Adam v The King

[2023] NSWCCA 62

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Adam v R [2023] NSWCCA 62

Hearing dates:

13 February 2023

Decision date:

27 March 2023

Before:

Wilson J at [1]
N Adams J at [49]
Cavanagh J at [50]

Decision:

1. Grant leave to appeal on ground 2, but otherwise refuse leave;

2. Appeal dismissed

Catchwords:

CRIME – APPEAL – appeal against sentence – Criminal Code Act 1995 (Cth) ss 11.1(1) and 307.5(1) – attempt to possess unlawfully imported border controlled drug – commercial quantity – ratio of non-parole period to the overall sentence – existence of convention in Commonwealth matters – manifest excess

Legislation Cited:

Crimes Act 1914 (Cth)

Criminal Code Act 1995 (Cth)

Cases Cited:

Awraham v R (Cth) [2021] NSWCCA 241

R v Boimah [2017] QCA 50

Director of Public Prosecutions v Jiahe Wang [2017] VSCA 210

Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45

House v The King (1936) 55 CLR 499; [1936] HCA 40

Hughes v R [2018] NSWCCA 2

Martellotta v R (Cth) [2021] NSWCCA 168

Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221

R (Cth) v Afful [2021] NSWCCA 111

Category:

Principal judgment

Parties:

Drew Adam (Applicant)
Rex (Respondent)
NSW Commissioner of Police (Motion only)

Representation:

Counsel:
S Kluss (Applicant)
S Duggan (Respondent)
L Chapman (NSW Commissioner of Police)

Solicitors:
Ross Hill & Associate Solicitors (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)
Crown Solicitor’s Office (NSW Commissioner of Police)

File Number(s):

2021/285018

Publication restriction:

A non-publication order is in force with respect to those portions of the judgment which have been redacted from the published judgment.

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

25 August 2022

Before:

Mahony SC DCJ

File Number(s):

2021/285018

JUDGMENT

1. WILSON J: On 25 August 2022 the applicant, Drew Adam, was sentenced in the District Court with respect to an offence contrary to ss 11.1(1) and 307.5(1) of the Criminal Code Act 1995 (Cth) of attempting to possess a commercial quantity of unlawfully imported border controlled drug. This is an offence that attracts a maximum sentence of life imprisonment upon conviction. The offence related to a consignment of 3048.01 grams of pure methamphetamine. When the applicant was dealt with for that offence, he asked the sentencing court to take into account pursuant to s 16BA of the Crimes Act 1914 (Cth) a second charge of the same nature. The quantity of pure methamphetamine involved in that offence was 2318.78 grams. The total weight of pure methamphetamine encompassed by the two offences was 5366.79 grams. Judge Mahony SC imposed a sentence of imprisonment of 6 years with a non-parole period of 4 years and 3 months. The applicant now seeks leave to appeal against that sentence, advancing two proposed grounds:

1. “His Honour failed to properly consider the ratio of the non-parole period to the overall sentence; and

2. The sentence imposed was manifestly excessive”.

The Proceedings in the District Court

2. The applicant entered a plea of guilty to the principal offence when the matter was in the Local Court. He adhered to that plea before the District Court and asked the court to take the second offence into account. The facts of the offences were placed before the sentencing court by way of an agreed statement. In summary, they were as follows:

The Agreed Facts

3. On 14 September 2021 officials of the Australian Border Force (“ABF”) intercepted two consignments shipped from the United Kingdom. The packages contained plastic inflatable swimming pools and were directed to the applicant at addresses associated with him. On deconstructing the first consignment the ABF found four plastic pools individually boxed inside a larger box, with each pool concealing a vacuum sealed plastic package containing methamphetamine. The second consignment was the same, although there were only three individually boxed pools within the consignment. Each held methamphetamine. The substance discovered in each of the seven pools was examined and found to be methamphetamine. Consignment one contained the larger quantity of the drug, and consignment two the lesser amount. The total weight of pure methamphetamine was 5366.79 grams.

4. On 21 September 2021 the applicant accessed the online shipping information for each consignment. For the first consignment he accessed the tracking data twice that morning, and for the second, he accessed tracking information five times.

5. Having replaced the drugs contained within the two consignments with a harmless substance, the consignments were sent on by the ABF for delivery. On 28 September 2021 a police undercover operative, acting as a delivery driver, went to the residential address listed for delivery of the first consignment. No-one was at home. The operative took the second consignment to a business premises where the applicant’s mother worked, to deliver the package, inquiring whether the undelivered consignment could also be left at that location. Mrs Adam telephoned the applicant for instructions. The call was intercepted by investigators who recorded the applicant telling his mother to accept delivery of both consignments.

6. Later that day the applicant attended his mother’s workplace. Before getting into a lift to go to the relevant floor he put on a hooded jumper and pulled the hood up over both his head and the cap that he was already wearing. He collected the two consignments and took them to street level, where he loaded them into a taxi. The taxi drove to the applicant’s home address.

7. On arrival the applicant unloaded the consignments and took them to an underground garage. He then left the garage and went to a nearby shopping area, where he purchased a mobile telephone. On returning home the applicant opened the box containing consignment one, and also two boxes within the consignment. He opened and moved one of the substituted packages containing a harmless substance. The applicant also ripped open the box containing consignment two, exposing the individual boxes, which he did not further open.

8. Later that day a search warrant was executed at the applicant’s home and the two consignments were found. The applicant, who had not been at home at that time, surrendered himself to police on 7 October 2021.

Other evidence in the Crown case

9. The Crown tendered a criminal history relating to the applicant. That document recorded entries against the applicant for various summary offences, including domestic violence and drug offences. The latter were convictions for possessing a prohibited drug from October 2017; two counts of driving a vehicle with an illicit drug in the blood from February 2019; possession of a prohibited drug and possessing or attempting to possess a restricted substance from July 2019; self-administering a prohibited drug; and two further counts of driving a vehicle with an illicit drug in the blood from, respectively, November 2020 and January 2021.

10. [REDACTED]

11. [REDACTED]

12. [REDACTED]

13. [REDACTED]

14. [REDACTED]

15. [REDACTED]

16. [REDACTED]

The Applicant’s Case

17. The applicant did not give evidence before the sentencing court. He tendered a psychological report and letters from supporters.

18. John Machin, clinical psychologist, assessed the applicant on 28 June 2022 via audio-visual link over a period of about 75 minutes. The applicant gave Mr Machin a history of growing up in a happy and functional family environment which was not marred by any adversity or disadvantage. He maintained the support of his family, with whom he had returned to live after his marriage ended. The applicant completed Year 12 and then trained with his father as a butcher, a trade to which he will return on release from custody.

19. The applicant was married for 17 years and has two children. His separation from his then wife in 2016 preceded a difficult period during which access to his children was unsettled. This precipitated feelings of depression and illicit drug use. He concealed the latter from his parents.

20. Mr Machin recorded the applicant’s belief that he has long been prone to depression, and has occasionally held suicidal thoughts. After his marriage break-up the applicant became so depressed that his parents arranged for his admission to a private hospital, but the applicant discharged himself almost immediately. The applicant is presently prescribed an anti-depressant medication. He told Mr Machin that he had not used drugs since entering custody.

21. Of the offences the applicant told Mr Machin that he had been “talked into doing something for people” that he “assumed” was illegal, although he did not inquire as to the content of the parcels. Since his arrest he said that he had suffered adverse conditions in custody, including an assault (REDACTED) and frequent lockdowns associate with COVID-19. He felt distressed that he had caused his parents grief, and burdened them with the expense of meeting his legal fees. He felt that he had let his children down. The applicant told Mr Machin that he had resolved not to become involved with drugs again.

22. On psychometric testing, tests which relied upon self-report and are not diagnostic tools, the applicant returned elevated scores for depression, stress and anxiety. Mr Machin thought that the applicant had likely experienced a major depressive episode after his marriage ended, and the onset of methamphetamine use, which may have amounted to a depressive disorder and a substance use disorder at the time of the commission of the offences. He expressed the view that the applicant was unlikely to reoffend.

23. The applicant’s mother, in a letter to the sentencing judge, described the applicant as a hardworking and very kind “larrakin” who struggled with depression after his marriage broke down. His sister echoed those sentiments in her letter to the court. None of the family had known that the applicant was using or involved with drugs. A former employer wrote that the applicant was a valued team member who would be reemployed as a butcher on release from custody.

The Remarks on Sentence

24. Sentence was imposed on 25 August 2022, with a minor correction to his Honour’s remarks noted on 29 August 2022. The sentencing judge accepted the facts as they were set out in the evidence, and summarised the evidence tendered on behalf of the applicant. His Honour also summarised the respective submissions of the parties.

25. The sentencing judge accepted that the applicant’s involvement in the offences came about as a consequence of his experiences as a drug user who was “talked into providing his name and delivery address for a purpose that he knew was illegal”. The applicant’s role was assessed to be at a low level, “akin to that of a courier”. His Honour found that, although the applicant played a role involving some responsibility and the trust of persons in control of the operation, his participation shielded those persons from detection and punishment. The principal offence was assessed as falling within the lower range of gravity, whilst still constituting serious offending. The offence to be taken into account pursuant to s 16BA of the Crimes Act represented a further example of serious offending and warranted some increase in the sentence to be imposed.

26. The applicant was afforded a discount of 25% on sentence that would otherwise have been imposed to recognise the utilitarian value of the early plea, and the remorse and contrition it reflected. [REDACTED]

27. The principles of general and specific deterrence were each given weight. The applicant was found to have good prospects of rehabilitation. His depressive illness had the effect of lessening his moral culpability for the commission of the offences, and his Honour gave that feature of the applicant’s case further weight, given that ([REDACTED] COVID-19 pandemic) it would have an adverse impact on the conditions of custody he was likely to face. The court concluded:

“[REDACTED] the head sentence will be a term of six years imprisonment. But for the discount referred to in [77] above, the head sentence would have been nine years, with a non-parole period of four years and nine months. The non-parole period, as the minimum period in custody that offending of this gravity requires, shall be a term of four years and three months to commence on 7 October 2021”.

The Application to this Court

28. As already noted, the applicant complains of a failure to “properly consider the ratio of the non-parole period to the overall sentence”; and of the imposition of an excessive sentence.

29. With respect to the first proposed ground, the applicant points out that the proportion of the sentence that is custodial is 71%, a proportion which, it is argued, is inconsistent with convention in Commonwealth matters where the non-parole period ordinarily represents between 60 and 66% of the total sentence.

30. With respect to the second proposed ground, contending that the sentence imposed is manifestly excessive, the applicant argues that the features of the matter all militated in favour of a lower sentence than that which was imposed, with the sentence prior to discount [REDACTED] reflecting criminality of a higher order than the sentencing court had found to apply. The Court was referred to a number of decisions as illustrative of the point, being Director of Public Prosecutions v Jiahe Wang [2017] VSCA 210 (“Wang”); R (Cth) v Afful [2021] NSWCCA 111; Martellotta v R (Cth) [2021] NSWCCA 168; R v Boimah [2017] QCA 50; and Awraham v R (Cth) [2021] NSWCCA 241.

Determination

31. Ground 1 can be quickly dealt with as it appears to be based upon a misapprehension of the existence of a “convention” with respect to the ratio of sentence in Commonwealth matters. Shortly stated, there is no such convention, and the sentencing judge cannot be in error for failing to apply a rule of practice that does not exist.

32. Division 4 of Part 1B of the Crimes Act provides for the “fixing of non-parole periods and the making of recognizance release orders”. Because of the exhaustive nature of the provisions therein, State laws on the same subject have no application: see Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45, (“Hili & Jones”) at [22]. In fixing a sentence in Commonwealth matters, s 16A(1) of the Crimes Act provides:

"[i]n determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence".

33. That section does not, as the High Court made clear in Hili & Jones at [25]:

“[…] permit the making of generalisations across all forms of federal offence about how individual sentences are to be fixed. To attempt such a generalisation would depart from the injunction that the sentencing court "must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence" [scil. the particular offence for which a sentence is to be imposed].”

34. In rejecting the proposition that there was a “norm” of sentence whereby the non-parole period was 60 – 66% of the total sentence, the plurality (French CJ, Gummow, Hayne, Crennan, Kiefell, and Bell JJ) stated, at [44]:

“[…] there neither is, nor should be, a judicially determined norm or starting point (whether expressed as a percentage of the head sentence, or otherwise) for the period of imprisonment that a federal offender should actually serve in prison before release on a recognizance release order. More particularly, these are reasons enough to conclude that it is wrong to say, as the Court of Criminal Appeal did, "that the 'norm' for a period of mandatory imprisonment under the Commonwealth legislation is between 60 and 66%, which figure will be affected by special circumstances applicable to a particular offender"” (footnote omitted).

35. In his Remarks on Sentence, his Honour referred to and summarised the submissions of the parties. In so doing he noted (without either endorsing or rejecting it) a submission from the Crown which his Honour erroneously recorded as:

“The Crown submitted the minimum term to be served should be approximately 60 to 66.6% of the head sentence”.

36. In fact, the Crown’s written submissions had been, correctly, to the opposite effect:

“It was previously considered appropriate in Commonwealth matters for the ratio of the minimum term to be served to be approximately 60 to 66.6% of the head sentence. However, in Hili v R; Jones v R a majority of the High Court stated that a sentencing judge in Commonwealth matters should not determine the minimum term by reference to an assumed starting point. Rather, the court must set a minimum term that justice requires the person to serve having regard to all of the circumstances of the offence” (footnotes omitted).

37. The applicant said nothing at all on the subject of the ratio of sentence in written or oral submissions. Specifically, he did not urge his Honour to allow for an extended period of supervision. Other than to give the incorrect summary of the Crown’s submission, his Honour made no remarks on the subject of the determination of the non-parole period, apart from stating that the term set was “the minimum period in custody that offending of this gravity requires”. The emphasis given to the requirement for the minimum term to adequately reflect the seriousness of the crime is appropriate, and in line with both the Crimes Act and what was said in Hili & Jones.

38. In determining the sentence to be imposed, and the portion of the sentence to be served as a minimum term, the sentencing judge considered all of those matters referred to in s 16A(2) of the Crimes Act, to arrive at a sentence as required by s 16A(1), that being a sentence “of a severity appropriate in all the circumstances of the offence”. There was no error in the determination of the non-parole period and, particularly in circumstances where the applicant had made no submissions as to the ratio of sentence, no requirement for more to be said.

39. As this ground rests on a flawed understanding of the law, I would not grant leave to advance it.

40. Ground 2 is a complaint of manifest excess. The principles applicable to a determination of a ground of this nature are well established: Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221, at [443]; Hughes v R [2018] NSWCCA 2, at [86].

41. The applicant contends that the sentence imposed is so far outside the available range of sentence that there must have been some misapplication of principle. That is, without identifying any patent error of the kind referred to in House v The King (1936) 55 CLR 499; [1936] HCA 40, the applicant points to latent error: “although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred” (House at 505). That claim must be assessed giving due regard to the nature of the offence and the maximum penalty applicable.

42. Sentence was imposed upon the applicant with respect to an offence which carries a maximum sentence of life imprisonment, taking into account a second offence of a similar nature carrying the same maximum term. The total weight of the drug involved was in excess of 5kg of methamphetamine. Although the applicant did not play a senior role, he was a trusted participant in an operation directed at the acquisition of significant quantities of a border controlled drug. Serious offending was involved.

43. The sentencing judge gave attention to all relevant aspects of the matter, giving the applicant the benefit of a number of mitigating conclusions concerning his depression, [REDACTED]. However, the sentence had to comprehend principles of general and specific deterrence and was bound to be one that was proportionate to the gravity of serious drug offending.

37. Noting those features, the sentence imposed does not, of itself, point to some error having occurred. Nor do other decisions of the courts pointed to by the applicant establish error. In one instance – the decision in Wang – the amount of drug involved was much lower than in the present case, and there was only one count against that appellant, who was much younger than the applicant. In R (Cth) v Afful, the appellant was a foreign national who had suffered violence and deprivation in his childhood. He did not challenge the length of the sentence imposed upon him – a sentence the Court of Criminal Appeal characterised as “lenient” – but rather focused principally on a change in his circumstances experienced after sentence had been imposed upon him. R (Cth) v Afful is not a decision that establishes the correctness of the term of sentence imposed at first instance, the term being very low. The quantity of drug in Martellotta was much less than in the present instance and the decision is of no real assistance in establishing a range. The Court was also referred to Awraham v R (Cth), and the discussion there of a number of sentencing decisions. The point made there, at [79], has resonance:

“Whilst a comparative exercise can be informative in that regard, it must be undertaken carefully, since there will often be as much dissimilarity between the case under review and others as there is similarity”.

45. The small number of cases referred to by the applicant do not establish a range of sentences indicative of error in this instance. As was said in Awraham, at [89]:

“Consideration of Tran, Tran & Nguyen, and of the sentencing decisions referred to therein, tends to suggest that the available sentencing range for an offence of attempting to possess a commercial quantity of a border controlled drug is a broad one. It also highlights the difficulties inherent in a comparative analysis, when no two cases are ever likely to be relevantly identical. That is only confirmed upon review of the other cases advanced to this Court as useful comparators”.

46. Having considered all of the relevant circumstances, I am not persuaded that the sentence imposed upon the applicant was one demonstrative of a “substantial wrong”. I do not regard it as unfair or unjust.

47. Although I would grant leave to advance this ground, it should be dismissed.

Conclusion

48. The orders I propose are:

1. Grant leave to appeal on ground 2, but otherwise refuse leave; and

2. Appeal dismissed.

49. N ADAMS J: I agree with Wilson J

50. CAVANAGH J: I agree with Wilson J.

**********

Amendments

11 April 2023 - further redaction made to paragraph [21].

02 September 2024 - Redaction made to [27].

Decision last updated: 02 September 2024