G v The Queen

[2021] NSWCCA 50

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

G v R [2021] NSWCCA 50

Hearing dates:

19 February 2021

Date of orders:

26 March 2021

Decision date:

26 March 2021

Before:

Johnson J at [1];
Price J at [2];
Davies J at [114]

Decision:

(1) Leave to appeal granted.

(2) Appeal dismissed.

Catchwords:

CRIME – Appeals – Appeal against aggregate sentence – prohibited drug offences including not less than the large commercial quantity of methylamphetamine – whether failure to afford procedural fairness – whether error in assessing the objective seriousness of the supply of the large commercial quantity of methylamphetamine – whether marked disparity with sentence imposed on co-offender A – whether error in not referring to applicant’s evidence – re-sentence considered

Legislation Cited:

Crimes Act 1900 (NSW), ss 93T(1), 93T(1A), 193C(2)

Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(j)

Criminal Appeal Act 1912 (NSW), s 6(3)

Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 26

Cases Cited:

A v R [2020] NSWCCA 145

Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49; 86 ALJR 36; 283 ALR 1; 214 A Crim R 152

House v The King (1936) 55 CLR 499; [1936] HCA 40, 10 ALJ 22; 10 ALJR 202; 55 ALR 499; 9 ABC 117

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37; 88 ALJR 947; 313 ALR 451; 238 A Crim R 134

Lees v R [2019] NSWCCA 65

Mulato v R [2006] NSWCCA 282

Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284; 270 A Crim R 412

Paxton v R [2011] NSWCCA 242; 219 A Crim R 104

R v Ha [2004] NSWCCA 386

Scott v R [2010] NSWCCA 103

Thomas v R [2019] NSWCCA 88

Category:

Principal judgment

Parties:

G (Applicant)
Regina (Respondent)

Representation:

Counsel:
W Tuckey (Applicant)
E Wilkins SC (Respondent)

Solicitors:
Macquarie Law Group (Applicant)
Solicitor for the Office of the Director of Public Prosecutions (Respondent)

File Number(s):

2016/00354683; 2017/0025125

Publication restriction:

Orders have been made under the Court Suppression and Non-Publication Orders Act 2010 that there be no publication of the names of persons referred to in this judgment by the letters A, B, C, D, E, F, G and H.

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

7 August 2019

Before:

Delaney ADCJ

File Number(s):

2016/00354683; 2017/0025125

Judgment

1. JOHNSON J: I agree with Price J.

2. PRICE J: G (“the applicant”) seeks leave to appeal against the aggregate sentence imposed upon him in the District Court by Delaney ADCJ (“the judge”) on 7 August 2019.

3. The applicant had been arraigned on two indictments. The first indictment contained the following counts:

Count 1: Conspiracy to supply not less than the large commercial quantity of a prohibited drug, 3,4-Methylenedioxy-methamphetamine (“MDMA”), namely 1 kilogram, between 17 May 2016 and 26 May 2016 at Sydney with “A”, “F” and “D” contrary to ss 25(2) and 26 of the Drug Misuse and Trafficking Act 1985 (NSW) (“the DMT Act”).

The maximum penalty for this offence is life imprisonment and/or a 5000 penalty unit fine.

Count 2: Knowingly take part in the supply of not less than the large commercial quantity of a prohibited drug, namely 1.1 kilograms of methylamphetamine contrary to s 25(2) of the DMT Act.

The maximum penalty for this offence is life imprisonment and/or a 5000 penalty unit fine. A standard non-parole period of 15 years’ imprisonment has been prescribed.

4. The judge was asked to take into account, when sentencing for count 2, a charge of knowingly participate in a criminal group contrary to s 93T(1A) of the Crimes Act 1900 (NSW) that had been placed on a Form 1. The maximum penalty for this offence is 10 years’ imprisonment.

5. The second indictment contained a single count of supply of a prohibited drug, namely 9.6g of MDMA contrary to s 25(1) of the DMT Act. The maximum penalty for this offence is 15 years’ imprisonment and/or a 2000 penalty unit fine.

6. When sentencing for this offence, the judge was asked to take into account a charge of deal with property the proceeds of crime of less than $100,000, namely $2,100 of Australian currency contrary to s 193C(2) of the Crimes Act 1900 (NSW) that had been placed on a Form 1. The maximum penalty for this offence is 3 years’ imprisonment.

7. The applicant pleaded guilty to all of the counts on both indictments in the District Court.

8. As the judge intended to impose an aggregate sentence for the two counts on the first indictment, his Honour indicated the following sentences after a deduction of 20% for the pleas of guilty.

1. Count 1 – 4 years’ imprisonment.

2. Count 2 – Taking into account the matter on the Form 1, 9 years and 6 months’ imprisonment with a non-parole period of 6 years.

9. Having found special circumstances, the judge imposed an aggregate sentence for the two offences on the first indictment of 11 years’ imprisonment with a non-parole period of 6 years and 6 months commencing on 25 January 2017. For the offence on the second indictment (including the offence on the Form 1), the judge imposed a fixed term of 12 months’ imprisonment which was to be served wholly concurrently with the aggregate sentence. This sentence commenced on 24 July 2019.

The Amended Notice of Appeal

10. The applicant seeks to appeal on the following grounds:

“1. The sentencing judge failed to afford the parties procedural fairness in assessing the objective seriousness of the knowingly take part in supply offence.

2. The sentencing judge erred by failing to consider or failing to refer to the offender’s oral evidence in his judgment.

3. The sentencing judge erred in his approach to parity in relation to the aggregate sentence imposed, particularly having regard to ‘A’ having been dealt with for an additional offence and their respective roles in the offences.

4. The learned judge erred in his assessment of objective seriousness relating to the knowingly take part in supply offence.”

11. The applicant was granted leave to add Ground 4 at the commencement of oral argument in this Court. As drafted, Grounds 1 and 4 are inadequately particularised. However, the applicant’s counsel confirmed that the complaint in Ground 4 relates to count 2 on the first indictment as does Ground 1.

Background

12. Before venturing further, it is important to note that the judge sentenced co-offenders A, D and E before the applicant was sentenced.

13. In A’s sentencing proceedings, his Honour was informed that the correct weight of the large commercial quantity of methylamphetamine for sequence 1 was 1.104kg and not 1.145kg as stated in the agreed facts. [1]

    1. A v R [2020] NSWCCA 145 at [56]-[64].

14. This is the same offence as count 2 on the first indictment for which the applicant stood for sentence.

15. Notwithstanding the correction that had been made in A’s sentencing proceedings, the agreed facts handed up to the judge in the applicant’s case incorrectly referred to the amount of methylamphetamine as being 1.145kg. On this occasion, counsel did not inform the judge that the correct weight was 1.104kg and his Honour appears to have overlooked the correction that had been made in A’s sentencing proceedings.

16. Although none of the grounds of appeal turn on this issue, it is important to emphasise that counsel must ensure that the agreed facts are accurate in all respects.

The proceedings on sentence

17. The Crown’s tender to the judge during the proceedings on sentence included a lengthy statement of agreed facts and the judge’s sentencing remarks in A, D and E. The Crown also tendered the sentencing remarks of Colefax SC DCJ in B.

18. The applicant gave evidence during the sentencing proceedings. Written material tendered in his case included a report from Chafic Awit, a psychologist, a letter from the applicant to the judge, various references and a letter from The Centre for Addiction Medicine.

The applicant’s subjective circumstances

19. The applicant was born in Australia on 5 May 1993 and was 23 years old at the time of the offences. He described his upbringing as stable but traditional and strict. His parents had been born in Lebanon and had emigrated to Australia.

20. The applicant told Mr Awit that there were not many people of Middle Eastern descent in the secondary school which he attended and as a result he was ostracised and bullied.

21. Whilst at school, he worked at Big W and Aldi. After completing school in Year 12, he attended TAFE and studied a Certificate IV in Frontline Management. The applicant then commenced studying a Bachelor of Business and Commerce degree at the University of Western Sydney and in his second year transferred to a Bachelor of Arts Pathway to Secondary Teaching at the University of Western Sydney. The applicant told Mr Awit that he dropped out of this course, as he was not feeling passionate about it and struggled to attend classes.

22. His employment included working as an IT relocation service manager and in fencing and landscaping.

23. Mr Awit reported that the applicant had commenced taking illicit substances from the age of 18. The applicant advised Mr Awit that he was using MDMA as a means to socialise. He also told Mr Awit that he struggled significantly with symptoms of anxiety and depression over the years. In 2016, he referred himself to The Centre of Addiction Medicine and was recommended to see a psychologist. He had commenced this before his arrest.

24. Mr Awit recounted that the applicant reported at the time of the offence, symptoms consistent with diagnoses of Social Anxiety Disorder, Major Depressive Disorder and Substance Use Disorder.

25. It was Mr Awit’s opinion that there was a psychological nexus between the applicant’s condition and the offences. This “psychological nexus” Mr Awit reported, “stems from [the applicant’s] underlying psychological condition and his long-term severe illicit substance addiction”. Mr Awit considered that the applicant’s anxiety and depression “would have, to some degree, weaken his ‘resolve and ability’ to deal with his underlying symptoms and problems.”

26. Mr Awit opined that psychological intervention would reduce the applicant’s risk of reoffending.

27. Included in his letter to the judge was the applicant’s expression of “deepest regret” for his actions, an apology to the court, his family and the community and his understanding that he needed to make changes to his life.

Prior criminal history

28. The applicant’s prior criminal history reveals that he was sentenced in the District Court at Newcastle on 3 February 2017 for supply of an indictable quantity of prohibited drug (not cannabis) on 5 December 2015 to 12 months’ imprisonment commencing on 11 January 2017 and expiring on 10 January 2018 with a non-parole period of 6 months expiring on 10 July 2017. He was also sentenced for an offence of dealing with property suspected of being the proceeds of crime and a further two offences of possession of a prohibited drug. For each of these offences, he was sentenced to two months’ imprisonment, which was to be served concurrently with the sentence for the supply offence.

The applicant’s evidence

29. At the commencement of his evidence, the applicant said that he agreed with the statement of agreed facts which he had read. The applicant’s evidence before the judge included that his drug of choice had been MDMA which gave him the ability to socialise, that his use had escalated significantly and when he was supplying drugs, he did not realise the dangers that illegal drugs posed. He gave evidence that whilst in custody, he had used other means to take his mind off drug use which included being a sweeper, learning to meditate, reading, exercising and finding solace in religion.

30. He told the judge that in relation to his offending he was in part supporting his drug habit but acknowledged he was making money out of it. He said:

“It was enough to survive; enough to pay rent; enough to support my own drug habit.”

31. In cross-examination, he said that he was not aware the syndicate had access to $240,000 to buy 3kg of methylamphetamine and was not sure how they were going to pay for it. The applicant agreed that he had essentially brokered the deal to obtain 2kg of the prohibited drug, but said:

“I had no cut. I was just assisting.”

32. In further cross-examination, he agreed that he had been charged on 5 December 2015 with a “previous drug supply matter” and was on bail whilst he was involved with A and others in “running a drug supply operation”. He agreed that he was living in a unit at Rhodes with A and he stored drugs and cash in a safe in that unit. His testimony about the safe included the following:

“Q. So, you’re in the Rhodes unit that night, on 22 June, and you were seen carrying the safe down to the car park shortly after [A] was arrested. Why’d you carry it down to the car park, then, shortly after he was arrested?

A. I’m not too sure.

Q. Well, it’s because you knew he [had been] arrested. Well, let’s say probably arrested by police?

A. I wasn’t sure at the time.

Q. You didn’t think it was a possibility?

A. At that current time, no.

Q. What other reason could you have for taking the safe, that you’ve said was full of drugs and cash, down to the car park shortly after [A] was arrested?

A. I’m not too sure.

Q. In any event, you took it back up from the car park about six minutes later, back to the apartment. You emptied the safe in the car park, didn’t you?

A. I can’t comment on that.

Q. Why can’t you comment?

A. I know it’s on the agreed upon facts that it was a safe, but if I had the code to the safe, it doesn’t make sense to me that I would have brought it down, emptied it, and taken the empty safe back to the apartment.

Q. But you’re disputing the facts now?

A. No.

Q. Are you disputing the fact that you brought the safe down to the car park that night, shortly after [A] was arrested? I just want to be clear what you don’t agree with.

A. I just can’t explain what had happened.

Q. Did that happen; you bringing the safe down to the car park shortly after [A] was arrested?

A. I brought down a bag that looked to be like a safe.

Q. What was in the bag?

A. I cannot recall.”

The remarks on sentence

33. After reciting the offences for which the applicant stood for sentence, the judge noted that the applicant was part of a group of persons, many of whom he had already sentenced. The judge said that the question was “the role played by [the applicant], the organisation involving [the applicant] and then comparing his role and activities with those of others who have already been sentenced so that any issues of parity can be properly determined”.

34. His Honour proceeded to summarise the agreed facts which had been tendered by the Crown.

Count 1 on the first indictment

35. The applicant was identified as one of a number of persons including A as directing a joint criminal group that involved the supply and distribution of prohibited drugs along with other persons. Police investigated this group and on 29 April 2016 they began lawful interception of telecommunication services that A was using. They found whilst doing so that the applicant would utilise the mobile service to negotiate and liaise with the associates of A for the purpose of supplying prohibited drugs.

36. The applicant was residing with A, was an active participant with him in the distribution of prohibited drugs and was a close friend. He worked with A and his associates for a common purpose, namely the distribution of prohibited drugs throughout Sydney.

37. Between 18 May 2016 and 24 May 2016, numerous conversations were lawfully intercepted between the applicant, A, D, and F in which the parties attempted to source a kilogram of MDMA for the purpose of supply.

38. On 18 May 2016, A called D and told him he needed a kilogram of MDMA and then F was called and asked for the price of a kilogram. F asked whether it was for the applicant. D said that it was for A and in a call later F told D that the price was over $40,000. There were then conversations that were intercepted between members of this group including F and D which led to discussions about the nature of the drug, the cost of it, where it came from and the like. A had requested that F get a price for both local and imported and asked would they be able to get it tonight.

39. Later that night at almost 9pm, the applicant called F and said, "Do you have just one?" and F said that he had nothing and was waiting. This wait continued and discussions continued. The conversation involved both A, E and F and ultimately the applicant briefly participated in this conversation concerning the purchase of MDMA.

40. On 20 May, seeing that that attempt had failed to source the drugs, both A and F looked to see whether it could be reinstated. The applicant at that stage took the phone from A and spoke to F, who told him that someone had “showed him a black [crystal]”. The applicant asked for a price for a kilogram and F said that he was not going to pay more than $35,000.

41. On 21 May, F told A he would get a sample of the “black” and A said they were still interested. The attempts to obtain the kilogram of MDMA recommenced and there were further calls between A and F after 23 May 2016 dealing with sourcing that amount.

42. On 24 May, there were a number of recorded calls attempting to secure one kilogram in which A told F that his supplier had let him down. F called A and said that he had been speaking to people and ultimately the matter ended there.

Count 2 on the first indictment

43. For count 2, on the first indictment, the judge observed that on 21 June negotiations were captured on an intercept device between A and C for the purchase of 3 kg of methylamphetamine for $80,000 per kilogram. An intercepted communication between the applicant and A revealed that 2kg of the methylamphetamine was for a customer of the applicant.

44. On 22 June, A was again captured speaking with C and they continued to discuss the purchase of 3kg of methylamphetamine, which was said to be available before 6 o'clock on 22 June.

45. During that day negotiations continued and the police intercepted those discussions and had electronic surveillance capturing the movements of not only the applicant but also the others: A, B, C and D.

46. Later that particular day the applicant returned to the unit, which had been under surveillance. A and B left the unit, then came back and then left. The applicant's customer arrived at 35 minutes past 5, remained inside the unit and then left. D then returned with an unknown male.

47. Later that evening A and B attended the Parramatta region and “obtained 1.45 kilograms (sic) of methylamphetamine”. A told the applicant he did not wish for him to go with him and wanted him to remain behind.

48. Further conversations between the applicant, A and other co-offenders corroborated that the supply occurred and A and B were returning with the prohibited drug. During the evening the applicant called A, handed the phone to his customer and A had a short conversation with him, saying he was still waiting for the drug to be supplied. He expected it to be available shortly. Later on the applicant called A again and the applicant pressed A to give an estimated time for the drugs to arrive. Again, an estimate was given. But when informed that there was only one kilogram the applicant was unhappy about this fact.

49. Later that evening the applicant called A, who informed him that he was driving on the M4. The applicant said "hold on a second" and he put his customer on the phone and at the same time B spoke to the customer. Electronic surveillance confirmed that the applicant, his customer and D were at the unit at Rhodes at the time of these phone calls.

50. Later on that evening police performed a vehicle stop. A and B were in the front passenger and driver seats and police obtained a sample from inside the backpack which showed methylamphetamine. Later DNA testing of the biological sample confirmed a match with the applicant's DNA profile. B and A were placed under arrest and cautioned. A stated that the content of the backpack was ice that had been purchased for $80,000. Whilst this vehicle stop was taking place, 17 phone calls and text messages were made to the mobile phone of A by the applicant, asking A to return his call.

43. C, who was also under physical surveillance, was stopped by police. A, B and C were taken to Burwood Police Station and charged. Whilst A was in custody electronic surveillance captured the applicant's customer leaving the Rhodes unit accompanied by the applicant, who then later returned to the unit. He was captured on CCTV footage carrying out a large object similar in appearance to a safe from unit XXX through the elevators into the car park. He returned a large object similar in appearance to the safe to the unit. Police executed a search warrant and a safe similar in appearance and colour was seen in the unit and there was nothing contained in it.

44. The judge recounted that the agreed facts concluded with the details of an interview of 9 February with B. B said the applicant was A's partner and living with him at the Rhodes unit. The applicant was there when the group counted the money in the amount of $80,000 on 22 June for the purchase of the methylamphetamine. H was to receive the drug.

45. In relation to the supply by A of MDMA in capsule form, B said that the applicant was A's partner but they were mostly getting it from H. This was the largest amount of MDMA that A had got from H. “[The applicant] (sic) said that [A] and his associates were selling MDMA and only at one time methylamphetamine and that was because [H] wanted it.” The plan was to cut it with “other rubbish” to increase its weight so they could get the benefit from the $80,000. B said that he knew the safe was in the Rhodes unit and it was used to store drugs and money but only A and the applicant had the combination to the safe which could be carried. He said that H was introduced to the group through G as they were related by marriage. B said that the applicant had nothing to do with the ice transaction because he remembered that when we were in his house and the money, and the applicant asked “Do you want to come with me?” A said “no, [B] is with me and that is enough”.

46. The judge said the agreed facts stated that the applicant was an active participant in an enterprise to supply H with a large commercial quantity of methylamphetamine, namely 1.145kg on 22 June 2016. He was present when the purchase money was counted. He permitted his backpack to be used for the transport of the money and the drugs. He was prepared to travel with his partner A to the transaction. He played an active role in the telephone conversations concerning the main transaction; was upset when told that A had only been able to secure a kilogram and not two. He was in the physical company of H, who was both an MDMA supplier and his relative by marriage. The judge found that the applicant knowingly took part in the supply of the 1.145kg of methylamphetamine for his customer H.

Some findings by the judge

55. When referring to count 1, the judge said that he had sentenced A on the basis that he was the head of the criminal group. His Honour found that the applicant was a “trusted lieutenant” of A based on the fact that he was very close, they lived together, had “an active participation and swapped phones in the distribution of drugs and … there was a co-operation between them for the one purpose of securing the drugs in question”.

56. The judge assessed the objective gravity of the offence as being “below mid-range”.

57. His Honour said that was not his view in relation to count 2 on the first indictment. For that count, his Honour assessed the objective gravity of the offence as being “mid-range”. His Honour noted that there were very significant actions taken by the applicant in relation to the supply of the drug when the question was whether or not it would be able to be supplied in either 2 or 1kg lots. His Honour went on to say:

“There is no doubt on the agreed facts of the intention of those involved, namely [A] and [the applicant] to execute that supply in the manner in which the agreed facts stated … [the applicant] in this case was in a high role with [A] in relation to that supply. He was involved to a significant degree and it is consistent with my findings in relation to [the applicant] as to the extent of criminality that it should be assessed at mid-range.” (Emphasis added.)

58. The judge referred to the applicant’s subjective case which included a letter of apology and Mr Awit’s report. His Honour allowed a 20% discount for the pleas of guilty.

59. After noting the applicant had a number of offences for supply prohibited drugs and dealing with property being the proceeds of crime but otherwise had not come under notice, the judge considered that there was “no basis for consideration of leniency based on his past record”.

60. The judge observed that the applicant expressed remorse and contrition, had a history of education, training and employment that would if used appropriately be helpful to him in his rehabilitation. His Honour was satisfied that the applicant could pursue rehabilitation if he desired to do so.

61. The judge found special circumstances being the applicant’s need for
    re-education in relation to employment, treatment and consultation for his various problems of addiction.

62. His Honour turned to the question of parity. His Honour observed it was not an easy task. His Honour said:

“The importance of this is that I am of the view accepting to some degree the submissions that were made by [the applicant’s counsel] that the sentence for [the applicant] in this case would not be equal to that of [A] and would be less, the reasons are that I am satisfied that [A] played the larger [r]ole in this case. I am satisfied that his background and history of [A] was such as to clearly separate him from the views that I expressed in that case and that [the applicant’s] situation is in my view more in line with the approach that was taken by me in relation to [C]…

At the same time, when one looks at the approach that was taken to [B], it also can be seen that the charges preferred and pleaded to are lesser than [the applicant].” (Emphasis added.)

63. After indicating the sentences that would have been imposed, the judge imposed the aggregate sentence for the offences on the first indictment. [2]

    2. See [8]-[9] above.

64. His Honour then sentenced the applicant for the offence on the second indictment, including the matter on the Form 1. His Honour assessed the offence to be at “a fairly low level of criminality compared to cases that one normally sees”. His Honour then imposed a wholly concurrent fixed term of 12 months’ imprisonment. [3]

Ground 1: The sentencing judge failed to afford the parties procedural fairness in assessing the objective seriousness of the knowingly take part in supply offence.

Ground 4: The learned judge erred in his assessment of objective seriousness relating to the knowingly take part in supply offence.

3. At [9] above.

65. These grounds of appeal may be dealt with together. The applicant’s complaint of a denial of procedural fairness in Ground 1 is that both the Crown and the applicant had submitted that the offence being count 2 on the first indictment fell below the mid-range of objective seriousness and the judge indicated during the proceedings on sentence that he would make such a finding. However, in his sentencing remarks, the judge assessed the objective gravity of the offence as being at mid-range.

66. The applicant contends that he was entitled to rely on his Honour’s indication and was denied procedural fairness by not being given the opportunity of addressing the issue.

67. As to Ground 4, the applicant submits that the finding of objective seriousness was not open to the judge, as he had assessed the objective seriousness of A’s offence as below mid-range and A had a greater role in the offence.

68. The Crown submits that although the judge told the parties during the sentencing proceedings his “current” view before hearing the Crown’s oral submissions was that the objective seriousness of count 2 fell “only just below” the mid-range, this was subject to review as his Honour heard submissions. The Crown contends that his Honour made it clear he had not formed a concluded view and gave the applicant ample opportunity to make further submissions.

69. In answer to Ground 4, the Crown argues that it was amply open to the judge to find that the objective seriousness of count 2 was mid-range and higher than the finding his Honour made for the equivalent offence of A of just below the mid-range as:

1. The applicant wanted to source 2kg of the drug;

2. He was annoyed when only 1kg was available and the other kilogram was wet;

3. He had his customer in the unit waiting for the supply, and each kilogram was worth $80,000;

4. Seventeen phone calls were made from the applicant to A while A was being arrested;

5. The only persons who had the combination to the safe were the applicant and A; and

6. The applicant was seen removing an object from the unit which looked like a safe after A had been arrested.

70. The Crown further argues that what A was doing in relation to count 2, he was doing on behalf of the applicant.

Consideration

71. In written submissions handed to the judge, both the Crown and the applicant submitted the objective seriousness of count 2 was below mid-range. The applicant had further submitted his offending should be characterised as “toward the lower end of the range”.

72. In the exchanges between the judge and counsel, the judge did say what he was thinking but at no stage did his Honour express a concluded view. His Honour qualified his thinking by expressions such as “my current view” and “up to this point”. His Honour further said:

“That’s my current view. I’m happy to hear submissions about this, that, you know, if you want to say anything further about it, I’m quite happy to hear it, but that’s what my current view is, but I’m going to re-read it all again, go through all the submissions and make up my mind by re-reading everything, to make sure that I specifically do not become infected with considering this, by what I considered for the others; and look at this specific role and his evidence, after I consider it.”

73. I am not persuaded that there was anything said or not said by the judge that would convey to the parties he had decided to make a finding that the objective seriousness of count 2 was below mid-range.

74. I would dismiss Ground 1 of the appeal.

75. Turning to Ground 4, it is well established that the assessment of the objective gravity of an offence is a discretionary judgment that is only reviewable by this Court in accordance with the principles of House v The King (“House”). [4] This Court has on many occasions emphasised that when sentencing for drug supply offences the focus is on what the offender actually did. [5]

    4. (1936) 55 CLR 499; [1936] HCA 40; 10 ALJ 22; 10 ALJR 202; 55 ALR 499; 9 ABC 117.

    5. Paxton v R [2011] NSWCCA 242; 219 A Crim R 104; Thomas v R [2019] NSWCCA 88 at [76].

76. The Crown’s submission (see [69] above) identifies the applicant’s participation in the offence. To those matters, I would add his Honour’s findings that the applicant was present when the purchase money was counted; he permitted his backpack to be used for the transport of the money and drugs. Furthermore, he was prepared to travel with A to the transaction.

77. When sentencing A, the judge had assessed A’s offending as being “just below mid-range”.

78. A’s involvement in the offence was detailed in A v R as follows:

“[72] The agreed facts disclosed that [A] had been identified at the centre of a criminal group that was supplying a range of prohibited drugs on a regular and systematic basis.

[73] Intercepted communications revealed that on 21 June 2016, [A] negotiated with C for the purchase of three kilograms of methylamphetamine for $80,000 per kilogram. C advised [A] that he could arrange to do half a kilogram at a time and do the full three kilograms supply over two days. Further intercepted communications between G and [A] revealed that the supply of two kilograms of the methylamphetamine was for a customer of G.

[74] On 22 June 2016, [A] continued to discuss the purchase of three kilograms of methylamphetamine with C. During these discussions, C informed [A] that the methylamphetamine would be available before 6pm on that day.

[75] Further negotiations continued throughout the day. Later in the evening, [A] and B attended the Parramatta region whereby a supply of “slightly more” (the 1,104.3 grams) of methylamphetamine occurred.

[76] [A] had further conversations with G about his estimated time of arrival and how much of the prohibited drug was to be supplied. It was during this journey that the vehicle was intercepted by police and the methylamphetamine was found in the backpack. [A] and B were occupying the front driver and passenger seats of the vehicle.”

79. In assessing the objective seriousness of count 2, the judge said:

“[The applicant] in this case was in a high role with [A] in relation to that supply. He was involved to a significant degree and it is consistent with my findings in relation to [A] as to the extent of criminality that it should be assessed at mid-range.” (Emphasis added.)

80. In his sentencing remarks, his Honour did not provide any reasons for characterising the applicant’s participation in the offence as being more serious than A.

81. Curiously, although the judge had assessed the objective seriousness of the applicant’s offending in count 1 as being “below mid-range” which was the same as his Honour’s assessment of the objective gravity of A’s offending for that offence and had assessed the objective gravity of the applicant’s offending in count 2 as being more serious than that of A, his Honour said when considering parity:

“…I am of the view accepting to some degree the submissions that were made by [the applicant’s counsel] that the sentence for [the applicant] would not be equal to that of [A] and would be less, the reasons are that I am satisfied that [A] played a larger role in this case.”

82. Whilst the assessment of objective seriousness of an offence is quintessentially a matter for a sentencing judge and this Court is slow to intervene in the exercise of such a wide discretion,[6] it appears that his Honour overlooked his characterisation of the objective gravity of A’s offending.

    6. Mulato v R [2006] NSWCCA 282 at [37] and [46]; Lees v R [2019] NSWCCA 65 at [55].

83. It is inarguably correct that the applicant was a significant participant in the drug supply, but it was A who carried out the negotiations, obtained the prohibited drug and was arrested when delivering it to the applicant. Although the applicant was prepared to travel with A to the transaction, he was told by A to remain behind, a direction which the applicant accepted. In my view, it was not open to the judge to characterise the objective seriousness of the applicant’s offending as being more serious than that of A and House error has been established. [7]

    7. (1936) 55 CLR 499 at 505; [1936] HCA 40; 10 ALJ 22; 10 ALJR 202; 55 ALR 499; 9 ABC 117.

84. I would uphold this ground of appeal.

85. As specific error has been identified, it is this Court’s duty to re-sentence, “unless in the separate and independent exercise of its discretion it concludes that no different sentence should be passed”. [8] The applicant does not have to establish that the aggregate sentence imposed by the judge was manifestly excessive in order for this Court to exercise its discretion in his favour under
    s 6(3) of the Criminal Appeal Act 1912 (NSW).

    8. Kentwell v The Queen (2014) 252 CLR 601 at [35]; [2014] HCA 37; 88 ALJR 947; 313 ALR 451; 238 A Crim R 134.

Ground 2: The sentencing judge erred by failing to consider or failing to refer to the offender’s oral evidence in his judgment

86. Although it is unnecessary to decide the remaining grounds of appeal, I mention briefly the applicant’s complaint in Ground 2 that the judge erred by failing to consider or failing to refer to the applicant’s oral evidence in his sentencing remarks as all of the applicant’s evidence is to be taken into account on re-sentence.

87. It is true that the judge did not expressly refer to the applicant’s evidence and it would have been helpful if his Honour had done so. However, his Honour made positive findings about the applicant’s remorse, contrition, his intention to remain drug free and capacity to rehabilitate. A finding of special circumstances was made being the applicant’s need for re-education and treatment for his drug addiction.

88. Amongst the applicant’s complaints is that the judge did not refer to the applicant’s evidence of not receiving a direct financial benefit for his involvement in the supply of the prohibited drugs and his denial of removing the safe from the unit after A’s arrest.

89. I have found that the applicant’s evidence of limited financial benefit from his offending, that he had “no cut” and “was just assisting” to lack credibility. The applicant was A’s “trusted lieutenant” and was no stranger to drug dealing. He lived with A and had an active and important role in the commission of the offences on the first indictment. In particular, his evidence that he “brought down a bag that looked to be like a safe” was, in my view, untruthful.

Ground 3: The sentencing judge erred in his approach to parity in relation to the aggregate sentence imposed, particularly having regard to ‘A’ having been dealt with for an additional offence and their respective roles in the offences.

90. Ground 3 raises the question of parity with A’s sentence. The applicant’s complaint of marked disparity between his aggregate sentence and the applicant’s sentence focussed on what was submitted to be A’s “elevated role” and the inclusion in A’s aggregate sentence of two other serious offences.

91. The Crown contends that the applicant does not have a justifiable sense of grievance because of the significant differences between the applicant and A.

92. The differences referred to by the Crown in written submissions include:

1. A had several more charges, including matters on his Form 1 including a supply large commercial quantity of MDMA, and a separate charge of supplying a commercial quantity of MDMA;

2. A received an increased discount on appeal of 45%. Therefore, the nominal starting point for his aggregate head sentence was approximately 20 years 6 months and a nominal starting point for his aggregate non-parole period was approximately 14 years and 4 months, both considerably higher than the applicant’s aggregate sentence;

3. Unlike A, the applicant had a prior drug supply conviction and was on conditional liberty for that offence when he committed the present offences;

4. The applicant received a far more generous allowance for special circumstances than A; and

5. The applicant’s participation in a criminal group on the Form 1 was charged under s 93T(1A) which carries a 10 year maximum sentence whereas A’s participation in the same criminal group was charged under s 93T(1) which carries a 5 year maximum sentence.

93. Although it is unnecessary to decide this ground of appeal, the parity principle which is founded on the notion of equal justice is an important consideration when exercising the sentencing discretion afresh.

94. The aggregate sentence imposed on A will be of little assistance as there is a divergence in the offences charged against the applicant and A. The applicant and A share two equivalent offences being counts 1 and 2 on the first indictment. A was further charged with the supply of not less than the commercial quantity of 278g of MDMA contrary to s 25(2) of the DMT Act and participation of a criminal group contrary to s 93T of the Crimes Act.

95. The indicative sentences for the equivalent offences may provide some guidance but that guidance will be limited by the Form 1 matters taken into account, the differences in the sentencing discounts and the co-offender’s subjective cases.

96. When A was re-sentenced in this Court, his indicative sentences were discounted by 45% whereas the applicant will be allowed a 20% discount. A’s indicative sentence for the equivalent of count 1 (A – Seq 2) was 4 years 7 months. [9]

    9. A v R [2020] at [144].

93. The indicative sentence for the equivalent of count 2 (including Form 1 matters) (A - Seq 1) was 8 years 3 months with a non-parole period of 5 years 9 months. In indicating that sentence, this Court took into account the following charges that had been placed on a Form 1:

1. Supply of 50 MDMA capsules contrary to s 25(1) of the DMT Act;

2. Supply of 4g of MDMA contrary to s 25(1) of the DMT Act; and

3. Supply of not less than the commercial quantity of a prohibited drug, namely 280g of MDMA contrary to s 25(2) of the DMT Act.

98. On the other hand, when sentencing the applicant for count 2, the judge was asked to take into account a charge of knowingly participate in a criminal group contrary to s 93T(1A) of the Crimes Act.

99. The applicant did not challenge the assessment of the objective seriousness of count 1 being “below mid-range”. This was the same assessment that the judge had made for A’s equivalent offence which this Court confirmed on re-sentence. [10]

    10. A v R [2020] at [141].

100. I would assess the objective seriousness of count 2 as just below mid-range. This is the same assessment that the judge made for A’s equivalent offence which was also confirmed on re-sentence. [11]

     11. A v R [2020] at [141].

101. Other than the sentencing discounts, the principal differences in the subjective cases of the applicant and A are that A had no prior criminal history whereas the applicant has a prior conviction for drug supply[12] and was on bail at the time of the offending. Surprisingly, the judge appears to have overlooked this factor of aggravation as it was not mentioned in his Honour’s sentencing remarks.

     12. See [28] above.

102. The applicant’s indicative sentence for count 1 was 4 years imprisonment. The indicative sentence for count 2 including the matter on the Form 1 was 9 years 6 months with a non-parole period of 6 years.

103. The Table below compares the undiscounted starting points of the equivalent indicative sentences of the applicant and A.

The applicant	A	The applicant (indicative sentence before 20% discount in round figures)	A (indicative sentence before 45% discount in round figures)
Count 1	Seq 2	5 years	8 years 4 months
Count 2	Seq 1	11 years 10 months [13]	15 years [14]

13. Includes Form 1 matters.

14. Includes Form 1 matters.

104. In my opinion, notwithstanding the judge’s error in the assessment of the objective seriousness of count 2, the material differences in the respective cases of the applicant and A (including the Form 1 matters) justify the disparity between the undiscounted starting points in these indicative sentences. [15]

     15. Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49; 86 ALJR 36; 283 ALR 1; 214 A Crim R 152.

Re-sentence?

105. The maximum penalty for count 1 is life imprisonment. The maximum penalty for count 2 is life imprisonment with a non-parole period of 15 years imprisonment. These legislative guideposts are to be borne in mind when considering the appropriate sentence, having regard to the objective seriousness of the offences and the applicant’s subjective circumstances. When considering count 2, the weight of the methylamphetamine is 1.104kg.

106. Two affidavits of a solicitor from the Office of the Director of Public Prosecutions were admitted on re-sentence. The affidavits disclose that the applicant has had two infringements since he was sentenced. The infringement on 22 December 2020 was drug related.

107. This infringement adds strength to the judge’s assessment that the applicant could pursue rehabilitation “if he desired to do so”. Put another way, his prospects of rehabilitation are dependent upon his determination to overcome his drug addiction.

108. There was no challenge by either the Crown or the applicant to the findings made by the judge as to the applicant’s subjective case. Furthermore, there is no challenge to the 20% discount for the pleas of guilty. Accordingly, I propose to adopt these findings.

109. In the exercise of my sentencing discretion, I agree with the judge’s assessment of the objective seriousness of count 1 on the first indictment. I assess the objective seriousness of count 2 on the first indictment as being just below mid-range.

110. In addition to overlooking the aggravating factor of the applicant being on bail for the drug supply offence committed on 5 December 2015 at the time of the offending, his Honour appears not to have considered specific and general deterrence as nothing was said about these considerations in his sentencing remarks.

111. In view of the applicant’s prior drug supply offence, I give weight to specific deterrence. I also recognise the importance of general deterrence in sentencing for offences such as those committed by the applicant. This Court has emphasised on many occasions that the need for general deterrence is high in cases involving dealing and supplying prohibited drugs. [16]

     16. R v Ha [2004] NSWCCA 386 at [20]; Scott v R [2010] NSWCCA 103; Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284; 270 A Crim R 412.

112. In the exercise of my own independent sentencing discretion, I have concluded that the aggregate sentence of 11 years’ imprisonment with a non-parole period of 6 years and 6 months is an appropriate reflection on the totality of the criminality in the applicant’s offending and his subjective circumstances. I have concluded that no different sentence should be passed. The applicant did not appeal against the sentence for the offence on the second indictment.

113. I propose the following orders:

1. Leave to appeal granted.

2. Appeal dismissed.

114. DAVIES J: I agree with Price J.

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Endnotes

Decision last updated: 26 March 2021