McLean v R

[2020] NSWCCA 344

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

McLean v R [2020] NSWCCA 344

Hearing dates:

2 November 2020

Date of orders:

17 December 2020

Decision date:

17 December 2020

Before:

Leeming JA at [1];
Bellew J at [2];
Wright J at [3]

Decision:

(1)   The applicant is granted leave to appeal.

(2)   The appeal is dismissed.

Catchwords:

CRIMINAL LAW – Sentence appeal – Offence of supplying not less than a large commercial quantity of methylamphetamine – Whether sentencing judge erred in characterising conduct as slightly above the mid-range of objective seriousness – Eschewing labels – Where applicant played trusted and integral role in large scale drug supply – No error in assessment

CRIMINAL LAW – Sentence appeal – Manifest excess – Whether sentence was manifestly excessive in the circumstances – Statistic relating to sentences imposed for supplying large commercial quantity of drugs – Sentence not manifestly excessive in the circumstances

Legislation Cited:

Crimes (Sentencing) Procedure Act 1999 (NSW)

Criminal Appeal Act 1912 (NSW)

Drug Misuse and Trafficking Act 1985 (NSW)

Cases Cited:

A v R [2020] NSWCCA 145

Assam v R [2019] NSWCCA 12

Cargnello v Director of Public Prosecutions (Cth) [2012] NSWCCA 162; (2012) 224 A Crim R 204

DL v The Queen (2018) 265 CLR 215; [2018] HCA 32

El Kheir v R [2019] NSWCCA 288

Healey v R [2018] NSWCCA 214

Hordern v R [2019] NSWCCA 210

House v The King (1936) 55 CLR 499; [1936] HCA 40

Jackson v R [2019] NSWCCA 101

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

Melikian v R [2008] NSWCCA 156

Mihelic v R [2019] NSWCCA 2

Mulato v R [2006] NSWCCA 282

Muldrock v The Queen (2011) 244 CLR 120; (2011) 212 A Crim R 254; [2011] HCA 39

Nye v R [2018] NSWCCA 244

Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221

Paxton v R [2011] NSWCCA 242

R v Cage [2006] NSWCCA 304

R v Dang [2005] NSWCCA 430

R v MacDonnell [2002] NSWCCA 34; (2002) 128 A Crim R 44

R v Van Ryn [2016] NSWCCA 1

R v Yiu; R v Yau [2018] NSWCCA 155

Shayne Hammond v Regina [2015] NSWCCA 89

Shi v R [2020] NSWCCA 42

Yeung v R [2018] NSWCCA 52

Category:

Principal judgment

Parties:

David McLean (Applicant)
Regina (Crown)

Representation:

Counsel:
R Pontello SC (Applicant)
M A Kumar (Crown)

Solicitors:
McGirr Lawyers (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s):

2018/168426

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

13 December 2019

Before:

Townsden DCJ

File Number(s):

2018/168426

Judgment

1. LEEMING JA: I agree with Wright J.

2. BELLEW J: I agree with Wright J.

3. WRIGHT J: The applicant, Mr David McLean, seeks leave to appeal against the sentence imposed on him by Townsden DCJ on 13 December 2019 in the District Court at Sydney.

4. The applicant pleaded guilty, in the District Court, to the single count that on 29 May 2018, he supplied not less than a large commercial quantity of a prohibited drug, namely 18.85 kg of methylamphetamine, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The applicant’s sentence proceedings were heard on 8 November 2019, and on 13 December 2019 the learned sentencing judge imposed a sentence of imprisonment of 12 years 7 months to date from 29 May 2018 and expire on 28 December 2030 with a non-parole period of 8 years 7 months to expire on 28 December 2026.

5. On 18 December 2019 the applicant filed a notice of intention to appeal, which was subsequently extended. On 8 September 2020 the applicant filed a notice of application for leave to appeal and sought to rely on the following two grounds of appeal:

“1. The sentencing Judge erred in characterising the objective seriousness of the offence as above mid-range; and

2. The sentence is manifestly excessive.”

6. In order to consider these proposed grounds, the sentencing judge’s findings and conclusions must be reviewed in some detail.

Remarks on sentence

7. Townsden DCJ commenced his remarks on sentence by noting that the applicant had pleaded guilty to supplying a prohibited drug in a quantity exceeding the large commercial quantity, being 18.85 kg of methylamphetamine, subsequent to being committed for trial. His Honour also recorded that the offence carried a maximum penalty of life imprisonment with a standard non-parole period of 15 years’ imprisonment.

8. The learned sentencing judge proceeded on the basis of agreed facts. The facts as found by his Honour are set out in the paragraphs which follow.

Circumstances of the offending

9. As part of police investigations in April 2018, access was gained to a mobile telephone account used in supplying or purchasing prohibited drugs. Messages were exchanged using this account and the encrypted messaging service Wickr. On 28 April 2018, a police undercover operative (UCO), using the Wickr handle “familystore”, received a message from a person using the Wickr handle “Sultab”. After being told that Sultab was from Mexico and “the owner of the load”, arrangements were made between familystore and Sultab to meet to discuss the purchase of methylamphetamine. Sultab provided familystore with a mobile telephone number and said that the person he was to liaise with was named “Mike”. “Mike” was the name used by the applicant.

10. On 17 May 2018, familystore called the applicant and arrangements were made to meet at Drummoyne Sailing Club the next day.

11. On 18 May 2018, the applicant arrived at the sailing club at around 12.30pm in a white Mitsubishi Outlander. During the meeting, the applicant discussed purchasing large quantities of the drug “ice” from the UCO. During this conversation the applicant said to the UCO that he did not get told the contract amount nor the price per kilogram, saying “I just thought I was picking up” and that he “just get told A and B” from his boss. The applicant said that he did not know Sultab and that his boss’s name was “Omerta”. At the conclusion of the meeting, both the applicant and the UCO acknowledged that there had been some confusion, but agreed to meet again on 23 May 2018.

12. As a result of the meeting on 18 May 2018, police commenced surveillance of the applicant and followed him back to his address.

13. On 23 May 2018, the UCO called the applicant and had a further conversation about drugs. During the conversation, the applicant told the UCO that his Wickr handle was “jeanralphio”. The applicant and the UCO then communicated using Wickr and agreed to meet on 29 May 2018.

14. On 28 May 2018, the applicant told the UCO that he would not be in a position to meet the following day.

15. On 29 May 2018 in the afternoon, police continued their surveillance of the applicant as he drove the white Mitsubishi Outlander through the City and towards Rushcutters Bay. The applicant was the sole occupant of the vehicle. The applicant reversed the vehicle into the undercover driveway of a unit complex in Rushcutters Bay. Eighteen minutes later, the applicant, still the lone occupant, drove the same vehicle away from the car park. Police followed the applicant, who parked and left the vehicle on Jones Street in Pyrmont.

16. Police approached the applicant, who was in possession of a backpack, cautioned him and then searched his person. In the backpack was a Blackberry Cipher phone which was illuminated with awaiting messages. The applicant declined to provide investigators with a passcode to unlock the phone or comment about its use. A further mobile phone and a set of keys which included a padlock key were also in the applicant’s possession. A Bunnings receipt indicated that a padlock L-shackle had been purchased on 18 May 2018.

17. Having searched the applicant, police commenced a search of the Mitsubishi Outlander. During the search, a remote control buzzer with the Rushcutters Bay address written on the back and a Honda car key were located in the rear pocket of the driver’s seat. Police then searched the rear of the vehicle and, below the carpet and plastic shell casing that usually houses a spare tyre, police located a hidden compartment covered with a metal plate which was closed shut. After the applicant was asked to assist investigators access the space and refused to comment, police managed to force back the metal plate, allowing access to a 1m wide, 80cm long and 20 cm deep space. Inside this space, police discovered a large number of heat/vacuum sealed bags containing sandwich size sealed clear bags with a clear crystal rock substance within. Suspecting the substance to be a prohibited drug, police arrested the applicant and cautioned him again. The applicant was asked questions concerning the crystal rock substance but refused to comment. He was then conveyed to the Sydney City Police Station where his rights were read and explained to him.

18. Eighteen vacuum sealed bags containing resealable bags of clear crystal rock, with a total weight of approximately 9 kg, were removed from the hidden compartment. The clear rock substance was confirmed, on preliminary examination, to be methylamphetamine.

19. At 8.22 pm that evening, police executed a search warrant at the garage in Rushcutters Bay which was the address inscribed on the remote control buzzer found in the Outlander and which was also the address the applicant had been observed attending earlier that day. The remote control provided access to the underground car park at that address. The caged storage area allocated to the unit was secured using a padlock. Using the padlock key found in the applicant’s possession, police gained access to the storage area where there was a locked Honda Accord. Police gained access to the vehicle using the Honda key located in the Outlander. Upon searching this vehicle, police located in the boot a hidden compartment, which appeared to have been professionally installed and was similar to the compartment located in the Outlander. Inside the concealed compartment, police located 20 heat/vacuum sealed bags, containing sandwich size sealed clear bags with a clear crystal rock substance within. The total weight of these 20 bags was approximately 10 kg, and the clear rock substance was also confirmed, on preliminary examination, to be methylamphetamine.

20. The owners of the garage in Rushcutters Bay had rented out the space on Gumtree to a man named David for $65 per week, who paid 10 weeks rent in advance. He was given a buzzer for the garage which was confirmed to be the same remote control which had been earlier seized from the applicant.

21. Police subsequently searched the applicant’s home address and seized a number of items including: three Black ALCATEL One Touch mobile phones, one of which had been used to contact the owner of the garage in Rushcutters Bay; one Blackberry mobile phone; one shopping bag containing a disposable glove, a yellow envelope and a heat sealed bag containing pouches; $500 cash inside a safe; and a high visibility work shirt. Police also located a large number of resealable plastic bags and a money counter in a TV cabinet in the lounge room of the premises.

22. The applicant participated in an electronically recorded interview but he declined to make any comment on the allegations.

23. The substance located in the Mitsubishi Outlander was found to contain 8,964.6g of methylamphetamine, in purities ranging from 77.5 - 79%. The substance located in the Honda Accord was found to contain 9,895.3g of methylamphetamine, in purities ranging from 78.5 - 79%. The total combined weight of the packages was 18.85 kg, with an estimated value of between $1,414,492 and $2,074,589.

The applicant’s subjective case

24. The applicant did not give evidence in the sentencing hearing.

25. It was noted that the sentencing assessment report of 5 November 2019 included the view that the applicant appeared to demonstrate some insight into his offending, in that he identified a motivation of financial gain and his substance abuse issues as key factors in his offending behaviour. The report also said:

“Upon reflection, Mr Mclean reported that he had glamorised the criminal lifestyle and had considered that drug supply was a ‘convenient’ and ‘lazy’ means to obtain additional income.”

The report also noted that the applicant’s family remained supportive offering both accommodation and employment on release and that his behaviour in custody was described as satisfactory, with no misconduct charges or management issues.

26. The sentencing judge also observed that the applicant had been assessed as a low-medium risk of reoffending.

27. His Honour referred to a report by Mr Watson-Munro, consultant psychologist, of 22 October 2019 which recorded that the applicant was born in Sydney, had two brothers and a sister and expressed “significant remorse in relation to the impact of his offending on his family”. It was noted that, according to the report, the applicant had also been diagnosed with a range of psychological disorders dating back to his childhood, including depressive disorder, anxiety disorder and substance use disorder with his drug use being intense and protracted.

28. His Honour noted that the report stated that in the lead up to his arrest, the applicant was suffering a severe substance abuse disorder against a backdrop of a protracted and severe depressive disorder and said that the applicant was “keen for treatment which has been reinforced by his desire to make amends with his family.”

29. It was also recorded that:

1. a handwritten letter by the applicant stated that he was “deeply ashamed and embarrassed” for being in Court, despite his loving and fortunate upbringing, and described his time in jail as “tough” as well as noting that he had witnessed the destruction of lives that drugs and addiction caused; and

2. a letter from the applicant’s mother which stated that she had observed a change in her son’s behaviour in the years leading up to his arrest, described his negative peer influences, financial stress and low self-esteem and noted that he had apologised to his family for his actions and had taken responsibility for what he had done; and

3. there were also references from a former employer and a close friend, who both spoke highly of the offender and were positive about his prospects of not re-offending.

30. The learned sentencing judge allowed a discount of 10% having regard to the timing of the applicant’s plea of guilty.

31. His Honour noted that, despite the applicant’s not having given evidence at the sentencing hearing, he was satisfied that the applicant had shown remorse and insight into his offending, as evidenced by reports, letters and references tendered.

32. Townsden DCJ referred to the applicant’s criminal history, involving violent offences including reckless wounding, for which he received a term of imprisonment in 2008, but noted that he had no prior offences involving supply of prohibited drugs. His Honour found that this disentitled the applicant to leniency but the lack of recent offending was relevant when considering his prospects of rehabilitation.

33. The sentencing judge was satisfied that the applicant had reasonable prospects of rehabilitation given his plea of guilty, remorse, family support and employment prospects. However, his Honour’s assessment was said to be “guarded” as the applicant had not given evidence.

Objective seriousness

34. The sentencing judge then turned to consider the objective seriousness of the offending and had regard to the maximum penalty and the standard non-parole period as legislative yardsticks.

35. His Honour then considered the following factors:

1. the amount of methylamphetamine, 18.85 kg, which was observed to be considerably above the 500 g threshold for a large commercial quantity for this drug, although this was said be a “not solely determinative factor”;

2. the purity of the drug was said to be “high, ranging from 77.5% to 79%”;

3. there was a reasonable degree of planning involved in the packaging and concealment of the drugs, although this was not regarded as being an aggravating factor;

4. the applicant would not be described as a mere courier and was clearly in a trusted position within a large criminal group involved in supply of prohibited drugs;

5. the applicant met with a UCO to discuss the purchase of large quantities of the drug and was in possession of an amount of drug with an estimated value of between $1.4 and $2 million but another person claimed to be “the owner of the load” and gave the UCO the applicant’s contact number and when the applicant met the UCO, the applicant stated that he did not have the contract amounts and believed he was “picking up”. In addition, the applicant referred to his boss. As a result, the sentencing judge was satisfied that the applicant could not be described as a principal within the group and that he played a more subordinate role but nevertheless it was an integral one.

36. Townsden DCJ then stated that he would assess the gravity of the offending behaviour “slightly above the mid-range, but not at the higher end for offences of this type.”

Term of imprisonment

37. His Honour found that the only sentence which could be imposed was a sentence of full-time imprisonment and stated that the principles of general and specific deterrence remained important considerations.

Special circumstances

38. A finding of special circumstances was then made having regard to the applicant’s plea of guilty, remorse and the need for ongoing counselling upon his release to address his long history of drug addiction and depression.

Sentence

39. After referring to and taking into account the comparative cases provided by the Crown and the applicant, the learned sentencing judge then stated that he would have imposed a sentence of 14 years’ imprisonment but, after taking into account the 10% discount for the guilty plea and rounding, he sentenced the applicant to imprisonment for 12 years and 7 months, commencing on 29 May 2018 and expiring on 28 December 2030, with a non-parole period of 8 years and 7 months, expiring on 28 December 2026.

Ground 1

40. The applicant’s first proposed ground of appeal was that the sentencing judge erred “in characterising the objective seriousness of the offence as above mid-range”.

41. The sentencing judge’s actual assessment was that “the gravity of the offending behaviour” was “slightly above the mid-range, but not at the higher end for offences of this type.”

42. It is well established that characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts: Mulato v R [2006] NSWCCA 282 (Mulato) at [37] (Spigelman CJ) and [46] (Simpson J as her Honour then was).

43. An assessment of objective seriousness is, if not a finding of fact, then the exercise of an evaluative process akin to fact finding or the exercise of a discretion and, as such, it is reviewable in this Court only on the principles stated in House v The King (1936) 55 CLR 499; [1936] HCA 40; Mulato at [46]. Where no specific House v The King error is identified, the question can be framed as being whether the particular characterisation which the sentencing judge gave to the circumstances of the offence was open in the particular case: Mulato at [37].

44. Sentencing judges are required to assess the objective seriousness or objective criminality of offending because it is one of the essential elements in the instinctive synthesis sentencing process whereby the judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case: Yeung v R [2018] NSWCCA 52 (Yeung) at [19] and [20] (McCallum J, as her Honour then was, Hoeben CJ at CL and Simpson JA agreeing) citing Muldrock v The Queen (2011) 244 CLR 120; (2011) 212 A Crim R 254; [2011] HCA 39 at [26] and Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51].

40. In R v Van Ryn [2016] NSWCCA 1 at [135], R A Hulme J (Leeming JA and Johnson J agreeing) explained:

“One reason that it is important for there to be some assessment of the seriousness of an offence is because one of the purposes of sentencing is to ensure that the offender is adequately punished for the offence: s 3A(a) Crimes (Sentencing Procedure) Act. Another reason is the requirement that a sentence should not exceed, or be less than, what is proportionate to the gravity of the crime: R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566 at 572 [15] (Spigelman CJ). Further, it enables use of the legislative guideposts of the maximum penalty and any prescribed standard non-parole period: R v West [2014] NSWCCA 250 at [27] (Adamson J).”

46. It is not a requirement when assessing objective seriousness to articulate the determination by placing the offence for which an offender is to be sentenced at a point along a hypothetical range, such as “below mid-range” or “just above mid-range”: Yeung at [24]. Nonetheless, it may be useful to do so in order to give an appropriate expression to the conclusion reached after a consideration of all the relevant factors and to provide transparency so as to allow an appellate court and the general community to understand how the sentencing judge arrived at the final result: R v Cage [2006] NSWCCA 304 at [18] (Latham J, Hunt AJA and Johnson J agreeing).

47. One difficulty with describing objective seriousness by way of a position on a range was commented upon by Basten JA (Price and S G Campbell JJ agreeing) in Cargnello v Director of Public Prosecutions(Cth) [2012] NSWCCA 162 at [88]; (2012) 224 A Crim R 204, as follows:

“88. This kind of characterisation [‘at the very least at the middle of the range for offences of this type’], which was no doubt encouraged by the introduction into State law of s 54A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) with respect to offences the subject of standard non-parole periods, is often unhelpful. That is because it is rarely explained what is meant by the 'middle of the range'. Clearly a range is not a point on a scale, but it could cover anything from 25% to 75% of a most serious case, or it could be far more narrowly defined. Unless it is narrowly defined, it is unlikely to provide useful guidance for the sentencing judge, let alone for those reading the judgment.”

48. McCallum J (as her Honour then was) held in Shayne Hammond v Regina [2015] NSWCCA 89 at [44] to [46]:

“44. It remains permissible (but unnecessary) to record a finding as to objective seriousness expressed by reference to the hypothetical scale of offending covered by the section. Such a finding reflects the sentencing judge’s evaluative judgment of one of the factors relevant to the sentence. Assuming adherence to the principles stated in [Muldrock v R (2011) 244 CLR 120; [2011] HCA 39], this evaluative judgment cannot be understood to indicate a starting point in fixing the non-parole period.

45. A ground of appeal asserting error in the expression of such an evaluative judgment faces a number of difficulties. The first is the narrow significance of the concept comprehended in such a finding. As explained in Muldrock at [27], meaningful content cannot be given to a finding as to where an offence falls in the range of offending covered by the relevant section by taking into account the circumstances of the offender. The High Court explained that the concept of an offence in the middle of the range of objective seriousness is to be determined wholly by reference to the nature of the offending (a concept now reflected in the statute).

46. Secondly, if error is to be discerned, there must be some clarity as to the range of offending under consideration by the sentencing judge. …”

49. The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending: Muldrock v R (2011) 244 CLR 120; [2011] HCA 39 at [27].

50. Relevant factors that may affect the assessment of objective seriousness of drug supply offending include, without being exhaustive:

1. the role of the offender, and the level of his or her participation in the offence: R v MacDonnell [2002] NSWCCA 34 at [33]; (2002) 128 A Crim R 44; Melikian v R [2008] NSWCCA 156 at [42];

2. the quantity and purity of the prohibited drugs although these may not be the principal determinative factor: El Kheir v R [2019] NSWCCA 288 at [47]; R v Dang [2005] NSWCCA 430 (Dang) at [24]; and

3. other factors such as the number of occasions on which the drug was supplied and the planning involved: Dang at [24].

51. It should also be noted, in relation to attempting to label the nature of an offender’s role using terms such as “courier” or “warehousing” for the purpose of assessing objective seriousness, that there is a risk that the labelling distracts from the task at hand which is examining what the offender actually did or did not do. In A v R [2020] NSWCCA 145, Price J (Johnson and Davies JJ agreeing) said recently (at [71]):

“When sentencing for drug supply offences, this Court has emphasised the importance of focussing upon what an offender actually did rather than using a shorthand description such as “middleman”, “street vendor” or “courier”, of an offender’s participation in the criminal enterprise. As was said by Johnson J (Tobias AJA and Hall J agreeing) in Paxton v R [[2011] NSWCCA 242; 219 A Crim R 104] at [135]:

‘An assessment of the Applicant's role is not to be determined by the selection of a label which might properly attach to him. As with a person to be sentenced for a Commonwealth importation offence, the criminality of a New South Wales drug supply offender ought be assessed by consideration of the involvement of the offender in the steps taken to effect the drug supply offences. Problems may emerge when a sentencing court attempts to categorise the role of the offender in the drug enterprise as, in many cases, the full nature and extent of the enterprise is unlikely to be known to the Court: TheQueen v Olbrich [1999] HCA 54; 199 CLR 270 at 279 [19].’”

52. In the present case, the applicant’s role was described as not being a “mere courier” and the learned sentencing judge considered a number of factors relevant to the objective seriousness of the applicant’s offending. His Honour’s assessment was expressed as: “slightly above the mid-range, but not at the higher end for offences of this type.” It appears to me that, in the context of the sentencing judge’s remarks as a whole, this assessment was intended to indicate that the offending was just above the middle of the range and not in the high end of the range.

53. No specific House v The King type of error was identified by the applicant in this regard. Furthermore, in my view, the sentencing judge’s assessment was well open in light of the circumstances as found by him and which have been referred to above. These circumstances included most relevantly that:

1. the applicant played a trusted and integral role in large scale drug supply;

2. he was involved in picking up, storing and delivering large quantities of drugs in vehicles specially modified so as to conceal the drugs;

3. he was responsible for renting garage space in which to store the vehicles and the drugs;

4. the quantity of drugs actually concealed in the two vehicles, one which he drove and the other of which was stored in the garage, was approximately 37 times the threshold for a large commercial quantity, and the drugs were of a high percentage purity, ranging from 77.5% to 79%;

5. he arranged to meet and met a person using the Wickr handle “familystore” for the purpose of discussing drug supply and discussed purchasing large quantities of “ice” with familystore;

6. he subsequently communicated by an encrypted message service with familystore;

7. he was in possession of six mobile phones (two seized at the time of his arrest, one of which was showing illuminated messages, and another four located at his home);

8. he was also in possession of a money counter and a large number of resealable plastic bags; and

9. the estimated value of the drugs seized was between approximately $1.4 million and $2 million.

54. When viewed in the context of the nature of the applicant’s offending as a whole, the assessment that this offending was just above the middle of the range but not in the high end of the range was not undermined by the sentencing judge’s other findings including that:

1. the applicant was not a principal but played a more subordinate role;

2. he said to familystore at the meeting at Drummoyne Sailing Club that he was not told the contract amount or the price per kilogram, that he thought he was just picking up and that he had a boss who just told him “A and B”;

3. there was some confusion during the applicant’s discussion with familystore at Drummoyne Sailing Club and yet the applicant did not attempt to resolve the confusion or move the discussion back to the purchase of drugs on that occasion; and

4. only $500 in cash was found at the applicant’s home.

55. The applicant relied on nine cases which were contended to be comparable with the present case to establish that Townsden DCJ’s characterisation was not open in the present case. None of those cases involved factual situations that were strikingly similar to the present case. Many of the cases involved the offender negotiating to supply and supplying smaller quantities of drugs rather than the type of storage and transport operation, by means of professionally installed concealed compartments capable of holding significant quantities of drugs, involved in the present case. Nonetheless, those nine cases were said to be relevant because:

1. this Court found that it was “not open … to find that the [supply of 8.497 kg of MDMA] lay in the upper range of seriousness …” in Paxton v R [2011] NSWCCA 242;

2. this Court found that no error was demonstrated in the assessment that supplying 1.104 kg of methylamphetamine was “below the mid-range” in A v R [2020] NSWCCA 145;

3. no issue was taken on appeal with a finding at first instance that supplying 2.545 kg of methylamphetamine on five occasions was “below the mid-range but not too far below” in Shi v R [2020] NSWCCA 42;

4. no issue was taken on appeal with a finding at first instance that supplying 539.6 g of MDMA was “slightly below the mid-range” in Jackson v R [2019] NSWCCA 101;

5. this Court rejected the submission that supplying 1.039 kg of MDMA or supplying 2.515 kg of MDMA were not “at least within the mid-range” for each offence in Assam v R [2019] NSWCCA 12;

6. a finding had been made at first instance which was not challenged on appeal that supplying 3.545 kg of MDMA on four occasions “fell below the middle range” in Mihelic v R [2019] NSWCCA 2;

7. findings had been made at first instance which were not challenged on appeal that supplying 3.9 kg of methylamphetamine was “on the cusp of the lower and middle ranges” and supplying 1.34 kg of amphetamine was “in the lower range” in Nye v R [2018] NSWCCA 244;

8. a finding in a Crown appeal against sentence that supplying approximately 1 kg of methylamphetamine was “lower than mid-range, but not at the lowest level” in R v Yiu; R v Yau [2018] NSWCCA 155; and

9. this Court found no error in the assessment that supplying 715.7 g of methylamphetamine was “within the mid-range” in Healey v R [2018] NSWCCA 214.

56. These cases do not, in my view, establish that the sentencing judge’s assessment of objective seriousness in this case was not open to him or was contrary to principle. This might have been otherwise had the sentencing judge found that the objective criminality was in the higher or upper end of the range.

57. For these reasons, the first ground of appeal would not be made out if leave to appeal is granted.

Ground 2

58. The applicant’s second ground of appeal was that the sentence imposed was manifestly excessive.

59. A ground of appeal contending that a sentence is manifestly excessive engages the principles that have been usefully summarised in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443]:

“• Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases.

• Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error.

• It is not to the point that this Court might have exercised the sentencing discretion differently.

• There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle.

• It is for the applicant to establish that the sentence was unreasonable or plainly unjust."

60. The sentence imposed by Townsden DCJ was imprisonment for 12 years and 7 months, after applying the discount of 10%, with a non-parole period of 8 years and 7 months. The offence for which the applicant was being sentenced carried a maximum penalty of life imprisonment with a standard non-parole period of 15 years’ imprisonment.

61. The applicant submitted that the factors relied upon to establish that the sentencing judge’s assessment of objective seriousness was erroneous also supported the contention that the sentence in the present case was manifestly excessive. This submission was perhaps encapsulated in the written submission as follows:

“[t]his was not a particularly serious example of an offence of supplying a large commercial quantity of drugs”.

62. I do not accept the characterisation of the applicant’s offending as “not a particularly serious example” of the relevant offence. Offending engaged in for financial gain because it “was a ‘convenient’ and ‘lazy’ means to obtain additional income” involving the storage and pickup or delivery of more than 37 times the threshold amount for a large commercial quantity of the prohibited drug with a high degree of purity, concealed in professionally installed compartments in two vehicles, by a person with multiple telephones using encrypted communications to make arrangements in relation to drug supply, and the other relevant circumstances referred to above, is a serious example of drug supply offending.

63. The applicant also relied upon his criminal history, prospects of rehabilitation, plea of guilty, remorse, family support, prospects of employment on release and low-medium prospects of reoffending to support the contention that the sentence was manifestly excessive.

64. His criminal history, while not including previous drug offences, involved violent offences including reckless wounding for which he received a term of imprisonment. It is also true that there were no offences for which the applicant was convicted between 2013 and 2018. Nonetheless, his record was one which meant that he was disentitled to the leniency he might otherwise have been afforded, as the sentencing judge held.

65. The other matters referred to by the applicant were each taken into account by Townsden DCJ. These were not such, however, as to support the conclusion that general and specific deterrence did not remain important considerations in the present case or that the purposes of sentencing in s 3A(a) – (c) and (e) – (g) of the Crimes (Sentencing Procedure) Act 1999 (NSW) would be met by a sentence so substantially less than the sentence actually imposed so as to render that sentence beyond the range of available sentences. It was not contended that the remaining purpose set out in s 3A(d) of that Act was not appropriately considered and taken into account in the sentence imposed.

66. The applicant referred to sentencing statistics and submitted:

“Whilst the usefulness of a statistical analysis in support of the contention that a sentence is manifestly excessive is subject to well-known limitations, the fact that of the 195 cases involving a single offence only of supplying a large commercial quantity of prohibited drugs dealt with by the Courts since 2008, only 10 cases involved head sentences higher than that imposed upon the applicant, gives one pause for thought. The starting point for the head sentence before the application of the 10% discount for the late plea was 14 years. This is manifestly excessive for an applicant who occupied the applicant’s role in the offence, and in the overall circumstances of the case.” (Footnote omitted)

67. The applicant’s submission did not, however, involve analysis of the facts of those cases. Similar but different information was provided by the Crown in its written submissions by way of a number of bar charts illustrating the distribution of the lengths of sentences imposed, from 24 September 2018 to 31 December 2019, for offenders sentenced in relation to the supply of, or knowingly taking part in the supply of, not less than the large commercial quantity of a prohibited drug (other than cannabis leaf) in contravention of s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW).In summary those bar charts indicated as follows:

1. For “Aggregate/Effective terms of sentence for all offenders”, 146 sentences ranged between 24 months and 16 years;

2. For “Aggregate/Effective terms of sentence for offenders sentenced for one offence only”, 47 sentences ranged between 24 months and 16 years;

3. For “Aggregate/Effective terms of sentence for offenders sentenced for one offence only with a plea of guilty”, 45 sentences ranged between 30 months and 16 years; and

4. For “Aggregate/Effective terms of sentence for offenders sentenced for one offence only involving amphetamines”, 32 sentences ranged between 24 months and 16 years.

68. The limited usefulness of such statistically based submissions was commented upon in Hordern v R [2019] NSWCCA 210 by Johnson J at [46]:

"In this case, counsel for the applicant sought to rely upon bare statistics. Counsel's submissions did not take the Court to the facts of the sentencing decisions to assist an understanding of the outcomes in particular cases. As a result, there was no informed examination of the cases reflected in the statistics."

A similar comment can be made in this case.

69. What the bar chart for those cases in which there was a plea of guilty in the period from 24 September 2018 to 31 December 2019 demonstrated was that the sentences ranged between 30 months and 16 years. Without any specific information as to the nature of the offending, the roles of the offenders, the quantities involved, the quantum of the discounts for the guilty pleas and other relevant matters, it could not, in my view, be concluded that the sentence of 12 years and 7 months was outside the range of available sentences or that it was manifestly excessive.

70. Furthermore, the non-parole period in the present case, of 8 years and 7 months, represented a reduction of 10 months from what it would otherwise have been, absent the finding of special circumstances.

71. In all the circumstances, in my view the sentence imposed by Townsden DCJ, while stern, was not so far outside the range of sentences available that there must have been error. Nor has the applicant established that it was unreasonable or plainly unjust.

72. For these reasons, I would not uphold ground 2, if leave is granted.

Orders

73. As the grounds of appeal were arguable, leave to appeal should be granted but neither ground of appeal has been made out.

74. Accordingly, I propose that the orders of the Court should be:

1. The applicant is granted leave to appeal.

2. The appeal is dismissed.

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Decision last updated: 17 December 2020