Grogan v The Queen

[2019] NSWCCA 51

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Grogan v R [2019] NSWCCA 51
Hearing dates:	25 February 2019
Date of orders:	18 March 2019
Decision date:	18 March 2019
Before:	Gleeson JA at [1] Harrison J at [2] Davies J at [42]
Decision:	(1)   Grant leave to appeal. (2)   Dismiss the appeal.
Catchwords:	CRIMINAL LAW – appeal against sentence – where appellant sentenced for manufacturing commercial quantity of prohibited drug, supplying commercial quantity of prohibited drug, and knowingly dealing with proceeds of crime – where appellant sentenced to aggregate sentence of 14 years imprisonment with a non-parole period of 10 years – whether in determining the aggregate sentence the sentencing judge erred in the application of the totality principle – whether the sentence imposed upon the applicant resulted in double punishment – whether sentence manifestly excessive – appeal dismissed
Legislation Cited:	Crimes Act 1900 (NSW), s 193B(2) Drug Misuse and Trafficking Act 1985 (NSW), ss 24(2), 25(2)
Cases Cited:	Brent Redfern v R (2012) 228 A Crim R 56; [2012] NSWCCA 178 Kwok v R [2018] NSWCCA 200 Pannowitz v R [2016] NSWCCA 13 R v MAK (2006) 167 A Crim R 159; [2006] NSWCCA 381 Soames v R [2014] NSWCCA 158
Category:	Principal judgment
Parties:	Jason John Grogan (Appellant) Regina (Respondent)
Representation:	Counsel: A Djemal (Appellant) K Ratcliffe (Respondent)   Solicitors: D Wakim (Appellant) Office of the Director of Public Prosecutions (Respondent)
File Number(s):	2013/385361
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court of NSW at Gosford Jurisdiction: Criminal Date of Decision: 17 February 2017 Before: Buscombe DCJ

Judgment

1. GLEESON JA: I agree with Harrison J.

2. HARRISON J: Jason Grogan seeks leave to appeal against the severity of sentences imposed upon him by Buscombe DCJ on 17 February 2017 in the District Court of New South Wales at Gosford. Mr Grogan had pleaded guilty in the Local Court on 6 September 2016, and was committed for sentence, with respect to three offences as follows:

1. Manufacture large commercial quantity of a prohibited drug contrary to s 24(2) of the Drug Misuse and Trafficking Act 1985. That is an offence for which the maximum penalty is life imprisonment with a standard non-parole period of 15 years.

2. Supply prohibited drug not less than a large commercial quantity contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. That is an offence for which the maximum penalty is life imprisonment with a standard non-parole period of 15 years.

3. Knowingly deal with the proceeds of crime contrary to s 193B(2) of the Crimes Act 1900. That is an offence for which the maximum penalty is imprisonment for 15 years.

3. His Honour sentenced Mr Grogan to an aggregate sentence of 14 years imprisonment with a non-parole period of 10 years to date from 23 December 2013 and expire on 22 December 2023. His Honour set out the indicative sentences for each offence as follows:

1. Manufacture prohibited drug: imprisonment for 10 years with a non-parole period of 6 years and 6 months.

2. Supply prohibited drug: imprisonment for 8 years with a non-parole period of 5 years and 6 months.

3. Knowingly deal with proceeds of crime: imprisonment for 2 years and 6 months.

4. Mr Grogan relies upon three grounds of appeal as follows:

Ground 1: In determining the aggregate sentence his Honour erred in the application of the totality principle.

Ground 2: The judge erred in factoring a measurement of punishment into the aggregate sentence to account for the proceeds of crime offence resulting in double punishment.

Ground 3: The overall sentence was manifestly excessive.

Background

5. His Honour proceeded to sentence Mr Grogan upon the basis of a statement of agreed facts. Those facts were, for presently relevant purposes, as follows.

6. A strike force was established in November 2012 to investigate the manufacture and supply of large commercial quantities of methylamphetamine by the co-offender Shane Mitchell and his associates. Using various investigative tools, Mr Mitchell was identified as the leader of a sophisticated criminal syndicate, directing and organising other participants, including this applicant. Mr Zehic was also identified as having a significant role in the syndicate in directing, organising and taking part in the various offending.

7. Mr Grogan was actively involved in the manufacture and supply of methylamphetamine. He lived as caretaker at premises in Dog Trap Road, Ourimbah, the site of a large clandestine laboratory set up for the purpose of manufacturing methylamphetamine. He was also involved in the manufacture process, the purchase of equipment for the manufacture, the collection of pseudoephedrine and the delivery of drugs from the laboratory to a property in Palmdale where the vehicle containing the drugs would be left for another syndicate member to deliver them.

8. Various conversations between the offenders, including Mr Grogan, took place between the months of May and October 2013 relating to the supply of methylamphetamine. In conjunction with physical surveillance of the offenders, these conversations revealed an extensive supply of methylamphetamine over several months which generated substantial sums of money.

9. On 5 November 2013, a conversation between Mr Mitchell and Mr Zehic alerted investigators to Mr Grogan becoming involved in the delivery of a significant amount of money, and police followed him to Mr Mitchell’s house before proceeding to an address in Yagoona. Police subsequently recovered a total of $1,197,980. Mobile phone communication between Mr Grogan and Mr Mitchell had been monitored by police throughout.

10. On 23 December 2013, police executed simultaneous search and crime scene warrants at Dog Trap Road, Ourimbah. This was a large semi-rural block surrounded by dense bush. It comprised a house, detachable double lockup garage and two shipping containers. Access to the property was via a 200 metre concealed driveway with a front gate, secured with a number of padlocks.

11. Police forced entry and found Mr Grogan asleep in the main bedroom. He was arrested. Inside the garage police located a sophisticated clandestine laboratory, which was fully set up but inactive at the time. Various chemicals in significant quantities and glassware used in the manufacture of methylamphetamine were located. Police also seized respirators and gloves, which were later examined. A DNA profile was obtained from some of the gloves and respirators matching that of Mr Grogan, and his fingerprints were also found on a pair of gloves. Still images from the property’s CCTV cameras were found which captured Mr Grogan involved in activities associated with the manufacture.

12. Police located hundreds of kilograms of precursor chemicals within one of the shipping containers and 55 bottles containing 27.241 kilograms of methylamphetamine oil and 4.059 kilograms of methylamphetamine blocks in another.

13. Forensic chemists attended the scene. They determined that the laboratory had been used for the production of methylamphetamine and was capable of producing large commercial quantities. The total amount of measurable liquid waste was in excess of 238 kilograms, indicating that it was the by-product of at least 2,359 grams of methylamphetamine.

14. Of the 55 bottles, 23.171 kilograms was examined and found to be methylamphetamine with an average purity of 70.6%. The forensic chemists opined that this oil was the final product of the manufacture. Further chemical processes are required to convert the oil into a crystal or powder form for end user consumption.

Sentence proceedings and findings

15. Mr Grogan was sentenced at the same time as his co-offenders Shane Mitchell and Matthew Morris. Mr Grogan does not suggest in this appeal that he has any justifiable sense of grievance arising from the sentences imposed on either of his co-accused.

16. His Honour made the following relevant findings of fact:

1. The cash which was the subject of the proceeds of crime offence was clearly derived from the supply of methylamphetamine and was used to purchase materials for further manufacture.

2. Mr Grogan clearly took an active part in the manufacture offence by carrying out instructions and purchasing items for use in the manufacturing process and residing at the premises where the laboratory was located.

3. Mr Grogan carried out instructions with respect to the supply and proceeds of crime offences.

4. Mr Grogan involved himself in the offending over a period of several months and for financial gain, although the amount of money that Mr Grogan may have received cannot be determined.

5. The objective seriousness of the manufacture and supply offences was just below the mid-range.

17. Having regard to the way in which Mr Grogan challenges the sentences imposed by his Honour, it is unsurprising that he emphasised what his Honour had to say about totality and accumulation:

“On the issue of accumulation…in my opinion there must clearly be some accumulation between the sentences imposed for the supply and the manufacture offences. The supply offence concerns the supply of methylamphetamine in large quantities for large sums of money. That is discrete criminality from the manufacture offence which relates to the drugs found at the time of the execution of the search warrant. I consider the proceeds of crime offence is effectively an act involved in the supply and the manufacture offences and do not consider it requires a considerable amount of accumulation.”

18. With respect to the proceeds of crime offence it is also pertinent to observe that his Honour had earlier said this:

“The facts in relation to the proceeds of crime offence clearly establish that the money was from the supply of methylamphetamine and was being used to purchase materials to be used for the further manufacture of methylamphetamine, in my view.”

Submissions

Grounds 1 and 2

19. It is convenient to deal with these grounds together.

20. Mr Grogan emphasised that the manufacture offence was particularised to cover events and activities that occurred over a seven day period between 17 December and 23 December 2013. The supply offence in contrast occurred between 4 April 2013 and 17 December 2013. The proceeds of crime offence related to a single event on 5 November 2013 and fell within the period referable to the supply offence.

21. Mr Grogan specifically contended that his Honour correctly held that the sentence for the manufacture offence had to recognise Mr Grogan’s “discrete and additional criminality” referable to that offence. However, when regard is had to what Mr Grogan submitted was “the overlap” in his offending for the supply offence, the accumulation of the sentences by approximately 3.5 years (that is, 14 years minus 8 years plus 2.5 years) to produce the aggregate sentence “was in excess of the overall criminality” by him.

22. Mr Grogan contended that that submission was supported by the fact that the ratio between the head sentence and the non-parole period of the aggregate sentence did not reflect the ratio between the head sentence and the non-parole period for the indicative sentences for the manufacture and supply offences, which were 65 and 68 percent respectively. Mr Grogan submitted that the error was “exemplified” having regard to the degree of accumulation in the case of his co-offender Mr Mitchell, who received an accumulation of 2 years for the same three offences and an additional Form 1 offence, even though he was considered to be the organiser of the syndicate.

23. Mr Grogan submitted that his Honour also erred by attributing additional criminality to the proceeds of crime charge when determining the aggregate sentence. Mr Grogan embraces his Honour’s conclusion that this offence was not one that required “a considerable amount of accumulation” but complains that his Honour nevertheless fell into error to the extent that he provided for any degree of accumulation as the offence “was part and parcel of the supply and manufacture offences.” He relied in this respect upon what was said by Adams J in Brent Redfern v R (2012) 228 A Crim R 56; [2012] NSWCCA 178 as follows:

“[17] It is self-evident, as it seems to me, that the totality of the applicant's criminality in the charged offences is not increased by the fact that he had in his possession the money paid to him for the supply of the drugs. It would be as sensible to have charged and punished him additionally with possession of the drugs for the purpose of supplying the undercover police officer because he had the drugs in his possession. Both the possession of the drug itself and the proceeds of sale are part and parcel of the primary offence. It needs hardly to be said that it is immaterial that he had the cash in his possession at the point of sale as distinct from in the safe in his home. To punish him additionally for either one of those aspects of his conduct is to double count: see Re Attorney General's Application under s 37 of the Crimes (Sentencing Procedure Act) 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146 at [42] ff; Thorn v R [2009] NSWCCA 294; (2008) 198 A Crim R 135 at [27]; Nahlous v R [2010] NSWCCA 58; (2010) 77 NSWLR 463 at [13]-[15]; Schembri v R [2010] NSWCCA 149 at [11]-[16]; Maglis v R [2010] NSWCCA 247 at [9]; cf Hinchcliffe v R [2010] NSWCCA 306.”

24. The Crown’s response was as follows.

25. The extent of any accumulation of sentences is a matter for the sentencing judge: see Davies J in Pannowitz v R [2016] NSWCCA 13:

“[40] … the extent of accumulation is a matter of judicial discretion made in accordance with established principle: R v Hammoud [2000] NSWCCA 540; (2000) 118 A Crim R 66 at [7]. In Regina v XX [2009] NSWCCA 115 Hall J (with whom Tobias JA and Kirby J agreed) set out at [52] a number of propositions that his Honour said could be derived from the case law. Those propositions focused on a consideration of the similarity, differences and the degree of connection between the offending both in time and type to ascertain the extent to which the sentence for one offence can comprehend and reflect the criminality of the other. To those matters may be added a need to ensure public confidence in the administration of criminal justice to avoid the perception that an offender will not be punished more severely for committing multiple offences: Khawaja v R [2014] NSWCCA 80 at [24]-[25] following R v Harris [2007] NSWCCA 130; (2007) 171 A Crim R 267 at [46].”

26. The Crown emphasised that a complaint that the ratio between the head sentence and the non-parole period of the aggregate sentence failed to reflect the equivalent ratio between the head sentences and the non-parole periods of the indicative sentences failed to take account of the fact, emphasised by Rothman J in Soames v R [2014] NSWCCA 158, that “non-parole periods are not the result of an arithmetically precise application of percentages” and that “there is no principle that requires a sentencing judge to impose a uniform ratio between the non-parole period and head sentence for each of the offences for which a sentence is being imposed”: at [25] and [35], respectively.

27. On the suggestion that his Honour erred with respect to his application of the totality principle, having regard to what Mr Grogan contended was the smaller degree of accumulation in the aggregate sentence imposed upon Mr Mitchell, the Crown observed that Mr Mitchell received an aggregate sentence of 20 years with a non-parole period of 15 years. That was a considerably longer sentence than that imposed upon Mr Grogan and was appropriately longer, according to the Crown, having regard to their respective roles. The Crown submitted that, rather than revealing any misapplication of the totality principle, the impugned differentiation in the degrees of accumulation demonstrated that his Honour was in fact mindful of a critical aspect of the totality principle, namely, that the severity of a sentence is not linear but rather increases exponentially as the sentence gets longer: R v MAK (2006) 167 A Crim R 159; [2006] NSWCCA 381 at [16].

Consideration

28. Ascertainment of the extent to which, if at all, the criminality of a supply offence may be comprehended by the criminality of a manufacture offence in the context of a sophisticated drug manufacturing and distribution enterprise must necessarily be a question of fact in any particular case. This issue was recently considered in Kwok v R [2018] NSWCCA 200. In that case, as here, the two counts were related. Bellew J said this:

“[28] Obviously, when a drug is manufactured, it is manufactured for the purposes of supply. In that sense, the offending in the two counts was related. However, I am unable to accept the submission advanced on behalf of the applicant that for the purposes of sentence, one offence was comprehended by, and reflected the criminality of, the other.

[29] Reference to the factual findings of the sentencing judge makes it clear that the two offences involved quite separate and distinct criminality. The applicant’s role in the manufacturing process included:

(i) sourcing items required for the manufacture;

(ii) overseeing and supervising the cooking process over several days;

(iii) attending hardware stores in the course of the process to purchase sundry items necessary to complete it;

(iv) arranging to purchase a refrigerator; and

(v) liaising with others so as to inform them of when the drug would be ready for supply.

[30] It is evident that these activities were separate and distinct from those which centred upon the supply of the drug.”

29. In the present case his Honour described Mr Grogan’s role as follows:

“In terms of the offender Mr Grogan’s role in the three offences, it was clearly less than Mr Mitchell. He had no organising role but he still had a significant role in the offences. But for people like the offender Mr Grogan, offending of this type could not occur. The offender Mr Grogan essentially carried out instructions and orders in relation to all three offences. In relation to the manufacture offence, he is clearly someone who took an active part in the offence. He carried out instructions in relation to the manufacturing process. He resided at the premises where the laboratory was. He was involved in buying items to use in the manufacturing process. He carried out instructions in relation to the supply offence. He carried out instructions in relation to the proceeds of crime offence. He clearly involved himself in the offending for several months and for financial gain, although I am not able to quantify that gain. I assess the objective seriousness of his supply and manufacture offences as being just below the mid-range level of objective seriousness.”

30. With respect to the proceeds of crime offence on 5 November 2013, Mr Mitchell supplied the funds to Mr Grogan and instructed him what to do with them. Mr Grogan collected the funds and delivered them to an address in Yagoona.

31. As the Crown’s submissions emphasised, the three offences each represented distinct phases of a sophisticated criminal enterprise. They were not difficult to characterise separately as discrete activities albeit with some common and overlapping elements. Significantly, although not necessarily decisively, the offences occurred during different periods, or in the case of the proceeds of crime offence, on a different date. It would not have reflected the extent to which the offences were distinct and separate for his Honour to have sentenced Mr Grogan without some level of accumulation to reflect that fact.

32. Clearly enough, questions of totality and accumulation fall to be determined or assessed by a sentencing judge in accordance with the sentencing discretion. Any assault upon the proper exercise of such a discretion needs to establish the existence of some error of the House v The King variety. Mr Grogan has not attempted directly to do so in the present case.

30. Instead, Mr Grogan argues that because the sentence for the proceeds of crime offence should not have been accumulated at all, the 3.5 years of total accumulation must necessarily be referable solely to the other two offences and that in such circumstances that degree of accumulation offends the totality principle. That argument is in turn significantly based upon the proposition that the proceeds of crime offence was not associated with any degree of separate or independent criminality.

31. I accept that there is a level of superficial attraction to the contention that a proceeds of crime offence may on occasion be wholly subsumed in or contemplated by an offence or offences from which the relevant proceeds have been derived. At one level, that amounts to an anterior complaint about the proper exercise of prosecutorial discretion. In the present case, his Honour actually determined that the facts giving rise to the proceeds of crime offence clearly established that the money was from the supply of methylamphetamine. However, despite that connection, his Honour also found that the money was not merely possessed by Mr Grogan, in which case he might have had an argument of the kind that succeeded in Redfern v R, but was in fact being used for the purpose of purchasing materials for the further manufacture of methylamphetamine. Mr Grogan did not challenge that finding as one that was not available on the material before his Honour. To that extent, Mr Grogan is unable in my view to establish that the facts giving rise to the proceeds of crime offence fall wholly within or are entirely comprehended by the facts giving rise to either of the other two offences. The acts constituting the offences are temporally and factually distinct. In my opinion, no question of double punishment arises.

32. I should also note that, once it is accepted, as I do, that the proceeds of crime offence was capable of discrete identification as a separate offence, the 3.5 years total accumulation which Mr Grogan complains offends the totality principle, necessarily loses much force. That is for the obvious reason that the degrees of accumulation, although not separately identified in the context of an aggregate sentence, must be taken to apply to all three offences and not merely as a level of accumulation between only the supply and manufacture offences.

33. I would dismiss grounds 1 and 2.

Ground 3

37. Mr Grogan indicated that this ground should be dealt with compendiously with ground 1. He argued as follows.

38. Mr Grogan received an aggregate sentence of 14 years imprisonment with a non-parole period of 10 years. The indicative sentences for the respective offences have been set out earlier in these reasons. Mr Grogan does not contend that the individual indicative sentences were on their own manifestly excessive. His sole argument is that the degree of accumulation resulted in an overall sentence that was manifestly excessive.

39. Without wishing to do a disservice to the thorough way in which counsel for Mr Grogan presented this argument, it seems to me that in the end it is no more than a restatement of the earlier grounds. Once it is accepted that all three offences were discrete and separate acts of criminality, that the indicative sentences for these offences are unexceptionable and that issues of accumulation and totality are matters primarily in the discretion of the sentencing judge, this ground becomes, in the absence of an identified House v R error, limited to a contention that his Honour’s total accumulation of 3.5 years across three offences is or must have been unreasonable or plainly unjust. Beyond the assertion that it is so, Mr Grogan is not able to point to why this Court should in the circumstances of this case be satisfied that it is. As is well accepted, it is not enough that this Court or some other sentencing tribunal might have come to a different conclusion. In order to succeed, Mr Grogan must establish that his Honour could not reasonably have come to the decision that he did. In my view, Mr Grogan has not done so.

40. I would dismiss ground 3.

41. In the circumstances I propose the following orders:

1. Grant leave to appeal.

2. Dismiss the appeal.

42. DAVIES J: I agree with Harrison J.

**********

Amendments

07 May 2019 - Amended representation for the respondent.

Decision last updated: 07 May 2019