Healey v R

[2018] NSWCCA 214

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Healey v R [2018] NSWCCA 214
Hearing dates:	12 March 2018
Date of orders:	05 October 2018
Decision date:	05 October 2018
Before:	Macfarlan JA [1]; Johnson J [2]; Campbell J [3]
Decision:	(1) Grant leave to appeal. (2) Appeal dismissed.
Catchwords:	CRIMINAL LAW – sentence appeal – aggregate sentence – serious drug supply and related offences – form 1 offences – pleas of guilty – indicative sentences – whether the applicant has a justifiable sense of grievance as a result of the indicative sentence – whether the sentencing judge erred in assessing the objective gravity of the supply of a commercial quantity of drug offence – parity principle – role in drug offences – no lesser sentence warranted in law
Legislation Cited:	Criminal Appeal Act 1912 (NSW), s 5 Crimes (Sentencing Procedure Act) 1999 (NSW), s 53A Drug Misuse and Trafficking Act 1985 (NSW), ss 24B, 25 Drug Misuse and Trafficking Amendment (Methylamphetamine) Regulation 2015 (NSW)
Cases Cited:	Andreata v R [2015] NSWCCA 239 Clarke v The Queen [2013] NSWCCA 260 Fato v R [2017] NSWCCA 190 Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 Hiron v R [2018] NSWCCA 10 House v The King (1936) 55 CLR 499; [1936] HCA 40 JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 38 Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255 Lowe v The Queen (1984) 154 CLR 606; (1984) HCA 46 Mansaray v R [2018] NSWCCA 16 O’Grady v The Queen (2014) 252 CLR 621; [2014] HCA 38 Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 R v MacDonnell [2002] NSWCCA 34; (2002) 128 A Crim R 44 Saraya v R [2015] NSWCCA 63 Wan v The Queen [2017] NSWCCA 261 Wong v The Queen; Leung v The Queen (2001) 207 CLR 584; [2001] HCA 64
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Dean Joseph Healey (Applicant) Regina (Respondent)
Representation:	Counsel: H Dhanji SC (Applicant) F Veltro (Respondent)   Solicitors: KP Lawyers & Barristers (Applicant) Office of the Director of the Public Prosecutions (Respondent)
File Number(s):	2015/00043738
Decision under appeal	Court or tribunal: Penrith District Court Jurisdiction: Criminal Date of Decision: 24 May 2016 Before: Buscombe DCJ File Number(s): 2015/00043738

Judgment

1. MACFARLAN JA:   I agree with Campbell J.

2. JOHNSON J: I agree with Campbell J.

3. CAMPBELL J: The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) (“Criminal Appeal Act”) to appeal from an aggregate sentence imposed upon him by his Honour Judge Buscombe on 24 May 2016 in the District Court at Penrith.

4. The aggregate sentence imposed consisted of a non-parole period of 7 years commencing on the date of the applicant’s arrest of 11 February 2015 and expiring on 10 February 2022 and an additional term of 3 years commencing on 11 February 2022 and expiring on 10 February 2025. The sentence was imposed on the applicant’s plea of guilty to a series of serious drug supply and related offending over the period commencing on 1 December 2014 and ending with his arrest on 11 February 2015. The applicant was sentenced for 4 principal offences with 4 other related offences being taken into account on a Form 1.

5. The 4 principal offences consist of 1 count of supplying not less than the large commercial quantity of cocaine contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (“Drug Misuse Act”) (the 4 Form 1 offences were appurtenant to this matter); and 3 counts of supplying not less than the commercial quantity of prohibited drugs, also contrary to s 25(2) of the Drug Misuse Act.

6. The large commercial quantity charge carries a maximum penalty of life imprisonment and a standard non-parole period of 15 years imprisonment. Each of the commercial quantity offences carries a maximum penalty of 20 years imprisonment and a standard non-parole period of 10 years imprisonment.

7. The indicative sentences nominated by the sentencing judge for each of the separate offences were as follows:

1. For the supply of the large commercial quantity of 1084.9 grams of cocaine, a sentence consisting of a non-parole period of 4 years and 6 months, with a balance of term of 3 years, totalling 7 years and 6 months;

2. For the supply of the commercial quantity of 163.97 grams of 3,4-methyl​enedioxymethamphetamine (“MDMA”), a sentence consisting of a non-parole period of 3 years and a balance of term of 2 years and 6 months, totalling 5 years and 6 months;

3. For the offence of supplying a commercial quantity of 3,4-methylenedioxyamphetamine (“MDA”) totalling 395.47 grams (this is the matter, the subject of Ground 1 below) a term of imprisonment consisting of a non-parole period of 3 years and 6 months and a balance of term of 3 years, totalling 6 years and 6 months; and

4. For the offence of supplying more than the commercial quantity of methylamphetamine totalling 715.7 grams (this charge is the subject of Ground 2 below), a term of imprisonment consisting of a non-parole period of 3 years and 6 months and an additional term of 3 years, being a total of 6 years and 6 months.

Grounds of appeal

8. There are two grounds of appeal only, the second of which was added by leave on the day of the hearing. They are:

1. Ground 1:   The applicant has a justifiable sense of grievance as a result of the indicative sentence that would have been imposed had a separate sentence been passed with respect to the supply of the commercial quantity of 395.47 grams of MDA, and the sentence indicated in relation to the co-offenders, Gary Hardman (“Hardman”) and Paul Rowsell (“Rowsell”) respectively, for their involvement in the offence.

2. Ground 2: The learned sentencing judge erred in assessing the objective gravity with respect to the supply of the commercial quantity of methylamphetamine (namely, 715.7 grams of methylamphetamine found in the applicant’s home upon execution of a search warrant after his arrest) by assessing the quantity involved in the offence as “almost six times the commercial quantity” when it was less than three times the commercial quantity (AB 19 – 20).

Background facts

9. The applicant’s involvement in the subject offending was detected incidentally during a police undercover investigation into a co-accused, Rowsell, the subject of the parity ground. Rowsell had been sentenced separately, and prior to the applicant, by Williams ADCJ on 29 January 2016. I will return to the details of that sentence.

10. Rowsell was suspected by police of being involved in the supply of prohibited drugs in the Taree area. He was alleged to be a member of an outlaw motorcycle gang said to be involved in the drug trade there.

11. Lawful police electronic surveillance of Rowsell, including by lawful telephone intercept, led police to the other co-offender, Hardman. Hardman was sentenced by the sentencing judge on the same occasion as the applicant. On the occasion of a supply of methylamphetamine by Rowsell to an undercover police officer, the former indicated he could obtain any MDA pills that the officer wished to solicit. In a coded conversation on 25 November 2014, Rowsell and Hardman were recorded speaking about the matter. Later on the same day Hardman rang and spoke to the applicant, reporting back to Rowsell that “it was all good” (AB 9).

12. In a confused coded message, the undercover officer intended to convey an order for 100 pills which Rowsell misunderstood as 1,000 pills. The order for 1,000 MDA pills was passed on to Hardman who passed it on to the applicant, who in turn nominated the price which was passed back to Rowsell by Hardman.

13. A meeting was arranged for 1 December 2014 at a location in Penrith. Rowsell and Hardman arrived first, soon followed by the applicant who brought with him a box containing 1,000 MDA pills, which he handed to Hardman who passed it on to Rowsell. Each inspected the contents.

14. The undercover agent arrived a few minutes later. When shown the contents of the box, the mistake became apparent with the undercover officer indicating he had only brought enough money for 100 pills. One may infer consternation, all round. The undercover officer then spoke directly with the applicant who agreed to supply the required 100 pills. They organised between themselves, cutting out Rowsell and Hardman, another meeting for the direct supply by the applicant to the undercover officer of the remaining 900 pills. After a short delay, the applicant gave the undercover officer what turned out to be 96 pills and a quantity of tablet fragments in exchange for $1,500. Analysis confirmed the pills contained 20.51 grams of the prohibited drug MDA of 22 per cent purity.

15. As a result of further direct contact between the applicant and the undercover officer the remaining pills were supplied on 8 December 2014. The total amount involved was actually somewhat short of the agreed balance being 874 pills, having a weight of 185.7 grams and a purity of 23 per cent. Arrangements were also made to supply a further 1,000 pills. These were purportedly supplied on 8 January 2015. However, the actual supply was 921 pills, having a gross weight of 189.26 grams and approximately 20 per cent purity. These 3 transactions of the prohibited drug MDA totalled 395.47 grams at a total price of $21,500. These 3 transactions were rolled into a single count which is the subject of Ground 1.

16. In an affidavit read at the proceedings on sentence, on which he was not cross-examined, the applicant described his role in the drug offending generally in the following terms which the sentencing judge accepted. The applicant said that he was:

“… [a] middle man, supplying drugs on behalf of the owner to the undercover operative (UCO). At all times when I supplied it for and on behalf of the owner of the drugs. As I was approached for drugs, the owner left it up to me to deal with the UCO. I would always report back to the owner and could only finalise a deal based upon what I was authorised to do. I was paid in cash and cocaine for my involvement.”

Other facts relevant to the parity argument

17. As I have said Rowsell was involved in the supply of the commercial quantity of the MDA. He was sentenced by Williams ADCJ on 29 January 2016 for his involvement in the applicant’s offending and another drug offence involving the supply of a commercial quantity (429.72 grams) of methylamphetamine. For his involvement in the supply at Penrith he was charged with the offence of offering to supply not less than the commercial quantity of the 1,000 pills of the MDA. He was sentenced to an aggregate term of 5 years and 6 months imprisonment with a non-parole period of 3 years and 6 months. The indicative sentence for the common offence was one of 4 years imprisonment with a non-parole period of 2 years. For the purpose of sentencing Rowsell, Williams ADCJ was of the view that there was relative parity with regard to Hardman, but considered that the applicant was “clearly someone who seems to be higher in the drug hierarchy than … Mr Rowsell” (AB 56).

18. The sentencing judge sentenced Hardman at the same time as the applicant to a fixed term of imprisonment of two years duration to be served by way of an intensive correction order.

19. Each offender pleaded guilty in the Local Court and received a discount of 25 per cent for the early plea in respect of each charge. The only charge Hardman faced was knowingly taking part in the supply of not less than the commercial quantity of the MDA. Mr Dhanji of Senior Counsel for the applicant accepted that there were significant differences in the offending of the applicant when compared with Hardman and Rowsell. He argued, however, that all were participants in the same enterprise relating to the intended (even if mistaken) supply of 1,000 pills of MDA. He accepted that Hardman was a mere conduit or facilitator and it could not be shown that he had received any financial benefit from his participation. However, as a go-between for the applicant and Rowsell “[he] was fully aware of the scale of the proposed transaction” and the price nominated by the applicant (Applicant’s Written Submissions at [41]). It was argued in this Court that while his involvement was less serious, he was a central participant in the supply.

20. Mr Dhanji submitted that Rowsell’s involvement was much higher than Hardman’s. He was responsible for introducing the undercover officer and he sought to make a profit, charging a commission of $1 on each pill supplied. This put him in the same category as the applicant, so it was argued, in as much as he sought to negotiate a price for his own benefit. It was argued his involvement, for as long as he was in fact involved, was therefore similar to the involvement of the applicant.

21. It was also argued that the subjective circumstances of each were broadly similar. If anything the applicant’s were more positive given that the sentencing judge had described his prospects of rehabilitation as excellent due to his exemplary conduct, including his work participation, while in custody.

22. Mr Dhanji accepted that the applicant could probably have expected a longer indicative sentence than either Hardman or Rowsell, but that given all relevant factors, there was a justifiable sense of grievance arising out of the respective indicative sentences and the sentence actually passed on Hardman.

23. The Crown characterised the role of each in this way: Rowsell had the relationship with the buyer; Hardman acted as the conduit, and the applicant was in a position to procure and supply the required pills. However, after the mistake became apparent Rowsell and Hardman dropped, or were cut, out and the applicant and the undercover officer commenced an ongoing direct relationship pursuant to the contact they had made at Penrith on 1 December 2014.

24. Focusing upon the particulars of the relevant charge brought against the applicant, he supplied the undercover operative with a total 1,895 pills (395.47 grams) of MDA over 3 separate transactions for, as I have said, a total payment of $21,500 in cash. The applicant’s criminality for the offence extended well beyond even the intended involvement of Rowsell and Hardman, to say nothing of their actual involvement in the supply of 100 pills.

The sentencing judge’s decision on parity

25. It should be said that the sentencing judge did not consider parity in regard to all 3 offenders. He compared Rowsell to Hardman and Rowsell to the applicant separately. As between Rowsell and Hardman he considered that there was “no real issue of parity” because Rowsell was far more involved in drug trafficking than Hardman and faced an additional charge (AB 13). Similarly, his Honour considered that no real issue of parity arose between Rowsell and the applicant because of “the number of offences [the applicant] is to be sentenced for and [Williams ADCJ’s] findings as to [Rowsell’s] role vis-à-vis the offender’s” (AB 24).

Decision on Ground 1

26. It may be accepted that the learned sentencing judge approached the question of parity too narrowly. The consideration that Rowsell and the applicant had different roles, faced multiple charges of which they were co-offenders in respect of one only, and that the applicant’s offending was much more extensive than Rowsell’s did not mean that no question of parity could arise. As Mr Dhanji points out, the totality principle as expounded in Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 (“Pearce”) recognises that in sentencing offenders for multiple offences questions of “disparity between co-offenders” may still arise (at [48]). Of course, Pearce was decided before the enactment of s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), providing for the imposition of aggregate sentences for multiple offences. Indeed, a purpose of the enactment of s 53A was the amelioration of some of the complexities of sentencing which arise in the application of the decision in Pearce: JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528 (“JM v R”) at [39].

27. As McCallum J said in Clarke v The Queen [2013] NSWCCA 260 in relation to a parity ground (at [68]):

“In comparing the two sentences, it is necessary to bear in mind the fact that the applicant received an aggregate sentence. I see no reason in principle why, in order to determine whether there has been equal justice, a sentence passed on a co-offender may not be compared with an aggregate sentence, taking due account of the other offences comprehended within the aggregation. A primary consideration in that exercise will of course be to consider the indicative sentence for the equivalent offence. That is one of the functions of the requirement under s 53A(2) for the judge to identify the sentence that would have been passed if not an aggregate sentence. It does complicate the task but that is no warrant for overlooking the norm of equal justice, in my view.”

28. As Beech-Jones J (Payne JA and Fagan J agreeing) explained in Wan v The Queen [2017] NSWCCA 261 (“Wan”) (at [39]), the parity principle operates upon what has been described as “marked disparity” between the sentences imposed on co-offenders such as to give rise to a “justifiable sense of grievance” in one of them (Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46 (“Lowe”) at 610 per Gibbs CJ). Of particular relevance to the present case is his Honour’s observation (at [39] – [41]) that “the application of the parity principle is not excluded by the circumstance that participants in a criminal enterprise are charged with different offences”. The application of the principle is governed “by consideration of substance rather than form”: Green v The Queen; Quinn v the Queen (2011) 244 CLR 462; [2011] HCA 49 at [30].

29. Johnson J pointed out in Hiron v R [2018] NSWCCA 10 at [50] that the test is entirely objective. By reference to Lowe at 613 (per Mason J), his Honour said the question is,

“rather whether any disparity between sentences engenders a justifiable sense of grievance and an appearance of injustice to “that impassive representative of the community, the objective bystander” (citations omitted).

It was for this reason that Meagher JA, Fullerton and Schmidt JJ pointed out in Saraya v R [2015] NSWCCA 63 at [11], that, “it is the presence of unjustifiable disparity that is the ground for intervention…” (Emphasis added.)

30. One should also bear in mind the concession by the applicant that his involvement in the common offending called for a heavier sentence than the actual involvement of the co-offenders. This reduces the area of dispute to one of degree. The extent to which there should be a difference in the respective sentences is one on which reasonable minds may legitimately differ. Such questions are generally within the proper confines of the general sentencing discretion which do not excite appellate intervention: Mansaray v R [2018] NSWCCA 16 at [38] – [40], per Hoeben CJ at CL (Macfarlan JA and Garling J agreeing).

31. Although the trial judge may have approached the parity question too narrowly, I am not satisfied that his Honour fell into error in the process of indicating the sentence that he would have passed on the applicant for the common offence had he not decided to impose an aggregate sentence for all of his offending. In my judgment when one assesses the part played by each of the co-offenders in respect of the common offending there is no marked, or unjustifiable, disparity between the sentences imposed. The differences between the offenders extended well beyond the consideration that Rowsell might be regarded as a retailer with direct contact to a customer; Hardman a go-between or conduit; and the applicant the trusted representative of the supplier with actual authority to deal on the supplier’s behalf at least “within certain parameters” (AB 19).

32. Focusing upon the common offending in isolation from the other offences, the applicant’s involvement was much more extensive than that of the co-offenders. It is necessary to repeat some of the salient facts. After the intended supply of 1,000 pills on 1 December 2014 misfired, he separately arranged to supply the additional pills directly to the undercover officer separately from the co-offenders and completed that transaction in their absence on 8 December 2014. He also separately negotiated the supply of another 1,000 pills (in the event 921) which were delivered on 8 January 2015. These three supplies totalled 1,895 pills, as I have said. Naturally the quantity of pills supplied is not decisive of the appropriate sentence (as the sentencing judge recognised (AB 11)), but nor is it in any way irrelevant. The quantity of the drugs supplied must always remain a highly relevant consideration: Wong v The Queen; Leung v The Queen (2001) 207 CLR 584; [2001] HCA 64 (“Wong”) (at [67] – [70]). In truth, although Rowsell and Hardman were prepared to involve themselves in the supply of 1,000 pills, they were mistaken about the magnitude of the order placed by the undercover officer. And their involvement came to an end after the much reduced supply on 1 December 2014. The sentencing judge accepted that Hardman had no expectation of financial gain, and received no share of the profit. Although Rowsell was motivated by the expectation of financial gain, there is no evidence that his expectation was realised.

30. In substance, although their subjective cases were not identical as, again, Mr Dhanji accepts, each was able to propound a positive subjective case allowing for some differences among them. That each had a positive case does not persuade me that there was marked disparity in the sentences passed, in the case of Hardman, or indicated, in the cases of Rowsell and the applicant.

31. I would dismiss Ground 1.

Facts relevant to the other offending

35. It is unnecessary to descend into great detail about the facts giving rise to the offending in the other matters covered by the aggregate sentence. The next offending chronologically is the supply of the commercial quantity of 163.97 grams of MDMA. This offending was again by arrangement made between the applicant and the undercover officer directly. It occurred in two tranches. The first delivery was on 18 December 2014 when the applicant supplied 526 MDMA pills weighing 142.76 grams with purity in the range of 21.5 to 23 per cent. The price was $5,000. At the same time a small quantity of .91 grams of methylamphetamine of 8 per cent purity was supplied. This was a sample in anticipation of a later supply, and not the subject of the charge I am referring to. The second delivery occurred on 8 January 2015 at the same time as the third delivery of MDA pills, the subject of the parity ground. The second delivery of MDMA consisted of 78 pills weighing 21.21 grams and having a purity of 20 per cent. There does not seem to have been any separate payment for that supply. The indictable quantity for this drug is 1.25 grams and the commercial quantity, 125 grams.

36. His Honour observed that the total amount the subject of the offending was only “a little over the commercial quantity” and “the purity of the drug was relatively low” (AB 19). His Honour considered the objective seriousness to be just below the mid-range of seriousness for offences of that kind.

37. From 8 January 2015 the undercover officer solicited the supply of cocaine from the applicant. After making inquiries, the applicant informed the undercover officer by text message that cocaine would cost $7,500 per ounce and $230,000 per kilogram. During the negotiations, the applicant informed the undercover officer that “he was making $5,000 from each kilogram himself” (AB 17). On 28 January 2015, in response to the undercover officer’s request, the applicant supplied a total of 83.9 grams of cocaine divided between 3 bags at a total price of $22,500. The average purity was 73.5 per cent.

38. After this initial supply of cocaine there were further negotiations between the applicant and the undercover officer with the intent that the applicant would supply as much as 2 kilograms of cocaine. The applicant made it clear that arrangements would have to be made with a third party for the supply of such an amount. After further negotiations, it was agreed that only 1 kilogram could be supplied in the short term, but a further kilogram could be supplied later. The first supply of the large quantity was arranged for 11 February 2015. That operation occurred under police surveillance and as the undercover officer was handing the applicant $225,000 in cash, the latter was arrested. At the time of the arrest police seized a quantity of cocaine, which on analysis weighed 1,001 grams and had a purity of 84.5 per cent.

39. At the time of the supplies on 28 January 2015 and 11 February 2015, the indictable quantity for cocaine was 5 grams, the commercial quantity 250 grams and the large commercial quantity 1,000 grams. The total cocaine supplied was 1,084.9 grams. In assessing the objective seriousness of this offence his Honour observed that the amount supplied was “just over the large commercial quantity, [and] the cocaine was of a high purity” (AB 19). He assessed the offence as “just below the mid-range of objective seriousness” (AB 19).

40. After the applicant’s arrest the police executed a search warrant at his home where quantities of methylamphetamine were located in various places totalling 715.7 grams. This is the subject of the final supply of not less than a commercial quantity of a prohibited drug charge. When dealing with this offence, his Honour remarked that the amount was “…almost six times the commercial quantity” (AB 19 – 20). He assessed the offending within the mid-range of objective seriousness. I repeat this is the subject of Ground 2.

41. Police also located $3,300 in cash and 50 litres of hydro-phosphorus acid which is a precursor for the manufacture of methylamphetamine at the applicant’s home. These two matters found their way onto the Form 1 as charges of recklessly dealing with the proceeds of crime offence and possessing a precursor contrary to s 24B(1) of the Drug Misuse Act respectively. Also on the Form 1 was the supply to the undercover officer of two samples of methylamphetamine on 8 December 2014. I will repeat that the Form 1 was appurtenant to the offence of supplying the large commercial quantity of cocaine.

42. Looking at the offending overall before assessing the subjective features of the applicant’s case, his Honour said, “[t]he offending was clearly objectively very serious” (AB 20). This assessment must be taken to refer to the whole course of offending engaged in by the applicant over the 2 month period from 1 December 2014 to 11 February 2015. There was no challenge to this assessment.

Decision on Ground 2

43. As I have pointed out the second ground relates to the supply of the commercial quantity of methylamphetamine, being the drugs seized at the applicant’s home on the day of his arrest. The primary judge’s statement that the amount involved was almost six times the commercial quantity is erroneous. At the time of the offending, the commercial quantity was 250 grams, as it is today. By force of the Drug Misuse and Trafficking Amendment (Methylamphetamine) Regulation 2015 (NSW), the large commercial quantity of methylamphetamine was reduced from 1 kilogram to 500 grams with effect from 1 September 2015.

44. The applicant submitted that the misstatement of the statutory threshold for the commercial quantity was relevantly a misstatement of an element of the offending. This arose by necessary implication because the amount of methylamphetamine involved was somewhat less than three times the commercial quantity, rather than more than six times, as stated by his Honour. This in turn led the sentencing judge to mistake the facts by erring in his evaluation of the objective seriousness of the offending. In the circumstances, it was submitted that the error required the court to resentence the applicant. As an aggregate sentence had been imposed, this required the Court to re-exercise the whole sentencing discretion afresh: Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255 (“Lehn”).

45. The Crown submitted that the misstatement should be taken as a mere slip which the judge did not act upon. The Crown statement of facts tendered for the purpose of sentencing stated the correct position at para 134 (AB 48) and also in the summary provided in tabular form (AB 50). It was also pointed out that in the case of the supply of the commercial quantity of MDA of 395.47 grams, where the commercial quantity threshold is at 125 grams, the sentencing judge had correctly said that the amount involved there was three times the commercial quantity and assessed the objective seriousness as within the mid-range. That was the same assessment of objective seriousness made in respect of the methylamphetamine. The implication being that the misstatement was not material to the assessment.

Decision

46. In effect the Crown’s argument called on an analogy that may be provided by decisions in cases where a sentencing judge misstates the maximum penalty. By way of example only in Andreata v R [2015] NSWCCA 239 (“Andreata”) at [28] Beech-Jones J formulated the test as whether the sentencing judge had acted upon the erroneous maximum; if so, the House v The King (1936) 55 CLR 499; [1936] HCA 40 (“House v The King”) error of acting upon the wrong principle had been established. On the other hand, if it could be shown from the reasons as a whole that the sentencing judge had acted on the basis of the correct maximum penalty no error was demonstrated.

47. The starting point is that it cannot be gainsaid that the sentencing judge made an error about the relationship between the 715.7 grams of methylamphetamine and the threshold for the commercial quantity offence. That error is perhaps explicable given that in the immediately preceding paragraphs of his reasons his Honour had dealt with two offences: one supplying MDMA; the other, MDA; and for each of which the commercial quantity threshold was 125 grams.

48. But did he act on that error? I am not satisfied that his Honour did. True enough, he said the following (AB 19 – 20):

“I turn then to the supply of not less than the commercial quantity of methylamphetamine being 715.7 grams, that is almost six times the commercial quantity. I consider the offence is within the mid-range of objective seriousness.”

This does not mean, however, that he treated the relationship of the quantity involved with the threshold amount as determinative of his assessment of objective seriousness. This would have been the same error identified in Wong. And that complaint is not made. It is important to bear in mind that prior to expressing his conclusions about the objective seriousness of the individual offences, his Honour had said the following (AB 18 – 19):

“While I am required to assess the objective seriousness of each offence there are some common features of the offending. Fortunately for the community, none of the drugs, the subject of the offences actually made their way into the community. It is trite to say however that it was the offender’s intention that they do so. The offender’s role seems to have been that of a middle man who was clearly trusted to negotiate quantities and prices within certain parameters. It is also established by the facts that he was involved in storing the drugs at his premises and facilitating the delivery of the drugs to the undercover officer or buyer. All of the offences were engaged in for financial gain. The offending took place over several months and had a considerable amount of planning associated with it.

Ultimately the drug and purity are relevant factors in assessing objective seriousness but are not necessarily determining.”

49. His Honour’s approach to assessment of objective seriousness as a whole reveals no error. Relevant authorities require a multifactorial approach to that important question: Wong at [64]; and for a recent example see Fato v R [2017] NSWCCA 190 at [44] – [46]. In R v MacDonnell [2002] NSWCCA 34; (2002) 128 A Crim R 44 at [33] Wood CJ at CL said:

“It is also to be accepted that the mere quantity of the drugs is not the sole, or even the principal, determinant for sentencing in relation to drug offences. What is more important is the role of the offender, and the level of his or her participation in the offence; subject of course to the fact that, in relation to supply offences under State law, there is a gradation of seriousness reflected by an increase in penalty as the quantity of drug involved moves into those levels which answer the descriptions of a commercial quantity, or of a large commercial quantity.”

His Honour’s assessment of objective seriousness was entirely consistent with this approach. His Honour took the necessary holistic approach (ignoring characteristics personal to the offender for the purpose of these standard non-parole period offences) to arrive at his assessment. It would have been wrong in principle to have treated the quantity of the drugs, or its relationship with the threshold for the commercial quantity, as determinant of the question of objective seriousness and his Honour did not do so.

50. Considering his Honour’s reasons as a whole and reading them fairly it is difficult to conclude that his assessment of the objective seriousness, which is the critical question, of this particular offence was in error. His Honour did not misstate the maximum penalty, the standard non-parole period, or the amount of drugs actually involved.

51. When discussing the principles informing permissible appellate review of aggregate sentences in JM v R (at [40].11 - .12) RA Hulme J made the point that the indicative sentences are not themselves amenable to appeal, although they may provide a guide as to whether error is established in relation to the aggregate sentence. His Honour (at [40].12) also said, “[e]ven if the indicative sentences are assessed as being excessive, that does not necessarily mean that the aggregate sentence is excessive” (citations omitted).

52. Putting to one side the “unreasonable or plainly unjust” ground, the conditions for finding appellable error in the making of a discretionary judgment as expressed by Dixon, Evatt and McTiernan JJ in House v The King at 505 are as follows:

“If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.” (Emphasis added.)

What Beech-Jones J said in Andreata based on this passage is not in any way inconsistent, in my judgment, with the important recent decisions of Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 (“Kentwell”); O’Grady v The Queen (2014) 252 CLR 621; [2014] HCA 38 and Lehn. It is not necessary for the purpose of this judgment to undertake a detailed analysis of these decisions. With respect, that task was undertaken by Bathurst CJ in relation to the High Court judgments in Lehn.

53. I am not satisfied that his Honour’s misstatement is a “specific error of the kind described in” House v The King: Kentwell at [43]. The error in the circumstances was a subsidiary error in the broader process of evaluating the objective seriousness of the offending in relation to one only of a series of offences that was dealt with by way of the imposition of an aggregate sentence. The misstatement did not affect the broader assessment because it depended upon the whole range of factors which his Honour identified and I have set out above (at [47]). I find it impossible to conclude that the misstatement affected the exercise of the sentencing discretion at all; that is to say it has not been shown that the sentencing judge acted on, or gave effect to, that specific error in the instinctive synthesis involved in the exercise of the sentencing discretion. Moreover, it in no way affected his Honour’s assessment of the course of offending as a whole as “clearly objectively very serious” (AB 20).

54. I would reject Ground 2.

No other sentence warranted at law

55. Lest I am wrong in my approach to the second ground, were I required to re-exercise the sentencing discretion afresh, I would conclude that no lesser sentence is warranted in law.

56. Taking into account the matters found by his Honour, as I have set out above and directing myself that the amount 715.7 grams of methylamphetamine is somewhat less than three times the commercial quantity, focusing upon the objective circumstances of the offending only, I would assess this specific offending to be “within the mid-range of objective seriousness” (AB 20). I would also, like the sentencing judge, assess the whole course of offending as “objectively very serious”.

57. His Honour’s assessment of the applicant’s subjective circumstances was not challenged in this Court and indeed, it was accepted, they were favourable to the applicant. I have no reason to depart from the assessment made by the sentencing judge. I record that the applicant was 40 years of age when sentenced and pleaded guilty to the substantive counts in the Local Court entitling him to a 25 per cent discount for the utilitarian value of the guilty pleas. His criminal history was limited with no prior offending involving the supply or possession of prohibited drugs.

58. He was in a stable relationship and his and his partner’s child together with a child of his previous relationship formed part of his household. He had stable employment as a concreter where he was well regarded by his employer. He had been employed in that industry continuously for 23 years. Consistent with his work ethic in the community, he has been of good conduct in custody, has been entrusted with a number of jobs and is well regarded.

59. His offending commenced in 2014 when, because of relationship issues, he commenced the abuse of alcohol and illicit substances. As is frequently the case, he fell into dealing to fund his own cocaine habit. He also agreed to store drugs at his home. It should be noted, however, that there was an element of financial gain involved in his offending.

60. The author of a pre-sentence report and that of a psychologist qualified to give evidence were positive about his prospects. He was assessed as having a good attitude and being determined to make the best of a bad situation. From testimonials and affidavits read on his behalf it is clear that the applicant enjoys strong family support. The sentencing judge accepted that the applicant was remorseful. That circumstance together with his strong family support enabled the judge to find that the applicant had “excellent prospects of rehabilitation” (AB 24). The sentencing judge regarded the prospect of the applicant reoffending as limited.

61. His Honour correctly said (at AB 25):

“Those that engage in the supply of prohibited drugs in large quantities for financial gain must receive significant sentences in order to deter themselves and other members of the community from engaging in such serious criminal conduct. The community, and in particular its young people, is being devastated by the widespread use of prohibited drugs, leading to the destruction of many lives.”

62. His Honour acknowledged the need for a degree of both accumulation and concurrency to be factored into the fixing of the aggregate sentence given the number of discrete offences involving a variety of drugs.

63. Correcting the putative error and re-exercising the discretion for myself I am satisfied that the aggregate sentence fixed by the sentencing judge is an appropriate sentence for this offender and his offending. No lesser sentence is warranted in law.

64. I propose the following orders:

1. Grant leave to appeal.

2. Appeal dismissed.

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Decision last updated: 05 October 2018