimes Act 1900.

(iv) Between 30 and 31 May 2008 at Holbrook in the State of NSW did agree to supply 56 g cocaine contrary to s25(1) of the Drug Misuse and Trafficking Act 1985.

Matters 1 and 2 on the Form 1 carried the same penalty structure as the primary counts, matter 3 carried a maximum penalty of 5 years imprisonment and matter 4 carried a maximum penalty of 15 years imprisonment.

The sentencing judge dealt with the Form 1 matters as follows:

"Form 1

The proper treatment of Form 1 matters was considered by the Court of Criminal Appeal in the guideline judgment in Attorney-General's Application No 1/2002 [2002] 56 NSWLR 147.

The fact that there are matters to be taken into account on the Form 1 means that in an appropriate case, greater weight should be given to the needs of personal deterrence and the community's entitlement to exact retribution. The point of the process may be to impose a longer sentence or alter the nature of the sentence that would be imposed if the primary sentence stood alone.

Here the criminality in the matters on the Form 1 is substantial. The offender acted as a conduit between the supplier and the purchaser. Significant quantities of prohibited drugs were involved.

There are two further counts involving the commercial quantities of prohibited drugs together with an additional supply offence of some significance. The offender is also charged with participating in a criminal group. Whilst the drugs, the subject of the counts of commercial supply were not ultimately supplied to the first intended recipient they were procured for the purposes of supply to the first intended recipient and ultimately disseminated. The additional criminality in the Form 1 offences needs to be reflected in the sentence imposed for the primary offence.

I will not be specifying a separate sentence for all the matters on the Form 1 but rather take them into account in accordance with s32 Crimes (Sentencing Procedure) Act 1999 (NSW) and I do not impose a separate sentence in that respect." (ROS 36.3 - 37.2)

Mr Abbas was allowed a discount of 25 percent to reflect the utilitarian value of his pleas of guilty and was sentenced as follows:

(a) In relation to count 1, and taking into account the matters on the Form 1, a term of imprisonment of 7 years with a non-parole period of 4 years.

(b) In relation to count 2, a term of imprisonment of 4 years and 6 months with a non-parole period of 2 years and 6 months.

The two sentences were partially accumulated with the second sentence commencing 1 year after the commencement of the first sentence. Accordingly, the overall sentence was a term of imprisonment with a non-parole period of 5 years and a balance of term of 3 years.

Counsel for Mr Abbas submitted that the sentencing judge had erred in his treatment of the Form 1 offences when he said:

"The additional criminality in the Form 1 offences needs to be reflected in the sentence imposed for the primary offence."

He submitted that by "reflecting" the additional criminality of the Form 1 offences in the sentence for count 1, the sentencing judge was in fact punishing Abbas for the Form 1 offences and that this gave rise to error.

Counsel for Mr Abbas submitted that the correct approach was to treat the Form 1 offences in the same way as courts treat previous convictions, as set out by the plurality (Mason CJ, Brennan, Dawson and Toohey JJ) in Veen v R (No 2) [1988] HCA 14; 164 CLR 465 at 477.

"The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind."

In support of that submission, counsel for Mr Abbas relied upon the statement by the majority (Gleeson CJ, McHugh, Gummow and Hayne JJ) in Weininger v The Queen [2003] HCA 14; 212 CLR 629 at [32]:

"32 ... A person who has been convicted of, or admits to, the commission of other offences will, all other things being equal, ordinarily receive a heavier sentence than a person who has previously led a blameless life. Imposing a sentence heavier than otherwise would have been passed is not to sentence the first person again for offences of which he or she was earlier convicted or to sentence that offender for the offences admitted but not charged. It is to do no more than give effect to the well-established principle (in this case established by statute) that the character and antecedents of the offender are, to the extent that they are relevant and known to the sentencing court, to be taken into account in fixing the sentence to be passed. Taking all aspects, both positive and negative, of an offender's known character and antecedents into account in sentencing for an offence is not to punish the offender again for those earlier matters; it is to take proper account of matters which are relevant to fixing the sentence under consideration."

Counsel for Mr Abbas relied upon the statement by Sir Igor Judge (as his Lordship then was) in R v Miles [2006] EWCA Crim 256 at [11] where his Honour said:

The sentencing Judge concluded that Abbas' role in the overall offending was a substantial one. He noted that the enterprise involved a substantial trafficking in drugs involving syndicate members in both NSW and Victoria, and that the principal, Hamzy, relied on people such as Abbas to operate the syndicate. He concluded that Abbas was an indispensable figure in the overall supply. The sentencing Judge was satisfied that the acts of Abbas made his offending objectively serious.

The sentencing Judge considered the various subjective factors which applied to Abbas. He accepted Abbas' evidence that he was in fear of Hamzy, but rejected any suggestion that he was acting under duress. He concluded that Abbas' communications with Hamzy indicated that Abbas was knowingly providing valuable assistance to Hamzy and, ultimately, significantly assisting in the supply of drugs.

The sentencing Judge noted that Abbas had only a minor record of prior criminal offending which could, in effect, be put to one side except for any question of the assessment of his prospects of rehabilitation.

The sentencing Judge noted that Abbas had shown remorse, and he concluded, having taken into account expert opinion, that Abbas had good prospects of rehabilitation.

The sentencing Judge further noted that Abbas was entitled to a discount of 25 per cent for the utilitarian benefit of his plea of guilty which was entered at the first available opportunity.

As well, the sentencing Judge was satisfied that by reason of significant symptoms of schizophrenia which Abbas had manifested in more recent times whilst in custody, his incarceration was likely to be more onerous, and he took that into account.

It was submitted to the sentencing Judge that exceptional circumstances existed such as to warrant a non-custodial sentence. His Honour rejected that view, and declined to find that there were exceptional circumstances of the kind necessary to warrant a non-custodial sentence. That finding was not challenged before this Court.

I am not satisfied that the sentences imposed were manifestly excessive. This Court has said on many occasions, that it is necessary to ensure that those who engage, and play an important part, in the supply of illegal drugs are subjected to a sentence which has a significant element of general deterrence.

The maximum penalties for the offences to which Abbas pleaded guilty, and the standard non-parole periods which are fixed by the Legislature, are guideposts which are relevant to be taken into account in the assessment of an appropriate sentence: Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [27].

There is nothing about the sentences that were ultimately imposed, including the period of accumulation, which would justify a conclusion that these sentences were manifestly excessive. In my opinion, the sentences were entirely within the discretion which the sentencing Judge had.

It is necessary then to consider the question of parity with respect to the sentences imposed on the applicant, Bodiotis. It will be observed that the first count with respect to Abbas and Bodiotis were for the same offence. The head sentence for Abbas was 7 years and for Bodiotis, 5 years. The non-parole period on these counts were 4 years for Abbas and 3 years for Bodiotis.

However, Bodiotis did not ask the sentencing Judge to take into account the offences on a Form 1 with respect to his sentencing on this count.

As well, Bodiotis pleaded guilty to four counts of dealing in drugs and asked for three other offences to be taken into account on a Form 1. Accordingly, the sentencing Judge in Bodiotis' case needed to consider the principle of totality when considering the overall length of the sentences to be applied with respect to Bodiotis, and how each sentence within that matrix should be determined.

In considering whether the principle of parity justifies interference with an existing sentence, a court needs to be satisfied that the discrepancy identified is one which is "marked", or "clearly unjustifiable" or "manifest ... such as to engender a justifiable sense of grievance", or else that it "[appears] that justice has not been done": Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 at 610, 613 and 623-624; Postiglione v The Queen [1997] HCA 26, (1997) 189 CLR 295 at 301, and 323 and 338; R v Toudevin [1996] 2 VR 402 at 403; DGM v R [2006] NSWCCA 296 at [46]; Green at [31] and at [105].

Although a simple comparison of the sentences imposed with respect to Count 1 would suggest that Abbas was treated less favourably than Bodiotis, I am not satisfied that this has given rise to a discrepancy which would justify this Court intervening in the sentences imposed.

The sentencing picture presented by each of Abbas and Bodiotis to the sentencing Judge was different. The overall criminality was different, questions of totality assumed different proportions, and there is no basis upon which, in my opinion, Abbas could have any justifiable sense of grievance.

This is particularly so when one considers that the sentence imposed by the sentencing Judge on Abbas for Count 1, included references to offences on Form1 which, for the reasons which have been earlier discussed, justify a court imposing a heavier sentence than would otherwise have been imposed.

I propose that Abbas' application for leave to appeal be granted, but that the appeal should be dismissed.

Application - Taleb

Taleb's application for leave to appeal relies upon the following grounds:

(1) The learned sentencing Judge erred in relation to the offender's role, the assessment of the objective seriousness of his offending conduct, and the level of criminality of his conduct.

(2) The learned sentencing Judge erred in that he did not properly consider issues of parity between the sentence of Bodiotis and the applicant.

(3) The learned sentencing Judge erred in his assessment of the degree of hardship his imprisonment would cause to his family.

(4) The sentence was manifestly excessive.

With respect to the count for which he was convicted, Taleb was sentencing to 3 years imprisonment with a non-parole period of 2 years. Although there was a further charge which the Court dealt with under s 166 of the Criminal Procedure Act 1986, that sentence is no longer relevant and was not subject to any appeal.

The sentencing Judge held that Taleb's role in the overall enterprise of drug supply being conducted by Hamzy was a limited one. He was not involved in negotiations or planning concerning the supply, nor was he involved in procuring the drug.

The sentencing Judge was satisfied that Taleb was at all times acting at the direction of others, and that he was tasked with collecting the drug in Sydney and delivering to Bodiotis. He was motivated by financial gain and the sentencing Judge identified Taleb's role as a courier of the drug, but concluded that this was a significant role which was crucial to the supply of a significant quantity of drug from Hamzy to Bodiotis. There is nothing erroneous about these findings. They were well open to the sentencing Judges.

The sentencing Judge noted that Taleb had pleaded guilty, and allowed a discount of 25% for the utilitarian benefit of that plea. He also noted that Taleb had expressed significant remorse about his conduct, and despair over his being involved.

Taleb had a previous criminal history, but it did not involve supply of prohibited drugs, and the sentencing Judge concluded that, although there were a number of convictions on Taleb's past criminal history, it could not be said that it was a substantial history. However, the sentencing Judge was unable to conclude anything positive about Taleb's prospects of rehabilitation. He noted that because this was Taleb's first term of imprisonment, it would be likely to deter him from offending in the future.

The sentencing Judge took into account the hardship which Taleb's family would suffer as a consequence of his imprisonment, and took into account that Taleb was from Victoria and, accordingly, would be serving his sentence outside the State. He clearly accorded it some weight. It is not possible to conclude that he placed too little weight on it so as to constitute an error.

The trial Judge's remarks on sentence reflect a careful consideration of all of the elements relevant to the sentence of Taleb. He gave careful consideration to the question of objective seriousness, of his participation in the crime and to all of his subjective factors. He took them all into account. With the exception of the plea of guilty to which he attributed a 25% discount, the sentencing Judge did not separately assess the weight to be attributed to each factor. In approaching the matter in this way, his Honour did not fall into any appellable error.

I do not consider that any of the grounds set out in paragraphs 1, 3 and 4 of this application for leave to appeal give rise any arguable ground of appeal.

The sentence imposed was well within the sentencing Judge's discretion. Complaints about weight are not matters to which this Court should have regard in the absence of a conclusion that the sentence was manifestly excessive. Here it was not.

Ground 2 raises the question of parity with Bodiotis. The equivalent charge with Bodiotis was Count 3. On Count 3, Bodiotis was sentenced to a fixed term of 2 years and 6 months imprisonment. In other words, the non-parole period of Taleb was 6 months shorter than the effective non-parole period, albeit a fixed sentence, imposed upon Bodiotis. Taleb points to the different roles which he and Bodiotis bore in the enterprise, and submitted that his role was significantly less than Bodiotis, such as would require a greater differential in the penalty imposed.

It is important to keep in mind that Bodiotis was facing a far more complex sentencing exercise by the sentencing Judge than was Taleb. In particular, the sentencing Judge in sentencing Bodiotis, had to take into account the principle of totality, and to fix a maximum term of imprisonment and a non parole period which reflected his overall criminality.

There was a difference between the penalties imposed. Effectively, this was 6 months with respect to the time served in custody. Since a balance of term was not fixed for Bodiotis with respect to this count, it is not possible to undertake a direct comparison between the sentence imposed on Taleb and that imposed on Bodiotis.

Nevertheless, having regard to the effective sentences which were imposed, I am not satisfied that Taleb could have any sense of grievance about the differences in penalties. Bodiotis was more criminally involved than Taleb, and received a longer sentence.

I would not favour upholding this ground of appeal.

I propose that leave be granted to Taleb, but that the appeal should be dismissed.

Application - Bodiotis

Bodiotis seeks leave to appeal upon the following additional grounds:

"1. That the lower court erred in finding that it was 'unable to make any meaningful prediction as to the offender's prospects of rehabilitation'.

2. The applicant has a legitimate sense of grievance arising from the disparity of sentence with the co-offender OS1.

3. The sentencing judge erred in imposing a sentence that was manifestly excessive in all the circumstances."

During the hearing, Bodiotis, by leave, added the Form 1 ground in the same terms as Abbas.

The sentencing Judge accepted evidence that Mr Bodiotis made a financial gain from his dealing in the drugs, but did so in a context where he kept some drugs for personal consumption and used the money which he obtained to support his gambling addiction.

He noted that the offences had been committed whilst Bodiotis was serving a sentence of imprisonment which had been suspended. That sentence was on account of a conviction on counts of perjury and one count of obtaining financial advantage by deception. The sentencing Judge held that this factor was a serious aggravating one.

The sentencing Judge determined that Bodiotis was not a part of Hamzy's criminal syndicate, but was rather a purchaser of drugs from Hamzy and those involved in his syndicate.

His Honour determined that there was no evidence to suggest that there was any connection between Hamzy and those involved in the sourcing and supply of drugs, and Bodiotis, save that he was the purchaser of drugs from that syndicate. His Honour also concluded, as was clear from the pleas of guilty, that Bodiotis then on-sold the drugs which were delivered to him in Melbourne. The sentencing Judge noted that there were no indicia that Bodiotis had gained wealth from the supply of prohibited drugs, but rather that the evidence indicated he was at the time of his arrest residing with his mother, taking care of her, and in receipt of a carer's allowance.

Ultimately, he concluded that the culpability of Bodiotis was of a high order. He obtained considerable quantities of prohibited drugs over a number of weeks, and the sentencing Judge identified the fact that the potential harm to the community was substantial and that, accordingly, the criminality involved called for sentences which imposed a strong element of deterrence.

Having observed Bodiotis give evidence, the sentencing Judge concluded that his remorse was genuine, and that he had insight into his offending. He concluded that, with continuing treatment whilst in custody, his potential for re-offending would be significantly reduced.

Of his prospects for rehabilitation, his Honour said this:

"The psychologist expresses the opinion that, insofar as the offender's prognosis is concerned, the offender 'is a reasonably intelligent man who has the potential to be many things if he can change the course of his life'. The offender's progress is largely dependent, the psychologist notes, on the offender's ability to maintain control over his substance use and gambling. The psychologist notes if the offender were not able to maintain such control 'the risk of offending behaviour in some form would remain significant'.

The psychologist is of the view that the offender's prognosis is at best guarded, particularly against a background of a chronic pattern of gambling and prior offending, and the connection between his substance abuse and his offending here.

...

The psychologist noted that the offender indicated a willingness to participate in further rehabilitation programs either by way of intensive pre-release programs or by entering a residential drug rehabilitation program. The psychologist recommends that the offender use his time in custody involving himself in intensive alcohol and other drug treatment and also in completing vocational programs aimed at ensuring future productive employment."

His Honour went on to conclude that he was unable, on the totality of the material before him, to make any meaningful prediction as to the offender's prospects of rehabilitation.

This conclusion appears, from his Honour's remarks, to take into account all that the psychologist has said, the fact that the psychologist's prognosis was a guarded one, the subjective background of Bodiotis, including his involvement in significant criminal conduct, the fact that he was at that time on conditional liberty, and the fact that he had a history of prior convictions.

It is not essential that a judge come to a positive conclusion about prospects of rehabilitation in every case. A judge's conclusion on that issue will depend upon the evidence led. It is a matter of mitigation for a Judge to take into account that an offender has good prospects of rehabilitation: s 21A(3)(h) of the Sentencing Procedure Act. The onus falls on an offender to satisfy a judge that he or she has good prospects of rehabilitation.

What has here occurred, is that the sentencing Judge has not been persuaded by the material before him that Bodiotis has good prospects of rehabilitation. In those circumstances, whilst keeping in mind the progress that Bodiotis has made, the sentencing Judge has failed to be persuaded that he should find that he has good prospects of rehabilitation. There is no error in the reasoning process of the sentencing Judge, and the conclusion was one which was well open to him, having regard to all of the matters to which reference has just been made.

The psychologist gave a guarded prognosis. The past history of behaviour of Bodiotis did not give the sentencing Judge any sense of confidence that Bodiotis would rehabilitate himself, and he was a man who continued to be afflicted with both a drug and gambling addiction. The conclusion of the sentencing Judge was well open, and I would not uphold Ground 1.

Grounds 2 and 3 can be considered together since they involve questions of manifest excess and questions of parity.

Overall, Bodiotis received an effective sentence of imprisonment of 9 years and 3 months, with a non-parole period of 6 years and 3 months. The offences carried maximum penalties of 15 years or 20 years. The course of the drug dealing occupied different and repeated occasions, and over an extended period of time. A significant motivation for the drug dealing was financial gain, although in the context of attempting to cope with drug and gambling addictions.

In considering questions of parity, the sentencing Judge was directed to the sentence which was imposed on OS1, the truck driver who had been involved in the transport of the drugs with respect to various of the counts on the indictment affecting Bodiotis.

The sentencing Judge described OS1's criminality and distinguished that from the criminality of Bodiotis, and concluded that issues concerning parity "... had relatively limited application".

Of particular concern to the sentencing Judge was the fact that Bodiotis had been in custody for over two and a half years prior to his sentence being imposed. However, he backdated the sentence to take account of the entirety of the period spent in custody.

As I have earlier remarked, the conduct of Bodiotis extended over a significant period, involved a number of separate counts of engaging in drug supply transactions and involving drugs of significant weight, and the applicant engaged over time in a course of criminal conduct of significant seriousness with potential to cause great harm.

The sentencing Judge paid careful attention to the all of the relevant factors which he was obliged to take into account, and to which he was entitled to have regard. The sentences imposed on the individual counts were, and the overall effective sentence was, well within the sentencing Judge's discretion. I am not persuaded that there is any manifest excess about the sentences that have been imposed.

The submissions on parity called up the specific case of OS1. OS1 presented a complex sentencing picture for the sentencing Judge in that case. But there are significant differences between the criminality upon which OS1 and Bodiotis were being sentenced.

Firstly, OS1 was being sentenced for different offences, some of which had nothing to do with the course of conduct of being involved in the supply of drugs. Secondly, the role that OS1 played and his criminality in the Hamzy syndicate, were different from those of Bodiotis. Thirdly, OS1 received a significant discount for his plea of guilty and the provision of assistance to authorities. Necessarily, he presented different subjective considerations, particularly with respect to contrition and prospects of rehabilitation, than did Bodiotis.

The mere fact that the charges are different as between OS1 and Bodiotis, does not mean that a question of parity is incapable of arising. On the other hand, the fact that the charges are different and the circumstances are different provides a ready explanation as to why there might be a differential in the sentences.

Without regard to the discount which OS1 obtained for his plea of guilty and assistance to the authorities, the effective starting point for the total sentence for OS1 was 20 years imprisonment. The effective starting point for the applicant Bodiotis, excluding any discount for his plea of guilty, was 12 years and 4 months imprisonment. This differential is adequately explained by the difference in criminality between the two. The criminality in which OS1 was involved was more significant, and the offences carried longer penalties. However, the question remains whether the offender is entitled reasonably to have a legitimate sense of grievance.

I fail to see that there is any comparison at all to be drawn between the sentences for OS1 and Bodiotis. Their participation in the offences was different, their criminality was different, the charges with which they came before the Court were significantly different, and in my opinion, there is no room for a comparison between the two.

As well, their subjective cases were significantly different.

I would not uphold the application for leave to appeal on the ground that Bodiotis could have any justifiable sense of grievance by reason of the imposition of a different sentence on OS1.

I propose that this application for leave to appeal be granted, but that the appeal be dismissed.

Application - Amoun

Amoun applies for leave to appeal on the following additional grounds:

(1) His Honour failed to give the applicant an adequate discount for his assistance to authorities.

(2) His Honour erred in his assessment of, and gave inadequate weight to duress, the influence of his older brother and their significance to an assessment of the applicant's offending.

Ground 2

It is convenient to deal first with Ground 2. The applicant, Amoun, is the younger brother of Hamzy. He was one of a number of members of Hamzy's family involved in this criminal syndicate. His father was involved, together with his older brother, and his two cousins. There were other associates.

Before the sentencing Judge, counsel for Amoun submitted that Amoun had committed the offences because he was under duress from his brother, Bassam Hamzy. Apparently, due to his father's incarceration whilst he was only eight years of age, the applicant came to look upon Bassam Hamzy as a father figure for a period of about four years, between the applicant's eighth and twelfth birthdays. At about that time, Bassam Hamzy fled Australia to live overseas.

Amoun described his brother Bassam as violent and prone to mood swings. He said that he was aware that his brother had the ability and resources to have people do things for him outside the jail, even though his brother was incarcerated. He was apparently aware that his brother had organised retribution against other individuals, who were not members of the family, who had not done what they had said they would do.

A specific example which Amoun proffered in evidence was that, having finished school, he had entered into an apprenticeship which returned only a low wage. He said that his brother, Bassam, had expressed his displeasure at the low wage being earned and forced him into resigning.

In his Remarks on Sentence, the sentencing Judge noted that it was the Crown case that Amoun, whilst not the principal in the drug syndicate, occupied a position at the top of the hierarchy in the supply network, and was intimately involved in the offence. Counsel for the applicant submitted to the contrary that the role of the applicant was simply to facilitate the transfer of drugs as directed by his older brother.

His Honour accepted that the general task of ascertaining the role of people involved in the supply of drugs is not a simple exercise, but required careful consideration to be given to the particular facts, matters and circumstances. The sentencing Judge concluded the following:

"I am of the view that the conduct of the offender in relation to the particular supplies, the nature and content of intercepted calls and the context of the movement of the drug, and the particular transactions engaged in, permits a conclusion that the offender operated at an organisational level within a network operated by Bassam Hamzy. Of significance is the position the offender occupied close to the source of the drug and the direct contact with the supplier of bulk quantities of the drug to the network. ...

It must be kept in mind that whilst the investigation revealed a number of separate drug supplies during the course of surveillance, the offender was involved in a limited number of them. At the same time, whilst he occupied a significant role, Bassam Hamzy had an overarching role in the majority of steps of each transaction. ... Whilst the offender's role was significant in relation to a number of transactions, his overall role in the network was substantially less than that of Bassam Hamzy and ultimately OS1, who over time gravitated towards a prominent position towards to the top of the syndicate.

The sentencing of the offender must proceed on the basis that he played a significant role in the individual supplies he was engaged in and that the combination of his conduct in each supply, including the matters on the Form 1, would support a conclusion that he occupied a significant role in the enterprise here".

His Honour went on to consider the question of duress. He said:

"The evidence establishes that Bassam Hamzy is a person capable of extreme violence and is capable of organising the extracting of retribution from his cell. The offender has just reason to fear Bassam Hamzy. This issue here is whether that fear was causally related to the conduct of the offender and, if so, to what extent.

It would be artificial to remove this factor as having some influence upon the decision of the offender to act in the way he did. However, there are significant matters which would suggest that such fear was subsidiary to other reasons for the offender's involvement. It is significant that the offender tampered with the drug on one occasion. The explanation offered by the offender is difficult to accept. I am of the view that this fact permits a conclusion that fear was not a substantial factor in the decision of the offender to become involved. Further, the offender admitted to the psychologist that money was a factor. I am of the view that the offender's fear of Bassam Hamzy does not significantly reduce his moral culpability."

Counsel for Amoun argued that the factual finding that Amoun had just reason to fear Bassam Hamzy was inconsistent with his Honour's finding that the applicant's moral culpability was not significantly reduced.

I am not satisfied that this is necessarily so on the facts and circumstances of this case. There was conduct, engaged in by Amoun, identified by the sentencing Judge which is quite inconsistent with his acting only out of fear of his brother, and by reason of that fear, acting under duress, for the purpose of s 21A(3)(d) of the Sentencing Procedure Act.

What his Honour has found, in an entirely unexceptional way, is that the influence of duress was not a significant or particularly weighty factor. However, his Honour took it into account and allocated it, so it seems, some weight. I would not uphold this ground.

Ground 1

This ground complains about the insufficient discount by reason of Amoun's assistance.

Amoun pleaded guilty to the two counts on the indictment. He also asked that three further matters be taken into account on a Form 1. Amoun was sentenced by Zahra DCJ after OS1 was sentenced, but before the Court of Criminal Appeal heard the appeal by OS1. Both Amoun and OS1 had provided assistance to the authorities, and both were entitled to an appropriate discount to reflect that assistance.

The applicant accepts that when considering this ground of appeal, the sentence imposed, prior to the discount being applied, was an appropriate one.

In his Remarks on Sentence, his Honour determined that an appropriate discount for Amoun's plea of guilty was 12.5 per cent. Amoun entered the plea of guilty on the first day of trial. The sentencing Judge acknowledged that although entered at that time, the plea was nevertheless of utilitarian benefit because the trial was likely to be a lengthy one, and that ultimately what had been saved was the cost of that trial, and the disruption to the lives of the witnesses.

The sentencing Judge then considered the question of assistance to authorities.

In the course of his Remarks on Sentence, his Honour noted that in 2009, whilst on remand, Amoun had provided assistance to the authorities, the detail of which he set out in some length. As well, the applicant agreed to make himself available to give evidence, if required, in the trial of Khaled Chkhaidem. Ultimately, he was not required.

The statement which Amoun gave was provided by the authorities to the solicitors for all of his co-accused. Following the provision of his statement, a number of his co-accused commenced to plead guilty. The Crown acknowledged before the sentencing Judge, and again before this Court, that Amoun's statement was an important factor in securing the guilty pleas for 16 other co-accused.

OS1, upon appeal to the Court of Criminal Appeal, received a combined discount for his early plea of guilty and assistance to authorities of 60 per cent. A combined discount of 25 percent, representing 12.5 percent for assistance to authorities, which was given to Amoun here, is significantly less than that discount.

It is not a matter of merely comparing mathematical discounts to ascertain what is fair and reasonable in the circumstances of the applicant's case. On the contrary, in assessing the discount for a sentence by reason of the provision of assistance to authorities, each case bears examination individually. Nevertheless, some guidance can be obtained by observing what, upon appeal, the Court of Criminal Appeal has thought appropriate in the case of OS1.

Assistance to authorities carries a significant utilitarian benefit. The assistance which Amoun here provided related to more than one coaccused and, having regard to the identities and natures of other co-accused, placed Amoun at some personal risk to his safety.

The fact that Amoun did not give evidence at the trial of Chkhaidem, or other trials, should not be held against him where he was willing so to do, and the reason that he did not was because the accused pleaded guilty.

An additional discount of 12.5 percent for assistance to authorities in my assessment, significantly underestimated the value to be attributed to that assistance.

I would assess the appropriate combined discount for Amoun's plea of guilty, and for his assistance to authorities, to be 35 percent.

This error means that it will be necessary to re-sentence Amoun. In so doing, there is no reason to alter the overall (undiscounted) sentence imposed. However, in order to reflect appropriately the principle of totality and give full effect to the adjusted discount, it will be necessary to modestly alter the period of accumulation imposed by the sentencing Judge. Special circumstances apply.

I propose the following orders in this application and appeal:

(a) Application for leave to appeal granted.

(b) Appeal upheld.

(d) In lieu thereof Amoun is sentenced as follows:

(i) On Count 1, taking into account the three matters on a Form 1 a non-parole period of 4 years and 4 months commencing on 30 April 2012, with a balance of term of 2 years and 7 months. The total sentence will expire on 29 March 2019.

(ii) On Count 2, a non-parole period of 3 years and 5 months commencing on 30 January 2011, with a balance of term of 1 year and 9 months. The total sentence will expire on 29 March 2016.

(iii) The first day upon which Amoun will be eligible to be released is 29 August 2016.

CAMPBELL J: I have had the benefit of reading in draft the judgments of the other members of the Court. I agree with the orders proposed by Garling J for the disposition of each matter. I also agree with the reasons of Garling J in relation to each ground in each matter other than the Form 1 grounds raised in the Abbas, Bodiotis and Amoun matters.

The Chief Justice, Basten JA and Hoeben CJ at CL (Garling J agreeing with the Chief Justice and Hoeben CJ at CL) have concluded that the learned sentencing judge did not err when he had regard to "the additional criminality in the Form 1 offences", as one of many relevant factors, in arriving at the appropriate sentence for "the primary offence". I agree with this conclusion.

I agree with the reasons of the Chief Justice and generally with those of Hoeben CJ at CL. At [34] of his reasons, Hoeben CJ at CL considers that the reference to extracting retribution for serious offences in the guideline judgment at [42] "can only be a reference to the offences on the Form 1 being offences 'for which no punishment has in fact been imposed'". With respect, I disagree with this conclusion. I agree with what the Chief Justice has written about this aspect of the matter at [22].

In addition to the reasons given by the Chief Justice on this point, I wish to add some comments of my own. In the course of oral argument great emphasis was laid upon the meaning properly derived from [42] of Spigelman CJ's reasons in Attorney Generals Reference, especially the following sentence:

"The second [element] is the community's entitlement to extract retribution for serious offences when there are other offences for which no punishment has in fact been imposed"

It seems to me that the juxtaposition of the phrase "serious offences" with the construct "other offences for which no punishment has in fact been imposed" makes Spigelman CJ's meaning clear. His use of the plural "serious offences" is a reference to the principal offence. His Honour's deployment of the plural connotes merely that he was expressing himself in terms of some generality: it is an element of the sentencing process generally that the community is entitled to extract retribution for serious offences. This entitlement is enlarged by the existence of the further offences, with which the offender has been charged, and which he has admitted. But as Spigelman CJ made clear, as a matter of principle, retribution is extracted only for the principal offence: that is the offence for which the offender is sentenced: Attorney Generals Reference at [43].

In my view, if at the request of an offender the Court is take further offences into account "in dealing with the offender for the principal offence" it is inevitable that regard must be had to the criminality involved in those further offences. By dint of s 33 Sentencing Procedure Act the admitted further offences on the Form 1 are matters which necessarily bear upon the judgment to be reached about the appropriate sentence for the principal offence. No sensible bearing can be taken from them unless some assessment is made of the criminality involved in the further offences. Clearly, in a case where the further offences are relatively minor, they may add little or nothing to the sentence for the principal offence. But where, as in the case of the applicant Abbas, for example, the criminality involved in the further offences is significant, the effect might be "substantial": Attorney Generals Reference at [18]. The range of possible effects of the further offences on the appropriate sentence, however, is not unlimited: Attorney Generals Reference at [42] and [67].

Application of the principle of totality itself involves the consideration of whether "the effective sentence imposed upon an offender represent[s] a proper period of incarceration for the total criminality involved": R v AEM Senior [2002] NSWCCA 58 at [70]. I accept that expressions like "total criminality" must be used with care in this context: Attorney Generals Reference at [29].

The Chief Justice and Hoeben CJ at CL have referred to providing the offender "with a clean slate" as one purpose of the Form 1 procedure. This benefit may come at a cost: an increase in the sentence that "would have been imposed if the primary offence had stood alone": Attorney Generals Reference at [18].

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Decision last updated: 22 May 2013

Medium Neutral Citation:	Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115
Hearing dates:	14/02/2013
Decision date:	22 May 2013
Before:	Bathurst CJ at [1] Basten JA at [31] Hoeben CJ at CL at [67] Garling J at [110] Campbell J at [255]
Decision:	In the application of Amoun: 1. Application for leave to appeal granted. 2. Appeal upheld. 3. Sentence imposed on 23 March 2012 quashed. 4. In lieu thereof Amoun is sentenced as follows: (i) On Count 1, taking into account the three matters on a Form 1, a non-parole period of 4 years and 4 months commencing on 30 April 2012, with a balance of term of 2 years and 7 months. The total sentence will expire on 29 March 2019. (ii) On Count 2, a non-parole period of 3 years and 5 months commencing on 30 January 2011, with a balance of term of 1 year and 9 months. The total sentence will expire on 29 March 2016. The first day upon which Amoun will be eligible to be released is 29 August 2016. In the application of Bodiotis: 1. Leave to appeal granted. 2. Appeal be dismissed. In the application of Taleb: 1. Leave to appeal granted. 2. Appeal be dismissed. In the application of Abbas: 1. Leave to appeal granted. 2. Appeal be dismissed.
Catchwords:	CRIMINAL LAW - applications to appeal against sentence - four applicants - all applicants convicted of offences relating to six transactions of supply of a commercial quantity of a prohibited drug(s) and knowingly dealing with the proceeds of the supply of prohibited drug(s) - applicants plead guilty SENTENCING - whether Form 1 offences were properly taken into account at sentencing - purpose of Form 1 procedure - whether in taking into account Form 1 offences the applicants were effectively sentenced for offences that were not charged on the indictment - whether sentences lacked parity - whether sentence was manifestly excessive - whether sentence reflected appropriate discount for provision of assistance to authorities.
Legislation Cited:	Crimes Act 1914 (Cth) Crimes Act 1900 Criminal Code (WA) Criminal Procedure Act 1986 Crimes (Sentencing Procedure Act) 1999 Drug Misuse and Trafficking Act 1985
Cases Cited:	Anderson v Director of Public Prosecutions (1978) AC 964; Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146; DGM v R [2006] NSWCCA 296; Dionys v The Queen [2011] NSWCCA 272; (2011) 217 A Crim R 280; Einfeld v R [2010] NSWCCA 87; 200 A Crim R 1; 266 ALR 598; Giles v Director of Public Prosecutions [2009] NSWCCA 308; 198 A Crim R 395; Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348; Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606; Markarin v The Queen [2005] HCA 25; (2005) 228 CLR 357; Metropolitan Water Board v Assessment Committee of the Metropolitan Burrough of St Marylebone (1923) 1 KB 86; Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120; Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295; R v AEM Senior [2002] NSWCCA 58; R v Barton [2001] NSWCCA 63; (2001) 121 A Crim R 185; R v Calcutt [2012] NSWCCA 40; R v Grube [2005] NSWCCA 140; R v JCW [2000] NSWCCA 209; 112 A Crim R 466; R v Jones (1978) Tas SR 126; R v Miles [2006] EWCA Crim 256; R v Olbrich [1999] HCA 54; (1999) 199 CLR 270; R v Syres (1908) 25 TLR 71; R v Toudevin [1996] 2 VR 402; Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252; The Queen v De Simoni [1981] HCA 31; (1981) 147 CLR 383; Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465; Weininger v R [2003] HCA 14; (2003) 212 CLR 629
Category:	Principal judgment
Parties:	Mohammad ABBAS - Applicant Khaled TALEB - Applicant Con BODIOTIS - Applicant Ghassan AMOUN - Applicant Regina - Respondent Crown
Representation:	Counsel: Mr P Lange - Applicant Abbas Ms A Betts - Applicant Taleb Mr I McLachlan - Applicant Bodiotis Mr T Game SC - Applicant Amoun Ms H Wilson - Respondent Crown Solicitors: Hanna Legal - Applicant Abbas SF Legal - Applicant Taleb O'Brien Solicitors - Applicant Bodiotis William O'Brien & Ross Hudson Solicitors - Applicant Amoun S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown
File Number(s):	2008/56292, 2009/136346, 2009/134916, 2009/152421
Decision under appeal	Before: Zahra SC DCJ