Mori v The Queen

[2021] NSWCCA 32

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Mori v R [2021] NSWCCA 32

Hearing dates:

4 June 2020

Decision date:

10 March 2021

Before:

Johnson J at [1];
Davies J at [2];
Ierace J at [3]

Decision:

(1) Extend time for the filing of the notice of appeal to 5 November 2019.

(2) Grant leave to appeal.

(3) Appeal dismissed.

Catchwords:

CRIME – Appeals – Appeal against sentence – Extension of time in which to appeal – Whether sentencing judge erred in assessment of objective seriousness of offence – Whether sentencing judge erred by giving inadequate discount for guilty plea – Whether applicant’s legal representation in sentencing court incompetent – Drug offences – Manufacture prohibited drug – Large commercial quantity – Supply prohibited drug – Deemed supply – Possess prohibited drug precursor

Legislation Cited:

Drug Misuse and Trafficking Act 1985 (NSW), ss 24, 24A, 25, Sch 1

Drug Misuse and Trafficking Regulation 2011 (NSW), Sch 1

Cases Cited:

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

R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102

R v Olbrich (1999) 199 CLR 270; [1999] HCA 54

TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46

Category:

Principal judgment

Parties:

Michael Kenji Mori (Applicant)
Regina (Respondent)

Representation:

Counsel:
In person (Applicant)
E Wilkins SC (Respondent)

Solicitors:
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2015/20214

 Decision under appeal 

Court or tribunal:

District Court

Date of Decision:

24 July 2017

Before:

Ellis DCJ

File Number(s):

2015/20214

Judgment

1. JOHNSON J: I agree with Ierace J.

2. DAVIES J: I agree with Ierace J.

3. IERACE J: The applicant seeks leave to appeal against a sentence of imprisonment imposed on him in the District Court at Newcastle by his Honour Judge Ellis on 24 July 2017, following his pleas of guilty to three charges pursuant to the Drug Misuse and Trafficking Act 1985 (NSW) (the Act) concerning the manufacture and possession of prohibited drugs and the possession of a precursor to be used in the manufacture of a prohibited drug.

4. The applicant appeared on his application without legal representation. He filed a notice of intention to apply for leave to appeal on 27 July 2017. No appeal was filed, and the Registrar acceded to an application to extend the period to 20 July 2018. It appears from material before the Court that between July 2018 and September/October 2019, the applicant mistakenly believed that an application had been filed. On 18 December 2018, the applicant filed a further application for an extension of time, explaining that in September or October 2018 he was advised by Legal Aid NSW to seek an extension, however he was unable to access the correct forms from prison and, as a result, sent an earlier version of the application in an incorrect form. The application was refused by the Registrar on 22 January 2019, who stated that leave would be determined by the Court. On 5 November 2019, the applicant filed an application for leave to appeal together with a document titled “Grounds of appeal”. Accordingly, there is a preliminary issue of whether leave should be granted to the applicant to file out of time, which I will consider later in this judgment.

The offences

5. On 2 February 2017, the applicant entered pleas of guilty in the District Court at Newcastle to the following three charges:

1. That between 13 January 2015 and 21 January 2015, he did take part in the manufacture of a large commercial quantity of a prohibited drug, namely, 33.43kg of methylamphetamine: s 24(2) of the Act; maximum penalty life imprisonment; a standard non-parole period of 15 years;

2. That between about 20 January 2015 and 21 January 2015, he supplied a prohibited drug, namely, 20.58g of cocaine: s 25(1) of the Act; maximum penalty 15 years imprisonment; and

3. That on 22 January 2015, he possessed a prohibited drug precursor, namely, 4.577kg of phenylpropanolamine, intending it to be used in the manufacture of a prohibited drug, namely, methylamphetamine: s 24A(1)(a) of the Act; maximum penalty 10 years imprisonment.

6. In relation to the first count, the large commercial weight for methylamphetamine at the time of the offence was 1kg: Sch 1 of the Act.

7. A statement of facts that was tendered by the Crown without objection was relevantly to the following effect. The applicant, a Canadian national, arrived in Australia on 28 August 2014. In early December 2014, he attempted, via email sent to the proprietor, to rent a remote wilderness holiday cabin at Vacy, in the Hunter Valley (the cabin), for the last two weeks of December 2014 and into early January 2015. The cabin was unavailable for rental for that period.

8. On 14 December 2014, the applicant hired a Toyota Hilux from a car rental company in Footscray, Victoria. On 7 January 2015, he rented a storage unit at Rockdale and, at about the same time, he booked the cabin for the period 13–27 January 2015. On 13 January 2015, the booking was secured by a payment of $2,535, made by the applicant at a bank in Marrickville.

9. On 20 January 2015, a cleaner attended the cabin and observed “numerous chemicals and drums of chemicals” there. No one was present at the time. The cleaner contacted the proprietor, who in turn contacted police. Police applied for a search warrant for the premises which they executed the same day and the following day.

10. Police observed a clandestine drug laboratory set up in the kitchen area. Four ceramic Dutch oven casserole dishes, electric frypans and other casserole dishes, containing brown coloured substances in various forms from liquid to crystal, were in that area.

11. On a deck of the cabin, police located numerous drums of chemicals known to be used in the refining or cutting of methylamphetamine including quantities of acetone, calcium chloride, sulphuric acid and hydrochloric acid, as well as 212 litres of methylethylketone and 27 litres of cloudy ammonia.

12. Police formed an opinion that the process of recrystallisation of methylamphetamine was occurring.

13. The contents of ten containers, being four casserole dishes and six plastic bottles, were tested and each container was found to contain an admixture that included methylamphetamine, being a total of 33.43kg, which was the basis of the first count.

14. Police located papers, medication and other personal belongings of the applicant throughout the cabin and his fingerprints on two of the casserole dishes. In the bathroom, there was one toothbrush, suggesting that only one person was staying there. They also located receipts for purchases from Bunnings, Kmart and Big W shops in Sydney, which were consistent with them being for the purchase of the casserole dishes, frying pans and electric hotplates located in the kitchen that were related to the enterprise. Packaging for the casserole dishes and Kmart brand electric hot plates were found in the cabin. This was confirmed by CCTV images of the applicant purchasing the items at the Big W shop indicated on the receipt.

15. Police also located 20.58g of cocaine with a purity of 74.5 per cent on the deck area of the cabin in a small plastic container. This was the basis of the second count.

16. The applicant was arrested on 21 January 2015 while driving the hired Toyota Hilux. He complained to police that he suffered from Attention Deficit Hyperactivity Disorder (ADHD) and depression and needed his medication that was still at the cabin. Police arranged for his medication to be brought from the cabin to the police station.

17. The following day, 22 January 2015, police executed a search warrant on the storage unit at Rockdale, seizing two glass Dutch ovens and a suitcase containing a total of 4.577kg of phenylpropanolamine, also known as norephedrine, which is a precursor used in the manufacture of prohibited drugs in Sch 1 of the Drug Misuse and Trafficking Regulation 2011 (NSW). This was the basis of the third count.

18. On sentence, the Crown tendered a statement by a forensic chemist, Nicole Gibson. Each of the ten containers held an admixture of methylamphetamine and dimethylsulfone. The four casserole dishes held 11.77kg of admixture and the six bottles held 21.66kg. The appearance of the substance in three of the four casserole dishes was described as “a golden-yellow liquid and crystals” and in the fourth as “a golden-yellow liquid”, and in each of the six bottles as “a clear liquid”.

19. The contents of the four casserole dishes were tested for purity and were found to contain a total amount of methylamphetamine of 5.552kg, the percentage of methylamphetamine in each casserole dish ranging from 37.5 per cent to 51.5 per cent, which I note is an average purity for the content of the four casserole dishes of 47 per cent. The content of the six bottles was not tested for purity of methylamphetamine.

20. In her statement, Ms Gibson expressed an opinion that the process being undertaken in the cabin was recrystallisation of methylamphetamine. She explained that there were two types of recrystallisation, being to either reduce the diluted methylamphetamine to a more concentrated form or to obtain the opposite effect, namely, to dilute concentrated methylamphetamine. Ms Gibson noted that the chemicals that were located by police in the cabin were equally capable of being deployed for either purpose, and concluded:

“The process of recrystallisation of methylamphetamine was occurring. There is insufficient evidence to determine whether the process of recrystallisation was being carried out for the purpose of purifying (refining) or ‘cutting‘ (dilution by recrystallising with dimethylsulfone).”

21. The Crown tendered expert evidence from a police officer, Detective Sergeant Stephen Papandrea, who had appropriate experience as to the purchase price of methylamphetamine on the black market. He gave a range of prices for varying quantities, depending on purity, ranging from 1g ($150 to $600) to a kilogram ($90,000 to $150,000). A common price by the “pound” (458g) was $80,000. His evidence was that a high degree of purity would be 80 per cent or more. He stated:

“Given the state the methylamphetamine at Vacy was found it [sic], it was in a more pure form … it would demand a price closer to the $150,000 per kilogram.

Based on this price the amount of 33.434 grams at a price of $150,000 per 1000 grams would give a total price for the drug located at Vacy of $5,015,100.00.”

22. Detective Sergeant Papandrea also opined that the value of the phenylpropanolamine in the third count would be $180,000.

Proceedings in the Local Court and District Court

23. The applicant was originally charged with supplying a large commercial quantity of methylamphetamine, in relation to the 33.43kg of methylamphetamine admixture, on the basis that the quantity came within s 29 of the Act, whereby having over a certain minimum quantity created an evidentiary presumption that the applicant had it in his possession for the purpose of supply (“deemed supply”).

24. In the Local Court, the applicant proposed an alternative charge in the terms of what ultimately became the first count, conditional upon certain proposed agreed facts and the withdrawal of another charge that was unrelated to the drug manufacture enterprise. The Crown rejected the offer, but the “deemed supply” charge was dismissed at committal.

25. The parties then negotiated an outcome whereby the Crown would proceed with the first count by an ex officio indictment, to which the applicant would plead guilty, and withdraw (“no bill”) the unrelated charge. The applicant would also change his plea to guilty on the second count. The applicant duly pleaded guilty to the first count on arraignment in the District Court. However, the Crown still did not accept the agreed facts proposed by the applicant, which were that: “the offending conduct of the offender be restricted to booking the house, transporting items to the house and minding items inside the house”.

26. The applicant’s plea of guilty on arraignment to the second count was contrary to his position until that time. The applicant had pleaded guilty to the third count in the Local Court.

The case for the applicant on sentence

27. At his arraignment on 2 February 2017 in the District Court at Newcastle, the applicant was represented by counsel. At the sentence hearing, which was on 24 July 2017, the applicant was represented by his solicitor.

28. Although the Crown had not accepted the agreed facts proposed by the applicant for the first count, it was submitted on his behalf that the conditions placed on his plea offer were largely consistent with his plea of guilty in the District Court and therefore he was entitled to a 25 per cent discount for that count.

29. It was submitted on behalf of the applicant that the appropriate discounts for the pleas of guilty were 12.5 to 15 per cent for the second count and 25 per cent for the third count.

30. It was submitted that the applicant’s role in the enterprise was below a managerial or executive level and that there was an absence of sophistication, evidenced by there being no security of the premises. No weapons or money were located and the confiscation of his mobile phone, with the presumed examination of its contents, did not lead to any suggestion of him being a principal figure in the enterprise.

31. The applicant was aged 29 at the time of the offences. He was not in a relationship and did not have dependents. He had no prior convictions in Canada, Australia or elsewhere. His expressed motive was to pay off debts in Canada which, it was submitted, although not a mitigating factor, placed the offences in a less serious light than motivations such as pure financial gain. A brief letter from his mother stated that the applicant was unemployed at the time he travelled to Australia, following a failed attempt to start a business, which led to him going into debt. A truck that was apparently used in the business was repossessed in early 2014.

32. The applicant had no family or friendship connections in Australia and therefore had not received, and could not expect, visits from family or friends during his custody or sentence. It was submitted that the applicant had mental health issues, which were the subject of a tendered report by a forensic psychiatrist, Dr Jonathan Adams. Dr Adams gave the following opinion:

“[The applicant] expressed his concerns about his early childhood years, and regular physical abuse by his father. He related experiencing the classical features of a post-traumatic stress disorder during his formative years, which appears to have been associated with significant anxiety and mood disturbance. Progressing into adulthood, [the applicant] appears to have suffered with recurrent persistent episodes of low mood, consistent with the diagnosis of recurrent major depression. He advised of his ongoing anxiety and panic attacks. Together with these issues, [the applicant] gave an account of his difficulties concentrating and attending to complex tasks, alongside his tendency to engage in impulsive behaviour. These are all features of attention deficit hyperactivity disorder (ADHD).

In my view it is reasonable to suggest that [the applicant’s] psychiatric history is consistent with an admixture of diagnoses, in the form of a recurrent major depressive disorder, anxiety disorder, and an attention deficit hyperactivity disorder.

[The applicant] reported his increasing use of illicit substances and alcohol during his adult years. The pattern of use he described is consistent with a substance use disorder. This would have compounded his underlying mental state.”

33. Dr Adams noted that although he had not had the opportunity to review any medical records relating to the applicant from Canada and had not been able to corroborate the applicant’s history with family members, his account was consistent with that provided earlier to treating clinicians with Justice Health. Dr Adams’ opinion was that it is reasonable to suggest that a prolonged period of incarceration, and thus the applicant’s prolonged separation from his support network in Canada, would further compromise the applicant’s mental health.

34. The letter from the applicant’s mother confirmed that the applicant had been diagnosed with ADHD and was receiving medication for that condition. She also stated that:

“[The applicant] was always a very rambunctious boy. Always into mischief and never could sit still. His father was very strict with him because of this. When he was older he was diagnosed with ADHD and is being medicated for it.”

35. There was some evidence of remorse. The applicant tendered a letter in which he explained:

“When I was in Canada, I got into trouble with my drug use and got into some debt.

I came out to Australia as I was offered to do some things for my drug dealer and I was told this would pay off my drug debt. They would pay for my expenses and I would get some more money that would help pay off my other debts.

At the time I did not really think about or understand the seriousness of what I was doing. It was my choice to do what I did, but at the time I also felt as though it was the only way out of my debt. I now can see how serious it was.”

36. The applicant went on to explain that while in custody, he had come to feel ashamed for what he had done. This came about because, through talking to others in prison, he realised how much damage was done by illegal drug use. He expressed regret for committing the offences and relief that the drugs he was manufacturing had not “hit the streets”, acknowledging that being incarcerated was “the best thing that could have happened to me”. He made similar comments to Dr Adams, which appeared in his report.

37. Tendered on behalf of the applicant were a number of TAFE certificates attesting to the applicant’s attainments in metalwork and other pursuits of a vocational nature, as well as certificates of achievement in Bible studies.

38. Other relevant subjective features of the applicant’s case on sentence were that there had been no disciplinary issues with him in prison and, combined with his absence of prior convictions and the support of his family when he is deported to Canada following his sentence, he had “good prospects of rehabilitation”.

39. In exchanges with defence counsel, the sentencing judge appeared to accept that the applicant was neither a principal in the manufacturing operation, nor the financier. However, he was the organiser and purchaser.

40. The applicant tendered sentence statistics for the offence that was the subject of the first count, generated by the Judicial Commission of New South Wales, which, both parties agreed, were of limited assistance, being of a sample of only 19 such sentences, but nevertheless indicating that three quarters of those received a total sentence of no more than 10 years.

The case for the respondent on sentence

41. The Crown submitted that a “significant discount” for the utilitarian benefit of the plea of guilty to the first count was appropriate, although it did not concede it should be 25 per cent, in view of the applicant failing to secure the changes he had sought to the facts for sentence.

42. The Crown accepted that 10 to 15 per cent was an appropriate range of discount for the second count and 25 per cent for the third count.

43. The Crown conceded that the applicant had “a reasonably compelling subjective case”. The Crown submitted, however, that the remoteness of the cabin’s location bespoke local involvement in the criminal enterprise with foreign connections, and the applicant coming to Australia expressly with the purpose of joining with them in order to commit the principal offences placed his criminality at a higher level than that of a “poor dummy”.

44. The Crown also underscored the significant quantity of the methylamphetamine involved in the first count and the degree of planning and preparation that was involved.

The remarks on sentence

45. The sentence judgment was delivered the same day as the sentence hearing.

46. His Honour said, in relation to the quantity, purity and value of the methylamphetamine:

“Essentially, it boils down to this: A quantity of methylamphetamine in the order of 33.43 kilograms was located. Eleven of those kilograms had a purity in the order of 50 per cent. The other twenty-two or so kilograms were not checked for purity. In any event, this is a large quantity and, when one looks at the estimated values, the sale of this potential crop would have involved millions of dollars.”

47. As to the applicant’s role in the criminal enterprise, the sentencing judge found that he was not the principal. He rented the vehicle, arranged and paid for the renting of the cabin and purchased the appliances required for the manufacturing process. The location of the applicant’s fingerprints on a number of those items indicated that he was more than “a mere crop sitter”, but his Honour was not satisfied beyond reasonable doubt that he was the actual “cook” or the financier of the enterprise. His Honour accepted that there were individuals higher up the chain of criminality who had financed the venture. His Honour also accepted that “some other unknown individual was responsible for the cook”.

48. His Honour found special circumstances, being some partial accumulation between the sentences; the applicant’s absence of a prior criminal history; and that this was his first sentence of imprisonment, which was lengthy. His Honour also took into account the fact that the applicant’s time in custody was harsher than for a resident Australian, since he has no family or friends in Australia. His Honour accepted that the applicant had not had a visit in the two and half years since his incarceration.

49. Other factors expressly taken into account by his Honour that were favourable to the applicant included the applicant’s letter to the Court and that of his mother; the use he had made of his time in custody to complete various TAFE and biblical study courses; the absence of sophistication of the enterprise; and that the motive, although financial in nature in order to repay debts, was not one of pure greed.

50. In relation to the report of Dr Adams, his Honour noted the diagnosis; the observation that the applicant’s history coincided with the history he had given to Justice Health clinicians; and his conclusion that it was reasonable to suggest that the applicant’s symptoms of mental illness and illicit substance and alcohol use could have compounded his judgement and rational decision-making. His Honour accepted that, consistent with authority of this Court, the evidence of the applicant’s mental health issues was relevant, although not to the extent that there was a causal connection with the commission of the offences.

51. In relation to the second count, his Honour started with a sentence of 3 years which he discounted by approximately 11 per cent, to impose a sentence of 2 years and 8 months, commencing on 21 January 2015, which was the date of the applicant’s arrest and when he went into custody, and expiring on 20 September 2017, with a non-parole period of 18 months expiring on 20 July 2016.

52. In relation to the third count, his Honour started with a sentence of 6 years which he discounted by 25 per cent, imposing a sentence of 4 years and 6 months commencing on 21 July 2015 and expiring on 20 January 2020, with a non-parole period of 2 years and 9 months, expiring on 20 April 2018.

53. In relation to the first count, his Honour started with a sentence of 15 years which he discounted by 20 per cent to 12 years imprisonment, also commencing on 21 July 2015 and expiring on 20 July 2027, with a non-parole period of 8 years, expiring on 20 July 2023.

54. The total effective sentence was 12 years and 6 months commencing on 21 January 2015, with a total effective non-parole period of 8 years and 6 months, to expire on 20 July 2023. The sentences for the first and third counts were wholly concurrent, and partially accumulated by a period of 6 months on the sentence for the second count. I note that the ratio of the total effective non-parole period to the total effective sentence is approximately 68 per cent.

Whether leave should be granted to the applicant to file the appeal out of time

55. While the Crown’s position was neutral as to whether leave to file the notice of appeal out of time should be granted, in view of the absence of legal representation for the applicant, it acknowledged that a relevant factor for consideration was that the major offence had a maximum penalty of life imprisonment.

56. In Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37, French CJ, Hayne, Bell and Keane JJ, Gageler J agreeing, noted at [30], that, in determining an application to extend time in which to seek leave to appeal from a sentence:

“The wide discretion conferred on the Court of Criminal Appeal under the Act and Rules is to be exercised by consideration of what the interests of justice require in the particular case.”

57. In this case, relevant considerations to be taken into account in favour of the applicant on that determination include: the significant overall sentence that is the subject of the application; his lack of legal representation at the time that the grant of an extension of the time within which to file an application expired and that he remains without representation; his mistaken belief that he had filed the required notice in time; and the fact that he is apparently without any ties in the Australian community, being a foreigner without financial resources at the time of his arrest. The relevance of the last factor is that he lacked the resources to call upon individuals in the Australian community to “follow up” with Legal Aid NSW and other relevant agencies.

58. I am inclined to the view that an extension of time ought be granted to the applicant to file his notice of appeal, in light of his explanation and the substantial length of the sentence imposed.

The applicant’s grounds of appeal

59. On 5 November 2019, the applicant filed a document titled “Grounds of appeal”. On 30 March 2020, he filed a document titled “Submissions”. It is apparent from both documents that he has not had assistance from a legal representative in composing them. Some of the contents of the “Submissions” document effectively raise additional grounds of appeal.

60. The applicant’s primary concern involved the evidence of Ms Gibson to the effect that only some of the methylamphetamine admixture was tested for its purity, and that she was unable to discern, on the basis of the chemicals that were located in the cabin, whether the recrystallisation process being undertaken was one of purification or cutting. The applicant was critical of how the sentencing judge applied it, which gave rise to two overlapping grounds that I paraphrase as follows:

1. In relation to the sentence for the first count, the sentencing judge erred in his determination of the value of the methylamphetamine, as a result of which his Honour overstated the seriousness of the offence and did not give the applicant the full 25 per cent discount for his plea of guilty; and

2. The applicant’s conditional offer in the Local Court to plead to a different charge of the same quantity was evidence of remorse that entitled him to a sentence discount on the first count of 25 per cent.

There were other complaints in the documents which the applicant appeared to abandon at the hearing, but for the sake of completeness and certainty, they are considered in any event. They are as follows:

3. The incompetence of the applicant’s legal representative;

4. The sentencing judge erred in not backdating the sentence for the first count to the date that the applicant entered custody, being 21 January 2015; and

5. The applicant wanted to give evidence at the sentence hearing, but was unable to do so.

1. The sentencing judge erred in his determination of the value of the methylamphetamine

61. In written and oral submissions, the applicant took exception to the last sentence of the paragraph in his Honour’s sentence remarks that dealt with the quantity, purity and value of the methylamphetamine in the first count: “the sale of this potential crop would have involved millions of dollars”. Consistently with his written submissions, the applicant submitted orally that:

“… if there’s no evidence to say that there is more than 5.5 kilograms times that by 150,000 it’s not even a million so when the judge says he’s going to treat as though it was going to be $3 million or millions of dollars that goes against … the evidence, because there’s no evidence to say … that it was going to be a cutting process. He makes the assumption that a cutting process is evidently going to happen because … you don’t find pure methamphetamine on the street but he’s making that assumption against the evidence.”

62. The applicant’s submission, which assumes that there was evidence of only 5.552kg of methylamphetamine present in the entire 33.43kg of admixture, is that since Ms Gibson was unable to conclude whether the recrystallisation process was to refine or dilute the admixture, there is no evidence to contradict the proposition that the process being undertaken was to refine it, which would have resulted in only 5.552kg of methylamphetamine being sold. At $150,000 per kilogram, it would be worth less than one million dollars, namely, $832,800. Therefore, by referring to earnings of “millions” of dollars, the sentencing judge had overstated the criminality of the recrystallisation exercise.

63. During the hearing, the sentencing judge explained his intended approach to the issue of the purity of the 33.43kg in an exchange with counsel on the evidence of Ms Gibson:

“HIS HONOUR: I don’t really even see why I need to be worried about the 5,000. I just work on the basis there was 33 kilos of material.

[CROWN]: That’s the way I’d ask you to do it, your Honour.

HIS HONOUR: A third of which had around 50 per cent and the other two-thirds we don’t know what the percentage was.

[THE APPLICANT’S SOLICITOR]: I wouldn’t argue against that.”

64. This approach, which was accepted by the applicant’s solicitor, is correct. Section 4 of the Act provides:

“In this Act, a reference to a prohibited drug includes a reference to any preparation, admixture, extract or other substance containing any proportion of the prohibited drug.”

Accordingly, an admixture of a drug is to be treated for all purposes under the Act as if it were pure.

65. The purity of the admixture, however, is relevant to its value. In the applicant’s favour, there was no evidence as to the purity of the admixture in the six bottles, and in my view the samples from the casserole dishes that were tested could not have been representative samples of the entire 33.43kg, in light of the different appearance of the admixture in the two sets of containers (a “clear liquid” in the bottles, as opposed to “golden yellow” liquid and crystals in the casserole dishes).

66. However, on the issue of value, there was a reasonable inference available to the sentencing judge from the uncontested evidence of Detective Sergeant Papandrea, that the value of the 11.77kg alone, being an average of 47 per cent pure, if sold in its bulk form and without any further recrystallisation, was worth $1,765,500. If it had been sold by the “pound”, the value would have been $2,055,895. This assumes that the other 21.66kg of admixture had no value, which of course is not the case.

67. There are also two difficulties with the applicant’s submission that the sentencing judge should have proceeded on the basis that the recrystallisation process that was under way was to achieve 100 per cent purification rather than of cutting the methylamphetamine, so that the relevant quantity for sale would have been the pure equivalent. Firstly, this submission was not put to the sentencing judge and the applicant did not tender evidence to the effect that the process was in fact one of purification, both of which he was obliged to do, if he sought to be sentenced on that basis: R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 per Gleeson CJ, Gaudron, Hayne and Callinan JJ at [25].

68. Secondly, as a matter of chemistry, Ms Gibson was unable to determine whether the recrystallisation process was to purify or dilute the methylamphetamine. However, since it was intended for the black market, in which case maximising profit was the purpose of the exercise, it is illogical to assume that the process would have been purification rather than dilution, particularly when the admixture was already at an average level of 47 per cent purity.

69. For these reasons, I reject the submission that the sentencing judge erred in his determination of the sale potential of the enterprise. I would dismiss this ground of appeal.

1. The applicant’s conditional offer in the Local Court to plead to a different charge of the same quantity was evidence of remorse that entitled him to a sentence discount on the first count of 25 per cent

70. The applicant submitted in writing that the reason he did not plead guilty to the deemed supply charge at committal, and later decided to plead guilty to a “knowingly concerned in the manufacture” count, was as follows:

“1) Regarding my discount: I had valid reason to withhold my guilty [plea]; the brief was not complete. Because of that missing evidence, the charge, which was named differently at the time, was dropped, because of that missing evidence. I was instructed that they would just efficio [sic] indict the charge and then add the missing evidence. I ended up taking the [plea] deal, for the drugs dropped at committal, anyway; the evidence still missing.

2) The missing evidence I figured out, through time and other people, is the contents of the weight in which I was charged. It is to my knowledge that it was withheld so it could look like more drugs than it would have – with the missing evidence, analysis certificate …”

71. The applicant made oral submissions in similar terms. However, in the sentence hearing, the agreed position between the parties was that the sticking point in negotiations of a plea in the Local Court to a “knowingly concerned in the manufacture” charge was that the Crown would not accept the applicant’s proposed agreed facts, which portrayed him as having a lesser role in the enterprise. The applicant’s solicitor had submitted that he was entitled to the full 25 per cent discount because the rejected proposed agreed facts and the facts ultimately agreed were “not so materially different”, whereas the Crown conceded he was entitled to “a significant discount” but not as much as 25 per cent.

72. The quantum of the discount allowed by the sentencing judge for the plea to the first count, although not 25 per cent, was very close to it and clearly within the bounds of his Honour’s discretion. Had the applicant not qualified his offer with the condition that the agreed facts depicted a lesser degree of involvement in the enterprise than he ultimately accepted, he would have been well-placed to receive a full 25 per cent discount as an exceptional circumstance to the usual rule that applies to pleas of guilty being entered for the first time on arraignment: R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102 per Howie J, McClellan CJ and Simpson J agreeing, at [31].

73. I would reject this ground of appeal.

1. Incompetence of the applicant’s legal representative

74. The applicant stated, as a ground of appeal:

“I strongly feel as though I was misrepresented, through ignorance or alternative priorities I am not certain. There are also other decisions the judge made that I do not feel he was instructed with my best intentions. I feel there was not appropriate weight placed on certain items, and that there was a very important piece of information my solicitor said he was unsure about – but new [sic] what it was on sentencing.

Also on sentencing day, my barrister was not present and so ran by my solicitor. As I am by far have no legal intelligence I took my solicitor’s word that it would make no difference. No presentence report was made and at the time – at least, I knew to have very impressive case notes – and such.”

75. This rather obliquely-expressed ground was not further developed in the “Submissions” document or in oral submissions. Its relevance can only be as to whether his quality of representation occasioned a miscarriage of justice: TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 per Gaudron J at [30]-[31].

76. The respondent submits that the material tendered by the applicant’s solicitor on the sentence hearing, including the psychiatric report, constituted an appropriate presentation of his case, and his written and oral submissions were competent.

77. A reading of the transcript of the sentence hearing does not prompt a concern as to the quality of the applicant’s representation. Indeed, the applicant’s experienced criminal solicitor pressed his client’s position skilfully, amongst other matters, persuading his Honour that his initial impression that the applicant was a principal was incorrect. He also persuaded his Honour that the applicant’s role was unsophisticated and that his role was not motivated by greed. The fact that the applicant’s barrister was unable to appear for him did not mean that he had inadequate legal representation.

78. The respondent has submitted that, since a forensic psychiatric report was to be tendered on behalf of the applicant at the sentence hearing and the applicant was unavoidably facing a long sentence of imprisonment, there was no point in ordering a pre-sentence report. I accept that submission. There may be circumstances in which, in spite of those factors, there is value in having a pre-sentence report prepared by the staff of Corrective Services NSW, but no useful purpose is apparent in this case. I note that the applicant was sentenced before the concept of sentencing assessment reports was introduced with the enactment in 2018 of s 17B of the Crimes (Sentencing Procedure) Act 1999 (NSW). The forensic report set out the applicant’s background history, mental health issues and recommendations for treatment so as to enhance his prospects of rehabilitation. As to case notes, Dr Adams stated that he had been provided with the applicant’s Justice Health medical record and certificates of achievement that had been awarded to the applicant for his successful completion of courses in prison were tendered into evidence, along with his letter and that of his mother.

79. This ground of appeal is not made out.

1. The sentencing judge erred in not backdating the sentence for the first count to the date that the applicant entered custody, being 21 January 2015

80. This ground was not developed by the applicant.

81. As noted, the sentencing judge staggered the commencement dates of each of the three sentences, which were for three discrete offences, so that the sentence for the second count commenced on the date that the applicant went into custody, being the date of his arrest, and the sentences for the first and third count commenced six months later. The effect is that the applicant will serve an additional six months for the second and third counts to the sentence for the first count, thus reflecting the principle of totality.

82. The manner in which the sentences were structured does not give rise to any concern as to severity or misapplication of principle. It appears on the face of the applicant’s submission that he was unaware that the reason that his Honour would deliberately fix a later commencement date for the longest sentence was so that the structure of the total sentence reflected the separate criminality involved in the second and third counts and complied with the principle of totality.

83. This ground is not made out.

1. The applicant wanted to give evidence at the sentence hearing but was unable to do so

84. The applicant’s ground of appeal document relevantly stated:

“I told them I cannot go to the courtroom until I receive my medication and they got mad and stormed into the cell to intimidate me to get out.”

85. In his submissions he stated:

“I did not take the stand because my medication was not brought. I also felt vulnerable taking questions from people who would withhold evidence because it suits them. I do not wish to be judged on these matters because I did not take the stand.”

86. The respondent submitted that there was little benefit in him giving evidence; he was sentenced on the basis of agreed facts, and the sentencing judge accepted most of the applicant’s subjective case and made findings that were favourable to the applicant.

87. As noted, the applicant was represented at the sentence hearing by an experienced criminal solicitor. There is no evidentiary basis to find that the applicant had instructed his solicitor that he intended to give evidence but was unable to do so because of the absence of his medication, or for some other reason. It was open to his solicitor to make an application for an adjournment, if that was so. As to the issue of vulnerability, it was a matter for the applicant as to whether he gave evidence. A decision to not do so because he did not want to be exposed to cross-examination was a matter for him. There is no evidence that any of those who appeared for the Crown improperly withheld “evidence” from the applicant. Finally, the sentencing judge did not make a finding that was adverse to the applicant because he did not give evidence.

88. This ground is not made out.

Orders

89. I propose the following orders:

1. Extend time for the filing of the notice of appeal to 5 November 2019.

2. Grant leave to appeal.

3. Appeal dismissed.

**********

Decision last updated: 10 March 2021