Kassoua v R

[2017] NSWCCA 307

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Kassoua v R [2017] NSWCCA 307

Hearing dates:

20 September 2017

Date of orders:

12 December 2017

Decision date:

12 December 2017

Before:

Basten JA at [1];
Walton J at [26];
Price J at [81]

Decision:

(1)   Extend time for the lodging of the application for leave to appeal to 3 July 2017.

 

(2)   Grant leave to appeal.

 (3)   Dismiss the appeal.

Catchwords:

CRIMINAL LAW – sentencing appeal – aggravating and mitigating features – whether aggravation regarding financial reward taken into account – relevance of standard non-parole period for admitted offence – top down approach – leave granted – appeal dismissed

Legislation Cited:

Criminal Appeal Act 1912 (NSW), s 5
Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 25A, 32, 33
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21, 21A, 32, 33, 54B; Pt 4, Div 1A

Cases Cited:

Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (2002) 56 NSWLR 146; [2002] NSWCCA 518
Eckersley v R [2013] NSWCCA 219
Farkas v R (2014) 243 A Crim R 388; [2014] NSWCCA 141
Fayad v R [2017] NSWCCA 81
Hudson v R (2016) NSWCCA 278
MD v Regina [2006] NSWCCA 142
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Prculovski v R [2010] NSWCCA 274
R v Barton (2001) 121 A Crim R 185; [2001] NSWCCA 63
R v Bavadra [2000] NSWCCA 292; 115 A Crim R 152
R v King [2009] NSWCCA 117
R v Mills (2005) 154 A Crim R 40
R v Ronald King [2009] NSWCCA 117
R v Walker [2005] NSWCCA 109
Toole, Kurt v R; Toole, Joshua v R [2014] NSWCCA 318; 247 A Crim R 272
Wat v R [2017] NSWCCA 62

Category:

Principal judgment

Parties:

Alla Kassoua (Applicant)
Crown (Respondent)

Representation:

Counsel:
P Lange (Applicant)
D Kell SC with M Pulsford (Respondent)

  Solicitors:
Alexanders Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2014/102788

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

09 October 2015

Before:

King SC DCJ

File Number(s):

2014/102788

Judgment

1. BASTEN JA: The applicant was sentenced on 9 October 2015 by Judge King SC in the District Court in respect of a single offence of knowingly taking part in the supply of a large commercial quantity of methylamphetamine. The quantity involved was a little under 9kg. There was an additional offence included on a Form 1 and taken into account pursuant to s 32 of the Crimes (Sentence Procedure) Act 1999 (NSW) (“Sentencing Procedure Act”); that offence was knowingly taking part in the supply of a commercial quantity, namely 994g, of methylamphetamine. The judge imposed a sentence of 7 years and 6 months to commence on 4 April 2014 (the date of the applicant’s arrest) with a balance of term of 2 years 6 months, giving a sentence of 10 years imprisonment.

2. The application for leave to appeal was filed out of time on 3 July 2017. The Director did not oppose the grant of an extension of time within which to file the application.

3. The applicant sought to challenge the sentence imposed on two bases, namely (i) a failure to state the aggravating factors under s 21A(2) of the Sentencing Procedure Act which may have been taken into account, and in particular whether the offence was found to have been committed for financial gain, and (ii) the manner in which the Form 1 offence was taken into account. Because the sentence was lengthy and it cannot be said that the grounds were not reasonably arguable, there should be an extension of time within which to appeal and a grant of leave to appeal. Nevertheless, the appeal should be dismissed.

Aggravating factors

4. The background circumstances have been sufficiently set out by Walton J and need not be repeated.

(a)   the generic statement

5. There were two limbs to the applicant’s challenge with respect to the application of s 21A(2) of the Sentencing Procedure Act. The first involved a complaint that the sentencing judge had dealt only cursorily and generically with the relevant factors, stating: [1]

“For the purposes of sentencing, I have regard to s 3A of the Crimes (Sentencing Procedure) Act 1999. I take into account such of the aggravating and mitigating factors as are provided in s 21A(2) and (3) of that Act, as well as the other matters I have referred to, including the utility discount.”

1.    Judgment on sentence, p 19.

6. It is true that this statement, read literally, did not provide any information as to how the judge had gone about the sentencing exercise, at least so far as aggravating factors were concerned. There are some 22 aggravating factors listed in s 21A(2); the list is not exhaustive. In any particular case, many, if not most, will be irrelevant. Indeed, the statement by the trial judge is apt to confuse rather than clarify what has been taken into account, because it implies that there are matters taken into account which have not been referred to in the preceding pages of the judgment. In other words, the judgment would have stood as well without the sentence in question, but its inclusion leads to uncertainty. However, coming, as it did, virtually at the end of the reasons, it should not be read literally as an indication that there is some undisclosed matter which has been given significant weight. Reading the judgment as a whole, it is clear that the sentencing judge dealt with the issues raised by the case comprehensively and with some care.

(b)   financial gain

7. The more specific challenge involved an inference that the judge had in fact relied on a finding that the offence was committed for financial gain, a factor referred to in s 21A(2)(o) of the Sentencing Procedure Act, in circumstances where no evidence supported such a conclusion and the applicant had denied such a motivation.

8. There was a serious issue as to the credibility of evidence given by the applicant at the sentencing hearings. In fact, he gave evidence on two occasions (24 and 30 September 2015), the evidence given on the latter date being inconsistent with the earlier evidence in ways which were important, including how and when he had obtained the drugs. The judge expressly found that he had lied on oath on the earlier occasion “in order to diminish the period of time to the minimum he thought he could get away with, in terms of the period of time and the circumstances in which he had possession of the approximately 10kg of methylamphetamine.” The judge found that he lacked credibility. [2] Noting that the supply of about 1kg (being the offence on the Form 1) was expected to result in a payment of $200,000, the judge accepted that if the full amount in the applicant’s possession had been sold in similar lots and for similar amounts, the potential value of the total amount would have been some $2 million. The judge continued: [3]

“The offender’s evidence that he expected no reward or benefit for his participation in either holding approximately 9 kilograms or assisting in the delivery of 1 kilogram of methylamphetamine simply cannot be accepted, particularly in the light of the offender having deliberately given false evidence to the Court. .... The fact that he played a very significant role and must therefore have had an expectation of a substantial benefit or reward, whatever it may have been[,] is the only possible conclusion that can be reached on the evidence before the Court.”

2.    Judgment on sentence, p 9.

3.    Judgment on sentence, p 10.

9. The applicant challenged this evidence in three steps. The first involved a complaint that it was not clear whether the sentencing judge had in fact made a finding that the offence was carried out for financial gain, but said that if he had, there was no evidence to support the conclusion. Secondly, he submitted that even if some level of reward could be inferred, it was not shown to have been sufficient to constitute an aggravating factor. Thirdly, if it had in fact been taken into account as an aggravating factor, that was an error.

10. With respect to the first step, while rejection of the applicant’s evidence did not support a finding to the contrary effect, the surrounding circumstances, including the value of the drugs in the possession of the applicant, provided ample grounds for being satisfied beyond reasonable doubt that the applicant undertook the offending conduct for financial gain or reward. The fact that no specific value could be placed on the benefit obtained does not preclude such a finding.

11. With respect to the second step, the applicant relied on the following passage from the judgment of this Court in Wat v R:[4]

“For an offence of knowingly taking part in the supply of not less than the large commercial quantity of a prohibited drug contrary to s 25(2) of the [Drug Misuse and Trafficking Act], it will almost inevitably be the case that inherent characteristics of that class of offence are a level of planning and financial gain. These inherent characteristics are not to be treated as aggravating factors, unless ‘the financial gain or the planning is significant, that is, more than might be expected in the lowest level of offending for this type of offence’[:] Prculovski v R; [5] Farkas v R. [6] ”

4. [2017] NSWCCA 62 at [44] (Price J, Bathurst CJ and Walton J agreeing).

5. [2010] NSWCCA 274 at [43] (Howie AJ, McClellan CJ at CL agreeing).

6. (2014) 243 A Crim R 388; [2014] NSWCCA 141 at [62] (Campbell J, RA Hulme J agreeing).

12. It is important to understand what is meant by this passage; it should not be read out of context. Indeed, the context is critical in understanding the principle. First, both Wat and Farkas expressly sourced the principle to the observations of Howie AJ in Prculovski. The particular offence in Prculovski, to which Howie AJ directed his comments, was s 25A(1) of the Drug Misuse and Trafficking Act 1985 (NSW). That section made it an offence for a person on three or more occasions over 30 days to supply “a prohibited drug (other than cannabis) for financial or material reward”. In other words, “financial or material reward” was an element of the offence. It is not in doubt that, as s 21A(2) expressly notes, “[t]he court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence.” What Howie AJ stated, in that statutory context, was as follows:[7]

“It is not necessarily an error to take into account, when sentencing for a s 25A offence, either that the offence was committed for financial gain or that it involved planning. Where the financial gain or the planning is significant, that is more than might be expected in the lowest level of offending for this type of offence, the court is entitled to take that fact into account as a matter of aggravation.”

7. Prculovski at [43].

13. In short, Howie AJ was making the unremarkable point that although financial gain or reward was an element of the offence, it was still possible to take it into account as an aggravating factor so long as it was a “significant” level of gain or reward. The purpose for which it was taken into account was to assess the objective seriousness of the offending. The point is unremarkable because, in almost every case, the court will have regard to the quantity of drug involved even though the minimum quantity is an element of the offence. However, there is a risk in generalising the observation and applying it in cases where financial reward is not an element of the offence. In particular, it would be wrong to rewrite s 21A(2)(o) so that the phrase “for financial gain” was read as if it said “for a financial gain which exceeded that which might be expected in the lowest level of offending for this type of offence”. To impose such a constraint would be wrong and would tend to overcomplicate the sentencing process.

14. There is a more general risk involved in the counting of aggravating factors by reference to the paragraphs of s 21A(2). The relevance of aggravating factors is in determining the culpability of the offender. Often aggravating factors will not be independent of each other and there is a risk that any attempt to give particular weight to a particular factor will result in double counting, or worse.

15. The approach taken by the sentencing judge in this case, which is criticised as the provision of inadequate reasons, was to have specific regard to a range of elements including the role played by the applicant, the amount of the drug, the value of the drug and the inference of financial reward, if indeterminate, in determining the level of objective seriousness. That approach was entirely correct and refutes the third step in the challenge under this ground, namely that there was no sufficiently precise finding available to allow the judge to have regard to financial gain as an aggravating factor.

The admitted offence

16. Grounds 2 and 3 in the notice of appeal alleged that the sentencing judge had erred in taking into account the standard non-parole period for the admitted offence on the Form 1 and had erred in taking it into account as if there had been a plea of guilty to that offence. The substance of the challenge was that the sentencing judge had adopted what was described in Attorney General’s Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 [8] as a “top down” approach, rather than that which the Court approved in that case, described as a “bottom up” approach. The first label (“top down”) would allow the sentencing judge to assess the appropriate sentence on the Form 1 offence, reduce it to take account of the fact that that sentence is not being imposed for the offence and then increase the sentence for the principal offence by an appropriate amount. [9] The alternative approach (“bottom up”) required an assessment of the seriousness of the Form 1 offence or offences for the purpose of assessing an increase in the sentence otherwise appropriate for the principal offence. As explained by Spigelman CJ in Attorney General’s Application: [10]

“The sentencing court is sentencing only for the ‘principal offence’. It is no part of the task of the sentencing court to determine appropriate sentences for offences listed on a Form 1 or to determine the overall sentence that would be appropriate for all the offences and then apply a ‘discount’ for the use of the procedure. This is not sentencing for the principal offence.”

8. (2002) 56 NSWLR 146; [2002] NSWCCA 518.

9.    Attorney General’s Application at [20]-[21].

10.    Attorney General’s Application at [39] (Wood CJ at CL, Grove, Sully and James JJ agreeing) (emphasis in original).

17. None of that is to suggest that the sentencing judge will disregard factors relevant to the seriousness of the other admitted offending. Clearly those factors will affect the extent of the increase in the sentence otherwise imposed for the principal offence, although specification of the quantum of the increase is inappropriate. [11]

    11. Attorney General’s Application at [45].

18. In the present case, there was an agreed statement of facts which included an account of the circumstances of the supply which formed the basis of the charge on the Form 1. No issue was taken with the proposition that the sentencing judge could appropriately take all of that material into account. Further, the sentencing judge was entitled to find that “[t]he combination of the principal offence and the Form 1 offence demonstrates that he was not simply someone performing the role of a watchman or warehouseman, but was participating actively in a serious criminal enterprise.” [12]

    12.    Judgment on sentence, p 18.

19. However, the applicant alleged that the sentencing judge fell into error in two respects. First, at the outset of his judgment, he referred to the maximum penalty for the Form 1 offence “when dealt with separately” and noted that there was a standard non-parole period, which he specified. Secondly, in summarising the factors taken into account, immediately before imposing sentence, he included as relevant factors “the statutory maximum penalties and standard non-parole periods” noting that “in respect of this matter, these matters were pleas of guilty.” [13] The applicant submitted that the judge must, therefore, have effectively determined a sentence for the Form 1 offence.

    13.    Sentencing judgment, p 20.

20. The applicant’s challenge thus involved a broad allegation of error and a more constrained allegation. The broader allegation sought to infer from the reference to the maximum penalties and standard non-parole periods for both offences, together with the reference to “pleas” of guilty, an inference that the judge had in fact determined a sentence for the Form 1 offence. The more restrained challenge was that the judge had erred in taking these matters into account in sentencing for the principal offence.

21. Neither of these challenges can be sustained. First, it is clear that the judge did not determine a sentence for the Form 1 offence. Further, it was not an error for the judge to consider the seriousness of the only offence on the Form 1, both by reference to the factual basis for the charge and by reference to the sentencing guideposts for the offence, namely the maximum penalty and the standard non-parole period.

22. As the applicant correctly noted, there was no plea of guilty with respect to the Form 1 offence, and the judge was in error in implying that there had been such a plea, rather than referring to the admission of guilt with respect to the further offence. That was a mischaracterisation which could only have had significance if it formed a basis for inferring that the judge had wrongly determined a sentence for that offence and then discounted it. That inference is not available from such limited material.

23. Finally, the applicant submitted that the judge was required to adopt a process of reasoning by stages which allowed consideration of the standard non-parole period for the principal offence only, and then “only once the Form 1 offence has been taken into account.” [14] The applicant sought to rely upon two authorities to support this assertion. The first was R v Ronald King,[15] requiring that, in dealing with an offence involving a standard non-parole period, a “staged approach” was required. That approach cannot survive the judgment of the High Court in Muldrock v The Queen. [16]

    14.    Applicant’s written submissions, 14 June 2017, par 15.

    15. [2009] NSWCCA 117 at [31].

    16. (2011) 244 CLR 120; [2011] HCA 39.

24. The second case relied upon was Eckersley v R. [17] In that case the Court refused leave to appeal “[h]aving regard to the maximum penalty in respect of all three offences, the appropriate increase in the sentence in respect of count 1 arising out of the individually serious offences on the Form 1, the standard non-parole period of 15 years on all three offences, the period of the applicant’s offending …”. This passage does not assist the applicant; there is no suggestion of a staged approach, rather than taking into account the most cogent factors in what is clearly a non-exhaustive list. More significant is the express reference to the determination of the offences on the Form 1 being “individually serious”. If authority were needed for the proposition that it is both appropriate and necessary to have regard to the seriousness of any offence on a Form 1, Eckersley provides it. For these reasons, grounds 2 and 3 should be rejected.

    17. [2013] NSWCCA 219 at [19] (Latham J).

Conclusions

25. As all the grounds in the application should be rejected, the Court should make the following orders:

1. Extend time for the lodging of the application for leave to appeal to 3 July 2017.

2. Grant leave to appeal against sentence.

3. Dismiss the appeal.

26. WALTON J: This is an application for leave to appeal brought by Alla Kassoua (“the applicant”), pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW), against a sentence imposed by King SC DCJ (“the sentencing judge”) in the District Court for the offence of knowingly take part in the supply of not less than a large commercial quantity of methylamphetamine contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (“DMT Act”) (the offence concerned about 8.8 kilograms of that prohibited drug). The offence carried a maximum penalty of a fine of $550,000 or imprisonment for life or both pursuant to s 33(3)(a) of the DMT Act and a standard non-parole period of 15 years (see Pt 4, Div 1A, Table – Standard Non-Parole Period, Item 19 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Act”)).

26. In sentencing the applicant, the sentencing judge was asked to take into account another offence of which the applicant had been charged but not convicted, pursuant to s 33 of the Sentencing Act. That offence was set out on a Form 1 document executed on 9 October 2015 (“the admitted offence”). The admitted offence was knowingly take part in the supply of an amount of a prohibited drug which was not less than the commercial quantity contrary to s 25(2) of the DMT Act (the admitted offence involved 994 grams of methylamphetamine). If the applicant was sentenced separately for the admitted offence, the maximum penalty would have been a fine of $385,000 or imprisonment for 20 years or both: s 32(2)(a) of the DMT Act. The standard non-parole period, with respect to the admitted offence, was 10 years.

27. The applicant pleaded guilty to the offence in the Local Court on 16 April 2015. Sentencing occurred on 24 September 2015 and the judgment was delivered on 9 October 2015. The applicant was sentenced to imprisonment for a non-parole period of 7 years 6 months commencing 4 April 2014 with the balance of the sentence being 2 years and 6 months.

28. The applicant sought and was granted, by consent, an extension of time in which to bring the application for leave to appeal.

Grounds of Appeal

30. The applicant relied upon three grounds of appeal:

1. His Honour failed to state the way in which the aggravating and mitigating features under s 21A of the Sentencing Act had, if at all, been taken into account.

2. In determining the sentence, his Honour erred in taking into account the standard non-parole period for the offence on the Form 1.

3. His Honour erred in the approach taken to a Form 1 offence, by taking the offence into account, as if there had been a plea of guilty.

Factual Background

31. The submissions for the Crown provided a summary of the agreed statement of facts (“ASF”) (executed by the solicitors for the applicant and the Crown on 16 April 2015), which was before the sentencing judge. That summary is uncontentious and is extracted below:

[9] The applicant's arrest occurred in the context of a two year investigation into Daniel Cantarakis and his associates in relation to the supply of prohibited drugs…On 3 April 2014, Cantarakis met with an undercover police operative (UCO) at a Travelodge in Surry Hills and arranged for the supply of 1 kilogram of methylamphetamine, for $200,000, at midday on 4 April 2014…

[10] On the evening of 3 April 2014, Cantarakis phoned the applicant and told him that he was on his way to see him…At about 10.57am on 4 April 2014, Cantarakis phoned the applicant, telling him that he would be at his place in about 10-15 minutes and was seen to enter the applicant's unit block…A short time later, the applicant and Cantarakis were observed leaving the building, with the applicant carrying a red Coles bag…They entered Cantarakis' vehicle, drove to the vicinity of the Travelodge and entered the foyer of the hotel, with Cantarakis now carrying the bag….

[11] The applicant remained in the foyer while Cantarakis went to the hotel room to meet the UCO. Cantarakis supplied the UCO with the contents of a plastic container being carried inside the bag, which was subsequently analysed to be 994 grams of methylamphetamine…Police intervened and the applicant was arrested in the foyer of the hotel…

[12] Police later searched the applicant's apartment and a Mercedes vehicle parked in the basement car space allocated to his apartment…. When the applicant was arrested, he was in possession of a Mercedes car key…During a search of the vehicle, police located two large bags inside the boot…. In one bag, police found four plastic containers containing a white crystal substance… In the other bag, police found six plastic containers containing a same white crystal substance…. Upon subsequent analysis, the white crystal substance, found in the boot, was identified as 8,795.33g of methylamphetamine… The applicant denied that the car was his…. Forensic examination identified three fingerprints on the outside of the vehicle, and seven fingerprints on the containers found in the boot, which matched the applicant….

[References to omitted.]

32. Evidence was given by the applicant at the sentencing hearing. He was cross-examined. There was no re-examination on that occasion and his evidence concluded. Various documents were tendered without objection on that same day. However, on 30 September 2015, Mr P Boulten SC, who then appeared for the applicant, indicated that “there was something that needs to be corrected in [the applicant’s] evidence” and proposed to recall him. He gave further evidence in chief on that occasion and was further cross-examined before being excused.

33. That further evidence was summarised by the Crown, again without demur from the applicant. Part of the Crown’s summary of the further evidence is set out below:

[20] The applicant denied having anything to do with the packing of the drugs into the containers; he said he had had [sic] just thrown the bags into the boot and denied seeing them again until the next morning… When it was put to him that there was then no reason for his fingerprints to be on a number of containers inside the bags, the applicant said that he had taken one of the containers out the next morning (being the one that was supplied to the UCO) and said that he may have touched other containers in the bag when grabbing the container… Having noted that there was physical surveillance that had Cantarakis “turning up and coming to your house”, the cross-examination about Cantarakis allegedly bringing the methylamphetamine into his house on 3 April 2014 proceeded…:

Q. It was there before wasn’t it?

A. No, that’s not true.

Q. It was in the car boot before?

A. No, no sir.

Q. And you put the containers in the bag and that’s how your fingerprints are all over them?

A. No, that’s incorrect.

Q. And it’s not some favour for a mate was it?

A. No, it was a favour.

Q, You were going to get no money?

A. Yes, that’s correct.

…

[22] At the resumed sentence hearing on 30 September 2015, the applicant was recalled by his Counsel to correct something in his evidence… The applicant said that the methylamphetamine had been brought to his house “a couple of days, of – I can’t remember exactly how many days prior” (to 3 April 2014)… The applicant declined to say who brought it because, he said, he and his brother had been threatened…

[23] In cross-examination on 30 September 2015, the applicant denied lying when he had given evidence, on 24 September 2015, about Cantarakis bringing the bags from his boot. The applicant said it was a mistake because he was scared… The applicant said that he had received a text message from a friend a couple of days prior asking him if he could hold onto something for a couple of days – his friend indicated it was methylamphetamine and did not indicate any sort of reward… He did not know 9 kilograms of it was coming…. He received a message that someone was coming to see him and a different person delivered the methylamphetamine… The applicant said that he received it in the bags, did not package it himself or put the containers in the bags… He just thought he was holding it and found out about the supply (to occur on 4 April 2014) on 3 April 2014… The drugs were at his house for “[a] couple of days”… He denied he was going to get any money or drugs… He said that he did not have anything to do with the supply on 4 April 2014 and was just making sure that nothing happened to Cantarakis…

[24] The applicant agreed that he had lied when he talked to the psychologist and when giving evidence on 24 September 2015, but denied that he was lying about this new version of events… The Crown put to the applicant that it could not be a favour to a friend for no reward, to have nine kilograms of methylamphetamine with no leaving date and to accompany Cantarakis to a supply of one kilogram of methylamphetamine… The applicant denied lying on this occasion.

[References omitted.]

Reasons on Sentence

34. The sentencing judge initially described the offence and admitted offence noting, in the latter case, that the maximum penalty provided for the offence on the Form 1 “when dealt with separately” was 20 years’ imprisonment and there is also a standard non-parole period of 10 years. Further, as to the admitted offence, the sentencing judge indicated that he had accepted, with some hesitation, a submission advanced by the applicant, that, despite the seriousness of the admitted offence, it “could be appropriately dealt with when sentencing in respect to the principal offence”. After referring to the remarks of Spigelman CJ in R v Barton (2001) 121 A Crim R 185; [2001] NSWCCA 63 at [64], the sentencing judge observed that when taking into account “a further offence on a Form 1”, the Court gives “greater weight to two elements which are always material in the sentencing process”. His Honour referred in that respect to personal deterrence and retribution.

35. His Honour then dealt with the evidence adduced during the sentencing proceeding.

36. First, the sentencing judge turned to the applicant’s evidence as to how the methylamphetamine came to be in the Mercedes motor vehicle and to his participation with the co-offender on 3 and 4 April 2014 at the Travelodge Hotel in Wentworth Avenue, Surry Hills. His Honour made the following observations as to the evidence given by the applicant:

1. The co-offender had visited his premises on the evening of 3 April 2014 and asked the applicant to help him on the following day in relation to “a deal” to make sure that no one robbed the co-offender.

2. He knew that deal was in relation to “ice” and that 1 kilogram was to be supplied.

3. On that same evening, the co-offender brought 9 kilograms of methylamphetamine to the applicant’s premises. The drugs which had been placed in the boot of his car were to be collected at a later time by the co-offender (the applicant had, when arrested, told police the vehicle was not his and that he “could not even drive”, but in evidence stated he had, in fact, leased the vehicle).

4. The applicant had indicated that he had undertaken in those activities to do a favour for his friend and “denied that he was expecting any reward or benefit for having done so”.

37. Secondly, his Honour referred to statements made by the applicant to his psychologist. The sentencing judge recorded that the applicant was cross-examined and had admitted he had not been entirely truthful in his account to the psychologist. The applicant stated he had done so because he was embarrassed about his “drug habit”.

38. Thirdly, his Honour considered the further evidence given by the applicant after being recalled. His Honour noted that the applicant gave evidence that methylamphetamine had not been brought to his premises on the evening before but “a couple of days prior to the date of the transaction or that he could not remember exactly how many days”. The applicant would not say who bought the methylamphetamine to his premises on that earlier occasion. The sentencing judge referred to the applicant’s further evidence that he had “first heard about the methylamphetamine coming to his premises… a couple of days before and had received the information by means of a message from an unidentified friend asking him to hold onto it”. He received the methylamphetamine in “bags”.

39. Lastly, with respect to the evidence, his Honour referred to the applicant’s evidence that, on the evening before the transaction, the co-offender had not talked about supply and noted “again he repeated in his evidence the assertion that he was not going to get any money, he was not going to get any of the drugs and he was simply doing a favour for a friend, with no expectation of receiving anything in return”. The applicant said he was simply “holding it”. Further, his attendance at the Travelodge with the co-offender was simply to accommodate the co-offender’s request to “look after my back so I don’t get robbed”.

40. The sentencing judge then made findings that the applicant, despite his claim in evidence on 30 September that his previous evidence was “simply a mistake as to when he received the methylamphetamine and the circumstances when he received it”, had lied on his oath on 24 September 2015 in order to diminish “the period of time to the minimum he could get away with, in terms of the period of time in the circumstances in which he had possession of approximately 10 kilos of methylamphetamine”. On 30 September, he was again lying and could not be accepted on any material matter as a witness of truth.

41. His Honour described the applicant’s criminality as follows:

He accompanied Mr Cantarakis, who had made arrangements with the undercover operative for the supply of 1 kilogram, to the point of supply, the Travelodge hotel at Surry Hills, knowing that they were taking methylamphetamine with them and the purpose of the meeting. The 1 kilogram was to be sold for an anticipated amount of $200,000. Remaining in the Mercedes was a quantity of 8,795.33 grams, that is, approximately 200 grams less than 9 kilos. If sold in approximately 1 kilogram lots, it could be anticipated that $1.8 million would be received at $200,000 per kilo. All up, the potential value of the total amount the offender had possession of was $2million.

42. In the light of those findings, his Honour made a further finding as to whether the applicant may be accepted, on his evidence that he expected no reward or benefit for his participation with the co-offender, as follows:

The offender's evidence that he expected no reward or benefit for his participation in either holding approximately 9 kilograms or assisting in the delivery of 1 kilogram of methylamphetamine simply cannot be accepted, particularly in the light of the offender having deliberately given false evidence to the Court. It is not possible, as I have said, to determine how long he may have been in possession of methylamphetamine, nor is it possible to determine what reward, benefit, or share or portion of the drug he might have expected in respect of his role. The fact that he played a very significant role and must therefore have had an expectation of a substantial benefit or reward whatever it may have been is the only possible conclusion that can be reached on the evidence before the Court.

43. His Honour stated that, as to the quantity of drugs involved in the offence for the purpose of supply, the applicant was in possession of more than eight times a large commercial quantity. A related finding was also made as to the admitted offence. In this respect, his Honour found:

In respect of the 994 grams of methylamphetamine relevant to the matter contained on the Form 1, it is only 6 grams less that the quantity that would have qualified for the offence involving a large commercial quantity rather than a commercial quantity. While quantity alone is not the sole gauge of significance, it is at the absolute upper end of the range provided for a commercial quantity at the time, being 250 grams to 1 kilogram.

44. The sentencing judge found the offences were “objectively serious” and that they “fell within the mid-range of seriousness” (later on in his judgment, his Honour found that the offences fell at the “upper end of the mid-range”). At that point his Honour turned to the question of criminality and made the following observations:

The offender comes before the Court to be sentenced for what he did rather than for any particular role. What he did was to possess for an indeterminate time approximately 10 kilos of methylamphetamine, and to participate in the distribution of 1 kilogram, or almost 1 kilogram, of that 10 kilograms.

45. The sentencing judge next considered the Pre-Sentence Report by Mr Bruce McSoriley, dated 22 September 2015; a psychological report by Ms Rima Nasr, dated 9 August 2015; a medical report by Dr Catherine Hatter, dated 5 February 2015; and various subjective considerations, including character references, before dealing with the applicant’s previous criminal history.

46. His Honour then returned to question the nature of the criminal activity engaged in by the applicant as follows:

The offender was involved in a significant way in what was clearly organised criminal activity of a serious nature, and he did so with his eyes wide open, noting of course that his first contact with Mr Cantarakis was in 2004, when they were both serving periods of imprisonment.

The combination of the principal offence and the Form 1 offence demonstrates that he was not simply someone performing the role of a watchman or warehouseman, but was participating actively in a serious criminal enterprise.

47. After the discussion of the significance of statistical material and other authorities relied upon by the Senior Counsel for the applicant, his Honour considered the operation of the Sentencing Act in a passage that attracted much attention on this appeal (as to ground 1). His Honour stated:

For the purposes of sentencing, I have regard to s 3A of the Crimes (Sentencing Procedure) Act 1999. I take into account such of the aggravating and mitigating factors as are provided in s 21 A(2) and (3) of that Act, as well as the other matters I have referred to, including the utility discount.

48. After making some observations as to the principles relevant to the sentencing of the offender, his Honour made some further observations, which again attracted attention in this appeal. The relevant passage of his reasons on sentence (the second sentence of which attracted grounds 2 and 3) is extracted below:

I am satisfied in respect of this matter that both general deterrence and specific deterrence are important factors to take into account. I have also taken into account as relevant factors the statutory maximum penalties and standard non-parole periods as relevant factors, noting, of course that in respect of this matter, these matters were pleas of guilty.

[Emphasis added.]

49. Finally his Honour found that the applicant had entered his plea at the earliest opportunity and was entitled to a discount for the “utility” of the plea. At the outset of the decision, his Honour noted that the discount would be “in the order of 25 percent” and in the closing stanzas of his judgment his Honour indicated that the discount was “slightly… more than 25 percent”.

The Appeal

Ground 1: His Honour failed to state the way in which the aggravating and mitigating features under s 21A of the Sentencing Act had, if at all, been taken into account

50. The centrepiece of the applicant’s challenge to the sentencing imposed upon him in this respect was the component of the reasons on sentence extracted at [23] above.

51. It was submitted that this passage of the reasons on sentence was the only reference to the matters referred to in s 21A of the Sentencing Act and that “bare reference is inadequate to inform both the offender, and the community more generally, about the way in which the aggravating and mitigating factors were taken into account”. Reliance was placed upon R v Mills (2005) 154 A Crim R 40 at [49], in which Woods CJ at CL cited with approval R v Walker [2005] NSWCCA 109 to contend that “what was expected was more than lip service to the legislation. What is required is a clear identification of the relevant factors, the weight given to them and their role in the structures of the sentencing order”. It was submitted that a “boiler plate” statement of the kind made by the sentencing judge had been rightly described as meaningless: Hudson v R (2016) NSWCCA 278 at [71]-[72] (per R A Hulme J).

52. The applicant accepted that the prosecutor had submitted before the sentencing judge that the offence and admitted offence were both aggravated by the fact that each was admitted for financial gain (relying in that respect on s 21A(2)(o) of the Sentencing Act). However, it was submitted that, in the absence of evidence about reward received by the applicant (and there was no evidence of any financial gain by him), the sentencing judge “would have fallen into error in finding that the aggravating factor had been made out”. Reliance was placed, in this respect, upon Wat v R [2017] NSWCCA 62 at [44] per Price J.

50. In written submissions the applicant contended the only evidence before the sentencing judge was that there was no expectation by the applicant to receive as reward for his participation. In oral submissions, however, it was accepted that the sentencing judge may have concluded the applicant engaged in conduct for the purposes of reward. Nonetheless, it was submitted that, even allowing for the rejection of the applicant’s evidence by the sentencing judge, there was no basis for finding the existence of an aggravating factor because the evidence before the sentencing judge did not entitle his Honour to “in any way categorise what the reward might have been”. There was no evidence, it was contended, as to whether the financial gain was more than might be expected in “the lowest level of offending for this type of offence”.

51. The applicant submitted the judgment at first instance simply did not reveal if the Crown’s submissions, as to the aggravating factor for financial gain, was accepted or rejected and “if it was accepted, the weight at which it was to be given to the factor”. There was a concern, therefore, as to whether aggravating factors were taken into account which ought not to have been taken into account. The applicant also contended that the sentencing judge failed to indicate in what other ways the aggravating factors provided for in s 21A(2) of the Sentencing Act were taken into account. Overall, it was contended, there was a failure to give adequate reasons for his approach to the respective cases posed by the parties.

52. The applicant took no issue with the consideration of mitigating factors by the sentencing judge.

Consideration

56. Whilst the challenge brought by the applicant did extend to a general complaint that the sentencing judge had not identified in, as the Crown described it, his “boiler plate” remark (extracted at [23] above) or elsewhere in his judgment, the aggravating factors alluded to in those remarks, what was uppermost in the applicant’s contentions, in support of this ground, was a proposition that the sentencing judge had taken into account, as a matter of aggravation (pursuant to s 21(2)(o) of the Sentencing Act), the offence had been committed for financial gain without any proper foundation in the evidence before the sentencing judge (consistent with the test in Wat v R (at [44]) or exposure as to how such a conclusion was reached and the weight attributed to the same.

57. That submission was based, in my view, upon a flawed premise, namely, the sentencing judge had regard to “financial gain” as an aggravating factor under s 21(2)(o) of the Sentencing Act.

58. It is true that the Crown made a submission before the sentencing judge that the offence was committed for financial gain and that this constituted a factor in aggravation. However, the sentencing judge was also required to grapple with a factual issue as to whether or not the applicant was to receive any benefit or reward for his participation in the offending.

59. That issue was resolved adversely to the applicant. The sentencing judge found (as extracted at [17] above) the fact that the applicant played a very significant role in the supply of methylamphetamine, it followed that he had an expectation of substantial financial gain or reward. The sentencing judge also found that the applicant was involved in a serious criminal enterprise.

60. The Crown correctly submitted these remarks were open to the sentencing judge having regard to his findings as to the role of the applicant and the weight and value of the drugs involved in the offence (noting that the sentencing judge found the applicant could not be accepted as a witness of truth and had knowingly taken part in the supply of nearly 8.8 kilograms of methylamphetamine which is almost nine times the threshold amount). His Honour’s findings, in that respect (at [17] above), were findings of fact which he was required to make given the issues raised by the applicant in the sentencing proceedings. So described, they did not constitute a finding of aggravation and, as the Crown correctly submitted, may be properly viewed as a factual finding which informed the findings made by his Honour as to the relative seriousness of the offence pursuant to s 21A(1)(c) of the Sentencing Act.

61. It follows that there was no short fall in reasons provided in the sentencing judge’s general remarks (as extracted in [23] above) as to aggravation due to financial reward as his Honour made no determination of that kind in his judgment. In the absence of a contention that his Honour had regard to some other factor in aggravation (without a sufficiency of reasons), this ground of appeal becomes one of a hollow complaint that the “boiler plate” remarks were made without a statement of reasons in circumstances where the remarks had no connection to an adverse finding (via aggravation).

62. No complaint is made regarding the sentencing judge assessment of mitigating factors.

63. In my view, ground 1 of the appeal should be rejected.

Ground 2: In determining the sentence, his Honour erred in taking into account the standard non-parole period for the offence on the Form 1

Ground 3: His Honour erred in the approach taken to a Form 1 offence, by taking the offence into account, as if there had been a plea of guilty

64. As the parties dealt with these grounds together in their submissions, it would seem appropriate to adopt the same procedure in the resolution of these issues.

65. In the first part of the applicant’s submissions, in this respect, attention was focused upon that part of the reasons on sentence which were extracted (in the second sentence) at [24] of this judgment. It was contended that the sentencing judge had made express use of the “plural” indicating that he had taken into account the “maximum penalties”, “standard non-parole periods” and the “applicant’s pleas of guilty”, thus making reference to both the offence and the admitted offence.

66. It was contended that that approach was erroneous because it demonstrated that the sentencing judge had taken into account the standard non-parole period when considering the admitted offence under a Form 1. By s 54B(1) and (2) of the Sentencing Act, the sentencing judge was required, it was submitted, to take into account a standard non-parole period for the offence but that section did not provide for the standard non-parole period to be taken into account when considering the admitted offence. The “standard non-parole period scheme” in the Sentencing Act, it was contended, expressly concerned only the particular offences referred to in the Sentencing Act and does not concern admitted offences. The proper approach was discussed in R v King [2009] NSWCCA 117 at [31]. It was contended that the consideration of the standard non-parole period occurred only once the admitted offence had been taken into account. This was entirely consistent with the limitations imposed by s 54B upon the applicability of standard non- parole periods.

67. It was further submitted, by the applicant, that the sentencing decision was reflective of a “top down approach”, which was rejected by this Court in Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (2002) 56 NSWLR 146; [2002] NSWCCA 518 (“Attorney General’s Application”) at [35] (per Spigelman CJ). It was contended that “both the maximum penalty, as well as the standard, non-parole period relevant factors would be taken into account when one sentences for an offence. However… the standard non-parole period is not relevant consideration”. Where an admitted offence is taken into account, the sentencing court is nonetheless sentencing for the principal offence (relying upon Attorney General’s Application at [38]).

68. It was also noted that the sentencing judge spoke of there having been “pleas of guilty” when, in fact, there was only “one plea of guilty”, namely in respect of the principal offence. The use of the expression “plea of guilty” in respect of the admitted offence, as well as taking into account a factor which would have been relevant upon a plea, but not under s 33 of the Sentencing Act, both support the proposition that his Honour erroneously sentenced the applicant for the Form 1 offence, such an approach is consistent with the impugned “top down” approach.

69. Upon the basis of these submissions, it was contended that the sentencing judge took into account an irrelevant consideration, namely the standard non-parole period and therefore fell into error in the sense of House v R. His Honour fell into error in sentencing for the admitted offence rather than focusing upon the principal offence.

70. The applicant accepted that, if ground 2 failed, “ground three would invariably fail with it”.

Consideration

71. As to ground 2, the applicant is incorrect to contend that the applicable standard non-parole period for an offence on the Form 1 was an irrelevant consideration in sentencing the applicant.

72. As was made clear in the Attorney General’s Application (at [42]), “although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence”.

73. Section 54B(1) of the Sentencing Act provides, inter alia, that the section applies when a court imposes a sentence of imprisonment for an offence”.

74. As the seriousness of an admitted offence is “pertinent to the extent to which a sentence would be increased to take the offence into account” (see, in addition to the Attorney General’s Application above, Fayad v R [2017] NSWCCA 81 at [48], (per N Adams J, with whom Simpson JA and Button J agreed); Toole, Kurt v R; Toole, Joshua v R [2014] NSWCCA 318; 247 A Crim R 272 at [133] (per R S Hulme AJ, with whom Basten JA and Button J agreed) and R v Bavadra [2000] NSWCCA 292; 115 A Crim R 152 at [30] (per Wood CJ at CL, with whom Beazley JA and James J agreed)) and the standard non-parole period is a relevant factor to the assessment of the seriousness of the admitted offence, (see, for example, Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [31], where the High Court found the standard non-parole period “represents the non-parole period for the hypothetical offence in the middle of the range of objective seriousness with regard to the range of factors, both aggravating and mitigating, that being relevantly on sentencing on an individual case”), it follows that the consideration of a standard non-parole period for an admitted offence may be relevant in sentencing an offender, particularly as to the extent to which a sentence may be increased for an offence by reference to the admitted offence.

75. This approach is consistent, in my view, with the provisions of s 54B(1) of the Sentencing Act. Further, as the Crown submitted, the seriousness of an admitted offence is relevant to the need to give effect to an element of retribution in sentencing an offender for the principal offence.

76. The contention by the applicant that his Honour adopted a “top down” approach may be readily rejected. His Honour made no express determination in his reasons on sentence as to the admitted offence. Rather, his Honour made it clear that he was sentencing only for the principal offence. Significantly, the sentencing judge referred to the maximum penalty and non-parole period for the admitted offence “when dealt with separately” and expressed a conclusion that the admitted offence “could be dealt with when sentencing in respect to the principal offence” (see [10] above). The reference by the sentencing judge to statutory maximum penalties and standard non-parole periods must be viewed in this context.

77. A mere infelicity of language will not constitute a proper basis for appeal as to the use of a “top down” approach, when the reading of the whole of the judgment gives an entirely different perspective. It may also be noted, in this respect, that whilst the applicant was correct to submit that there was only one plea of guilty, a pre-condition for the court taking the further offence into account, when dealing with an offender for the principal offence, is that the offender “admits guilt to the further offence” (see s 33(2)(a)(i) of the Sentencing Act).

78. In these circumstances, ground 2 and 3 should be rejected.

Conclusion

79. I agree with Basten JA at [3] that because the sentence was lengthy and it could not be said the grounds were not reasonably arguable, leave to appeal should be granted. However, the failure by the applicant to make out any ground of appeal must result in the appeal being dismissed.

Orders

80. I propose the following orders:

1. Extend time for the lodging of the application for leave to appeal to 3 July 2017.

2. Grant leave to appeal.

3. Dismiss the appeal.

81. PRICE J: I have had the opportunity of reading the judgments in draft of Basten JA and Walton J. I agree with their Honour’s reasons for dismissing the appeal and the orders proposed.

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Endnotes

Amendments

12 December 2017 - Amendment to representation on cover sheet.

Decision last updated: 12 December 2017