Hadler v The Queen

[2020] NSWCCA 305

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Hadler v R [2020] NSWCCA 305

Hearing dates:

16 November 2020

Decision date:

25 November 2020

Before:

Hoeben CJ at CL at [1];
Price J at [34];
Fagan J at [35]

Decision:

(1)   Leave to appeal against sentence is granted.

(2)   The appeal is dismissed.

Catchwords:

CRIMINAL LAW – sentence appeal – three counts of supply a prohibited drug, two of which involved a large commercial quantity – discount allowed for plea of guilty – discount erroneously applied to aggregate sentence rather than indicative sentences – need to re-sentence – despite error, a less severe sentence is not warranted in law – appeal dismissed.

Cases Cited:

Berryman v R [2017] NSWCCA 297

Cullen v R [2014] NSWCCA 162

Elsaj v R [2017] NSWCCA 124

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

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

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

Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284

Parris v R [2013] NSWCCA 5

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

Regina v Shi [2004] NSWCCA 135

Weiss v R [2020] NSWCCA 188

Category:

Principal judgment

Parties:

Wayne Hadler – Applicant
Regina – Respondent Crown

Representation:

Counsel:
L Brasch/ M Voleynik – Applicant
G Newton – Respondent Crown

Solicitors:
Criminal Defence Group – Applicant
Solicitor for Public Prosecutions – Respondent Crown

File Number(s):

2016/250579

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

12 December 2018

Before:

Madgwick QC ADCJ

File Number(s):

2016/250579

JUDGMENT

1. HOEBEN CJ at CL:

Offences and sentence

The applicant was committed for sentence on 20 April 2018, having pleaded guilty to the following offences:

1. supply prohibited drug (large commercial quantity of cocaine - 2.5471kg) contrary to s 25(2) Drug Misuse and Trafficking Act 1985 (NSW) (maximum penalty: life imprisonment, standard non-parole period: 15 years);

2. supply prohibited drug (large commercial quantity of methylamphetamine - 996.4g) contrary to s 25(2) Drug Misuse and Trafficking Act 1985 (maximum penalty: life imprisonment, standard non-parole period: 15 years); and

3. supply prohibited drug (indictable quantity of cannabis ­- 9.195kg) contrary to s 25(1) Drug Misuse and Trafficking Act 1985 (maximum penalty: 10 years imprisonment).

2. The applicant asked that a further charge, being an offence of knowingly deal with the proceeds of crime, namely $34,800, be taken into account on a Form 1. This offence was contrary to s 193B(2) of the Crimes Act 1900 (NSW). In addition, there were four related charges of possession of other drugs before the court pursuant to a s 166 Certificate.

3. The applicant was sentenced to an aggregate term of imprisonment of 10 years and 6 months with a non-parole period of 6 years and 3 months, to commence on 19 August 2016. The non-parole period will expire on 18 November 2022. This resulted in an aggregate non-parole period that was 59.5 per cent of the total aggregate sentence. The details of each offence, as well as the indicative sentences are set out below:

Sequence	Charge	Max Penalty/SNPP	Indicative Sentence/Sentence
1	Supply large commercial quantity prohibited drug (2.5471 kg of cocaine) s.25(2) Drug Misuse and Trafficking Act 1985, Form 1 offence Knowingly deal with proceeds of crime ($34,800) s. 193B(2) Crimes Act 1900	Life imprisonment SNPP of 15 years 15 years	7 years and 6 months
2	Supply large commercial quantity prohibited drug (996.4g methyl-amphetamine) s.25(2) Drug Misuse and Trafficking Act 1985	Life imprisonment SNPP of 15 years	7 years and 6 months
3	Supply prohibited drug (9.195kg cannabis) s.25(1) Drug Misuse and Trafficking Act 1985	10 years imprisonment	2 years and 3 months
4 s 166 Certificate	Possess prohibited drug (4 counts) Testosterone, Nandrolone; Drostanolone; Trenbolone	2 years	S10A with no other penalty

4. His Honour found that the applicant had pleaded guilty at the earliest reasonable time and was entitled to the full 25 per cent discount for the utilitarian value of his plea. His Honour found special circumstances due to the sentence being the applicant’s first time in custody, his minor criminal record, his acceptance of responsibility and his attitude to receiving treatment in the community upon his release.

5. The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the aggregate sentence imposed by Madgwick QC ADCJ as follows: The sentencing judge erred in applying the sentencing discount for the pleas of guilty to the aggregate sentence and not the indicative sentences.

6. The co-offender, Rohan Hadler, was sentenced by his Honour on 30 November 2018. He was sentenced to an aggregate sentence of 10 years imprisonment with a non-parole period of 6 years. The offences and indicative sentences relating to him are as follows:

Sequence	Charge	Max Penalty/SNPP	Indicative Sentence/Sentence
1	Supply large commercial quantity prohibited drug (2.44 kg of cocaine) s.25(2) Drug Misuse and Trafficking Act 1985, Form 1 offence Knowingly deal with proceeds of crime ($40,000) s. 193B(2) Crimes Act 1900	Life imprisonment SNPP of 15 years 15 years	7 years and 6 months
2	Supply large commercial quantity prohibited drug (996.4g methyl-amphetamine) s.25(2) Drug Misuse and Trafficking Act 1985	Life imprisonment SNPP of 15 years	7 years and 6 months
3 s 166 Certificate	Possess prohibited drug (4 counts) Testosterone, Nandrolone; Drostanolone; Trenbolone	2 years	S10A with no other penalty

Factual background

7. In the sentence hearing, the Crown tendered an agreed statement of facts in relation to both the applicant and Rohan Hadler. His Honour summarised the facts in his sentence judgment. Those facts included the part played by Rohan Hadler.

8. In May 2015, police initiated a strike force to investigate the supply of large commercial amounts of prohibited drugs by the applicant. On 19 August 2016, CCTV depicted the applicant and Rohan Hadler purchasing a white coloured two door filing cabinet and a roll of plastic bubble wrap from Office Works Penrith. They returned to the applicant’s primary residence at Glenmore Park. Surveillance devices captured both the applicant and Rohan Hadler entering the garage. Rohan Hadler was seen to be carrying the filing cabinet into the garage. The applicant and Rohan Hadler began packing items consistent with a prohibited drug into the filing cabinet. The filing cabinet was placed back into a cardboard box. The applicant and Rohan Hadler exited the garage with Rohan carrying the same large cardboard box out of the premises. It was loaded into the applicant’s Toyota Hilux vehicle.

9. Shortly thereafter, police stopped the vehicle and the applicant and Rohan Hadler were removed. A search of the vehicle revealed the cardboard box containing the filing cabinet. Rohan Hadler was searched and the key to the cabinet was located in his pocket. The following items were located inside the bottom locked drawer:

1. 2.44kg of cocaine (bulk wholesale street value of $500,000 with a purity of 66.5 per cent) (part of Sequence 1);

2. 996.4g of methylamphetamine (bulk wholesale street value of $150,000 with a purity of 80.5 per cent (Sequence 2); and

3. 300g of Testosterone; 95g of Nandrolone; 100g of Drostanolone; 100g Trenbolone (s 166 Certificate).

10. The applicant and Rohan Hadler were arrested. “Blackberry” encrypted mobile devices were located during the search of both males. Search warrants were issued with respect to two properties at Glenmore Park. The following items were located at the primary residence of the applicant:

1. 107.1g of cocaine located in the ceiling of the applicant’s garage (purity of 71.5 per cent) (balance of Sequence 1);

2. $40,000 in Australian cash located in Rohan Hadler’s suitcase along with various other personal documents; and

3. Australian currency totalling $11,160.

11. The following was located at the second premises:

1. 9.19kg of cannabis secreted in sealed silver tins (Sequence 3); and

2. Australian currency hidden throughout the house totalling $34,800 (Form 1).

Assessment of the offences and the role of the applicant

12. His Honour noted the maximum penalties for the offences. He noted that the amount involved in Sequence 1 (2.5471kg) was “well above” the minimum quantity required for a large commercial supply of cocaine (1kg). He noted that Sequence 2 involved the supply of 996.4g of methylamphetamine and that the large commercial quantity for that drug was 500g. His Honour also noted that the amount of cannabis supplied (Sequence 3) was less than half the quantity designated as the commercial quantity of that drug which is 25kg.

13. His Honour assessed the offences and the applicant’s role as follows:

“This offender was a long time drug user and had been observed by his partner a few years earlier to have an evident problem with drugs. He says he continued with the drugs and now realises that he was in fact an addict. He was however a highly functioning addict, running his own self-employed business as a fitness coach, and it seems likely his own background with drugs dulled his judgment about the advice that he gave his cousin, and the pair agreed to get involved in drugs here. I accept that this was primarily to assist Rowan’s [sic] dire debt position but I think it was also to make some money on their own account. They both had large amounts of cash acknowledged to have been partly the proceeds of involvement in a drug supply venture.

The inference that this man had moved beyond that to be involved on his own account is even stronger, because of the finding of the cannabis. The view I took in relation to Rowan [sic] was that the pair “were in business to some extent as partners ... in which case they were principals or had some lesser role than as principals but nevertheless had sufficiently great involvement and enmeshment with others possibly higher than them in a chain of command to earn very substantial amounts of money”. I thought that Rowan’s [sic] role should be regarded as “being between a low level of responsibility and a middle level of responsibility”.

I further observed:

“The quantities of the drugs were, in relation to charges of this kind, towards the lower end. All of this must be put in context. There were two separate drugs each involving a large commercial quantity. The total value of the drugs was over $600,000. Any involvement is on absolute scale serious, notwithstanding what I have said about relative responsibility.”

In this man’s case the total value of the drugs was $750,000” (Sentence judgment 3.1-3.9).

14. In relation to the moral culpability of the applicant, his Honour said:

“.... I am prepared, broadly, to accept that the offender became involved out of a misplaced desire to help his cousin and I accept that his long experience with drugs himself had dulled and warped his judgment about the impropriety of doing that and accounts for his failure to give effective, sensible advice to Rowan [sic]. Apart from his fears for Rowan’s [sic] family, he and his own family were under no great threat and he walked into the business without the sort of terror that Rowan [sic] probably did feel.

However, each man had a large amount of cash, Rowan [sic] somewhat more but not significantly more, and this man had a considerable quantity of cannabis, on his own account. I think both of them were in the business to the extent they were, both to arrange payment of Rowan’s [sic] debt and to make some money themselves on the side. This man continued to work and it is true that it was not the sole source of income” (Sentence judgment 7.8-8.4).

15. His Honour found that the “concurrent involvement” of the applicant and Rohan Hadler and the “real similarity of their subjective cases” was such that the sentence he imposed on Rohan Hadler in relation to Sequences 1 and 2 was appropriate for the applicant. His Honour did, however, also make some allowance for the cannabis offence committed by the applicant (Sequence 3) stating that “there should be some increase in the aggregate sentence overlap given to Rowan [sic] but, in my opinion, it need not be high” (Sentence judgment 7.3).

Subjective circumstances

16. His Honour summarised the applicant’s subjective case in his reasons noting the following:

1. the applicant was 37 years old at the time of sentence;

2. he was a long-time drug user and a highly functioning addict running his own self-employed business as a fitness coach;

3. his involvement in drugs was primarily to assist the co-offender’s dire debt position but also to make money;

4. he did not have the sort of grossly deprived background that many offenders have but his upbringing was “not all roses”;

5. his father was a serviceman who contracted asbestosis in the course of his work and suffered from post-traumatic stress disorder following events that occurred during his service in the defence forces;

6. communication between the applicant and his father had been ineffective;

7. the applicant had a partner and assumed the role of stepfather to her two daughters;

8. he and his partner also had a son who was diagnosed with ADHD but is also considered gifted;

9. his arrest shattered his family and his partner had fallen into depression;

10. the applicant did not do well at school but had a strong work ethic and had tried a number of fields;

11. he had used his time in gaol productively and was a model prisoner;

12. he continued to have the support of his family and friends;

13. his prospects of rehabilitation, subject to supervision, were strong;

14. he was assessed by Dr Nielssen as having a substance abuse disorder in remission and a substance related anxiety disorder. He began taking cannabis at the age of 13 and after leaving school experimented with amphetamines, LSD and MDMA and more lately with anabolic steroids; and

15. the complications of those conditions had considerable effects on his educational performance, triggering symptoms of the anxiety disorder and leading to earlier minor convictions.

GROUND OF APPEAL

Ground 1 – The sentencing judge erred in applying the sentencing discount for the pleas of guilty to the aggregate sentence and not the indicative sentences

17. Section 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Act) sets out the manner in which a guilty plea is to be taken into account on sentence.

18. Sections 53A(5) and 22(4) of the Act both provide that non-compliance with those sections (in each case) does not invalidate any sentence of imprisonment imposed.

19. It is accepted that, if a discount is to be applied, it should be applied to the indicative sentences before the imposition of the aggregate sentence, in accordance with established principle, as discussed in the judgment of Button and N Adams JJ in PG v R (2017) 268 A Crim R 61; [2017] NSWCCA 179 at [76]. See also JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297 at [39.3] and Berryman v R [2017] NSWCCA 297 at [29], citing Elsaj v R [2017] NSWCCA 124 at [56].

20. Where a discount is applied to the aggregate sentence rather than the indicative sentences, error is disclosed (Ibbotson (a pseudonym) v R [2020] NSWCCA 92 at [138] –[145], [7]-[17]; Weiss v R [2020] NSWCCA 188 at [69]-[73]).

21. The analysis of Leeming JA in Ibbotson set out the capacity of the erroneous approach adopted in this case to influence the sentence. At [13] his Honour said:

“... The sentencing judge should bear in mind the actual sentences which would have been imposed for the individual offences ... when applying the principle of totality, not merely so as to comply with s 54A, but also so as to assess the extent to which the “sentence for one offence [can] comprehend and reflect the criminality for the other offence...”

22. It was in that context that the respondent conceded error in relation to Ground 1.

Re-sentence

23. Error having been established, it is necessary for this Court to undertake afresh a separate and independent exercise of the sentencing discretion. In doing so, the Court has to take into account the full range of factors relevant to the imposition of an appropriate sentence. It is also necessary to have regard to circumstances as of the date of re-sentence.

24. There was before the Court an affidavit of the applicant, sworn 2 September 2020. This showed that the applicant was doing well in prison and supported the finding by the sentencing judge that the applicant had good prospects of rehabilitation.

25. In this matter the applicant does not assert on appeal that the aggregate sentence imposed by his Honour of 10 years and 6 months imprisonment with a non-parole period of 6 years and 3 months was not within the bounds of the proper exercise of the sentencing discretion. Moreover, there is no challenge by the applicant to any of the factual findings made by his Honour, nor his Honour’s assessment of the seriousness of the offences or the role of the applicant in those offences.

26. Given the similarity which his Honour found between the offending of the applicant and that of Rohan Hadler, some regard needs to be had on re-sentencing to the parity principle but only in a general sense. This is because the aggregate sentence imposed on Rohan Hadler was subject to the same error as has affected the applicant’s sentence, i.e. the plea of guilty discount was applied to the aggregate sentence, not to the indicative sentences.

27. Relevant factual findings made by his Honour which have not been challenged are:

1. the maximum penalty for Sequences 1 and 2 of life imprisonment and the standard non-parole period of 15 years for those offences are significant statutory guide posts;

2. the aggregate sentence related to three supply prohibited drug offences involving three different drugs and took into account a further matter on a Form 1. The amount involved in relation to Sequence 1 was more than double the large commercial quantity and in relation to Sequence 2 almost double the large commercial quantity;

3. the total value of the drugs was $750,000;

4. the drugs, the subject of the supply offences, were relatively high in purity;

5. the amount of cash that constituted the proceeds of crime offence on the Form 1 was substantial and is to be taken into account as giving greater weight to the need for personal deterrence and retribution;

6. although the prime motivation for the offending was primarily to assist Rohan Hadler’s “dire debt position”, it was also intended to make money for the applicant. Both the applicant and Rohan Hadler had in their possession large amounts of cash which it was accepted were partly the proceeds of involvement in the drug supply venture;

7. his Honour found that the applicant and Rohan Hadler were “in business to some extent as partners ... in which case they were principals or had some lesser role than as principals but nevertheless had sufficiently great involvement and enmeshment with others, possibly higher than them, in a chain of command to earn very substantial amounts of money” (Sentence judgment 3.6);

8. the applicant had matters in his criminal history which would disentitle him to leniency;

9. his Honour set out at length and properly took into account the applicant’s subjective case (Sentence judgment 4.2-6.4); and

10. a finding of special circumstances was made in the applicant’s favour which allowed a 4 year 3 month period on parole (i.e. 40.5 per cent of the full term) which was ample time for the applicant to rehabilitate successfully into the community without further offending.

28. When regard is had to those factual findings, the following statements of principle need to be kept in mind.

29. General deterrence and protection of the community are important considerations in sentencing for drug supply offences: Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284 at [109]-[110]. In Parris v R [2013] NSWCCA 5 Adamson J said:

“35   ... general deterrence and punishment are important considerations in sentencing offenders and will generally outweigh subjective circumstances, particularly in the determination of the total sentence...”

30. In Regina v Shi [2004] NSWCCA 135, Wood CJ at CL, with whom Spigelman CJ and Simpson J agreed, said:

“34   ... the well recognised principle that the culpability of those who engage, at any level, in drug supply networks is significant, and that deterrent sentences are necessary, since absent the involvement of couriers, warehousemen and so on, these networks, whether established for the purposes of importation or subsequent distribution, would simply collapse: R v Le Cerf (1975) 13 SASR 237 and R v Laurentio and Becheru (1962) 63 A Crim R 402.”

31. In Cullen v R [2014] NSWCCA 162 Adamson J said:

“47   ... the drug offences of supplying a large commercial quantity of drugs each carry a maximum life sentence and a standard non-parole period of 15 years. The other supply offences carry a maximum term of 15 years. These legislative guideposts provide an indication of the seriousness with which Parliament views such offences: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [27]. The difficulties of detecting drug offences and the great social consequences that follow from their commission are relevant features of such offences: Wong v The Queen at [64] per Gaudron, Gummow and Hayne JJ.”

32. Having regard to those matters and the undisputed factual findings of the sentencing judge, I have concluded that despite the error identified in Ground of Appeal 1, a less severe sentence is not warranted in law and that the appeal should be dismissed (Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [35] and [42]).

33. Accordingly, the orders which I propose are:

1. Leave to appeal against sentence is granted.

2. The appeal is dismissed.

34. PRICE J: I agree with Hoeben CJ at CL.

35. FAGAN J: I agree with the Chief Judge.

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Decision last updated: 25 November 2020