Mihelic v R

[2019] NSWCCA 2

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Mihelic v R [2019] NSWCCA 2
Hearing dates:	19 November 2018
Date of orders:	19 November 2018
Decision date:	01 February 2019
Before:	Hoeben CJ at CL at [1] Rothman J at [2] Price J at [101]
Decision:	(1)   Leave to appeal granted;  (2)   Appeal dismissed.
Catchwords:	CRIME – appeal – failure to assess remorse adequately – non-acceptance of oral evidence without explanation – unfair approach – but no lesser sentence warranted
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 44 Drug Misuse and Trafficking Act 1985 (NSW), s 25(2) Evidence Act 1995 (NSW) ss 4, 38
Cases Cited:	Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1 Alvares v R; Farache v R (2011) 209 A Crim R 297; [2011] NSWCCA 33 Browne v Dunn (1893) 6 R 67 Haberfield v Department of Veterans’ Affairs as Delegate for Comcare (2002) 121 FCR 233; (2002) 72 ALD 333; [2002] FCA 1579 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Marelic v Comcare (1993) 47 FCR 437; [1993] FCA 790 Newman v R [2018] NSWCCA 208 NRMA Insurance Limited v Ainsworth [2011] NSWSC 344 Peachey v R [2011] NSWCCA 30; Pham v R [2010] NSWCCA 208 R v Rahme (1991) 53 A Crim R 8 Re John Charles Clifford Hoskins v Repatriation Commission (1991) 32 FCR 443; [1991] FCA 559 Re Noeleen Fairlie Dolan v the Australian and Overseas Telecommunications Corporations (1993) 42 FCR 206; (1993) 31 ALD 510; [1993] FCA 202 RPS v R (2000) 199 CLR 620; [2000] HCA 3 Taouk v R (1992) 65 A Crim R 387
Category:	Principal judgment
Parties:	Christopher Mihelic (Applicant) Regina (Respondent)
Representation:	Counsel: P Lange (Applicant) E Balodis (Respondent)   Solicitors: Zahr Partners (Applicant) Director of Public Prosecutions (NSW) (Respondent)
File Number(s):	2015/40974
Decision under appeal	Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 23 February 2018 Before: Maiden DCJ File Number(s): 2015/40974

Judgment

1. HOEBEN CJ at CL: I agree with Rothman J.

2. ROTHMAN J: The applicant, Christopher Mihelic, seeks leave to appeal (and, if leave be granted, appeals) the sentence imposed upon him by the District Court of New South Wales (Maiden DCJ) on 23 February 2018. The applicant was sentenced to an effective head sentence of 6 years’ imprisonment with an effective non-parole period of 4years.

3. The foregoing sentence was effected by two sentences imposed after a plea of guilty. The first offence for which a sentence was imposed (hereinafter “sequence 11”) was for the supply of prohibited drug not less than a large commercial quantity, being 3,545g of MDMA, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (hereinafter “the DMT Act”). The conduct in relation to that offence occurred between 22 December 2014 and 9 February 2015.

4. The second offence for which a sentence was imposed was for the supply prohibited drug, not less than commercial quantity, being 558g of cocaine, also contrary s 25(2) of the of the DMT Act for conduct over the same period of time. This latter sentence (hereinafter “sequence 10”) was made fully concurrent with sequence 11. Each of the sentences was constructed in the following way:

Sequence 10 was a sentence of imprisonment for a non-parole period of 3 years, commencing 9 February 2015 and expiring 8 February 2018, with the remainder of term being a further 18 months concluding 8 August 2019.

Sequence 11 was a sentence of imprisonment for a non-parole period of 4 years, also commencing 9 February 2015 and concluding 8 February 2019, with a remainder of term of 2 years’ imprisonment, concluding 8 February 2021.

5. The terms of the sentence imposed do not comply with the provisions of s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW), in that the sentencing court did not first set the non-parole period and then identify the balance of the term. Nevertheless, no invalidity arises from the setting of the head sentence and identifying the non-parole period.

Grounds of Appeal

6. The applicant raises two Grounds of Appeal:

1. “His Honour erred in not finding that the applicant was remorseful;

2. His Honour erred in not finding that the applicant’s moral culpability was reduced as a result of the involvement of police.”

Facts

7. The arrests in relation to the offence were part of an investigation entitled “Strike Force Cheth”, in which a controlled operation for the purchase of prohibited drugs was undertaken. On 15 December 2014, an undercover police officer, using the name Johnny (hereinafter “UCOJ”), contacted the applicant by email and, after initial introductions arranged a meeting on 17 December 2014.

8. On 17 December 2014, after exchanging further emails, the applicant and UCOJ met at a cafe at which UCOJ asked the applicant whether he could supply cocaine and MDMA. The applicant indicated he could get ounces of cocaine and as many MDMA “pills” as UCOJ desired. Cocaine would cost $7,500 per ounce and the MDMA would cost $8 per pill. The conversation in the cafe was lawfully recorded by police.

9. An arrangement was made to meet on Monday, 22 December 2014 and in the evening of 17 December 2014, the applicant contacted UCOJ and informed him that he had the cocaine ready to sell.

10. On the morning of 18 December 2014, UCOJ indicated, by email, that he was keen for 5 ounces of cocaine and 1,000 MDMA pills. The applicant accepted that “order”.

11. At about 1:50 PM on 18 December 2014, the applicant telephoned a man called George Sikos and arranged to meet him.

12. On the morning of 21 December 2014, UCOJ contacted the applicant, again by email, and confirmed the meeting at 2 PM on 22 December 2014. In the evening of 21 December 2014, the applicant contacted UCOJ and referred to the purity of the cocaine; the fact that it was a new batch; that it was rocky and untouched; and enquired whether UCOJ still wanted to proceed with the purchase of the cocaine. During the conversation the applicant indicated that “the last batch from two weeks ago all went”.

13. On the morning of 22 December 2014, UCOJ communicated and confirmed the purchase. UCOJ and the applicant met at 2:30 PM and the applicant informed UCOJ that the drugs were to be delivered to the cafe.

14. UCOJ indicated that he did not want to make the exchange at the cafe and the applicant telephoned Mr Sikos and arranged for them to meet at Mr Sikos’ home. The applicant, Mr Sikos and UCOJ then made arrangements for the exchange of the drugs and the money and that arrangement involved an arrangement between Mr Sikos and another co-accused Aleksandar Peovski.

15. Mr Sikos and the applicant drove in two cars to the cafe and waited at the table. At about 4:10 PM, UCOJ drove into the car park and the applicant entered UCOJ’s car.

16. The applicant handed a plastic bag to UCOJ, containing five freezer bags of cocaine and a plastic zip lock bag of MDMA pills. UCOJ placed the plastic bag, with all of the drugs, under the driver’s seat, left the car and removed a red plastic bag containing $47,500 and handed it to the applicant.

17. The applicant looked inside the bag of money, alighted the car and walked to his own car. The applicant then drove away from the car park back to the cafe.

18. Shortly after, Mr Sikos left the cafe and drove to Mr Peovski’s home, which was a short distance away. Mr Sikos then left Mr Peovski’s home, and drove his car to his home in Dolls Point.

19. Other recorded conversations occurred, all of which were lawfully recorded by police. As were the conversations in UCOJ’s car.

20. On 30 December 2014, UCOJ requested, again by email, “the same for next Tuesday”. On the evening of 29 December 2014, the applicant sent an email to UCOJ indicating that he would not be ready to until “at least 3 PM”.

21. Between 10 AM and 10:30 AM on 30 December 2014, email exchanges occurred between UCOJ and the applicant confirming their meeting at 3 PM. Again on 30 December 2014, the applicant and Mr Sikos made arrangements and met at a cafe before separating.

22. There were further conversations, by telephone, between Mr Sikos and the applicant. The applicant then drove to Mr Sikos’ home and Mr Sikos entered the applicant’s car and they both drove to a cafe.

23. At or about 1pm, Mr Sikos left the cafe and walked to the home of Mr Peovski and returned a few minutes later, handing a white paper shopping bag to the applicant.

24. The applicant and Mr Sikos then entered the cafe together and left about 1:30 PM. The applicant put the white paper shopping bag into his car and, between 2 PM and 2:30 PM, the applicant arranged with UCOJ, by telephone, to meet at a particular address.

25. At the address, the exchange occurred in UCOJ’s car, which conversation was lawfully recorded. The exchange involved 139.7 g of cocaine, with a purity of 90% and 235.1 g of MDMA pills, having a purity of 20.5%.

26. On 1 January 2015, further email exchanges occurred between the applicant and UCOJ.

27. During the course of 5 January 2015, arrangements were made between UCOJ and the applicant for an exchange of further drugs. There was some discussion about the price and an arrangement was made to meet at 2:30 PM on 8 January 2015.

28. On that day, with some slight variations, there were similar arrangements between the applicant, Mr Sikos and UCOJ. The meeting was rearranged for 3 PM and the exchange took place, the necessary changes being made, in a similar fashion to the previous exchanges.

29. On this occasion, the plastic bag with money was approximately $1,000 short of the calculated price at the agreed rate. Although the applicant looked at the money inside the plastic bag, the money seems not to have been counted. UCOJ and the applicant discussed meeting the following week.

30. After about half an hour, the applicant and Mr Sikos spoke by telephone, during which conversation Mr Sikos accused the applicant of having taken a little more, because his “share” was short. The applicant asked whether Mr Sikos was sure and confirmed that he, the applicant, had pulled his appropriate share.

31. The cocaine was a total weight of 139.5 g, with a purity of 90.0%. The MDMA pills weighed 718.6 g and had a purity of 20.5%

32. On 30 January 2015, a further exchange of emails occurred between UCOJ and the applicant, which included an arrangement to meet for lunch on 2 February 2015.

33. UCOJ and the applicant met for lunch at a restaurant, during which meeting UCOJ indicated he would buy a larger quantity of pills the following week. The conversation was lawfully recorded.

34. On 6 February 2015, UCOJ sent a text message to the applicant indicating he would take 10,000 MDMA pills and 5 ounces of cocaine. They arranged to meet at 12 midday at a cafe. The importance of the fact that this communication was by text, rather than email, is to be the subject of later comment.

35. There was contact between the applicant and Mr Peovski. The applicant drove to the home of Mr Peovski; entered empty handed; and left carrying a plastic bag. The applicant then drove to the vicinity of the cafe.

36. The applicant and UCOJ met in the car park and the exchange occurred in a similar, if not identical, manner. The bags of drugs contained 139.7 g of cocaine, with a purity of 82.5% and 2,345.5 g of MDMA, with a purity of 18.5%.

37. At this point, when UCOJ reached for the bag in the boot of his car, police officers opened the car doors and arrested the applicant. There were subsequent searches and arrests of Mr Sikos and Mr Peovski. Each was charged with relevant offences.

38. The applicant pleaded guilty and received a 25% discount for the early plea of guilty. His co-offenders were also sentenced, in the case of Mr Sikos, by Norrish DCJ and in the case of Mr Peovski by Maiden DCJ. No issue arises in this appeal that the applicant suffers a justifiable sense of grievance in comparison to the sentences imposed on his co-offenders.

39. A number of other matters should be noted. First, prior to the communication from UCOJ in relation to the last supply, the applicant had disposed of the telephone that he had used for the purpose of communicating, via email, with UCOJ about drug deals. After this disposal, UCOJ obtained the applicant’s mobile number and sent him a text message, thereby circumventing what was said to be the applicant’s actions to extricate himself from the drug supply business.

40. The second aspect that requires attention is that the applicant gave evidence expressing his remorse which was not the subject of cross-examination or contradiction.

41. The applicant gave sworn evidence (Transcript 25 September 2017 at page 4 and following), during which he expressed remorse for the conduct in which he had engaged and the effect the sale of drugs had on the community. There was no cross examination.

42. While the applicant had a prior conviction for driving with a prescribed concentration of alcohol, he had no substantial or other criminal history. The sentence that was imposed on him was said to have been reduced by 25% on account of the applicant’s early plea of guilty.

Submissions

Ground 1

43. The applicant, in relation to Ground 1 of the appeal, relied upon the terms of s 21A(1) and s 21A(3) of the Crimes (Sentencing Procedure) Act. First, the terms of the portmanteau in s 21A(1) make clear that, when determining an appropriate sentence, a court must take into account as mitigating factors those factors referred to in s 21A(3) of the Crimes (Sentencing Procedure) Act. Those mitigating factors include the “remorse shown by the offender for the offence”, assuming the offender has provided evidence of that fact, including the acceptance of responsibility for his actions and the acknowledgement of injury caused by that action: s 21A(3)(i) of the Crimes (Sentencing Procedure) Act.

44. The Remarks on Sentence of the learned sentencing judge do not include any reference to remorse having been taken into account, either pursuant to the common law principles or pursuant to the provisions of the Crimes (Sentencing Procedure) Act. The sentencing judge referred to the subjective matters applicable to be offender and in so doing did not suggest that remorse was a factor to be taken into account or required to be utilised as a mitigating factor in the determination of the sentence.

45. Further, the sentencing judge made no suggestion that the applicant was not a credible witness and, having made no mention of remorse, the Court, it was submitted, should accept that remorse was not a factor in the determination of the sentence imposed upon the applicant, despite the requirements of s 21A of the Crimes (Sentencing Procedure) Act.

46. In response, the Crown relied upon the onus being on the applicant to establish any circumstances of mitigation, including remorse, at least on the balance of probabilities. The Crown submitted that his Honour was not obliged to take remorse into account in mitigation of the sentence, because his Honour was not obliged to accept the evidence of the remorse and that the remorse expressed by the offender fell into the category of the kind of remorse, commonly discovered, after apprehension which relates to the fact of apprehension itself and the prospects of punishment. It is only when remorse can be taken into account in terms of a finding of good prospects of rehabilitation that it can have any real bearing upon the sentencing outcome.

47. The Crown submits that the expressions of remorse are “overwhelmingly concerned with the applicant’s personal shame over the heavy burden the offence has borne on his mother and sister”.

48. Further, because of the strength of the Crown case, no remorse can be inferred from the early plea of guilty, of itself.

Ground 2

49. As is clear from the above summary of facts, the applicant relies upon his desire to cease his criminal activity and the conduct he undertook to give effect to that desire. This involves the disposal of the Blackberry, his telephone/email contact for drug purposes. As a consequence, the 6 February 2015 contact by the police was a contact which circumvented the attempts of the applicant to desist from involvement in drug supply.

50. It was agreed, at the sentencing proceedings, that the undercover operative had encouraged the applicant to consume the cocaine, which was the subject of the transaction.

51. That activity, in and of itself, was illegal, but, from the perspective of the sentencing process, the applicant submits that it involved the police in a situation where, but for their assistance, encouragement or incitement, the applicant would not have been involved in the transactions (or some or one of them).

52. The applicant submits that the conduct of the undercover agent was to provoke the applicant into committing the offences, in circumstances where those offences would not, otherwise, have been committed. It was, on the submission of the applicant, therefore, necessary for the sentencing judge to take into account those circumstances in assessing moral culpability: Taouk v R (1992) 65 A Crim R 387; R v Rahme (1991) 53 A Crim R 8.

53. The applicant submits that, on his evidence, the sentencing court should have been satisfied, on the balance of probabilities, that there was a real possibility that the applicant would not have engaged in the major transaction in February 2015. At the time, it must have been clear to the investigating officers that the applicant intended to cease the criminal activity, with which he was ultimately charged, and to rehabilitate himself.

54. The Police, in pursuing their arrests and the controlled operation, entangled the applicant in the most serious transaction, instead of permitting the applicant’s attempts to rehabilitate to run their natural course.

55. As a consequence of the foregoing, on the submission of the applicant, the applicant’s moral culpability in relation to the second count was significantly reduced and the sentencing judge erred in failing to make such a finding.

56. Moreover, the applicant further submits that the undercover operative encouraged the applicant to supply quantities of drugs in excess of those ordinarily supplied by him, in relation to each of the suppliers with which the applicant was charged.

57. Further again, the applicant refers the Court to the comments in the Remarks on Sentence at p 3.7, where the sentencing judge recited “other reasons” for the motivation of the applicant for his conduct, in the absence of cross-examination of the applicant on such issues.

58. The Crown draws attention, in its submissions, to the circumstance that the involvement of the Police was a matter considered by the sentencing judge in his Remarks on Sentence. As to moral culpability, the sentencing judge’s finding that the objective seriousness of the offences fell below the middle range of objective seriousness or culpability would not have been affected by any greater attention being paid to the role of the Police in drawing the applicant into the last of the supply offences. Further, the effect of a sentence that was wholly concurrent was that the punishment for the sequence 11 offence was significantly reduced in effect (or, more accurately, no additional punishment was imposed for the sentence 10 offence).

59. The Crown submissions include that the sentencing judge found that the motivation was not confined purely to the provision of drugs and the sentencing judge accepted the applicant’s addiction to drugs as a motivating factor. At the same time, it was open to his Honour to find, as the sentencing judge did, that the drug addiction was not the sole motivation. This is corroborated by the psychology report and the applicant’s demonstrated financial motivations.

60. Further again, the sentencing judge found that, although the applicant considered himself indebted to the undercover operative, his motivation was not based on this factor, or this factor alone.

61. Fundamentally, the Crown submits that the sentencing judge expressly took into account the role of the undercover operative and the effect of this Ground and the submission of the applicant is to seek to have the Court interfere with an exercise of discretion involving the weight to be given to particular factors that are uncontroversially relevant.

49. According to the Crown submissions, the steps taken by the applicant to cut his ties with the drug supply arrangements in which he was involved, did not go so far as to establish, even on the balance of probabilities, that the applicant was otherwise on a successful path to rehabilitating himself or on any path to such rehabilitation.

Consideration

63. Unless a court dealing with sentencing directs to the contrary, the Evidence Act 1995 (NSW) does not apply to sentencing proceedings: s 4(1)(d) and s 4(2) of the Evidence Act. No direction was made by the sentencing court in the matter from which this application for leave to appeal arises.

64. The learned sentencing judge does not refer in his Remarks on Sentencing to the issue of remorse. Where a sentencing judge does not refer to a required aspect of mitigation that is presented to a court, it must be assumed that no regard has been given to that aspect, notwithstanding the extraordinary workload on District Court judges.

65. In the sentencing proceeding, the applicant tendered a letter in which he not only apologised to the two persons who most severely suffered from his criminal conduct (being his mother and sister) but also expressed a view as to the devastating effect that drugs have on the community, families, friends and the individual.

66. The applicant gave oral evidence during the sentencing proceedings and relied upon an Affidavit of his sister that dealt at length with the applicant’s drug addiction over a number of years. During the course of the evidence, the applicant took “full responsibility” for his actions and coupled that with an express apology to the community and to his friends and the expression of his desire to make a new start to make the most of what life has to offer him.

67. In the course of an answer to a question from his Honour, the applicant expressed the view that he took “full responsibility” for his actions, first of all to addicts, the effects of drug supply on whom he should have been aware of and, inferentially, to their families, aware as he was of the effects drug supply has had on his own family. He referred to the fact that he was free of drugs in goal and had treated his time on remand as a full-time rehabilitation program, in which he had the opportunity, for the first time, to grieve properly for his father, who had passed away.

68. The applicant was not cross-examined on these expressions or on the facts that underpinned them.

69. This Court has made clear on a number of occasions that a sentencing judge is not obliged to accept evidence of remorse, even when the offender has given evidence on oath and has expressed remorse: Peachey v R [2011] NSWCCA 30 at [37]; Alvares v R; Farache v R (2011) 209 A Crim R 297; [2011] NSWCCA 33 at [65]. As the Court made clear in Alvares, supra, even where there is no cross-examination on the offender’s expression of remorse, the sentencing judge is not bound to accept it: see also Newman v R [2018] NSWCCA 208 at [28], [31].

70. As was made clear by Simpson J (as her Honour then was) in Pham v R [2010] NSWCCA 208 at [29], most offenders who have been apprehended and who are in prison on remand are remorseful and contrite. Such remorse and contrition may not necessarily indicate an attitude to the offence itself, as distinct from the apprehension and prospect of punishment or further punishment. Further, such remorse and contrition do not necessarily inform the likelihood, or indicate prospects, of rehabilitation.

71. Further, a sentencing judge is entitled not to accept the evidence of an applicant to that effect. This case, however, is in a different category. First, there was no cross-examination of the offender/applicant as to his remorse. Secondly, the applicant had attempted to remove himself from the drug supply environment by disposing of his Blackberry, but was brought back into the environment by contact from the undercover operative.

72. Thirdly, the sentencing judge does not remark or express any opinion as to whether the applicant’s expressions of remorse and contrition are or are not genuine or whether the applicant should be believed. Fourthly, the applicant indicates that he has been free of drugs in gaol and gives a rational basis for his remorse and his desire to be rehabilitated.

73. Ordinarily, even where the rules of evidence do not apply, it is an essential rule of fairness that, if it is to be said that a witness is not telling the truth or is mistaken as to a fact, that proposition should be the subject of cross-examination.

74. The foregoing is not a rule of evidence. It is a rule of fairness, which has been held to be applicable to courts and/or tribunals, notwithstanding the existence of an exemption from the rules of evidence: see Marelic v Comcare (1993) 47 FCR 437 at 442; [1993] FCA 790, per Beazley J (as her Honour then was); Haberfield v Department of Veterans’ Affairs as Delegate for Comcare (2002) 121 FCR 233; (2002) 72 ALD 333 at 345; [2002] FCA 1579, per Sackville J (as his Honour then was); Re Noeleen Fairlie Dolan v the Australian and Overseas Telecommunications Corporations (1993) 42 FCR 206; (1993) 31 ALD 510 at 512, 513 and 515; [1993] FCA 202, per Spender J; Re John Charles Clifford Hoskins v Repatriation Commission (1991) 32 FCR 443, at 446; [1991] FCA 559, per Pincus J; NRMA Insurance Limited v Ainsworth [2011] NSWSC 344 at [41] and following.

75. The High Court has expressed the view that the rule in Browne v Dunn (1893) 6 R 67 (extracts of which are reiterated in Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1) does not apply to the accused in criminal prosecutions: RPS v R (2000) 199 CLR 620; [2000] HCA 3, which reasons, while dealing with the inference in Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 is applicable to the reasoning in relation to Browne v Dunn. It is not for the applicant or the accused to disprove inferences, but for the Crown to prove the elements and essential facts beyond reasonable doubt.

76. However, the circumstance that the inference in Jones v Dunkel or the rule in Browne v Dunn cannot be used against the accused says nothing about whether it can or should be used against the Crown. The Crown is required to call all relevant evidence and, if unfavourable, or otherwise within the terms of s 38 of the Evidence Act, may cross-examine on the evidence.

77. Whether or not it is necessary for the Crown to put in issue the genuineness of any remorse or prospects of rehabilitation, at the very least, it should be expected that, if a sentencing judge is not to believe the expressions of the accused (in this case the applicant), given in sworn testimony, some comment should be made to that effect.

78. In my view, Ground 1 is made out and the sentencing judge should have taken into account the remorse and the prospects of rehabilitation identified in the evidence of the applicant.

79. To some extent, the facts that underpin the submission in support of Ground 2 of the appeal are facts which go to the genuineness of the expression of remorse and have been considered above under the rubric of Ground 1. It is fair to say that the disposal of the mobile phone, through which the applicant was contacted for drug deals, disclosed a genuine desire at rehabilitation. It is also significant that the undercover operative contacted the applicant otherwise than through the mobile phone he had previously utilised.

80. Nevertheless, the applicant acceded to a request to supply drugs. That request was not accompanied by any threat, coercion or incentive, other than the profit that would flow from the transaction. In some ways, the ease with which the applicant was drawn back into the drug supply scene evidences that the desire to rehabilitate was not a strong one, at least at that time.

81. Further, the fact that it was an undercover operative, as distinct from some other purchaser of drugs, does not, in this case, reduce the culpability associated with the drug supply into which the applicant was drawn.

82. In my view, nothing in Ground 2 has merit and this Ground of Appeal should be rejected.

83. The applicant was sentenced to an effective term of imprisonment of a non-parole period of 4 years with a remainder of term of 2 years (a head sentence of 6 years’ imprisonment). As earlier indicated, the maximum sentences were 20 years’ imprisonment (sequence 10) and life imprisonment (sequence 11). The relative standard non-parole periods are 10 years and 15 years respectively.

84. A 25% discount was applied for the utilitarian value of a plea at the earliest opportunity. Given the ease with which the applicant was drawn back into drug supplier, it cannot be said that the applicant is unlikely to reoffend.

85. Nevertheless, given his remorse, which I accept, and the already partly successful rehabilitation, his chances of rehabilitation are good, if appropriate supervision is implemented. The two offences were imposed so that the sentences of imprisonment would be served wholly concurrently.

86. The starting point (before discount) for the sentences would have been an effective head sentence of 8 years, with a non-parole period of 5 years and 4 months. The effective sentence reflects the sentencing judge’s finding of special circumstances and a non-parole period that is two thirds of the head sentence (as distinct from the statutorily prescribed three quarters of head sentence). It is also extremely lenient.

87. The finding of special circumstances is not in dispute. Nor, in my view, should it be. Given the evidence to which reference has already been made, it is most appropriate that the applicant spend a longer period under supervision in the community and I agree with the finding of special circumstances in the ratio determined by the sentencing judge.

88. The applicant, as stated, received the benefit of wholly concurrent sentences. There seems to be little explanation for this process. Even if the sentencing judge were to have taken into account totality and arrived at an effective sentence in or to the same effect as that imposed, ordinarily one would expect some degree of accumulation to reflect the separate criminality associated with the different conduct associated with each charge.

89. It is fair to say that the role of the applicant is not anywhere near the highest level within the drug supply chain and the imposition of a maximum penalty for either one of the charges would have been an error. Nevertheless, the degree of leniency afforded to the applicant by the concurrency of the sentences and the starting point of sentences imposed is significant.

90. The supply for which the applicant was charged occurred on four separate occasions and was of two different prohibited drugs. Each deserved to be punished and the criminality involved in the more serious offence does not wholly encompass the criminality associated with the less serious offence.

91. Further, the amount of drugs supplied was, in the case of the more serious offence, a large commercial quantity, being 3.545 kg of 3,4-methylenedioxy-methamphetamine (MDMA). The less serious offence was the supply of a commercial quantity of cocaine. In the case of the cocaine, it was the supply of 558 g.

92. For supply of MDMA to be in the category of a large commercial quantity it must be a supply of greater than 0.5 kg. The supply involved in sequence 11 was over seven times the amount necessary to bring the applicant within the category of a large commercial quantity. As stated, it comprised four separate supplies over two months. The supply on each of the days, standing alone, would have brought about a supply of a large commercial quantity.

93. The 558 g of cocaine that was supplied was more than double the quantity necessary to bring the supply within the category of the supply of a commercial quantity. The purity was varied on each occasion of supply between the range of 76.5% and 90%.

94. The applicant is serving his first sentence in gaol and has no prior criminal record (except for a low range PCA for which a fine and disqualification was imposed). Leniency is required in relation to those matters.

95. Nevertheless, the offence is a serious one and the guideposts of the maximum sentences and the standard non-parole periods are important factors in the assessment of an appropriate sentence. Two co-offenders were sentenced. Each of them was sentenced under very different circumstances. In one case, there was significant assistance given to law enforcement authorities and, in the other case, there were significant psychiatric issues.

96. The sentencing judge discussed at length the report on the applicant by Prof Woods and took each of the subjective matters into account. Having considered all of these issues, in my view, the sentence is, nevertheless, extremely lenient. There is no appeal by the Crown for manifest inadequacy, but that does not mean that a lower sentence would not have occasioned such an appeal.

97. Given the relationship between the sentence imposed for each offence and the guideposts of the maximum sentence and standard non-parole period for each offence, together with the extraordinary leniency associated with wholly concurrent sentences, it is my view that no lesser sentence would properly reflect the general and specific deterrence and the punishment necessary for the offence of this magnitude.

98. Further, while the applicant does not suggest that there is or could be a justifiable sense of grievance with the sentences imposed on his co-offenders, a less severe sentence may excite such a grievance in one or other of those co-offenders.

99. I am firmly of the view that no lesser sentence is warranted in law and no lesser sentence would reflect properly an appropriate sentence for the offences committed.

100. For all of the foregoing reasons, I would propose that the Court make the following orders:

1. Leave to appeal granted;

2. Appeal dismissed.

101. PRICE J: I agree with Rothman J.

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Decision last updated: 06 February 2019