Lee v R - [2016] NSWCCA 146

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Lee, Matthew v R [2016] NSWCCA 146
Hearing dates: 8 April 2016
Decision date: 28 July 2016
Before: Basten JA and McCallum J at [1];
Davies J at [57]
Decision:
(1)   Extend time for commencement of the application for leave to appeal to 20 January 2016.

(2)   Grant leave to appeal.

(3)   Allow the appeal and quash the sentence imposed in the District Court on 21 March 2014.

(4)   Resentence the offender as follows:
(a)   Impose an aggregate sentence of 8 years imprisonment with a non-parole period of 5 years 4 months commencing on 20 December 2012 and an additional term of 2 years 8 months.
(b)   The applicant is first eligible to be released to parole on 20 April 2018.
Catchwords: CRIME – appeal – sentencing – offender entitled to discount of 25% for early guilty plea – failure of sentencing judge to refer to discount in reasons – whether discount applied – error requiring resentencing
Legislation Cited: Crimes Act 1900 (NSW), s 193B
Crimes (Sentencing Procedure) Act 1999 (NSW), s 22
Criminal Procedure Act 1986 (NSW), s 166
Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 25A, 36Z
Firearms Act 1996 (NSW), ss 7, 62
Supreme Court Act 1970 (NSW), s 69
Cases Cited: Convery v R [2014] NSWCCA 93
Douglass v The Queen [2012] HCA 34; 86 ALJR 1086
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Opacic v R [2013] NSWCCA 294
Public Service Board of New South Wales v Osmond (1986) 159 CLR 656
R v Keyte (2000) 78 SASR 68
R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
Regina v Lawrence [2005] NSWCCA 91
Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33
Woodward v The Queen [2014] NSWCCA 205
Category: Principal judgment
Parties: Matthew Robert Lee (Appellant)
Regina (Respondent)
Representation:
Counsel:
D Carroll (Appellant)
N Adams (Crown)
Solicitors:
Legal Aid NSW (Appellant)
Office of the Director of Public Prosecutions (Crown)

File Number(s): 2012/395796
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

21 March 2014

Before:

Berman SC DCJ

File Number(s):

2012/395796

Judgment

BASTEN JA and McCALLUM J: Matthew Robert Lee (“the applicant”) seeks leave to appeal against the sentences imposed upon him by Berman SC DCJ on 21 March 2014.
The applicant was arrested on 20 December 2012 and charged with a series of drug and firearms offences (the detail of which is set out below). He pleaded guilty in the Local Court to all but one of the charges, which was committed to the District Court for trial. On 20 January 2014, he was arraigned on an indictment containing five counts to which he pleaded guilty. At the proceedings on sentence, the Crown accepted that the pleas should be taken to have been entered at the first available opportunity and that the applicant was entitled to a discount of 25% in accordance with well-established principle.
The applicant’s entitlement to that discount was expressly referred to at the proceedings on sentence in an exchange between the Crown and the learned sentencing judge. However, the judge made no reference to it in his ex tempore judgment given later that day. The sole ground of appeal is that his Honour erred in failing to take the early pleas of guilty into account.

Extension of time

The notice of appeal was not filed until 20 January 2016 and is accordingly out of time. The delay is adequately explained in an affidavit affirmed by the applicant on 15 December 2015. In short, the applicant took steps shortly after he was sentenced to commence an appeal (by completing the relevant form and asking that it be faxed to the Court). He was representing himself at that time, having insufficient funds to retain his previous solicitor for an appeal. For a considerable period of time after that, the applicant was labouring under the misapprehension that the form had been lodged with the Court. Apparently due to administrative error, that had not occurred. That, in turn, held up the processing of his application for Legal Aid. Time should be extended to the date on which the notice was filed, namely 20 January 2016.

Circumstances of offending

At the time of the offences, the applicant was living in Tamworth with his partner and their two young children (aged one and two years). Surveillance carried out by police over a period of about two months prior to the applicant’s arrest disclosed that he was supplying both methylamphetamine and cannabis from his home to “a substantial clientele” by day and night, often when the children were home.
Counts 1 and 3 on the indictment were an offence of ongoing supply of a prohibited drug (methylamphetamine) contrary to s 25A of the Drug Misuse and Trafficking Act 1985 (NSW) and an offence of supplying a prohibited drug (cannabis) contrary to s 25(1) of the Act. The offence of ongoing supply carried a maximum penalty of imprisonment for 20 years with no standard non-parole period. The offence of supplying cannabis carried a maximum penalty of imprisonment for 10 years with no standard non-parole period. Those counts were based on the surveillance evidence. In the case of the count of supplying cannabis, the Crown also relied on the fact that, during the period of surveillance, the applicant was observed travelling to meet someone at a service station from whom he purchased 10 pounds of cannabis for re-supply.
The surveillance revealed that the applicant was doing a good trade in both drugs, on some days supplying as many as 22 customers. The agreed facts provided a lengthy narrative of the relevant conduct in chronological order. The sentencing judge asked the Crown to summarise the frequency and quantity of the supplies to assist in an assessment of the offender’s criminality. The Crown provided a handwritten document listing the following detail: there were 140 separate attendances (presumably with some repeats) over the period of offending (the Crown could not distinguish between purchases of cannabis and purchases of methylamphetamine); the offending related to a total of 227 grams of methylamphetamine and ten pounds of cannabis; as to particular supplies of methylamphetamine, there were five sales to one particular customer, one sale of 3.5 grams to one customer and one sale of 7 grams to one customer; as to the range of quantity sold, the supplies of methylamphetamine were between 1 gram and 7 grams while the supplies of cannabis were between 1 gram and half a pound.
Count 2 on the indictment was an offence of supplying methylamphetamine contrary to s 25(1) of the Drug Misuse and Trafficking Act. That charge related to an amount of 58.46 grams of methylamphetamine found in various containers when police executed a search warrant on the day of the applicant’s arrest. The maximum penalty for that offence was 15 years imprisonment with no standard non-parole period.
Count 4 on the indictment was an offence for unauthorised possession of a prohibited firearm contrary to s 7(1) of the Firearms Act 1996 (NSW). The maximum penalty for that offence was imprisonment for a period of 14 years. The offence carried a standard non-parole period of imprisonment for 3 years. That charge related to a shortened double barrel shotgun found by police in a cupboard in the kitchen of the house when they executed the search warrant. The surveillance material revealed that the applicant had deliberately shortened that firearm and that he was intending to fit it with a silencer.
Count 5 was an offence of knowingly dealing with the proceeds of crime contrary to s 193B(1) of the Crimes Act 1900 (NSW). That offence related to an amount of $7,250 in cash found in the applicant’s pocket and $150 found in his car when he was arrested.
The applicant asked the sentencing judge to take two further offences into account on a Form 1 when sentencing him for count 1 on the indictment. One was an offence of not keeping a firearm safely, which related to the fact that the shotgun was found unsecured in a kitchen cupboard in the family home. The second was an offence of receiving, relating to the applicant’s possession of a large quantity of clothing stolen from Target.
In addition, there were several offences listed on a s 166 certificate. One was an offence of conducting drug premises contrary to s 36Z(2) of the Drug Misuse and Trafficking Act, which carries a maximum penalty of imprisonment for 14 months. The other was an offence of shortening a firearm contrary to s 62 of the Firearms Act, which then carried a maximum penalty of imprisonment for 10 years (since increased).
The applicant did not give evidence at the proceedings on sentence. A report was tendered on his behalf from Dr Richard Furst, a consultant forensic psychiatrist. The report recorded that the applicant had no signs of depression or psychosis but was suffering from substance abuse disorder relating to his use of methylamphetamine and cannabis. The report recorded a history of sexual abuse of the applicant by his uncle which Dr Furst considered may well have triggered the applicant’s general low mood and addiction to drugs throughout his adolescence and adult years. However, the sentencing judge observed during the proceedings on sentence that it was difficult to know whether that history was truthful in circumstances where the applicant had not given evidence. He made no reference to it in the sentencing judgment.
Dr Furst’s report also recorded that the applicant had injured his back in an accident while working at an abattoir about 10 years earlier and that he had sustained injuries which prevented him from working for a period of about three months. He was subsequently diagnosed with chronic lower back pain. He had a car accident in 2012 and later complained of left-sided sensory disturbance, the cause of which was being investigated but had not been ascertained by the date of his arrest on 20 December 2012. A medical report from a consultant neurologist was tendered at the proceedings on sentence confirming those matters.
Dr Furst’s report also recorded that the applicant’s father died in 2007 when the applicant was aged 22 years and that the applicant had struggled to come to terms with that death, prompting him to begin using more drugs as “a maladaptive means of coping under stress and in relation to grief issues”. It was Dr Furst’s opinion that, although grief in relation to his father’s death was probably a factor in the escalation of his drug use, the applicant’s pattern of addiction had subsequently taken on “a life of its own”.

The sentences imposed

The sentencing judge found that the applicant was “a significant drug dealer motivated to a large extent by money, who not only got his wife involved in his drug dealing activities but conducted them in his home where his two very young children lived”. The judge said that finding was enough to indicate the seriousness of the applicant’s conduct and to explain why he must go to jail “for a very long time”. [1]
1. Judgment on sentence, p 1.
The judge found that there was little in the applicant’s background to explain why he would decide to conduct such a large scale drug supply operation and further found that “a large part of what motivated this offender were the large financial rewards that large scale drug dealing can bring”. [2] His Honour accepted that the offences were closely interrelated and that a significant overlap in the sentences would be appropriate. He made a finding of special circumstances on the basis of the need for rehabilitation but said the variation would be modest.
2. Judgment on sentence, p 4.
The judge sentenced the applicant as follows:

for the offence of conducting drug premises on the s 166 certificate, a fixed term of imprisonment for 6 months commencing on 20 December 2012 (the date of arrest);

for the offence of shortening the firearm (also on the s 166 certificate), a fixed term of imprisonment for 1 year also commencing on 20 December 2012;

for the offence of supplying methylamphetamine (count 2), a fixed term of imprisonment for 2 years commencing on 20 June 2013;

for the offence of supplying cannabis (count 3), a fixed term of imprisonment for 2 years commencing on 20 June 2014;

for the offence of knowingly dealing with the proceeds of crime (count 5), a fixed term of imprisonment for 1 year also commencing on 20 June 2014;

for the offence of possessing an unauthorised, prohibited firearm (count 4), a term of imprisonment with a non-parole period of 2 years and a balance of term of 2 years commencing on 20 June 2015;

for the offence of ongoing supply of methylamphetamine (count 1), taking into account the two Form 1 matters, a term of imprisonment for 5½ years with a non-parole period of 2½ years commencing on 20 June 2016.

The overall sentence was accordingly a term of imprisonment for 9 years with a non-parole period of 6 years. The applicant is first eligible to be released to parole on 20 December 2018.

Ground of appeal

Despite the commendable simplicity of the ground as formulated, it relied upon an inference that the judge did not take the early pleas into account, an inference drawn from the absence of any reference in the judgment on sentence to the pleas, or to the availability of a discount. The ground might have been better formulated in the alternative, namely that the trial judge erred, (a) in failing to take into account the early pleas of guilty, or (b) in failing to explain in the reasons for judgment how such pleas had been taken into account. Despite the fact that the ground was not so expressed, we propose to deal with it on the basis that it was so expressed. Both parties acknowledged that there was no reference to the pleas or the discount in the reasons of the sentencing judge. The Director nevertheless submitted that it should be inferred that they had been taken into account; the applicant submitted that the absence of any reference, taken with other factors, demonstrated that they had not.
It is not possible to reach a firm preference for one view or the other; however, it is that unresolvable uncertainty which demonstrates error in failing to deal with the matter in the judgment. The Director should not succeed on a basis which denies an error of law. For that reason, the appeal should be upheld. That has consequences for resentencing, which will be addressed below.

Rationale for reasons

Some decades ago, reasons given by sentencing judges were cursory, even exiguous, according to modern standards. (The same could be said for judgment on sentencing appeals in this Court.) Over time, appellate courts have tended to impose higher standards in the interests of transparent justification for the exercise of the coercive powers of the State. A significant impetus was given to that trend by the enactment of the Crimes (Sentencing Procedure) Act1999 (NSW) which specified in some detail (without codifying) the nature of the sentencing exercise. The process of sentencing became more sophisticated; reasons for sentences became longer and more discursive and the practice of delivering ex tempore judgments in most sentencing appeals was abandoned, so that now judgment is reserved in most appellate cases in this State.
Whether welcomed or deplored, these changes required different language for the expression of principle: what in the past were somewhat dismissively characterised as “remarks on sentence” must now be understood as reasons for judgment. That is because the giving of reasons is, generally, an essential part of the judicial function and never less so than when exercising the coercive powers of the State over the individual.
While the obligation to give reasons “is a normal but not a universal incident” of the judicial function,[3] more importantly it is variable in its content. Further, if reasons are inadequate according to the legal standard, there will have been a failure to exercise properly the judicial function. As was said in a civil case:[4]

“When an appellate court is invited to find that a trial judge provided inadequate reasons, it is important to understand the nature of the function being invoked. It is not the function of an appellate court to set standards as to the optimal, or even desirable, level of detail required to be revealed in reasons for judgment. Rather it is to determine whether the reasons provided have reached a minimum acceptable level to constitute a proper exercise of judicial power. Transparency in decision-making is an important value, but it is not cost free, and may involve separate parameters of quantity and quality.”
3. Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 at 667 (Gibbs CJ).
4. Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [48] (Basten JA, Beazley JA agreeing).

In the criminal context, on an appeal from a trial conducted by a judge alone, Douglass v The Queen, [5] the High Court referred with approval to the explanation given by Doyle CJ in R v Keyte [6] as to why a judge is required to give reasons for a verdict following trial:

“These included that in the absence of reasons, the appellate court is unable to determine whether the judge has correctly applied the relevant rules of law. In this case, the failure to record any finding respecting the appellant’s evidence left as one possibility that the judge simply preferred [the complainant’s] evidence and proceeded to convict upon it applying a standard less than proof beyond reasonable doubt. The absence of reasons sufficient to exclude that possibility constituted legal error.”
5. [2012] HCA 34; 86 ALJR 1086 at [14].
6. (2000) 78 SASR 68 at 76.

Two propositions may be derived from this reasoning. First, the failure to give proper reasons is an error of law. Secondly, the reasons must be adequate to demonstrate the absence of a real “possibility” that the judge failed to apply correct legal principle. In other words, where the possibility of error was open, the appellate court should not have assumed that, because the legal principle was well known and indeed fundamental, it had been applied.
In relation to the discount for a plea of guilty, Spigelman CJ stated in R v Thomson; R v Houlton:[7]

“A plea of guilty is a matter which sentencing judges are obliged to take into account pursuant to express statutory provision and, indeed, at common law. As part of the duty of sentencing judges to give reasons for their decision, express reference to the fact that consideration has been given to this factor ought to be included in reasons on sentence.”
7. (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [46].

The statutory provision to which the Chief Justice was referring was s 22 of the Crimes (Sentencing Procedure) Act, which now reads as follows:

22   Guilty plea to be taken into account
(1)   In passing sentence for an offence on an offender who has pleaded guilty to the offence, a court must take into account:
(a)   the fact that the offender has pleaded guilty, and
(b)   when the offender pleaded guilty or indicated an intention to plead guilty, and
(c)   the circumstances in which the offender indicated an intention to plead guilty,
and may accordingly impose a lesser penalty than it would otherwise have imposed.
(1A)   A lesser penalty imposed under this section must not be unreasonably disproportionate to the nature and circumstances of the offence.
(2)   When passing sentence on such an offender, a court that does not impose a lesser penalty under this section must indicate to the offender, and make a record of, its reasons for not doing so.
(3)   Subsection (2) does not limit any other requirement that a court has, apart from that subsection, to record the reasons for its decisions.
(4)   The failure of a court to comply with this section does not invalidate any sentence imposed by the court.

Although s 22(4) states that the failure of the court to “comply with this section” does not invalidate the sentence, that provision does not affect the obligation under the general law to explain how the fact of the plea is taken into account in the sentencing.
Thomson was a “guideline judgment”; thus, the Chief Justice identified “[t]he discount range propounded for a guilty plea based on utilitarian considerations”. [8] The range was set out in the conclusions expressed at [160]. However, those conclusions started with the following propositions;

“(i) A sentencing judge should explicitly state that a plea of guilty has been taken into account. Failure to do so will generally be taken to indicate that the plea was not given weight.
(ii) Sentencing judges are encouraged to quantify the effect of the plea on the sentence insofar as they believe it appropriate to do so.”
8. Thomson at [162].

Although expressed as part of the “guideline”, the propositions set out above go further. That a sentencing judge should explicitly state that the plea of guilty has been taken into account and, indeed, how it has been taken into account, may be accepted as an aspect of the general law principle discussed above. Whether failure in that regard will indicate that the plea “was not given weight” falls into a different category: it is a statement of an inference which may be drawn, but will surely depend upon the circumstances of the particular case and the content of the reasons. The language of obligation (“should explicitly state”) was used at a time when a change in judicial practice was thought to be necessary; today, statements in these terms are an almost universal feature of sentencing judgments where there has been a plea. Their omission is now seen to be noteworthy; the issue is whether it is always synonymous with legal error.
The importance of transparency was reiterated by the Court in Regina v Lawrence [9] where Spigelman CJ (with the concurrence of Grove and Bell JJ) stated:[10]

“This Court is, of course, aware of the pressures under which District Court Judges have to deliver their sentences and that it is easy not to state a fact that everybody knows is required to be taken into account. Nevertheless, the reasons given in Thomson for issuing a guideline included the need to ensure that participants in the New South Wales criminal justice system had no reason to be sceptical about whether or not the benefits of a guilty plea were in fact made available to accused. It would have been preferable, for that reason, if his Honour had mentioned that he had done so. However, in view of his Honour's long experience and the structure and length of the sentence he imposed, I am not prepared to act on the basis that his Honour failed to take into account the plea, or that he failed to give it appropriate weight. I think the likely situation is that contended for by the Crown: that his Honour commenced with a sentence of 36 months and applied a full discount. Accordingly, I would not uphold this ground of appeal.”
9. [2005] NSWCCA 91.
10. Lawrence at [15].

A similar view, based on the inference available from the omission of reference to a discount for the plea, may be seen in the reasoning of R A Hulme J in Opacic v R. [11] The following passage was relied upon by the Director:[12]

“In the assessment of the adequacy of his Honour's reasons it must be borne in mind that his Honour proceeded immediately to deliver judgment upon the conclusion of submissions. In those circumstances it would be both unrealistic and impractical to expect a judge to slavishly repeat every conclusion he or she had reached and announced only minutes before.”
11. [2013] NSWCCA 294 (Macfarlan JA and Latham J agreeing).
12. Opacic at [46].

There are three points to make about the Director’s reliance on this passage. First, the error complained of was a failure to characterise the seriousness of the offences. That involved an evaluative judgment of quite a different kind to the provision of a discount for a plea. Where the critical facts have been addressed, a complaint of opacity would rarely succeed. Secondly, the importance of an expression of reasons is to provide an explanation of how issues in dispute were resolved and why they were resolved in a particular way. It may be apparent from the submissions made by the parties that a particular matter was not in dispute, as appeared to be the case in Opacic. Thirdly, and by way of qualification to the last point, it would be wrong to read the observations set out above as a justification for referring more generally to issues raised in the course of submissions. An opinion expressed by the judge in the course of argument may or may not be adopted as part of the final analysis; indeed, it is common that a judge will express a proposition in apparently definitive terms, in order to test whether there is resistance or qualification proffered. Great care should be taken in assuming that an issue which is truly in dispute has been resolved by a statement made by the judge in the course of submissions. To the extent that the reasons for judgment constitute part of the “record” of the court (as provided by s 69(4) of the Supreme Court Act 1970 (NSW)) the distinction between the reasons and matters dealt with in the course of argument is legally significant. While it is undesirable to discourage ex tempore reasons, especially in sentencing, the minimal standard of adequacy for reasons should not be diminished on that account. (Instances of infelicitous expression clearly fall within a different category.)
Finally, in Woodward v The Queen,[13] which was, coincidentally, an appeal from the same sentencing judge in respect of a failure to refer to a plea of guilty, Hamill J stated:[14]

“In R v Thompson … a bench of five members of this Court emphatically determined that where an offender enters a plea of guilty the record should reflect clearly and transparently that the plea of guilty has been taken into account and the extent to which it has ameliorated the sentence imposed. Subsequent cases have made it clear that reference to the plea of guilty and a clear statement of the fact that it has resulted in a reduction in the sentence is usually an important part of a judgment, however brief, delivered in imposing a sentence upon an offender.”
13. [2014] NSWCCA 205 (Hoeben CJ at CL and Fullerton J agreeing).
14. Woodward at [6].

Accepting that “the record” which should reflect that fact is a reference to the reasons for judgment, that proposition should be accepted, while noting that it would be no less important in a case where the plea did not result in any amelioration of the sentence.
Because the plea is a mandatory consideration (s 22 says the court “must take [it] into account”), it must form part of the reasoning process and should therefore be addressed in the judgment. If the appellate court can be affirmatively satisfied that the plea was taken into account and an appropriate discount allowed, the failure to so state in the sentencing judgment may be treated as an immaterial error. Where there is a real possibility that it was not properly considered, failure to refer to the issue in the judgment should be treated as a material error.

Failure to apply discount

In circumstances where the prosecutor accepted that the pleas had been entered at the earliest possible opportunity and expressly stated that a discount of 25% was appropriate, there would have been a manifest case of procedural unfairness had the sentencing judge failed to adopt such a discount, without foreshadowing that course to the offender. Given the powerful effect of the surveillance evidence, there may have been reason to reduce the level of discount, but no such issue was raised at the sentencing hearing.
Although there was no reference to the pleas, or the standard discount, in the course of the judge’s reasons, it would be surprising if the judge had not taken the pleas into account and applied the standard discount. That conclusion was at least open, as reflected in the absence of any ground asserting that the sentences in fact imposed were manifestly excessive. A different conclusion would be inevitable if, as in Convery v R, [15] had the relevant discount been applied, the starting point would have exceeded the maximum penalty for the offence.
15. [2014] NSWCCA 93 at [27] (McCallum J, Simpson and Adams JJ agreeing).
Both Convery (decided on 27 May 2015) and Woodward (decided on 3 October 2014) involved the same sentencing judge and the same ground of appeal (amongst others), but both were decided after the sentencing judgment in the present matter (delivered on 21 March 2014). In Woodward, the consequence of the failure to identify the discount was not addressed, the Court accepting that the sentence was manifestly excessive.
Because, in this case, there is uncertainty as to whether the sentencing judge in fact took the pleas into account and applied the discount accepted by the prosecutor, the failure to make any reference to the pleas or the appropriate discount in the reasons for sentencing constituted an error which warrants intervention by the Court.

Resentencing

In these circumstances, it is necessary for the Court to re-exercise the sentencing discretion according to the principles identified in Kentwell v The Queen. [16] It is common ground that the Court is entitled to and could properly impose an aggregate sentence. Indicative sentences must be recorded, though not imposed, for each offence.
16. (2014) 252 CLR 601; [2014] HCA 37 at [35].
The offences can be grouped in two categories. The primary offence involved the ongoing supply of methylamphetamine (count 1), which carried a maximum penalty of 20 years imprisonment. The separate offences of supplying methylamphetamine, supplying cannabis, conducting drug premises and possession of the proceeds of crime may be seen as inter-related with count 1.
Secondly, the offence of unauthorised possession of a prohibited firearm (count 4) may properly be grouped with the separate offence of shortening a firearm.
It is clear that the ongoing supply offence was a mid-range offence of its kind. As submitted by the prosecutor before the sentencing judge:

“The magnitude of the offender’s methylamphetamine business was substantial but would not be regarded as major given the quantities being sourced and sold, the street level nature of his sales to end users of the drugs, the absence of any syndication and the absence of any sophisticated systems of product exchange and cash management.”

There was some discussion at the hearing on sentence as to whether the operation was “sophisticated”. In that regard, the prosecution summarised the offending in the following terms:

“The offender sold the drug in varying amounts, from small gram bags up to ‘eight balls’ [3.5 grams] and larger amounts. At the same time he was selling cannabis on a substantial scale.
The recorded conversations indicate the offender was routinely mixing the methylamphetamine with cutting agents to maximise his profit. One portion of seized drugs certified as to purity indicated a purity of 3.5%. He was well experienced in mixing and cutting the drugs and had the scales, the mixing agents and utensils to do it.
It could not be said that the offender’s drug business systems and organisation were sophisticated. He sold regularly and repetitively from his own home. There was a constant stream of customers coming and going from his family home every day. He generally arranged the deals personally using his own mobile phone. He had simple security systems in place including a CCTV system and a police radio scanner but, generally, his operational security could be regarded as basic.
The offender was essentially a sole trader, the small business principal, a user/dealer. He bought and sold methylamphetamine to feed his own drug habit but was always in the business of making money.”

The statement of agreed facts included extracts from the surveillance of the premises and records of conversations within the offender’s home. The facts noted that on 8 December 2012 he was visited by 22 customers wanting cannabis and methylamphetamine. They referred to his purchase on 9 December 2012 of 10 bags of cannabis for which he paid $29,000. The amount of methylamphetamine for count 1 was 249 grams, supplied in November/December 2012. The amount of cannabis forming the basis of the supply count exceeded 4.5kg. The amount of methylamphetamine involved in the separate supply count (count 2) involved 58.46 grams found in a search of the offender’s premises.
In relation to the ongoing supply charge, there were two additional matters to be taken into account, namely an offence of not keeping a firearm safely (the shortened shotgun was found in a kitchen cupboard) and “receiving” (the subject matter being a large quantity of clothing stolen from a Target store). It would have been more appropriate to include the former charge on a Form 1 with respect to the major firearms offence. However, both matters are to be taken into account in sentencing for the ongoing supply. Despite the lack of a prior record for any similar offence, the additional charges remove any significant element of leniency with respect to this offence. Although not a high level supplier, the operation involved large sums of money, with the primary motivation being financial gain. A starting point of approximately 6 years 6 months would have been appropriate which, when reduced by 25% for the guilty plea, would produce an indicative sentence of 4 years 6 months.
The supply of an indictable quantity of cannabis carried a maximum sentence of 10 years imprisonment. The offence covers quantities of cannabis leaf between 1kg and 25kg. According to the agreed facts, the offender was making a profit of some $1,800 on every “pound” of cannabis sold and claimed to be “taking” $8,000 a day, every day for several months. He was undoubtedly engaged in a substantial drug supply operation with respect to cannabis, for financial gain. An appropriate starting point for the sentence would have been 4 years imprisonment, reduced for the plea to 3 years. Because it was part of the ongoing supply of drugs (though involving a different drug from that charge), the prosecution’s submission that the sentences for each should be entirely cumulative should not be accepted, but, if separate sentences were to be imposed, there would have been a substantial proportion of accumulation.
With respect to the offence of conducting drug premises, dealt with on a certificate under s 166 of the Criminal Procedure Act 1986 (NSW), a sentence of 1 year imprisonment, reduced for the plea to 9 months, is indicated, to be served wholly concurrently with the sentence for the ongoing supply. For the separate offence of supplying the methylamphetamine found in the offender’s home the same sentence of 9 months was indicated.
Turning to the firearm offences, the most serious, namely unauthorised possession of a prohibited firearm, carried a maximum sentence of 14 years imprisonment. There is no doubt that the offender feared a robbery and obtained the firearm and ammunition in order to be able to defend himself. While the motivation was understandable given the scope of his commercial operation, that operation being illegal provided no justification for obtaining the firearm and keeping it readily available in his home. The most common sentences for such offences where there have been pleas of guilty range from 30 months to 48 months. Although a first offence of its kind, given the surrounding circumstances it cannot be treated as below the mid-range of objective seriousness for such offences. A sentence of 4 years imprisonment, reduced for the plea to 3 years would have been imposed. It constituted a serious element of criminal behaviour beyond the drug supply operation. Accordingly, the sentence would have been cumulative upon any non-parole period for the drug offences.
The offence of shortening the firearm was contained on a s 166 certificate. It constituted a contravention of s 62 of the Firearms Act, and carried a maximum penalty of 10 years imprisonment. Again, the offending was not low level. The offender was recorded discussing the shortening of his firearm saying, “I’m getting all of this taken off the barrel, getting a thread put on it so I can put my silencer on it.” (Similar conversations took place on 8 and 11 December, the cutting with an angle grinder taking place on 10 December 2012.) The purpose of shortening the weapon was malign. For that offence, a sentence of 2 years imprisonment, reduced to 18 months on account of the plea is indicated, partly accumulated on the offence of unauthorised possession of a prohibited firearm.
Finally, there was the offence of possession of $7,400 cash, knowing it to be the proceeds of crime and intending to conceal that fact. The offence, contrary to s 193B(1) of the Crimes Act, carried a maximum penalty of 20 years imprisonment. A sentence in the order of 18 months imprisonment, reduced to 13 months on account of the plea would have been imposed, to be served wholly concurrently with the sentence for the ongoing supply.
In the case of a series of related offences, each carrying a significant custodial penalty, care must be taken to avoid the imposition of a sentence which is unduly severe, having regard to the totality of the offending conduct. On the other hand, the need for a significant degree of accumulation in respect of certain of the offences requires recognition in the aggregate sentence to be imposed.
Taking these various considerations into account, a sentence of 8 years imprisonment is warranted. Adopting the same proportion as the trial judge with respect to the non-parole period, the 8 years translates into a non-parole period of 5 years 4 months, with an additional term of 2 years 8 months. The sentence should date from 20 December 2012. The applicant is first eligible to be released to parole on 20 April 2018.
The Court orders:

Extend time for commencement of the application for leave to appeal to 20 January 2016.

Grant leave to appeal.

Allow the appeal and quash the sentence imposed in the District Court on 21 March 2014.

Resentence the offender as follows:

Impose an aggregate sentence of 8 years imprisonment with a non-parole period of 5 years 4 months commencing on 20 December 2012 and an additional term of 2 years 8 months.

The applicant is first eligible to be released to parole on 20 April 2018.

DAVIES J: Except for what appears at [23], I agree with the judgment of Basten JA and McCallum J.

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Endnotes

Decision last updated: 28 July 2016

Medium Neutral Citation:	Lee, Matthew v R [2016] NSWCCA 146
Hearing dates:	8 April 2016
Decision date:	28 July 2016
Before:	Basten JA and McCallum J at [1]; Davies J at [57]
Decision:	(1) Extend time for commencement of the application for leave to appeal to 20 January 2016. (2) Grant leave to appeal. (3) Allow the appeal and quash the sentence imposed in the District Court on 21 March 2014. (4) Resentence the offender as follows: (a) Impose an aggregate sentence of 8 years imprisonment with a non-parole period of 5 years 4 months commencing on 20 December 2012 and an additional term of 2 years 8 months. (b) The applicant is first eligible to be released to parole on 20 April 2018.
Catchwords:	CRIME – appeal – sentencing – offender entitled to discount of 25% for early guilty plea – failure of sentencing judge to refer to discount in reasons – whether discount applied – error requiring resentencing
Legislation Cited:	Crimes Act 1900 (NSW), s 193B Crimes (Sentencing Procedure) Act 1999 (NSW), s 22 Criminal Procedure Act 1986 (NSW), s 166 Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 25A, 36Z Firearms Act 1996 (NSW), ss 7, 62 Supreme Court Act 1970 (NSW), s 69
Cases Cited:	Convery v R [2014] NSWCCA 93 Douglass v The Queen [2012] HCA 34; 86 ALJR 1086 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Opacic v R [2013] NSWCCA 294 Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 R v Keyte (2000) 78 SASR 68 R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 Regina v Lawrence [2005] NSWCCA 91 Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 Woodward v The Queen [2014] NSWCCA 205
Category:	Principal judgment
Parties:	Matthew Robert Lee (Appellant) Regina (Respondent)
Representation:	Counsel: D Carroll (Appellant) N Adams (Crown) Solicitors: Legal Aid NSW (Appellant) Office of the Director of Public Prosecutions (Crown)
File Number(s):	2012/395796
Decision under appeal	Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 21 March 2014 Before: Berman SC DCJ File Number(s): 2012/395796