Connell v The Queen

[2019] NSWCCA 70

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Connell v R [2019] NSWCCA 70

Hearing dates:

13 March 2019

Date of orders:

05 April 2019

Decision date:

05 April 2019

Before:

Macfarlan JA at [1]
Fullerton J at [2]
Bellew J at [3]

Decision:

(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords:

Criminal Law – Appeal – Sentence – Parity principle – Whether applicant had a justifiable sense of grievance arising from the sentence imposed on co-offender – Where there were differentiating factors which justified the sentences which were imposed – No unjustified disparity

 

Criminal Law – Appeal – Sentence – Where applicant pleaded guilty to offences of supplying prohibited drugs and dealing with the proceeds of crime – Where the sentencing judge gave indicative sentences and imposed an aggregate sentence – Whether sentencing judge erred in not indicating that two of the sentences should be wholly concurrent – No general rule that determines whether sentences should be imposed concurrently or cumulatively – Issues of concurrence or cumulation to be determined by principles of totality and by a consideration of whether the sentence for one offence can comprehend and reflect the criminality of another

  Criminal Law – Appeal – Sentence – Where applicant pleaded guilty to offences of supplying prohibited drugs and dealing with the proceeds of crime – Where the sentencing judge gave indicative sentences and imposed an aggregate sentence – No fixed principle that where an offender is sentenced for supplying prohibited drugs and dealing in the proceeds of crime wholly concurrent sentences must be imposed in each and every case – Observations as to the difficulty faced by an appellate court when it is asked to analyse issues of concurrence and accumulation in cases where an aggregate sentence is imposed – Ultimate question is whether the aggregate sentence imposed reflects the overall criminality of the offender

Cases Cited:

Cahyadi v R [2007] NSWCCA 1
Green v R; Quinn v R [2011] HCA 49; (2011) 244 CLR 462
Jadron v R [2015] NSWCCA 217
Lowe v R [1984] HCA 46; (1984) 154 CLR 606
Pizzimenti v R [2017] NSWCCA 231
Postiglione v R [1997] HCA 26; (1997) 189 CLR 295
R v Gouliaditis (No 2) [2016] NSWDC 216
Stocco, Gino v R; Stocco, Mark v R [2018] NSWCCA 77
Toksoz v R [2019] NSWCCA 10

Category:

Principal judgment

Parties:

Andrew James Connell – Applicant
Regina - Respondent

Representation:

Counsel:
P Lowe – Applicant
H Roberts – Respondent

  Solicitors:
Tully and Chiper Lawyers – Applicant
C Hyland, Solicitor for Public Prosecutions – Respondent

File Number(s):

2014/246213

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

15 December 2017

Before:

His Honour Judge Sutherland SC

Judgment

1. MACFARLAN JA: I agree with Bellew J.

2. FULLERTON J: I agree with Bellew J.

3. BELLEW J: Andrew James Connell (the applicant) pleaded guilty in the District Court to the following charges:

1. supplying a prohibited drug on an ongoing basis between 5 August 2014 and 21 August 2014 (the ongoing supply offence), contrary to s 25A of the Drug Misuse and Trafficking Act 1985 (NSW) (the DMT Act);

2. dealing with the proceeds of crime (namely, $2,950.00) on 21 August 2014 (the proceeds of crime offence), contrary to s 193B(2) of the Crimes Act 1900 (NSW) (the CA); and

3. supplying a prohibited drug in an amount not less than the indictable quantity (375.45 grams of Gamma-Butyrolactone) (the supply offence), contrary to s 25(1) of the DMT Act.

4. The respective maximum penalties were as follows;

1. the ongoing supply offence – 20 years imprisonment.

2. the proceeds of crime offence – 15 years imprisonment.

3. the supply offence – 15 years imprisonment.

5. In addition, the applicant asked the sentencing judge to take into account five matters on a Form 1, namely:

1. resisting an officer in the execution of his duty, contrary to s 58 of the CA;

2. possessing a prohibited drug (39.3g testosterone), contrary to s 10(1) of the DMT Act;

3. possessing a prohibited drug (1.76g methylamphetamine), contrary to s 10(1) of the DMT Act;

4. possessing a prescribed restricted substance (melatonin), contrary to s 16(1) of the Poisons and Therapeutic Goods Act 1966 (NSW); and

5. being on drug premises, contrary to s 36X(1)(a) of the DMT Act.

6. The sentencing judge gave the following indicative sentences:

1. the ongoing supply offence: 2 years and 8 months imprisonment (taking the Form 1 matters into account).

2. the proceeds of crime offence: 18 months imprisonment.

3. the supply offence: 8 months imprisonment.

7. The sentencing judge imposed an aggregate sentence of 3 years and 6 months imprisonment, with a non-parole of 2 years imprisonment.

8. The applicant now seeks leave to appeal against that sentence on the grounds more fully set out below.

The facts of the offending

9. His Honour found the facts of the offending to be as follows: [1]

   1. Commencing at ROS 1.

3. In May of 2014 police attached to the Redfern Region Enforcement Squad commenced a targeted investigation into the supply of prohibited drugs by one Nicholas Gouliaditis. A taskforce to investigate those suspicions was formed and physical and electronic surveillance was deployed.

4. Gouliaditis was a solicitor at that time employed by the Australian Government Solicitor's Office which was situated in the MLC Centre in Martin Place, Sydney. Police had identified that Gouliaditis was primarily supplying prohibited drugs from two locations: his own home address in Australia Street at Newtown and also in and about the vicinity of the Australian Government Solicitor's Office at the MLC Centre.

5.   During the course of the investigation in the months which followed police established that Gouliaditis was involved, together with the offender before me, Andrew Connell, in what was identified-by police as a drug supply syndicate which was able to obtain supplies of quantities of numerous forms of prohibited drugs at short notice and then to supply the drugs to numerous persons in and around the city.

6.   The charge before the Court of supplying prohibited drugs on an ongoing basis is based upon electronic and physical surveillance of both men, that is Gouliaditis and the present offender, during the period between 5 August 2014 and 21 August 2014. During that period of time Connell supplied to Gouliaditis quantities of methylamphetamine and 1,4-Butanediol on a regular basis. Connell also facilitated the obtaining of drugs from other persons by Gouliaditis by directing him to such other persons for the purpose of obtaining drugs so that they could be on-supplied to customers of Gouliaditis. There were, according to the agreed facts, at least ten occasions identified where Connell supplied Gouliaditis with prohibited drugs, either directly or indirectly, in the fashion that has been described.

7.   The agreed facts provide a number of what are described in the narrative as examples of how the offenders would arrange meetings for the purpose of an actual supply. The examples given, as I understand it, are meant to be representative of the methodology adopted. The examples given in the agreed facts include the following:

8.   On 7 August 2014 a female customer - if I may so refer to her - placed a request with Gouliaditis for the purpose of obtaining 3.4 grams of methylamphetamine for an amount of $1,450. The agreed facts indicate that Gouliaditis contacted Mr Connell by mobile phone and placed a request for the supply of 10.5 grams of methylamphetamine. Connell facilitated that request by providing Gouliaditis with a telephone number of a third party who would physically supply the drugs.

9. Text messages between Connell and Gouliaditis on that date, that is 7 August 2014, are set out in extensive detail in the agreed statement of facts. For the purposes of these current remarks on sentence I paraphrase them. SMS messages from Connell to Gouliaditis explained how some items could be slightly more expensive for what were called self-explanatory reasons. Gouliaditis advised that he had a regular who wanted to grab "an 8-balF' the next day. An 8-ball should be understood -and I draw the inference - to be a reference to a well-known weight for the purposes of supply. An 8-ball is normally used to describe an eighth of an ounce, which by mathematical conversion approximates to in the vicinity of 3.5 grams. Connell indicated to Gouliaditis that he could supply three, that is three 8-balls, which again arithmetically translates to approximately 10.5 grams. Connell directed Gouliaditis to an address in Hornsby and at a specific address he was to use a contact mobile telephone number given to him by Connell. Connell told Gouliaditis, "You just text him when you're out front and you give him whatever cash you've got, he'll give you three. So there is one for you, one on tick and one for your mate tomorrow night" Gouliaditis confirmed, "So three all together." As I have indicated above, three 8-balls at approximately 3.5 grams each were to be supplied to Gouliaditis, giving him as it were one for himself, one on tick - which I infer is a slang reference to being on credit - and one for the female customer who was seeking to obtain an 8-ball or 3.5 grams. Consequent upon these communications Gouliaditis apparently drove to Hornsby, met with the third party to whom he had been directed by the offender, then obtained three 8-balls. Connell and Gouliaditis maintained phone contact both before and after the purchase and the successful supply having occurred without incident they confirmed that fact between themselves.

10.   The following day, 8 August 2014, at approximately 11.45am Gouliaditis was seen to supply one of the 8-balls that he had obtained which was ascertained subsequently to in fact contain 3.22 grams of methylamphetamine. He provided that to the female customer for $1,400. Whether there was a shortfall of the discussed amount because she did not have the cash or whether because it had been weighed and there was a slight underweight, or whether somebody had taken some out of it the Court simply does not know.

11.   In a subsequent telephone call on 8 August Gouliaditis asked Connell if he could get four more. He told Connell, "I've got what I owe you and more and two of those are going to be purchased immediately tonight for like 2.5."

12.   On 12 August 2014 a female customer again placed a request with Gouliaditis for the purchase of an 8-ball for an amount of $1,400 and on this occasion there was a request also for 500 millilitres of 1,4-Butanediol for $2,500. I am aware generally that 1,4-Butanediol is commonly referred to as "liquid fantasy" and is described in the literature as having a similar effect to methylamphetamine and other related drugs such as GHB. After receiving this request Gouliaditis immediately contacted Connell by mobile phone and arranged to meet with him to discuss prices for the purchase. Connell and Gouliaditis met in Castlereagh Street, following which Gouliaditis sent a price for the drugs to his female customer.

13.   The following day, at about 12.40pm, Gouliaditis was observed by police to enter a vehicle on Elizabeth Street in Sydney. He directed the female person who was driving the vehicle to drive it to William Street at Woolloomooloo. In the vicinity of William Street, Woolloomooloo the offender Andrew Connell was observed to come out of the building where he handed to Gouliaditis a plastic bag which was ascertained to contain 7 grams of methylamphetamine or two 8-balls, as well as 500 millilitres of 1,4-Butanediol. Gouliaditis, having acquired the drugs from Connell, then returned to the vehicle where he gave one of the 8-balls to the female customer for $1,400 and he supplied the quantity of Butanediol for $2,500. Later that evening Connell and Gouliaditis arranged to meet where the proceeds of the transaction were either split or supplied to Connell.

14.   Prior to his arrest in relation to the ongoing supply the offender had an interaction with police on 6 august 2014. On that occasion police from the task force were conducting surveillance upon the offender at the North Shore Hotel in North Sydney. They observed Mr Connell park a registered motor vehicle in Tucker Street behind the hotel and they then saw him go up the rear lane from which access to the hotel can be obtained. Some 25 minutes later Mr Connell was seen to leave the hotel and get into his motor vehicle and drive off. He drove up Falcon Street to Crows Nest, where he then drove west and continued towards Military Road. I note that the agreed facts say that it was west; that may or may not be an accurate description of the geographical make-up. Be that as it may, police utilised a perceived traffic infringement in the driving of the vehicle to warrant them pulling the vehicle over, that is the vehicle driven by Mr Connell. I would rather presume that it was a ruse by police to undertake a search of the vehicle. Be that as it may, in due course after some difficulty in convincing Mr Connell to pull his vehicle over, eventually police procured his bringing the vehicle to a stationary halt. Police described Mr Connell to appear to be extremely agitated and the details of that observation are set out in the agreed facts. In due course police asked him to get out of the vehicle and he was accompanied by them to the footpath area. He was advised that his vehicle was going to be searched, whereupon he protested and in due course was told that he was being detained for the purpose of a search.

15. The upshot of the interaction resulted in what was described as a resisting of arrest and obstructing the police and ultimately led to a charge of resisting an officer in the execution of his duty which summary charge has been included on a Form 1 which is before me. In the course of that interaction with police, police found a cigarette packet within the vehicle close to where the offender had been sitting and a search of that cigarette packet revealed resealable bags containing a quantity of approximately 1.76 grams of methylamphetamine. Possession of that substance was also subsequently charged and is sequence 5 in the charges originally preferred and that too has made its way onto the Form 1 which I am asked to take into account in due course and which I will. I should add that the charge of resisting the officer in the execution of his duty was sequence 2, so that the JusticeLink notifications can appropriately be done in due course.

16.   In the course of searching the vehicle that had been driven by the offender police found three vials of Melatonin and that in due course was the subject of sequence 6, a charge of possessing a prescribed restricted substance. Further, in the course of searching the vehicle they found a urine container in which was a thick liquid which when tested was found to be 39.3 grams of testosterone. The possession of that prohibited drug was again separately charged and the possession of that item, which was sequence 4 in the original charges laid, has also found its way onto the Form 1 before me.

17.   The offender was placed under arrest and cautioned. He denied any knowledge of the items and declined an opportunity to participate in an interview. I take it that after being charged he must have been released.

18.   It will be clear from the chronology of the examples that I have given earlier in these remarks that following that interaction with police he continued in his ongoing supply connection with Mr Gouliaditis, presumably none the wiser that he was the subject of close and continuing surveillance, both physical and electronic, by the police.

19.   In due course both Gouliaditis and Connell were arrested on 21 August. On that date police executed a search warrant at the premises located in William Street, Woolloomooloo where one of the transactions had taken place, or at least in the vicinity of which the transaction had taken place on 13 August. In the course of searching those premises an amount of $2,590 in cash was located. In respect of that possession Mr Connell was charged with the offence of knowingly dealing with the proceeds of crime, as well as an offence of being found on drug premises within the extended definition of that term. The charge of being found on drug premises was similarly charged as a summary offence and it too has been included on the Form 1 before me. With regard to the knowingly deal with proceeds of crime, which was originally sequence 10, that is a matter which has been included on indictment and in respect of which I am required to in due course pass sentence. I should add that being found on drug premises was charged as sequence 12.

The objective seriousness of the offending

10. His Honour reached the following conclusions as to objective seriousness: [2]

90. ….. The ultimate position seems to me to be that one case view Mr Gouliaditis as, in effect, the street retailer and the person from whom – on the evidence before me – he obtained his supply or though whom he was directed to go and get the supplies, was Mr Connell. That is not to say that Mr Connell was in some supervisory or controlling position vis-à-vis Gouliaditis but simply to view, in the way that is often done in drug matters, a sequential or sometimes hierarchal sequence of supply from either a manufacturer or an importer through what sometimes are described as wholesalers, warehouse men and subsequently to a street supplier.

91. The analogy is imperfect and not always applicable but in the context of assessing the criminality one would reach the view, which I do, that to some slight degree in regard to the factual matrix one would view Mr Connell as slightly more culpable because he clearly is closer to the original seat of supply than is the end distribution effected by Mr Gouliaditis.

….

93. The assessment of the objective seriousness of the knowingly dealing with the proceeds of crime I view as being at the lower end of offences of that nature, partly tempered by the quantity of money, which was modest in the greater scheme of things. The possession of the GBL, notwithstanding that it was seven times the indictable quantity, in the circumstances, I view as under the middle range of deemed supplies, given the quantity, and I propose to view its objective seriousness accordingly.

2. At ROS 35-36.

The applicant’s subjective case

11. The material tendered in the applicant’s case on sentence included reports of Stephen Woods, Forensic Psychologist, and Dr Antony Henderson, Forensic Psychiatrist, both of whom had treated the applicant. In his report of 5 December 2016, Dr Woods noted [3] that at the time of the applicant’s initial presentation in August 2014, he had a Major Depressive Disorder with suicidal ideations. Dr Woods expressed the view that the applicant’s level of depression had improved since that time, but had not fully resolved. However, he said that the applicant had “made remarkable therapeutic progress”. [4]

    3. At p. 3.

    4. At p 7.

12. In his report of 5 December 2016, Dr Henderson said [5] that the applicant had presented to him in October 2014 with a significant psychiatric history, including childhood ADHD and a Stimulant Use Disorder for which he had been admitted to Northside Clinic at the age of 17. During that admission the applicant was diagnosed with Bipolar II Disorder [6] which Dr Henderson concluded was in sustained remission.

    5. At p 1.

    6. At p. 2.

13. The applicant had also been diagnosed, in March 2016, with chronic gastroenteritis and malabsorption. He was found to have a neoplasm, or abnormal tissue growth, in the bowel, which was thought to carry with it a high likelihood of a malignant recurrence. Dr Henderson said that the applicant had experienced a deterioration in his mental state following this diagnosis, and had self-medicated. He recommended [7] ongoing treatment for the Bipolar Disorder, and concluded that the applicant demonstrated a reasonably good prognosis and a low risk of recidivism. That assessment was based upon what Dr Henderson regarded as the applicant’s motivation to attend to his mental health treatment, his intention to abstain from illicit drug use, his employment prospects and the support of his family. Regrettably, that assessment proved to be somewhat inaccurate.

    7. At p. 3.

11. The sentencing judge noted [8] that the applicant had entered a plea of guilty in the Local Court and was entitled to a discount of 25% to reflect the utilitarian value of that plea.

    8. At ROS 9.

The sentence imposed on the co-offender

15. Nicholas Gouliaditis (the co-offender) pleaded guilty to the following offences:

1. supplying a prohibited drug on an ongoing basis between 23 July 2014 and 21 August 2014, contrary to s 25A of the DMT Act; and

2. possessing a prohibited weapon contrary to s 7(1) of the Weapons Prohibition Act 1998 (NSW).

16. In sentencing the co-offender for the first of those matters, his Honour Judge Berman SC was asked to take into account the following matters on a Form 1:

1. supplying a prohibited drug (2.25g of Methylamphetamine), contrary to s 25(1) of the DMT Act;

2. resisting arrest, contrary to s 58 of the CA;

3. possessing a prohibited drug (1.38g of Methylamphetamine), contrary to s 10(1) of the DMT Act;

4. possessing a prohibited drug (106.4 ml 1,4 Butanediol), contrary to s 10(1) of the DMT Act; and

5. dealing with property suspected of being the proceeds of crime ($1,145.00), contrary to s 193C(1) of the CA.

17. On 2 September 2016 the co-offender was sentenced in respect of the charge supplying a prohibited drug on an ongoing basis to 2 years imprisonment, to be served by way of an Intensive Corrections Order. In respect of the charge of possessing a prohibited weapon, he was sentenced to imprisonment for 9 months, to be served by way of an Intensive Corrections Order. The two sentences were ordered to be served concurrently.

18. Judge Berman SC applied a combined discount of 40% to reflect the utilitarian value of the co-offender’s early plea of guilty and another factor. [9] His Honour found[10] that there were exceptional circumstances justifying the co-offender serving his sentence other than by way of full-time imprisonment. Implicit in that finding was his Honour’s acceptance of the submissions of senior counsel for the co-offender that there were a series of factors which, when combined, justified that course being taken. In that regard, senior counsel had submitted,[11] inter alia, that the co-offender:

    9. R v Gouliaditis (No 2)[2016] NSWDC 216 at [14].

    10. At [40].

    11. See [22] and following.

1. was motivated by a desire to fund his own drug addiction, as opposed to being motivated by a desire to profit commercially;

2. suffered from a psychiatric disorder which had arisen at or about the time of the offending;

3. had demonstrated substantial remorse;

4. had undergone 11 months of quasi custody, firstly in Odyssey House and then in William Booth House;

5. had successfully graduated from William Booth House with positive reports as to his rehabilitation;

6. had suffered a degree of extra curial punishment arising from the fact that he was a practising lawyer whose career had been brought to an end as a consequence of his offending;

7. would be particularly vulnerable in prison as a consequence of suffering from physical illnesses; and

8. had engaged in significant ongoing rehabilitation, had not used drugs, and had gained full time employment at William Booth House through which he was assisting those who had also engaged in the supply of illegal drugs.

19. The evidence before Judge Berman SC included a letter from William Booth House which made reference to the fact that the co-offender was “doing exceptionally well”, was “honest about the issues that underpinned his addiction”, had “spoken positively about how his life had improved”, and had “the foundations of a strong recovery”. [12] His Honour observed[13] that by virtue of his employment, the co-offender’s rehabilitation was effectively being assessed on a daily basis. His Honour also referred to other material[14] which supported a conclusion that the co-offender’s progress towards rehabilitation was well advanced.

THE GROUNDS OF APPEAL

Ground 1 – The applicant has a justifiable sense of grievance when his aggregate sentence is compared with the sentence imposed on the co-offender, Nicholas Gouliaditis.

12. At [31].

13. At [31].

14. Commencing at [32].

The reasons of the sentencing judge

20. The sentencing judge was cognisant of parity considerations, and the sentences imposed upon the co-offender. In particular, his Honour said: [15]

89.   I note the submission that the Court needs to bear in mind the question of parity so far as Gouliaditis is concerned and the sentence imposed by Berman DCJ. After allowing a discount of forty per cent and taking into account the powerful subjective features and the extra curial punishment of the loss of a professional career and the loss of the pursuit of a career as a legal practitioner, Berman DCJ came to a view that an appropriate sentence was a period of two years. However one does the arithmetical computations, that would indicate a starting point of something in the vicinity of three years and four months with a consideration of those powerful subjective features.

15. Commencing at ROS 35.

Submissions of the applicant

21. Counsel for the applicant submitted that any differences between the respective criminality of the co-offender and the applicant were not sufficient to justify what he described as the “significant disparity” in the respective sentences which were imposed. It was submitted, in particular, that the sentence imposed upon the co-offender was lenient in the sense that it did not incorporate any component of full-time custody, and that this supported the conclusion that there was unjustified disparity.

22. Counsel also made reference to the differentiating factors between the respective subjective cases, and submitted that none of those matters warranted a disparity of the significance of that which had resulted. Counsel also relied upon the fact that the applicant was in his mid to late twenties at the time of his offending, whereas the co-offender was in his early thirties.

23. Counsel submitted that in all of these circumstances, the applicant had a justifiable sense of grievance.

Submissions of the Crown

24. The Crown submitted that there were a number of distinctions between the two cases which explained the differences in the sentences which were imposed. These included:

1. the differing discounts which were applied;

2. the fact that the sentencing judge found that the applicant was more culpable than the co-offender;

3. the credit given to the co-offender for his periods of quasi custody; and

4. the significant progress towards rehabilitation which had been made by the co-offender since his arrest, as opposed to the applicant whose behaviour was generally at odds with any progress at all.

Consideration

25. The principle of parity in sentencing allows for different sentences to be imposed on like offenders, in order to reflect varying degrees of culpability, and/or differences in subjective circumstances. The same principle also recognises that as between co-offenders, there should not be a marked disparity which gives rise one offender having a justifiable sense of grievance. [16] In my view, when those principles are applied to the present case, the applicant can have no justifiable sense of grievance. This is so for a number of reasons.

    16. Green v R; Quinn v R [2011] HCA 49; (2011) 244 CLR 462 at [28]; Postiglione v R [1997] HCA 26; (1997) 189 CLR 295 at 301; Lowe v R [1984] HCA 46; (1984) 154 CLR 606 at 610-611.

26. Firstly, counsel’s reliance upon the difference in the ages of the applicant and the co-offender is of little or no significance. Whilst the applicant was obviously younger, both were adults at the time of the offending.

27. Secondly, the applicant’s criminality was found by the sentencing judge to be higher than that of the co-offender.

28. Thirdly, the discount applied by Judge Berman SC to the co-offender’s sentence was greater than that afforded to the applicant, by reason of another factor which formed no part of the applicant’s subjective case.

29. Fourthly, there was a marked difference between the applicant and the co-offender in terms of the paths that each had taken towards rehabilitation. I have already set out some of the evidence which was before Judge Berman SC in relation to that issue, [17] on the basis of which his Honour reached conclusions favourable to the co-offender. [18] His Honour specifically found that the co-offender had, in no small way, done much good for the community following his arrest by assisting people who had been harmed as a consequence of drug-dealing activities:[19]

Many times in sentencing, considerations such as paying back to the community for the harm an offender has caused are taken into account. In this case, the offender’s current role very much achieves what he can in that regard.

17. At [19] above.

18. Commencing at [29].

19. At [30].

30. The applicant’s case on the question of rehabilitation was significantly different from that of the co-offender. The applicant’s sentence proceedings were successively adjourned for periods of time to allow ongoing management, assessment and treatment of his medical issues, including his mental health issues. A number of events adverse to the applicant occurred during those adjournments.

31. Firstly, the applicant was stopped by police for driving a motor vehicle in a dangerous manner and was found to be in a semi-conscious state. When attempting to arrest the applicant, police were forced to employ the use of “approved strikes” to stop him resisting, and to control him. Results of blood and urine testing were consistent with the applicant having ingested prohibited substances, including methylamphetamine and amphetamine.

32. Secondly, the applicant commenced a rehabilitation program at Dooralong Transformation Centre. After a period of lecture and tutorial sessions over several weeks, he was granted day release. He returned one day exhibiting signs of obvious physical injuries which had been inflicted in the course of an altercation. This led to him being discharged from the program.

33. Thirdly, it was during an adjournment of the sentence proceedings that the applicant committed the supply offence. He was a passenger in taxi which was stopped by police and was observed to be under the influence of drugs. He was removed from the vehicle and subsequent search located 375.45 grams of Gamma-Butyrolactone. An iPad which was in the applicant’s possession at that time, and which was seized by police, contained screen shots of messages consistent with dealing in prohibited drugs. At that time, the applicant was on bail in relation to the ongoing supply offence and the proceeds of crime offence. The sentence proceedings in respect of those matters had been adjourned for the purpose of assessing the applicant’s suitability for an Intensive Corrections Order. Upon his arrest, the applicant’s bail was revoked and he was detained in custody.

34. Fourthly, having been granted bail by Campbell J of this Court on the condition that he again attend the Dooralong Centre rehabilitation program, the applicant (having been admitted back into the program) was seen by staff running naked with another male in the grounds of the Centre, apparently under the influence of a prohibited drug. That incident resulted in the applicant’s exclusion from the program at Dooralong. It also constituted a breach of his bail conditions, which saw him returned to custody.

35. It will be apparent that in terms of rehabilitation, there was a great deal separating the progress of the applicant on the one hand, and the progress of the co-offender on the other. That, of course, is to say nothing of the other subjective factors which the co-offender was entitled to have taken into account, but which played no part in the applicant’s case. Those matters included the extra curial punishment he had suffered, his vulnerability in prison and the 11 month period of quasi custody spent at Odyssey House and William Booth House.

36. Finally, I am not persuaded that there is any unjustified disparity arising from the fact that the sentence imposed upon the co-offender did not involve a requirement that he serve any period of full-time custody. That too is explained by the various differences in the respective cases to which I have referred.

37. In all of these circumstances, the applicant can have no justifiable sense of grievance arising from the sentences imposed. For these reasons this ground is not made out.

Ground 2 – His Honour erred in law in indicating the sentence for the proceeds of crime offence, in that he either:

imposed a sentence that was manifestly excessive; or

failed to direct that the indicative sentence for that offence should be served completely concurrently with the indicative sentence for the ongoing supply matter.

Submissions of the applicant

38. Counsel for the applicant submitted that the sentencing judge should have indicated that the sentence for the proceeds of crime offence was to be wholly concurrent with the sentence imposed for the ongoing supply offence. Counsel acknowledged that no such submission had been made to the sentencing judge by the applicant’s then representative, but submitted that the two charges were directly connected, and that the error on the part of the sentencing judge should be corrected by this Court.

39. It was submitted that by failing to indicate that the two sentences were to be concurrent, the sentencing judge had failed to apply what was described as the “principle” that in circumstances where an offender is to be sentenced for a supply (or ongoing supply) offence and a proceeds of crime offence, the sentences must always be wholly concurrent. Counsel submitted that the decision of this Court in Jadron v R [20] was authority for that proposition.

    20. [2015] NSWCCA 217

Submissions of the Crown

40. The Crown submitted that questions of concurrency and accumulation are inevitably matters within the discretion of a sentencing judge, and are therefore matters with which this Court will not generally interfere. It was submitted that the aggregate sentence imposed on the applicant properly reflected the totality of his criminality, and that the issue of whether or not a sentence for one offence was capable of comprehending and reflecting the criminality of another offence, so as to justify complete concurrence, was necessarily a matter for the sentencing judge. The Crown also submitted that when imposing an aggregate sentence, there is no obligation upon a sentencing judge to fix the degree of concurrency or accumulation within each individual indicative sentence.

41. Finally, the Crown submitted that there was no fixed principle that in each and every case where a person is to be sentenced for a supply offence and a proceeds of crime offence, the sentences must be concurrent. The Crown submitted that the decision of this Court in Jadron did not stand as authority for any such proposition. It was also pointed out that in Jadron the Crown had expressly conceded that wholly concurrent sentences were appropriate in the particular circumstances of that case. The Crown emphasised that no similar concession was made in the applicant’s sentence proceedings.

Consideration

42. For a number of reasons I am unable to accept the submissions advanced by counsel for the applicant in support of his ground.

43. To begin with, such submissions ignore the fact that there is no general rule that determines whether sentences should be imposed concurrently or cumulatively. Issues of concurrence or accumulation are to be determined according to principles of totality, and by considering whether the sentence for one offence can comprehend and reflect the criminality of the other. [21]

    21. Cahyadi v R [2007] NSWCCA 1 at [27] per Howie J (Adams and Price JJ agreeing).

44. Further, and more specifically, the submissions of counsel for the applicant misunderstood the decision of this Court in Jadron. In that case, separate sentences (as opposed to an aggregate sentence) had been imposed at first instance in respect of charges of supplying a prohibited drug and dealing with the proceeds of crime. Fagan J (with whom Leeming JA and Hamill J agreed) concluded, having regard to a concession made by the Crown, that in the particular circumstances of that case the sentences which had been imposed at first instance should not have been accumulated. [22] The decision in Jadron is not authority for the proposition that in each and every case where an offender is to be sentenced for such offences, wholly concurrent sentences must, as a matter of principle, be imposed. To so conclude would be to unreasonably and impermissibly fetter the discretion of a sentencing judge.

    22. At [54].

45. It may be that in some cases it will be possible to make a connection between the act of supplying a prohibited drug, and the act of dealing in proceeds of crime. For example, the evidence may make it plain that money found in an offender’s possession, and which is said to be the proceeds of crime, was derived from the supply of prohibited drugs. In such a case, wholly concurrent sentences may be appropriate. However, as is always the case, whether this will be so will depend upon a consideration of the issues set out in [43] above. Contrary to the submissions advanced by counsel for the applicant, there is no fixed principle which mandates such an outcome. Each case must be evaluated on its own facts.

46. In the present case, no submissions were made to the sentencing judge in respect of this issue at all. It is perhaps unsurprising in those circumstances that the sentencing judge made no specific finding as to the existence of any connection between the ongoing supply offence and the money which was the subject of the proceeds of crime offence. Whether there was any such connection was clouded by the fact that there were a number of drug related matters contained on the Form 1. In all of these circumstances there was no error in the indicative sentences which the sentencing judge expressed.

47. The submissions of counsel for the applicant also fail to recognise that where an aggregate sentence is imposed, this Court is not in a position to analyse issues of concurrence and accumulation in the same way that it is able to analyse traditional sentencing structures. This is because a sentencing judge is not under an obligation to explain how questions of accumulation and concurrence were resolved. [23] To require a sentencing judge to engage in that task would run contrary to the simplified process of imposing an aggregate sentence for which the Parliament has made provision[24] .

    23. Toksoz v R [2019] NSWCCA 10 at [28] citing Stocco, Gino v R; Stocco, Mark v R [2018] NSWCCA 77 at [164].

    24. Pizzimenti v R [2017] NSWCCA 231 at [17].

48. The ultimate question is whether, in all of the circumstances, an aggregate sentence which has been imposed reflects the overall criminality of the offender. In my view, the aggregate sentence which was imposed in the present case did so. The ongoing supply offence involved the applicant performing a vital role in systematic drug supply. The proceeds of crime offence was also serious, although at the lower end of the scale in light of the amount of money involved. The supply offence was committed whilst the applicant was on bail, and within the period of an adjournment which he had been granted for the purposes of undergoing an assessment as to his suitability for an Intensive Corrections Order. Quite apart from these considerations, that offence involved the applicant being in possession of seven times the indictable quantity of a prohibited drug, for the purposes of supply. Taking all of these factors into account, it could not be said that the aggregate sentence which was imposed was manifestly excessive.

49. For these reasons, this ground is not made out.

CONCLUSION

50. I propose the following orders:

1. Leave to appeal granted.

2. Appeal dismissed.

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Endnotes

Amendments

07 May 2019 - Minor amendments to paragraphs [18], [24], [28] and [35].

Decision last updated: 07 May 2019