Aoun v R
[2011] NSWCCA 284
•20 December 2011
Court of Criminal Appeal
New South Wales
Case Title: Aoun v R Medium Neutral Citation: [2011] NSWCCA 284 Hearing Date(s): 11 November 2011 Decision Date: 20 December 2011 Jurisdiction: Before: Basten JA at 1
Adams J at 11
Johnson J at 12Decision: Leave to appeal against sentence granted.
Appeal dismissed.Catchwords: CRIMINAL LAW - sentence appeal - pleas of guilty - offer to supply large commercial quantity of ecstasy - supply commercial quantity of cocaine (two counts) - supply cocaine - whether error in finding (on offer to supply ecstasy count) that Appellant had access to and was in a position to actually supply 10,000 ecstasy tablets - no error demonstrated - whether individual sentences or total effect sentence manifestly excessive - sentences not manifestly excessive - appeal dismissed
Legislation Cited: Criminal Appeal Act 1912 (NSW)
Drug Misuse and Trafficking Act 1985Cases Cited: R v O'Donoghue (1988) 34 A Crim R 397
The Queen v Olbrich [1999] HCA 54; 199 CLR 270
Fahs v R [2007] NSWCCA 26
R v Gao; R v Lim [2007] NSWCCA 343
House v King [1936] HCA 40; 55 CLR 499
R v Visconti [1982] 2 NSWLR 104
R v Khouzame [2000] NSWCCA 505
R v Merritt [2004] NSWCCA 19; 59 NSWLR 557
Kardoulias v R [2005] NSWCCA 456; 159 A Crim R 252
Camm v R [2009] NSWCCA 141
SBF v R [2009] NSWCCA 231; 198 A Crim R 219
Ibbs v The Queen [1987] HCA 46; 163 CLR 447
R v Dinh [2010] NSWCCA 74; 199 A Crim R 573
R v Dendic; R v Mazzeo (1987) 34 A Crim R 40
R v Addison (1993) 70 A Crim R 213
R v Swan [2003] NSWCCA 318; 140 A Crim R 243
R v Kalpaxis [2001] NSWCCA 119; 122 A Crim R 320
R v Smith [2002] NSWCCA 378
R v Yaghi [2002] NSWCCA 396; 133 A Crim R 490
Vu v R [2006] NSWCCA 188
McKibben v R [2007] NSWCCA 89
R v Choi [2010] NSWCCA 318,
R v Blair [2005] NSWCCA 78; 152 A Crim R 462
Paxton v R [2011] NSWCCA 242
Ayshow v R [2011] NSWCCA 240
R v Achurch [2011] NSWCCA 186
Markarian v The Queen [2005] HCA 25; 228 CLR 357
Muldrock v The Queen [2011] HCA 39; 85 ALJR 1154
R v Kazzi [2008] NSWCCA 77
Coetzee v R [2007] NSWCCA 12
R v Taouk [2005] NSWCCA 53
Buttrose v R [2011] NSWCCA 35
Stock v R [2011] NSWCCA 49; 206 A Crim R 574
R v Morgan (1993) 70 A Crim R 368
R v George [2004] NSWCCA 247; 149 A Crim R 38
R v Araya [2005] NSWCCA 283; 155 A Crim R 555
Han v R [2009] NSWCCA 300
Hili v The Queen [2010] HCA 45; 242 CLR 520
Lam v R [2006] NSWCCA 11
Edwards v R [2008] NSWCCA 281
Hristovski v R [2010] NSWCCA 129
DAB v R [2010] NSWCCA 275
Attorney General's Application Under Section 37 Crimes (Sentencing Procedure) Act 1999 (No. 1 of 2002) [2002] NSWCCA 518; 56 NSWLR 146Texts Cited: ---
Category: Principal judgment Parties: Larren Aoun (Applicant)
Regina (Respondent)Representation - Counsel: Mr PM Strickland SC (Applicant)
Ms V Lydiard (Respondent)- Solicitors: Nyman Gibson Stewart (Applicant)
Solicitor for Public Prosecutions (Respondent)File number(s): 2009/234172 Decision Under Appeal - Court / Tribunal: - Before: His Honour Judge Sides QC - Date of Decision: 23 November 2010 - Citation: --- - Court File Number(s) 2009/234172 Publication Restriction: ---
JUDGMENT
BASTEN JA : The Applicant seeks leave to appeal in respect of sentences imposed for the offences of offering to supply 3.36 kilograms of ecstasy (in tablet form) and supplying a little under 1 kilogram of cocaine. Each sentence involved a non-parole period of seven years. He also sought leave to appeal against the totality of the period of imprisonment imposed for four offences, including the two separately challenged.
As explained by Johnson J, the Applicant has not made good his challenge to certain aspects of the fact-finding undertaken by the trial judge, nor has he made good his claim that the sentences imposed were outside an appropriate range. Although it is necessary to set out the factual background in some little detail to explain why this is so, I would have been minded to refuse leave to appeal. Leave being granted, I agree that the appeal should be dismissed.
With one minor qualification, I also agree with the reasons of Johnson J. The qualification relates to the circumstances in which this Court will interfere with fact-finding undertaken by a sentencing judge.
The statement by Hunt J in R v O'Donoghue (1988) 34 A Crim R 397 at 401 (set out at [34] below) was concerned with fact-finding by a trial judge in determining, on a voir dire, a dispute as to the admission of evidence. His Honour's succinct description of the nature of an error in respect of fact-finding is not to be treated as a comprehensive statement of the circumstances in which such error can arise. The scope of the appeal against conviction, provided by the Criminal Appeal Act 1912 (NSW) , s.6(1), is not limited to an error of law: any ground demonstrating that there has been a miscarriage of justice may suffice. The circumstances which can constitute such a ground are not to be constrained by the identification of common circumstances. Nor does it assist greatly to describe such grounds as forming "the very narrow basis" upon which the Court can intervene in relation to a finding of fact. Further, although it is undoubtedly helpful to be reminded that this Court can only intervene in a case of "error" and not in order to "substitute its own findings for those of the trial judge" , such timely reminders do not, in close cases, provide any useful criteria for locating the boundary between errors and differences of opinion.
The present case involved findings by way of inference drawn from a statement of facts, agreed between the parties. No relevant oral evidence was adduced.
On the basis of the conversation between the Applicant and the undercover operative, occurring in circumstances otherwise revealed by the agreed facts, the sentencing judge inferred, beyond reasonable doubt, that the Applicant had access to and was in a position to supply the ecstasy tablets which he had offered to supply.
It is not in doubt that such a finding was open to the trial judge. Nor was it in doubt that the trial judge fully understood that such a finding, being adverse to the interests of the offender, could only be made if the facts were established beyond reasonable doubt: The Queen v Olbrich [1999] HCA 54; 199 CLR 270 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ). His Honour used that language and, being an experienced trial judge, undoubtedly understood what was required.
At times the Applicant's submissions appeared to adopt the proposition that if an alternative reasonable inference were open, the finding could not stand. That statement, however, elides the distinction between the assessment made by the sentencing judge and that which might be made by this Court, if it were to form and act upon its own view of the agreed facts. If his Honour were not bound to accept the alternative inference, but was entitled to dismiss it as not raising a reasonable doubt in his mind, he was entitled to reach the impugned finding. The boundary between a difference of opinion and a finding of error may not be a bright line, but it involves a distinction which must be respected.
In the present case, the Applicant did not demonstrate that the conclusion reached by the sentencing judge was not reasonably open to him. The ground of appeal therefore failed.
In other respects I agree with the reasoning of Johnson J and, accordingly, with the orders proposed.
ADAMS J : I agree with Johnson J with the additional comment, in respect of Ground 3, that although the effective sentence imposed by Sides DCJ was, with respect, well towards the top of the discretionary range, I am unpersuaded that it was manifestly excessive.
JOHNSON J : Larren Aoun seeks leave to appeal against sentences imposed at the Parramatta District Court on 23 November 2010 for a number of drug supply offences.
The Applicant adhered to pleas of guilty entered in the Local Court with respect to the following offences:
(a) Sequence 2 - on 17 September 2009, supplying a prohibited drug (27.7 grams of cocaine) contrary to s.25(1) Drug Misuse and Trafficking Act 1985 ("DMT Act") (maximum penalty of 15 years' imprisonment with no standard non-parole period);
(b) Sequence 4 - on 28 September 2009, offering to supply not less than the large commercial quantity of a prohibited drug (3.36 kgs - 10,000 tablets of ecstasy) contrary to s.25(2) DMT Act (maximum penalty of life imprisonment with a standard non-parole period of 15 years);
(c) Sequence 5 - on 9 October 2009, supplying not less than the commercial quantity of a prohibited drug (276.97 grams of cocaine) contrary to s.25(2) DMT Act (maximum penalty of 20 years' imprisonment with a standard non-parole period of 10 years);
(d) Sequence 6 - on 21 October 2009, supplying not less than the commercial quantity of a prohibited drug (989.6 grams of cocaine) contrary to s.25(2) DMT Act (maximum penalty of 20 years' imprisonment with a standard non-parole period of 10 years).
In passing sentence on Sequence 6, the Applicant asked that the following offences be taken into account:
(a) on 17 September 2009, supplying an indictable quantity of a prohibited drug (2.01 grams of 1-benzylpiperazine) contrary to s.25(1) DMT Act;
(b) on 28 September 2009, supplying an indictable quantity of a prohibited drug (1.68 grams of ecstasy) contrary to s.25(1) DMT Act.
On 23 November 2010, his Honour Judge Sides QC imposed the following sentences:
(a) Sequence 2 - non-parole period of 12 months commencing on 21 October 2009 and expiring on 20 October 2010, with a balance of term of six months commencing on 21 October 2010 and expiring on 20 April 2011;
(b) Sequence 5 - non-parole period of two years and six months commencing on 21 January 2010 and expiring on 20 July 2012 with a balance of term of one year and three months commencing on 21 July 2012 and expiring on 20 October 2013;
(c) Sequence 6 - taking into account the matters on the Form 1, a non-parole period of seven years to commence on 21 October 2011 and to expire on 20 October 2018 with a balance of term of three years and three months commencing on 21 October 2018 and expiring on 20 January 2023;
(d) Sequence 4 - non-parole period of seven years commencing on 21 October 2012 and to expire on 20 October 2019 with a balance of term of five years to commence on 21 October 2019 and to expire on 20 October 2024.
For all the offences, the total effective sentence comprised a non-parole period of 10 years commencing on 21 October 2009 and expiring on 20 October 2019 with a balance of term of five years commencing on 21 October 2009 and expiring on 20 October 2024.
Grounds of Appeal
By Notice of Appeal filed on 30 June 2011, amended on 8 November 2011, the Applicant notified the following grounds of appeal:
(a) Ground 1 - in relation to Sequence 4, his Honour erred in finding beyond reasonable doubt that, at the time of making the offer, the Applicant had access to and was in a position to actually supply the 10,000 ecstasy tablets.
(b) Ground 2 - in relation to Sequence 4, his Honour erred in finding that the offence was towards the lower end of the middle of the range of objective seriousness for offences under this provision.
(c) Ground 2A - the sentence imposed in relation to Sequence 4 was manifestly excessive.
(d) Ground 3 - the total aggregate sentence of 15 years and a non-parole period of 10 years for all the offences was manifestly excessive in the circumstances.
(e) Ground 3A - the sentence imposed in relation to Sequence 6 was manifestly excessive.
Facts of Offences
An Agreed Statement of Facts was tendered on sentence. The Applicant did not give evidence at the sentencing hearing. In view of the grounds of appeal, it is appropriate to set out the Agreed Statement of Facts:
"1. The accused is a single male person who resides at xxx McArthur Street Guildford.
2. In September 2009 investigators from the State Crime Command Drug Squad commenced investigations into the supply of 3, 4-methylenedioxymethylamphetamine (MDMA) (also known as ecstasy) and cocaine by the accused person Larren AOUN and his associates within the Sydney metropolitan area.
3. On 11 September 2009 the authority to conduct a Controlled Operation (CO 09/0255) was granted by Detective Acting Chief Superintendent SMITH authorising an Undercover Operative (UCO) to participate in conversations and negotiations concerning the supply of prohibited drugs and to purchase and possess prohibited drugs from the accused AOUN and or any of his associates.
4. Between 14 September 2009 and 16 September 2009, the accused person AOUN and an Undercover Operative (UCO) commenced negotiations for the accused person AOUN to meet for the purposes of the accused AOUN supplying the UCO with prohibited drugs.
5. About 4.45pm on 16 September 2009, the accused AOUN met the UCO in the McDonalds car park located on Canterbury Road Hurlstone Park. At this time the accused AOUN spoke to the UCO about his drug supply activities. The accused AOUN stated that the MDMA he sold was of a good quality and he never had any problems with it. The accused AOUN did not have any at this time but was awaiting a phone call to obtain the next lot of MDMA pills. The accused AOUN told the UCO the price of the pills would be between $8.50 and $8.75 each, although the price is negotiable. The UCO indicated he would require at least 5,000 pills each week and asked the accused AOUN if that was 'sweet'. The accused AOUN replied, 'Yeah'. The accused AOUN stated to the UCO that he would supply 10 pills as testers for free in order to check the quality that would be supplied. The accused AOUN stated, 'we don't charge for samples.' The accused AOUN and the UCO discussed when they could next meet.
6. The accused AOUN questioned the UCO about being supplied 'Coke'. The accused AOUN stated he was able to source good quality cocaine 'straight off the block' in large quantities. The accused AOUN stated that the cost of the cocaine is $8,000 per ounce. The accused AOUN stated he could supply a tester of this cocaine for $300 and the quality was good. The accused AOUN stated he 'doesn't do business for one person and then they go' and he was in it 'as a long term thing'.
7. The accused AOUN indicated to the UCO his ability to supply also the prohibited drug 1-benzylpiperazine.
8. Later this date the accused AOUN contacted the UCO where he indicated he was able to supply the samples to him and requested to meet. Arrangements were then made for the UCO and the accused AOUN to meet on Thursday 17 September 2009.
Sequence 1: Supply prohibited drug > indictable quantity (2.01 grams of 1-benzyipiperazine) on 17 September 2009
Form 1/Item 19. At about 4:35pm the UCO contacted the accused AOUN and arrangements were made for the UCO and the accused AOUN to meet in Burwood. About 5pm on Thursday 17 September 2009, the UCO met with AOUN in the grounds of the Uniting Church located at 134 Burwood Road Burwood. During this meeting AOUN supplied the UCO with 6 tablets which he stated were 'Ecstasy'. Four (4) of these tablets were yellow in colour and had a star symbol stamped into one side and two (2) of the tablets were blue In colour with a Mercedes symbol stamped on one side. The two (2) blue coloured 'Mercedes Benz' stamped tablets were scientifically analysed, revealing they were 1-benzylpiperazine with a purity of 21.5% and a total weight of 0.67 grams. The four (4) yellow colour 'star' stamped tablets were analysed revealing they were 1-benzylpiperazine with a purity of 19% and a total weight of 1.34 grams.
10. During this meeting the accused AOUN said he would be able to supply tablets to the UCO within 24 hours of an order being placed by the UCO. The UCO and the accused AOUN discussed the ability of AOUN to supply 40,000 tablets. The accused AOUN stated that he may be able to supply this amount 'but it depends how much they're pumping, but they're going like that, there's not only you ... there's a lot of people'. The accused AOUN stated that if the UCO was purchasing 40,000 tablets at a time, the price per tablet would be $8. Further to discussions between the UCO and the accused AOUN at the first meeting on 16 September 2009, the UCO enquired about purchasing cocaine from the accused AOUN. The accused AOUN offered to supply the UCO with 3 ounces of cocaine at $8000 per ounce. This price is consistent with the price offered by the accused AOUN at his first meeting with the UCO on 16 September 2009. The accused AOUN stated that the quality of the cocaine was very good and the cocaine was clean and had just 'come off the block'. The accused AOUN left a short time later and entered a silver Toyota Camry bearing NSW registration number SB-50-BE and left the location.
Sequence 2: Supply prohibited drug > indictable quantity (27.7 grams of cocaine on 17 September 2009)
11. About 6pm on Thursday 17 September 2009, the UCO contacted the accused AOUN and arrangements were made for AOUN to supply the UCO one (1) ounce of cocaine. About 7.50pm the accused AOUN met with the UCO in the car park area at the rear of Oporto's Restaurant at the corner of Addlestone Road and Merrylands Road, Merrylands. The accused AOUN entered the UCO vehicle where he supplied the UCO with a knotted, white coloured plastic bag containing a white powder substance which he stated was one ounce (28 grams) of cocaine. The UCO paid AOUN $8000 for this. The white powder was analysed revealing it was cocaine with a purity of 59% and a weight of 27.7 grams.
12. Between Monday 21 September 2009 and Monday 28 September 2009, the UCO and the accused AOUN negotiated for the accused AOUN to supply the UCO with prohibited drugs. Arrangements were made for the accused AOUN and the UCO to meet within the McDonalds car park at Rosehill.
Sequence 3: Supply prohibited drug > indictable quantity (1.68 grams of 3,4-methylenedioxyamphetamine on 28 September 2009) Form 1/Item 2
13. About 6.43pm on Monday 28 September 2009, the accused AOUN drove a silver Subaru WRX bearing NSW registration number BKS-78U into the car park area of the McDonalds located between Arthur Street and James Ruse Drive, Rosehill. The accused AOUN exited his vehicle and entered the UCO's vehicle. The accused AOUN entered into discussions with the UCO in relation to the supply of MDMA pills. The UCO enquired about the tablets supplied to him by the accused AOUN on 17 September 2009. The accused AOUN replied, 'They came from a, they're not from our source, they're from a guy that knew our sourc e but now look, we got these ones here.' The accused AOUN then handed the UCO five (5) black tablets with a '' symbol stamped on one side. The accused AOUN then said, 'It's drying up everywhere ... be happy with what you're going to get, like honestly, th ere's no more 'M' man, people are screaming for it, there's nothing around'! The UCO enquired what was in the tablets. The accused AOUN replied. 'MDMA, go pop 'em, go put 'em on a tester, do what you have to do ... they're good fuckin' pills, people love 'em, they're going crazy, they love 'em, they don't get smacked ... they want to feel humble. That's why we know how to do it with 'em.' The UCO then asked if the tablets provided were definitely MDMA and the accused AOUN responded 'Yeah ... whatever they tell me I tell you I'm not the one doing them. There's only 40,000 left, 30,000, about twenty's going now, another 20,000 that's all there is for now'.
14. The five (5) black colour '' € stamped tablets were analysed revealing they were 3,4-methylenedioxy amphetamine with a purity of 9% and a weight of 1.68 grams.
Sequence 4: Supply prohibited drug (Offer to supply) > large commercial quantity (10,000 tablets/3,360 grams (approx) of 3,4-methylenedioxyamphetamine pills on 28 September 2009)
15. During the meeting on Monday 28 September 2009, between the accused AOUN and the UCO, the accused AOUN spoke in detail about his ability to supply large quanti ties of tablets. The accused AOUN offered to supply 10,000 of the black colour '€ stamped tablets. The accused AOUN stated that there were 10,000 left which he could put aside for the UCO if he was happy with the quality of the pills given to him to test. The accused AOUN stated that if the UCO wanted to confirm the purchase of the 10,000 that he should send a text message to the accused AOUN stating 'Are you feeling better'. The accused AOUN stated that if the UCO did not get back to him on this night, that he would not hold them for the UCO. The accused AOUN stated that the cost of the 10,000 tablets would be $85,000 ($8.50 per tablet). The UCO did not contact the accused AOUN until the following day but by then the accused AOUN said he no longer had the pills.
16. The average weight of the black colour € stamped tablets supplied by the accused AOUN was 0.336 grams. The offer to supply the 10,000 of these tablets would give an estimated weight of 3.360grams. This weight is well in excess of the large co mmercial quantity.
17. During this meeting the UCO spoke with the accused AOUN about the accused's ability to supply one (1) kilogram of cocaine for $260,000. (refer to Sequence 6 for further details of the offence). Between Tuesday 29 September 2009, and Friday 9 October 2009, the accused AOUN and the UCO negotiated the supply of ten (10) ounces of cocaine.
Sequence 5: Supply prohibited drug =/> commercial quantity (276.97 grams of cocaine on 9 October 2009)
18. About 4:00pm on 9 October 2009 the UCO met with the accused AOUN and an unknown male at the McDonalds car park located between Arthur Street and James Ruse Drive, Rosehill. The accused AOUN was driving a silver Subaru WRX bearing NSW registration number BKS-78U. The accused AOUN spoke with the UCO and requested the UCO travel to Alice Street, Rosehill.
19. The accused AOUN exited his vehicle and entered the UCO vehicle. The accused AOUN handed the UCO ten separate small plastic bags containing a compressed white powder/rock-like substance which he indicated was ten (10) ounces of cocaine. The UCO paid AOUN $80,000 for this.
20. The powder/rock was analysed revealing it to be cocaine with a purity of 70.5% and a weight of 276.97 grams.
Sequence 6: Supply prohibited drug =/> commercial quantity (989.6 grams of cocaine on 20 October 2009)
21. About 6.43pm on Monday 28 September 2009, the accused AOUN met the UCO in the car park area of the McDonalds located between Arthur Street and James Ruse Drive, Rosehill. The accused AOUN spoke with the UCO about his ability to supply one (1) kilogram of cocaine for $260,000. The accused AOUN indicated he would sell the UCO one (1) ounce of cocaine from the 1 kilogram block of cocaine and place the rest of the cocaine aside for the UCO. If the UCO was happy with the quality of the one (1) ounce of cocaine, he would then supply the remaining portion of the one kilogram of cocaine. At the conclusion of this meeting the accused AOUN entered vehicle BKS-78U and travelled to the car park of the Westfield Shopping Centre, Parramatta,
22. On Monday 12 October 2009, the accused AOUN contacted the UCO and arrangements where made to meet at the 3one7 Cafe, located on Church Street, Parramatta. During this meeting the accused AOUN provided the UCO with a mobile telephone and SIM Card which the UCO was instructed to use to communicate with AOUN. The accused AOUN negotiated the supply of one (1) kilogram of cocaine with the UCO and stated he would only need one days notice to effect the transaction. The accused AOUN stated that he pays $250,000 for one kilogram of cocaine and sells it for $260,000.
23. Between Monday 12 October 2009 and Monday 19 October 2009, negotiations continued in relation to meeting for the purpose of discussing how the supply of 1 kilogram of cocaine would take place from the accused AOUN to the UCO. The accused AOUN indicated that if all went well with the one kilogram supply of cocaine, he would be able to supply the UCO with one kilogram of cocaine per week.
24. About 2.20pm on Monday 19 October 2009, the accused AOUN drove a silver coloured Subaru WRX bearing NSW registration number BKS-78U on Rider Boulevard, Rhodes and parked directly across the road from the Gloria Jeans Coffee Shop at that location. The accused AOUN met with the UCO at Gloria Jeans,
25. During this meeting, the accused AOUN and the UCO discussed the purchase of 1 kilogram of cocaine for $260,000. The accused AOUN insisted that the UCO give him the $260,000 and that he would go away to obtain the cocaine and return a short time later. The accused AOUN requested to supply the UCO the cocaine in 10 or 12 ounce lots as he was unable to take a full kilogram from his supplier unless he paid for it up-front. Negotiations continued where the accused AOUN agreed to supply the UCO with the 1 kilogram of cocaine in two (2) x eighteen (18) ounce (approximately 500 + grams) lots. The accused AOUN stated that the cocaine would cost $130,000 for each 18 ounce amount. The accused AOUN requested that the UCO bundle the money into $ 10,000 amounts as it was easier for him. The accused AOUN and the UCO agreed to meet the following day for the purpose of the accused AOUN supplying the UCO with the cocaine.
26. About 2.40pm on Tuesday 20 October 2009, the accused AOUN met with the UCO outside the Rhodes Shopping Centre. The accused AOUN entered into negotiations into the supply of the 1 kilogram of cocaine for $260,000. The accused AOUN and the UCO spoke in detail about how the accused AOUN wanted the supply to take place. The accused AOUN was shown $260,000 by the UCO and AOUN counted out $5,000 of this money and placed it aside. After some extensive negotiations the accused and the UCO travelled in the UCO's vehicle to George Street North Strathfield with the accused AOUN giving direction to this location. Whilst travelling to this location the accused AOUN and the UCO continued the negotiations for the supply of the cocaine. At George Street, the accused AOUN exited the UCO's vehicle and walked to a nearby cafe where he met with two unidentified males who appeared to be giving him certain instructions. The accused AOUN returned to the UCO's vehicle and continued negotiations with the UCO. The accused AOUN again left the UCO's vehicle and returned to the two unidentified males where he was seen to speak with them A short time later the accused AOUN returned to the UCO's vehicle where they again discussed the process for the supply of cocaine by the accused AOUN. At this time arrangements were unable to be made and the UCO and the accused AOUN travelled back to the Rhodes Shopping Centre area. The accused AOUN exited the UCO's vehicle and entered vehicle AFJ-67D a red colour Mitsubishi Mirage and drove from the location to his home at Guildford.
27. About 8.30pm on Tuesday 20 October 2009, the accused AOUN met with the UCO in the car park of McDonalds, Hassall Street Rosehill. The accused AOUN was driving the red Mitsubishi Mirage AFJ-67D. The UCO was then requested by the accused AOUN to travel to a park in the Parramatta area. The UCO then followed the accused AOUN to George Street Parramatta where both the accused AOUN and the UCO exited their vehicles. The accused AOUN then walked the UCO to an area of the park where he introduced the UCO to an unknown male 'Sam'. 'Sam' then negotiated with the UCO for the supply by AOUN to the UCO and 'Sam' and the UCO then made arrangements for a set process to occur the following day in order for the supply to take place. At the conclusion of this meeting the UCO left the location.
28. About 2.38pm on Wednesday 21 October 2009 the accused met with the UCO outside the Rhodes shopping centre on Rider Boulevard as previously arranged At this time further arrangements were made for the accused AOUN to bring his motor vehicle to the vicinity of the UCO. The accused AOUN walked to a silver Toyota Camry bearing registration SB-50-BE parked a short distance away. The accused AOUN parked vehicle SB-50-BE in the vicinity of the UCO vehicle. The UCO showed the accused AOUN the $260,000 before securing the money in vehicle SB-50-BE.
29. The UCO then drove motor vehicle SB-50-BE from the location whilst the accused AOUN at this time was seated in the front passenger seat of the vehicle. The accused AOUN directed the UCO to 73 Victoria Street, Concord West. Whilst travelling to this location the accused AOUN and the UCO continued negotiations relating to the supply of the 1 kilogram of cocaine. At the location the accused AOUN exited the vehicle and walked behind a set of colourbond gates out of sight. A short time later the accused AOUN returned to vehicle SB-50-BE. The accused AOUN handed the UCO a blue and black coloured carry back with a large black zipper across the front. Inside this backpack was a clear plastic bag containing a compressed white powder substance believed to be cocaine. This was further wrapped in brown packaging tape. At this time the accused AOUN was arrested whilst standing at the passenger side of vehicle SB-50-BE.
30. The accused AOUN was conveyed to the Campsie Police Station where he was introduced to the custody manager. The accused AOUN was given his Part 9 and interview R0112945 was conducted. The accused refused to answer any questions put to him by investigators.
31. The weight of the cocaine supplied by the accused AOUN to the UCO was 989.6 grams with a purity of 64.5%,
32. On 21 October 2009 a search warrant was executed at the home of the accused where no money, drugs or other indicia of supply were seized.
33. The accused was charged with the matters now before the Court.
34. On 20 October 2010, a co-offender Nicholas SAAD was arrested. He was charged with supplying a commercial quantity of cocaine which relates to the supply of 989.6 grams of cocaine by the accused AOUN. Investigating police allege that Nicholas SAAD was one of the unidentified men with whom the offender met on 20 October 2009 and who appeared to be giving him instructions and that he is also the person identified as 'Sam' who met with the UCO in the park at Parramatta on 20 October 2009 and negotiated with the UCO.
35. On 26 October 2010, a co-offender Anthony TRIOLO was arrested. He was charged with supplying a commercial quantity of cocaine which relates to the supply of 989.6 grams of cocaine by the accused AOUN. Investigating police allege that Anthony TRILO was one of the unidentified men with whom the offender met on 20 October 2009 and who appeared to be giving him instructions."
The Applicant's Subjective Circumstances
The Applicant was 27 years' old at the time of the offences and 28 years at the time of sentence.
The sentencing Judge summarised the Applicant's subjective circumstances in the following way, in a manner which is not challenged in this Court (ROS10-13):
"The Offender was a good student at primary school and was vice captain in his final year. However, because of bullying at high school, he did not enjoy those years as much but compensated by excelling in athletics and rugby league. Nevertheless, at times he feigned illness to avoid going to school. His academic results declined. He felt too embarrassed to reveal the bullying to anyone. He walked away from his tormentors and did not fight back. The Court notes that his two older brothers apparently attended a different high school. The bullying left him with heightened levels of vigilance and wariness.
Towards the end of 2003 one of his brothers was imprisoned. By this time the eldest brother was living independently with his wife and children and greater responsibilities fell on the Offender at home including care for his mother who is unwell. According to the evidence the Offender funded his brother's trial and borrowed money for the appeal. The material tendered this morning indicates that he borrowed just over $100,000 on 19 September 2006. It was apparently secured by a mortgage over the home where he lived in Guildford and his mother was surety. The loan is over about 30 years. Monthly repayments for the first three years was $673 and thereafter $688. These obligations clearly added to his stress.
He told Sam Borenstein [psychologist] about symptoms of depression such as worry, variable motivation, sleep disturbance and a degree of agitation. He saw his general practitioner who told him that it was just stress and made no referral to a psychologist or psychiatrist.
The Offender started at TAFE after finishing school but did not complete his apprenticeship because of financial pressures apparently relating to his brother's need to have his representation funded. He worked as a carpenter until his arrest, although he does not have a trade certificate. The evidence disclosed that he possessed skills in the field and was well regarded by his employer. His employer at the time of his arrest remains supportive of the Offender and has kept in contact with his family. Clearly the Offender has a sound work ethic and would have no trouble securing employment in the future.
The Offender played rugby league in the SG Ball Cup competition, a competition for players under eighteen. Later, he played in the Jersey Flegg Competition, a competition conducted in the New South Wales by the NRL for those under 20. These competitions are the nursery for clubs that play in the National Rugby League competition. The Offender had ambitions playing in that competition as a professional player, which had the potential to provide a handsome income. He had to forego those ambitions after his brother's imprisonment and the disappointment that ensued added to his emotional problems. However, he continued to play A-Grade football in a team participating in a competition in Sydney's inner west. He also trained children playing in the junior grades.
The Offender told Sam Borenstein that the commencement of his drug usage coincided with his brother's arrest. As reported at page 3 of Sam Borenstein's report [exhibit 1] he was 19 at the time. However, earlier in the report it is said to have been 2003 when the Offender would have been 21. Apart from indicating that he is not an accurate historian nothing turns on the difference. The same applies to his belief concerning his age when his father died.
In the ensuing years he abused drugs, mainly cocaine and liquor, on his own and in a social context. He told Mr Bornstein that he was still grieving the loss of his father as well as the loss of his potential professional football career and his substance abuse was a way of dealing with increasing depression. He said that he ran up debts in the tune of about $20,000 with his drug suppliers which he had to clear. However, he made clear that he had not been the subject of any threats in that regard. The Court notes that the Offender did not give evidence and was still working and playing football at the time of his arrest. However, members of his extended family observed symptoms consistent with drug usage.The Offender told Mr Borenstein that his moods vacillated between depression and anger and that the anger management course he completed whilst in custody had helped a bit. He has also done a drug and alcohol program in gaol and appreciates the need to undertake further psychological therapy. He also appreciates that he needs to confront his emotional problems and that he cannot hide them behind drugs and/or liquor.
The Court notes that the Offender's eldest brother and his wife have separated and the eldest brother now lives with their mother. The other brother is serving a prison sentence.
His background and personality indicate that he is an individual who is likely to have an elevation in acting out, suggesting behavioural problems including impulsivity and sensation seeking. He is withdrawn, indicating social detachment and discomfort in close relationships. He has an elevation in suicidal thinking and alienation as well as heightened vigilance and weariness.
As the Offender's only prior convictions are for relatively minor matters in 2000 and 2001 the Court extended the benefit of prior good character. The Court notes in this context his work ethic, generosity and being well-regarded by responsible members of the community. He has not breached any prison rules."
Ground 1 - Suggested Error in Findings Concerning Offer to Supply Offence in Sequence 4
Ground 2 - Suggested Error in Finding of Objective Seriousness for Sequence 4 Offence
These grounds of appeal were argued together and it is appropriate that the Court consider them together.
Submissions
Mr Strickland SC, for the Applicant, submitted that it was not open to the sentencing Judge to make a finding beyond reasonable doubt that the Applicant had access to, and was in a position to actually supply, the 10,000 ecstasy tablets relevant to Sequence 4. Mr Strickland SC submitted that there were two key facts which were overlooked or given insufficient weight by the sentencing Judge. First, during the entire period of his criminal offending, the Applicant never supplied large quantities of ecstasy tablets to the UCO. He submitted that this was cogent evidence of the Applicant's inability to access the quantities of that drug that he stated he could access. Secondly, it was submitted that the Applicant told the UCO several times that, in the then current market for ecstasy tablets (at least in relation to his suppliers), there was a severe shortage of supply of those tablets, and that demand for ecstasy tablets significantly outstripped supply.
It was submitted for the Applicant that the evidence did not support a finding beyond reasonable doubt, that when the Applicant offered 10,000 to the UCO, he was in a position to actually supply the 10,000 ecstasy tablets.
Mr Strickland SC submitted that the Court could not be satisfied beyond reasonable doubt that the Applicant's offer was not a "salesman's pitch" . He submitted that it was not reasonably open to make the challenged finding beyond reasonable doubt, as there was another reasonable hypothesis (T19, 11 November 2011).
Mr Strickland SC submitted that Ground 2 would be made out if the Court upheld Ground 1. If the Court could not be satisfied beyond reasonable doubt that the Applicant had the capacity to supply 10,000 tablets, he submitted that the objective seriousness of the offence would fall to the lower end of the range because, if he did not have that capacity, there was no potential for 10,000 tablets to be distributed to the wider community as a result of the Applicant's crime. It was submitted that the offence clearly did not cause any actual harm to the community because the supply never materialised.
Mr Strickland SC submitted that the actual or potential consequence of an offender's criminal conduct is critical in assessing the objective seriousness of a large range of crimes, including crimes of personal violence, offences of dishonesty and fraud and that this was also true in relation to offences of supplying prohibited drugs. Reference was made to the decisions of this Court in Fahs v R [2007] NSWCCA 26 and R v Gao; R v Lim [2007] NSWCCA 343 at [22], [30] concerning the relevance to an assessment of objective seriousness, if drugs would not have found their way into the community.
The Crown submitted that it was open to the sentencing Judge to make the finding presently under challenge.
The Crown submitted that, had the Applicant given evidence to the effect that he did not have access to the number of tablets he had promised the UCO on 28 September 2009 and if such evidence was not challenged, the sentencing Judge may have been more amenable to a submission that it was mere "puffery" on the part of the Applicant. However, the Applicant did not give evidence. The evidence upon which his Honour relied was the Agreed Statement of Facts as set out above.
The Crown submitted that this Court is bound by findings of fact of the sentencing Judge unless they were not open on the evidence or unless error is shown in the sense referred to in House v King [1936] HCA 40; 55 CLR 499 at 504-505.
With respect to the two topics which the Applicant submitted the sentencing Judge had overlooked, the Crown submitted that the sentencing Judge had taken them into account.
Concerning Ground 2, the Crown pointed to the finding that the Sequence 4 offence lay towards the lower end of the middle of the range of objective seriousness. It was submitted that the sentencing Judge had taken into account that, if the 10,000 had been actually supplied, they could not have been consumed by anyone given that the supply would have been to the UCO (ROS19). The Crown noted that the sentencing Judge had applied R v Gao; R v Lim and concluded that the fact that there would have been no supply to the community "resulted in a very minor diminution in culpability" (ROS15).
The Crown submitted that error had not been demonstrated in accordance with Grounds 1 or 2.
Decision
Ground 1 seeks to challenge a finding made by the sentencing Judge. This Court is a court of error. The jurisdiction of the Court to interfere with a sentencing decision is exercisable only where there can be seen to have been an error of principle, or some other mistake of fact or law: R v Visconti [1982] 2 NSWLR 104 at 108.
It is important to keep in mind the limits of the jurisdiction of this Court where a finding of a first-instance Judge is challenged on appeal. A frequently cited and applied statement of principle is that of Hunt J (Carruthers and Wood JJ agreeing) in R v O'Donoghue at 401:
"It is important to emphasise that, unlike appeals to the Court of Appeal in civil cases, an appeal to this court is not by way of re-hearing. An appeal which is not by way of re-hearing is no more than the right to have a superior court interpose to redress the error of the court below: A-G v Sillem (1864) 10 HLC 704 at 724; 11 ER 1200 at 1209; Victorian Stevedoring & General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73 at 109. Error may be demonstrated if there is no evidence to support a particular finding, or if the evidence is all one way, or if the judge has misdirected himself. But this court has no power to substitute its own findings for those of the trial judge. The members of this court may individually disagree with the findings which were made, but the court cannot for that reason interfere with those findings. It is only where the very narrow basis upon which this court can intervene in relation to a trial judge's findings of fact has been established that the conviction can be set aside, and then only if the error has led to a miscarriage of justice: see Regina v Merritt & Roso (1985) 19 A Crim R 360 at 372-373; Regina v Kyriakou (1987) 29 A Crim R 50 at 60-61."
This statement has been applied in a multitude of cases, including sentence appeals where a finding of fact is challenged on appeal: R v Khouzame [2000] NSWCCA 505 at [38]-[41]; R v Merritt [2004] NSWCCA 19; 59 NSWLR 557 at 573 [60]-[61]; Kardoulias v R [2005] NSWCCA 456; 159 A Crim R 252 at 265 [56]; Camm v R [2009] NSWCCA 141 at [68]-[70]; SBF v R [2009] NSWCCA 231; 198 A Crim R 219 at 335 [75].
I approach this ground of appeal with these principles in mind.
It is helpful to place the challenged findings in the broader context of findings made by the sentencing Judge concerning the Applicant's course of criminal conduct. His Honour said (ROS14):
"He told Sam Borenstein that he came under pressure from the undercover officer. The Offender did not give evidence and the evidence placed before the Court does not support this claim. The Court is satisfied beyond a reasonable doubt the offences were premeditated and that he appreciated by his participation in them he was enmeshing himself in organised criminal activity. None of the four offences are an isolated aberration. It is clear that the Offender was involved in drug trafficking at a wholesale level to a substantial degree and for financial reward. The four offences cover a period slightly in excess of a month. It is clear that his illegal activities were not limited to his dealings with the undercover officer."
Soon after, his Honour found (ROS15):
"In this illicit trade those operating within the upper rungs of the hierarchy tend to hide behind the activities of others, such as the Offender, to avoid detection and punishment. Clearly, he had the authority from those above him in the hierarchy to negotiate with purchasers in terms of price and they trusted him with large quantities of money and valuable drugs. During his conversations with the undercover officer he demonstrated a sound knowledge of the trade at a wholesale level as well as skills as a salesman.
Clearly he did not know he was dealing with an undercover officer and that the drugs he sold or offered to sell would not be consumed. Consistent with authority this factor resulted in a very minor diminution in culpability: R v. Gao and Lim [2007] NSWCCA 343. He obviously expected that they would be consumed and had no idea who those consumers would be and whether any of them were vulnerable."
His Honour then turned to make findings concerning the Sequence 4 offence (ROS17-18):
"The offence Sequence 4 involves an offer to supply, which, in contractual terms, occurs before there is an agreement to supply. As is made clear by the definitions of 'supply', 'sell' and 'take part', s 25 covers a wide range of criminality. Consistent with the legislation the cases make clear that the criminality is determined by the facts of each case rather than characterising an agreement or an offer to supply as being less serious than an actual supply: R v Vu [2006] NSWCCA 188 at paragraphs 81 to 88; R v McKibben [2007] NSWCCA 89 at paragraph 16.
At paragraph 89 in Vu , Hall J, with whom James and Buddin JJ agreed, said 'in terms of offering to supply factors which will often be relevant in determining the objective seriousness of an offence under subs 25(2) of the Act will include:
· The terms of the offer, in particular, as to the quantity of a drug, its price, etc.
· Whether a particular offer is an isolated one or whether it occurs in the context of an ongoing supply of drugs.
· Whether, and if so, the extent to which the offer is motivated by reasons of commercial gain or greed.
· Whether the offeror at all material times had the intention to fulfil the offer.
· Whether the offeror had the capacity to fulfil the offer to supply.
· Whether the offeror attempts to fulfil the offer. If not, whether any failure to perform was the result of a decision by the person concerned not to supply or whether it was due to some intervening or extraneous circumstance.'
The Court notes the large commercial quantity for ecstasy is 500 grams. The weight that the Offender offered to supply, calculated on the basis of the sample, was a little over 6.7 times that quantity. The purchase price mentioned in connection with this offer was $85,000. The Court notes at 9%, the purity of ecstasy within the sample tablets with the Euro symbol was quite low. The Court is satisfied that the offer related to 10,000 tablets like those in the sample supplied to the undercover officer on 28 September."
The sentencing Judge then made findings which are challenged in the first ground of appeal (ROS19-20):
"Mr Hamill SC on the Offender's behalf pointed out the Offender never delivered the 10,000 ecstasy tablets, the subject of this offer and negotiations were little more than puffery. However, the evidence discloses that the Offender made clear that he had a limited amount of ecstasy tablets available and that the market forces meant that they would not be available for long. He clearly stated that the offer remained on the table until only that night. The offence was complete when he made the offer. The ecstasy did not pass to the undercover officer because he did not indicate an acceptance of the offer by the stipulated time. The Court notes that if actually supplied the 10,000 tablets could not have been consumed by anyone.
The Offender chose not to give evidence. He sold cocaine to the undercover officer before and twice after this, the latter two involving substantial quantities and the evidence discloses the sales of drugs to others. On 16 September he told the undercover officer that the ecstasy he sold was of good quality and spoke of waiting for a telephone call to obtain the next lot of ecstasy pills. On that day he also mentioned the price range that he charged. He said: 'we don't charge for samples' and did not hesitate in indicating that he could supply the 5,000 ecstasy tablets per week that the undercover officer said he needed. On the following day he supplied the undercover officer with six tablets indicting they were ecstasy but they, in fact, contained a different drug. He said that he could supply them within 24 hours and he discussed supplying 40,000 tablets but indicated that the amount: 'depends on how much they're pumping, but they're going like that, there's not only you....there's lots of people', which, in the Court's view, indicates that he was supplying to others and that the demand was high. On 18 September he supplied a sample of five ecstasy pills with the Euro symbol on them that he said came from another source and indicated that the source was drying up and people were screaming for them.
The Offender did not give evidence. There is no credible evidence that he did not intend to supply the undercover officer with the 10,000 ecstasy tablets with the Euro symbol on them that were the subject of the offer. This offer was part of his activities as a wholesaler of illicit drugs. Having considered all the circumstances the Court is satisfied beyond reasonable doubt that, at the time of making the offer, the Offender had access to and was in a position to actually supply the 10,000 tablets and that by the time the undercover officer contacted him the next day they were not available to sell to the undercover officer because the Offender or someone else had sold them to another purchaser. However, there is no evidence that the Offender actually sold them to that other purchaser. There is no evidence that the Offender voluntarily withdrew the offer for any reason or decided against pursuing it and there is no evidence that he made the Offender [sic - offer] to impress the undercover [officer] or as part of a salesman's hype."
There is a broad definition of "supply" in s.3(1) DMT Act:
" supply includes sell and distribute, and also includes agreeing to supply, or offering to supply, or keeping or having in possession for supply, or sending, forwarding, delivering or receiving for supply, or authorising, directing, causing, suffering, permitting or attempting any of those acts or things."
The definition of supply includes "sell" , and that term is also defined widely in s.3(1) DMT Act:
" sell includes sell whether by wholesale or retail and barter and exchange, and also includes dealing in, agreeing to sell, or offering or exposing for sale, or keeping or having in possession for sale, or sending, forwarding, delivering or receiving for sale or on sale, or authorising, directing, causing, suffering, permitting or attempting any of those acts or things."
The offence charged in Sequence 4 is an offence under s.25(2) DMT Act of supplying an amount of a prohibited drug which is not less than the commercial quantity applicable to the prohibited drug. The broad definition of "supply" in s.3(1) of the Act means that the offence is defined to include a comparatively wide range of circumstances, some of them overlapping. When an offence is defined to include any of several categories of conduct, the gravity of the conduct in a particular case depends on the facts of the case: Ibbs v The Queen [1987] HCA 46; 163 CLR 447 at 452; R v Dinh [2010] NSWCCA 74; 199 A Crim R 573 at 582 [46].
The charge under Sequence 4 to which the Applicant pleaded guilty was based upon an offer to supply. The relevant intention that must be proved where there is a charge of supply involving an offer to supply is the intention inherent in the making of the offer. It must be a genuine offer made with the intention that it be regarded as genuine by the offeree. The intention required to bring conduct within this part of the definition does not involve any intention of ultimate supply - the intention is bound up with the making of the offer itself: R v Dendic; R v Mazzeo (1987) 34 A Crim R 40 at 45; R v Addison (1993) 70 A Crim R 213 at 217; R v Swan [2003] NSWCCA 318; 140 A Crim R 243 at 246-247 [12]-[18].
A prosecution for supply based upon an offer for supply does not, of course, involve an actual supply. Nor does it involve an offender who has a prohibited drug in possession for supply, a different form of supply contained within the extended definition in s.3(1) DMT Act.
The approach to sentencing for offer to supply offences has been considered in a number of decisions of this Court. An early decision was that of R v Kalpaxis [2001] NSWCCA 119; 122 A Crim R 320, where an offender offered to supply a large commercial quantity of cocaine to a purchaser without any means or intention of doing so. The decision in R v Kalpaxis has been described as "exceptional and extraordinary" since, from beginning to end, it involved nothing more than a ruse by a mentally disturbed offender, who was out of touch with reality, and who was seeking to obtain sufficient money to enable him to spend time in Greece with his family and with his father who was dying of cancer. The exceptional and extraordinary circumstances in R v Kalpaxis have been emphasised in later decisions: R v Smith [2002] NSWCCA 378 at [16]; R v Yaghi [2002] NSWCCA 396; 133 A Crim R 490 at 492-494 [11]-[22].
The more typical offer to supply case involves an offer made to an undercover police officer or to a third person, in circumstances where the relevant conversation is recorded by way of telephone intercept or surveillance device. If there is an offer to supply a large commercial quantity of the nominated prohibited drug, then the offender is guilty of that offence. It is not necessary for the prosecution to prove more than the elements of the offence of offer to supply. An offender's plea of guilty to a charge of offer to supply admits the elements of that offence.
It is appropriate for a sentencing court to have regard to the potential consequences intended by an offender who is to be sentenced for a drug supply offence based upon an offer to supply. This Court has observed that there is no reason in principle why a genuine agreement to supply drugs should be regarded as any less serious than a proven act of supply: R v Smith at [16].
In the course of a helpful analysis concerning the approach to sentence for offer to supply offences, Hall J (James and Buddin JJ agreeing) said in Vu v R [2006] NSWCCA 188 at [88]:
"88 There will usually be a varying degree of objective seriousness between one or other of the activities that fall within the statutory definition of supply, but this, as reflected in the judgment of Bell, J., depends, not upon any general concept of a hierarchy of seriousness attaching to one or other of the activities that may constitute a 'supply' as defined in s.3, but upon the facts and circumstances of each case. Plainly, agreements to supply or offers to supply prohibited drugs each constitute transactional activities that play an important and essential role in the chain of drug trafficking."
Hall J proceeded at [89] to recite the factors referred to by the sentencing Judge in the extract from the remarks on sentence at [39] above.
The decision in Vu v R has been applied by this Court in circumstances where a submission similar to that contained in the Applicant's Ground 1 was advanced on appeal. In McKibben v R [2007] NSWCCA 89, Howie J (Simpson and Hislop JJ agreeing) said at [16] (emphasis added):
"It was further submitted that it was erroneous that the penalty for the agreement to supply was greater than the actual supply. I do not believe there is anything inconsistent or erroneous in that approach. As was explained in Vu v R [2006] NSWCCA 188, the seriousness of any particular activity falling within the concept of 'supply' under the Act will depend upon the particular facts of the case before the court and no generalised statement can be made about the relative seriousness of differing forms of supply. There is no suggestion here, as there was in 1985, that the applicant had no intention of supplying that quantity of the drug. In the absence of evidence from the applicant, the facts should be taken at their face value and that she intended to supply that amount of drug but was denied the opportunity of doing so before her arrest. It was open to the Judge to sentence as he did. This ground is not made out ."
In R v Choi [2010] NSWCCA 318, a challenge was made on a Crown appeal to a finding by the sentencing Judge that the respondent could not realistically have obtained the drugs for the purpose of a proposed transaction with an undercover police operative. The respondent had given evidence that an unnamed person, from whom he was endeavouring to source drugs, was a person he had met by chance in a nightclub and, according to the respondent, that person had said to him that if ever he needed any help with drugs he should come to him. The sentencing Judge found that the drugs did not exist and could not realistically have been obtained by the respondent. This Court overturned that finding. Reference was made to evidence of conversations which did not indicate that the drugs could not be acquired at all, but simply that they could not be acquired by a particular time. RA Hulme J (Giles JA and Hislop J agreeing) said at [63]-[64] (emphasis added):
"63 It is important to bear in mind that the criminality inherent in the offence to which the respondent pleaded guilty was an agreement to supply, not the fulfilment of such an agreement. The agreed facts disclosed that he entered into such an agreement without hesitation in the very first conversation with Kwon on 19 November. He continually reaffirmed his participation in such an agreement over the ensuing nine days. He approached three different people in his endeavour to acquire a substantial quantity of drugs in order to fulfil the agreement. The evidence disclosed that the first contact indicated a preparedness to provide the drugs, but was unable to do so within a short timeframe. There was no evidence of any inability of the second and third contacts to fulfil at least a significant proportion of the order .
64 In my view, and with respect, the findings by the sentencing judge that the respondent and Kwon were not able to effect this size of supply, that the drugs did not exist, and that they could not realistically have been obtained by the respondent, were findings which were not open. The genuineness of the respondent's endeavours to fulfil his agreement is indicated by his obtaining and providing the sample tablets . It follows that the description of the respondent's role as 'youthful fantasy' cannot be sustained."
These statements from other cases provide a framework of principle in which the issue raised by the first ground of appeal is to be considered.
In my view, it was open to the sentencing Judge to make the challenged finding. It is necessary to keep in mind that this offence lay within a series of events in which the Applicant offered to, and actually supplied, prohibited drugs. As the sentencing Judge found, the Applicant was involved in drug trafficking at a wholesale level to a substantial degree and for financial reward, and he demonstrated a sound knowledge of the trade at a wholesale level as well as skills as a salesman.
The Applicant was 27 years' old at the time of the offences. He was actually involved in the supply of prohibited drugs and demonstrated a capacity to hand over prohibited drugs as part of that process. There was no element of fantasy or delusion (as in R v Kalpaxis ) in this case. The Applicant was engaged actively in the real and hard world of drug supply.
The Applicant supplied a sample of ecstasy to the UCO in the early evening of 28 September 2009, as part of a discussion about a larger supply in a climate of some demand for the product (paragraph 13 of Agreed Statement of Facts at [18] above). The facts relied upon directly in support of the offence in Sequence 4 are contained in paragraph 15 of the Agreed Statement of Facts. The Applicant offered to supply 10,000 ecstasy tablets to the UCO, making clear that there was a limited window of opportunity for that to happen. A price was indicated and a coded message proposed by the Applicant if the UCO was to take up the offer. The UCO did not contact the Applicant within the specified time and the Applicant said that he no longer had the tablets.
It is important to observe that the Applicant was not arrested until 21 October 2009. It may be taken that he had direct knowledge of what occurred on and after he made the offer to supply 10,000 ecstasy tablets on 28 September 2009. He did not give evidence in the sentencing proceedings. To make this observation is not, in some way, to cast an onus of proof upon the Applicant. Rather, it is to make the point referred to by Howie J in McKibben v R at [16] (cited at [51] above).
In the absence of evidence from the Applicant, the facts should be taken at face value - that he intended to supply 10,000 ecstasy tablets which were available in the timeframe prescribed by him, but that he could not later do so in circumstances where the UCO sought the supply outside that timeframe. Indeed, the fact that the offer was made in the context of a short timeframe, supports the view that there was a realistic prospect of 10,000 ecstasy tablets being supplied by the Applicant to the UCO within the specified timeframe. The provision of a sample of ecstasy tablets in the context of the making of the offer, supports the practical reality of the Applicant's offer to supply.
The sentencing Judge had regard to relevant evidence in making the findings presently under challenge. This was not a case like R v Choi where the offender gave evidence at the sentencing hearing. It was entirely open to the sentencing Judge to be satisfied that, at the time of making the offer, the Applicant had access to and was in a position to actually supply the 10,000 tablets, but that they were not available to sell at the time when the UCO sought them after the nominated deadline had passed.
In my view, the first ground of appeal ought be rejected.
The rejection of the first ground of appeal narrows substantially the submissions upon which the Applicant can rely in support of Ground 2.
The sentencing hearing proceeded upon the accepted basis that the offer to supply 10,000 ecstasy tablets was related in weight and purity to the sample ecstasy tablets, producing an estimated weight of 3.36 kgs and a purity of 9%.
His Honour had regard to purity as a factor relevant to an assessment of objective gravity: R v Blair [2005] NSWCCA 78; 152 A Crim R 462 at 472 [56]; Paxton v R [2011] NSWCCA 242 at [129], [141]. Further, the fact that the ecstasy was offered to be supplied in tablet form was relevant. It may be taken that ecstasy in tablet form is ordinarily designed for supply in that form to end users without further processing, so that the issue of purity is of less importance in such a case: Ayshow v R [2011] NSWCCA 240 at [43].
The sentencing Judge undertook a careful assessment of the objective gravity of the Sequence 4 offence, referring to R v Vu and McKibben v R as part of that process.
His Honour took into account the submission that, even if supplied, the ecstasy would never have reached the drug-using public as the supply was to be made to police as part of an undercover operation. The sentencing Judge observed that this factor resulted in a very minor diminution in culpability, a conclusion supported by decisions of this Court considered in R v Achurch [2011] NSWCCA 186 at [88]-[100].
In my view, no error has been demonstrated in the sentencing Judge's finding that the Sequence 4 offence lay towards a lower end of the middle of the range of objective seriousness for offences of that type.
I would reject Ground 2.
Ground 2A - The Sentence Imposed in Relation to Sequence 4 Was Manifestly Excessive
Mr Strickland SC repeated the submissions made in support of Grounds 1 and 2 with respect to Ground 2A, the claim of manifest excess.
To establish a ground claiming manifest excess, it is necessary for the Applicant to demonstrate that the sentence under challenge is unreasonable or plainly unjust: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 370-372 [27].
The sentence imposed for the Sequence 4 offence comprised a non-parole period of seven years with a balance of term of five years. This sentence, of course, was one of several overlapping sentences imposed upon the Applicant for a series of serious drug supply offences.
The large commercial quantity for ecstasy is 500 grams. Upon the agreed basis of calculation referrable to the sample, the Applicant offered to supply 3.36 kgs (a little over 6.7 times the large commercial quantity). The nominated purchase price was $85,000.00, with the drug having what his Honour described as the quite low purity of 9%.
In light of the findings made concerning this offence, which were open to the sentencing Judge, and the finding of objective gravity which was open, a very substantial period of imprisonment was necessary for this offence. The standard non-parole period of 15 years was and remains a "legislative guidepost" which the sentencing Judge and this Court must take into account: Muldrock v The Queen [2011] HCA 39; 85 ALJR 1154 at 1162 [27].
His Honour gave due weight to the Applicant's subjective circumstances.
It has not been demonstrated that the sentence imposed for the Sequence 4 offence was unreasonably or plainly unjust. The claim of manifest excess ought be rejected.
I would reject Ground 2A.
Ground 3A - The Sentence Imposed in Relation to the Sequence 6 Offence Was Manifestly Excessive
It is appropriate to consider this discrete ground of appeal before returning to Ground 3 which challenges the aggregate sentence upon the ground of manifest excess.
Submissions
Mr Strickland SC submitted that a sentence comprising a non-parole period of seven years and a balance of term of four years and three months for the Sequence 6 offence was manifestly excessive.
He referred to the facts of that offence and sought to support the submission by reference to other sentencing decisions, although acknowledging that the cases upon which he relied did not establish a range (T13, 11 November 2011).
Reference was made to a number of sentencing decisions including Fahs v R , R v Kazzi [2008] NSWCCA 77, Coetzee v R [2007] NSWCCA 12, R v Taouk [2005] NSWCCA 53 and Buttrose v R [2011] NSWCCA 35. It was submitted for the Applicant that an examination of these cases, although not establishing a range of sentence, would assist a conclusion that the sentence imposed in this case for the Sequence 6 offence was manifestly excessive.
The Crown pointed to the serious nature of the Sequence 6 offence and the fact that offences were taken into account on a Form 1 in passing sentence for this offence. The Crown also urged caution in considering a ground alleging manifest excess by reference to a comparison with other sentencing decisions, citing Stock v R [2011] NSWCCA 49; 206 A Crim R 574 at 587-588 [48].
Decision
The Applicant does not challenge the finding of the sentencing Judge that the Sequence 6 offence lay somewhat above the middle of the range of objective seriousness for offences under that provision (ROS17). This offence involved the supply of 989.6 grams of cocaine, just 10.4 grams short of the large commercial quantity for this drug. It was almost 6.96 times greater than the commercial quantity. The Applicant negotiated this transaction on the basis that it was a kilogram, and that he would receive $10,000.00 out of the $260,000.00 purchase price. The sentencing Judge found that the purity of the cocaine, at 64.5%, was quite high (ROS16).
It is necessary to bear in mind that two offences of supplying a prohibited drug were taken into account on sentence with respect to the Sequence 6 offence.
Mr Strickland SC did not submit that the other sentencing decisions to which he referred disclosed a range of sentence for this type of offence. In a long line of cases commencing with R v Morgan (1993) 70 A Crim R 368 at 371, this Court has emphasised the limited use of sentencing decisions concerning persons who are not related offenders, unless a range of sentence is demonstrated from those decisions. In this regard, see also R v George [2004] NSWCCA 247; 149 A Crim R 38 at 47 [48]; R v Araya [2005] NSWCCA 283; 155 A Crim R 555 at 567 [69]-[70]; Han v R [2009] NSWCCA 300 at [32]-[39] and Stock v R at 587-588 [48].
In Hili v The Queen [2010] HCA 45; 242 CLR 520 at 536-537 [53]-[54], French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ emphasised the need for care to be taken, when other sentencing decisions are referred to on the question of sentence.
In Hili v The Queen at 527 [18], 535 [48], their Honours observed that, with respect to consistency of sentencing, what is sought is consistency in the application of relevant legal principles, not some numerical or mathematical equivalent.
I do not consider that the selection of cases relied upon by the Applicant provides support for the claim of manifest excess on this count. The circumstances of the present case are different, and this case involves a series of offences committed by the Applicant with the totality principle to be applied on sentence.
The findings of the sentencing Judge concerning the Sequence 6 offence are unchallenged, and the Table 1 offences were to be reflected on sentence on this count as well in accordance with the principles in Attorney General's Application Under Section 37 Crimes (Sentencing Procedure) Act 1999 (No. 1 of 2002) [2002] NSWCCA 518; 56 NSWLR 146 at 159 [42].
I am not persuaded that the sentence passed with respect to the Sequence 6 offence was unreasonable or plainly unjust.
I reject Ground 3A.
Ground 3 - The Total Effective Sentence of 15 Years With a Non-Parole Period of 10 Years For All the Offences Was Manifestly Excessive in the Circumstances
Submissions
In support of this ground, Mr Strickland SC submitted that a total effective sentence comprising an aggregate non-parole period of 10 years and a balance of term of five years was manifestly excessive in view of the objective circumstances of the offences, the subjective circumstances of the Applicant and application of relevant principles concerning concurrency, accumulation and totality. He pointed to the Applicant's subjective circumstances as summarised by the sentencing Judge in support of this argument.
In addition, reliance was placed upon a series of other sentencing decisions. Whilst acknowledging that these decisions did not establish a range of sentence, Mr Strickland SC submitted that they assisted in identifying sentencing outcomes in other cases which supported the claim of manifest excess with respect to the Applicant's total effective sentence.
To this end, Mr Strickland SC referred to decisions including Lam v R [2006] NSWCCA 11, Fahs v R (above), R v Gao; R v Lim (above), Edwards v R [2008] NSWCCA 281, Hristovski v R [2010] NSWCCA 129 and DAB v R [2010] NSWCCA 275 together with a number of other decisions of this Court.
The Crown submitted that there were significant points of distinction between the present case and the cases relied upon by the Applicant, identifying particular differences in Lam v R, Fahs v R, R v Gao; R v Lim , Edwards v R , Hristovski v R and DAB v R .
Further, the Crown submitted that more than usual caution was required in considering sentencing outcomes in other cases because of the imposition of substantially overlapping offences in the present case: Hristovksi v R at [60]. Once again, the Crown referred to the line of authority requiring caution where a manifest excess ground is sought to be supported by reference to other sentencing decisions.
Decision
This ground of appeal involves a claim by the Applicant that the total effective sentence passed for his various crimes was manifestly excessive. To make out this ground, the Applicant must demonstrate that the total effective sentence was unreasonable or plainly unjust (see [69] above).
Set out earlier in this judgment (at [83]-[85]) are relevant principles concerning the use to be derived from other sentencing decisions by an appellate court. The caution referred to in those authorities is further heightened where a challenge is made to a series of sentences calculated individually, and then by application of principles of accumulation, concurrency and totality, such as occurred in this case. Other sentencing decisions will be even less useful as possible yardsticks in these circumstances.
It must be kept in mind that very substantial levels of concurrency were ordered in this case. Although non-parole periods of seven years were ordered with respect to each of the offences in Sequence 4 and Sequence 6, there was accumulation for one year only as between those sentences.
The Applicant had engaged in a course of significant criminal conduct over a period of time. This was not an isolated offence. The Applicant, then 27 years of age, was involved in the commercial supply of drugs for profit. Although there were very serious separate crimes, the sentencing Judge applied the principle of totality in a manner not unfavourable to the Applicant. Further, viewed as an aggregate, the effective non-parole period of 10 years represented 66% of the aggregate full term.
Having regard to the totality of the Applicant's offending, and making all due allowance for his subjective circumstances, I do not regard the total effective non-parole period and balance of term as being unreasonable or plainly unjust.
I reject Ground 3.
Conclusion
The Applicant has not established patent error on the part of the sentencing Judge as alleged in Grounds 1 and 2, nor latent error (in the form of manifest excess) as alleged in Grounds 2A, 3 and 3A.
I propose the following orders:
(a) leave to appeal against sentence be granted;
(b) appeal dismissed.
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