Garcia v The The King

[2022] NSWCCA 172

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Garcia v R [2022] NSWCCA 172

Hearing dates:

14 March 2022

Date of orders:

12 October 2022

Decision date:

12 October 2022

Before:

Macfarlan JA at [1];
Walton J at [2];
Rothman J at [147]

Decision:

(1) Grant leave to appeal.

(2) Allow the appeal with respect to Grounds 2, 3 and 5.

(3) Quash the sentence imposed on the applicant in the District Court on 18 September 2020 and in lieu therefore, sentence the applicant to terms of imprisonment as follows:

(a) For the Offence in contravention of s 400.9(1) of the Criminal Code, a term of imprisonment of 7 months commencing 18 May 2015.

(b) For the Offence in contravention of s 302.3(1) of the Criminal Code, a term of imprisonment of 7 years 6 months commencing 18 July 2015.

(c) For the Offence in contravention of s 400.3(2), a term of imprisonment of 8 years commencing 18 February 2016.

(d) The single non-parole period for the Commonwealth Offences in orders (a), (b) and (c) of 5 years 10 months commencing 18 May 2015 and expiring 17 March 2021.

(e) An aggregate sentence of 12 years imprisonment to commence on 18 February 2018 and expiring on 17 February 2030 for the First State Supply Offence and the Second State Supply offence. The aggregate non-parole period for those offences is 7 years 6 months imprisonment to commence on 18 February 2018 and expiring on 17 August 2025.

(f) The indicative sentence for the First State Supply Offence is 5 years with a non-parole period of 3 years 3 months. The indicative sentence for the Second State Supply Offence is 10 years with a non-parole period of 6 years 6 months.

(g) An overall sentence to be imposed is 14 years and 9 months with a non-parole period of 10 years and 3 months commencing on 18 May 2015. The earliest release date will be 17 August 2025. The sentence will expire on 17 February 2030.

Catchwords:

CRIMINAL LAW – application for leave to appeal against sentence – whether the sentencing judge erred in identifying the elements of the offence – Criminal Code Act 1995 (Cth) s 400.3 – whether sentencing judge erred in making a finding of guilt under s 400.3(2)(b)(i) – De Simoni principle - whether the sentencing judge erred in assessing the discount to be afforded for the value of guilty plea – whether the sentence for the Money Laundering Offence was manifestly excessive – whether error in overall effective non-parole period – parity – leave to appeal granted - appeal allowed – re-sentence

Legislation Cited:

Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth), s 142

Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A

Crimes Act 1900 (NSW), s 35

Crimes Act 1914 (Cth), ss 9, 19AB, 19AJ, 20, 35

Criminal Code 1995 (Cth), ss 5.4, 302.3(1), s 400.3(2)

Drug Misuse and Trafficking Act 1985 (NSW), s 25

Cases Cited:

Baden v R [2020] NSWCCA 23

Bae v R [2020] NSWCCA 35

Burrows v R [2017] NSWCCA 45

Dunn v R [2018] NSWCCA 108

El Masri v R [2022] NSWCCA 27

Fenech v R [2018] NSWCCA 160

Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49

Hili v The Queen; Jones v The Queen (2010) 242 CLR 520

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

Ilic v R (2020) 103 NSWLR 430; [2020] NSWCCA 300

Kaurasi v R [2020] NSWCCA 253

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37

Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255

Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46

Majeed v R [2013] VSCA 40

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

McCullough v R [2009] NSWCCA 94; (2009) 194 A Crim R 439

Newman (a pseudonym) v R [2019] NSWCCA 157

Nguyen v R [2012] NSWCCA 152

Nguyen v R [2015] NSWCCA 209

Nykolyn v R [2021] NSWCCA 312

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

Paredes v R [2012] NSWCCA 4

Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26

R v Borkowski (2019) 195 A Crim R 1; [2009] NSWCCA 102

R v Cramp [2004] NSWCCA 264

R v De Leew [2015] NSWCCA 183

R v Dib [2003] NSWCCA 117

R v Donald [2013] NSWCCA 238

R v Glynatsis (2013) 230 A Crim R 99; [2013] NSWCCA 131

R v Huang, R v Siu [2017] NSWCCA 259

R v Viana [2008] NSWCCA 88

Sheu v R [2018] NSWCCA 86

R v De Simoni (1981) 147 CLR 383; [1981] HCA 31

Vale v R (2016) 77 MVR 194; [2016] NSWCCA 154

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

Category:

Principal judgment

Parties:

Jose Maria Garcia (also known as Pepe Garcia) (Applicant)
The King (Commonwealth) (First Respondent)
The King (NSW) (Second Respondent)
Commissioner of Police, NSW Police Force (Third Respondent)

Representation:

Counsel:
L Brasch with M Voleynik (Applicant)
J McGuire with B Anniwell (First Respondent)
M Gleeson (Second Respondent)
L Chapman (Third Respondent)

Solicitors:
Velazquez Legal (Applicant)
Director of Public Prosecutions (Cth) (First Respondent)
Director of Public Prosecutions (NSW) (Second Respondent)
NSW Police Force (Third Respondent)

File Number(s):

2012/00368049; 2015/00148096; 2017/00178250; 2017/00297422

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

18 September 2020

Before:

Arnott SC DCJ

File Number(s):

2012/00368049; 2015/00148096; 2017/00178250; 2017/00297422

HEADNOTE

[This headnote does not form part of the judgment.]

The applicant, Jose Maria Garcia, pleaded guilty to and was sentenced by Arnott SC DCJ of the District Court for three Commonwealth and two State offences.

The overall sentence imposed was 15 years and 6 months with a non-parole period of 11 years commencing on 18 May 2015.

For the Commonwealth Offences, a single non-parole period was imposed of 6 years and 8 months. The sentences with respect to each of them were as follows:

1. For the money laundering offence (s 400.3(2) of the Criminal Code (Cth)), a term of imprisonment of 9 years;

2. For the drug trafficking offence (s 302.3(1) of the Criminal Code), a term of imprisonment of 7 years and 6 months;

3. For the breach of a conditional release order offence (s 400.9(1) of the Criminal Code), a term of imprisonment of 7 months.

For the State Offences, the sentencing judge imposed an aggregate sentence of 12 years with an indicative non-parole period of 7 years and 6 months. The sentences with respect to each of them were as follows:

4. For the supply of a commercial quantity of a prohibited drug offence (s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW), an indicative sentence of 5 years with a non-parole period of 3 years and 3 months;

5. For the supply of a large commercial quantity of a prohibited drug (s 25(2) of the Drug Misuse and Trafficking Act, an indicative sentence of 10 years with a non-parole period of 6 years and 6 months.

The applicant’s grounds of appeal were as follows:

6. Ground 1: “The learned sentencing judge erred in his identification of the elements of the [Money Laundering Offence] to which the applicant had pleaded guilty”.

7. Ground 2: “The learned sentencing judge erred in sentencing the applicant on the basis the money was both the proceeds of “drug or other serious criminal activity” and the applicant was “reckless to the source of the money being from criminal activity.”

8. Ground 3: “The learned sentencing judge erred in assessing the discount to be afforded to the applicant for the value of his plea of guilty to the [Money Laundering Offence].”

9. Ground 4: “The sentence imposed with respect to the [Money Laundering Offence] is manifestly excessive”.

10. Ground 5: “His Honour erred in imposing an overall effective non-parole period which was approximately 71% of the overall effective term of imprisonment.”

11. Ground 6: “The Applicant has a justifiable sense of grievance as a result of the sentences imposed on the co-offender.”

The Court (Walton J; Macfarlan JA and Rothman J agreeing) granted leave to appeal, upheld the appeal and resentenced the applicant:

Ground 1

1. The sentencing judge erred in his Honour’s Reasons for Sentence by substituting a fault element that the applicant was reckless as to the fact that the money “would” become an instrument of crime: at [56].

2. The fault element of s 400.3(2)(c) of the Criminal Code is that a person is reckless to the fact that the money or property is proceeds of crime or there is a risk that it will become an instrument of crime: at [63].

3. Whilst the sentencing judge made an error, his Honour did sentence the applicant for being reckless as to a circumstance that the money would become an instrument of crime and thus the error did not affect the sentencing discretion: at [67].

Ground 2

4. The finding of the sentencing judge was consistent with an offence contrary to s 400.3(2)(b)(i) of the Criminal Code. The applicant, however, was charged with an offence contrary to s 400.3(2)(b)(ii) of the Criminal Code.

5. Although the maximum penalty is the same, the two offences criminalise distinct criminal activity. An offender cannot be punished for one of these offences when charged with the other. Ground 2 is established: at [84].

McCullough v The Queen (2009) 194 A Crim R 439; [2009] NSWCCA 94, applied.

R v Viana [2008] NSWCCA 188, referred to and distinguished.

Nykolyn v R [2021] NSWCCA 312; R v De Simoni (1981) 147 CLR 383, referred to.

Ground 3

6. The sentencing judge misstated the date on which the charge for the Money Laundering Offence was laid. This constituted an error and affected the sentencing discretion: at [100].

Bae v R [2020] NSWCCA 35; R v Dib [2003] NSWCCA 117 Baden v R [2020] NSWCCA 23; R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102, referred to

Ground 4

7. It was unnecessary to determine this ground of appeal in light of the other errors found: at [103].

Ground 5

8. There was plainly a misstatement by the sentencing judge of the overall additional term that had the effect of substantially increasing the ratio with respect to the overall total term as compared with the aggregate or overall terms of the State and Commonwealth Offences, respectively: at [115].

Bentley v R; Davies v R; Thomas v R; Tilley v R [2021] NSWCCA 18; Spark v R [2012] NSWCCA 140, referred to.

Ground 6

9. Whilst the applicant has established error by the sentencing judge in the miscalculation of the co-offender’s methylamphetamine quantity, this did not result in an unjustifiable disparity in the penalties imposed on the co-offenders: at [129].

Burrows v R [2017] NSWCCA 45; El Masri v R [2022] NSWCCA 27; Fenech v R [2018] NSWCCA 160; Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49; Nguyen v R [2015] NSWCCA 209; Wong v The Queen (2001) 207 CLR 584; [2011] HCA 64, referred to.

Resentencing

10. The applicant was resentenced as indicated at [146] of the judgment. The overall sentence imposed was 14 years and 9 months with a non-parole period of 10 years and 3 months commencing on 18 May 2015. The applicant’s earliest release date will be 17 August 2025 and the sentence will expire on 17 February 2030.

Judgment

1. MACFARLAN JA: I agree with Walton J.

2. WALTON J: The applicant, Jose Maria Garcia (who is also known as Pepe Garcia), was sentenced, upon his pleas of guilty, in the District Court of New South Wales by Arnott SC DCJ (“the sentencing judge”) on 18 September 2020 with respect to three Commonwealth and two State offences.

3. The offences for which the applicant was sentenced under laws of the Commonwealth were (“the Commonwealth Offences”):

1. Deal with money, reckless as to the fact that there was a risk it would become an instrument of crime, in relation to an offence that was a Commonwealth indictable offence and at the time of the dealing the value of the money was $1,000,000 or more in contravention of s 400.3(2) of the Criminal Code 1995 (Cth) (“the Criminal Code”) (“the Money Laundering Offence”);

2. Trafficking a marketable quantity of a controlled drug, namely 451.1 grams (pure) of methamphetamine, in contravention of s 302.3(1) of the Criminal Code (“the Trafficking Offence”); and

3. Failure, without reasonable cause or excuse, to comply with the condition made under s 20(1)(b) of the Crimes Act 1914 (Cth) (“the Crimes Act”) contrary to s 400.9(1) of the Criminal Code (“the Breach Offence”).

4. The applicant asked the sentencing Court to take into account a further Commonwealth Offence on a schedule, pursuant to s 16BA of the Crimes Act which he had committed and pleaded guilty to, namely, that on two or more occasions he associated with two individuals knowing that they were engaging in conduct constituting an offence (a conspiracy to import a commercial quantity of border controlled drugs the State Offences (collectively), being 28 kilograms (gross) of heroin) and the association intentionally facilitated their engagement in that conduct (s 390.3(1) of the Criminal Code) (“the Association Offence”).

5. The state offences (“the State Supply Offences”) for which the applicant was sentenced were:

1. Supply not less than the commercial quantity of a prohibited drug (cocaine) contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (“the First State Supply Offence”).

2. Supply not less than the large commercial quantity of a prohibited drug (methylamphetamine) contrary to s 25(2) of the Drug Misuse and Trafficking Act (“the Second State Supply Offence”).

6. With respect to the Commonwealth Offences, the sentences handed down by the sentencing judge were as follows:

1. For the Money Laundering Offence, a term of imprisonment for a period of 9 years commencing on 18 April 2016;

2. For the Trafficking Offence, a term of imprisonment of 7 years and 6 months commencing on 18 September 2016;

3. For the Breach Offence, a term of imprisonment for a period of 7 months commencing on 18 May 2015.

7. For the Commonwealth Offences, a single non-parole period was imposed of 6 years and 8 months.

8. For the State Offences, the sentencing judge imposed, pursuant to s 53A of the Crimes (Sentencing Procedure) Act1999 (NSW), an aggregate sentence of 12 years with an indication of a non-parole period of 7 years and 6 months.

9. The overall sentence imposed was 15 years and 6 months with a non-parole period of 11 years to commence on 18 May 2015. The applicant’s earliest release date is 17 May 2026. The sentences imposed for the State Offences will expire on 17 November 2030.

10. A table provided with the written submissions of counsel for the applicant, helpfully sets out (in schedule form) the sentences imposed together with other relevant information as follows:

Offence	Max (years)	Discount	Sentence or indicative Sentence / NPP	Commencement Date	Aggregate
Breach recog re s 400.9(1)	-	-	7 months	18 May 2015	Single non-parole period of 6 years and 8 months
Section 302.3(1)	25 y	25%	7 years 6 months	18 September 2015
Section 400.3(2)	12 y	10%	9 years	18 April 2016
Section 25(2) (commercial quantity cocaine)	20 y (SNPP 10) y	25%	(ind) 5 years/ 3 years 3 months	18 November 2018	Aggregate sentence of 12 years / 7.5 years
Section 25(2) (large commercial quantity of methylamphetamine)	Life SNPP 15 y)	15%	(ind) 10 years/ 6 years 6 months

11. The applicant seeks leave to appeal the sentences handed down by the sentencing judge.

12. The applicant’s grounds of appeal are as follows:

1. Ground 1: “The learned sentencing judge erred in his identification of the elements of the [Money Laundering Offence] to which the applicant had pleaded guilty”.

2. Ground 2: “The learned sentencing judge erred in sentencing the applicant on the basis the money was both the proceeds of “drug or other serious criminal activity” and the applicant was “reckless to the source of the money being from criminal activity.”

3. Ground 3: “The learned sentencing judge erred in assessing the discount to be afforded to the applicant for the value of his plea of guilty to the [Money Laundering Offence].”

4. Ground 4: “The sentence imposed with respect to the [Money Laundering Offence] is manifestly excessive”.

5. Ground 5: “His Honour erred in imposing an overall effective non-parole period which was approximately 71% of the overall effective term of imprisonment.”

6. Ground 6: “The Applicant has a justifiable sense of grievance as a result of the sentences imposed on the co-offender.”

13. It is useful at the outset of this judgment, to summarise the Commonwealth Crown’s position with the respect to those grounds, as follows:

1. The Commonwealth Crown conceded error in relation to Grounds 1, 2 and 5 but submitted that the error did not affect the sentencing discretion and no consideration of re-sentencing was required.

2. The Commonwealth Crown conceded error in relation to Ground 3 but submitted that the discount allowed for the utilitarian value of the applicant’s guilty plea was otherwise within the appropriate discretionary range.

3. Ground 4 had not been made out because the sentence imposed was not manifestly excessive.

14. The NSW Director of Prosecutions (“the State Crown”) submitted:

1. Ground 5 should be dismissed.

2. As to Ground 6 and the Second State Supply Offence, error was conceded in that the sentencing judge had remarked that the co-offender was to be sentenced for 2 kilograms of methylamphetamine whereas the total quantity of the co-offender’s methylamphetamine supplies was, in fact, equal to the quantity of the applicant’s Second State Supply Offence. However, the State Crown submitted that the error did not result in injustice or a disparity in the penalties imposed on the co-offender. Thus, the Crown submitted that there is no justifiable sense of grievance, objectively determined, and Ground 6 should be rejected.

REASONS FOR SENTENCE

15. At the outset of the Reasons for Sentence the sentencing judge described the Money Laundering Offence as follows:

“[A] count on an indictment charging the offender with an offence of dealing with money to the value of $1 million or more, reckless to the fact that it would become an instrument of crime, contrary to s 400.3(2) of [the Criminal Code].”

16. His Honour expanded upon this description at page 4 of the Reasons for Sentence employing a similar description of the offence but further observing:

“The offence that the money would, at some time in the future, become an instrument of crime was to avoid mandatory reporting requirements contrary to s 142 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth).”

17. These aspects of the Reasons for Sentence became central to Ground 1 of the appeal.

18. His Honour then described other offences before turning to the factual background for the various offences and their objective seriousness which is set out at pages 3 - 24 of the Reasons for Sentence. The factual summary was largely based upon the two Statements of Agreed facts, tendered by the State and Commonwealth Crown on sentence, although there were some factual disputes which arose in the proceedings on sentence.

The Breach Offence

19. As to the Breach Offence, his Honour found that in admitting the Trafficking Offence and the State Supply Offences, the applicant was in breach of the recognizance which had been entered for the offence of dealing with money suspected of being the proceeds of crime to the value of $100,000. That offence had been committed by the applicant in 2012.

The Money Laundering Offence

20. His Honour introduced the Money Laundering Offence with the same description of the offence charged against the applicant as has been described above.

21. As to the Money Laundering Offence, I accept the applicant’s submissions summarising his Honour’s factual findings:

1. The offence related to the applicant’s conduct between 26 May 2014 and 5 December 2014 and involved handovers of cash in amounts between $110,000 to $500,000 on 16 occasions to a total of $5,889,800.

2. The applicant was directly involved in 12 of the handovers and organised for another person to drop off the money on the remaining four occasions.

3. In total $3.3m went to Individual 1, $1,789,900 went to Individual 2, and $799,900 was handed over to two undercover operatives.

1. On 19 May 2015, after his arrest, police searched the applicant’s garage and located a further $1.4m in cash. This brought the total to $7,289,900.

2. The handovers occurred in public places such as shopping centres and car parks. A verification system was used whereby the applicant and the money remitters were given a bank note serial number which would be quoted back to the applicant which then authorised the applicant to hand over the money.

3. In one transaction with a UCO on 14 October the applicant stated that he had been quiet and only did it now and then to earn some “pocket money”.

22. There was a factual dispute as to whether the source of the money was the proceeds of crime or derived legitimately but was, for example, being laundered to avoid tax obligations. The sentencing judge found that, the money was from drug and other serious criminal activity. However, his Honour considered that it made little difference in assessing the objective seriousness of the offence whether the money was “in fact from legitimate or illegitimate activity.”

23. The sentencing judge found that a number of factors were significant in assessing the seriousness of the Money Laundering Offence, including:

1. The amount of money involved was, $7,289,880 which is significant. It involved 16 transfers of amounts approaching $5.9 million with a further $1.4 million in cash found in the applicant’s garage in May 2015. The total amount was over 7 times the amount specified in the offence charged.

2. The actions of the offender in effecting the transfers were repeated and not isolated.

3. His Honour repeated the earlier observation that the applicant had transferred money to individuals who were collectors on the money laundering side of the enterprise, “reckless that it would be dealt with in a manner which would avoid reporting requirements.” It was observed that the applicant played an essential role as a person who facilitated the movement of money from one side of the criminal enterprise to the other and was in a position of authority over other individuals involved in that enterprise. He had autonomy as to which laundering individual he chose to use and conducted the first meeting with the money laundering collector to check the security of the person he was dealing with and the arrangement.

4. The offender was reckless to the source of the money being from criminal activity.

5. His Honour found the applicant “took a substantial and unjustifiable risk that the money would become an instrument of crime” referring to Nguyen v R [2012] NSWCCA 152.

6. The applicant was motivated by financial greed, although the amount of money that he was paid is not known.

7. His Honour found the offence fell in the middle range of seriousness of offences of that type.

The Association Offence

24. As to the Criminal Association Offence, the sentencing judge found that between 14 August 2014 and 4 November 2014, the applicant had associated with two persons who were part of a conspiracy to import 25 kilograms of heroin into Australia from Fiji.

25. His Honour found that, whilst the Association Offence was a serious one, in all the circumstances, that offence would only marginally increase the sentence to be imposed for the Money Laundering Offence.

The Trafficking Offence

26. As to the seriousness of the Trafficking Offence, the sentencing judge found:

1. The offender was a principal organiser of an ongoing, profit-focused, mid-scale drug trafficking enterprise involved in transporting methamphetamine from Sydney to Perth. He was a wholesale seller of methamphetamine. He was trusted to act as a courier for delivery and sale. He recruited a person to courier the drugs to Perth for a fee and was directing that person as a subordinate.

2. The total weight of methamphetamine was 561.8 grams with a purity of 80.3%. The pure weight was 1.8 times a marketable quantity which is 250 grams. The street value of the methamphetamine was $305,455 and $1,425,460 depending on how it was cut and sold, although the applicant did not personally stand to profit from these amounts.

3. Care needed to be taken to sentence the applicant only with respect to the offence to which he had pleaded guilty of trafficking 451.1 grams of methamphetamine.

4. There was a high degree of pre-meditation and planning.

5. The seriousness of the offence committed by the applicant was “clearly high”.

6. A very substantial role for general deterrence was evident. Personal deterrence was also a relevant consideration, particularly given that the offence was commercially motivated.

State Supply Offences

27. The applicant’s description of his Honour’s findings as to the State Supply Offences is apposite.

28. Towards the end of 2014 and early in 2015 the applicant met the co-offender on a number of occasions. During these meetings various numbers were used and there was a dispute as to whether it could be established beyond reasonable doubt that these numbers were indicative of an attempt on the part of the applicant to be supplied with 1kg of methylamphetamine.

29. On 28 April 2015, the applicant met the co-offender in Camperdown and was handed a black briefcase containing methylamphetamine (the amount of which was in dispute).

30. On 29 April 2015, the applicant met the co-offender and handed him $30,000. The applicant noted the drug was of poor quality but said he would assess the quality of the remainder later. The two had a discussion as to the ‘market’ in Sydney.

31. On 3 May 2015 they met again, the applicant noting that the quality of the drug was good. There was a discussion that the ‘market’ was saying ‘105’, which was alleged to be a reference to $105,000 for the price of 1 kilogram. The applicant also stated that “the last one” was 20 grams under. The applicant then paid the co-offender $70,000 (which was said to take into account the sum of $2,000 for the missing 20 grams).

32. The co-offender contacted his suppliers in Hong Kong and told them “two units … for the time being”. On 18 May 2015 the co-offender handed the applicant a backpack. As they departed, the applicant was arrested.

33. Police discovered 1,967.40 grams of methylamphetamine in the backpack. Testing established the purity as 78%.

34. When police searched the applicant’s residence, they found a number of phones including a blackberry phone and the key to a vehicle. When police located and searched the vehicle they found 558 grams of cocaine in small packages in a Puma water bottle, and a further 330.8 grams of methylamphetamine.

35. It was accepted the 330.8 grams located in the car was from what the applicant was given on 28 April 2015. What was in dispute was whether the applicant was given a kilogram of methylamphetamine on that date. The sentencing judge, principally on the basis of the numbers discussed, found that the applicant had been supplied with 980 grams (1 kilogram minus the missing 20 grams) on 28 April 2018 and not 350 grams as counsel for the applicant had submitted.

36. This finding brought the total methylamphetamine the subject of the Second State Supply Offence to 2,947.40 grams.

37. The 558 g of cocaine located in the vehicle was the subject of the First State Supply Offence.

38. The sentencing judge then turned to consider to objective seriousness of the State Supply Offences.

39. As to the First State Supply Offence, the sentencing judge found that the objective seriousness fell in “a little below the middle of the range for offences of this type” based upon the following considerations:

1. The amount of drug involved was 558 grams of cocaine which is twice the commercial quantity for the offence. His Honour stated that the quantity involved was not necessarily determinative of the level of criminality.

2. The applicant played an essential and significant role as part of a wholesale drug syndicate of communicating and meeting directly with the co-offender who, himself, was dealing with an up-line supply in Hong Kong. He discussed price and quantity with the co-offender as well as taking delivery of drugs from the co-offender and paying him for them. His Honour found that he had a role in transporting the drugs because cocaine was found packaged in puma brand drink bottles in a bag in a Holden utility in the applicant’s garage. However, his Honour did not find the applicant was a principal to the syndicate even though he had a high degree of responsibility and authority.

3. The applicant’s involvement was for profit.

40. As to the Second Supply Offence, his Honour found the objective seriousness of the offence fell well within the middle of the range of seriousness for offences of that type, for the following reasons:

1. The amount of drug involved was 2,947.40 grams of methylamphetamine which is nearly three times the large commercial quantity of 1 kilogram. The sentencing judge again acknowledged this was not a determinative factor.

2. The sentencing judge again found that the applicant played an essential and significant role as part of a wholesale drug syndicate of communicating and meeting directly with the co-offender. His findings in this respect were similar to the First State Supply Offence although he had regard to a conversation between the applicant and the co-offender of 3 May 2015 which evidenced a high degree of responsibility and authority held by the applicant. He had regard to similar factors as to the First State Supply Offence in finding that the applicant had a role in transporting the drugs.

3. The applicant’s involvement was for profit.

41. His Honour mentioned that both specific and general deterrence were important considerations in the matter.

Subjective Features

42. With respect to the applicant’s subjective circumstances, his Honour had regard to the applicant’s age; previous conviction for a money laundering offence; demonstration of remorse and contrition; model behaviour and challenging experiences and isolation in custody; reasonable prospects of rehabilitation and other personal circumstances.

Sentencing for the Money Laundering Offence

43. In sentencing the applicant for the Money Laundering Offence, the sentencing judge had regard to the utilitarian value of the plea entered by the applicant as well as willingness to facilitate the course of justice. He allowed a 10% discount to the sentence that would have otherwise been imposed having regard to these factors.

44. The sentencing judge also took into account the Association Offence. His Honour also had regard to parity considerations.

Sentencing for the Trafficking Offence

45. As to the Trafficking Offence, his Honour allowed a 25% discount for an early plea of guilty. He had regard to parity considerations with a co-offender.

Sentencing for the State Supply Offences

46. With respect to the Second State Supply Offence, the sentencing judge indicated that he was charged with the offence on 18 May 2015 and at an early stage, in mid-2016, the applicant indicated he would plead guilty to an amount of a little under two kilograms. Two years later, in May 2018, he indicated that he would plead guilty to an additional 330.8 grams which was not accepted by the Crown. In December 2019 there was a plea of guilty to the charge defence although there was a dispute as to the facts. The sentencing judge allowed a discount of 15% for the plea with respect to that charge.

47. With respect to the Second State Supply Offence, his Honour also had regard to parity considerations regarding the co-offender. His Honour dealt with the question of parity with respect to the Money Laundering Offence at some length.

48. In other considerations for the State Supply Offences, his Honour found special circumstances due to the more onerous nature of the applicant’s imprisonment resulting from the impact of COVID-19 and the level of the accumulation of sentences to be applied.

49. His Honour also had regard to the principles of totality. He indicated that the first sentence he will impose will be for the Breach Offence which will operate from 18 May 2015. He observed that the Commonwealth and State offences involve separate crimes and a measure of “accumulation should apply between each of these offences”.

CONSIDERATION

Ground 1 – The learned sentencing judge erred in his identification of the elements of the [Money Laundering Offence] to which the applicant had pleaded guilty

50. Section 400.3(2) of the Criminal Code identifies “Tier 2 offences” for money laundering in circumstances where the money or property is worth $1,000,000 or more. The provision (as it was at the relevant time) is produced below:

“(2) A person commits an offence if:

(a) the person deals with money or other property; and

(b) either:

(i) the money or property is proceeds of crime; or

(ii) there is a risk that the money or property will become an instrument of crime; and

(c) the person is reckless as to the fact that the money or property is proceeds of crime or the fact that there is a risk that it will become an instrument of crime (as the case requires); and

(d) at the time of the dealing, the value of the money and other property is $1,000,000 or more.

Penalty: Imprisonment for 12 years. or 720 penalty units, or both.”

51. I accept the submission for the Commonwealth Crown that s 400.3(2) of the Criminal Code identifies the offences that are characterised by different circumstances and differing corresponding fault elements as follows:

1. The circumstances:

1. The money or property is proceeds of crime (s 400.3(2)(b)(i)); or

2. There is a risk that that money or property will become an instrument of crime (s 400.3(2)(b)(ii)); and

2. The fault element of the offences is particularised by one of two alternatives (see “(as the case requires)” in s 400.3(2)(c)) in which the person is reckless to the fact that:

1. The money or property is proceeds of crime (s 400.3(2)(c)); or

2. There is a risk that it will become an instrument of crime (s 400.3(2)(c)).

52. Recklessness is defined under s 5.4 of the Criminal Code in the following manner:

“(1) A person is reckless with respect to a circumstance if:

(a) he or she is aware of a substantial risk that the circumstance exists or will exist; and

(b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

(2) A person is reckless with respect to a result if:

(a) he or she is aware of a substantial risk that the result will occur; and

(b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

(3) The question whether taking a risk is unjustifiable is one of fact.

(4) If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness will satisfy that fault element.”

53. By that definition, a person is reckless with respect to the circumstances if:

1. He or she is aware of a substantial risk that the circumstance exists or will exist; and

2. Having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

54. Irrespective of the circumstances or fault element, the maximum penalty for Tier 2 offences is imprisonment for 12 years or 720 penalty units, or both.

55. The particulars of the charge on the indictment for the Money Laundering Offence are set out at the outset of the sentencing judgment.

56. The fault element of the offence charged was that the applicant was reckless as to the fact there was a risk the money, the subject of the charge, would be used as an instrument of crime. It was common ground that his Honour erred in various parts of his Reasons for Sentence to which I have earlier drawn attention, by substituting a fault element that the applicant was reckless as to the fact that the money “would” become an instrument of crime. The Commonwealth Crown’s concession in that respect was correct.

57. As earlier mentioned, the remaining issue as to Ground 1 concerned the Commonwealth Crown’s contention that the error, so described, was not an error that required consideration of resentence. The applicant contended that the nature of the error would require the Court to resentence.

58. In summary, the applicant’s submissions in this respect as to Ground 1 were as follows:

1. A central feature of the sentencing process was the mental element of the offence.

2. The description of the offence by the sentencing judge involved greater criminality than the offence to which the applicant had pleaded. The offence involved a level of foresight (amounting to recklessness within s 5.4) of a risk the money would become an instrument of crime. It did not involve a foresight that it necessarily would become an instrument of crime (or was intended to become an instrument of crime (cf s 400.3(1)(b)(ii)).

3. It was not submitted that his Honour’s misstatement of the offence infringed the principle in R v De Simoni (1981) 147 CLR 383 (“De Simoni”) since an offender who was reckless to the fact that the money would become an instrument of crime would not be liable under the more serious s 400.3(1) offence. It was, however, submitted that in sentencing the applicant on the basis that he was reckless as to the fact that the money would become an instrument of crime, as opposed to the basis that he was reckless as to the fact there was a risk the money would be used in such a manner, involved sentencing the applicant on the basis of facts the applicant had not admitted and which had not been proved against him.

59. In summary, the Crown contended that the Court was not required in the circumstances to resentence the applicant arising out of the error established in Ground 1 because:

1. The legislature considered that Tier 2 offences were of equal seriousness whether the offender was reckless to the fact that the money was the proceeds of crime or there was a risk that the money would become an instrument of crime.

2. The applicant had conceded that there was no De Simoni error. This concession was given because an offender who was reckless to the fact that the money would become an instrument of crime would not be liable under the more serious s 400.3(1) offence. In this respect, the error cannot be said to have affected the sentencing discretion.

3. There were elements of the Reasons for Sentence that would indicate that the mischaracterisation of the fault element of the Money Laundering Offence made little difference to the sentencing judge’s determination of the objective seriousness of the offence.

4. In fact, the sentencing judge made an express reference to risk at page 9 of his Reasons for Sentence which assisted in establishing that the sentencing discretion did not miscarry.

60. In Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42] (“Kentwell”), French CJ, Hayne, Bell and Keane JJ spoke of errors that require consideration of resentence as being those that “vitiate[d] the exercise of the sentencing discretion”.

61. Basten JA (with whom Hamill and Lonergan JJ agreed) in Newman (a pseudonym) v R [2019] NSWCCA 157 at [11]–[13] spoke of the task of this Court as being assessment of the “capacity of the error” to influence the outcome and suggested that the concept of “materiality” is “best avoided” in this context.

62. Approaching the issue by way of a negative formulation, in Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255 at [66], Bathurst CJ spoke of errors that do not require consideration of resentence as being those that are not “connected with the sentencing process or did not affect the sentencing discretion.”

63. As mentioned, the fault element of s 400.3(2)(c) is that a person is reckless to the fact that the money or property is the proceeds of crime or there is a risk that it will become an instrument of crime. There is a relevant connection in that respect between the provisions of s 400.3(2)(b) and s 400.3(2)(c). This is not a case where a De Simoni error is applicable and thus attention must be focused on the degree of objective seriousness, namely, as to whether the offender was reckless to the fact that the money was the proceeds of crime or there was a risk that the money would become an instrument of crime.

60. Whilst his Honour made an error at the outset of his judgment, that he was sentencing the applicant on the basis that he was reckless as to the fact that the money would become an instrument of crime, as opposed to the basis on which he pleaded guilty to the offence, namely that the applicant was reckless as to the fact that there was a risk that the money would be used in such a manner, his Honour did sentence the applicant for being reckless as to a circumstance that involved the possibility of a future event occurring (that is, that the money would become an instrument of crime). The applicant was not being sentenced on the basis of a future event that had not yet occurred and might never occur.

61. I accept the submission of the Commonwealth Crown that there are aspects of his Honour’s judgment which would indicate that the mischaracterisation of the offence did not involve the sentencing judge sentencing the applicant for an offence of greater criminality than the offence to which the applicant had pleaded, for the following reasons:

1. At pages 7-8 of the Reasons for Sentence, even though his Honour found the money was from drug and other serious criminal activity, as earlier stated, his Honour stated that it made little difference in assessing the objective seriousness of the offence whether the money was in fact from legitimate or illegitimate activity. The Commonwealth Crown is correct to submit that the mischaracterisation of the fault element, therefore, made little difference to the sentencing judge’s determination of the objective seriousness of the offence.

2. At page 9 of the Reasons for Sentence, the sentencing judge stated, “I find the defendant took substantial and unjustifiable risk that the money would become an instrument of crime”. Thus, in that passage of the Reasons for Sentence the sentencing judge expressly referred to “risk” as well as describing the risk as substantial and justifiable. The risk that something could occur and that it is unjustifiable that the defendant should take that risk are essential components of the meaning of recklessness and, in my view, broadly compatible with the definition of recklessness in s 5.4 of the Criminal Code.

3. I accept the Commonwealth submission that the express reference to risk, a notion which contemplates something less than complete certainty or knowledge, assists in establishing that the sentencing discretion did not miscarry and that his Honour’s repeated references to recklessness indicated that the risk was inherently part of his Honours consideration in sentencing for the Money Laundering Offence.

66. In my view, the error established in Ground 1 does not vitiate the exercise of the sentencing discretion and resentencing was not required, per Kentwell.

67. In those circumstances, I find error in relation to Ground 1 but for the foregoing reasons, the error did not affect the sentencing discretion and no consideration of re-sentencing is required.

Ground 2 – The learned sentencing judge erred in sentencing the applicant on the basis the money was both the proceeds of “drug or other serious criminal activity” and the applicant was “reckless to the source of the money being from criminal activity”.

68. As previously mentioned, the sentencing judge noted in the Reasons for Sentence that there was a dispute on sentence as to the source of funds, being the money dealt with by the applicant, for the purposes of the s 400.3(2)(b)(ii) offence.

69. In the agreed Statement of Facts (at pp 220-234 of the Appeal Book) placed before the sentencing judge the following appeared:

“Dispute that the Offender was also reckless as to the money being the proceeds of crime

7. The Crown contends that the Court should make a further factual finding that:

a) the money the Offender dealt with was the proceeds of crime, being drug and/or financial crimes by unidentified individuals; and

b) the Offender was reckless as to the money being the proceeds of crime.

8. The Offender disputes that such a further factual finding should be made.

9. The Crown relies on the circumstances set out in the statement of facts and the other conduct for which the Offender has been, or is to be, sentenced.”

70. At the sentencing hearing, the Crown submitted that the facts identified in [42] of the Crown’s written submissions on sentence enabled the Court to find that:

1. The money the applicant dealt with “was the proceeds of crime, being drug and/or other serious criminal activity by unidentified individuals”; and

2. The applicant was reckless as to the money being the proceeds of crime.

71. The Crown sought to prove as an aggravating factor on sentence that, in addition to being reckless as to the risk that the money would become an instrument of crime, the applicant was also reckless as to the money being proceeds of crime.

72. As set out in the summary of the reasons for sentencing, his Honour determined that the money the applicant had dealt with was, in fact, from drug or other serious criminal activity.

73. For convenience I return to the relevant findings of the sentencing judge in this respect. The sentencing judge:

1. Accepted the Crown’s submissions on the facts and found that the money “was from drug and or other serious criminal activity”.

2. Directed himself that it would be erroneous, and in contravention of the principles in De Simoni, to find that the Applicant believed that the money was proceeds of crime:

“If the Crown contention is that I should find beyond reasonable doubt that the offender believed the origin of the money was from drug trafficking or from other serious criminal activity it would infringe the principle in De Simoni v R (1981) 147 CLR 383 and should be rejected. It would amount to sentencing the offender for the more serious offence of dealing with money that the “person believes” to be the proceeds of crime under s 400.3(1) which carries a maximum penalty of imprisonment for 25 years.”

3. Was of the view that it was open to him to find that the applicant was reckless as to the source of the money, even in circumstances where the Court had found that the money was from drug or other serious criminal activity by unidentified individuals. The sentencing judge made clear that he did not find that the money was from the applicant’s own drug offending. The sentencing judge stated:

“[Counsel for the applicant] submitted for the Crown to allege that the money found in the offender’s garage was the proceeds of his own drug dealing activity would involve finding that he knew or believed that the money was the proceeds of drug dealing activity and would contravene the De Simoni principle. It would be open to me to find, without infringing the principle in De Simoni, and I do find, that the offender was reckless as to the source of the money being illegitimate and from criminal activity: see R v Viana [2008] NSWCCA 188.”

74. The applicant’s contentions with respect to this ground were as follows:

1. His Honour, having considered the evidence and the submission of the parties, determined that the money was, in fact, from drug or other serious criminal activity.

2. While his Honour warned himself that a finding that the applicant “believed” the origin of the money was drug trafficking or other serious crime would breach the De Simoni principle, his Honour found that it was, nonetheless, open to him to find that the applicant was “reckless as to the source of the money being illegitimate and from criminal activity” without breaching the De Simoni principle and went on to make that finding.

3. However, having found that the applicant dealt with money that was both the proceeds of crime and that the applicant was reckless as to that fact, (and there being no issue as to the value of the money) his Honour’s finding amounted to a finding of guilt of an offence against s 400.3(2)(b)(i) of the CriminalCode.

4. This was in breach of the principle in De Simoni where Gibbs CJ stated (at 389):

“[T]he general principle that the sentence imposed on an offender should take account of the circumstances of the offence is subject to a more fundamental and important principle, that no one should be punished for an offence of which he has not been convicted.”

5. The sentencing judge effectively allowed the Commonwealth Crown to have the applicant punished for an offence against s 400.3(2) without the need to charge the offence, or critically, to particularise the nature of the offending leading to the money being the proceeds of crime as would have been required had the offence been charged.

6. The sentencing judge referred to R v Viana [2018] NSWCCA 88 (“Viana”) in support of the proposition that it was permissible to have regard to the matters amounting to an offence against s 400.3(2)(b)(i).

7. However, Viana was not apposite to the present case as the respondent to the appeal in that matter had been sentenced for an offence under s 400.3(2)(b)(i).

8. The applicant had contended that a finding amounted to a conclusion that the applicant was guilty of a separate and distinct offence against s 400.3(2)(b)(i), in circumstances where the applicant had not been charged with such an offence and was a breach of s 80 of the Constitution. However, that contention was abandoned at the hearing of the application for leave to appeal.

75. The Commonwealth Crown conceded that the judgment in Viana was not apposite to the present case. In Viana, the respondent had been sentenced for an offence against s 400.3(2)(b)(i) and not s 400.3(2)(b)(ii) as in the present case.

76. Unlike the instant case, it is apparent from the judgment in Viana that the respondent pleaded guilty to:

1. Dealing with money that was proceeds of crime (Viana at [3]); and

2. Being reckless as to the fact that the money was proceeds of crime (Viana at [3]).

77. The Commonwealth Crown further contended:

“While it is not clear from the judgment in Viana, it may be inferred from that judgment that the respondent pleaded guilty to an offence in contravention of s 400.3(2)(b)(i). The aggravating feature in dispute in Viana was the particular type of crime from which the money dealt with was said to be the proceeds. In contrast, the aggravating feature in dispute in the present case was whether in addition to being reckless as to the risk that the money he dealt with would become the instrument of crime, the applicant was also reckless that the money was proceeds of crime.”

78. Ultimately, the Commonwealth Crown conceded, correctly, in my view, that it was open for the Court to find that Ground 2 of the proposed grounds of appeal disclosed error. The findings of the sentencing judge were consistent with an offence contrary to s 400.3(2)(b)(i) of the Criminal Code, whereby an offender dealt with money that is the proceeds of crime and was reckless to the fact that the money was the proceeds of crime.

79. The Commonwealth Crown nonetheless submitted that the error identified was not an error that required consideration of resentence. It was submitted in that respect as follows:

1. The principles in De Simoni stand for the proposition that a sentencing court is entitled to consider all of the conduct of the accused including that which might aggravate the offence but cannot take into account circumstances of aggravation which would have warranted the conviction for a more serious offence.

2. The proposition that De Simoni has been contravened in the present matter is premised on the proposition that an offence against s 400.3(2)(b)(i) is a more serious offence than that to which the applicant pleaded guilty. That should not be accepted by the Court.

3. An offence against s 400.3(2)(b)(i) is not an aggravated or more serious offence than the Money Laundering Offence to which the applicant pleaded guilty. An offence that involves a more severe maximum penalty is a more serious offence: Nykolyn v R [2021] NSWCCA 312 at [37] (Rothman J). The same maximum penalty applies to an offence that is, as in this matter, particularised against s 400.3(2)(ii). This indicates that the legislature considered the “Tier 2 offences” to be of equal seriousness whether the offender was reckless to the fact that the money was proceeds of crime, or there was a risk that the money would become an instrument of crime.

4. The sentencing judge was of the view that it made little difference in assessing the seriousness of the offence whether the money was in fact from legitimate or illegitimate activity.

5. The sentencing judge was aware that the applicant was not charged with an offence under s 400.3(2)(b)(i).

80. Section 400.3(2) of the Criminal Code creates two distinct offences reflected respectively in ss 400.3(2)(b)(i) and (ii). While the maximum penalty is the same, the two offences criminalise distinct criminal activity. I accept the submissions advanced by the applicant that an offender cannot be punished for one of these offences when charged with the other: see McCullough v The Queen (2009) 194 A Crim R 439; [2009] NSWCCA 94 at [39] (Howie J) (albeit in the context of different offences created by the then s 35 of the Crimes Act 1900 (NSW)).

81. Whether or not the applicant’s belief as to the source of funds will always be a relevant consideration regardless of whether the applicant was charged with an offence concerned with the proceeds of crime or an offence concerned with property being used as an instrument of crime: R v Huang, R v Siu [2007] NSWCCA 259 at [32]-[33] (Simpson, Howie and Hislop JJ, as Simpson JA then was). It is unnecessary to consider that issue here, as the present circumstances are to be distinguished.

82. Here, the sentencing judge has taken into account both that the property is in fact the proceeds of crime and that the offender was reckless as to this fact. Taking into account both those factors, the latter being the applicant’s mental state, went beyond considerations which properly informed the applicant’s culpability for the charged offence.

83. The sentencing judge was at pains to proceed on the basis that the applicant did not have the state of mind amounting to a belief that the money was proceeds of crime yet then assessed the penalty on the basis that it was, in fact, proceeds of crime.

84. In my view, Ground 2 of the appeal should be allowed and in accordance with the principles in Kentwell, the applicant should be resentenced.

Ground 3 – The learned sentencing judge erred in assessing the discount to be afforded to the applicant for the value of his plea of guilty to the [Money Laundering Offence].

85. The applicant correctly contended that the sentencing judge erred in his assessment of the discount to be afforded to the applicant for the value of his plea of guilty for the Money Laundering Offence. The sentencing judge erred in the finding that the applicant was charged with the Money Laundering Offence in March 2018 (which was amended in August 2018), when, in fact, the applicant had not been charged with the Money Laundering Offence until 17 July 2020.

86. That conclusion is readily demonstrated by reference to the document prepared for the first instance proceedings entitled “Chronology of the Commonwealth proceedings” which sets out a chronology of procedural events relevant to the Commonwealth offences. (Shaded in yellow in Annexure B was the procedural history relevant to the “Commonwealth money laundering proceedings – s 400.3(1) the Criminal Code.”)

87. The applicant was initially charged with “Tier 1” proceeds of crime offences based on belief/intention under s 400.3(1) of the Criminal Code. Those charges were laid on 15 March 2018.

88. On 15 August 2018, the Commonwealth Director of Public Prosecutions confirmed that the brief was complete for the existing s 400.3(1) charge relating to monies found in the apartment and the garage of the applicant. At the same time, two new s 400.3(1) charges were laid in relation to bundles of cash delivered to money remitters.

89. On 23 April 2019, the committal for those charges was waived and on 10 May 2019 the applicant was committed for trial listed to commence on 20 April 2020. By that point the applicant could still face the initial charges brought against him although there would be no plea negotiations at that time.

90. On 13 December 2019, the Trafficking Offence was listed with the State Supply offences, were listed for sentence on 27 September 2020. The Money Laundering Charge was listed for trial commencing from September 2020.

91. Plea negotiations between the applicant and the Commonwealth Crown took place and on 9 June 2020, the parties indicated to the District Court that a plea of guilty to a revised proceeds of crime charge was likely.

92. The charges were revised into the Money Laundering Offence, being a Tier 2 proceeds of crime offence based on recklessness. A new indictment was issued on 17 July 2020. The applicant entered a plea of guilty on 20 July 2020. Hence, the plea to the Money Laundering Offence occurred three days after the amended indictment was filed.

93. As mentioned, the date referred to by the sentencing judge is not the date on which the charges were amended to their present form and was, in fact, the date a Tier 1 offence was laid. Soon after, two further offences were laid which related to, as mentioned, money delivered to money remitters. The brief which had been served to this point did not relate to those further charges.

94. The Commonwealth Crown submitted that, at the time of the plea by the applicant on 20 July 2020, the current proceedings were almost two and a half years after the initial (Tier 1) charges. Further, it was a year and three months after the matter was committed to the District Court and after the District Court had listed the matter for trial fixtures both on 2 April and 7 September 2020.

95. The Commonwealth Crown submitted that notwithstanding the sentencing judge’s misstatement as to the date upon which the charge for the Money Laundering Offence was laid, it did not follow that the error affected the sentencing discretion, specifically the assessment of the utilitarian value of the plea, because:

1. Although the applicant’s plea of guilty was the result of plea negotiations prior to trial which downgraded the money laundering allegations to a single rolled-up offence, the timing of the applicant’s plea in respect of the underlying factual allegations was relatively late.

2. This approach is consistent with the established principle as stated in Bae v R [2020] NSWCCA 35 (“Bae”) (see also Kaurasi v R [2020] NSWCCA 253 at [40] (Wilson J with whom Fullerton and Ierace JJ agreed) and R v Dib [2003] NSWCCA 117 (“Dib”)).

96. The Commonwealth Crown contended, as that the timing of the applicant’s plea in respect to “the underlying factual allegations” was relatively late, there should have been no expectation or entitlement of the applicant to a full discount in the usual range of 25%. The 10% discount provided by the sentencing judge is within the sentencing range.

97. The applicant submitted that, in the event of resentencing, a higher discount should be allowed in accordance with the submissions advanced by the applicant upon this ground of appeal. The applicant did not propose a 25% discount was applicable.

98. In Bae, Johnson J (with whom Bell P, as his Honour then was, and I agreed) discussed the principles relevant to the assessment of the utilitarian value of a plea of guilty at [49]–[57], applying in that respect Baden v R [2020] NSWCCA 23 (Bell P, as his Honour then was, with whom Johnson J and I agreed) at [15]-[16] and R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102 (Howie J, with whom McClellan CJ at CL and Simpson J, as her Honour then was, agreed). It is convenient in that respect to set out [49]-[60] of Bae:

“[49] In Baden v R [2020] NSWCCA 23, Bell P (Walton J and myself agreeing) said at [15]-[16]:

15   The Xiao Court, comprising Bathurst CJ, Beazley P, Hoeben CJ at CL, McCallum and Bellew JJ, after a review of authorities which had either taken a different view to Tyler [(2007) 173 A Crim R 458; [2007] NSWCCA 247] or questioned its correctness, relevantly held at [278] that:

‘…in sentencing proceedings governed by s 16A [of the Crimes Act 1914 (Cth)], a sentencing judge is entitled to take the utilitarian value of a plea into account in sentencing. To the extent that Tyler and the cases which followed it provide to the contrary, they should not be followed.’

16   In Cameron [(2002) 209 CLR 339; [2002] HCA 6], Gaudron, Gummow and Callinan JJ differentiated in terms between the utilitarian value of an early plea and an accused’s ‘willingness to facilitate the course of justice’ which might be manifested in an early plea (see, for example, at [19]), even though the outcome or result of such a willingness may (and perhaps typically would) be a useful saving in time and expense, with obvious ramifications for the efficient deployment of scarce and valuable public resources. But an early plea may not be motivated by a willingness to facilitate the course of justice such as where, for example, it is actuated simply by an acceptance of the inevitable in the face of an overwhelming Crown case. In such a case, no discount would be justified on the subjective side of the sentencing exercise, but there would be an objective benefit which it has been recognised should attract a discount.”

[50] In Huang v R (2018) 96 NSWLR 743; [2018] NSWCCA 57, Beazley P (Bathurst CJ, Hoeben CJ at CL, McCallum and Bellew JJ agreeing) adopted the reasoning applicable to State offences in R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309, whilst noting the need to guard against the application of a “norm” to Commonwealth offences. Beazley P said at [81]-[86]:

81   The appellant in this case pleaded guilty and is thus entitled to some discount for his plea. The utilitarian value of a guilty plea depends primarily upon the timing of the plea. In R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309, Spigelman CJ (Wood CJ at CL, Foster AJA, Grove and James JJ agreeing) stated at [152]-[154]:

‘[152]   In my opinion, the appropriate range for a discount is from 10-25 percent.

[153]    The determination of where, within such a range, the discount should fall in a particular case is a matter for the discretion of the sentencing judge.

[154]   There are however two circumstances which will generally affect the appropriate level of discount in a particular case:

(i)    The time at which a plea is entered. A plea entered at committal has a more significant utilitarian benefit than a plea entered at first listing, which in turn has the greater benefit than a plea entered at the beginning of trial.

(ii) The complexity of the issues about which evidence will have to be gathered and adduced affects the value of the plea. The greater the difficulty of assembling the relevant evidence and the greater the length and complexity of the trial, the greater the utilitarian value of a plea.’

82   Spigelman CJ observed, at [155], that a discount at the top of the range would be restricted to pleas entered into at the earliest possible opportunity and should not be given, save in an exceptional case, after a matter has been set down for trial. His Honour stated that a discount at the bottom of the range would be appropriate for late pleas, such as a plea entered into on the date fixed for trial.

83   Consistent with these observations, in the recent decision of Nash v Silver City Drilling (NSW) Pty Ltd v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96, Basten JA (Hoeben CJ at CL and Walton J agreeing) stated that where a plea is entered on the first day fixed for trial, the utilitarian value of the plea must be ‘severely reduced’. As N Adams J (Hoeben CJ at CL and Button J agreeing) observed in Zhao v R [2016] NSWCCA 179, a discount of 10 per cent is usually allowed for a plea entered in such circumstances. In Hart v Attorney-General for New South Wales [2016] NSWCCA 71, Davies J (Hoeben CJ at CL and Harrison J agreeing) rejected the applicant’s submission that a discount of 10 per cent for the applicant’s guilty plea was inadequate. In that case, the applicant first indicated to the court his intention to plead guilty on the first day of the trial and only indicated such an intention to the prosecution on the Friday before the trial was due to start on the following Monday.

84   In Thomson; Houlton, which involved a state offence, Spigelman CJ did not purport to be prescriptive as to the discount that should be given in any particular case. As Spigelman CJ stated, it was a matter for the discretion of the sentencing judge as to the discount to be applied. There is, however, an inevitable logic in his Honour’s observations that the time at which a plea is entered is relevant to the discount to be applied. But as the portion of his Honour’s reasons cited above reveal, it is not the only consideration and may not be a decisive consideration in the given case. Nor is the range suggested by his Honour the necessary limit of the upper and lower range, although it is a useful guide. It is not, however, to use the language of the High Court in Hili [(2010) 242 CLR 520; [2010] HCA 45], a ‘norm’.

85   The Court is presently concerned with sentencing for a federal offence. In Hili, the High Court held, at [13] and [44], that there was no ‘judicially determined norm or starting point … for the period of imprisonment that a federal offender should actually serve in prison’. The so-called ‘norm’ of which the High Court was expressing its disapproval was the practice or convention in New South Wales of specifying, as the minimum period that an offender should serve in prison, a figure of 60 to 66 per cent of the term of imprisonment imposed.

86   In the present case, the plea was only entered on the day that the appellant’s trial was listed for hearing. In addition, as the facts reveal, the case was not particularly complex. Accordingly, the utilitarian value of the plea was not high. Nonetheless, I consider that some discount ought to be allowed for the plea and that discount should be at the low end. In all the circumstances, I consider that an appropriate discount is 10 per cent for the appellant’s guilty plea.”

[51] In Huang v R (2018) 332 FLR 158; [2018] NSWCCA 70, this Court (in judgments of the same five-Judge Bench as in Xiao v R (Bathurst CJ, Beazley P, Hoeben CJ at CL, McCallum and Bellew JJ)) stated (per Bellew J at [69]) that the timing of the plea, to a large extent, determines the level of the utilitarian discount to be applied, citing R v Thomson; R v Houlton at [160].

[52] In considering the nature of a discount for the utilitarian value of pleas of guilty, it is helpful to have regard to the decision of this Court in R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102 where Howie J (McClellan CJ at CL and Simpson J agreeing) explained the concept of utilitarian value of a guilty plea concerning State offences. Howie J said at [32]-[33]:

32    It should not be necessary to do so, but, because there appears to be discrepancies in the application of the discount for the utilitarian value of the plea, it is apposite to set out in point form the principles laid down by this Court and to be applied by sentencing courts. Of course these are principles of general application …:

1.    The discount for the utilitarian value of the pleas will be determined largely by the timing of the plea so that the earlier the plea the greater discount: Thomson at [154]; Forbes [2005] NSWCCA 377 at [116].

2.    Some allowance may be made in determining the discount where the trial would be particularly complicated or lengthy: Thomson at [154].

3.    The utilitarian discount does not reflect any other consideration arising from the plea, such as saving witnesses from giving evidence but this is relevant to remorse: Thomson at [119] to [123]; nor is it affected by post-offending conduct: Perry [2006] NSWCCA 351 .

4.    The utilitarian discount does not take into account the strength of the prosecution case: Sutton [2004] NSWCCA 225.

5.    There is to be no component in the discount for remorse nor is there to be a separate quantified discount for remorse: MAK and MSK [2006] NSWCCA 381; Kite [2009] NSWCCA 12 or for the ‘Ellis discount’; Lewins [2007] NSWCCA 189; S [2008] NSWCCA 186.

6.    Where there are multiple offences and pleas at different times, the utilitarian value of the plea should be separately considered for each offence: SY [2003] NSWCCA 291.

7.    There may be offences that are so serious that no discount should be given: Thomson at [158]; Kalache [2000] NSWCCA 2; where the protection of the public requires a longer sentence: El-Andouri [2004] NSWCCA 178.

8.    Generally the reason for the delay in the plea is irrelevant because, if it is not forthcoming, the utilitarian value is reduced: Stambolis [2006] NSWCCA 56; Giac [2008] NSWCCA 280.

9.    The utilitarian value of a delayed plea is less and consequently the discount is reduced even where there has been a plea bargain: Dib [2003] NSWCCA 117; Ahmad [2006] NSWCCA 177; or where the offender is waiting to see what charges are ultimately brought by the Crown: Sullivan and Skillin [2009] NSWCCA 296; or the offender has delayed the plea to obtain some forensic advantage: Stambolis [2006] NSWCCA 56; Saad [2007] NSWCCA 98, such as having matters put on a Form 1: Chiekh and Hoete [2004] NSWCCA 448.

10.    An offer of a plea that is rejected by the Crown but is consistent with a jury verdict after trial can result in a discount even though there is no utilitarian value: Oinonen [1999] NSWCCA 310; Johnson [2003] NSWCCA 129

11.    The discount can result in a different type of sentence but the resulting sentence should not again be reduced by reason of the discount: Lo [2003] NSWCCA 313.

12.    The amount of the discount does not depend upon the administrative arrangements or any practice in a particular court or by a particular judge for the management of trials or otherwise.

The last of these principles is derived from the present judgment and is included for completeness.

33    There also appears to be some looseness in the use of the expression ‘a discount’ that is apparent in the exchange between the prosecutor and the Judge set out above. Since Thomson and Houlton a ‘sentencing discount’ should be taken to mean a reduction in the otherwise appropriate sentence by a quantifiable amount due to a specific policy consideration. Such a discount is applied after the otherwise appropriate sentence has been determined. There are two sentencing discounts that have been identified: a discount for the plea of guilty and a discount for assistance. Where both these discounts apply they should be combined: R v SZ [2007] NSWCCA 19; 168 A Crim R 249 at [11]. The High Court has indicated that there should be limited use of ‘arithmetical deduction’ in determining an appropriate sentence: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [39].”

[53] The approach in R v Borkowski applies to the assessment of the utilitarian value of a guilty plea for State offences. Nevertheless, in the same way as R v Thomson; R v Houlton has provided guidance for Commonwealth offences, the decision in R v Borkowski assists in a practical understanding of the features of the utilitarian value of a guilty plea, a factor which Xiao v R states can be taken into account for the purpose of s.16A(2)(g) Crimes Act 1914 (Cth).

[54] Counsel for the Appellant and the Crown both accepted at the hearing in this Court that the principles in R v Borkowski provided assistance in assessing the utilitarian value of a guilty plea for a Commonwealth offence (T2-3, 5, 11, 6 February 2020).

[55] It will be apparent from the authorities referred to so far, including R v Borkowski, that identification of the utilitarian value of a plea of guilty involves an objective assessment to be undertaken for the purpose of s.16A(2)(g) Crimes Act 1914 (Cth). If an offender has demonstrated contrition involving facilitation of the course of justice, this factor may be taken into account in the offender’s favour on sentence in accordance with s.16A(2)(f) Crimes Act 1914 (Cth). This aspect falls on the subjective side of factors and involves an enquiry as to the attitude of the offender and an assessment of contrition. Reference to objective and subjective factors in this way was adopted in Diaz v R [2019] NSWCCA 216 at [77]-[83] as a useful way of distinguishing between these considerations.

[56] As the cases have made clear, however, there is no bright line test for distinguishing between these objective and subjective considerations so that these factors may overlap. In Singh v R [2018] NSWCCA 60, Payne JA (with the concurrence of Campbell J and myself) said at [28]:

“Whilst it is correct that contrition and remorse are factors required to be taken into account separately under s 16A(2)(f) in addition to the plea of guilty under s 16A(2)(g), those factors often overlap. Nothing in Xiao provided to the contrary.”

[57] The utilitarian value of a plea of guilty is an objective factor to be considered and preferably quantified (Xiao v R at [280]; Huang v R (2018) 332 FLR 158; [2018] NSWCCA 70 at [9], [49], [55]), with the subjective side involving demonstration of contrition to be an unquantified factor assisting the offender on sentence as part of the process of instinctive synthesis, but with the sentencing court guarding against double counting of these aspects in a manner favourable to the offender.

[58] Mr Anderson, counsel for the Appellant, submitted that an assessment of the utilitarian value of the Appellant’s pleas of guilty may take into account the reasons for delay in the entry of pleas, said to be referrable to the Appellant’s unclear understanding of the brief of evidence and the strength of the prosecution case flowing from his earlier legal representation before Mr Ricci came to represent him. I do not accept this submission. Those aspects may bear upon the subjective issue of facilitation of the course of justice in explaining why the Appellant did not plead guilty earlier. However, they do not affect the utilitarian value, which in this case is reduced irrespective of the reason for the delay: R v Borkowski at [32](8) (at [52] above).

[59] The discount for the utilitarian value of the Appellant’s pleas should have regard principally to the timing of the pleas of guilty which occurred after the first trial date had been vacated and shortly before the second trial date. The Court was informed that the trial had a six-week estimate as a joint trial with a co-accused, but a two-to-three week estimate if the Appellant was tried alone (T14, 6 February 2020). It may be taken that the Crown had been preparing for trial up to October 2011. Although there may have been limited further preparation for trial between October 2011 and the rescheduled trial date of 23 January 2012, it was not until shortly before the rescheduled trial date that the pleas of guilty were entered.

[60] In these circumstances, I would assess the discount for the utilitarian value of the Appellant’s pleas of guilty at 12.5%. The subjective circumstances surrounding the Appellant’s unfamiliarity with the brief of evidence before Mr Ricci came to represent him, and the Appellant’s relatively prompt willingness to plead guilty thereafter, may be reflected in a further allowance for his willingness to facilitate the course of justice. This aspect lies as a subjective factor to be taken into account on sentence which ought not be quantified.

[Emphasis added in italics]

99. In Dib, Hodgson JA (with whom Barr J agreed) stated at [3]-[6]:

[3] In my opinion, the amount of any discount to be allowed by reason of the utilitarian benefit of a plea of guilty should not be reduced on the ground that the plea was offered in association with the abandonment by the Crown of a greater charge; and if in such a case the plea is offered as soon as the Crown indicates willingness to accept a plea to the lesser charge, it should be regarded as being made at the earliest opportunity. To hold otherwise would be inconsistent with the presumption of innocence of the greater charge, which in those circumstances must stand unaffected.

[4] However, the utilitarian discount is a recognition of advantages to the administration of justice that actually flow from a plea of guilty. By reason of statutory provisions apply in New South Wales, in this State it is not given merely on the basis that the offender’s culpability is mitigated by demonstration of willingness to facilitate the course of justice: R v Sharma (2002) 54 NSWLR 300, distinguishing Cameron v The Queen (2002) 76 ALJR 382.

[5] If a plea is entered a long time after a person is charged, but at a time when a lesser charge is substituted for a greater charge, the advantages to the administration of justice are less, even though the plea may have been made at the earlier opportunity. There is in any event no entitlement to a 25% discount; and the fact that in this situation there are less advantages to the administration of justice can justify a smaller discount.

[6] This approach may mean that in some cases an offender may obtain a lower discount just because the prosecuting authorities initially brought a greater charge than that ultimately pursued, so that the delay in the plea of guilty was not the offender’s fault. But this is consistent with the nature of the discount as being at least in part a recognition of practical advantages, and not merely a recognition of mitigation of culpability.

100. In my view, the misstatement by the sentencing judge of the date on which the Money Laundering charge was laid constituted an error which affected the sentencing discretion for the following reasons:

1. It is true that the applicant’s plea of guilty was a result of plea negotiations prior to trial, which downgraded the money laundering allegations to a single rolled-up offence, however, neither the Money Laundering Offence nor the Association Offence was before the District Court in March 2018 or at the time of the amended charges in August 2018. The applicant was facing different charges at that time. The sentencing judge’s assessment of the appropriate discount for the plea was predicated on the earlier date. The charges for those offences were not laid until 17 July 2020.

2. Whilst that date of the plea was a considerable time after the laying of the initial charges and the date of entering the plea was not a substantial time before the commencement of the trial it was nonetheless well prior to a plea entered on the last day of the trial which can often attract a discount. Further, the plea was entered shortly after the revised charges were laid.

3. The applicant does not seek in this case that the Court take into account the reasons for delay in the entry of pleas or some misunderstanding by the applicant as to, for example, the strength of the prosecution case. Rather the contentions of the applicant as to this ground fixed upon an objective factor, the utilitarian value of the plea of guilty based upon the date the plea was entered and that the amount of discount afforded the applicant appears to have been predicated upon a wrong assessment by the sentencing judge of the utilitarian value. He took into account the wrong date upon which the charges were laid.

101. In my view, the error I have found, consistent with Ground 3, should result in resentencing of the applicant. In that respect and taking into account that the plea was entered a considerable time after the applicant was first charged and after the initial charge was downgraded to a single rolled-up offence which became the Money Laundering Offence, the appropriate discount in sentencing the applicant for the Money Laundering Offence is 15%.

Ground 4 – The sentence imposed with respect to the [Money Laundering Offence] is manifestly excessive

102. The applicant contended that the sentence imposed with respect to the Money Laundering Offence was manifestly excessive, having regard to the Court’s assessment of the objective seriousness of the offence and the applicant’s subjective case. The Crown submitted that an indicative head sentence of 10 years for the Money Laundering Offence was not excessive. The sentence imposed was not unreasonable or plainly unjust.

102. In light of the errors that I have found above, and the consequential resentencing of the applicant, it is unnecessary to determine this ground of appeal.

Ground 5 – His Honour erred in imposing an overall effective non-parole period which was approximately 71% of the overall effective term of imprisonment

104. There is a substantial amount of concurrence in the parties’ submissions as to this Ground which is amply expressed in the submissions of the Commonwealth Crown.

105. In dealing with the “overall total sentence”, the sentencing judge stated:

“[T]he overall total sentence is one comprised of a term of imprisonment with a non-parole period of 11 years to commence on 18 May 2015 and to expire on 17 May 2026 with an additional term of 5 years 6 months to expire on 17 November 2031.”

106. The reference to the additional term should have been to a period of 4 years and 6 months to expire on 17 November 2030.

107. That error is demonstrated by the following table prepared by the Commonwealth Crown which summarises the various components of the overall sentence imposed:

Sentence Imposed
Years	Months	Commencement	Ending
Commonwealth Offences
Breach Offence	0	7	18-May-15	17-Dec-15
Trafficking Offence	7	6	18-Sep-15	17-Mar-23
Money Laundering Offence	9	0	18-Apr-16	17-Apr-25
Single Non-Parole Period	6	8	18-May-15	17-Jan-22
State Offences
Total Aggregate Sentence	12	0	18-Nov-18	17-Nov-30
Single Non-Parole Period	7	6	18-Nov-18	17-May-26
Total effective sentence	15	6	18-May-15	17-Nov-30

108. Based on this position, the Commonwealth Crown submitted:

1. Having regard to the specific sentences imposed by the sentencing judge with respect to each of the State and Commonwealth Offences, it is open for this Court to find that the sentencing judge misstated the overall effective total sentence to be served by the applicant. The Commonwealth Crown submitted that the sentencing judge should have made the following statement:

“So the overall total sentence is one comprised of a term of imprisonment of 15 years and 6 months with a non-parole period of 11 years to commence on 18 May 2015 and to expire on 17 May 2026.”

2. The Commonwealth Crown submitted that this error can be corrected by this Court without the need for it to consider the non-parole periods or individual head sentences imposed by the sentencing judge with respect to the offences or otherwise proceed to re-sentence.

109. In summary, the applicant approached this statement in the following way:

1. With respect to the State Supply Offences, his Honour made a finding of special circumstances on the basis of the more onerous nature of the applicant’s imprisonment due to COVID-19 and the level of accumulation of the sentences. For the State Supply Offences, the aggregate non-parole period imposed was 62.5% of aggregate sentence of imprisonment. For each indicative sentence, the indicative non-parole period imposed was 65% of the sentence.

2. With respect to the Commonwealth Offences, his Honour imposed a single non-parole period which was approximately 67.2% of the overall term of imprisonment.

3. The overall effective sentence determined by his Honour was 15 years and 6 months with an overall effective non-parole period of 11 years. The overall non-parole period is approximately 71% of the overall term of imprisonment.

4. An overall non-parole period of 11 years with an additional term of 5 years and 6 months yields a ratio of approximately 66.7%. It is submitted that such a ratio is consistent with the ratios reflected in both the aggregate sentence for the State Supply Offences and the overall sentence for the Commonwealth Offences. It is submitted that his Honour’s erroneous statement in his remarks suggests that his Honour had in fact intended to set an overall non-parole period which was approximately 67% of the overall total sentence.

5. It was acknowledged that where sentences have been accumulated, an offender has no automatic right to the same or similar variation to the ratio in respect of the overall sentence as was granted for the individual sentences: Bentley v R; Davies v R; Thomas v R; Tilley v R [2021] NSWCCA 18 at [146] (Bathurst CJ with whom N Adams and Ierace JJ agreed) (“Bentley”). It was submitted, however, that in this case, his Honour’s misstatement of the overall additional term, leads to the conclusion that his Honour did not intend to set an overall non-parole period which was approximately 71% of the overall term of imprisonment.

6. Although his Honour noted that he had regard to the principles of totality and accumulation, there is nothing in his Honour’s remarks that would indicate an intention to substantially increase the ratio in respect of the overall total term as compared to the aggregate and overall terms of the State Supply and Commonwealth Offences respectively.

110. The starting point for the State Crown’s submission was to recognise the misstatement by the sentencing judge but, in reliance upon the judgment of Bathurst CJ in Bentley, then submitting that the offender had no right to the same variation of the ratio in respect to the overall sentence as was granted for the individual sentences.

111. Reference was made to Spark v R [2012] NSWCCA 140 in which Fullerton J (with whom Macfarlan JA and Grove AJ agreed) stated that, to the extent the applicant in that matter contended that because of a finding of special circumstances the applicant was entitled to the same or a similar degree of variation than the statutory ratio after partial accumulation as that provided for in the calculation of individual sentences, the submission must be rejected.

112. The State Crown recognised that in a number of cases where the effect of the accumulation had led to an increase in the non-parole period beyond the statutory ratio or beyond what otherwise appeared to be the express intention of the sentencing judge, and the judge made no reference to this consequence, it had been concluded that the sentencing discretion miscarried: see Tammer-Spence v R [2021] NSWCCA 90 (N Adams J with whom Bathurst CJ and Price J agreed).

113. However, it was emphasised that in R v Cramp [2004] NSWCCA 264 at [36] Spigelman CJ stated that, subject to the non-parole period being either manifestly inadequate or manifestly excessive, this Court should be very slow to intervene to alter the ratio ultimately determined by the sentencing judge.

114. Ultimately it was submitted by the State Crown that:

“In the present case there was partial accumulation of an aggregate term for the State offences on an effective term for the Commonwealth offences. Moreover, the parole period of 4 years and 6 months represented a ratio of effective non-parole period to effective head sentence of 70.9 per cent, a significant reduction from a ratio of 75 per cent, the parole period allows ample opportunity for rehabilitation on parole and the effective non-parole period reflects the period of time required to be served so as to adequately reflect the serious criminality involved in the applicant’s offending. The Crown submits this underpinned the sentencing judge’s intention and no inadvertence or arithmetic error is disclosed per N Adams J (Bathurst CJ and Price J agreeing) in Tammer-Spence v R [2021] NSWCCA 90 at [73].”

115. In my view, this Ground should be accepted. There is plainly a misstatement by the sentencing judge of the overall additional term. There is nothing in his Honour’s remarks that would indicate an intention to substantially increase the ratio with respect to the overall total term as compared with the aggregate or overall terms of the State and Commonwealth Offences respectively. That comfortably leads to the conclusion that his Honour did not intend to set the overall non-parole period which was approximately 71% of the overall term of imprisonment.

Ground 6 - The Applicant has a justifiable sense of grievance as a result of the sentences imposed on the co-offender.

116. With respect to the Second State Supply Offence, his Honour found that the quantity of methylamphetamine supplied by the applicant was 2,947.40 grams. For this offence the applicant received an indicative sentence of 10 years with an indicative non-parole period of 6 years 6 months. His Honour stated that the undiscounted starting point was 12 years, and further noted that this sentence was “discounted by 15 per cent to 10 years rounded down”.

117. The co-offender was sentenced on two separate occasions for his participation in the supply offending. On 23 October 2015, the co-offender was sentenced by King DCJ for an offence of supply not less than the large commercial quantity of a prohibited drug, namely, 1,967.4 grams of methylamphetamine. This related to the methylamphetamine handed by him to the applicant in the backpack on 18 May 2015. Following a discount of 25% he received a sentence of 7 years and 6 months imprisonment with a non-parole period of 5 years and 6 months.

118. On 31 August 2018 the co-offender was sentenced by Herbert DCJ for an offence of supply not less than the commercial quantity of a prohibited drug, namely, 980 grams of methylamphetamine. This related to the methylamphetamine handed by the co-offender to the applicant in the black bag on 28 April 2015. Following a discount of 25%, the co-offender received a sentence of 6 years imprisonment with a non-parole period of 4 years.

119. However, the sentencing judge incorrectly remarked that the co-offender was to be sentenced for 2 kilograms of methylamphetamine. The total quantity of the co-offender’s methylamphetamine supplies was equal to the quantity of drugs for the Second State Supply Offence (almost 3 kilograms).

120. The applicant submitted that the sentencing judge had erred in his consideration of parity because he sentenced the applicant on the basis, he had supplied one more kilogram more of methylamphetamine than the co-offender. This error, it was submitted, resulted in an unjustifiable disparity in the penalties imposed on the co-offender.

121. The applicant also contended that the applicant’s prior criminal history did not justify a starting point which was approximately one year longer than that of the co-offender’s overall sentence in circumstances where there was little differentiation with respect to their roles and where the overall quantity of methylamphetamine supply was identical.

122. The discussion of principles in the State Crown submission was not the subject of controversy and may be adopted for the purposes of the consideration of this ground.

123. The parity principle is well established: see Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46). Whilst like should be treated alike, due allowance should also be made for differences: see Postiglione v The Queen (1997) 189 CLR 295 at 301; [1997] HCA 26). As was observed in Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 (“Green”) at [28]:

“[T]he parity principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances.”

124. In circumstances where offenders are party to the same criminal enterprise, but different charges have been laid, and one or more charges are on a Form 1 for one offender but not another offender, the Court has held that a “straightforward comparison is not possible”: see Nguyen v R [2015] NSWCCA 209 at [64]-[68] (Hall J with whom Hoeben CJ at CL and McCallum J, as her Honour then was, agreed); see also a discussion in Dunn v The Queen [2018] NSWCCA 108 (Macfarlan JA, Johnson and Adamson JJ).

125. Mere disparity between sentences imposed on an offender and co-offenders is not, in itself, grounds for intervention: Burrows v R [2017] NSWCCA 45 (Macfarlan JA, Schmidt and Wilson JJ). Like offenders should be treated alike. Ultimately, the principle is engaged on appeal when there is, objectively, a justifiable sense of grievance because of the disparity in sentence: Paredes v R [2012] NSWCCA 4 at [19] (Rothman J, with whom Meagher JA and Hoeben J, as his Honour then was, agreed).

126. It was held in Fenech v R [2018] NSWCCA 160 at [30]-[33] (R A Hulme J, with whom Beazley P, as Her Excellency then was, and Button J agreed) that the principle should be applied in the terms used by the High Court, those terms being:

1. “Marked disparity” or “marked and unjustified disparity” as used in Green at [32], [33] (French CJ, Crennan and Kiefel JJ, as Kiefel CJ then was), [105] (Bell J).

2. The issue of parity focuses on whether, objectively, there is a justifiable sense of grievance because of a disparity in sentences imposed upon two or more offenders. The parity principle is an aspect of “equal justice”, which requires, as Gaudron, Gummow and Hayne JJ said in Wong v The Queen (2001) 207 CLR 584; [2011] HCA 64 at [65], “identity of outcome in cases that are relevantly identical” and, as French CJ, Crennan and Kiefel JJ said in Green at [28], “that all offenders should be treated in a like manner”. In the absence of such identity or likeness, there cannot be a justifiable sense of grievance.

3. There being “due proportion” between sentences with regard to the “different circumstances of the co-offenders in question and their different degrees of criminality”: see Postiglione v The Queen (1987) 162 CLR 645.

127. In El Masri v R [2022] NSWCCA 27, Davies J (with whom Beech-Jones CJ at CL and Bellew J agreed) stated that it is not a prerequisite to the application of the parity principle that the offenders being compared were charged with the same offence(s): Green at [30]. However, the joint judgment went on to say:

“Nevertheless, as Campbell JA recognised in Jimmy v R [2010] 77 NSWLR 540 at [201]-[203] there can be significant practical difficulties in comparing the sentences of participants in the same criminal enterprise who have been charged with different crimes. The greater the difference between the crimes, the great the practical difficulties, particularly where disparity is said to arise out of a sentence imposed on a co-offender who has been charged with an offence that is less serious than that of the appellant.”

128. The consideration of this Ground may proceed upon the basis of an Annexure to the State Crown submissions, Annexure A, which was uncontroversial save to clarify that the entry appearing under the “characteristics” table for objective seriousness of the commercial supply offences for both the applicant and co-offender related to the supply of different drugs – in the case of the applicant, cocaine, in the case of the co-offender, methylamphetamine. The Annexure appears at the conclusion of my judgment.

129. In my view, whilst the applicant has established error by the sentencing judge in the miscalculation of the co-offender’s methylamphetamine quantity, this did not result in an unjustifiable disparity in the penalties imposed on the co-offenders (which the applicant describes as including a starting point which was approximately one year longer than the co-offender’s overall sentence), by virtue of the four factors identified in the State Crown’s submissions as follows:

1. The applicant was sentenced for another supply offence (cocaine, 558 grams) which the co-offender was not charged with.

2. The co-offender received a full 25% discount for the timing of his pleas whereby the applicant received a discount of 15% for the supply of methylamphetamine (the single charge he shared with the co-offender).

3. The co-offender was assessed by both King SC DCJ and Herbert DCJ as having good prospects of rehabilitation and a low likelihood of re-offending or was unlikely to re-offend. However, Arnott SC DCJ was much more guarded, observing that the applicant had “seriously understated his role” and only found that the applicant had reasonable prospects of rehabilitation and of not re-offending.

RESENTENCING

130. The Commonwealth Crown’s submission that no lesser sentence was warranted with respect to the Commonwealth Offences, may not be accepted with respect to the Money Laundering Offence, having regard to the disposition by the Court as to Grounds 2 and 3.

131. Resentencing the applicant with respect to the Money Laundering Offence also has implications, in my view, for the fixing of a single non-parole period, with respect to the Commonwealth offences; I propose to fix a lower non-parole period pursuant to s 19AB of the Crimes Act.

132. However, before reaching that conclusion, I propose to first deal with each of the Commonwealth Offences in order of the sequence of the sentencing. That process will commence, as the sentencing judge did, with the Breach Offence followed by the Trafficking Offence.

133. As to the Breach Offence and the Trafficking Offence, I adopt all of the findings made by the sentencing judge with regard to objective seriousness (including the role of the applicant), the discount for the utilitarian value of the plea, remorse, prospects of rehabilitation, the likelihood of reoffending and criminal record (being limited in nature) and the finding of the sentencing judge as to general deterrence and personal deterrence in the case of the Trafficking Offence. I also accept the sentencing judge’s analysis of sentencing considerations of an individual.

134. As to the Money Laundering Offence, my reasoning with respect to Ground 2 relating to the objective seriousness of that offence (including the role of the applicant) shall be applied in resentencing the applicant. Without wishing to unnecessarily repeat the earlier summary of the sentencing judge’s discussion of the features of the Money Laundering Offence and the factors bearing upon the objective seriousness of that offence, and with a view to revisiting factors bearing upon the objective seriousness of the Money Laundering Offence (to resentence the applicant), the following are factors relevant to the assessment of the objective seriousness of the Money Laundering Offence:

1. The sentencing judge found the objective seriousness of the offending was to be found “well above the middle of the range of seriousness for offences of this type.” No challenge was made to that finding but as was submitted by the applicant, conspicuously, there was no finding that the offending was in the higher range. That finding was appropriate.

2. The following factors require particular mention:

1. The applicant’s conduct was planned, involved a degree of sophistication, and occurred over a number of transactions. The applicants essential role was one of facilitating the movement of cash from one side of a criminal enterprise to another. He held a position of trust and autonomy in choosing who to recruit and use in handling large sums of money and his acts were not in isolation. However, the applicant was not a principal and his role, having regard to the charges, involved the delivery of money reckless as to the risk the money would become an instrument of crime.

2. The duration of the offending ranged from 7 months (in the case of the cash deliveries) to 12 months (for the possession of cash).

3. The money dealt with was significant as to the sum of money involved, the number of transactions, and the amount found in the applicant’s position.

4. The offence was rolled-up in the sense that it comprised a wide range of separate, serious Money Laundering Offences (the course available on a guilty plea). On sentence, the Court was required to assess the criminality disclosed by the charge, not the number of charges, and the principal limitation for the Crown and the benefit for the offender is that only a single maximum penalty is available. However, the more contraventions or episodes of criminality that form part of a rolled-up charge, the more objectively serious the offence is likely to be: see R v Donald [2013] NSWCCA 238 at [85] (Latham J, with whom Hidden and Adamson JJ agreed); R v Glynatsis (2013) 230 A Crim R 99; [2013] NSWCCA 131 at [66] (Hoeben CJ at CL, with whom Rothman and McCallum JJ, as her Honour then was, agreed); R v De Leew [2015] NSWCCA 183 at [116] (Johnson J, with whom Ward JA and Garling J agreed).

1. In sentencing for the Money Laundering Offence, regard was had to the Association Offence. The Crown was correct to submit that the seriousness of that association was underscored by the lengthy sentences imposed on those involved in the conspiracies. The sentencing judge characterised that offence as a serious one. However, the sentencing judge determined that it would only marginally increase the sentence to be imposed for the Money Laundering Offence.

2. There was financial greed involved.

135. As to the plea of guilty I have found that a discount for the utilitarian value of the appeal of 15% should be applied in sentencing the applicant with respect to that Offence for the reasons given in dealing with Ground 3 of the application for leave to appeal.

136. In relation to the subjective factors, I have earlier mentioned in summary form the sentencing judge’s reference to those matters, but the following particular considerations are relevant in the assessment of this ground:

1. The applicant was 56 years old and had a supportive family.

2. The applicant had a limited criminal history including supply and proceeds of crime offences.

3. The applicant was accepted by the sentencing judge to have been a model prisoner.

4. There was significant delay which the sentencing judge considered had caused anxiety to the applicant including stress and uncertainty about the legal process which entitled him to leniency.

5. While the applicant had tried to minimise his role, he was nonetheless found to be remorseful.

6. The applicant had reasonable prospects of rehabilitation and not reoffending.

7. COVID-19 had impacted the incarceration of the applicant.

137. I have had regard to the comparable cases referred to by the Commonwealth Crown but in my view, they are of limited assistance. I note the applicant placed reliance on Majeed v R [2013] VSCA 40.

138. Before turning to sentencing for the Commonwealth Offences, some further observations are required as follows:

1. The Court is sentencing for both Commonwealth and State Offences. It is important to emphasise that different sentencing regimes are applicable under the respective Commonwealth and State laws with respect to those offences. It is necessary for the Court to comply with s 9(3) of the Crimes Act.

2. Section 19AJ of the Crimes Act applies to sentencing in this matter. That provision is in the following terms:

“Court may only fix non-parole periods or make recognizance release orders for federal sentences of imprisonment

This Division does not authorise a court to fix a single non-parole period, or make a recognizance release order, in respect both of federal sentences of imprisonment and State or Territory sentences of imprisonment.”

(See the observations of R A Hulme J, with whom Hoeben CJ at CL and I agreed, in Sheu v R [2018] NSWCCA 86 at [26] and the judgment of McCallum JA, with whom Garling and Wright JJ agreed, in Ilic v R [2020] NSWCCA 300 at [37]-[41]).

3. In sentencing the offender, the principles of totality must be applied. Each of the Commonwealth and State Offences involve separate crimes. I consider a measure of accumulation should apply to each of the offences.

139. Having regard to these considerations, the sentences I would impose for the Commonwealth Offences are as follows:

1. For the Breach Offence, the applicant should be sentenced to a term of imprisonment of 7 months to commence from 18 May 2015.

2. For the Trafficking Offence, the applicant should be sentenced to a term of imprisonment of 7 years 6 months to commence on 18 July 2015.

3. For the Money Laundering Offence, and taking into account the Association Offence, the applicant should be sentenced to a term of imprisonment of 8 years to commence on 18 February 2016.

140. With respect to s 19AB(1) of the Crimes Act, I consider that the single non-parole period for the Commonwealth Offences should be 5 years 10 months to commence on 18 May 2015 expiring on 17 March 2021.

141. As to the State Supply Offences, I adopt the findings of the sentencing judge with respect to the objective seriousness of the offending (including the role of the applicant), the utilitarian value of the pleas of guilty, the criminal record of the applicant, prospects of rehabilitation, likelihood of reoffending, remorse and finding of special circumstances resulting from the impact of the COVID-19 epidemic and the level of the accumulation of the sentences. I also adopt the sentencing judges’ findings as to specific and general deterrence. In sentencing for the State Supply Offences, I have applied my reasoning with respect to Ground 6.

142. For the State Supply Offences, I have decided to impose an aggregate sentence of imprisonment. The aggregate sentence should consist of a non-parole period of 7 years 6 months commencing 18 February 2018 with the balance of the term being 4 years 6 months. The applicant would be eligible to be released on parole on 17 August 2025.

143. The indicative sentences for each of the State Supply Offences should be as follows:

1. For the First State Supply Offence, a sentence of 5 years imprisonment with a non-parole period of 3 years 3 months;

2. For the Second State Supply Offence, a sentence of 10 years imprisonment with a non-parole period of 6 years 6 months.

144. I do not consider that the Crimes Act prohibits the imposition of a total overall sentence for the Commonwealth and State Offences in order to give effect to accumulation.

145. The overall sentence that should be imposed is a term of imprisonment with a non-parole period of 10 years 3 months and an additional term of 4 years and 6 months.

ORDERS

146. I propose the following orders:

1. Grant leave to appeal.

2. Allow the appeal with respect to Grounds 2, 3 and 5.

3. Quash the sentence imposed on the applicant in the District Court on 18 September 2020 and, in lieu thereof, sentence the applicant to terms of imprisonment as follows:

1. For the Offence in contravention of s 400.9(1) of the Criminal Code, a term of imprisonment of 7 months commencing 18 May 2015.

2. For the Offence in contravention of s 302.3(1) of the Criminal Code, a term of imprisonment of 7 years 6 months commencing 18 July 2015.

3. For the Offence in contravention of s 400.3(2), a term of imprisonment of 8 years commencing 18 February 2016.

4. The single non-parole period for the Commonwealth Offences in orders (a), (b) and (c) of 5 years 10 months commencing 18 May 2015 and expiring 17 March 2021.

5. An aggregate sentence of 12 years imprisonment to commence on 18 February 2018 and expiring on 17 February 2030 for the First State Supply Offence and the Second State Supply offence. The aggregate non-parole period for those offences is 7 years 6 months imprisonment to commence on 18 February 2018 and expiring on 17 August 2025.

6. The indicative sentence for the First State Supply Offence is 5 years with a non-parole period of 3 years 3 months. The indicative sentence for the Second State Supply Offence is 10 years with a non-parole period of 6 years 6 months.

7. An overall sentence to be imposed is 14 years and 9 months with a non-parole period of 10 years and 3 months commencing on 18 May 2015. The earliest release date will be 17 August 2025. The sentence will expire on 17 February 2030.

147. ROTHMAN J: I agree with the orders of Walton J and generally with his Honour’s reasons.

Annexure A (Parity Differences, Applicant and Co-Offender) to State Crown Submissions

Characteristics	Applicant	Co-Offender (second sentencing proceedings before Herbert DCJ are in italics)
Charges	Commonwealth 1. Breach proceedings for proceeds of crime 2. Trafficking (12 year minimum) 3. Money laundering (more than $1m with association charge on Form 1) (25 year maximum) State 4. Commercial supply (20 year maximum, 10 year SNPP) 5. Large commercial supply (Life maximum, 15 year SNPP)	N/A N/A N/A Commercial supply (20 year maximum, 10 year SNPP) Large commercial supply (Life maximum, 15 year SNPP)
Sentences	Commonwealth 1. 7 month fixed term commencing 18.5.15 2. 7 years 6 months with single NPP 6 years 8 months commencing 18.5.15 3. 9 years with single NPP 6 years 8 months commencing 18.5.15 State 4. & 5. Aggregate 12 months with NPP of 7 years 6 months commencing 18.11.18 4. Indicative term 5 years with NPP 3 years 5. Indicative term 10 years with 6 year 8 month NPP	N/A N/A N/A 6 years with 4 year NPP commencing 18.5.17 7 years 6 months with 5 year 6 month NPP commencing 18.5.15
Effective sentence	15 years 6 months with 11 year NPP	8 years with 6 year NPP
Ratio of effective NPP to effective head sentence	70.97%	75%
Objective seriousness	Breach matter – Judge Haesler SC found it was towards the bottom Money laundering – well above middle of range Trafficking – clearly of high seriousness Commercial supply – little below middle of range Large commercial supply – well within middle of range	N/A N/A N/A Commercial supply – well within the mid-range Large commercial supply – well above mid-range
Role	Breach matter – assisted an individual to count and store money, would receive some reward, good character until then Money laundering – essential role, transferred over $7m, authority over another person, autonomy, trusted, motivated by financial greed Trafficking – principal organiser of ongoing, profit-focused, mid-scale drug trafficking enterprise, paid a courier after recruiting him, directed him, high degree of premeditation Drug supply – essential and significant role, not principal but high degree of responsibility and authority, involved for profit	N/A N/A N/A Large commercial supply – Substantial and active role to arrange supply, negotiate, substantial sums, infer he was involved for reward, local salesman/negotiator, more than courier Commercial supply – Mid-level operative in wholesale supply chain
Plea and discount	Money laundering – 10% Trafficking – 25% Commercial supply – 25% Large commercial supply – 15%	Commercial supply – 25% Large commercial supply 25%
Criminal record	Limited but on bond for some of the offending, repeat offence for money laundering	N/A but less weight given to good character as it was a drugs matter
Prospects of rehabilitation	Reasonable	Good Good
Likelihood of re-offending	Reasonable	Low Unlikely
Remorse/contrition	Demonstrated	Some remorse and constitution demonstrated although it was not exactly fulsome. His Honour noted that the offender’s only concerns appeared to be for himself and his friends and the effect the offending may have on any future business Her Honour noted in the second set of sentencing proceedings that the offender demonstrated a greater degree of acceptance of responsibility and remorse than was previously the case
Special circumstances	Covid and accumulation	Accumulation only

**********

Decision last updated: 12 October 2022