Lee v R

[2019] NSWCCA 106

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Lee v R [2019] NSWCCA 106
Hearing dates:	30 November 2018
Date of orders:	14 June 2019
Decision date:	14 June 2019
Before:	Hoeben CJ at CL [1]; Johnson J at [2] Campbell J [3]
Decision:	(1) Grant leave to appeal and allow the appeal; (2) Quash the sentence passed in the District Court on 11 August 2017 and instead sentence the applicant to a term of imprisonment of 6 years, having a non-parole period of 4 years, commencing on 2 September 2015 and expiring on 1 September 2019 with an additional term of 2 years commencing 2 September 2019 and expiring on 1 September 2021. The applicant will be first eligible for release on parole after the expiration of the non-parole period on 1 September 2019
Catchwords:	CRIMINAL LAW – Objective seriousness – error made in the exercise of discretion – whether the primary judge erred in assessing the applicant’s role in the drug supply enterprise – held in accepting erroneous assessment of the primary judge it must be accepted that the evaluation of objective seriousness is also erroneous – held primary judge fell into error by characterising the involvement of the applicant as more serious than that indicated by the evidence   CRIMINAL LAW – Appeals – parity principle – equality before the law – whether the applicant has a justifiable sense of grievance in the disparity of sentences imposed – substance rather than form – objective assessment of subjective circumstances – held disparity between sentences of co-offenders gives rise to a justified sense of grievance – resentence applicant
Legislation Cited:	Drug Misuse and Trafficking Act 1985 (NSW) s 25
Cases Cited:	AB v R [2014] NSWCCA 339 Aoun v R [2011] NSWCCA 284 Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 House v The King (1936) 55 CLR 499; [1936] HCA 40 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Koh v R [2013] NSWCCA 287 Mulato v R [2006] NSWCCA 282 House v The King (1936) 55 CLR 499; [1936] HCA 40 Ho v R [2013] NSWCCA 174 R v O’Donoghue (1988) 34 A Crim R 397 R v Storey [1998] 1 VR 359 The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
Category:	Principal judgment
Parties:	Anslam Lee (Applicant) Reginal (Respondent)
Representation:	Counsel: P Coady (Applicant) F. Veltro (Crown)   Solicitors: Younes & Espiner Lawyers (Applicant) Solicitor for Public Prosecutions (Crown)
File Number(s):	2015/257804
Decision under appeal	Court or tribunal: District Court of New South Wales Date of Decision: 11 August 2017 Before: Judge Conlon SC File Number(s): 2015/257804

Judgment

1. HOEBEN CJ at CL My judgment in this matter is I agree with Campbell J and the orders which he proposes.

2. JOHNSON J: I agree with Campbell J.

3. CAMPBELL J: The applicant pleaded guilty in the Local Court to a charge of supplying the large commercial quantity of the prohibited drug cocaine contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). He was sentenced by his Honour Judge Conlon SC in the District Court on Friday 11 August 2017. On sentencing he asked the Court to take into account three related matters on a Form 1. They were: knowingly dealing with the proceeds of crime, involving the sum of $23,370; participating in a criminal group; and knowingly allowing the use of premises he occupied as drug premises.

4. The offence of supplying a large commercial quantity of a prohibited drug carries a maximum penalty of life imprisonment and a standard non-parole period of 15 years imprisonment.

5. The primary judge sentenced the applicant to a term of imprisonment of 7 years and 6 months, having a non-parole period of 5 years commencing on 2 September 2015 and expiring on 1 September 2020, with an additional term of 2 years and 6 months commencing on 2 September 2020 and expiring on 1 March 2023, after allowing a 25 percent discount for an early plea.

6. The applicant seeks leave to appeal from this sentence on the following three grounds:

Ground 1:   The primary judge erred in his assessment of the applicant’s role in the drug supply enterprise and the objective seriousness of his offending. A number of particulars were provided in relation to this ground which will be enumerated below;

Ground 2:   The applicant has a justifiable sense of grievance in the disparity between the ratio of the non-parole period to the additional term imposed in respect of his sentence compared with the ratio in the sentences imposed upon his co-offenders;

Ground 3:   The applicant has a justifiable sense of grievance in the disparity in the sentences imposed upon co-offenders Hadi and Greentree (regardless of whether the applicant’s Ground 1 is upheld).

The facts relevant to the applicant’s offending

7. By his plea of guilty, the applicant admitted all of the elements of the offence with which he was charged. He admitted, therefore, that between 1 May 2015 and 2 September 2015 he supplied 1 kilogram of the prohibited drug cocaine which was not less than the large commercial quantity of that drug. Otherwise the facts of his offending were contained in an Agreed Statement of Facts signed by the applicant and admitted into evidence as Exhibit B.

8. As the grounds of appeal focus upon the applicant’s role in the drug supply syndicate, and questions of parity, I will focus on those matters in narrating the relevant material.

9. The offending was detected by a strike force established by the New South Wales Police to investigate the supply of cocaine in the Sydney metropolitan area. On 17 April 2015 a Controlled Operation Authority was granted by an Assistant Commissioner to further the investigation.

10. Investigators identified nine persons, including the applicant, involved in a sophisticated drug supply operation. Of these persons six were drivers directed by either Hadi or Greentree (mostly the former) to meet and supply cocaine to retail customers who had ordered the drug by telephone from either Hadi or Greentree.

11. The system involved a customer telephoning either Hadi or Greentree and placing an order. Having received the order Hadi or Greentree, as the case may be, allocated a driver for the supply and in a conference call with the driver and the customer made an arrangement for the supply at an agreed time and place.

12. Drivers, who carried a stock of the drug sorted into resealable plastic bags each containing about 0.47 g of the drug would replenish their stock by calling upon the applicant at premises occupied by him. Hadi or Greentree discussed with the driver how many bags to obtain from the applicant. When the driver attended the applicant’s premises he would use the driver’s phone to speak with Hadi (and not Greentree) to obtain authority for the amount of the replenishment. The applicant maintained at his premises a stock of the cocaine sorted into resealable bags. Hadi would authorise the applicant to supply the driver, according to telephone intercept evidence, with as many as 50, 60 or 80 bags. Generally, the amount of the replenishment was agreed during Hadi’s previous discussion with the driver and the former’s estimation of the expected level of demand. The applicant supplied the drivers only in accordance with Hadi’s express instructions.

13. All of the drivers involved in the syndicate attended the applicant’s premises to replenish their stocks of cocaine for distribution. The one kilogram of cocaine, the subject of the charge was calculated by aggregating cocaine distributed and cocaine in stock when the applicant was arrested. Cocaine distributed was estimated by analysis of the recorded, intercepted telephone conversations of members of the syndicate, and in particular the conversations between Hadi, or sometimes another person on his behalf, and the offender authorising the amount of the replenishment of a driver’s stock. Stock-in-hand was the number of pre-filled bags held at the applicant’s premises and seized by police executing a search warrant when the applicant was arrested on 2 September 2015. It was calculated that at Hadi’s direction the applicant had supplied 1,414 bags over the period charged each containing 0.47 g of cocaine, totalling 665.05 g of cocaine. Police located 681 resealable bags containing a total of 334.98 g of cocaine located in various parts of the applicant’s home unit. The average content of these bags was estimated to be 0.49 g. Aggregating these amounts, the cocaine was just on the large commercial quantity of one kilogram.

14. Apart from the cocaine, police executing the search warrant found other relevant items of interest. I will quote from the Agreed Facts (White Book (WB) p 6) as follows:

They also found an Apple I-phone, a black Nokia phone, a Samsung tablet and an ASUS laptop. They found 6 black notepads with writing inside. Police found $23,370 in cash in the TV unit. $600 of this cash was by money from a transaction conducted between [the police’s] street level operative “Aaron” and [one of the drivers] on 27 August 2015. This cash had been collected by the offender on Hadi’s behalf. They found $400 in another part of the unit.

Documents evidencing the applicant’s tenancy and occupancy of the premises were also located.

15. When interviewed by police after receiving the usual caution, the applicant exercised his right to silence by declining to answer most questions. He did say that the money that police had found did not belong to him but added that he did know who the money belonged to.

The source of the cocaine

16. As the applicant’s role in the syndicate was a significant issue in the District Court and on appeal, it is necessary to say something about the evidence in relation to it here.

17. There was no agreed fact, or other evidence, explicitly establishing how the cocaine the applicant supplied to the drivers came into his possession. Some reliance on the hearing of the appeal was placed by the applicant upon the transcript of a long telephone conversation lawfully intercepted on 3 June 2015 between Hadi and one of the driver co-offenders (2.20T; Applicant’s Written Submissions p 14 [29]). It was argued on the applicant’s behalf that the following passage proves that the applicant sourced the drugs from either Hadi or, perhaps more specifically, Greentree (Exhibit B p 4 WB 52):

Hadi:

… if we are running low, we will go back to [the applicant] and get another 10 or 20.

The driver replied:

Exactly right, I’ll top it up … or if I need to borrow from the boys [Greentree], then I’ll replace it in theirs next week. Don’t worry I won’t run out for you.

Hadi asked:

They are definitely the new ones, he dropped off the new ones?

Driver replied:

Definitely the purple ones, I won’t touch the green bags any more.

Hadi said:

Nah, but some of the old ones are purple man …

Driver said:

Nah, he said they just got dropped off. He promised me … he said he just picked up … and I asked William [Greentree] and he said they were already there, and when I saw [the applicant] he said he had just gone and got them from the boys [Greentree].

18. It had been submitted on behalf of the applicant at first instance, “his task was warehousing or bookkeeping” (WB 110.45). It was put that the applicant was simply following orders from Mr Hadi and Mr Greentree. For this reason it was argued that, “he is closer to the bottom than he is the top”. It was also submitted that the applicant was merely “holding” the drugs. The Crown interjected (WB 111.30) that the “ultimate source of the drugs” was not known but that the drivers went to the applicant to collect the drugs. His Honour offered this observation (WB 112.30):

His Honour:   That’s why I said, the only inference on these facts is as I’ve just indicated: that he had the capability of being able to obtain these drugs so that he could fulfil the orders that were given to him by these other two persons.

Crown:   Yes. In some way the drugs came to him so that he could on-supply them in large quantities.

19. In what appears to be submissions in reply, the Crown later submitted that “Hadi and Greentree were operating almost like a call centre, in one sense” (WB 116.30). In response to the submission that the applicant’s role was “closer to the bottom”, the Crown submitted at (WB 116.45):

We would say the opposite, it’s closer to the top. He was trusted with large quantities of cocaine and money. He was dealing directly with drivers who were on-supplying with clients. He had a crucial role, but, more importantly, a trusted role. Trusted with both the valuable drugs themselves and the money. That’s indicative of a role at the top of the hierarchy of this particular syndicate, at least equivalent to Mr Hadi and Mr Greentree.

(My emphasis.)

The applicant’s subjective case

20. There is no issue that the applicant had a reasonably compelling subjective case. He was 37 at the time of the offending and 39 years of age when sentenced. The only entry on his criminal record was one conviction for possessing a prohibited drug in 2014 for which he was fined $800; hardly a matter depriving him of prior good character, or some legitimate claim to leniency.

21. According to the report of Patrick Sheehan, psychologist (Exhibit 1; WB 79-90), dated 13 June 2017 and tendered on behalf of the applicant, he had been born in South Korea, the youngest of three boys. His family migrated to Sydney when he was 9 years old. The family were generally “pro-social”. His parents established their own cleaning business and his brothers grew up to be successful persons in their own right.

22. The applicant had a happy childhood in a supportive family home. He attended high school in the Catholic education system, completing his Higher School Certificate in 1995. He did not achieve a high tertiary entrance rank, but gained admission to TAFE, obtaining an Associate and Advance Diploma in Architectural Drafting. This enabled him to gain entry to the University of Technology, Sydney as an undergraduate in the Bachelor of Architecture course. He studied part-time while working in the field.

23. At the age of 21 he commenced to live with his then partner who was expecting their first child. The impending birth led him to defer his degree in his third year, and he has not returned to his studies. He has generally been continuously employed in various skilled occupations. At some stage he went into business with others. He was of the view that his business partners “shafted” him and clients would not pay. The business failed leaving him in considerable debt which in turn led to the breakdown of his marriage. He returned to the family home for a short time before resuming independent living. Following these adversities, he developed a significant depression in 2012 which totally incapacitated him for a period of 8 months.

24. He had difficulty recovering financially from the business failure and was unable to re-establish himself in the type of continuous, responsible work he had previously performed. His financial pressures led to him becoming involved in the drug supply syndicate for financial gain.

25. His association with illicit drugs commenced when he started smoking cannabis when at TAFE in his late teens. His use of cocaine after the failure of his business and the breakdown of his marriage drew him into the syndicate. He did not enjoy the effects of cocaine and discontinued its use. He had been able to break his cannabis habit about six months prior to his arrest. It cannot be said that his involvement in the syndicate, therefore, was in any way to feed his own drug dependence. He regarded his role in the syndicate as that of a bookkeeper. He did not regard his involvement as other than temporary and only for the purpose of paying off his lingering business debts.

26. Having reflected on his involvement in the syndicate while in gaol, he was able to tell Mr Sheehan “I would never do it again, ever”. Mr Sheehan expressed the following conclusion which the primary judge accepted (WB 89 [27]):

Mr Lee has followed an unusual trajectory into crime. His early adjustment was positive and he was immersed in a strict but pro-social family environment. Similarly, he has held a relatively consistent employment/study record throughout his twenties and into his thirties. However, he has struggled to be resilient to changing life events (failures of relationship and business), responding with emotional difficulties and substance use (cannabis) as a coping mechanism. His current offences are not embedded in a broader pattern of rule violation and offending, but would seem rather some type of defiant reaction against his prior conservative belief system, and aggravated by financial strain, low mood, familiarity with elicit substances and the presence of a permissive social milieu where drug activities were supported in an atmosphere of elitism.

27. In a letter to the sentencing judge, the applicant acknowledged the seriousness of his offending and expressed his preparedness to accept full responsibility. He had favourable references from the correctional centre chaplain and from a Buddhist chaplain. A letter from the applicant’s brother confirmed that his family continued to support the applicant. A friend from school attested to the applicant’s work ethic and his responsibility as a parent.

28. The primary judge concluded (WB 25 – 26):

Clearly when dealing with a person who is 39 years of age and up to his involvement in the commission of these crimes, he had been living a law-abiding lifestyle, when one takes that into account and also the material that I have referred to, contained in the reference material … and also Exhibit 1 … I am satisfied that he does have very good prospects of rehabilitation. I can also accept the various expressions of remorse to his family and others as being genuine.

29. His Honour allowed 25 percent discount for the utilitarian benefit of the early plea which he also accepted reflected contrition.

Findings as to applicant’s role and objective seriousness

30. The primary judge sentenced each of the nine co-offenders involved in the syndicate in a series of judgments between 11 August 2017 and 19 April 2018. Of the nine, the applicant was the first to be sentenced. The primary judge made the following findings about the applicant’s role and the objective seriousness of his offending (WB 18 – 19):

From the objective material presented on behalf of [the applicant] (to which I shall refer shortly) it is clear that [the applicant’s] sole motivation for involvement in the offences was financial gain. It was submitted on behalf of [the applicant] that this Court may regard his role as that of a “warehouser or bookkeeper and that he was lower in the hierarchy than Hadi or Greentree”. There are a number of difficulties with that submission. The recitation of the facts reveals that this was a well organised criminal enterprise. It was organised as a business. Hadi and Greentree had instituted a system of how orders were placed and there was a level of sophistication in respect of that system. Once the orders were received a driver would be selected. The drivers would then be put in contact with the customer and the supply location nominated.

There can be no doubt that this was a relatively large-scale operation. However, it would appear that this enterprise was dependent upon Hadi and Greentree being able to source the drugs to keep up with the demand. It was [the applicant] who was their source and accordingly, his role was pivotal. He would await confirmation from Hadi before he would supply the individual drivers. This was no doubt the method by which Hadi could have had some control over the actual amount supplied to the drivers and a way for accounting for the profits from the on-selling of the drugs. The charge spanned a period of about 4 months and, as indicated in the facts, it was clear to the investigators that the group had been operating undetected for some time.

[The applicant] was clearly a trusted figure within the enterprise. His involvement as I have indicated was indicative of a role more towards the top, rather than at the bottom of the hierarchy. I am of that view, even though he was not directly responsible for the street supplies out into the community, without the offender’s ability to source the drugs, the street supplies could not have taken place.

Whilst the quantity involved had just reached the 1 kilogram weight placing it into the large commercial quantity, it is the magnitude of the operation rather than the ultimate weight of the drugs involved which is of greater importance. However, a court will always have regard to whether it is dealing with an offence involving by way of example 1 kilogram as opposed to 10 kilograms or even greater quantities.

I am satisfied that this was a very serious example of drug supply by a criminal syndicate and that the offender’s role is at least in the mid-range of objective seriousness in respect of offences of its type.

(My emphasis.)

Parity issues

31. It is settled law that “formal identity of charges against” co-offenders is not a necessary condition of the application of the parity principle: Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [30], French CJ, Crennan and Kiefel JJ. Accordingly, the parity principle permits a comparison of the sentences passed on the applicant on the one hand, and the drivers on the other, but except in relation to Ground 2, which deals with the statutory ratio between the non-parole period and the additional term, the applicant does not contend that an examination of the sentences imposed on the drivers per se is capable of demonstrating a justifiable sense of grievance on his part. Rather his argument is that the relevant comparison should be between him, on the one hand, and Hadi and Greentree on the other. Even with this comparison, it is necessary to bear in mind that Hadi and Greentree were charged with a less serious crime. They were each charged with, and pleaded guilty to, knowingly taking part in the supply of a commercial quantity of the prohibited drug cocaine, carrying a maximum penalty of 20 years imprisonment and a standard non-parole period of 10 years. Accordingly, there was no formal identity of charges between them and the applicant. In this regard it needs to be remembered that the plurality justice in Green said:

… There can be significant practical difficulties in comparing the sentences of participants in the same criminal enterprise who have been charged with different crimes. The greater the differences between the crimes, the greater the practical difficulties, particularly where disparity is said to arise out of a sentence imposed on a co-offender who has been charged with an offence that is less serious than that of the appellant. The existence of those difficulties may be accepted. So too may the inability of a court of criminal appeal to undertake, under the parity rubric, a de facto review of prosecutorial charging discretions. Those practical difficulties and limitations, however, do not exclude the operation of the parity principle. The effect given to it may vary according to the circumstances of the case, including differences between the offences with which co-offenders are charged.

32. The amount of cocaine supplied attributed to Hadi by extrapolation from the sales for which he was responsible between 1 May 2015 and 2 September 2015 was 400 g of cocaine. Greentree was only shown to have been involved between 17 June 2015 and 13 August 2015. During that time the supplies attributable to his involvement amounted to 100 g. However, when the premises he occupied were searched by police a further 404 g of cocaine was located already separated into resealable bags which the primary judge said, “was obviously intended for supply”. There was also, on the face of it, a serious matter on the Form 1 relating to cash totalling $16,470. He was also charged with possessing sawn-off shotgun parts under s 7(1) Firearms Act 1996 (NSW) carrying a maximum penalty of 10 years imprisonment and a standard non-parole period of 4 years. Possession of a pen gun and a quantity of loose ammunition were additional offences on a Form 1 appurtenant to that charge. It should be said straightaway that his Honour accepted Greentree’s evidence that the firearms and ammunition just happened to be on the premises when he moved in to assume his role in the syndicate. Police also located other drug paraphernalia in the premises occupied by him including drug ledgers.

33. In his judgment dealing with Hadi and Greentree (WB 184 ff), the primary judge reiterated his earlier findings that the applicant had been a trusted figure within the enterprise; his involvement was more towards the top than the bottom of the hierarchy; without his “ability to source the drugs” the street supplies could not have occurred; he was dealt with for a more serious charge; and his motivation was purely for financial gain (WB 193).

34. His Honour observed that Hadi and Greentree were responsible for the institution of the sophisticated system of street level supply. His Honour continued (WB 194 – 195):

There can be no doubt that this was a relatively large scale operation disseminating significant quantities of drugs in the community. It would appear that Hadi had a more significant role than Greentree so far as his involvement was concerned, sourcing the drugs from Lee. Hadi’s frequent contact with Lee was also a way of monitoring of what was actually being supplied by Lee to the various drivers; that is as a way of accounting for the profits from the on-selling of the drugs. It would appear that Greentree’s role did not extend that far as he had no contact with Lee.

His Honour observed that the phone call of 2 September between Hadi and the driver demonstrated a keen interest on Hadi’s part in the success of the operation. His Honour continued:

So far as the offence of knowingly take part in the supply, Hadi’s role and involvement was slightly above that of Greentree.

…

Whilst the Court would be naïve to think that there was not a figure or figures to whom Hadi and Greentree were answerable, I am satisfied that each held a position within the syndicate above each of the individual drivers. Typically those further up the hierarchy are able to distance themselves from their drugs and their dissemination into the wider community by organising individual drivers to undertake that part of the operation that carries the greatest risk, and that is the position that Hadi and Greentree held.

(My emphasis.)

35. His Honour made favourable findings about the subjective circumstances of each of them. They both were in their late twenties. Mr Hadi had no criminal convictions. He was married and conducted his own legitimate business, but developed a substance abuse problem. His Honour accepted that Hadi was remorseful and had positive prospects for rehabilitation “provided he is able to get on top of his drug addiction problems”.

36. Greentree had no prior criminal history. The primary judge was impressed by his frankness as a witness. He left school during year 9 and worked variously in unskilled manual labouring work. The jobs were mostly of short duration. He commenced substance abuse at the age of 12 and had a daily cocaine habit at the time he joined the syndicate. His Honour accepted his expressions of remorse and, subject to the addiction issue, assessed his prospects of rehabilitation positively.

37. Both Hadi and Greentree were entitled to a discount of 25 percent for an early plea.

38. For the firearm offence the primary judge sentenced Greentree to a fixed term of 2 years commencing on 3 September 2015 and expiring on 2 September 2017. For supplying the commercial quantity of cocaine, he was sentenced to a term of imprisonment of 5 years, having a non-parole period of 3 years dating from 3 December 2015 and expiring on 2 December 2018 with an additional term of 2 years expiring on 2 December 2020. As can be seen the total effective sentence was 5 years and 3 months with a non-parole period of 3 years and 3 months. There was a high degree of concurrency structured into the sentences.

39. The primary judge sentenced Hadi to a term of imprisonment of 4 years and 6 months commencing on 17 April 2017 and expiring on 16 October 2021. The non-parole period was one of 2 years and 6 months expiring on 16 October 2019.

40. The primary judge found special circumstances in each of the eight cases where the co-offenders were sentenced to full time terms of imprisonment. One driver received an intensive correction order. The ratios were altered as follows:

1. In the applicant’s case, 66.7 percent;

2. In Greentree’s case, 61.9 percent;

3. In Hadi’s case, 55.5 percent; and

4. In the case of the 5 drivers, in a range between 37.5 percent and 53.3 percent.

41. It should be said, so far as parity is concerned, that in the case of Greentree and Hadi, each of them had a substance abuse problem, suggesting a longer period of supervision in the community was necessary.

42. The applicant’s particulars of Ground 1 impugn the primary judge’s findings that he was the syndicate’s source of cocaine; and that without the applicant’s ability to source the cocaine, the street supplies could not take place. He also challenges the primary judge’s assessment that his role was “more towards the top”; and the evaluation of his offending as “at least in the mid-range of objective seriousness in respect of offences of its type”.

Ground 1

43. Mr P Coady of Counsel, for the applicant, argued that there was no evidence to support the primary judge’s findings that the applicant was the source of the cocaine disputed by the syndicate in the sense that he had the ability to procure it independently. He points to the evidence I have set out (at [15] above) suggesting that Greentree had supplied “the green bags” of cocaine for distribution throughout the syndicate from the applicant’s premises. Emphasis was also placed upon Hadi’s role in authorising, and specifying the amount of, the replenishment of the stock held by drivers. The applicant did not supply drivers without Hadi’s authority. Counsel also emphasised the agreed fact (at [12] above) that the $23,370 in cash (this cash) located on the applicant’s premises “had been collected by [the applicant] on Hadi’s behalf”.

44. It was argued it was wrong of his Honour to say in argument (at [16] above) that the only available inference was that the applicant had the capacity to obtain the drugs as such an inference was not open. And any such inference was contrary to the Crown submissions (at [17] above) that the applicant was “at least equivalent to Mr Hadi and Mr Greentree” in the syndicate’s hierarchy.

45. Mr Coady argued that if it is accepted that his Honour’s finding as to the applicant’s role is erroneous, so too is his evaluation of the objective seriousness of the applicant’s offending.

46. The Crown argued that the applicant could not make good ground 1 unless the applicant demonstrated that the impugned finding was not open to the sentencing judge. The Crown referred to the judgment of Simpson J (as her Honour then was) in AB v R [2014] NSWCCA 339 [47] – [57] and the authorities which her Honour reviewed. The Crown also referred to Aoun v R [2011] NSWCCA 284 at [33]-[35]. The approach to be applied where a finding of fact is challenged on appeal was described by Hoeben CJ at CL (Rothman and Price JJ agreeing) in Biddle v R [2017] NSWCCA 128 at [73]:

If factual findings are challenged on appeal to this Court, the applicant must demonstrate that the findings of fact were not open (Turnbull v Chief Executive of theOffice ofEnvironment and Heritage [2015] NSWCCA 278 at [26]-[32]). Error must be shown before this Court will interfere in the sentence. Factual error may be demonstrated if there is no evidence to support a particular finding, if the evidence is all one way or if the judge has misdirected himself. This Court might disagree with his Honour’s findings, but that is not sufficient. Without error being established, this Court has no power to substitute its own findings for those made by the sentencing judge (R v O’Donohue (1988) 34 A Crim R 397 at 401; AB v R [2014] NSWCCA 339 at [52], [59]).

47. The Crown also referred the judgments of McClellan CJ at CL and Simpson J in Mulato v R [2006] NSWCCA 282 at [37] and [46] respectively. Their Honours individually regarded the assessment of objective seriousness of an offence as one “quintessentially for the sentencing judge”. It was subject to review on appeal only upon the demonstration of error in accordance with the principles established in House v The King (1936) 55 CLR 499; [1936] HCA 40.

Disposition of Ground 1

48. It is established by House v the King that “it is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge they would have taken a different course. It must appear that some error has been made in exercising the discretion”. The categories of error identified by Dixon, Evatt and McTiernan JJ include the following category:

… if [the judge] mistakes the facts … then [the judge’s] determination should be reviewed and the appellate court may exercise its own discretion in substitution for [the judge’s] if it has the materials for doing so.

49. The fact finding task for sentencing judges, particularly in drug cases, was discussed in The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 (Olbrich). Gleeson CJ, Gaudron, Hayne and Callinan JJ said (p 277 [13] ff):

[13] We do not accept that the identification of the precise nature of the accused's involvement in an act of importation of prohibited imports is an essential aspect of the sentencing process.

[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.

…

[16] There is a very practical reason for concluding that a sentencing judge is not obliged to inquire about the course of events before or after an importation of drugs. Very often prosecuting authorities (and a sentencing judge) will have only the most limited and imperfect information about how it was that the accused person came to commit an offence for which he or she stands for sentence. Especially is that so where the accused has pleaded guilty and where the offence which the offender admits is one which had its genesis outside this country. Very often then it will not be possible to say, with any certainty, what exactly was done or intended by a person apprehended in the act of importing narcotics into Australia.

Although Olbrich was concerned with drug importation, their Honours observation at [14] makes clear the case applies equally to an offender being sentenced for his part in a scheme of distribution of illicit drugs. Very often drug syndicates will be organised to limit the exposure of those involved especially, of those involved at a higher level, as the primary judge observed (at [32] above). And notwithstanding thorough investigations, as here, the full involvement of each participant may not be evident. And not all participants in, or persons likely to profit from, the scheme of distribution will be identified.

50. Having (at Olbrich [25]) observed that an onus lies on each party to bring to the attention of the judge, and if necessary prove, matters each relies on in aggravation or mitigation respectively. Their Honours said at [26]:

In the proceedings before the primary judge in this case, the prosecution did not submit that the sentence to be imposed on the respondent (a 58 year old first offender who pleaded guilty to importing more than 1.1 kilograms of heroin) should be increased beyond what otherwise would be called for by those facts because the appellation “principal'’ could be attached to him. Rather, the respondent submitted that the sentence otherwise to be imposed on him should be mitigated because he was “a courier'’. The respondent bore the burden of proving this fact. The judge was not persuaded of it.

51. Their Honours also approved of the following statement from R v Storey [1998] 1 VR 359 at 369 – that a sentencing judge:

… may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there were circumstances which the judge proposed to take into account in favour of the accused, it was enough if those circumstances were proved on the balance of probabilities. (My emphasis)

52. The argument about the applicant’s role was really raised by his counsel when it was put that “his task was warehousing or bookkeeping” for the purpose of reducing his criminality. In accordance with Olbrich the applicant carried the onus on the civil standard to establish that fact. The primary judge was not persuaded. However, it did not follow from the rejection of that argument that the applicant was closer to the top than the bottom. And it certainly did not follow, as his Honour seemed to find, that independently of the other participants in the syndicate, he was able, and, as is implied by the finding, did in fact source the cocaine for distribution through the syndicate from outside the syndicate. There was no evidence to that effect.

53. It was not put by the Crown that the applicant had the ability to, and did in fact, source the cocaine independently of the other participants. Rather the Crown argued that he was a trusted participant: “trusted with large quantities of cocaine and money”. It was argued that he had a “crucial role”. It was said that his part was “indicative of a role at the top of the hierarchy of this particular syndicate, at least equivalent to Mr Hadi and Mr Greentree” (my emphasis). Clearly, a finding that the applicant “had the capability of being able to obtain these drugs so he could fulfil the orders” was a finding, if made, adverse to the applicant. As I have said, it was not sought by the Crown in those terms. If the finding was made it had to be established beyond reasonable doubt. His Honour’s observation, albeit in arguendo, that that was the “only” inference has to be evaluated in the light of the onus and standard of proof. Before such an inference could be drawn, it had to be the only rational inference available on the material before the sentencing judge. It would not have been enough for it to have been an inference more likely than the other available inferences.

54. As I have said there was some material available that at least some of the drugs had been sourced from others through Mr Greentree. I accept this evidence was slight. But nonetheless it did arise out of the Statement of Agreed Facts prepared for the purpose of sentencing the applicant, and was based upon recorded, lawfully intercepted telephone conversations between other co-offenders.

55. Although the execution of the search warrant led to the recovery of a significant amount of cocaine already bagged in the possession of the applicant, there was no evidence, or agreement, about who bagged it. Just as in the later proceedings there was no evidence about who bagged Mr Greentree’s reserve of cocaine. Police did not discover any “loose” cocaine yet to be bagged in his home unit which might have tended to prove that the applicant performed the bagging task. There were no scales or any reserve of resealable bags referred to in the Agreed Facts, as is common enough in the evidence led in drug supply cases. Moreover, the Agreed Facts stated explicitly that the cash was being held for Mr Hadi.

56. His Honour was entitled to reject the argument that the applicant was a mere warehouseman. He was entitled to accept that he was a trusted figure within the enterprise. But other than in the sense that the drivers replenished their stocks from cocaine available at the applicant’s home unit, there was no evidence that he was Hadi and Greentree’s “source”. There was certainly no evidence that he had the ability to source the drugs independently of the syndicate, which as I have said, was not an argument put by the Crown. In my judgment it was not open to the learned judge to make these findings and in doing so he committed the error of mistaking the facts in accordance with House v The King.

52. Obviously, his Honour’s finding about the applicant’s “role” largely informed his assessment of the objective seriousness of his offending. As Olbrich makes clear it is not necessary to assign a role to him for the purpose of identifying the nature of his criminality: Olbrich at [20]. As the plurality said in Olbrich at ([21]) the critical question affecting the sentence that should have been passed on the applicant depends “on what he had done and who he was, not on what others may have hoped to gain from his activity”.

53. Setting aside his Honour’s finding that the applicant was capable of sourcing the drugs independently of the syndicate, and the implication that he in fact did so, does not necessarily affect the other findings his Honour made. Looking at what the applicant had done and who he was, his Honour was justified in accepting the submission that he was a trusted participant, in as much as he was relied upon to keep the drugs for the purpose of replenishing the stocks of the drivers, and receive the proceeds of sale for safekeeping. In this sense, as the Crown submitted, his role was crucial, but everyone had their part to play. The syndicate could no more have operated without Hadi and Greentree, or, for that matter, the drivers, as without the applicant.

54. In Koh v R [2013] NSWCCA 287 at [108] Johnson J observed:

There is no upper limit beyond the large commercial quantity. That category may be engaged where the quantity just exceeds the limit, or where the offence escalates to involve quantities confined only by the limits upon the capacity of a criminal syndicate to organise drugs for supply for potentially massive profits. The extent to which the quantity exceeds the threshold for the large commercial quantity is a very material consideration in assessing the objective seriousness of an offence: (Citations omitted).

This is not in any way inconsistent with Wong v R (2001) 207 CLR 584; [2001] HCA 64 where at [67] Gaudron, Gummow and Hayne JJ said:

… the particular amount of narcotic involved can have significance in fixing the sentence that is to be imposed on an offender.

This is especially so, their Honours said, when the weight of the narcotic is given statutory significance for sentencing purposes by the Parliament distinguishing between the maximum sentences that may be imposed for escalating categories of drug supply offence.

60. The primary judge, of course, made his assessment of the objective seriousness of the applicant’s offending principally on the basis of his findings as to the applicant’s role. Weight obviously played its part. But in assessing what the applicant did to make his finding about objective seriousness (at [28] above) I am of the view, with respect, that his Honour’s assessment is tainted by the error of fact he made about the applicant being the source of the drugs for distribution.

Ground 2

61. With respect, I am of the view that Ground 2 is misconceived. One may accept that the norm of equal justice which underpins the parity principle “allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/different circumstances”: Green at [28]. It may be accepted that each of the nine offenders had more or less strong subjective cases. However, this is not to say they were necessarily the same, especially in the area of special circumstances and the question of the adjustment to statutory ratio between the non-parole period and the total term.

62. The Crown relied upon Ho v R [2013] NSWCCA 174 at [18], where Schmidt J said:

A finding of special circumstances reflects the personal characteristics of an offender, which will commonly differ between co-offenders.

63. The parity principle is not breached simply because different non-parole periods reflect different findings as to the existence or extent of special circumstances even when co-offenders are all seen to have strong but not identical subjective cases. Clearly, for example, the applicant had no need for supervised drug rehabilitation.

64. I would reject Ground 2.

Ground 3

65. This ground focuses upon parity between Hadi and Greentree, on the one hand and the applicant, on the other. Once his Honour’s error as to the applicant’s role is corrected, it is apparent that it is difficult to differentiate his criminality from theirs except in one respect. That is the important consideration that based upon the applicant’s supply of 1 kg of cocaine (as opposed to 400 grams by Hadi and 100 grams by Greentree who also had cocaine at his premises), the applicant was charged with a more serious offence, carrying both a higher maximum penalty of life imprisonment, and a higher standard non-parole period of 15 years imprisonment. And this is the area in which the High Court counselled caution in Green at [30]. The High Court said the need for caution arises out of the practical difficulties where disparity is said to arise out of a sentence imposed upon a co-offender who has been charged with an offence that is more serious than that of the applicant and the inability of a Court of Criminal Appeal (or any court) to conduct a de facto review of prosecutorial charging discretions. The same need for caution is in play where, as here, the disparity is said to arise out of a sentence passed on co-offenders charged with an offence less serious than the applicant.

66. His Honour did not express his views about objective seriousness in relation to Hadi and Greentree in terms of a conclusion by reference to a relevant range of seriousness. Rather, he pointed out that they were responsible for instituting, (and running) a sophisticated system of drug distribution involving fielding calls to receive orders and allocating those orders to drivers who made the supplies. The operation was of a relatively large scale disseminating significant quantities of drugs in the community. Hadi’s role was more significant than Greentree’s because Hadi dealt directly with the applicant. This allowed him to monitor what was being supplied and to account for profits. The period of Greentree’s involvement was also less. His Honour was satisfied that Hadi and Greentree were in a position in the hierarchy where they were able to distance themselves from the drugs and their dissemination by organising the drivers “to undertake that part of the operation that carries the greatest risk” (WB 195). By implication he rated their offending as less serious than the applicant’s. (WB 193).

67. Greentree, it must be remembered, also had the firearm offence which, having accepted his evidence, the primary judge assessed as falling below the mid-range for offences of that type.

68. When one corrects his Honour’s factual error, and adjusts the finding of objective seriousness accordingly, and as the Crown submitted at first instance, it is difficult to differentiate the applicant’s level of criminality from that of Hadi and Greentree, except for the laying of the more serious charges for which the weight of the cocaine was just at the threshold for the more serious category of offence above that with which Hadi and Greentree were charged. The point of difference in respect of the more serious charge was the quantity of cocaine involved and that arose because the drugs that the drivers were supplying were obtained from the applicant’s premises with the authority of Hadi. The applicant only released the drugs he held on the say-so of Hadi.

69. Although their subjective circumstances were not identical, all had entered pleas at the first available opportunity and all had, in their own way, strong subjective cases which the primary judge accepted.

70. Viewed objectively, I am satisfied that there is a marked and unjustified disparity between the sentences imposed upon Hadi and Greentree when compared with the sentence imposed upon the applicant, even allowing for his more serious charge. I am satisfied that this disparity gives rise to a justified sense of grievance and Ground 3 has been made out.

Re-sentencing

71. As I am satisfied that error in accordance with House v The King has been established, it is necessary for me to exercise the sentencing discretion afresh: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42]. I would approach that matter relying fundamentally on the findings made by the learned primary judge, but correcting the errors I have identified.

72. I have set out fully his Honour’s findings as to the circumstances of the offending and of the offender fully above. I will not repeat them here.

73. In re-exercising the discretion, I am of the view that the Crown’s submission at first instance that the applicant’s role was at least as important as that of Hadi and Greentree should be accepted, bearing in mind the differences between Hadi and Greentree identified by the primary judge. I am also of the view considering: what the applicant had done; who he was in the organisation; the period over which the offending conduct occurred; his motivation was solely for financial gain; and bearing in mind that the amount of drugs which he handled were just at the large commercial threshold, it is appropriate to assess the objective seriousness of his offending for this offence as somewhat below the midline.

74. Like the others, his subjective case is compelling. While the period over which he was involved in the offending makes it difficult to find that the offending was out of character, he was otherwise of good character and a productive member of the community. He was genuinely remorseful and has good prospects of rehabilitation. Like the primary judge I would make a finding of special circumstances on the basis that, at the age of 38, this was the applicant’s first time in custody. I appreciate that Hadi and Greentree were in their late twenties. However, I do not regard the difference in age between them and the applicant as of much moment. All were beyond the age of maturity and fully responsible for their offending conduct. It cannot be said that the moral culpability of any one of them is reduced by reference to his age.

75. I will also take into account the parity principle and the sentences actually passed on Hadi and Greentree by the primary judge. There are, of course, differences to be borne in mind. The applicant had not insignificant Form 1 offences; Hadi had none; and Greentree had Form 1 offences and a significant firearm offence. Given the high degree of concurrency structured into the sentences passed on Greentree by the primary judge, the firearms offence did not make a significant difference to the total effective sentence.

76. At the hearing the Court received an affidavit of the applicant affirmed on 21 November 2018 and an affidavit of his solicitor affirmed on the same date. These affidavits were read on the usual basis that the Court would have regard to them as evidence of his progress towards rehabilitation were it necessary to re-sentence him.

77. I must say the applicant has made very impressive progress towards his rehabilitation. It is evident that the primary judge’s favourable prognosis in this regard was well justified. He has made extremely good use of his time undertaking available training courses, including art courses. It seems that he is a talented artist who has received high praise from his art teachers. He has also obtained responsible employment in the corrections system and his supervisors have spoken highly of his work ethic and his attitude. He has moved through the various classifications appropriately and when his affidavit was affirmed he was hoping to transition to C3 classification soon. He continues to enjoy good support from his family and it is evident that he is seeking to put his offending and inappropriate friendships behind him.

78. Bearing in mind the statutory guideposts provided by the maximum penalty and the standard non-parole period and having regard to all of the facts, matters and circumstances relevant to sentencing I have referred to above, I am satisfied that a lesser sentence than that passed at first instance is warranted in law. I would make the same finding of special circumstances made by the primary judge, but I would round the figure down to 66 percent. Taking into account the offences on the Form 1, I would impose a sentence of 6 years imprisonment, having a non-parole period of 4 years and an additional term of 2 years commencing on 2 September 2015.

79. The orders I propose are:

1. Grant leave to appeal and allow the appeal;

2. Quash the sentence passed in the District Court on 11 August 2017 and instead sentence the applicant to a term of imprisonment of 6 years, having a non-parole period of 4 years, commencing on 2 September 2015 and expiring on 1 September 2019 with an additional term of 2 years commencing 2 September 2019 and expiring on 1 September 2021. The applicant will be first eligible for release on parole after the expiration of the non-parole period on 1 September 2019.

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Decision last updated: 14 June 2019