Battersby v R

[2018] NSWCCA 141

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Battersby v R [2018] NSWCCA 141

Hearing dates:

4 May 2018

Decision date:

16 July 2018

Before:

Hoeben CJ at CL [1]
Walton J at [2]
Button J at [105]

Decision:

1. Leave to appeal against sentence granted.

 

2. Appeal allowed.

 

3. Pursuant to s 53A(1) of the Sentencing Act, an aggregate term of imprisonment of 12 years is imposed which commences on 16 November 2015 and concludes on 15 November 2027 with a non-parole period of 8 years concluding on 15 November 2023.

 

4. Pursuant to s 53A(2)(b) of the Sentencing Act, the indicative sentences in that respect are as follows:

 

(1) sequence 1: 10 years with a non-parole period of 6 years and 6 months;

 

(2) sequence 2: 3 years; and

 (3) sequence 3: 5 years with a non-parole period of 3 years.

Catchwords:

SENTENCING APPEAL – leave to appeal –convictions for large commercial supply of ecstasy and cocaine and proceeds of crime – error in maximum penalty taken into account for proceeds of crime offence –error in maximum penalty vitiated the exercise of sentencing discretion –resentencing required – whether error to find applicant was “well above lowest rung” of drug trafficking hierarchy – evaluation of objective seriousness and offenders role – onus where full nature of criminal enterprise not known – role of offender inferred from quantity of drugs – no error in discretionary sentencing judgment regarding evaluation of offender’s role – parity ground not presently available – reliance on comparable sentences and JIRS statistics – resentencing

Legislation Cited:

Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)

Cases Cited:

AB v R [2014] NSWCCA 31
Andreata v R [2015] NSWCCA 239
Ayik v R [2013] NSWCCA 119
Campbell v R [2018] NSWCCA 17
Chong v R [2017] NSWCCA 185
Coetzee v R [2007] NSWCCA 12
Elchiekh v R [2016] NSWCCA 225
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Koh v R [2013] NSWCCA 287
Lee v R [2016] NSWCCA 146
Lehn v R (2016) 78 MVR 353; [2016] NSWCCA 255
Mooney v R [2016] NSWCCA 303
Newtown v R [2009] NSWCCA 128
Nguyen v R [2014] NSWCCA 16
Nguyen v R [2017] NSWCCA 39
Potts v R [2017] NSWCCA 10
R v Lao [2003] NSWCCA 315
R v Niketic [2002] NSWCCA 425
Radi v R [2013] NSWCCA 278
Salafia v R [2015] NSWCCA 141
See v R [2017] NSWCCA 165
Sutton v R [2016] NSWCCA 249
Why v R [2017] NSWCCA 101
Zaky v R (Cth) [2017] NSWCCA 141

Category:

Principal judgment

Parties:

Jonathan Battersby (Applicant)
The Crown

Representation:

Counsel:
S Odgers SC (Applicant)
B Hatfield (Crown)

  Solicitors:
Criminal Defence Group (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s):

2015/337237

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

28 October 2016

Before:

Sides QC DCJ

File Number(s):

2015/337237

Judgment

1. HOEBEN CJ at CL: I agree with Walton J and the orders which he proposes.

2. WALTON J: By a Notice of Application for Leave to Appeal filed 4 April 2018, the applicant, Jonathan Battersby, sought leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) against the sentence imposed upon him in the District Court of New South Wales on 28 October 2016.

3. The applicant pleaded guilty to three offences. The first sequence was the supply of a large commercial quantity of a prohibited drug, namely 23.85 kilograms of MDMA (ecstasy) contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (“the Act”). The maximum penalty for this offence was life imprisonment with a standard non-parole period of 15 years.

4. The second sequence was knowingly deal with the proceeds of crime, namely the sum of $189,750 in cash, contrary to s 193B(2) of the Crimes Act 1900 (NSW). The maximum penalty for that offence was 15 years imprisonment.

5. The third sequence was the supply of a large commercial quantity of a prohibited drug, namely 2.23 kilograms of cocaine contrary to s 25(2) of the Act. The maximum penalty for that offence was life imprisonment with a standard non-parole period of 15 years.

6. Pursuant to s 53A(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Act”), Sides SC DCJ (“the sentencing judge”) imposed an aggregate sentence of 15 years and 6 months commencing on 16 November 2015 and concluding on 15 May 2031 with a non-parole period of 10 years concluding on 15 November 2025.

7. The sentencing judge found that, pursuant to s 53A(2)(b) of the Sentencing Act, the indicative sentences were as follows:

1. sequence 1: 12 years with a non-parole period of 7 years and 6 months;

2. sequence 2: 5 years; and

3. sequence 3: 5 years with a non-parole period of 3 years.

GROUNDS OF APPEAL

8. The four grounds of appeal were as follows:

1. Ground 1: the sentencing judge erred with respect to the maximum penalty for the offence of deal with proceeds of crime knowing that it was the proceeds of crime;

2. Ground 2: the sentencing judge erred in finding that the applicant was "well above the lowest rung" of the drug trafficking hierarchy;

3. Ground 3: the applicant has a justifiable sense of grievance as a consequence of the sentence imposed upon his co-offender, Ethan Busby; and

4. Ground 4: the aggregate sentence was manifestly excessive.

FACTUAL BACKGROUND

9. The following summary of the factual background derives from an agreed statement of facts tendered in the sentencing proceedings:

1. The investigating police conducted inquiries and surveillance of the applicant and a silver coloured Mitsubishi vehicle in the Prospect area.

2. On 16 November 2015, the applicant was seen to leave premises at Tugga Way, Pumulwuy and waved down a passing taxi. He returned to the premises a short time later then left with a large dark coloured suitcase which he placed in the boot of the taxi.

3. The applicant travelled in the taxi to a car park in Prospect near a storage facility. The applicant alighted from the taxi and removed the suitcase. He walked towards the silver coloured Mitsubishi.

4. At the time, the co-offender, was the sole occupant of the vehicle. The applicant placed the suitcase in the boot of that vehicle and then sat in the front passenger seat appearing to speak to the co-offender. The applicant then exited the silver Mitsubishi and drove from that location.

5. A short time later that day, police stopped the silver Mitsubishi near North Parramatta. The co-offender was the driver. The police discovered a suitcase in the boot with a small padlock which secured the zipper around the suitcase. The suitcase had white coloured towels on both sides of the case. The towels were removed and police located 22 individually wrapped packages of which 19 packages were wrapped in black duct tape and were found to contain a brown coloured crystallised substance, and 3 packages were wrapped in silver duct tape.

6. Upon a search of the vehicle, police also found a grey coloured backpack with a wallet containing various forms of identification of the co-offender and three resealable bags similar to those found in the glove box of the car.

7. The co-offender was arrested and charged with the same drug offences as the applicant (the co-offender was not charged with the offence of dealing with the proceeds of crime offence).

8. Later that day, the applicant rode a red and silver mountain bike to Kennards Prospect carrying a black backpack. He entered and exited the storage shed. He was arrested at the intersection of Stoddart Road, Prospect for the supply of drugs.

9. A police search located a white coloured Blackberry, $230 cash, a key ring and 4 keys, a Woolworths card with his name, a damaged Lebara sim card and some clothing in the black backpack.

10. After the applicant indicated he was not aware of his current address but knew how to get there, the police indicated that they knew his address and asked whether there was anything they should be aware of before attending there. In response to a question “Is there going to be a heap of money at the house?”, the applicant said, “Yeah, probably… About $100,000”.

11. Upon attending the premises, the police located a combined total of $189,000 in various bundles of loose cash in $50 and $100 notes with pieces of paper and names on each bundle. The police also located other items.

12. The presumptive testing of the contents of the set of 19 packages revealed a positive result for MDMA. No presumptive tests were carried out on the remaining 3 packages. The total weight of all packages was 29.2 kilograms.

13. An analysis of the substances from the 19 black taped packages located a total quantity of 23.85 kilograms of MDMA with a drug purity ranging between 73% to 75.5% and a total quantity of 2.23 kilograms of cocaine with a drug purity of 61.5%.

14. Forensic examination of the exhibits seized identified fingerprints of the applicant on the exterior of the suitcase containing the prohibited drugs and on the towel found inside the suitcase.

THE SENTENCING JUDGMENT

10. After describing the aforementioned facts, the sentencing judge began by recording the background of the applicant and the evidence as to his psychological state (matters which attract further attention below). His Honour noted that the applicant had no prior convictions and “extended him the benefit of prior good character”.

11. After noting that the applicant did not give sworn evidence and had told a probation officer his involvement in the offence was to do a favour for a friend who had given him free lodgings, his Honour then turned to the account given by the applicant to forensic psychologist Associate Professor Stephen Woods. According to the sentencing judge, the applicant reported to Associate Professor Woods as follows:

1. He was staying with the friend for about 5 months’ rent free prior to his arrest (he met the friend whilst working in Spain).

2. The friend indicated that he was travelling overseas and asked the applicant to monitor a mobile phone and to use moneys stored in the friend’s bedroom to pay bills. The applicant was shown the money and appreciated that “as it was such a large amount that it must have been from criminal activity” however he did not ask any questions. The friend provided this advice prior to November 2015.

3. In relation to the drugs, the applicant claimed that he had received a request on a mobile phone from an unknown person to deliver what would be brought to and left at the premises “the day prior”. The applicant said he was not present when the suitcase was left at the house.

4. The applicant realised he was being asked to engage in criminal activity “but he was too scared to do other than as requested because he guessed others who were involved were dangerous criminals”. (It may be noted that the sentencing judge did not refer to a further passage of Associate Professor Woods’ report where the Associate Professor referred to the applicant stating “it was a suitcase of fucking drugs… I felt scared… I didn’t want it to come back on me”).

5. Slightly later in his sentencing remarks, the sentencing judge observed that, even if the applicant’s account that he was doing a “favour” was true, the applicant “felt obliged because he had the benefit of 5 months accommodation”.

12. The sentencing judge found that there were many reasons to doubt the credibility of the latter two assertions about his involvement in the offence. He found that, whilst there was no independent evidence to corroborate his evidence, “there [was] no evidence to contradict it”.

13. The sentencing judge then made a number of findings as follows:

1. There was no evidence that the applicant had financed the venture, had instigated it or was involved in its planning or management.

2. Even if the applicant's account that he was only doing a favour for his friend were true, and he was not paid to perform tasks for that person, the amount of free rent "would come to a considerable sum if one put a monetary figure on what it saved him”.

3. His friend trusted him to leave him in charge of such a large sum of money and to receive, store and deliver the drugs of an obviously high value.

4. In the absence of evidence to identify others who would carry out the role that the applicant described that he discharged in connection with the drugs and the money, the applicant's role was critical to the illegal ventures and was designed to help others avoid detection and punishment.

5. The applicant knew his friend and benefactor was involved in significant criminal activity before November 2015 but the applicant chose to remain in the house and exercise custody and control over a large amount of money. Even after the applicant realised that his friend and benefactor was engaged in the illegal drug trade, he resolved to secure the money so that its owners could “keep his ill-gotten gains”.

6. By that stage, if not before, the applicant knew he was engaged in organised criminal activity.

7. Having regard to [12(8)] below, the money and the drug offences were premeditated. (It may be noted the applicant pointed to the fact, consistent with the findings of the sentencing judge that, at some stage, the suitcase was left at the premises whilst he was absent and contended that, therefore, the suitcase was in his possession at the premises for only a short period of time).

8. The applicant opened the suitcase because his DNA was on a towel found inside the suitcase. He chose to continue to be involved and to deliver the suitcase to the co-offender. The applicant’s involvement was in a wholesale transaction. Had the drugs not been seized, he would not have known who would end up consuming the drugs. Such individuals might have included vulnerable people such as children and/or first time users. The applicant chose to play a critical role to help a well-organised criminal activity “involving people he knew or thought could be dangerous”.

9. The proceeds of crime offence was a “very serious offence”. His Honour found:

In terms of monetary value there is no upper limit presented by this provision. The Court is satisfied beyond a reasonable doubt that his involvement in that offence was premeditated. In the Court’s view, it is around the level of a mid-range offence.

14. I interpose to note that, in written submissions, it was contended by senior counsel for the applicant that the sentencing judge should be taken as finding that he “was too scared to do other than requested because he thought that those involved ‘could be dangerous’ criminals”. Later in oral submissions, senior counsel for the applicant referred to the finding of the sentencing judge as set out in the last sentence of [12(8)] above as an implicit finding that the appellant acted under duress – not that the applicant was “objectively being the subject of duress” but rather the duress was experienced subjectively or as senior counsel described it, “internalised duress”.

15. I do not accept that submission. The passage of the judgment relied upon by the applicant described above was not a finding that the applicant’s culpability was reduced because he was ‘scared’ of dangerous criminals when he committed the drug offence, but rather that he had an elevated culpability – the applicant was found to have a “critical role” in helping well organised criminal activity involving people he knew or thought could be dangerous. The reference to “dangerous criminals” in that context was not an explanation as to the applicant’s conduct (vis-à-vis being afraid), but, rather, to emphasise the nature and extent of the involvement in criminal activity. The remarks follow observations by his Honour that the applicant was involved in a wholesale transaction which might result in drugs going to “vulnerable people”.

16. I note, for completeness, that there was no reference to the applicant being scared or acting under duress in a pre-sentence report prepared by Ms Jennifer Grey of Corrective Services of 26 October 2016. Nor does the sentencing judge find any specific threat (and no such threat appeared from the evidence). The applicant was alone when the request to deliver the drugs was made and he undertook that task.

17. Whilst attended by some ambiguity in the sentencing judgment, on balance, a conclusion may be reached that the sentencing judge attached some, but modest, weight in assessing the objective seriousness of the drug offences to the applicant experiencing fear of the implications of not delivering the drugs as requested. He also found that the applicant was influenced by the fact that he received the benefit of 5 months’ free accommodation.

18. His Honour then made the following finding:

The Offender is not in the upper echelons of the drug trafficking hierarchy, but he is well above the lowest rung of that hierarchy.

The Court is satisfied that, at the time of the offences, he knew what he was doing and the consequences of his conduct. Therefore there is no basis to find a reduction in moral culpability because of his drug use.

19. His Honour found that, taking into account the objective factors affecting the relative seriousness of the offence in sequence 1, that offence is somewhat below the middle of the range of seriousness as noted by the standard non-parole period. His Honour made the same finding with respect to the offence in sequence 3.

20. The sentencing judge considered that general deterrence should play a significant role “in sentencing individuals for offences of this nature” but the applicant’s “positive activity in gaol… means that it is appropriate to give less weight to personal deterrence”.

21. As to subjective features, his Honour noted that the offences were committed shortly before the thirty-first birthday of the applicant. He was born in the United Kingdom and had one sister. He had two half siblings.

22. As to the applicant’s time in custody, the Court found that he had not used illegal drugs. He had received counselling on substance abuse and set up a drug treatment program that was informal in nature. He was mentoring other inmates. That program had a remarkable impact on other inmates.

23. The applicant had been working in the “trusted position of sweeper since he was in custody”. His cellmate in custody had been teaching him to read.

24. The applicant came to Australia in April 2015 on a tourist visa. There is no evidence that he had the disadvantage of a dysfunctional upbringing. However, the applicant left school at age 15 and was illiterate when he left school.

25. The applicant started using cannabis at the age of 15. His Honour noted that this was when “he would have been too young to appreciate the long term consequences of that use”. His drug use escalated after he started working in the hospitality industry. His substance abuse continued up until the time of his arrest.

26. As to the report of the forensic psychologist, his Honour found there was no evidence that the applicant was suffering from depression or anxiety at the time of the offences.

27. The applicant was genuinely remorseful. The sentencing judge found that he was satisfied the applicant’s prospects for rehabilitation were “good”.

28. There was an early plea of guilty justifying a utilitarian discount of 25%.

29. His Honour found special circumstances because custody was more burdensome (considering none of his family live in Australia), and “strong subjective features”.

GROUNDS 1 AND 2 OF THE APPEAL

Ground 1: The sentencing judge erred with respect to the maximum penalty for the offence of deal with proceeds of crime knowing that it was the proceeds of crime

30. The applicant submitted that the sentencing judge had erred in the maximum penalty he had to take into account for the proceeds of crime offence. The offence carried a maximum penalty of 15 years imprisonment and not 20 years as found by the sentencing judge. So much was conceded by the Crown.

31. The applicant correctly submitted that an error of that kind would vitiate the exercise of the sentencing discretion unless the Crown satisfied the Court that it was not a real possibility that it affected the exercise of that discretion: Lee v R [2016] NSWCCA 146 at [37]; Mooney v R [2016] NSWCCA 303 at [33]; Potts v R [2017] NSWCCA 10 at [37]; Nguyen v R [2017] NSWCCA 39 at [120]; Campbell v R [2018] NSWCCA 17 at [30]-[33].

30. There was no demur from that submission by the Crown which also made reference to the judgment of Beech-Jones J (with whom Ward JA and Adams J agreed) in Andreata v R [2015] NSWCCA 239. In that matter, his Honour stated at [28]:

[28] The present issue concerns the process of identifying error not the matter identified in the above passage from Baxter which is directed to what happens once error is identified. Consistent with House v R [1936] HCA 40; 55 CLR 499 at 504-505 and the above passage from Kentwell this requires a determination as to whether the sentencing judge “act[ed]” upon the wrong principle. As the latter part of the above passage from Kentwell makes clear there can be some misstatements of legal principle that are irrelevant or immaterial to the sentencing outcome and thus they do not establish that an error was acted upon in the sense discussed in House v R. It is in that context that Donaghey referred to an error as “material”. Given the significance of the maximum penalty to the sentencing process (Markarian v R [2005] HCA 25; 228 CLR 357 at [31]) it is difficult to conceive of a circumstance in which the misstatement of the maximum sentence would not result in House v R error except perhaps, for example, if the balance of the reasons demonstrated that the sentencing judge in fact acted on the basis of the correct maximum penalty.

33. The Crown conceded that there was nothing in the balance of the reasons of the sentencing judge to suggest his Honour acted on the correct maximum penalty. It was also accepted that “it [could] not be said that the incorrect statement of the maximum did not affect the indicative sentence of [sequence] 2 or that the error was a mistranscription or slip” (see Campbell v R at [29]). It was also conceded, correctly in my view, that this was not a case where the error could be regarded as an inadvertent misstatement which did not affect the sentence imposed: Zaky v R (Cth) [2017] NSWCCA 141 (per Hoeben CJ at CL with whom Garling J and Bellew J agreed) and Newtown v R [2009] NSWCCA 128.

34. The question which arises for determination under this ground is whether the error as to the assessment of the maximum penalty had a material bearing upon the assessment of the aggregate sentence: AB v R [2014] NSWCCA 31 at [68] (per R A Hulme J with whom Beazley P and Schmidt J agreed), Sutton v R [2016] NSWCCA 249 at [37] (per Gleeson JA with whom Fagan and N Adams JJ agreed) and Elchiekh v R [2016] NSWCCA 225 at [32]-[33] (per Price J with whom Button and Fagan JJ agreed) (see Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 (“Kentwell”) at [42]).

35. The applicant submitted that the Crown had not discharged the burden of establishing there was no real possibility the error by the sentencing judge as to the maximum penalty for the proceeds of crime offence. The sentencing judge had determined an indicative sentence for the offence and then determined the aggregate sentence taking into account the principle of totality.

36. The Crown submitted that, as the sentence was an aggregate sentence, the issue was whether the error was acted upon when imposing the aggregate sentence. The Crown contended that the reference to the incorrect maximum penalty should be regarded in the present matter as having had relatively little effect on the aggregate sentence.

37. That was because, it was submitted, the sentence on sequence 1 was by far the more significant indicative sentence and the effect of the aggregate sentence was that sequences 2 and 3, which were both given an indicative sentence of 5 years (and a non-parole period of 3 years for sequence 3) were, in combination, accumulated only modestly on the sentence for sequence 1 and, thus, were substantially subsumed by the aggregate sentence. The incorrect maximum penalty was applied in respect of sequence 3 in a situation where the other two offences carried a significantly higher maximum penalty and standard non-parole period.

38. There was some substance in the Crown’s submission as to the significance of the indicative sentence for the sequence 1 offence. However, it did not follow that the error in the maximum penalty did not have a material impact upon the aggregate sentence imposed by the sentencing judge.

39. There were two considerations which sustained that conclusion as to the error materially impacting upon the aggregate sentence.

40. First, the sentencing judge clearly identified the significance of sequence 2 by his statement that the offence was “very serious” and was at the level of a mid-range offence.

41. Secondly, whether or not the amount of accumulation between sequence 1 and sequences 2 and 3 was modest, sequence 2 was accumulated more in recognition of the different circumstances underpinning that offence.

42. Once that conclusion is reached then, it must follow that the error vitiated the exercise of the sentencing discretion and leave be granted to bring the appeal.

43. Having found error in the sentencing judgment, this Court must exercise the sentencing discretion afresh taking into account the purposes of sentencing and the factors, inter alia, the Sentencing Act requires to be considered: Kentwell at [42]–[43]; Lehn v R (2016) 78 MVR 353; [2016] NSWCCA 255 at [60], [86] and [128]. Such an exercise involves the exercise of an independent discretion with a sentence fixed which is appropriate having regard to the offender and the offence.

44. That said, the process of re-sentencing will be guided, firstly, by considering ground 2 of the appeal, and then, during the course of re-sentencing, considering the contentions of the parties under ground 4 (the manifestly excessive ground, particularly as to the reliance on ‘comparable’ cases and statistics from the Judicial Information Research System (“JIRS”) produced by the Judicial Commission of New South Wales). One further observation needs to be made before proceeding down that path.

45. In ground 3, the applicant contended that, having regard to the sentence imposed upon the co-offender, he had a justifiable grievance from the sentence imposed on him that he was not given equal treatment.

46. However, as discussed with the parties during the course of the hearing, the resolution of that issue was necessarily connected to the outcome of the Crown appeal with respect to the co-offender.

47. The convictions against and sentences imposed upon the co-offender were quashed and the matter remitted to the District Court for trial.

48. It follows that this ground of appeal is not presently available as there is no capacity to determine whether there is any discrepancy by way of unequal treatment between sentences: Why v R [2017] NSWCCA 101 at [43]-[45].

Ground 2: The sentencing judge erred in finding that the applicant was “well above the lowest rung” of the drug trafficking hierarchy

49. The applicant submitted that this assessment by the sentencing judge was not reasonably open. The applicant took custody of the drugs for a short time and then delivered them to a co-offender in accordance with directions he received for no reward other than the benefit of rent-free accommodation. He was merely a custodian and courier. He was not involved in the management, planning or management or financing of the drug supply and did not have any more sophisticated or sinister responsibilities.

50. The applicant submitted that his role was only “a little higher than the lowest rung of the hierarchy”.

51. The applicant placed reliance in that respect upon the judgment of Harrison J in Chong v R [2017] NSWCCA 185 at [37]. That passage of the judgment was as follows:

[37] It is well established that the adoption of a description of a person’s particular role in, for example, an enterprise involving the manufacture or acquisition of drugs, and their wider distribution and supply, must yield to the precise factual basis said to support the description that has been chosen. It would also appear to be well understood, in sentencing parlance, that “a courier” is generally regarded as an individual whose involvement among a range of other individuals is limited to the physical act of carrying or delivering the offending substance, unassociated with any more sophisticated or sinister responsibilities. The potential rewards for such assistance are also generally understood to be smaller, along with the corresponding level of criminality. It would generally seem to be the case that a courier in this context is to be regarded as someone on the bottom rung of the enterprise.

52. The starting point for the analysis of this ground is the recognition that the evaluation of the objective seriousness of an offence and the offenders role in that offence is a discretionary process involving a value judgment. There are no definitely correct answers, and opinions may reasonably differ: Salafia v R [2015] NSWCCA 141 at [76]-[78] (per Wilson J with whom Hoeben CJ at CL and Hall J agreed).

53. Further, in cases such as this where the full nature of the criminal enterprise is not known and the precise characterisation of the offender’s roles is made more difficult, the offender bears the onus, on the balance of probabilities, to establish a lesser role in the offence: Koh v R [2013] NSWCCA 287 at [119]-[121]; Radi v R [2013] NSWCCA 278 at [25] quoting R v Niketic [2002] NSWCCA 425 at [4].

54. The application of these principles to the submission of the applicant as to this ground immediately demonstrates why it must fail. The submissions are predicated upon a distinction being drawn for the purposes of this appeal between a finding that the applicant was “well above the lowest rung of the drug trafficking hierarchy” and his role being only “a little higher” than the lowest rung of the hierarchy. The distinction sought to be drawn is obscure. Such fine gradations between the factors underpinning the assessment of the objective seriousness of the offence could never properly establish error in a discretionary sentencing judgment in the absence of a more precise definition of the applicant’s role on the evidence.

55. In any event, the evidence amply sustained the sentencing judge’s conclusion. Whilst the applicant was not involved in the management, planning or financing of the drug supply, the applicant’s role was greater than a mere courier because of the level of trust reposed in him by his benefactor, he opened the suitcase in which the drugs were found and he exercised control over the drug transaction whilst acting alone.

56. It may be noted that it was conceded by the applicant that opening the suitcase was not ‘standard’ for couriers but that made little difference because the applicant acknowledged that he was aware he was carrying the drugs. However, that acknowledgment does not alter the fact that he did not merely transport the drugs but dealt with them, as such, by opening the suitcase, viewing the contents and, in the course of doing so, touching the towel within which they were contained.

57. I also accept the submission of the Crown that the importance of the applicant’s role may be inferred from the quantity of drugs involved: Radi v R at [27], subject to the observations of Harrison J in Chong v R that the description of the particular role of the applicant must yield to the precise factual basis said to support the description given to him. The basis for that characterisation was outlined above.

58. This ground of appeal must be rejected.

RESENTENCING

Introduction: the contentions directed to Ground 4

59. The applicant submitted that the indicative sentence with respect to the proceeds offence was unreasonable having regard to his very limited role with respect to those proceeds and his strong subjective case. It was submitted that the applicant’s dealing with proceeds was objectively minimal as he was simply custodian of the money for a period of time prior to the owner reclaiming it from him.

60. In support of that submission, the applicant referred to some JIRS statistics which were to the effect that of 83 cases of offences under s 193B(2), only 47 (57%) resulted in terms of imprisonment. Of those 47 cases, it was submitted the highest term imposed except for one offender was 4 years imprisonment; most sentences falling within the range of 2 to 3 years in length. The exceptional case was one term of 5 years imposed in See v R [2017] NSWCCA 165 (“See”) which the applicant sought to distinguish from the present matter, upon the basis that the offender in See stored about $5.5 million worth of stolen items (the product of 137 residential break, enter and steal offences in Sydney over the period of 2004 to 2011, six commercial break, enter and steal offences in Melbourne in 2010 and a commercial break, enter and steal offence in Victoria in 2011).

61. It was also submitted that the indicative sentence for the ecstasy drug supply offence of 12 years was unreasonable bearing in mind the very limited role of the applicant with respect to the offence and again his strong subjective case. The applicant pointed to what it said were comparable cases: Chong v R, Nguyen v R [2014] NSWCCA 16; Ayik v R [2013] NSWCCA 119; Coetzee v R [2007] NSWCCA 12 and R v Lao [2003] NSWCCA 315.

62. As earlier mentioned, it was submitted that the applicant was acting under duress – not exculpatory duress “but internalised duress”. I have rejected that submission but accepted that the sentencing judge found he acted under some degree of fear of the consequences, and that had a modest impact on his culpability.

63. Based on these submissions, it was contended that the aggregate sentence was manifestly excessive bearing in mind the totality principle. It was accepted that some accumulation with respect of the second drug supply offence was appropriate. However, the sentences for the two drug supply offences should, it was submitted, have been very largely concurrent bearing in mind the common circumstances of offending.

64. Given that the proceeds of crime offence did not concern proceeds from the drug supply offences, it was accepted that accumulation for the proceeds offence should be proportionally higher but the accumulation should not be large given the common features and surrounding circumstances of the offences.

65. The applicant also referred to matters applicable to any resentencing. It was contended that the applicant had, on the evidence, turned his life around and had extremely good prospects of rehabilitation. It was appropriate to find special circumstances because of the burdensome nature of imprisonment given he is separated from his family (who are overseas). The same finding as made by the sentencing judge as to subjective factors applicable in any resentencing process.

66. The Crown made the following submissions:

The present case involved the supply of 23.85kg of MDMA with a purity of 73% and a wholesale value of $835,200, as well as the supply of 2.23kg of cocaine with a purity of 61.5% and a wholesale value of $624,064.

A large commercial quantity of MDMA is 500g. The present matter involved 47 times greater than the large commercial quantity, and the purity of the drug was very high. A large commercial quantity of cocaine is 1kg. The present matter involves more than double the large commercial quantity, and the purity of that drug was also high.

Where offences such as the present ones are patently serious, there is a corresponding obligation in imposing a sentence which reflects this: R v Gavel [2014] NSWCCA 56 at [126].

The applicant has not demonstrated that the aggregate sentence imposed was unreasonable or plainly unjust.

The applicant’s reliance on comparable sentences and JIRS statistics

67. As mentioned earlier, it is useful to consider in resentencing the cases referred to by the applicant with respect to ground 4 while recognising the limited use to which they are to be put having regard to the differences in the offences, the nature of the offence and the subjective circumstances.

68. In Chong v R, Mr Chong had only been charged with, and pleaded guilty to, one count of supplying 923 grams of methylamphetamine with a purity of 78.5% contrary to s 25 of the Act. Mr Chong was on a working holiday in Australia when he agreed with a friend that he would deliver a bag to Perth. The bag was delivered to where he was staying, and the arrangement was that Mr Chong would be paid a handling fee in exchange for making the delivery. Basten JA found that it was not open to the sentencing judge to make a finding that the role of Mr Chong was “somewhat more than a courier” without a prior indication to the parties that such a finding would be made (at [14]). In the appeal proceedings, the prosecution conceded that it appeared Mr Chong’s role was limited to that of a courier. Mr Chong was re-sentenced to 6 years imprisonment with a non-parole period of 4 years.

69. Mr Chong’s case is not comparable to the applicant’s case. Firstly, while the drugs were of a slightly higher purity, Mr Chong had been sentenced for just one count of supplying a prohibited drug. Secondly, the weight of the drugs Mr Chong was sentenced for supplying was significantly lower than that for which the applicant was sentenced. As counsel for the Crown correctly submitted, it was at the lower end of a large commercial quantity. Further, Basten JA (with whom Harrison J agreed) found that the appropriate finding was that Mr Chong was a courier who had agreed to transport the drugs (at [22]). As I have found, the applicant’s role in this matter is greater.

70. In Nguyen v R [2014] NSWCCA 16, Mr Nguyen was convicted by a jury after pleading not guilty to knowingly supplying not less than a large commercial quantity of cocaine contrary to s 25(2) of the Act. It is not clear from the judgment of the exact quantity of the drug he was charged with supplying. However, it can be inferred that it was around 30 kg (see at [14]). He was sentenced to 11 years imprisonment with a non-parole period of 7 years and 6 months.

71. Mr Nguyen drove with the co-offender to a McDonald’s where the co-offender said he was waiting for a friend. An undercover police officer arrived with a substance substituted for cocaine in two large plastic bags. Mr Nguyen had a conversation with the undercover police officer, then Mr Nguyen reached into the car driven by the undercover police officer to grab the bags when police intervened and arrested Mr Nguyen and the co-offender.

72. The sentencing judge in that case made a finding that Mr Nguyen had “very little knowledge of the whole of the operation” and “played a small part at the bottom of the hierarchy”. Again Mr Nguyen had only been charged with one count of supply. In contrast with the applicant’s case, the applicant knew that the money his friend showed him must have been from criminal activity and that those involved could have been dangerous criminals.

73. In Ayik v R, Mr Ayik was charged with one count of supplying a large commercial quantity of a prohibited drug, namely 28.75 kg of heroin contrary to s 25(2) of the Act. The amount of heroin involved was 28 times the large commercial quantity and was described as one of the highest non-border seizure recorded in New South Wales. Mr Ayik was sentenced to 9 years imprisonment with a non-parole period of 5 years and 6 months.

74. Mr Ayik appealed against the sentence on the basis of parity having regard to the sentences imposed on a co-offender. Mr Ayik’s role was to store the heroin at his premises for a three day period, and the co-offender collected the heroin, drove off and was stopped by police and the heroin located. The sentencing judge who sentenced the co-offender found that the co-offender was acting under duress. The co-offender assisted authorities and was allowed a combined discount of 50% for the assistance and the guilty plea.

75. The Crown submitted that Mr Ayik’s role was limited to storing the heroin and putting the suitcase in the car when the co-offender arrived (it should also be noted that Mr Ayik placed the heroin in the suitcase: see at [7]). In comparison to the applicant’s case, the applicant was effecting the delivery of the drugs to the co-offender.

67. The case of Coetzee v R is barely comparable to the current case in question. Mr Coetzee pleaded guilty to supplying a prohibited drug, namely 24.4 kg of cocaine contrary to s 33(3)(a) of the Act. He was sentenced to 9 years and 3 months imprisonment with a non-parole period of 6 years and 9 months. Mr Coetzee was involved with setting up a company to facilitate the importation of flooring which allowed for the importation of the cocaine. The facts are too far removed from the current case. The Crown also submitted that this was a very lenient sentence from 2007 and it was somewhat anomalous.

68. In R v Lao, Mr Lao was convicted on his plea of guilty for supplying a prohibited drug greater than a large commercial quantity, namely 1.016 kg of ecstasy pursuant to s 25(2) of the Act. Mr Lao was sentenced to 5 years imprisonment with a non-parole period of 3 years. Mr Lao had a gambling problem and became a target for a criminal looking for a courier. Mr Lao initially thought he was transporting Chinese herbal medicine and assumed that there was some illegality concerning tax. On receipt of the ‘medicine’ he became aware that he was likely transporting drugs. It was accepted in this case that Mr Lao was a mere courier whose original intention had nothing to do with being a courier of illegal drugs.

69. Again this case is not comparable because Mr Lao was only charged with one offence. The quantity of the drugs (just 1 kg) was considerably lower than the amount currently in question, and the findings made about his role as a ‘mere courier’ differs to the findings made in the applicant’s case.

70. As to the proceeds of crime offence, the applicant’s reliance upon JIRS statistics are of limited value in the present case. I have earlier observed as to the limitations of such statistics in relation to aggregate sentences in Why v R (at [34]-[35]):

[34] In R v Chidiac [2015] NSWCCA 241 at [57], Price J, with whom Bathurst CJ and Beech-Jones J agreed, explained that:

Where aggregate sentences are imposed, the limited use of sentencing statistics becomes more apparent. The indicative sentences are not the actual sentence that is imposed. Moreover, the Judicial Commission statistics do not extend to a number of different sentences that overlap or to an aggregate sentence: Knight v R [2015] NSWCCA 222 at [8] and [87].

[35] As to the second limb, the applicant’s allegation of manifest excess is not assisted by the identification of one other case in which a more lenient sentence was imposed. As Johnson J (with whom Allsop P and Price J agreed) explained in Huynh v The Queen (2008) 188 A Crim R 287; [2008] NSWCCA 216 at [61]:

[61] …The practice of approaching sentencing appeals by a search for, and comparison with, sentences passed in other cases, is neither helpful nor supported by authority: R v Morgan (1993) 70 A Crim R 368 at 371; R v George (2004) 149 A Crim R 38 at 47 [48]-[49].

80. I acknowledge the remarks of R A Hulme J in that matter wherein his Honour stated “(t)he sentencing statistics can be a very valuable tool if properly understood and used appropriately” (at [64]). His Honour acknowledged (at [62]):

[62] The Judicial Commission has provided enhancements to the statistics in recent times, partly in response to what the High Court has said in cases such as Hili v The Queen; Jones v The Queen [2010] HCA 45; 244 CLR 520 and The Queen v Pham [2015] HCA 39; 256 CLR 550. They include the provision of statistics for “Aggregate/Effective” terms of sentence and non-parole periods. But there are limitations on the utility of these.

81. It should be noted that the JIRS statistics had been updated since the applicant’s submissions had been received (the applicant’s submission as to the same was outlined at [59] above). The JIRS statistics currently indicate that of 86 cases sampled for offences under s 193B(2) of the Crimes Act (principal offences only), 56% (48 cases) resulted in a penalty type of “prison” (other penalty types included s 9 bonds, community service hours, suspended sentences, intensive correction orders and periodic detention).

82. Of the 48 cases which resulted in a prison sentence, further statistics revealed that 50% of the “aggregate/effective” terms of sentence ranged between 24 to 36 months in length. JIRS provides information about the cases upon which the statistics are based, including offender characteristics, the sentence for the principal offence, and the aggregate/effective sentence. However, this information is simply provided on a case-by-case basis without any comparative analysis. The statistics regarding the length of prison sentences do not differentiate between aggregate and effective terms of imprisonment. Further, the statistics do not reveal any information regarding the monetary sum of proceeds involved in the offences – there is no lower or upper threshold. Hence, the statistics are of limited utility.

Consideration: Resentencing

83. The maximum penalty for sequence 1 was life imprisonment with a standard non-parole period of 15 years.

84. The applicant was convicted of supplying 23.85 kg of MDMA with a purity of 73%. Accordingly there was a very substantial supply (47 times greater than a large commercial quantity). The wholesale value of the drugs was $835,200.

85. The offences were, therefore, patently serious. However, the applicant was correct to submit that the applicant’s limited role needed to be taken into account in resentencing.

86. The applicant was not involved in the management, planning or funding of the drug supply. He held the drugs for only a short period of time before he delivered them, although he dealt with the drugs in the manner earlier described. He knew he was involved in the supply of drugs as part of an organised criminal activity.

87. His role was not that of a mere courier for reasons earlier given earlier in this judgment. Trust was reposed in him to store and deliver the drugs alone. The sentencing judge’s conclusion that the applicant was well above the lowest rung were plainly available and correct.

88. I have accepted that there was an element of fear influencing the applicant’s actions but the offending conduct was not affected by duress. That factor should receive, consistent with the findings of the sentencing judge, only modest weight in reducing the objective seriousness of the offence.

89. As to the proceeds of crime offence, the applicant submitted that he was a mere custodian. There was, however, no demur from the findings of the sentencing judge that, upon being shown the sum of money, the applicant knew that he was agreeing to store a large sum of money for a person engaged in “organised criminal activity”. Nor was there any dispute that while there is no upper limit to the money value of the offence, the amount involved was significant and that the offence was “premeditated”. There was clearly an element of trust reposed in the applicant.

90. There was no challenge to the finding of the sentencing judge that the proceeds of crime offence was a mid-range offence.

91. As to questions of deterrence and subjective features of the matter, there was no demur by either party as to the conclusions of the sentencing judge in that respect which, in my view, have significant merit.

92. General deterrence should play a significant role in the sentences imposed having regard to the nature of the offences and their significance for the community. However, I agree that little weight should be given to specific deterrence. The evidence of the applicant for the purposes of resentencing as to his role and conduct in custody would indicate that the applicant’s prospects for re-offending are low. He has plainly adopted the view, as stated in his affidavit, that he is intent on rehabilitating himself (as well as other inmates) and “repaying for his mistakes”.

93. As earlier mentioned, the applicant committed the offences shortly before his thirty first birthday. He was born in the United Kingdom and has one sister. His father left the relationship with his mother before the applicant was born and his mother then entered into a relationship with the applicant’s step-father. The applicant has two half-siblings.

94. There is no evidence that the applicant suffered disadvantage in his upbringing but he started using cannabis at the age of 15 which then escalated to the use of amphetamines, ice, opiates and prescribed medication in later years. Drug use continued until the time of his arrest.

95. Associate Professor Woods found moderate symptoms of anxiety and moderate to severe symptoms of depression but there was no evidence, as previously mentioned, that the applicant suffered those conditions at the time of the offences.

96. The applicant came to Australia on a tourist visa. He has no family in Australia.

97. The applicant has no prior convictions and has not breached prison discipline. He has not used illicit drugs in custody.

98. The sentencing judge appropriately made a determination that the applicant was genuinely remorseful and extended him the benefit of “prior good character”.

99. There was no dispute that an early plea of guilty justified a utilitarian discount of 25%.

100. In all, there are strong subjective features in favour of the applicant.

101. This is not a case where any other sentence than imprisonment is appropriate.

102. I consider that special circumstances should be found because custody experienced by the applicant will be more burdensome because his family does not live in Australia.

103. In the circumstances, I consider that it is appropriate to impose an aggregate term of imprisonment which reflects the objective seriousness of the respective sentences as described above and allows for modest accumulation between sequences 1 and 3 with greater accumulation in respect of sequence 2.

104. I propose the following orders:

1. Leave to appeal against sentence granted.

2. Appeal allowed.

3. Pursuant to s 53A(1) of the Sentencing Act, an aggregate term of imprisonment of 12 years is imposed which commences on 16 November 2015 and concludes on 15 November 2027 with a non-parole period of 8 years concluding on 15 November 2023.

4. Pursuant to s 53A(2)(b) of the Sentencing Act, the indicative sentences in that respect are as follows:

1. sequence 1: 10 years with a non-parole period of 6 years and 6 months;

2. sequence 2: 3 years; and

3. sequence 3: 5 years with a non-parole period of 3 years.

105. BUTTON J: I agree with Walton J.

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Amendments

19 July 2018 - Order No.3 - errors in date calculations corrected on coversheet and pronouncement of orders.

Decision last updated: 19 July 2018