Briouzguine v R

[2014] NSWCCA 264

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Briouzguine v R [2014] NSWCCA 264

Hearing dates:

10 October 2014

Decision date:

14 November 2014

Before:

Gleeson JA at [1];
Schmidt J at [83];
Bellew J at [84]

Decision:

(1)Grant leave to appeal.

(2)Appeal dismissed.

Catchwords:

CRIMINAL LAW - Appeal - Appeal against sentence - Whether sentence imposed was manifestly excessive - Whether sentencing judge failed to have sufficient regard to the objective seriousness of the offending and the offender's subjective circumstances

Legislation Cited:

Crimes Act 1900 (NSW) s 192G(1)(a)
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 32, 44, 53A
Criminal Appeal Act 1912 (NSW) s 6
Drug Misuse and Trafficking Act 1985 (NSW) s 25, Schedule 1

Cases Cited:

Attorney General's Application under s 37 Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146
Barbaro v R; Zirilli v R [2014] HCA 2; 305 ALR 323
Dinsdale v R [2000] HCA 54; 202 CLR 321
Gill v R [2010] NSWCCA 236
Hili v R [2010] HCA 45; 242 CLR 520
Hill v R [2012] NSWCCA 265
House v The King (1936) 55 CLR 499
Lowndes v The Queen [1999] HCA 29; 195 CLR 665
Markarian v The Queen [2005] HCA 25; 228 CLR 357
MLP v R [2014] NSWCCA 183
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
Naim v R [2006] NSWCCA 289
PD v R [2012] NSWCCA 242
Power v The Queen [1974] HCA 26; 131 CLR 623
R v Brown [2012] NSWCCA 199
R v Do [2005] NSWCCA 209
R v Nikolovska [2010] NSWCCA 153
R v Olbrich [1999] HCA 54; 199 CLR 270
RLS v R [2012] NSWCCA 236
Sheen v R [2011] NSWCCA 259
Tatana v R [2006] NSWCCA 398

Category:

Principal judgment

Parties:

Alexei Briouzguine (Applicant)
Regina (Crown)

Representation:

Counsel:
A Bellanto QC and P Rowe (Applicant)
V Lydiard (Crown)
Solicitors:
S Titmarsh (Solicitor)
J Pheils, Solicitor for Public Prosecutions (Crown)

File Number(s):

2011/2626

Publication restriction:

No

 Decision under appeal 

Jurisdiction:

9101

Date of Decision:

2013-08-16 00:00:00

Before:

Hanley DCJ

File Number(s):

2011/2626

Judgment

1. GLEESON JA: The applicant, Alexei Briouzguine, seeks leave to appeal against the sentence imposed in the District Court at Parramatta on 16 August 2013.

1. The applicant had pleaded guilty to four drug supply offences covering the period September to December 2010. Counts 1, 2 and 4 related to the drug 3, 4 methylenedioxyamphetamine (MDA) and count 3 related to the drug 3, 4 methylenedioxymethylamphetamine (MDMA or ecstasy). Schedule 1 of the Drug Misuse and Trafficking Act 1985 (NSW) (DMT Act) provides, relevantly, that a traffickable quantity for each drug is 0.75 grams; an indictable quantity is 1.25 grams; a commercial quantity is 125 grams (0.125 kg); and a large commercial quantity is 500 grams (0.5 kg).

1. After applying a discount of 18% for the pleas of guilty, the applicant was sentenced in accordance with s 53A of the Crimes (Sentencing Procedure) Act1999 (NSW) to an aggregate non-parole period of 5 years (commencing on 14 August 2013) with a balance of term of 4 years (expiring 13 August 2022).

1. The sentencing judge recorded (at ROS 21) the following indicative sentences that would have been imposed for each of the four offences had separate sentences been imposed instead of an aggregate sentence:

Offence	Maximum Penalties	Standard Non-parole period	Indicative Sentence
Count 1. Between 24-27 September 2010 supply not less than an indictable quantity of MDA (100g - 500 "green maccas" tablets) contrary to s 25(1) DMT Act	15 years imprisonment	No	Fixed term 2 years
Count 2. On 3 December 2010 supply not less than the large commercial quantity of MDA (2900g - 10,000 tablets "green maccas") contrary to s 25(2) DMT Act	Life	15 years	7 years
Count 3. On 14 December 2010 supply not less than the commercial quantity of MDMA (275g - 1100 tablets "yellow spades") contrary to s 25(2) DMT Act	20 years	10 years	3 years
Count 4. On 29 December 2010 supply not less than the large commercial quantity of MDA (882g - 3000 tablets "green maccas") contrary to s 25(2) DMT Act	Life	15 years	4 years

1. In passing sentence on the first count, the sentencing judge was asked to take into account, on a Form 1, pursuant to s 32 of the Crimes (Sentencing Procedure) Act, three offences on 20 September 2010, being two acts of supply a prohibited drug - methylamphetamine (30.87g) and MDMA (5.63g), and one act of supply not less than an indictable quantity of a prohibited drug - MDA (100g), each contrary to s 25(1) DMT Act.

1. In passing sentence on the second count, the sentencing judge was asked to take into account, on a second Form 1, an offence on 3 December 2010 of supply not less than the commercial quantity of a prohibited drug - MDA (290g), contrary to s 25(2) DMT Act.

1. In passing sentence on the fourth count, the sentencing judge was asked to take into account, on a third Form 1, six offences, namely, on 29 December 2010 five acts of supply a prohibited drug - methylamphetamine (11.53g); Gammabutyrolactone (109.96g); MDMA (17.5g); 1-Benzylpiperazne (3.33g); and 4-Bromo-2,5-dimethoxyphenlethylamine (1.55g), each contrary to s 25(1) of the DMT Act; and on 23 February 2011 one act of publish false and misleading material to obtain property (an iPhone) contrary to s 192G(1)(a) Crimes Act1900 (NSW).

Ground of appeal

1. If leave is granted, the sole ground of appeal relied upon by the applicant is:

"1. His Honour erred in imposing a sentence that was discordant with his findings of fact and which was thereby manifestly excessive."

1. The essential challenge raised by this ground is that, having regard to the objective seriousness of the offences and the applicant's subjective circumstances, a more lenient aggregate sentence should have been imposed.

1. An indicative sentence is not itself amenable to appeal but an "erroneous approach in the indication of the sentence that would have been imposed for an offence may well reveal error in the aggregate sentence reached": R v Brown [2012] NSWCCA 199 at [17] (Grove AJ; Macfarlan JA and McCallum J agreeing). However, that is not necessarily the case. In PD v R [2012] NSWCCA 242 at [44] Beech-Jones J (Basten JA and Hall J agreeing) noted that the materiality of any error in an indicative sentence to the overall aggregate sentence would need to be demonstrated before this Court would intervene.

Circumstances of the offences

1. The sentencing judge proceeded on the basis of a statement of agreed facts. These were summarised in his Honour's reasons. Given the issues raised on appeal it is appropriate to set out in some detail the nature and extent of the applicant's drug supply operation.

1. As will be seen, the applicant's offending involved the supply of significant quantities of drugs, over a period of 4 months, and included a wide range of illicit products.

Background

1. At the time of the offences the applicant was 22 years old and studying engineering at the University of Technology Sydney.

1. Around May 2010 the applicant met "NE". They later became involved in drug related activities by supplying each other with drugs they independently sourced.

1. The applicant first came to the attention of police on 20 September 2010 when they were called to the KFC at Dural where staff had become concerned about the applicant's behaviour. Police searched his vehicle and located a number of illegal drugs. He was subsequently charged with those offences that are set out in the Form 1 that attaches to Count 1. Tests did not detect any illegal drugs in the applicant's system at the time. It would appear that he was tested for "common drugs" and the drugs he was clearly affected by were not detected. Although he was charged with offences arising out of the location of these drugs, the Crown conceded before the sentencing judge that the applicant was not required to enter into a bail undertaking. Consequently, the later offences with which he was subsequently charged were not committed whilst he was subject to a form of conditional liberty.

Count 1: Supply more than indictable quantity of MDA between 24 September and 27 September 2010

1. Between these dates NE's phone was intercepted by police. Telephone conversations and text messages confirmed that the applicant supplied to NE 500 tablets, described as "green maccas". Similar tablets were subsequently supplied by NE to an undercover officer being MDA with a purity of 11%. Police calculated that the tablets supplied by the applicant to NE during this period weighed at least 100g. An indictable quantity is 1.25g.

Form 1 matters attached to Count 1

1. When the police searched the applicant's vehicle at KFC Dural on 20 September 2010 they located a plastic bag containing 100 brown tablets marked with a "dollar sign". These were later analysed and found to weigh 30.12g and contained the prohibited drug methylamphetamine.

1. In a paper bag police also located a single light blue tablet weighing 0.25g that contained methylamphetamine; a plastic resealable bag containing 2 blue tablets that weighed 0.5g and contained methylamphetamine; numerous empty plastic resealable bags; 1 plastic resealable bag containing 3 blue tablets with a "McDonalds" logo (and the light blue tablet detailed above) that weighed 1.02g and contained MDA; and a plastic resealable bag containing 13 light red tablets and 9 white tablets that contained MDMA. The total weight of tablets containing methylamphetamine was 30.87g. The traffickable quantity is 3.0g. The total weight of tablets containing MDMA was 5.63g. The traffickable quantity is 0.75g. Two charges of supply a prohibited drug were laid on this date in relation to the supply of MDMA and methylamphetamine.

1. Later, as a result of intercepted telephone material, the police became aware that the applicant had supplied a further 500 "green macca" tablets containing MDA and weighing at least 100g on that date. In consequence on 30 September a third charge was added - supply prohibited drug not less than an indictable quantity.

Count 2: Supply more than the large commercial quantity of MDA

1. On 3 December 2010, NE went to the applicant's home to purchase 1000 tablets. The applicant showed NE a number of vacuum-sealed packages containing tablets. At NE's request the applicant took a photograph of NE holding ten bags of tablets. The bags of tablets located on NE at the time of his arrest contained 1000 tablets each. Photometric comparison of the tablets depicted in the photograph taken on 3 December and the tablets seized from NE at the time of his arrest confirmed that the tablets were the same. The tablets seized from NE weighed approximately 0.29g each and contained MDA, and on this basis the 10,000 tablets which the applicant had available for supply to NE weighed at least 2.9kg. The large commercial quantity for MDA is 0.5kg.

Form 1 attached to Count 2: Supply MDA on 3 December 2010

1. On 20 December 2010, NE supplied an undercover officer with 200 green MDA tablets marked with an 'M' symbol. These 200 tablets were part of the "green maccas" tablets that the applicant had shown him on 3 December 2010. (The sentencing judge incorrectly referred (at ROS 3) to this supply having occurred on 30 September 2010.) NE supplied the balance of the tablets supplied to him by the applicant to other customers. Based on a weight of 0.29g per tablet, the 1000 tablets would weigh 0.290kg. The commercial quantity for MDA is 0.125kg.

Count 3: Supply more than commercial quantity of MDMA

1. On 14 December 2010, NE obtained 1100 yellow tablets with a "spade" symbol from the applicant. On 16 December 2010 NE supplied the undercover officer with 800 of these tablets. NE supplied the balance of those tablets to other people.

1. Those tablets had an average weight of 0.25g and contained MDMA with a purity of 12.5%. On this basis, the tablets the applicant supplied to NE weighed approximately 0.275kg. The commercial quantity is 0.125kg.

Count 4: Supply more than large commercial quantity MDA

1. On 29 December 2010, NE purchased a further 3000 green tablets of MDA marked with a McDonald's symbol and later sold 1500 of those to a female undercover officer. Police then searched NE's vehicle and located another 1000 green MDA tablets marked with an 'M' symbol in a cryovac sealed plastic bag and around 500 green MDA tablets marked with an 'M' symbol in a plastic resealable bag.

1. The tablets seized from NE weighed 0.882kg and contained MDA with a purity of 11%. The large commercial quantity is 0.5kg.

1. The Crown advised the sentencing judge that these tablets were part of those contained in the bags shown by the applicant to NE on 3 December 2010 and formed part of the tablets included in Count 2. His Honour noted that the Crown quite rightly conceded that the sentences imposed on the applicant for Counts 2 and 4 should be substantially concurrent. His Honour stated that this was a factor that he gave significance to when applying the principles of totality and proportionality to the overall appropriate sentence.

Form 1 matters attached to Count 4

1. On 29 December 2010, police searched a property at Galston where the applicant lived. In his bedroom police located tablets, liquids, and powders being the following:

(1)   49 tablets containing methylamphetamine with a purity of 2%, giving a weight of 11.53g. The traffickable quantity is 3.0g.

(2)   Four containers of liquid gammabutyrolactone weighing 109.96g. The traffickable quantity is 30g.

(3)   63 tablets, powder substance, and tablet fragments containing MDMA with a weight of 17.5g. The purity of 21 of those tablets was found to be 35%. The purity of 11 of the tablets was found to be 40%. The traffickable quantity is 0.75g.

(4)   2 tablets and a quantity of powder containing 1-benzylpiperazine, weighing 3.33g. The traffickable quantity is 3.0g.

(5)   6 tablets of 4-bromo-2, 5-dimethoxyphenethylamine with a purity of 2.5% and weight of 1.55g. The traffickable quantity is 0.3g.

1. During the course of the search, police also seized an Apple iPhone from the applicant. On 23 February 2011 the applicant reported that phone missing to police in order to make an insurance claim for the phone. This false statement is the basis of the sixth charge on the Form 1.

1. The agreed facts also showed that indicia of supply were found by police during the search on 29 December 2010: three digital scales, four SIM cards, and five mobile telephones.

The applicant's subjective case

1. The applicant gave evidence before the sentencing judge and was cross examined.

1. The applicant was aged 22 at the time of the offending and aged 25 at the time of sentence. His Honour found that the applicant was immature at the time of the offences and that this factor reduced his criminality (at ROS 16).

1. His Honour accepted that the applicant's guilty pleas contained an element of remorse. He found that the remorse, and the applicant's acknowledgement of responsibility, were genuine through their expression in evidence given by the applicant. As already mentioned, his Honour gave a discount of 18% for this plea (at ROS 15-16).

1. His Honour found that the applicant was unlikely to reoffend and had good prospects of rehabilitation. In this regard he took into account the evidence of Mr Olivier, a clinical psychologist, that the applicant had "made positive changes in his life with regard to work ethics, career plans and social life", and the report of Dr Furst, a psychiatrist, that the applicant "has a positive attitude towards future counselling and rehabilitation".

1. The applicant had no criminal record of any significance and his Honour took this into account as evidence of his good character, noting that the applicant came from a close and supportive family. His Honour accepted that the applicant's good character was not a factor relied on for the commission of the offences.

Reasons of the primary judge

1. His Honour took into account the maximum penalties and the specified standard non-parole periods (where applicable) as relevant guideposts reflecting the seriousness with which the legislature regards the particular drug supply offences to which the applicant had pleaded guilty. He specifically noted that the maximum penalty for counts 2 and 4 was life imprisonment and that the specified standard non-parole period was 15 years, and that for count 3 the standard non-parole period was 10 years.

1. His Honour found that the applicant's role did not exhibit criminality of a "higher order" associated with that of a principal in an extensive and organised network distributing large quantities of prohibited drugs.

1. His Honour accepted that the applicant's involvement in the offending was initially motivated by the need to obtain funding for his addiction to drugs. He found that the applicant's involvement later changed as a result of threats by a person who was identified only as "A", being the supplier of drugs to a person only identified as "B" who supplied drugs to the applicant. His Honour found that, following his introduction to "A", the applicant became the custodian of larger amounts of drugs for which he received a modest weekly amount of money and a small percentage on his sale of any of these drugs.

1. His Honour described the applicant as a facilitator and warehouse man acting under some considerable pressure. His Honour found that the applicant's storage and supply of the prohibited drugs did not disclose any particular sophistication in organising or planning.

1. His Honour found that the applicant fell within the category of a user/dealer and thus his level of criminality was lower than a trafficker motivated by greed.

1. His Honour accepted the evidence of Dr Furst, who diagnosed the applicant as suffering from a "substance abuse disorder", that the applicant's addiction made him particularly vulnerable to the intimidation of the unidentified supplier "A", and his ability to make rational decisions and moral judgments was significantly influenced by the effects of his escalating drug use and his fear that harm might come to himself or to his family. Nonetheless his Honour also noted the opinion of Dr Furst that:

"However, there was no suggestion that he was unaware of his actions or their wrongfulness."

1. His Honour found that the applicant's moral culpability was reduced by reason of his suffering from a mental disorder at the time of the offending. His Honour took this into account in determining that general deterrence, retribution, and denouncement should be given lesser weight in this case. His Honour accepted that there was a causal relationship between the applicant's mental illness and the offending and that this impacted upon his appreciation of the gravity of the offences. His Honour also considered that the successful treatment of this illness was a relevant factor for rehabilitation.

1. His Honour found that the financial gain obtained by the applicant was relatively small and was used to support his addictions.

1. His Honour concluded that the objective seriousness of the offending was at the lower level relative to each offence.

1. His Honour found special circumstances in accordance with s 44(2) of the Crimes (Sentencing Procedure) Act (although he should be taken to have intended to refer to s 44(2B) since he imposed an aggregate sentence).

1. In considering the issue of totality, his Honour accepted the Crown's concession that in relation to counts 2 and 4 the sentences should be substantially concurrent because the tablets relevant to count 4 were part of those supplied in count 2.

Ground 1: Manifest excess

1. A submission that a sentence is excessive (or inadequate) derives from the last kind of error identified in House v The King (1936) 55 CLR 499 at 505. It involves a conclusion that is arrived at after an examination of the sentence imposed and the process of reasoning which led to that result: Dinsdale v R [2000] HCA 54; 202 CLR 321 at [6]; Hili v R [2010] HCA 45; 242 CLR 520 at [75]-[76].

1. As explained in Sheen v R [2011] NSWCCA 259 at [162] per Johnson J (Hall and Price JJ agreeing):

"To establish a ground claiming manifest excess, it is necessary for the Appellant to demonstrate that the sentence under challenge is unreasonable or plainly unjust: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 370-371 [27]. Absent error, the Court of Criminal Appeal may not substitute its own opinion for that of the sentencing Judge merely because (if it be the case) the Court would have exercised its discretion in a manner different from the manner in which the sentencing Judge exercised his discretion: Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at 671-672 [15]. Nor is appellate intervention on the ground of manifest excess justified simply because (if it be the case) the result arrived at in the District Court is markedly different from other sentences that have been imposed in other cases. Intervention is warranted only where error is established in accordance with the principles in House v The King at 505: Hili v The Queen at 538 [58]."

Applicant's submissions

1. In the present case the applicant's argument that the sentence is manifestly excessive relied upon what was said to be a "constellation of factors" that mark out this case as somewhat unusual, and which called for a more lenient sentence having regard to the objective seriousness of the offences and the applicant's subjective circumstances.

1. The particular factors relied upon by the applicant included that the applicant's role was assessed as low in terms of objective criminality; his involvement was motivated by need not greed; his activities were unsophisticated; and that there was an element of duress in the applicant's offending. It was also contended that the applicant was not a suitable vehicle to reflect general and personal deterrence.

1. The applicant contended that this Court should conclude that intervention is justified for the reasons stated in Hill v R (Hill) [2012] NSWCCA 265 at [24], where Harrison J (Simpson and Adamson JJ agreeing) said on a severity appeal on the ground of manifest excess, that:

"...the sentence imposed upon the applicant is incongruously at odds with the strong subjective case."

Crown's submissions

1. The Crown emphasised that the applicant must demonstrate that the sentence was "unreasonable or plainly unjust": Dinsdale v R at [6]. That had to be established in a context where there is no single "correct" sentence, and where judges at first instance are to be allowed as much flexibility in sentencing as is consistent with the application of proper principle and consistency of approach. The fact that this Court might have exercised its discretion differently is not sufficient to enliven s 6(3) of the Criminal Appeal Act1912 (NSW) or a conclusion that some other, lesser, sentence is warranted in law: Markarian v The Queen at [26] - [28].

1. The Crown submitted that the sentencing judge had carefully identified all of the features which mitigated the applicant's culpability. This included that the applicant suffered from a mental disorder at the time of the commission of the offences, which the sentencing judge took into account in determining general deterrence. Nonetheless the Crown emphasised that his Honour had made clear in his remarks (at ROS 17) that he did not completely put to one side the issue of deterrence (both general and specific).

1. The Crown also submitted that there were many distinguishing features between Hill and the present case.

Consideration

1. There are a number of problems with the applicant's approach. First, it does not give sufficient weight to the regard the sentencing judge was entitled to, and did, give to the facts as found by him, as to which no complaint is made.

1. It is necessary to keep in mind the findings made concerning the applicant's role, the quantity of the drugs, and the number of occasions on which the applicant supplied prohibited drugs. Although the applicant was described by his Honour as a "user/dealer", such a label must not obscure the assessment of what the applicant did: R v Olbrich [1999] HCA 54; 199 CLR 270 at [19]. The offending conduct was committed over a period of four months, and involved a variety of acts on the part of the applicant which gave rise to serious offences.

1. Secondly, the assessment of penalty for the offences on counts 1, 2 and 4 did not involve a sole focus upon the applicant's activities in supplying the relevant quantity of methylamphetamine or MDA. In passing sentence on counts 1, 2 and 4, his Honour was asked to take into account (on three Form 1s) 10 other offences, nine of which involved drug supply offences.

1. If these offences had been prosecuted separately on indictment the maximum penalty for each of the drug supply offences on the Form 1 matters attached to counts 1 and 4 would have been imprisonment for 15 years; and the maximum penalty for the offence on the Form 1 attached to count 2 would have been 20 years, with a standard non-parole period of 10 years.

1. His Honour correctly recognised (at ROS 17) that it was necessary for the Court to take into account the Form 1 matters with a view to increasing the penalty that would otherwise be appropriate for counts 1, 2 and 4. As his Honour noted, the Court gives greater weight to personal deterrence, and the community's entitlement to extract retribution for serious offences, when there are other offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they might otherwise be given when sentencing for the primary offence: Attorney General's Application under s 37 Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146 at [42].

1. No complaint has been made, nor could it be made, in relation to the manner in which his Honour took into account the effect on penalty of the 10 Form 1 matters.

1. Thirdly, the applicant's complaint that the sentencing judge should have given more weight to his personal circumstances does not establish error in the exercise of the sentencing discretion, let alone that the sentence imposed is unreasonable or plainly unjust. His Honour clearly took into account the applicant's subjective case but was also mindful of the maximum penalties available, the applicable standard non-parole periods and the need for both general and specific deterrence aimed at individuals likeminded to the applicant, and deterrence personal to the applicant himself.

1. The statement of Harrison J in Hill at [24], concerning incongruity between the sentence imposed in that case and the offender's strong subjective circumstances, is not a statement of principle, nor does it assist the applicant in the present case.

1. His Honour's statement, which is set out at [50] above, was prefaced by the words "There is much to be said for the contention that ...". His Honour was simply expressing his general acceptance of a submission as to why the sentence which had been imposed in that case was manifestly excessive. He went on to find (at [27]), by reference to the specific facts of that case, that the sentencing judge had failed to take into account a material consideration, relevantly matters particularly affecting the offender, and had thereby erroneously given inadequate, and correspondingly improper, consideration to his subjective case.

1. Here, unlike in Hill, the sentencing judge expressly considered and took into account the applicant's subjective circumstances as part of the instinctive synthesis in arriving at the aggregate sentence imposed.

1. Fourthly, the applicant's complaint ignores the legislative guideposts which the sentencing judge properly took into account (at ROS 7). These reflect the seriousness which the Parliament regards drug supply offences. On counts 2 and 4 the applicant was facing a maximum penalty of life imprisonment with a standard non-parole period of 15 years. On count 3 the applicant was facing a maximum penalty of 20 years with a standard non-parole period of 10 years. Here also the quantities of drugs were not insignificant. For count 2 the quantity of MDA (2.9kg) was substantially in excess of the large commercial quantity of 0.5kg. For count 4 the quantity of MDA (882g) was approximately 75% in excess of the large commercial quantity. For count 3, the quantity of MDMA (275g) was more than twice the commercial quantity.

1. Fifthly, the applicant's complaint ignores an error in the approach adopted by the sentencing judge to the finding of special circumstances. His Honour concluded (at ROS 20) that 'strict parity' did not apply to the applicant and another offender (referred to as NE), because, he found, they were not strictly co-offenders and because the applicant's criminality was less. Despite this conclusion, which had a favourable impact on the applicant's sentence, he also found (at ROS 20) that the applicant could have had a justifiable sense of grievance if a similar finding in relation to special circumstances "was not extended to him". The result was a considerably lenient approach to a determination of the sentence to be imposed on the applicant.

1. A non-parole period is the minimum period of actual incarceration that an offender must spend in full-time custody, having regard to all the elements of punishment, including rehabilitation, the objective seriousness of the crime and the offender's subjective circumstances, which justice requires that the offender to serve in custody: Power v The Queen [1974] HCA 26; 131 CLR 623 at 628-629 and Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [57]. A finding of special circumstances under s 44 of the Crimes (Sentencing Procedure) Act is a finding of fact, on the evidence, which permits an adjustment downwards of the non-parole period which s 44 otherwise requires must not be less than three quarters of the term of the sentence imposed on an offender.

1. Such a finding may rest on a conclusion that there is a need to preserve proper parity with a co-offender, in order to avoid a situation of manifest unfairness. Such a use of the concept of special circumstances must, however, be justified by the special requirements of a particular sentencing exercise: Tatana v R [2006] NSWCCA 398 at [33]. Disparity will not, however, generally arise simply because the application of s 44 to particular offenders results in different sentences between co-offenders: R v Do [2005] NSWCCA 209 at [18]-[19]. See also Gill v R [2010] NSWCCA 236 at [60]-[62] (McColl JA; Hulme and Latham JJ agreeing). A finding of special circumstances cannot rest on a justifiable sense of grievance in a case where offenders are not found to be co-offenders to whom the principle of parity applies.

1. In the result, it is apparent that the aggregate sentence imposed on the applicant was not manifestly excessive. To the contrary, it was lenient, having regard to the gravity of the applicant's offences and the maximum penalties and standard non-parole periods which applied to those offences, notwithstanding his subjective circumstances.

1. As mentioned above, the applicant placed particular reliance upon the asserted similarities between the present case and Hill's case. It is appropriate therefore to say something further about that case.

Hill's case

1. In Hill the offender had pleaded guilty to one count of supplying not less than a large commercial quantity of a prohibited drug - MDA (1750.5g), contrary to s 25(2) of the DMT Act. The offender's role was found to be that of a "go-between" between the seller and the buyer of drugs. Given the generally unsophisticated nature of the offender's role, the limited financial gain, and the amount of the drug, being significant but of relatively low purity (mainly 3-4%), the sentencing judge assessed the offence at not far below the mid-range of objective seriousness for such offences.

1. The offender was sentenced to an overall term of imprisonment of 6 years, comprising a non-parole period of 4 years with a balance of term of 2 years. The sentencing judge had found special circumstances and given the offender a 25% discount for his early plea of guilty. In addition the offender was given a discount of 25% for past and future assistance to authorities. This meant that arithmetically the starting point of the sentence must have been 12 years. This Court quashed the original sentence in Hill and imposed a sentence of a non-parole period of 2 years with a balance of term of 1 year. In resentencing the offender, this Court (at [28]) applied the discounts for the early guilty plea and assistance to the authorities, and the statutory ratio, in the same way as the sentencing judge. This meant that arithmetically the starting point on resentence must have been 6 years.

1. As the Crown correctly contended, there are many distinguishing features between the present case and Hill. It is sufficient to mention a few of them. These include:

(1)   the offender in Hill was a given a 25% discount for his pleas, together with a 25% discount for past and present assistance, whereas here the applicant was given an 18% discount for his guilty pleas and the applicant gave no such assistance. To the contrary, the applicant refused, when giving evidence on sentencing, to identify his supplier or his supplier's supplier (Tcpt 28, lines 29-50);

(2)   in Hill the drug supply conduct related to four different occasions over a brief period of approximately one month. This conduct was the subject of one combined charge of supply a prohibited drug not less than the large commercial quantity - MDA (1750.75g), contrary to s 25(2) of the DMT Act. Here, the applicant's offending related to 14 different occasions over a period of four months involving three counts contrary to s 25(2) of the DMT Act, one count contrary to s 25(1) of the DMT Act, and 10 further matters (on the Form 1s), nine of which involved supply of prohibited drugs contrary to s 25(1) of the DMT Act;

(3)   here the large commercial quantity of drugs involved on count 2 (2900g of MDA) significantly exceeded the large commercial quantity in Hill (1750.73g of MDA);

(4)   the subjective features of the offender in Hill are also distinguishable from the present applicant. In Hill the offender had no criminal record of any type and was in a long-term relationship, he had an established work history, he had not used any drugs since his arrest, his prospects of rehabilitation were found to be "very good", and there was a finding that he only became involved in the drug supply activities following threats made by others. By contrast, the applicant commenced his drug dealing before any feeling of intimidation, his prospects of rehabilitation were assessed as "good", and his personal use of drugs had continued to some extent after the subject offences. He had also been subsequently arrested on a drugs possession charge.

1. Whilst acknowledging that sentencing is not directed towards achieving numerical equivalence, counsel for the applicant sought to draw support from the resentencing by this Court of the offender in Hill for the conclusion that the applicant's aggregate sentence was manifestly excessive. In my view little assistance is to be gained from Hill, having regard to the distinguishing features referred to above.

Reliance on comparative cases

1. The applicant also provided a table of comparative cases (between 2006 and 2013) involving the supply of not less than the large commercial quantity of prohibited drugs, which it was said may provide guidance to this Court. None of these cases were otherwise elaborated upon in the applicant's written submissions. It was not contended that this table was either comprehensive or complete.

1. In oral submissions counsel for the applicant indicated that he did not propose to take the Court to any of the so-called comparative cases. Thus the Court was left in the position that no submissions were made with respect to any of these cases. The limitations of considering so-called comparative cases have been frequently remarked upon by this Court.

1. Most recently in MLP v R [2014] NSWCCA 183 at [41]-[44], Bellew J (Macfarlan JA and Adamson J agreeing) commented upon the difficulties which are prone to arise from comparative exercises based on a limited number of cases presented to the Court as demonstrating some established sentencing range for particular offences. His Honour's observations bear repeating:

"41 Firstly, consistency in sentencing is not demonstrated by, and does not require, numerical equivalence. What is sought is consistency in the application of the relevant legal principles: Hili v R at [48]-[49].

42 Secondly, in seeking consistency, other cases may establish a range of sentences which have been imposed. But the sentences imposed in other cases do not mark the outer bounds of the permissible sentencing discretion. They stand as a yardstick against which to examine a proposed sentence. What is important are the unifying principles which such sentences reveal and reflect: Barbaro v R; Zirilli v R [2014] HCA 2; 305 ALR 323 at [41].

43 Thirdly, the presentation of sentences passed in the form of numerical tables and graphs is of limited use: Hili (supra) at [48]. This is because reference to the lengths of sentences passed says nothing about why the sentences were fixed as they were.

44 Consistent with such statements of principle, this Court has emphasised the need to adopt a careful approach when asked to utilise statistics: R v Nikolovska [2010] NSWCCA 153 at [117] per Kirby J, Beazley JA (as her Honour then was) and Johnson J agreeing. A similarly careful approach is required when the Court is asked to compare a sentence imposed in one case with a sentence imposed in another: RLS v R [2012] NSWCCA 236 at [132] per Bellew J, McClellan CJ at CL and Johnson J agreeing. The need to take care in each instance arises, in part, from the fundamental fact that there will inevitably be differences, both in terms of the objective circumstances of offending and the subjective circumstances of the offender, between one case and another."

1. I have considered the cases to which the Court has been referred by the applicant in which sentences were imposed for drug supply offences involving the large commercial quantity. The unstated premise of the applicant's reference to these cases seems to be that they demonstrate the harshness of the indicative sentence for count 2, and thus reveal error in the aggregate sentence reached.

1. In my view, these cases do not assist the applicant. I do not propose to undertake an analysis of each of these cases. It may be observed that the sentences imposed in a number of the cases referred to in the applicant's table exceeded the sentence imposed on the applicant whilst in others the sentence was lower. The circumstances of the offending, and the subjective circumstances of each offender, revealed inevitable differences. The applicant's reliance on these cases wrongly assumes that the wide variety of facts and degree in which the offending can occur readily yields a range.

1. It is sufficient to refer to one of these cases to demonstrate the limited assistance to be derived from these selected cases. Naim v R (Naim) [2006] NSWCCA 289 involved two drug offences, one of which concerned the supply of the large commercial quantity of prohibited drugs - methylamphetamine (1.24kg). The objective seriousness of this offending was found to be at the lower end of the range for such an offence. It is not clear from the reasons in this Court whether there was a finding by the sentencing judge as to the objective seriousness of the second offence of possess a prohibited drug, contrary to s 25(1) of the DMT Act. The offender was sentenced to a non-parole period of 6 years with a balance of term of 3 years. An appeal against sentence was dismissed.

1. Whilst the finding as to the objective seriousness of the offending in Naim is similar to the present case, the extent of the offending in the present case was at a greater level in terms of quantities of drugs, the number of offences, and the relatively longer period over which the offences were committed. On the other hand, the subjective circumstances of the offender in Naim were not as compelling as that of the applicant. The offender there had prior convictions including a drug conviction and was on a s 9 bond at the time of commission of the relevant offences. Nonetheless the offender in Naim received a longer non-parole period of 6 years compared to the applicant's non-parole period of 5 years. On the whole, this case does not assist the applicant.

Conclusion and orders

1. I am not persuaded that the aggregate sentence imposed by his Honour falls outside the range of proper exercise of sentencing discretion in the circumstances of this case.

1. In my view, leave to appeal should be granted but the appeal should be dismissed. I propose the following orders:

(1)   Grant leave to appeal.

(2)   Appeal dismissed.

1. SCHMIDT J: I agree with Gleeson JA.

1. BELLEW J: I agree with Gleeson JA.

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Decision last updated: 14 November 2014