Chartres-Abbott v R

Case •

[2021] NSWCCA 239

•

06 October 2021

No judgment structure available for this case.

Court of Criminal Appeal


Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: Chartres-Abbott v R [2021] NSWCCA 239
Hearing dates: 20 August 2021
Date of orders: 6 October 2021
Decision date: 06 October 2021
Before: Brereton JA at [1];
Campbell J at [47];
Hamill J at [48]
Decision:

(1) Grant leave to the applicant to appeal against the aggregate sentence imposed on 28 August 2020 by the District Court;

(2) Allow the appeal; and

(3) Quash the aggregate sentence imposed in the District Court on 28 August 2020, and in lieu thereof:

(a) Impose an aggregate sentence of ten years’ imprisonment to commence from 25 May 2019 and expire on 24 May 2029;

(b) Pursuant to s 44(2A) of the Crimes (Sentencing Procedure) Act 1999 (NSW), set a non-parole period of six years, and specify that the earliest date the applicant will be eligible to be released on parole is 25 May 2025; and

(c) Pursuant to s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW), record that an aggregate sentence is imposed and indicate to the applicant that the sentences that would have been imposed for each offence under separate sentences instead of an aggregate sentence are as follows:

(i) Sequence 1 (Supply 888.79 grams of methylamphetamine): a non-parole period of four years and six months and additional term of three years, for a total of seven years and six months;

(ii) Sequence 2 (Supply 368.8 grams of heroin): a non-parole period of two years and three months and additional term of one year and six months, for a total of three years and nine months;

(iii) Sequence 6 (Supply 372.63 grams of methylamphetamine): a non-parole period of two years and nine months and additional term of one year and nine months, for a total of four years and six months;

(iv) Sequence 3 (Possess shortened Sportco .22 rifle with magazine without authority): a term of imprisonment of three years and four months; and

(v) Sequence 19 (Possess shortened Sterling .22 firearm without authority): a term of imprisonment of two years and seven months.

Catchwords:

CRIME – Appeals – Appeal against sentence – Manifest excess – Drug offences – Supply prohibited drug – One count of large commercial quantity of methylamphetamine and two counts of commercial quantities of heroin and methylamphetamine – Firearms offences – Two counts of possess shortened firearm – Aggregate sentence of fourteen years, eight years six months non-parole – Use of discounts to indicative sentences to determine aggregate sentence but for discounts – Use of comparable cases indicating substantially shorter sentences in like cases and in cases involving considerably greater quantities of methylamphetamine – Manifest excess established

CRIME – Appeals – Appeal against sentence – Re-sentence – Special circumstances and reduced moral culpability – More substantial degree of concurrency – Aggregate sentence of ten years, six years non-parole, imposed

Legislation Cited:

Crimes Act 1900 (NSW), s 193C(2)

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44(2A), 53A(2)(b)

Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Drug Misuse and Trafficking Act 1985 (NSW), ss 10(1), 25(2)

Firearms Act 1996 (NSW), ss 51D(2), 62(1)(b), 65(3)

Cases Cited:

Aryal v R [2021] NSWCCA 2

Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54

Elsaj v R [2017] NSWCCA 124

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

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

Huang v R [2019] NSWCCA 144

Hughes v R [2018] NSWCCA 2

Ibbotson (a pseudonym) v R [2020] NSWCCA 92

Jackson v R [2021] NSWCCA 15

JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297

Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

McLean v R [2020] NSWCCA 344

Mills v R [2017] NSWCCA 87

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

PG v R (2017) 268 A Crim R 61; [2017] NSWCCA 179

Pratt v R [2021] NSWCCA 76

R v Li [2014] NSWCCA 327

R v Mahmud [2010] NSWCCA 219

Roberts (a pseudonym) v R [2019] NSWCCA 102

Tiew v R [2020] NSWCCA 234

Toole v R (2014) 247 A Crim R 272; [2014] NSWCCA 318

Vigo v R [2009] NSWCCA 98

Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64

Wright v R [2019] NSWCCA 134

Category:Principal judgment
Parties: Mark Chartres-Abbott (Applicant)
Crown (Respondent)
Representation:

Counsel:
Ms G E Lewer (Applicant)
Ms C Dodds (Respondent)

Solicitors:
Legal Aid NSW (Applicant)
Director of Public Prosecutions (Respondent)
File Number(s): 2019/163701
 Decision under appeal 
Court or tribunal:
District Court at Gosford
Jurisdiction:
Criminal
Date of Decision:
28 August 2020
Before:
Bright DCJ
File Number(s):
2019/163701

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 28 August 2020, the applicant was sentenced in the District Court to an aggregate term of imprisonment of fourteen years, with a non-parole period of eight years and six months, for three drug trafficking offences and two firearms offences, to which he had pleaded guilty in the Local Court. Wholly accumulated, the indicative separate sentences for the five offences totalled twenty-one years and eight months. The applicant sought leave to appeal against the aggregate sentence, on the sole ground of manifest excess, having particular regard to the objective seriousness of his offending.

Held (per Brereton JA; Campbell J and Hamill J agreeing), granting leave to appeal, allowing the appeal, quashing the aggregate sentence imposed in the District Court, and in lieu thereof imposing an aggregate sentence of ten years’ imprisonment, with a non-parole period of six years: [46] (Brereton JA), [47] (Campbell J), [48] (Hamill J).

As to manifest excess:

1. To establish that a sentence is manifestly excessive, an appellant must show that the sentence was “unreasonable or plainly unjust”, which may be inferred if the sentence was “so far outside the range of sentences available” that there must have been error: [18]-[21].

Hughes v R [2018] NSWCCA 2; Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221; Mills v R [2017] NSWCCA 87, considered.

2. Although discounts for a guilty plea are applied to the indicative sentences, rather than the aggregate sentence, it is reasonable, at least for the purpose of comparison with other sentences, to proceed on the basis that but for the utilitarian discounts for the plea of guilty, the aggregate sentence would have been lengthier in proportion to the discount. This is so particularly when, as presently, the same discount (of 25% in this case) was applied to each indicative sentence. It is reasonable to proceed on the basis that had the discounts not been applied, the applicant’s aggregate sentence would have been eighteen years and eight months: [22]-[23].

3. While there are limitations to the use of comparable cases, they are illustrative, though not definitive, of “the range of sentences available”, and the process of instinctive synthesis necessarily involves an awareness of sentences imposed in like cases; if not, it would be entirely idiosyncratic: [31].

4.  JIRS statistics and comparable cases involving offences under Drug Misuse and Trafficking Act 1985 (NSW), s 25(2), either alone or, more relevantly, in association with firearms offences, indicate that like cases have attracted substantially shorter sentences (starting points of twelve to fourteen years), as have cases involving considerably greater quantities of methylamphetamine (starting points of twelve to sixteen years). The sentence imposed upon the applicant was manifestly excessive: [25]-[30], [32]-[40].

McLean v R [2020] NSWCCA 344; Tiew v R [2020] NSWCCA 234; Huang v R [2019] NSWCCA 144; Roberts (a pseudonym) v R [2019] NSWCCA 102; Li v R [2014] NSWCCA 327; Toole v R (2014) 247 A Crim R 272; [2014] NSWCCA 318; R v Mahmud [2010] NSWCCA 219; Vigo v R [2009] NSWCCA 98, considered.

As to re-sentencing:

5. The primary judge’s assessment of the objective gravity of the individual offences, and the finding of special circumstances in respect of the applicant’s subjective case, were not impugned and should be adopted: [4]-[17], [41]-[43].

6. It was not suggested that the indicative sentences were erroneous, and upon independent consideration they should be adopted: [44].

7. The offending was substantially concurrent and part of the same enterprise, and greater concurrency is warranted than was allowed by the primary judge. An aggregate sentence of ten years, with a non-parole period of six years, should be imposed: [45].

Judgment

  1. BRERETON JA: On 28 August 2020, the applicant Mark Chartres-Abbott (also known as Norman Frances Smith) was sentenced by her Honour Judge Bright in the District Court at Gosford, for five offences to which he had, on 17 January 2020, pleaded guilty in the Local Court, to an aggregate term of imprisonment of fourteen years with a non-parole period of eight years and six months, commencing on 25 May 2019. The head sentence expires on 24 May 2033, and the non-parole period on 24 November 2027. Two co-offenders were sentenced at the same time.

  2. The offences, their applicable maximum penalties and standard non-parole periods (“SNPP”), and the notional separate sentences for each of them indicated by her Honour, were as follows:

  1. Sequence 1: Supply large commercial quantity of a prohibited drug (888.79 grams of methylamphetamine) (Drug Misuse and Trafficking Act 1985 (NSW) (“DMTA”), s 25(2): maximum life, SNPP fifteen years) – indicative sentence seven years and six months with NPP of four years and six months. On this offence, five other offences were taken into account on a Form 1, four of possess prohibited drug (DMTA, s 10(1)), and one of deal with proceeds of crime ($94,285 cash) (Crimes Act 1900 (NSW), s 193C(2));

  2. Sequence 2: Supply commercial quantity of a prohibited drug (368.8 grams of heroin) (DMTA, s 25(2): maximum twenty years, SNPP ten years) – indicative sentence three years and nine months with NPP of two years and three months;

  3. Sequence 6: Supply commercial quantity of prohibited drug (372.63 grams of methylamphetamine) (DMTA, s 25(2): maximum twenty years, SNPP ten years) – indicative sentence four years and six months with NPP of two years and nine months;

  4. Sequence 3: Possess shortened firearm (not pistol) without authority (Sportco .22 rifle with magazine) (Firearms Act 1996 (NSW) (“Firearms Act”), s 62(1)(b): maximum fourteen years, no SNPP) – indicative sentence three years and four months. On this offence, two offences were taken into account on a Form 1, one of possess shortened firearm (not pistol) (Firearms Act, s 62(1)(b)), and one of possess ammunition without authority (Firearms Act, s 65(3)); and

  5. Sequence 19: Possess shortened firearm (not pistol) without authority (Sterling .22 firearm) (Firearms Act, s 62(1)(b): maximum fourteen years, no SNPP) – indicative sentence two years and seven months.

  1. Wholly accumulated, the indicative sentences amounted to twenty-one years and eight months. The applicant seeks leave, pursuant to (NSW) Criminal Appeal Act 1912 (NSW), s 5(1)(c), to appeal from the aggregate sentence, on the sole ground that the sentence was manifestly excessive, having particular regard to the objective seriousness of the offending.

The offences

  1. The applicant was sentenced on agreed facts which were summarised in the sentencing judge’s remarks on sentence,[1] which form the basis for the following account.

    1. R v Chartres-Abbott [2020] NSWDC 703 at [2]-[4], [16]-[27] (Bright DCJ) (“Remarks on sentence”).

  2. In November 2018, a Strike Force established by the Gosford Drug Unit, utilising an undercover operative, identified that the applicant was the up-line supplier of prohibited drugs to the co-offender Dean Phillips. The applicant was then living with his former partner, the other co-offender Deborah Mulholland, but her role in the enterprise was much less significant.

  3. On four separate occasions between 17 April 2019 and 24 May 2019, the applicant supplied to the under-cover operative, or his co-offender Phillips who in turn immediately supplied it to the under-cover operative, methylamphetamine in quantities which totalled 372.63 grams, for $54,800 (sequence 6). On 24 May 2019, a search warrant was executed at the applicant’s home and police found methylamphetamine totalling 888.79 grams (sequence 1), $94,285 cash (Form 1 offence), 23.8 grams of Alprazolam (Form 1 offence), 1.4 grams of MDMA (Form 1 offence), 10ml of an anabolic steroid Sustanon (Form 1 offence), and 1.29 grams of cocaine (Form 1 offence). Police also found 368.8 grams of heroin (sequence 2). Concealed in a hole in the garden inside PVC tubing, police found three firearms, namely a shortened Sportco .22 rifle (sequence 3), a shortened Harrington and Richardson 12 gauge firearm in two pieces, separated (Form 1 offence), twelve rounds of .22 ammunition suitable for use in the Sportco .22 rifle, nine of them in a magazine (Form 1 offence), and a Sterling .22 firearm wrapped in a blanket (sequence 19). The Sportco and the Sterling were found to be in working order.

  4. The sentencing judge found that the sequence 1 offence was at the lower end of the mid-range of objective seriousness,[2] having regard to the quantity of 888.79 grams – where the threshold was 500 grams, while recognising that the quantity that falls within the offence is unlimited, [3] and noting that 699 grams had a very high purity of 79 percent and was of significant financial value based on the sales to the under-cover operative. [4] Her Honour found that the role of the applicant was that of an up-line supplier for the co-offender Phillips, but that it was not possible to determine with precision where in the hierarchy the applicant resided; however, notwithstanding the limited sophistication of the operation, the applicant’s involvement was found to be significant. [5] Her Honour also observed that the applicant was a long-time user of methylamphetamine and heroin, which distinguished him from a supplier solely for commercial gain. [6]

    2. Remarks on sentence at [47].

    3. Remarks on sentence at [46(1)].

    4. Remarks on sentence at [46(2)].

    5. Remarks on sentence at [46(3)].

    6. Remarks on sentence at [46(4)].

  5. Her Honour found that the sequence 2 offence was below the mid-range of objective seriousness, having regard to the quantity (368.8 grams) – where the threshold for a commercial quantity was 250 grams, and 76.5 grams had a very high purity of 79 percent. [7]

    7. Remarks on sentence at [48]-[49].

  6. The sequence 6 offence was found to be in the middle of the range of objective seriousness, having regard to the quantity of methylamphetamine (372.63 grams) – where the threshold for a commercial quantity was 250 grams, and there were four instances of supply for a total of $54,800, each involving high purities of between 77.5 and 79 percent. [8]

    8. Remarks on sentence at [49]-[50].

  7. Her Honour found that the two firearms offences (sequences 3 and 19) were in the middle of the range of objective seriousness, on the basis that each weapon was in working order and proximate to ammunition, and because although her Honour was not satisfied that the applicant was intending to use them in relation to his drug business, the circumstances of their possession increased the likelihood that they could come into the hands of persons for criminal purposes. [9]

    9. Remarks on sentence at [52]-[53].

Subjective matters

  1. The applicant did not give evidence in the sentencing proceedings, but a letter from him to the Court was tendered. Information as to his background was contained in a neuropsychological report.

  2. The applicant was born on 24 March 1955 and was aged 64 years at the time of the offences. He had a traumatic childhood, with his parents separating when he was young, and he was exposed to repeated verbal and physical abuse at the hands of his stepfather. He joined the Navy after leaving school in year 11, and upon being discharged obtained a builder’s licence and managed two roofing companies before first being imprisoned, which brought that line of work to an end. [10]

    10. Remarks on sentence at [54], [59]-[60].

  3. He began using cannabis and heroin regularly at the age of 19 or 20. He continued to use cannabis until he was 40, and heroin until the date of his arrest in 2019, despite having commenced methadone treatment in 1997 or 1998. About five years before the present offences, he commenced using amphetamines. He told the psychologist that he injected the drug, and used it “as much and as often as possible”. [11]

    11. Remarks on sentence at [64].

  4. In 2012 he suffered a very severe traumatic brain injury, mainly to the left hemisphere, which the neuropsychologist considered to have occasioned long-term deficits, in particular with regards to processing speed, learning, and memory. The neuropsychologist opined that the injury affected his ability to make rational decisions, especially in combination with his long-term substance abuse, and made him more susceptible than the average person to the influence of others. The sentencing judge accepted that his injury would render his imprisonment more onerous. [12]

    12. Remarks on sentence at [65]-[69].

  5. The applicant had a criminal history, dating back to his childhood, which her Honour considered disentitled him to leniency. It was largely petty crime, including possessing cannabis, but in 1982 he was sentenced to imprisonment for a total of six years for two robberies, one of them armed, and shortly after being released to parole in 1984 he was sentenced to imprisonment for eight years for another armed robbery. However, since his release to parole in 1990, he has had only minor offences: possess heroin (1997), possess prohibited drug (1998), and, in 2008, enter inclosed land and common assault, both in the context of a domestic violence order. Since then, there had been nothing until the present offences. [13]

    13. Remarks on sentence at [54].

  6. At the time of the present offences, the applicant was living with his co-offender Ms Mulholland, with whom he had previously been in a relationship; they had two children, who were placed in foster care from a young age, but whom the applicant still saw on a supervised basis several times a year prior to his arrest. [14]

    14. Remarks on sentence at [62]-[63].

  7. The sentencing judge gave limited weight to the expression of remorse in the applicant’s letter, [15] and was guarded as to his prospects of rehabilitation, given his lengthy criminal history and addiction to drugs,[16] but found that he was nonetheless unlikely to reoffend, given his age upon release. [17] Her Honour found that partial accumulation was warranted in respect of each of the offences, to reflect the total criminality in circumstances where there was separate criminality in relation to each of the drug offences and the firearms offences,[18] and found “special circumstances” based on the applicant’s age, the impact of the pandemic, his traumatic brain injury rendering imprisonment more onerous, the accumulation of the sentences, and his drug addiction requiring a lengthy period under supervision upon release from custody,[19] with the result that the non-parole period represented 60.71 percent of the head sentence.

    15. Remarks on sentence at [71]-[74].

    16. Remarks on sentence at [73].

    17. Remarks on sentence at [73].

    18. Remarks on sentence at [157].

    19. Remarks on sentence at [76].

Manifest excess

  1. In Hughes v R,[20] the Court summarised the principles applicable to a complaint that a sentence is manifestly excessive, derived from authority,[21] as follows:

“(1) appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases;

(2) intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error;

(3) it is not to the point that this Court might have exercised the sentencing discretion differently;

(4) there is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle; and

(5) it is for the applicant to establish that the sentence was unreasonable or plainly unjust.”

20. [2018] NSWCCA 2 at [86] (Payne JA, RA Hulme and Garling JJ).

21. Hili v The Queen (2010) 242 CLR 520 at 538-539 [59] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); [2010] HCA 45; Markarian v The Queen (2005) 228 CLR 357 at 370-371 [25], [27] (Gleeson CJ, Gummow, Hayne and Callinan JJ); [2005] HCA 25; Wong v The Queen (2001) 207 CLR 584 at 605-606 [58] (Gaudron, Gummow and Hayne JJ); [2001] HCA 64; Dinsdale v The Queen (2000) 202 CLR 321 at 325-326 [6] (Gleeson CJ and Hayne J); [2000] HCA 54 (“Dinsdale”); Lowndes v The Queen (1999) 195 CLR 665 at 671-672 [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ); [1999] HCA 29; House v The King (1936) 55 CLR 499 at 505 (Dixon, Evatt and McTiernan JJ); [1936] HCA 40.

  1. A finding of manifest excess reflects concealed error, in that the error may not be apparent from analysis of the remarks on sentence, but is inferred from the discrepancy of the sentence, as R A Hulme J observed in Obeid v R:[22]

“Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error.”

22. (2017) 96 NSWLR 155 at 241 [443] (R A Hulme J; Bathurst CJ, Leeming JA, Hamill J and N Adams J agreeing); [2017] NSWCCA 221 (“Obeid”).

  1. To similar effect, in Mills v R, RA Hulme J said:[23]

“A complaint of manifest excess is a conclusion; it does not admit of lengthy exposition; and it is derived from an inference that there was ‘a failure properly to exercise the discretion which the law reposes in the court’ below”

23. [2017] NSWCCA 87 at [63] (R A Hulme J; Leeming JA and Beech-Jones J agreeing); see also Dinsdale at 325-6 [6] (Gleeson CJ and Hayne J).

  1. Ultimately, an appellant must establish that the sentence is “unreasonable or plainly unjust”. [24]

    24. Dinsdale at 325 [6] (Gleeson CJ and Hayne J).

  2. In the context of an aggregate sentence, the indicative separate sentences are not themselves amenable to appeal. However, error in an indicative sentence may assist a finding of error in the aggregate sentence, though it does not necessarily follow. In an appeal from an aggregate sentence on the ground of manifest excess, a principle focus is whether the aggregate sentence appropriately reflects the totality of the criminality involved. [25]

    25. Aryal v R [2021] NSWCCA 2 at [49]-[50] (R A Hulme J; Johnson J and Wilson J agreeing); JM v R (2014) 246 A Crim R 528 at 545 [85] (R A Hulme J; Hoeben CJ at CL and Adamson J agreeing); [2014] NSWCCA 297.

  3. The applicant received a discount of 25 percent for his early pleas of guilty. Based on that, his counsel submitted that the “starting point” for the head sentence was eighteen years and eight months. The Crown submitted that this was misconceived, as discounts for a guilty plea are applied to the indicative sentences and not to the aggregate sentence. While it is correct that the prevailing view is that discounts for a guilty plea are to be applied to the indicative separate sentences rather than to the aggregate sentence,[26] it does not follow that for the purpose of comparison with other cases the approach advanced on behalf of the applicant is impermissible. Plainly, in comparing aggregate sentences in one case with those in others, regard must be had to whether or not the sentence followed a plea of guilty, and the discount that was allowed. While I acknowledge that “the determination of an aggregate sentence is not merely the sum of its parts”, [27] particularly in a case such as the present, where the same 25 percent discount was applicable to each offence, there is little difficulty in reasoning that it was reflected commensurately in the aggregate sentence. That is, it follows as a matter of logic that, had the applicant not received a discount of 25 percent on each of the indicative sentences, the aggregate sentence would have been lengthier by a corresponding proportion. At least for the purpose of comparison with other sentences, it is reasonable to proceed on the basis that but for his plea of guilty the aggregate sentence would have been in the order of eighteen years and eight months.

    26. Jackson v R [2021] NSWCCA 15 at [111] (Price J; Hoeben CJ at CL and Fagan J agreeing); Ibbotson (a pseudonym) v R [2020] NSWCCA 92 at [67] (Rothman J; Leeming JA agreeing), [138] (N Adams J) (“Ibbotson”); PG v R (2017) 268 A Crim R 61 at 78-79 [74] (Button and N Adams JJ; Basten JA contra); [2017] NSWCCA 179; Elsaj v R [2017] NSWCCA 124 at [56] (Hoeben CJ at CL; Bathurst CJ and McCallum J agreeing).

    27. Ibbotson at [12] (Leeming JA).

  4. The applicant did not contend that there was patent error in the remarks on sentence. Nor did the applicant contend that the sentencing judge erred in respect of any of the indicative individual sentences. Neither was it contended that her Honour’s evaluation of the objective gravity of the individual sentences was erroneous. However, in contending that the sentence was nonetheless manifestly excessive, the applicant highlighted as matters relevant to objective gravity that:

  1. in respect of the drug offences, the total amount involved was about 1.6 kilograms, and in each case the amount was not greatly in excess of the relevant threshold;

  2. the applicant’s role was that of a “middle man”, there clearly being others higher in the hierarchy, and one (the street dealer Phillips) below him; and

  3. in respect of the firearms offences, while the weapons were operational and associated with ammunition, they were single-shot, not semi-automatic, weapons.

  1. The applicant referred to the JIRS statistics for offences against DMTA, s 25(2), which show that sentences have ranged from two years (1.4 percent of cases) to sixteen years (2.1 percent of cases), with the overwhelming majority in the range of six years to fourteen years. There does not appear to have been any sentence of or above eighteen years.

  2. The applicant also referred to a number of comparable cases, in two categories.

  3. The first category comprised sentences for offences of supply large commercial quantity of methylamphetamine in association with firearms offences. In Huang v R (“Huang”),[28] the offender pleaded guilty to supplying 5.4 kilograms of methylamphetamine and possessing a prohibited firearm; there were also some Form 1 offences. He received an aggregate sentence, on appeal, of ten years’ and six months’ imprisonment, with a non-parole period of seven years, ten months, and fourteen days, after a discount of 25 percent for his plea of guilty, implying a starting point of fourteen years. The quantity of drugs supplied was very considerably greater than the total involved in the present case. In R v Mahmud (“Mahmud”),[29] the offender pleaded guilty to supplying 1.78 kilograms of methylamphetamine and possessing three or more firearms; again, there were Form 1 offences. Following a Crown appeal, he received a total effective sentence of ten years’ imprisonment, with a non-parole period of six years. Allowing for a discount of 17.5 percent for his plea of guilty the starting point was approximately twelve years and one month. In Roberts (a pseudonym) v R (“Roberts”), [30] the offender pleaded guilty to supplying one kilogram of methylamphetamine, supplying one kilogram of cocaine, and manufacturing the large commercial amount of methylamphetamine, and there were firearms offences on a Form 1. He was sentenced on appeal to an aggregate term of ten years’ imprisonment with a non-parole period of six years and six months. Allowing for a discount of 25 percent on the methylamphetamine supply and 40 percent on the cocaine supply, the starting point was in the order of fourteen years and three months.

    28. [2019] NSWCCA 144.

    29. [2010] NSWCCA 219.

    30. [2019] NSWCCA 102.

  4. The second category of cases comprised those in which offenders had been sentenced for large commercial supplies, involving much larger quantities than involved in the present case. In Tiew v R (“Tiew”),[31] the offender, having pleaded guilty to supplying 67.4 kilograms of methylamphetamine, was sentenced on appeal to imprisonment for fourteen years and six months, with a non-parole period of ten years and ten months; allowing for a discount of 10 percent for the plea of guilty, the implied starting point was sixteen years and one month. In Vigo v R (“Vigo”), [32] after conviction at trial for supplying more than 40 kilograms of methylamphetamine, the offender received a sentence of sixteen years’ imprisonment with a non-parole period of twelve years. In Li v R (“Li”),[33] on a Crown appeal, for supplying 25 kilograms of methylamphetamine, a sentence of ten years’ imprisonment and non-parole period of seven years was imposed; allowing for the 15 percent discount for the plea of guilty, the implicit starting point was eleven years and nine months approximately. In Toole v R,[34] two offenders were sentenced, one for supplying in excess of 100 kilograms of methylamphetamine and the other for 18 kilograms. The first was imprisoned for fourteen years, with a non-parole period of nine years, and the second for ten years, with a non-parole period of seven years. Allowing for the 25 percent utilitarian discount, the implied starting points were eighteen years and eight months and thirteen years and four months respectively. In McLean v R,[35] for supplying 18.85 kilograms of methylamphetamine with an estimated value between $1.414 million and $2 million, the sentence was twelve years and seven months’ imprisonment, with a non-parole period of eight years and seven months. Allowing for the utilitarian discount of 10 percent, the starting point was about fourteen years.

    31. [2020] NSWCCA 234.

    32. [2009] NSWCCA 98.

    33. [2014] NSWCCA 327.

    34. (2014) 247 A Crim R 272; [2014] NSWCCA 318.

    35. [2020] NSWCCA 344.

  5. As the applicant submitted, the first category of cases tends to show that substantially shorter sentences have been imposed in other like cases: the implied starting points range from twelve to fourteen years, and the sentences imposed after discount for a plea of guilty are in the order of ten years.

  6. As the applicant also submitted, the second category of cases tends to show that in cases of commercial supplies of methylamphetamine many times larger than the amount supplied by the applicant, the sentences imposed have been less than those imposed on the applicant, with the pre-discount starting points ranging from about twelve to sixteen years.

  7. The Crown understandably referred to cases that hold that reference to comparable cases requires caution. [36] I entirely agree that there are limitations to the use of comparative cases, that the Court must weigh the similarities and dissimilarities of the objective and subjective circumstances, and that even then a close alignment is not determinative of manifest excess. That said, in a field in which it is not uncommon to encounter the terminology that “the sentence imposed is so far outside the range of sentences available”, [37] sentences imposed in like cases are illustrative of “the range … available”, though not definitive of it. The process of “instinctive synthesis” necessarily involves an instinct informed by awareness of sentences imposed in like cases; otherwise it would be entirely idiosyncratic.

    36. Pratt v R [2021] NSWCCA 76 at [60]-[62] (Hoeben CJ at CL; Harrison J and Bellew J agreeing); Wright v R [2019] NSWCCA 134 at [52] (Ierace J; Bathurst CJ and Price J agreeing).

    37. See, for example, Obeid at 241 [443] (R A Hulme J; Bathurst CJ, Leeming JA, Hamill J and N Adams J agreeing).

  8. The Crown’s helpful submissions endeavoured to highlight differences as well as similarities between the cases to which the applicant referred.

  9. In relation to Huang, the Crown’s submissions, which otherwise tended to support the view that Huang’s offending was more grave than the applicant’s, sought to distinguish it on the basis that he was resentenced not by reason of manifest excess, but because of discreet error by the sentencing judge. However, given that he was resentenced, afresh, that does not affect the utility of the decision as a comparator.

  10. In respect of Mahmud, the Crown submitted that at that time the large commercial quantity was one kilogram (whereas it is now 500 grams); that there was only one “supply” offence, and its value was such that it was “substantially below the mid-range”; and that the firearm offence, though one contrary to s 51D(2) of the Firearms Act which carried a higher maximum penalty and an SNPP, was found to be appreciably below the mid-point. Overall, it might be concluded that the criminality in Mahmud was somewhat less than in the instant case.

  11. As to Roberts, the Crown submitted that the large commercial quantity was then one kilogram, which meant that the cocaine amount was just at the threshold; that the methylamphetamine was of low purity; and that the firearm offences comprised possession of a large capacity magazine and two offences of possessing ammunition. Roberts had taken steps in the manufacturing process with knowledge that it was intended to produce methylamphetamine cut with other substances in an amount greater than one kilogram. The Court found the supply of one kilogram to an under-cover operative to be the most serious offence. Roberts’ criminality might be regarded as somewhat less than the applicant’s.

  12. Turning to the second category of comparable cases, the Crown pointed out in respect of Tiew that he was being sentenced for a single offence, characterised as “above the mid-range”, with no Form 1 offences and no criminal history. Nonetheless, it was a very much greater quantity than involved in the present case.

  13. As to Vigo, again it was said that there was a single offence of large commercial supply over a four-year period, and that the threshold amount was then one kilogram. However, some leniency was allowed, for the effect of the sentence on the offender’s children. Again, the quantity was very many times greater than that involved in the present case.

  14. As to Lee, the Crown fairly observed that, on resentencing, the Court considered the sentence it imposed still to be a lenient one, but I do not accept that it is of no utility: it forms part of the spectrum that informs “the range”.

  15. In respect of all of these cases in the second category, it is relevant that the offenders were being sentenced for a single offence, whereas the applicant was sentenced for multiple offences, two of them also with Forms 1. Nonetheless, it is striking that the sentences, for supplies many times larger than the applicant’s total supplies, were still significantly less than the implicit starting point for the applicant’s sentence.

  16. As I have observed, totally accumulated the five indicative sentences would amount to twenty-one years and eight months. The lengthiest of them was that for the sequence 1 offence, namely seven years and six months. An aggregate term of fourteen years, in the context of concurrent offending, represents only a modest degree of concurrency. The Crown was not able to point to a case that demonstrated that the sentence was “within the range”. [38] In my judgment, the applicant has succeeded in establishing that the sentence imposed fell outside the generous ambit of the sentencing judge’s discretion, having regard to the range as illustrated by like cases. The sentence was manifestly excessive.

    38. Tcpt, 20 August 2021, p 6(29)-(36).

Resentencing

  1. The facts of the offending, and the subjective considerations, have been referred to above. The sentencing judge’s evaluation of their objective gravity was not impugned, and I would adopt it. Like her Honour, I would find special circumstances having regard to the applicant’s age (including the circumstance that any period in full-time custody will represent a significant part of his remaining years), the more onerous impact of incarceration given his brain injury and the pandemic, and the need for lengthy supervision on release.

  2. It remains relevant to have regard to his disadvantaged childhood circumstances. While his record might not entitle him to leniency, it is noteworthy that he has not offended seriously for many years. His moral culpability is to some extent reduced by his brain injury. He is entitled to a discount of 25 percent for his plea of guilty.

  3. The applicant read on the appeal, on the usual basis, his affidavit of 19 July 2021, in which he observed that on expiration of his current non-parole period he will be almost 73 years of age. He had experienced difficulty in securing a placement in a programme in gaol, and his age made work difficult for him, although he persisted because it gave him something to do. He has very high blood pressure for which he is on medication, and other health problems including arthritis. He is between 20 and 40 years older than the other inmates. He has had no failed urine tests and says that he has had enough of that life. He has commenced weaning off the methadone programme. He has received no visits since the pandemic, although he speaks to Ms Mulholland daily.

  4. It has not been suggested that the indicative sentences were erroneous, and, having independently considered the matter, I agree with them. Accordingly, were I imposing a separate sentence for each of the offences, I would impose the following sentences:

  1. For the first offence (sequence 1), a non-parole period of four years and six months and additional term of three years, for a total of seven years and six months;

  2. For the second offence (sequence 2), a non-parole period of two years and three months and additional term of one year and six months, for a total of three years and nine months;

  3. For the third offence (sequence 6), a non-parole period of two years and nine months and additional term of one year and nine months, for a total of four years and six months;

  4. For the fourth offence (sequence 3), a term of imprisonment of three years and four months; and

  5. For the fifth offence (sequence 19), a term of imprisonment of two years and seven months.

  1. As has been indicated, totally accumulated that would amount to twenty-one years and eight months. It is in respect of their accumulation that I would take a different approach. While it may be said that each offence had its own criminality, the offending was substantially concurrent and part of the same enterprise, and a substantial degree of concurrency is warranted. I would substitute an aggregate sentence of ten years’ imprisonment, with a non-parole period of six years, expiring on 24 May 2025.

  2. I propose the following orders:

  1. grant leave to the applicant to appeal against the aggregate sentence imposed on 28 August 2020 by the District Court;

  2. allow the appeal; and

  3. quash the aggregate sentence imposed in the District Court on 28 August 2020, and in lieu thereof:

  1. impose an aggregate sentence of ten years’ imprisonment to commence from 25 May 2019 and expire on 24 May 2029;

  2. pursuant to s 44(2A) of the Crimes (Sentencing Procedure) Act1999 (NSW), set a non-parole period of six years, and specify that the earliest date the applicant will be eligible to be released on parole is 25 May 2025; and

  3. pursuant to s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW), record that an aggregate sentence is imposed and indicate to the applicant that the sentences that would have been imposed for each offence under separate sentences instead of an aggregate sentence are as follows:

  1. sequence 1 (Supply 888.79 grams of methylamphetamine): a non-parole period of four years and six months and additional term of three years, for a total of seven years and six months;

  2. sequence 2 (Supply 368.8 grams of heroin): a non-parole period of two years and three months and additional term of one year and six months, for a total of three years and nine months;

  3. sequence 6 (Supply 372.63 grams of methylamphetamine): a non-parole period of two years and nine months and additional term of one year and nine months, for a total of four years and six months;

  4. sequence 3 (Possess shortened Sportco .22 rifle with magazine without authority): a term of imprisonment of three years and four months; and

  5. sequence 19 (Possess shortened Sterling .22 firearm without authority): a term of imprisonment of two years and seven months.

  1. CAMPBELL J: I agree with Brereton JA.

  2. HAMILL J: I agree with the orders proposed by Brereton JA, including his Honour’s conclusion as to the appropriate aggregate sentence and non-parole period to be imposed when exercising the sentencing discretion afresh. I also agree with his Honour’s reasons.

**********

Endnotes

Decision last updated: 06 October 2021

Most Recent Citation
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Cases Cited

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Statutory Material Cited

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Aryal v R [2021] NSWCCA 2
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