Kremisis v R

Case •

[2016] NSWCCA 257

•

18 November 2016

No judgment structure available for this case.

Court of Criminal Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Kremisis v R [2016] NSWCCA 257
Hearing dates:2 August 2016
Decision date: 18 November 2016
Before: Hoeben CJ at CL at [1]
Button J at [2]
N Adams J at [135]
Decision:

(1) Leave to appeal against sentence granted.
(2) The appeal is allowed.
(3) The sentences imposed by Judge Craigie SC on 22 August 2014 in the District Court are quashed.
(4) The applicant is re-sentenced as follows:
Count 1 – A non-parole period of 4 years and 6 months imprisonment, commencing on 30 June 2012 and concluding on 29 December 2016, with a balance of term of 3 years concluding on 29 December 2019.
Count 3 – A non-parole period of 5 years imprisonment, commencing on 30 December 2012 and concluding on 29 December 2017, with a balance of term of 3 years and 3 months concluding on 29 March 2021.
Count 2 – A non-parole period of 5 years and 8 months imprisonment, commencing on 30 June 2013 and concluding on 28 February 2019, with a balance of term of 4 years and 1 month concluding on 29 March 2023.
(5) To express the sentences another way, the applicant is re-sentenced to a total head sentence of 10 years and 9 months with a total non-parole period of 6 years and 8 months.
(6) The first date upon which the applicant will become eligible for possible release to parole would be 28 February 2019.

Catchwords: CRIMINAL LAW – appeal against sentence – serious drug offences – whether applicant has justifiable sense of grievance based on sentence imposed on co-offender – whether sentencing judge erred by finding that evidence that was not the subject of cross-examination was “untested” – whether sentencing judge erred in finding that the drug use of the applicant was not to a detrimental degree – whether sentencing judge erred by finding the effect on family of the accused was not exceptional – whether sentence manifestly excessive
Legislation Cited: Crimes Act 1900 (NSW), s 193B(2)
Crimes (Sentencing Procedure) Act 1999 (NSW), s 21(5AA)
Drug Misuse and Trafficking Act 1985 (NSW), ss 32, 33
Weapons Prohibition Act 1998 (NSW), s 7(1)
Cases Cited: AGF v R [2016] NSWCCA 236
Gett v Tabet (2009) 254 ALR 504; [2009] NSWCA 76
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
Nguyen v R [2016] NSWCCA 5
R v Clarke [2013] NSWCCA 260
R v Curtis (No 3) [2016] NSWSC 866
R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
R v Hinton (2002) 134 A Crim R 286; [2002] NSWCCA 405
R v Shi [2004] NSWCCA 135
R v Togias (2001) 127 A Crim R 23; [2001] NSWCCA 522
R v Zerafa (2013) 235 A Crim R 265; [2013] NSWCCA 222
The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
Category:Principal judgment
Parties: Steven Kremisis (Applicant)
Regina (Respondent)
Representation:

Counsel:
M Thangaraj SC (Applicant)
N Williams (Respondent)
M Cowden (Respondent)

  Solicitors:
Korn MacDougall Legal (Applicant)
Solicitor for Public Prosecutions (Respondent)
File Number(s):2012/205172
 Decision under appeal 
Court or tribunal:
District Court of New South Wales
Jurisdiction:
Criminal
Date of Decision:
22 August 2014
Before:
Craigie DCJ
File Number(s):
2012/205172

Judgment

  1. Hoeben CJ at CL: I agree with the judgment of Button J and the orders which he proposes.

  2. Button J:

Background

  1. On 22 August 2014, Judge Craigie SC sentenced Steven Kremisis (the applicant) for three offences of supplying a commercial quantity of methylamphetamine. One of the offences had seven offences “attached” to it by way of a Form 1 pursuant to the Criminal Procedure Act 1986 (NSW). The applicant, a man of generally good prior character, had pleaded guilty to all offences at an early stage, and received a 25% discount on his sentences as a result. Rather than imposing an aggregate sentence, his Honour imposed three separate sentences in a “cascading” structure. The total head sentence imposed was imprisonment for 13 years and 6 months, with a total non-parole period of 8 years and 5 months.

  2. The following grounds of appeal were notified, and pressed at the hearing before us:

Ground 1: The sentences imposed were, in all the circumstances, manifestly excessive.

Ground 2: The Applicant has a justifiable sense of grievance given the sentence imposed on the [co-offender].

Ground 3:

(i) His Honour erred by finding that the evidence of the wife and daughter was untested.

(ii) His Honour erred by failing to find that the Applicant was using drugs prior to and during his offending to a detrimental degree.

Ground 4: His Honour erred in law by finding that as the effect on family was not exceptional, it could not be taken into account under the relevant sub-section.

  1. Turning to discuss the grounds very briefly at this stage, Ground 1 speaks for itself.

  2. Ground 2 is founded upon an aggregate sentence subsequently imposed upon the man to whom I shall refer as the co-offender on 5 May 2015 by Acting Judge Marien SC; the analysis in support of the ground is focussed upon the starting points of the indicative sentences provided by Acting Judge Marien with regard to three offences that the co-offender “shared” with the applicant. I shall provide more detail about the co-offender and his offending when I come to discuss that ground.

  3. Ground 3 is founded on the proposition that his Honour made a finding of fact that was not reasonably open, in refusing to find that the applicant had fallen into supplying large quantities of the prohibited drug as a result of his own drug addiction.

  4. As for ground 4, at the hearing of the appeal senior counsel for the applicant accepted that success of the ground in this Court is foreclosed by binding authority, and explained that the point was being taken only so that it could be reserved for the consideration of the High Court of Australia.

The offences

  1. The offences to which the applicant pleaded guilty in the Local Court were as follows.

  2. First, between 8 December 2011 and 12 January 2012 he supplied not less than the commercial quantity of methylamphetamine; namely, 325.45 grams (described in the remarks on sentence as count 1 and sequence 1).

  3. Secondly, between 1 March 2012 and 4 May 2012, he committed the same offence. The amount in question was 677.7 grams of the same prohibited drug (count 2, sequence 7).

  4. Thirdly, between 28 June 2012 and 30 June 2012, he committed the same offence with regard to the same prohibited drug. The relevant quantity was 566 grams (count 3, sequence 11).

  5. With regard to each offence, the applicable maximum penalty was imprisonment for 20 years, pursuant to s 33 of the Drug Misuse and Trafficking Act 1985 (NSW). There was also an applicable standard non-parole period of 10 years.

  6. It was when sentencing the applicant for the second offence (that is, with regard to the supply of 677.7 grams) that his Honour was asked to take into account the seven further matters on a Form 1. They were as follows.

  7. First, an offence of possessing a prohibited weapon (an expandable metal baton). The maximum penalty for this offence is 14 years imprisonment, pursuant to s 7(1) of the Weapons Prohibition Act 1998 (NSW), with a standard non-parole period of 3 years.

  8. Secondly, an offence of knowingly dealing with proceeds of crime ($31,320 in cash). This sum was related to funds accumulated between 13 January 2012 and 30 June 2012, and was undoubtedly connected to drug dealing. The maximum penalty for this offence is 15 years imprisonment, pursuant to s 193B(2) of the Crimes Act 1900 (NSW).

  9. Thirdly, five counts of supplying a prohibited drug. The maximum penalty for each count is 15 years imprisonment, pursuant to s 32 of the Drug Misuse and Trafficking Act. The amounts in question were 113.2 grams, 141.5 grams, 56.6 grams, 141.5 grams and 28.3 grams. Again, the prohibited drug in question was methylamphetamine.

Objective features

  1. An agreed statement of facts was placed before his Honour. Without descending to a level of great detail, it may be summarised as showing that, for a period of seven months, the applicant was in the business of supplying very substantial quantities of methylamphetamine in New South Wales and the Australian Capital Territory. All of the substantive offences and the offences on the Form 1 were part of that ongoing course of conduct. The quantity of the drug involved show that the applicant was clearly operating far beyond “street level”.

  2. He was receiving the prohibited drug from a man called Jeffrey Sahyoun, who was closely associated with a notorious motorcycle club. Mr Sahyoun was sentenced by Judge Sides QC on 25 November 2013 for a number of offences. Judge Craigie was aware of the sentences imposed on Mr Sahyoun. Because they form no part of any ground of appeal, however, I shall not discuss them further.

  3. Two other men, a Mr Jadran and the co-offender, were the suppliers to the applicant on behalf of Mr Sahyoun.

  4. The operation was not without sophistication, and featured the use of multiple mobile telephone services, code names, and a factory used to store and purify the prohibited drugs.

  5. Inevitably, extremely large sums of cash were derived from the unlawful enterprise. For example, with regard to count 2, it seems that the price of the 677.7 grams of methylamphetamine supplied to the applicant was almost $240,000.

  6. With regard to objective seriousness, at p 17 of the remarks on sentence his Honour found that :

Upon individual assessment of each of the matters described in the agreed statement of facts and assessment of the totality of criminality consisted by both the committal for sentence matters and the seven Form 1 matters it is abundantly clear that in each case the offender had engaged in a very serious level of persistent, inherent criminality over the subject period of seven months.

Sequence 1 of the three substantive charges involve four transactions in a little over a month. Sequence 7 in one transaction of 677.7 grams, that is the second matter, and sequence 11 relates to the supply of 566 grams in two transactions. Together with the facts in the Form 1 matters, as they are required to be taken into account with sequence 7, the offender is revealed over the period of seven months to have been a pivotal actor standing in the midst of a highly profitable ring of drug traffickers as the Crown has submitted. This has involved transactions as to drugs totally around $600,000 in value.

Trafficking of the order involved, and with the offending having contacts as both a purchaser and on-supplier bespeaks a high level of organisational involvement and familiarity with others involved in the drug trade and, indeed, this is consistent with the offender’s closeness to transactions, including the use of acetone to perfect drugs.

This was trafficking on a significant scale and exhibited some commercial skill on the part of the offender in his criminal dealings over the subject seven months.

  1. At p 18 of the remarks on sentence, his Honour found that:

What can be determined from the frequency and scale of the deals done and from the reasonably high level of purity in that part of the dealing that can be assessed by reference to the drugs seized at the point of arrest is that the offender was knowingly involved in very serious criminal conduct. I find that in respect of each of the substantive committal for sentence matters these matter and what they reveal as to the offender’s role was such that the objective criminality is at or slightly above that of the middle of the range of seriousness for such matters, as has indeed been suggested as an appropriate and available assessment by the Crown.

Subjective features

  1. Subjectively, the applicant was born in June 1965 and therefore aged 49 years when he stood for sentence. He is a family man, married since 1987, with four adult children. There was evidence that, before he committed these offences, he was very highly thought of by many members of the community.

  2. The applicant came to Australia from Greece as a child. During his upbringing, his father suffered from schizophrenia. A further disadvantage suffered by the applicant is that at the age of five he was left permanently blind in one eye, after being injured by another child.

  3. He was described in evidence as a hardworking man, and his daughter recounted that he sometimes worked three jobs at a time. He has run multiple family businesses in the Australian Capital Territory; worked as a carer nurse in a nursing home; and worked at the Australian Defence Force Academy in a role involving hospitality, maintenance and domestic duties.

  4. Judge Craigie characterised the prior criminal record of the applicant as “relatively minor”, consisting as it did largely of traffic violations and two fines for drug possession in 2012. His Honour accepted that the applicant had been a “person of generally good character”.

  5. Based on the evidence of family members and long-term friends and colleagues, who spoke fulsomely of the applicant as a hardworking man of prior good character, Judge Craigie found that the “prospects of rehabilitation are good”.

  6. In short, there was much to be weighed subjectively against the undoubted objective seriousness of what the applicant had done. There was also a serious question in the proceedings on sentence about why the applicant had become a dealer of commercial quantities of a prohibited drug.

  7. In that regard, the remarks on sentence at p 16 show that counsel then appearing for the applicant (who was not counsel who appeared on the appeal) submitted that the motivation of the applicant for the commission of the offences was “involvement in drugs and the addictive quality, the addictive environment and the psychological addictive qualities”. That submission was made although the applicant had neither given oral evidence of his motive nor provided a document about it. Rather, the submission was based upon observations made by members of the family of the applicant, and their suspicions and belief about his use of prohibited drugs. Their written evidence had been received without objection by the Crown, and without a requirement that the witnesses who provided documentary evidence to that effect be available for cross-examination.

Aspects of sentence

  1. As I have said, Judge Craigie uncontroversially provided a 25% discount with regard to all three offences for the utilitarian value of the pleas of guilty.

  2. Rather than providing indicative sentences and imposing an aggregate sentence, Judge Craigie sentenced for each offence, and made each sentence cumulative to a small degree. His Honour structured the sentences so that the sentence for count 1 commenced first, then the sentence for count 3 commenced 6 months afterwards, and finally the sentence for count 2 commenced 6 months after that.

  3. For count 1, a head sentence of imprisonment for 9 years and 9 months to date from 30 June 2012, with a non-parole period of 5 years and 8 months was imposed. As a matter of arithmetic, the starting point of the head sentence must have been 13 years. The ratio between the non-parole period and the head sentence is 58.1%.

  4. For count 3, a head sentence of imprisonment for 10 years and 6 months to date from 30 December 2012, with a non-parole period of 6 years and 3 months was imposed (a starting point of 14 years). The ratio between the non-parole period and the head sentence is 59.5%.

  5. For count 2, a head sentence of imprisonment for 12 years and 6 months to date from 30 June 2013, with a non-parole period of 7 years and 5 months was imposed (a starting point of 16 years and 8 months). The ratio between the non-parole period and the head sentence is 59.3%.

  6. It can be seen that, as I have said, the total sentence imposed was a head sentence of imprisonment of 13 years and 6 months, with a total non-parole period of 8 years and 5 months. The ratio between the total non-parole period and the total head sentence is 62.3%.

  7. Turning to the grounds of appeal, it is convenient to discuss them a little out of order.

Ground 2

The Applicant has a justifiable sense of grievance given the sentence imposed on [the co-offender].

  1. As I have said, this ground was founded upon the aggregate sentence subsequently imposed upon the co-offender by Acting Judge Marien.

  2. Acting Judge Marien imposed an aggregate sentence upon the co-offender for five offences, not all of which were shared between the applicant and the co-offender. The three offences of supply for which the applicant was sentenced, however, were all common to the applicant and the co-offender.

  3. As well as that, the co-offender asked that a Form 1 be taken into account that included the five offences of supply that appeared on the Form 1 of the applicant. The Form 1 of the co-offender contained two different further offences, however: possessing a prohibited drug (63.8 grams of cannabis leaf, and 15.43 grams of 4-Bromo-2, 5-Dimethoxy Ethylamine) and dealing with proceeds of crime ($22,650 cash); neither was identical to the offences that appeared on the Form 1 of the applicant. Finally, the Form 1 of the co-offender was taken into account with regard to a different offence from the offence of the applicant that had his Form 1 “attached” to it: in the case of the co-offender, the supply of 566 grams, and, in the case of the applicant, the supply of 677.7 grams.

  4. Indicative sentences were provided by Acting Judge Marien with regard to the shared offences. As a threshold matter, I consider that there is nothing inappropriate in comparing the actual sentences imposed upon the applicant with the indicative sentences of the co-offender. I do not consider that Parliament intended, by way of the commencement of the regime of aggregate and indicative sentences, that parity arguments previously available would thereafter be forestalled: see the judgement of McCallum J in R v Clarke [2013] NSWCCA 260 at [68].

  5. The following aspects of sentencing of the co-offender were pointed to by the applicant in support of this ground.

Objective features of offences of co-offender

  1. The first, second, third and fifth counts on the indictment of the co-offender were supplying a prohibited drug, namely methylamphetamine, in its commercial quantity. The first count involved approximately 325.45 grams of the prohibited drug over a total of four transactions; the second count involved approximately 680 grams of the prohibited drug; the third count involved 566 grams of the prohibited drug; and the fifth count involved 474.1 grams of it. As I have said, the shared offences were the first count (supply of 325.25 grams), the second count (supply of approximately 677.7 grams), and the third count (supply of 566 grams).

  2. The fifth count was based on the onus reversal known as “deemed supply”, and related to a separate quantity of the drug found at the home of the co-offender.

  3. The fourth count on the indictment was a count of possessing nine firearms and ammunition (all of which were prohibited and unregistered firearms, in the context of the co-offender not being licensed to possess any firearm).

  4. With regard to the three shared counts on indictment, and indeed the five shared charges on the Form 1, the allegation was repeated before Acting Judge Marien that the co-offender was supplying to the applicant; in that sense, it could be said that the co-offender stood above the applicant in the criminal hierarchy.

  5. Again, the objective seriousness was found to be grave: Acting Judge Marien found that the applicant was a principal (but not the principal) in a well organised operation that was in the business of selling very large quantities of the prohibited drug for very large sums of money. His Honour said at p 9 of the remarks on sentence:

As is apparent from those facts and from the maximum penalties applicable to the offences, the offences committed by the offender over a period of seven months involve criminality of a very high order. The offender played a pivotal role in a highly organised drug supply network which network derived enormous profits and which in relation to the principal offences involved the dissemination of a total quantity of just over 1.5 kilograms of methylamphetamine into the community.

Subjective features of co-offender

  1. Subjectively, the co-offender was born in September 1982 and was 32 years old at the time of sentencing. He suffered physical abuse from his father until the age of six, but reported a stable and happy upbringing following the divorce of his parents. He had worked in the motor sports injury, both in Australia and overseas; operated a car haulage business; worked as a salesman; and had set up a battery recycling company. Eventually his businesses failed, and it is not clear from the evidence whether he was operating a business or unemployed at the time of the offences.

  2. The co-offender admitted to drug use at the time of the offences, but denied that he was a drug addict. He denied that he was a member of an outlaw motorcycle gang, and claimed that he was pressured by the members of the gang in question to commit the offences. Acting Judge Marien approached the question of mitigatory duress cautiously. Another motivating factor for committing the offences was said to be the financial difficulties that the co-offender suffered after the failure of his business.

  3. The co-offender expressed regret for his actions, but Acting Judge Marien found that those expressions disclose a limited degree of insight into the full criminality of his offending, and the destructive effects of drug trafficking.

  4. The co-offender had a minor criminal record comprising convictions for driving unregistered and uninsured vehicles, and driving while suspended. He was sentenced on the basis that he did not have a significant record, and was a man of previously good character.

  5. There was evidence that the co-offender had provided, and had agreed to provide, assistance to the authorities. For obvious reasons, I shall not detail that further.

  6. Acting Judge Marien granted the co-offender a 50% discount on the starting points of the indicative sentences. That discount was made up of a discount of 20% for the pleas of guilty, 10% for past assistance, and 20% for proposed future assistance (it will be recalled that Judge Craigie provided a 25% discount to the applicant, based only upon the utilitarian value of his pleas of guilty).

  7. In short, apart from the marked difference in the discounts of 25% and 50%, there was perhaps not much to differentiate the applicant and the co-offender: they were both dealing in prohibited drugs in very large quantities, for very large amounts of money; they each played a significant role in the organisation; and each was basically a man of good prior character. The points of distinction were: the co-offender was seemingly higher in the enterprise than the applicant; there was a suggestion of pressure having been placed on the co-offender; the co-offender was a decade or so younger than the applicant; and it seems that the Form 1 of each man was (for some reason) attached to a different count.

Aspects of sentence of the co-offender

  1. For the first shared count (relating to approximately 326 grams of methylamphetamine), Acting Judge Marien indicated a head sentence of 4 years and 9 months with a non-parole period of 2 years and 8 months. For the second shared count (relating to approximately 680 grams of methylamphetamine), his Honour indicated a head sentence of 5 years and 5 months with a non-parole period of 3 years and 1 month. For the third shared count (relating to approximately 566 grams of methylamphetamine, and being the count that carried the Form 1 with regard to the co-offender) his Honour indicated a head sentence of 6 years and 2 months with a non-parole period of 3 years and 7 months.

  2. The starting points of those indicative sentences were, as a matter of simple arithmetic, 9 years and 6 months (count 1); 10 years and 10 months (count 2); and 12 years and 4 months (count 3).

  3. The Table (188 KB, pdf) attached to this judgment provides a comparison, with regard to the three shared counts, of the individual sentences actually imposed upon the applicant; the starting points that must have been adopted by Judge Craigie with regard to those sentences; the indicative sentences provided by Acting Judge Marien with regard to the co-offender; and the starting points that must have been adopted by Acting Judge Marien with regard to those indicative sentences. For completeness, it also shows the total sentence imposed on the accused and the aggregate sentence imposed on the co-offender.

  4. I interpolate that, in a recent decision of this Court, the discount granted to the co-offender was increased from 50% to 55%, and he was re-sentenced accordingly; that judgement is currently restricted, for obvious reasons. But senior counsel for the accused accepted that that adjustment is of no great moment, because the parity argument of the applicant is founded not upon the ultimate aggregate sentence imposed upon the co-offender, but rather upon the starting points of his indicative sentences.

  5. For completion, however, I record that the co-offender was re-sentenced by this Court as follows. On count 1, an indicative sentence of 4 years and 3 months; on count 2, an indicative sentence of 4 years and 10 months; and on count 3, an indicative sentence of 5 years and 6 months. For the un-shared counts, the following indicative sentences were provided: for count 4, an indicative sentence of 2 years and 8 months; and for count 5, an indicative sentence of 3 years and 1 month.

  6. Ultimately, an aggregate head sentence of imprisonment for 7 years and 1 month with a non-parole period of 4 years and 10 months was substituted by this Court.

  7. It can be seen immediately from the table that I have provided that the starting points adopted by Acting Judge Marien with regard to the co-offender are markedly below the starting points adopted by Judge Craigie with regard to the applicant. Indeed, it is noteworthy that the starting points adopted by Acting Judge Marien with regard to the co-offender approximate the discounted sentences imposed by Judge Craigie upon the applicant.

Submissions about parity

  1. During the hearing before us, the Crown Prosecutor was asked whether a tentative submission (seemingly made in the separate hearing of the appeal of the co-offender on the same day) was maintained in this appeal. That submission had been that one could respectfully infer that Acting Judge Marien had made some kind of mathematical error. The submission was not, in fact, maintained, and the Crown Prosecutor submitted that she was not in a position to explain the marked divergence between the starting points on the basis of mathematical error.

  2. She submitted that there were different features of the matters before the two sentencing judges, as the applicant was acting for profit and enmeshed in his own business, whereas the co-offender was a younger man acting under duress. It was said that those points of distinction could justify the divergence in the starting points.

  3. In response, senior counsel for the applicant simply submitted that, whatever may have been the differences in the culpability between the two men, including with regard to subjective matters, the divergence in starting points is unsustainable.

  4. He accepted that the exercise of analysis and possible correction by this Court is complicated not only by the fact that the co-offender was sentenced for other offences, but also by the fact that an aggregate sentence was imposed upon him, making the measures of concurrence and cumulation implicitly adopted with regard to the co-offender impossible to determine with precision.

  5. But even allowing for those complications, he submitted that one can see here an inexplicable divergence in the starting points with regard to shared offences that must surely found a justifiable sense of grievance on the part of the applicant with regard to the sentences ultimately imposed upon him and the co-offender.

Erroneous disparity established

  1. Turning to my determination of this ground, if I had been satisfied that the co-offender had obtained an unearned advantage by a mathematical slip on the part of Acting Judge Marien, such a finding could well have stood in the way of the success of the applicant on this ground. That is because an error that wrongly advantages a co-offender may not give rise to a justifiable sense of grievance on the part of an offender that should lead to intervention. In other words, if an error has been made that led to a wrongful advantage for one offender, that error should not be compounded by permitting it to reduce the sentence of a further offender.

  2. But that is not the case here: as I have said, the Crown disavowed any submission that the divergence in starting points can be explained by mathematical error. In those circumstances, although one may respectfully suspect (by way of simple comparison by way of the table) that Acting Judge Marien may have committed a mathematical slip whereby the starting point with regard to the co-offender replicated the discounted sentences of the applicant, nevertheless I do not think that that suspicion should stand in the way of success of this ground.

  3. As for the submission of the Crown that the divergence is explicable and justifiable on the basis of differences between the two offenders, I do not accept that proposition. Although there were, in fact, factors that pointed both ways, in the ultimate analysis the two of them were to be roughly equated in objective and subjective features with respect to the shared offences. And yet the divergence in starting points is manifest. I also consider that the divergence is unable to be justified on any basis.

  4. In short, I consider that a failure to intervene to reduce the sentences actually imposed upon the applicant, bearing in mind the starting points of the indicative sentences that played a role in informing the aggregate sentence actually imposed on the co-offender, would leave the applicant with a justifiable sense of grievance.

  5. I consider that this ground has been established. The fact that this Court would therefore proceed to re-sentence means that the other grounds, including the assertion of manifest excess, can be dealt with more concisely than if they were determinative.

Ground 3

(i) His Honour erred by finding that the evidence of the wife and daughter was untested.

(ii) His Honour erred by failing to find that the Applicant was using drugs prior to and during his offending to a detrimental degree.

  1. As can be seen, the first part of this ground focuses upon the reference in the remarks on sentence to the evidence of family members as being “untested”. To place the reference in context, it appears within the remarks on sentence at pp 16-17, where his Honour was discussing the submission that the finding should be made that the drug dealing of the accused arose from drug addiction:

The offender himself did not give any evidence and much of the evidence of any drug use, let alone any addiction, is slight. It arises somewhat obliquely, in the defence case, resting wholly in untested, albeit evidence not subject to objection. In saying that I intend no or [sic] disrespect for those people who have conscientiously tried to find an explanation for the offender’s conduct, particularly those who have been close to him.

  1. Senior counsel for the applicant submitted that it was erroneous for his Honour to refer to the evidence in that way. Whilst it was objectively true that the evidence had not been tested, that was hardly a matter that could be held against the applicant in the circumstances of the Crown agreeing to the tender of the documents. It was submitted that, read in the context of the overall finding of the learned sentencing judge (namely, that his Honour was not satisfied on the balance of probabilities that dependence on prohibited drugs had played a role in the offending), the reference to the evidence being untested was inappropriately adverse to the applicant.

  2. Turning to my determination of this sub-ground, it is undeniable that the evidence of the wife and daughter of the applicant was not tested. It is also true that Judge Craigie was not satisfied on the balance of probabilities of the subjective feature for which counsel then appearing for the applicant contended. But, reading the reference to the untested nature of the evidence in the context of the entirety of what his Honour said about this question of drug addiction, I do not believe that that showed an approach by his Honour that was wrongly against the interests of the applicant. The objective truth was that the evidence was untested; in my opinion, it can hardly be an error for a sentencing judge to refer to something that is objectively true.

  3. I would reject this sub-ground.

  4. As for the second sub-ground, senior counsel submitted that it was not open, as a finding of fact, for Judge Craigie to fail to find on the balance of probabilities that a dependence on prohibited drugs lay behind the very serious offending of this mature man of prior good character. It was said that the combination of factors – which included the affidavit evidence of the wife and daughter of the applicant, and his convictions in 2012 for methylamphetamine possession - meant that the refusal of his Honour to accept the submission of counsel then appearing was not reasonably open.

  5. Turning to my determination of this sub-ground, it was uncontroversial before us that, in the proceedings on sentence, the applicant bore the onus of proving on the balance of probabilities any mitigating factor that he sought to have taken into account on sentence: see The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54. The mitigating factor contended for was that the applicant had committed the offences because of a particular motivation. The only person who could give direct evidence of his motivation for committing the offences was the applicant. And yet he did not do so, either in the witness box or even by way of a document signed by him and tendered in his case.

  6. In those circumstances, it is very hard to accept the proposition that it was not open to his Honour to fail to find that the motivation contended for had been established on the balance of probabilities.

  7. Separately, in considering this ground, it is important to reflect upon what Judge Craigie did find about this topic. The discussion of the question in the remarks on sentence extends over eight pages, and I shall not extract the entirety of it. But it may be summarised as being a detailed analysis of the evidence about this topic, including that given by family members (generally supportive of it, by way of their observations and suspicions), and other subjective material tendered on sentence such as references from other persons (generally not supportive, because it made no mention of the asserted motivation).

  8. What his Honour ultimately did find with regard to this topic appears at p 23 of the remarks on sentence:

…I am unable to conclude from the sum of that and other evidence, much of it suggesting an explanation that has not been forthcoming from the offender in any coherent explanation for, let alone mitigation of his offending or how he came to embark upon it. What is clear is that he was obviously deeply involved in aspects of the drug culture in so far as he was a trafficker and plainly in contact with others of that culture.

I find it probable that he may well have partaken of his own product, although there is no specific evidence of this, as to scale or frequency or sufficient to amount to a factor constituting addiction let alone one explaining his precipitous fall from the status of a law abiding and decent family man to that of a drug dealing criminal.

  1. In other words, the sentencing judge was prepared to accept that the applicant was a person who had involved himself in the milieu of prohibited drugs, and in doing so was probably using the product that he was supplying. His Honour was not prepared to go further and make a finding about the amount that the applicant was using; that was unsurprising, in light of the absence of evidence from the applicant or anyone else about the question of quantity. Finally, his Honour was not satisfied on the balance of probabilities that it was addiction that drove the applicant to do what he did.

  2. On the evidence placed before his Honour, I consider that those findings were reasonably open.

  3. Thirdly, in a sense this ground, taken as a whole, does not lead very far in any event. That is because, pursuant to s 21(5AA) of Crimes (Sentencing Procedure) Act 1999 (NSW), Parliament has explicitly commanded that self-induced intoxication is not to be taken into account in mitigation of an offence. The exact words of the sub-section are as follows:

21A Aggravating, mitigating and other factors in sentencing

…

(5AA) Special rule for self-induced intoxication

In determining the appropriate sentence for an offence, the self-induced intoxication of the offender at the time the offence was committed is not to be taken into account as a mitigating factor.

  1. Furthermore, since R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111, at the latest, the law of New South Wales has been that addiction to prohibited drugs, prescribed drugs, or alcohol does not (except in very limited circumstances, none of which apply here) mitigate an offence.

  2. In other words, even accepting (for the sake of argument only) that the sentencing judge made an erroneous finding of fact about drug use or drug addiction, it is not easy to see how that could constitute a material error calling for re-sentence.

  3. In short, I would not uphold ground 3.

Ground 4

His Honour erred in law by finding that as the effect on family was not exceptional, it could not be taken into account under the relevant sub-section.

  1. This ground was based upon the finding by Judge Craigie that the hardship upon the family of the offender was not exceptional. His Honour addressed this issue in the remarks on sentence at p 26:

Although as in any such case there is undoubted hardship resulting from the offender’s continued imprisonment, it has not been submitted to be of a kind that is exceptional to the degree such as at law would justify consideration on that basis. I would in any event have rejected any such submission, on the basis that the evidence has not reached that high threshold required – however regrettable are the consequences of the offender’s imprisonment for his wife and children.

  1. The submission in support of error was based upon the dissenting judgment of Beech-Jones J in R v Zerafa (2013) 235 A Crim R 265; [2013] NSWCCA 222. There, his Honour said:

[140] This succession of cases has led to the adoption of a principle with little to commend it. If in other contexts Courts are bound to consider the impact of their orders on innocent third parties (Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) [1998] HCA 30; 195 CLR 1 at [65] to [66]; Silktone Pty Ltd v Devreal Capital Pty Ltd (1990) 21 NSWLR 317 at 324 and 332), why is the impact on children of any sentence under consideration to be excluded unless their hardship is only exceptional? The primary objects in sentencing of "retribution, deterrence [and the] protection of society" described by Wells J in Wirth [(1976) 14 SASR 291] can still be given effect to without requiring sentencing courts to divide the forms of hardship occasioned to an offender's family into those which meet the description "exceptional" and those which do not. The assessment of probable hardship to family members is a task that sentencing courts are perfectly able to undertake, and no doubt they do. In any event, the words of the section [that is, s 16A of the Crimes Act 1914 (Cth)] and the secondary materials indicate a clear policy choice on the part of the legislature on this topic.

[141] Further, the difficulty that accompanies the addition of a gloss to a legislative provision that is otherwise clear is revealed by the different formulations of the gloss that have emerged from the cases. The construction adopted by Howie J in Hinton [(2002) 134 A Crim R 286; [2002] NSWCCA 405] suggests that no consideration can be given to hardship that falls short of the description "exceptional". The judgment of Spigelman CJ in Togias [(2001) 127 A Crim R 23; [2001] NSWCCA 522] suggests that something other than "substantial weight" might be afforded to probable hardship occasioned to family members of offenders even if exceptional circumstances cannot be demonstrated. Nguyen [(2006) 166 A Crim R 124; [2006] NSWCCA 369] appears to confirm that. In circumstances where s 16A(2) specifies that a court is to take a "matter into account", what authority does an intermediate court of appeal have to specify the weight a sentencing court attaches to that factor? The relevant constraint on a sentencing court affording too much weight to the factor set out in s 16A(2)(p) is to be found in s 16A(1). Unconstrained by authority, in my view, s 16A(2)(p) should be applied by sentencing courts according to its terms, without having to determine whether the circumstances are exceptional or otherwise. If the result of affording weight to that consideration is that the sentence is unduly lenient then that will attract appellate interference on the established basis that it is manifestly inadequate, but not because some specified level of weight was attached to this factor that the Crimes Act does not expressly preclude. A sentence that is manifestly inadequate does not conform with s 16A(1).

[142] Standing in the path of the adoption of this approach is the stream of authority in this Court and other intermediate courts of appeal that I have referred to. In so far as the latter is concerned, I can only depart from their interpretation of a Commonwealth law if I am "convinced that that interpretation is plainly wrong" (Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; 177 CLR 485 at 492; Hili at [57]). The same test has been said to apply to departures from earlier decisions of this Court (Hili at [74] per Heydon J).

…

[144] In my view, the words of s 16A(2)(p) are clear. The secondary materials confirm that meaning. The cases that have considered the provision have not reconciled their construction with either. I am satisfied that the construction of s 16A(2)(p) which reads the provision as though it was preceded or proceeded by the words "in an exceptional case" is plainly wrong on either of the approaches suggested in Gett at [294] to [295].

  1. Senior counsel invited our attention to the fact that, in R v Curtis (No 3) [2016] NSWSC 866 at [37], McCallum J recently said:

[37] Section 16A(2)(p) of the Crimes Act requires the Court to take into account the probable effect that any sentence under consideration would have on the offender’s family. There is binding authority to the effect that such circumstances may not be given substantial weight unless they can be characterised as “exceptional”. The correctness of that principle was questioned by one member of the Court of Criminal Appeal [footnote omitted] in R v Zerafa on the basis that it puts a gloss on the terms of the section. [footnote omitted] After a comprehensive review of the relevant authorities, Beech-Jones J noted in that case that the origin of the principle was a decision concerning State legislation and that none of the judgments that have applied it have attempted to reconcile it with the express words of s 16A(2)(p). In my respectful opinion, there is much force in his Honour’s view. However, Mr Thangaraj accepted that I am bound to follow the existing principle and that exceptional circumstances are not established here. Even if the approach favoured by Beech-Jones J were to prevail, it is doubtful whether that consideration would be of significant weight in the circumstances of this case.

  1. It was said before us that that more liberal approach to the effect of incarceration of an offender upon members of his or her family should be adopted by the Crown, including with regard to State, as opposed to Federal, offences. It was also accepted, however, that to do so would not be consonant with binding authority.

  2. Turning to my determination, as Beech-Jones J recorded, the restrictive approach adopted by Judge Craigie is in accordance with longstanding authority of this Court: see for example R v Togias (2001) 127 A Crim R 23; [2001] NSWCCA 522 at [9]-[17] and R v Hinton (2002) 134 A Crim R 286; [2002] NSWCCA 405 at [31]. And this Court has recently reaffirmed the correctness of that approach: see Nguyen v R [2016] NSWCCA 5 at [69].

  3. As Beech-Jones J said, as a matter of precedent, this Court should not depart from its earlier considered judgments unless satisfied that they are “plainly wrong”, meaning, in my opinion, that there must be either a failure to collect and attend to relevant legal materials, or egregiously erroneous reasoning: see Gett v Tabet (2009) 254 ALR 504; [2009] NSWCA 76 at [274]-[295]; Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [74].

  4. The approach adopted by Judge Craigie was undoubtedly consonant with the approach that this Court has said should be adopted by sentencing judges to the question of the effect on the family of an offender of his or her incarceration. It may also be significant that Beech-Jones J and McCallum J were speaking of the construction of the Crimes Act 1914 (Cth), not the Crimes (Sentencing Procedure) Act 1999 (NSW). I do not hold the affirmative opinion that the approach taken by this Court to the question over many years is plainly wrong. On the law as it currently stands, therefore, I consider that this ground should be rejected.

Ground 1

The sentences imposed were, in all the circumstances, manifestly excessive.

  1. Counsel for the applicant made the following submissions in support of this ground.

  2. First, he noted that the sentencing judge had found that the objective seriousness for the offence was at or slightly above the middle range of seriousness for such matters. He submitted that it was relevant that in R v Shi [2004] NSWCCA 135 this Court concluded that, for drug supply offences, the role of the offender is relevant to determining the objective seriousness of an offence. He submitted that the applicant was a mid-level participant, and not a principal, and it was therefore an error to find that the role of the applicant was at or above the middle range of seriousness.

  3. Secondly, counsel for the applicant noted the subjective features of the applicant that were taken into account by his Honour (including prior good character, contrition, and good prospects of rehabilitation); the finding of his Honour that specific deterrence had already been achieved, but that there was a strong requirement for general deterrence, retribution and denunciation; and the finding of his Honour that there were special circumstances. He submitted that the subjective circumstances of the applicant were quite favourable.

  4. Thirdly, counsel for the applicant calculated the starting point for each sentence of the applicant, prior to the 25% discount for the utilitarian value of the early plea of guilty. He then contrasted these sentences to other sentences imposed by this Court for the same offence, in other matters, and submitted that the comparison of the sentences supported his submission that the sentences imposed on the applicant were manifestly excessive.

  5. Fourthly, counsel for the applicant provided sentencing statistics for the same offence to demonstrate that the sentences imposed upon the applicant are too high. He submitted that the combination of the relatively favourable subjective circumstances of the applicant, the proper objective characterisation of the offending, and the comparable cases and sentencing statistics, demonstrated that the sentences were manifestly excessive.

  6. The Crown made the following submissions in resistance to this ground.

  7. First, the Crown submitted that the sentence is not shown to be unjust when one takes into account the following three overarching factors.

  8. First, his Honour found that the relevance of the applicant’s prior good character was limited by the type of calculated conduct in which he was engaged. Seven months of criminal activity could not be considered limited or isolated. His Honour accepted that the not inconsiderable delay to the applicant represented a measure of hardship which could be punitive of itself. Finally, there was undoubtedly a strong requirement for a sentence that reflected general deterrence, retribution and denunciation.

  9. Secondly, the sentencing judge had addressed the subjective case in significant detail in the remarks on sentence; had considered all aspects of the evidence before making a finding that the drug use of the applicant was slight and only arose obliquely on the defence case; had allowed a 25% discount for the plea of guilty, and found that the applicant demonstrated contrition; had found that the prospects of rehabilitation of the accused were good; and had found special circumstances in favour of the applicant. None of that was ungenerous or erroneously unfavourable.

  10. Thirdly, his Honour adopted a significant degree of concurrence between the individual sentences, an approach said by the Crown to have been generous to the applicant.

  11. The Crown submitted that all of these factors supported the submission that the sentence imposed by his Honour was not manifestly excessive.

  12. Secondly, the Crown analysed the eight comparable cases referred to by the applicant. It was submitted that none of the cases could truly be compared to the case of the applicant: the majority related to an isolated incident of offending; none of the cases were connected to an outlaw motorcycle gang; the sentences were imposed either before the commencement of the standard non-parole period regime or involved lesser findings of objective seriousness; all but two involved a significantly lesser amount of drugs; the applicant could not be considered a “runner or courier” (as in two of the cases relied upon); and there was no aspect of entrapment in the case of the applicant that operated to reduce his moral culpability.

  13. Thirdly, the Crown submitted that the sentencing statistics provided by the applicant could not be relied upon to any great degree, as the details underpinning them were not disclosed. It was said that the statistics, of themselves, did not demonstrate that the sentence of the applicant is manifestly excessive.

  14. Turning to my determination of this ground, as I have said, I shall not deal with it at length, due to my opinion that the appeal should be upheld on a separate ground.

  15. The fact is that, for a period of 7 months, the applicant engaged in dealing in a damaging prohibited drug in very large quantities: the total of methylamphetamine captured by the substantive counts is almost 1.6 kilograms, and the total supplied (including the charges on the Form 1) is just above 2050 grams.

  16. Self-evidently, vast amounts of money were generated, and the applicant was motivated by a desire to make a profit.

  17. Each of the substantive counts carried a maximum penalty of imprisonment of 20 years, with a standard non-parole period of 10 years.

  18. The role of the applicant was well above that of a street level dealer, or drug addicted on-supplier, or factotum within a large criminal enterprise.

  19. Subjectively, the applicant pleaded guilty at the earliest opportunity, was a person generally of good character, and had good prospects of rehabilitation.

  20. Although lengthy sentences were imposed, a significant degree of concurrency was afforded the applicant in the sentencing structure: as I have explained, the starting dates of the sentences were cumulative upon each other only to the extent of six months.

  21. To my mind, the assessment of objective gravity was soundly open to his Honour.

  22. In my opinion, neither the individual sentences imposed, nor their starting points, nor the total effective sentence is so far beyond the bounds of the sentencing discretion open to Judge Craigie as to be erroneous. I do not consider that detailed analysis of statistics or comparable cases is necessary in order to demonstrate that proposition. One may accept that the sentences were stern, bearing in mind the favourable subjective features pointed to on behalf of the applicant, but that sternness is the inevitable consequence of the objective gravity of what the applicant had chosen to do.

  23. I consider that this ground should be rejected.

Re-sentence

  1. Normally, when error is established, this Court needs to turn to the question of whether, on re-sentence, a lesser sentence is warranted in law, pursuant to s 6(3) of the Criminal Appeal Act 1912 (NSW). However, when a ground of erroneous disparity or manifest excess has been established, except in very unusual circumstances, the proposition that a lesser sentence is warranted in law has inherently been established.

  2. Evidence was placed before us by way of a number of affidavits, both of events that have occurred since the imposition of sentence on 22 August 2014, and also of some circumstances that were said to exist before that date. In accordance with the recent decision of the High Court of Australia in Betts v The Queen [2016] HCA 25 at [14], I do not consider that evidence contained in those affidavits (which were not placed before the sentencing judge) about events or circumstances predating the proceedings on sentence should be taken into account by this Court on re-sentence: see also AGF v R [2016] NSWCCA 236 at [24] and [25].

  3. In short, the position is that the accused is doing his best to serve his sentence quietly and constructively, and with an eye to his rehabilitation when he is released.

  4. The admissible new evidence shows the following. The accused has spent much of his time in the South Coast Correctional Centre at Nowra. He has had no behavioural incidents since being sentenced. The only drugs the applicant has consumed, whilst in custody, have been supervised or prescribed ones. The applicant has completed courses run by “Enough is Enough” in First Aid, and Barista Training. He is employed at the gaol in an engineering capacity, being in charge of the Plasma Cutting Machine. He is completing a course in Engineering and Fabrication at TAFE, and a traineeship in Furniture/Cabinet Making. Now aged 51 years, his health is not good: he states that he has suffered from two strokes in custody (their seriousness is not revealed), a 60% blockage in his neck artery, an enlarged prostate and chronic back pain.

  5. Exercising the sentencing discretion afresh, and placing particular emphasis on the need for the individual sentences to avoid demonstrating erroneous disparity with the starting points of the indicative sentences imposed upon the co-offender, I regard the maximum penalty and standard non-parole periods as important guideposts. I also consider that the serious offences contained on the Form 1, and to be taken into account with regard to count 2 (sequence 7), have an important role to play. As I have said in the context of the assertion of manifest excess, the generally favourable subjective circumstances must be weighed against the significant objective gravity of the crimes of the applicant.

  6. I consider that a number of aspects of the sentences imposed by Judge Craigie should be replicated, as follows.

  7. First, the backdate to 30 June 2012 should be maintained, it not having been impugned before us.

  8. Secondly, so should the uncontroversial discount of 25% for the utilitarian value of the early pleas of guilty.

  9. Thirdly, the imposition of separate sentences (as opposed to an aggregate sentence) should be maintained.

  10. Fourthly, so should the “cascading” structure of the starting dates, including the commencement of the sentence for Count 3 after the commencement of Count 1 but before the commencement of Count 2.

  11. Fifthly, in light of the fact that all offences reflected what was really an ongoing course of conduct over a period of seven months, so should the generous degree of concurrency, whereby each sentence commenced only six months after the commencement of its predecessor.

  12. Sixthly, the relationship between the head sentence and the non-parole period of each individual sentence, and of the total sentence, whereby there was a significant departure from the statutory ratio, should also be replicated.

  13. To my mind, the starting point of the sentence for count 1 (sequence 1) should be a head sentence of imprisonment for 10 years. Applying the discount and replicating the ratio, that leads a to a head sentence of 7 years and 6 months with a non-parole period of 4 years and 6 months, to commence on 30 June 2012.

  14. The starting point of the sentence for count 3 (sequence 11) should be a head sentence of imprisonment for 11 years. Applying the discount and replicating the ratio, that leads a to a head sentence of 8 years and 3 months with a non-parole period of 5 years, to commence on 30 December 2012.

  15. The starting point of the sentence for count 2 (sequence 7) should be a head sentence of imprisonment for 13 years. Applying the discount and replicating the ratio, that leads to a head sentence of 9 years and 9 months with a non-parole period of 5 years and 8 months, to commence on 30 June 2013.

  16. That leads me to propose a total head sentence of imprisonment for 10 years and 9 months, with a total non-parole period of 6 years and 8 months. I consider that such a sentence would balance the objective and subjective features of the matter, and also avoid erroneous disparity when one considers the starting points of the sentences pertaining to the shared offences of the co-offender.

Orders

  1. Accordingly, I propose the following orders:

  1. Leave to appeal against sentence granted.

  2. The appeal is allowed.

  3. The sentences imposed by Judge Craigie SC on 22 August 2014 in the District Court are quashed.

  4. The applicant is re-sentenced as follows:

Count 1 – A non-parole period of 4 years and 6 months imprisonment, commencing on 30 June 2012 and concluding on 29 December 2016, with a balance of term of 3 years concluding on 29 December 2019.

Count 3 – A non-parole period of 5 years imprisonment, commencing on 30 December 2012 and concluding on 29 December 2017, with a balance of term of 3 years and 3 months concluding on 29 March 2021.

Count 2 – A non-parole period of 5 years and 8 months imprisonment, commencing on 30 June 2013 and concluding on 28 February 2019, with a balance of term of 4 years and 1 month concluding on 29 March 2023.

  1. To express the sentences another way, the applicant is re-sentenced to a total head sentence of 10 years and 9 months with a total non-parole period of 6 years and 8 months.

  2. The first date upon which the applicant will become eligible for possible release to parole would be 28 February 2019.

  1. N Adams J: I agree with Button J.

*************

Amendments

15 December 2016 - Typographical error corrected in orders

18 November 2016 - Formal aspects of sentence re-expressed.

Decision last updated: 15 December 2016

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Elsaj v R [2017] NSWCCA 124
Cases Citing This Decision

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