Kurniawan v The Queen

[2017] NSWCCA 171

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Kurniawan v R [2017] NSWCCA 171
Hearing dates:	26 May 2017
Decision date:	21 July 2017
Before:	Bathurst CJ at [1] McCallum J at [2] N Adams J at [3]
Decision:	(1) Grant leave to appeal against sentence. (2) Dismiss the appeal.
Catchwords:	CRIMINAL LAW – application for leave to appeal against sentence – where applicant sentenced on the basis of brief agreed facts – whether sentencing judge erred in failing to make any finding about the extent of applicant’s involvement in supply of prohibited drugs – whether sentencing judge erred in failing to have regard to where quantity of drug fell in possible range – whether sentence manifestly excessive
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW), ss 11, s 21A, 33 Drug Misuse and Trafficking Act 1985 (NSW), s 25
Cases Cited:	Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 B v R [2015] NSWCCA 314 DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 El-Ahmad v R [2015] NSWCCA 65 Hill v R [2012] NSWCCA 265 Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 Kemp v R [2014] NSWCCA 153 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Olbrich v R (1999) 199 CLR 270; [1999] HCA 54 Riggio v R [2015] NSWCCA 223 R v Dinsdale (2000) 202 CLR 321; [2000] HCA 54 R v Engert (1996) 84 A Crim R 67 R v MacDonnell (2002) 128 A Crim R 44; [2002] NSWCCA 34 Smith v R [2007] NSWCCA 138
Category:	Principal judgment
Parties:	Jancen Kurniawan (Applicant) Regina (Respondent)
Representation:	Counsel: Mr C Parkin (Applicant) Ms N Williams (Respondent)   Solicitors: Murphy’s Lawyers (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2014/73316; 2015/140134
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 18 November 2015 Before: Hoy SC DCJ File Number(s): 2014/73316; 2015/140134

Judgment

1. BATHURST CJ: I have had the advantage of reading the judgment of N Adams J in draft. I agree with the orders proposed by her Honour and with her Honour’s reasons.

2. McCALLUM J: I agree with N Adams J.

3. N ADAMS J: The applicant Jancen Kurniawan seeks leave to appeal against the sentence imposed upon him by Hoy SC DCJ at the District Court at Sydney on 18 November 2015 for an offence of supplying the commercial quantity of a prohibited drug. The applicant had pleaded guilty to three offences as follows:

1. Supply a prohibited drug (9.75 grams of methylamphetamine) contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW) (“DMTA”) (which carries a maximum penalty of imprisonment for 15 years and/or 2,000 penalty units) (Count 1);

2. Supply the commercial quantity of a prohibited drug (373.5 grams of methylamphetamine) contrary to s 25(2) of the DMTA (which carries a maximum penalty of imprisonment for 20 years and/or 3,500 penalty units and a standard non-parole period of 10 years) (Count 2); and

3. Supply a prohibited drug (479.8 grams of 1,4-Butanediol), also contrary to s 25(1) of the DMTA (Count 3).

4. In addition, the applicant asked that his Honour take into account, pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the CSP Act”), an offence of possession of a prohibited drug in sentencing him for Count 1 and an offence of supplying a prohibited drug (7.57 grams of ketamine) in sentencing him for Count 2.

5. His Honour imposed a fixed term of imprisonment of one year and six months (to commence on 11 May 2015 and expire on 10 November 2016) in relation to Count 1 and a fixed term of imprisonment for one year (to commence on 11 February 2016 and expire on 10 February 2017) in relation to Count 3. In respect of Count 2, his Honour imposed a non-parole period of three years and three months (to commence on 11 February 2016 and to expire on 10 May 2019) and a balance of term of two years and three months (to expire on 10 August 2021). The total effective sentence on all three counts was a head sentence of six years and three months, with a non-parole period of four years.

6. The sentences imposed upon the applicant for Counts 1 and 3 have expired. There is no complaint as to either of those sentences, nor as to the application of the totality principle. Rather, this application is directed solely at the sentence imposed in relation to Count 2.

Grounds of appeal

7. The applicant initially relied upon three grounds of appeal:

Ground 1:   The sentencing judge mistook the facts or failed to take into account a material consideration by failing to make any, or any adequate finding, about the extent of the applicant’s involvement in the supply of drugs with respect to Count 2.

Ground 2:   The sentencing judge denied the applicant procedural fairness by taking into account material extrinsic to the agreed facts which was admitted for a limited use.

Ground 3:   The sentence imposed in respect of Count 2 was manifestly excessive.

8. At the hearing of the application, counsel for the applicant did not press Ground 2 and sought leave to amend the Notice of Appeal to raise the following two additional grounds:

Ground 4:   The sentencing judge erred in the determination for Count 2 by failing to have regard to a relevant consideration; namely, where the quantity of the drug in the applicant’s possession fell in the range of possible quantities which were “not more than a commercial quantity”.

Ground 5:   In the alternative, to the extent that the sentencing judge took into account where the quantity of the drug in the applicant’s possession fell in the range of possible quantities which were “not more than a commercial quantity”, there is a real possibility that the sentencing judge acted upon a wrong principle, namely a misapprehension as to what a “large commercial quantity” was.

The proceedings on sentence

9. Although this application for leave to appeal only concerns the sentence imposed for Count 2, it is necessary to have regard to the entire sentencing process in order to understand the complaints now made. The applicant first came before Hoy DCJ for sentence on Count 1 on 20 February 2015. He was not sentenced until 18 November 2015 because he made a number of adjournment applications and committed further offences in the intervening period (Counts 2 and 3).

10. On 27 February 2014, the applicant was charged with one count of supplying a prohibited drug, namely, 9.75 grams of methylamphetamine with a purity of 77% (Count 1). The facts giving rise to that count were that the applicant was present in premises that were visited by police. He was searched and allowed to leave, but he left his bag behind at the premises. The bag was searched and police located a tin containing a number of small plastic bags, five of which contained methylamphetamine. A broken MDMA tablet was also found. The applicant was later located and charged.

11. The applicant had a recent history of drug dealing at the time of the commission of Count 1. He had been sentenced to a suspended sentence of imprisonment for 12 months for drug supply in 2010. He committed further drug offences during that period and was called up and sentenced on all counts to concurrent terms of imprisonment for one year, with a non-parole period of seven months. On 28 January 2011, he was placed on a community service order for 50 hours for four offences of possession of a false instrument with intent to use it. On 20 February 2012, he was called up in relation to that order after being charged with other drug supply and dishonesty offences and in lieu received a sentence of two months’ imprisonment for the false instrument offences. On 20 January 2012, he was sentenced to imprisonment for one year for the drug supply and dishonesty offences.

12. The applicant pleaded guilty to Count 1 at an early stage. When he came for sentence before Hoy DCJ on 20 February 2015, he gave evidence that he had benefitted from individual drug counselling and from the 12-week rehabilitation program that he had recently undertaken. He stated that methylamphetamine had “ruined his life”, but that the rehabilitation process had given him hope for the future.

13. The applicant’s then counsel submitted that his Honour ought to consider an alternative to full-time custody. The position of the Crown was that the applicant’s prospects of rehabilitation were “guarded” and that his criminal history was such as to disentitle him to leniency. Despite this, it was conceded that it appeared that the applicant had made a genuine effort to rehabilitate himself. On that day, his Honour placed the applicant on a “Griffiths remand” pursuant to s 11(1)(a) of the CSP Act until 19 June 2015 in order for him to demonstrate his capacity and prospects for rehabilitation.

14. On 11 May 2015, whilst the applicant was on the Griffiths remand, he committed further drug offences, being Counts 2 and 3.

15. On 19 June 2015, the sentencing proceedings in relation to Count 1 came back before Hoy DCJ. His Honour was informed of the recent charges and adjourned the proceedings until 17 July 2015. On 17 July 2015, Mr James QC appeared on behalf of the applicant and applied for a further adjournment so that Counts 2 and 3 could be committed for sentence from the Local Court and the applicant could be sentenced on all three counts at the same time. His Honour granted that application over objection and adjourned the proceedings until 2 November 2015.

The agreed facts on Count 2

16. When the matter came before his Honour on 2 November 2015, brief agreed facts were tendered. It is convenient to set out those facts in full, given that Ground 1 contends that there was a failure to make a finding with respect to the applicant’s involvement in the supply of prohibited drugs. The facts are, relevantly, as follows:

“On Monday, 11/5/2015 plain clothes police were conducting surveillance of premises, 267 – 319 Bulwara Road, Ultimo. The building is a large residential unit complex.

About 4pm the offender entered the building carrying a large yellow shopping bag and a blue cooler bag. About five minutes later they saw a woman standing outside the building. Police knew her to be Ms Gyu Ri Che.

Police drove around the block and on their return saw Ms Che standing in the same place. The offender was standing in William Henry Street, about twenty metres from Che. He was looking up and down the street and then to his phone. He appeared to be sending a text message. Police continued surveillance. The offender and Che approached each other and engaged in conversation.

At that stage police approached the pair and introduced themselves. The offender immediately turned pale and appeared weak at the knees. He moved the blue cooler bag behind his back, out of sight. Senior Constable Hyde asked what was in the bag. The offender replied,

Nothing, I don’t know.

Asked again as to the bag’s contents the offender said,

Nothin [sic], nothing, I don’t know. I just got it from someone around the corner.

Asked the someone’s [sic] name the offender answered,

I don’t know he just gave it to me.

Senior Constable Hyde took the blue cooler bag from the offender and inspected inside. There was a grey toiletry bag. Inside the grey bag were a number of small clear empty resealable plastic bags. There was also a coin purse. Inside the purse were more similar resealable plastic bags, at least one of which contained a crystal substance. The offender was arrested and cautioned. The conversation which occurred thereafter was recorded electronically.

Asked again as to the contents of the bag and the name of the person who had given it to him the offender repeated,

I don’t know.

Senior Constable Hyde replaced the coin purse into the cooler bag and as he did so he could see the other packages of what appeared to be the prohibited drug, methylamphetamine.

Ms Che was also arrested and cautioned.

The offender was searched and his iPhone and wallet were seized.

Police trucks arrived and transported the pair to Newtown police station. There the cooler bag was more closely inspected. There were three resealable plastic bags of crystal substance in the purse. Inside a brown paper bag was a white envelope which contained a further two resealable plastic bags of crystals and a knotted plastic bag of similar substance. In a white box was another brown paper bag. It contained a vacuum sealed plastic bag of crystals and a clear resealable plastic bag of crystals.

The various bags of crystals were photographed and placed into drug bag B765318.

Police obtained a search warrant for the offender’s residence at unit 112 in the apartment block. Items seized included,

In a kitchen drawer was brown paper bag containing resealable plastic bags

On the kitchen bench was a glass cup containing crystal residue [B761255] and a set of digital scales.

In a container labelled Huggies in the laundry were,

A Samsung mobile phone

A Telstra Next G mobile phone

A small clear plastic bag containing white powder [B761251]

In the laundry sink was a glass bottle containing a thick clear liquid [B761254]

On the top shelf of the kitchen cupboard were four 2-ounce Ultra Pure brand pre-mixed synthetic urine kits.

The offender was taken to an interview room but declined to answer questions.”

17. Along with the agreed facts, the Crown tendered a phone examination report containing text messages sent and received on the applicant’s iPhone between 10 May 2015 and 24 May 2015. Relevantly, an outgoing text message sent on 11 May 2015 to “Frank-Adam” reads:

“Hey buddy, we hv [sic] a change process. From last week i decided to only meet people at a certain given point of time frame. Today i will be at ultimo back entrance only between 4-6 pm. Let me know if u sure coming or not, its really for safety reAson [sic] nothing else.”

18. An incoming text message from “B Now” also received on 11 May 2015 reads, “Last was bad.” The reply, sent at 4:12am, reads, “Yes now all brand new. I sacked my supplier.”

19. When the agreed facts document and the phone examination report were tendered, Mr James indicated that the facts had been agreed between the applicant and the Crown and that the examination report was an additional document. He went on to state that “…whilst I’ve raised that by way of comment, I’ve not [sic] objection to you seeing it and having regard to it, provided it doesn’t undermine what we agreed to by way of the agreed facts.”

20. Before his Honour at sentence with respect to the applicant’s subjective circumstances were a pre-sentence report dated 9 December 2014, a pre-sentence report dated 15 October 2015, a report of Associate Professor Stephen Woods, psychologist, dated 29 October 2015, a report of Nava Turner, psychologist, and the applicant’s evidence given on 20 February 2015.

21. The psychological report of Ms Turner was prepared only in relation to Count 1. It contained details of the applicant’s efforts at rehabilitation and some personal and family background. The applicant told Ms Turner that he travelled to Australia from Indonesia as a teenager and that he was the youngest of five children. He obtained an undergraduate degree and an MBA in Sydney. He is married, but there are no children of the marriage. He was introduced to methylamphetamine socially. Ms Turner considered that the applicant had depression, anxiety and anger management issues, as well as what she described as a chronic “loneliness”.

22. A/Prof Woods interviewed the applicant after he was charged with Counts 2 and 3. He considered that the applicant was substance dependant and suffering from a major depressive and anxiety disorder against a background of chronic dysthymia. The applicant reported to A/Prof Woods that he had not coped with his increasingly heavy workload in the financial industry following the global financial crisis and that his occasional use of MDMA increased and expanded to methylamphetamine. The applicant told A/Prof Woods that he committed Counts 2 and 3 to fund his legal expenses. It is noted in that psychological report that the applicant’s increased use of methylamphetamine destroyed his burgeoning finance career.

23. The first pre-sentence report before his Honour was under the hand of Theresa Ross and dated 9 December 2014. That report was prepared in respect of Count 1. Ms Ross described the applicant’s history of contact with Community Corrections for drug and dishonesty offences. She noted that his response to supervision on parole was positive and that he successfully completed the “Getting SMART” programme. Ms Ross outlined the details of the applicant’s domestic situation and set out his positive work and employment history, including employment in banking, which apparently deteriorated when he had to return to Indonesia for a short time. He had been in receipt of Newstart for two or three years. He told Ms Ross that he had been discharged from the course at South Pacific Private Hospital because of his inability to give up smoking. He accepted responsibility for his offending and reported that his reason for committing the offences was to fund his own drug habit.

24. Community Corrections officer Tricia Coombs reiterated the offender’s family, employment, offending and drug use background in a subsequent pre-sentence report dated 15 October 2015. She wrote that the applicant, “…appeared genuine in wanting to break his cycle of illicit substance abuse.” She noted that the applicant had a history of depression and anxiety. Contrary to what the applicant told A/Prof Woods, Ms Coombs stated that he admitted that he committed the offences to fund his own drug use and to pay “drug debts”. She assessed his criminogenic needs and risk of re-offending as being at a medium level.

25. Before turning to the reasons of the sentencing judge, it is pertinent to note the submissions made by counsel to the sentencing judge in relation to the seriousness of Count 2.

Submissions as to the applicant’s role

26. When making submissions as to the seriousness of Counts 2 and 3, Mr James referred to them as “another instance of plainly trafficking”, which seemed to “…get a reference in the telephone calls.” As for the applicant’s role, Mr James submitted that “…it’s plain that he’s been used as an intermediate-level supplier, in effect, on the street.”

27. The solicitor appearing for the Crown submitted that the text messages demonstrated “the level of set up involved in the supply.” She further noted that the applicant had not given any evidence as to his role. In reply, she submitted that the text messages in the phone examination report indicated that the applicant was “…entrenched in the individual supply of prohibited drugs, as well as perhaps supplying on a larger scale.” She noted that the applicant’s being in possession of a commercial quantity of methylamphetamine lent support to the suggestion that he was supplying “on a larger scale”.

28. Mr James’ submissions in reply included the following:

“Within the context of supply a commercial quantity, this is again at the lower end of the range for a charge of supply a commercial quantity. The amount is above the 250 g, but not much, when one has the [sic] regard of the range through to large commercial quantity. Secondly, the role is a relatively subordinate role as, in effect, a street dealer.”

29. His Honour reminded senior counsel that he had earlier described the applicant as an “intermediate level supplier”, to which he replied:

“Exactly. The quantity that he has was not, as it were, bagged for street dealing. He was apparently being used to transmit a commercial quantity.

…

It’s obvious that what he’s doing is at an intermediate level rather than a street level, but he’s also, quite obviously, got it in possession to pass onto to somebody or other else. The reward he could expect for that we know not. The material at his home, which is referred to at p 2 of the agreed statement of facts, would indicate that there is a class [sic] cup containing crystal residue, but I don’t understand that that was ever sorted out.”

30. He went on to submit:

“But I’m not sure that what was found in the kitchen is able to give your Honour much assistance as to the idea, for instance, was running a major business himself as opposed to transmitting it from one to another. Certainly, the phone calls, bearing in mind the statement of facts was agreed, being put in now would at best supply context and that context seems to suggest that he’s performing some role within the marketing process of drugs which is not an insignificant role, not a street dealer’s role in itself, but at the same time not a major dealer. That, I think, it as well as one could put it.”

His Honour’s reasons

31. His Honour noted that the applicant had pleaded guilty at the earliest opportunity and was therefore entitled to a 25% discount in recognition of the utilitarian value of his plea. His Honour considered that, as the applicant had twice previously been convicted of supplying prohibited drugs, specific deterrence loomed large as a consideration in the sentencing exercise. It was noted that there were about 18 months between the applicant’s release on parole on 19 August 2012 and the commission of Count 1 on 27 February 2014. His record disentitled him to leniency.

32. His Honour summarised the facts of Count 1 and then the evidence that the applicant gave before him on 20 February 2015. That evidence included that the applicant had been undertaking rehabilitation at the St John of God Hospital on a weekly basis, attending sessions with his treating psychologist Ms Nava Turner, and attending Narcotics Anonymous regularly. The applicant confirmed that he had attended the South Pacific Private Clinic at Curl Curl for about two weeks in October 2014 for detoxification, but had failed to complete the course. The applicant gave evidence at that time that he was learning to avoid his old suppliers and associates. He gave evidence that he had difficulty getting a job because of his criminal history, but that he wished to stay in Australia to support his wife, a student. He described Count 1 as a “wake up call”.

33. The facts of Counts 2 and 3 were then set out. With respect to Count 2, his Honour noted that the text messages suggested that there was “active supply”, which had not been disputed by counsel for the applicant at sentence. His Honour made the following findings relevant to the objective seriousness of Count 2:

“As to Count 2 the amount of drug is just over the commercial quantity. It was also of significant purity, 77.5%. Coincidentally, very similar purity to the first amount. There are a number of other indicia of supply. I do not think it is disputed that he was at an intermediate level in the dealing with, that is, supplying of drugs. The drug was not bagged or individualised. Whilst there is no evidence of profit, one can reasonably infer that he was doing so for financial gain. This is later confirmed by one of the reports which indicates that he pursued this enterprise to fund his subsequent legal costs. I note, however, that there was no indication or appearance of any extravagance in finances or goods, either on his person or in his unit. As to Count 2 therefore I am of the view it falls just below the middle range of objective seriousness.”

[emphasis added]

34. His Honour found the only aggravating factor within the meaning of s 21A of the CSP Act was that the applicant had a record of previous convictions: s 21A(d). As for mitigating factors, he found that the applicant was remorseful (s 21(3)(i)) and that he had pleaded guilty (s 21(3)(k)). Although his Honour had noted, in the course of reciting the relevant facts, that the applicant was on conditional liberty at the time of the commission of Count 2, that matter was not expressly taken into account as an aggravating factor.

35. His Honour summarised the psychological and Pre-Sentence Reports that were before him. His Honour found that the applicant had shown “…glimpses of commitment, motivation and insight” as far as rehabilitation was concerned. He had regard to the progress, albeit limited, that the applicant had made whilst subject to the Griffiths remand.

36. The JIRS statistics were referred to. The sentencing judge noted that, in relation to offences contrary to s 25(2) of the DMTA, the range of sentences for like offenders was from four to nine years, with non-parole periods of three years and six months to six years. His Honour recognised that there is a wide range of penalties and that much depends on the circumstances of the offence and of the offender.

37. Turning to principles of totality, his Honour considered that some accumulation between Count 1 and Counts 2 and 3 was necessary.

38. His Honour was satisfied that there was no alternative to imprisonment. A finding of special circumstances was made based on the applicant’s need for rehabilitation.

Ground 1

39. Mr Parkin of counsel contended that the sentencing judge had either mistaken the facts or failed to take into account a relevant consideration by failing to make any finding, or any adequate finding, as to the extent of the applicant’s involvement in the supply of prohibited drugs for Count 2.

40. In support of this ground, he submitted that findings of fact as to the extent of an offender’s involvement in the drug supply must amount to more than a general label or a description of the offender’s position in the hierarchy. Rather, findings of fact must be made about the nature of the drug supply itself and as to what the offender in fact did as part of the supply. Mr Parkin submitted that the sentencing judge disregarded the evidence as to the applicant’s role in favour of a general label.

41. Mr Parkin conceded that there was little evidence before the sentencing judge as to what the applicant was actually doing. Despite this, he submitted that it was not enough for his Honour to simply make a finding that it was at “an intermediate level”. In the absence of further material before his Honour, it was submitted, he should have either made no finding at all or articulated why it was that he found this to be “intermediate level involvement”.

42. It was submitted that the sorts of matters to which his Honour should have had regard include whether the applicant’s role was a subordinate one as a street dealer, whether he was being used to transmit the drugs, whether they were in his possession to be passed on to somebody else, and what, if any, was the relevance of the material found in his kitchen.

43. In support of the submission that it was necessary to go beyond labels or general descriptors, Mr Parkin relied upon the decision of McCallum J in Kemp v R [2014] NSWCCA 153 at [33], in which her Honour observed:

“It is often assumed, without analysis, that the supply of drugs involves a vertical or linear hierarchy from manufacturer to end buyer…in which the seriousness of the role of any individual participant is necessarily greater the closer that person is to the ultimate supplier. That may in fact be the case in some instances but the experience of other cases cannot be elevated to the status of a legal principle or presumption. Each case must be assessed on its own facts according to the material before the court.”

44. Counsel for the applicant expressly disavowed any complaint as to the finding of objective seriousness per se under this ground. Rather, it was contended that the sentencing judge fell into error by not providing greater details as to how it was that a finding of “intermediate level supplier” was arrived at.

Consideration

45. The applicant faces two considerable hurdles in establishing this ground.

46. The first difficulty is that experienced senior counsel for the applicant at the proceedings on sentence described the applicant as an “intermediate level supplier” in his submissions on sentence (extracted above at [26] and [29]). The Crown agreed with that description. The sentencing judge went on to sentence him on the basis requested by his counsel. The relevant portions from the proceedings on sentence are extracted above at [33].

47. The second and more significant hurdle that the applicant must surmount is that he was sentenced on the basis of agreed facts that did not allow for any factual findings of greater detail than those found by his Honour. The agreed facts simply did not reveal any of the acts that the applicant was alleged to have performed as part of the supply of the 373.5 grams of methylamphetamine.

48. It is to be accepted that, when determining the objective seriousness of offences of supply, the court is to have regard to the involvement, or role, of the offender in supplying prohibited drugs to the public: R v MacDonnell (2002) 128 A Crim R 44 at [33]. Despite this, the sentencing judge can only undertake that task based on the evidence before him or her.

49. Although the applicant gave evidence on 20 February 2015, that was at a time before he had committed Count 2. He did not give any further evidence after he was charged with the additional offences. There was thus no evidence from the applicant as to what he said his role was. The only other evidence before the sentencing judge, besides the agreed facts, was the phone examination report setting out the text messages between the applicant and prospective purchasers. There had been no objection to that document per se so long as it was not used inconsistently with the agreed facts. Mr James submitted that the text messages supplied “context”, that the applicant had a “not insignificant role” but “not a street dealer’s role” (above at [30]).

50. In circumstances where the only evidence before his Honour was the agreed facts and phone examination report, his Honour recited what was put forward in the agreed facts and the submissions made by his senior counsel in making the findings that he did. It is difficult to see how his Honour could have made more detailed findings of fact beyond the available inference that the applicant was involved in the supply of methylamphetamine at an “intermediate” level; that is, as a supplier who linked a larger supplier with street-level dealers.

51. The facts before his Honour revealed that a large quantity of drugs was involved and the drug was not found by police in small street deal sizes. In those circumstances, it would not have been open to his Honour to find that the applicant was a street level supplier. On that basis, his Honour was obliged to find that he was some sort of intermediate supplier.

52. His Honour was not required to go behind the material that was before him in order to make speculative findings as to the particular acts that the applicant performed. Nor was it necessary for his Honour to define the precise role of the offender. In Olbrich v R (1999) 199 CLR 270; [1999] HCA 54, the High Court rejected the contention that it was necessary to define the precise role of an offender in the importation of a prohibited import. The Court (Gleeson CJ, Gaudron, Hayne and Callinan) JJ stated at [14]:

“It is understandable that, in order to promote consistency in sentencing, appellate courts, when expressing views about sentences for drug offences, have sometimes categorised the role of an offender, where that is known, in a scheme of importation or distribution. Similarly, sentencing judges who are dealing with several co-offenders may consider such categorisation relevant in differentiating between individuals. However, the utility of such an exercise is necessarily limited by the extent to which the material facts are known. What may be a convenient shorthand method of describing the facts of particular cases should not be elevated to an essential task to be undertaken in every case, regardless of whether that is possible or appropriate.”

53. The sentencing judge assessed the role of the offender on the same basis as he was urged to do so by the applicant’s senior counsel. There was insufficient material before his Honour to have descended to any great deal of specificity as to that role. No error has been demonstrated in the approach adopted by the sentencing judge.

54. Ground 1 is not made out.

Grounds 4 and 5

55. Leave was granted to the applicant to rely upon Grounds 4 and 5 at the hearing of this application. These grounds rely upon the fact that on 1 September 2015 (after the commission of Count 2 but before the applicant was sentenced), the threshold set out in Schedule 1 to the DTMA for a large commercial quantity of methylamphetamine was reduced from one kilogram to 500 grams: Drug Misuse and Trafficking Amendment (Methylamphetamine) Regulation 2015 (NSW). The threshold for a large commercial quantity at the time of the commission of the applicant’s offence was still one kilogram because the amendment is substantive rather than procedural in nature.

56. The applicant contends that the sentencing judge failed to take into account where 373.5 grams of methylamphetamine fell within the range of possible quantities encompassed by that offence. In the alternative, if the sentencing judge did take into account where the quantity of 373.5 grams fell in the range of possible quantities, there is a real possibility that the sentencing judge misapprehended what the relevant “large commercial quantity” was.

57. Counsel for the applicant contended that the sentencing judge did not properly take into account the amount of drug in question having regard to how far it was from the upper limit of a large commercial quantity. This complaint is based on the reference by the sentencing sentence judge (extracted above at [33]), when assessing objective seriousness, to the amount of methylamphetamine being “just over the commercial quantity”. Counsel for the applicant submitted that the use of the words “just over” fails to show that his Honour took into account the correct range of possible commercial quantities. Having regard to the one kilogram upper threshold, it was submitted that 373.5 grams falls “…very much on the lower end of the range of the quantity of drug that could be supplied before it was considered to be more than a commercial quantity.” The applicant submitted that the relevant consideration for the sentencing judge was not how close to the commercial quantity was the amount of methylamphetamine, but rather how far away from the large commercial quantity it was.

58. In support of Ground 5, counsel for the applicant noted that the solicitor for the Crown had mistakenly identified the relevant threshold as 500 grams of methylamphetamine rather than a kilogram. It was conceded that senior counsel for the applicant did not correct the Crown and nor did he identify the relevant range in his submissions before the sentencing judge. The submission made by senior counsel for the applicant was that the amount involved in Count 2 was above 250 grams “…but not by much, when one has the regard of the range through to large commercial quantity.” Implicit in Ground 5 is an assertion that the sentencing judge sentenced the applicant on a mistaken understanding that the relevant upper limit for the offence was 500 grams of methylamphetamine rather than a kilogram.

Consideration

59. There is no basis for concluding that his Honour erred by failing to take into account where in the range of possible commercial quantities the amount of methylamphetamine in Count 2 fell. The finding made by his Honour was that the amount of 373.5 grams was “just over the commercial quantity”. This was a finding favourable to the applicant in that it was in fact an amount 123.5 grams over the commercial quantity. The sentencing judge took the relevant quantity into account in determining the objective seriousness of the offence, as he was required to do.

60. Although the amendment that came into effect on 1 September 2015 increased the threshold quantity for an offence of supplying not less than the large commercial quantity of a prohibited drug, the lower limit remained the same. At all relevant times the threshold for a commercial quantity was 250 grams.

61. I am not satisfied that his Honour acted on a misapprehension of principle. Although it is to be accepted that, if the relevant amount was “just over” the lower limit, that finding remains the same so long as the lower limit remains the same, I am satisfied that the sentencing judge would have been unlikely to have made such a finding if the upper limit was just under 500 grams. The amount of 373.5 grams fell almost halfway between the lower limit of 250 grams and the upper limit of just under 500 grams. It seems to me that his Honour would have been more likely to have used that expression if he was of the view that the upper limit was one kilogram.

62. Grounds 4 and 5 are not made out.

Ground 3 – manifest excess

63. In support of this ground counsel for the applicant relied upon the applicant’s “relatively good” subjective case, the positive finding as to remorse, that the applicant had suffered major depressive and anxiety disorders, his understanding of his need for rehabilitation and his motivation in that regard, and his good educational history.

64. It was further submitted that the JIRS statistics upon which the Crown relied at sentence captured so small a sample size as to be worthless.

65. Finally, Mr Parkin relied upon four decisions of this Court with respect to the supply of methylamphetamine (and one with respect to supply of a commercial quantity of 3,4 methylenedioxyamphetamine, or “MDA”) in support of the contention that the sentence imposed for Count 2 was manifestly excessive. Those decisions were B v R [2015] NSWCCA 314; El-Ahmad v R [2015] NSWCCA 65; Riggio v R [2015] NSWCCA 223; Kemp v R [2014] NSWCCA 153; and Hill v R [2012] NSWCCA 265. It was submitted that it is necessary to compare the starting point (prior to the 25% discount) of seven years and four months with the sentences imposed in the cases said to be comparable.

Consideration

66. The principles to be applied when determining whether a sentence is manifestly excessive are well settled. A ground of manifest excess contends that the sentence imposed is unreasonable or plainly unjust, notwithstanding that no specific error is demonstrated: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at 370-371 [25]; Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45; R v Dinsdale (2000) 202 CLR 321; [2000] HCA 54 at 325 [6]. It is not sufficient that this Court, if it were sentencing the applicant, would have imposed a different sentence. As the High Court (Gleeson CJ, Gummow, Hayne and Callinan JJ) observed in Markarian v The Queen at 371 [27] (citations omitted):

“…there is no single correct sentence. And judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies.”

67. I am not satisfied that this ground is made out for a number of reasons.

68. First, the offence contrary to s 25(2) of the DMTA carries a maximum penalty of imprisonment for 20 years and a non-parole period of 10 years, which mark the seriousness with which the community views such offending and which served as guideposts for the sentencing judge.

69. Second, his Honour found that the applicant was at an “intermediate” level of the drug supply and that the objective seriousness fell “just below the middle range of objective seriousness.” There was no challenge to that finding of objective seriousness.

70. Third, the applicant asked the sentencing judge to take into account an offence contrary to s 25(1) of the DMTA (supply of 7.57 grams of ketamine) when sentencing him for Count 2. It is well established that a sentence can be increased to take into account matters on a Form 1: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518.

71. Fourth, the applicant has a history of like offences. As the sentencing judge pointed out, he could not be afforded leniency on this basis.

72. Fifth, Counts 2 and 3 were committed whilst the applicant was on conditional liberty. When the applicant came before the sentencing judge on 20 February 2015, he gave evidence as to his efforts at rehabilitation. His Honour was persuaded by that evidence to adjourn the matter further in order for the applicant to make good his claim that he was seeking to rehabilitate himself. Instead, he committed further offences during that period.

67. Finally, I have had regard to the five decisions relied upon by the applicant in support of this ground. None of them has led me to conclude that the sentence imposed upon the applicant on Count 2 was unreasonable or “plainly unjust”. The objective circumstances of the offending and subjective circumstances of the offender in each case were different from those of the present case. In particular, the applicants in B v R and in Hill v R had the benefit of 60% and 50% combined discounts respectively for their plea and assistance. The applicant in B v R had no prior criminal history and was not a drug user. He had committed the offence to help a man whom he considered a friend: at [6]. In Kemp v R, it was necessary to impose an otherwise inadequate sentence for parity reasons (per Simpson JA at [2]).

68. None of the previous decisions of this Court upon which the applicant relied lends support to the contention that the applicant’s sentence of a non-parole period of three years and three months and a balance of term of two years and three months was manifestly excessive in the circumstances of his case.

69. His Honour recounted the applicant’s history of depressive and anxiety disorders and his attempts at rehabilitation. It was not suggested that there was any causal link between the applicant’s psychological state and his criminal offending such that the applicant was not aware of the consequences of his actions: s 21A(3)(j) of the CSP Act; R v Engert (1996) 84 A Crim R 67. Nor was it suggested that it would make his time in custody more burdensome: DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177].

70. Having regard to the authorities upon which the applicant relied, together with all of the objective and subjective factors, the applicant has not demonstrated that the sentence imposed in respect of Count 2 was unreasonable or plainly unjust.

71. Ground 3 is not made out.

Determination

78. None of the grounds of appeal upon which the applicant relies has been made out. It follows that I would grant leave to appeal against sentence but dismiss the appeal.

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Decision last updated: 21 July 2017