Nguyen v The King

[2024] NSWCCA 231

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Nguyen v R [2024] NSWCCA 231

Hearing dates:

11 October 2024

Date of orders:

13 December 2024

Decision date:

13 December 2024

Before:

Wright J at [1];
Cavanagh J at [79];
Yehia J at [80]

Decision:

(1)   Grant the applicant leave to appeal.

(2)   Dismiss the appeal.

Catchwords:

SENTENCING – objective seriousness – whether judge erred in finding that offender was a “trusted middle-man” in a hierarchy in the absence of details of the hierarchy – sentencing judge’s finding open on evidence

SENTENCING – whether aggregate sentence manifestly excessive – whether indicative sentences were individually excessive leading to the aggregate sentence being manifestly excessive – indicative sentences not individually excessive – aggregate sentence reflected totality of criminality involved and was not unreasonable or plainly unjust – aggregate sentence not manifestly excessive

Legislation Cited:

Crimes Act 1900 (NSW), s 193C(2)

Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 53A(2)(b), 54A(2)

Drug Misuse and Trafficking Act 1985 (NSW), ss 24(1), 25(2)

Cases Cited:

DL v R [2020] NSWCCA 164

DPP (Commonwealth) v De La Rosa (2010) 79 NSWLR 1; [2011] NSWCCA 194

Du Plessis v R [2024] NSWCCA 164

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

JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528

Kemp v R [2014] NSWCCA 153

Kurniawan v R [2017] NSWCCA 171

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

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

R v Edwards (1996) 90 A Crim R 510

R v Nguyen [2023] NSWDC 288

Category:

Principal judgment

Parties:

Joey Nguyen (Applicant)
Director of Public Prosecutions (Respondent)

Representation:

Counsel:
G Wendler (Applicant)
C Curtis (Respondent)

Solicitors:
LY Solicitors (Applicant)
C Curtis (Respondent)

File Number(s):

2022/00024184

 Decision under appeal 

Court or tribunal:

District

Jurisdiction:

Criminal

Citation:

[2023] NSWDC 288

Date of Decision:

23 June 2023

Before:

Judge Bourke SC

File Number(s):

2022/00024184

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant pleaded guilty in the Local Court to four charges: two charges of supplying a large commercial quantity of the prohibited drug, heroin; one charge of supplying a commercial quantity of the prohibited drug, pseudoephedrine; and, one charge of manufacturing more than the indictable quantity of the prohibited drug, methylamphetamine. The applicant also asked that three further offences be taken into account on a Form 1.

On 3 July 2023, the applicant was sentenced by Judge Bourke SC in the District Court to an aggregate sentence of imprisonment for 11 years 6 months, commencing 15 October 2022 and expiring on 14 April 2034, with a non-parole period of 7 years 6 months, expiring on 14 April 2030.

The applicant sought leave to appeal against his sentence. There were two grounds of appeal. First, that his Honour erred in finding the applicant to be a “trusted middle-man” in a “hierarchy” as there is no evidence of any details of the “hierarchy”. Secondly, the sentence imposed was manifestly excessive as the indicative sentences were individually excessive.

The principal issues raised by the grounds of appeal were:

1. whether the finding of applicant to be a “trusted middle-man” in a “hierarchy” of individuals involved in the illegal drug milieu, was open to the judge on the evidence;

2. whether the indicative sentences were individually excessive; and

3. whether in the circumstances, any indicative sentences which were individually excessive meant that the aggregate sentence was manifestly excessive.

The Court held (Wright J, Cavanagh and Yehia JJ agreeing) granting leave to appeal and dismissing the appeal:

1. When the remarks are read fairly as a whole, the sentencing judge’s use of the term “hierarchy” is to be understood as an attempt to describe in a meaningful way the level of the applicant’s involvement as being between the highest and lowest levels, “best described as a middleman”. His Honour’s findings that the applicant was a trusted participant in drug manufacture and supply and a “middleman” were open on the evidence: Wright J at [56]-[57], Cavanagh J at [79] and Yehia J at [80].

2. The applicant’s subjective case did not involve factors markedly in favour of mitigation of the sentence and some of the subjective factors in fact tended in the contrary direction. The starting points for the indicative sentences before the 25% discount were not individually excessive given the circumstances of the offending, the unchallenged assessments of objective seriousness of the offending, the applicant’s subjective factors and relevant sentencing principles: Wright J at [68]-[71], Cavanagh J at [79] and Yehia J at [80].

3. Even if it were accepted that one or more of the indicative sentences was excessive, it would not follow in the present case that the aggregate sentence was also manifestly excessive given the degree of notional concurrency and the overall criminality of the offending: Wright J at [72], Cavanagh J at [79] and Yehia J at [80].

Judgment

1. WRIGHT J: The applicant, Mr Tan Hiep (or Joey) Nguyen, seeks leave to appeal, under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW), against the aggregate sentence imposed on him by Judge Bourke SC in the District Court of New South Wales at Sydney on 3 July 2023.

Background

2. The applicant pleaded guilty in the Local Court to four charges: two charges of supplying a large commercial quantity of the prohibited drug, heroin; one charge of supplying a commercial quantity of the prohibited drug, pseudoephedrine; and, one charge of manufacturing more than the indictable quantity of the prohibited drug, methylamphetamine. The applicant also asked that three further offences: two offences of dealing with the proceeds of crime; and, one of manufacturing a prohibited drug, be taken into account on a Form 1.

3. The matter was committed to the District Court for sentencing and, on 23 June 2023, the sentence proceedings were heard before Bourke SC DCJ.

4. On 3 July 2023, the applicant was sentenced to an aggregate sentence of imprisonment for 11 years 6 months, commencing 15 October 2022 and expiring on 14 April 2034, with a non-parole period of 7 years 6 months, expiring on 14 April 2030: R v Nguyen [2023] NSWDC 288.

5. As required by s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Procedure Act), the sentencing judge indicated that the applicant would have been sentenced to the sentences set out in the table below had separate sentences been imposed instead of an aggregate sentence. These indicative sentences were after the application of a 25% discount for the applicant’s early guilty pleas. The table also includes the maximum penalty and, if applicable, the standard non-parole period (SNPP) and the indicative non-parole period (NPP) for relevant offences.

Seq	Offence	Maximum Penalty and SNPP (if applicable)	Indicative Sentence and NPP (if applicable)
1	Supply large commercial quantity of a prohibited drug, 1.4077 kg of heroin, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (DMTA) Form 1 offences: Seq 2: deal with suspected proceeds of crime ($4,710) contrary to s 193C(2) of the Crimes Act 1900 (NSW) (maximum penalty 3 years) Seq 20: deal with suspected proceeds of crime in excess of $100,000 contrary to s 193C(1) of the Crimes Act (maximum penalty 5 years) Seq 21: manufacture indictable quantity of methylamphetamine contrary to 24(1) of the DMTA (maximum penalty 15 years)	Life imprisonment SNPP: 15 years	10 years NPP 6 years 6 months
3	Supply large commercial quantity of a prohibited drug, 1.4053 kg of heroin, contrary to s 25(2) of the DMTA	Life imprisonment SNPP: 15 years	9 years NPP: 5 years 10 months
18	Supply commercial quantity of a prohibited drug, 2.0039 kg of pseudoephedrine, contrary to s 25(2) of the DMTA	20 years SNPP: 10 years	7 years NPP: 4 years 6 months
19	Manufacture indictable quantity of a prohibited drug, methylamphetamine contrary to s 24(1) of the DMTA	15 years	4 years 6 months

6. The offences for which the applicant was sentenced by Bourke SC DCJ were committed while the applicant was on parole in respect of a sentence of 15 years’ imprisonment, with a non-parole period of 9 years and 10 months. This sentence was imposed on 8 April 2011 for previous offending involving the supply of a large commercial quantity of a prohibited drug. That sentence is due to expire on 26 April 2025, but the applicant was released to parole on 26 February 2020. On 23 February 2022, the State Parole Authority revoked the applicant’s parole, from 27 January 2022.

Application for leave to appeal and proposed grounds of appeal

7. On 9 August 2024, the applicant filed his application for leave to appeal within time. He seeks leave to appeal against his sentence on two grounds as follows:

“GROUND 1

That the aggregate sentence is manifestly excessive because the indicative sentences are excessive.

GROUND 2

That the finding by the Court of a ‘hierarchy’ and the applicant’s participation in it at a particular level relevant to objective criminality i.e. ‘a trusted middleman’ was erroneous in the absence of evidence concerning details of the ‘hierarchy’.”

8. Since the second ground asserts specific error, it is appropriate to deal with that ground first and then the manifest excess ground, if necessary.

9. Given the nature of the two grounds, it is necessary to review the sentencing judge’s remarks on sentence in some detail.

Remarks on sentence

10. Bourke SC DCJ commenced his remarks on sentence by noting the offences for which the applicant was to be sentenced and the Form 1 offences, as well as the maximum penalties and standard non-parole periods, where applicable. It was also recorded that the applicant had pleaded guilty at an early stage and a discount of 25% was to be applied.

Factual findings

11. The sentencing judge noted that the facts were agreed and summarised his factual findings, including what is set out below.

12. On 14 October 2021 police located a clandestine drug laboratory and approximately two kilograms of pseudoephedrine in a house in Canley Heights. Surveillance showed that the applicant attended the house on a number of occasions in late September 2021 and accessed internet banking from the house in July and August 2021.

13. There was a message from one of the contacts on the applicant’s telephone concerning “ice”, or high grade methylamphetamine, in reply to which the applicant sent a screen shot image of a police media release referring to the seizure of pseudoephedrine from the Canley Heights house and a text which read “my friend I lost two sudo”. It was agreed that “two sudo” was a reference to the two kilograms of pseudoephedrine that had been seized by police from the house and that were the subject of the sequence 18 offending, supplying a commercial quantity of prohibited drug, 2.0039 kilograms of pseudoephedrine, contrary to s 25(2) of the DMTA.

14. It was also noted to be an agreed fact that nearly $50,000 in cash deposits by the applicant over a period of eight months and more than $100,000 in domestic transfers of money through National Australia Bank accounts prior to 18 November 2021 were reasonably suspected of being the proceeds of drug supply and manufacture. The approximate sum of $150,000 in transactions was identified by the sentencing judge as being the subject of the sequence 20 offending, dealing with suspected proceeds of crime in excess of $100,000 contrary to s 193C(1) of the Crimes Act, which was to be taken into account on a Form 1.

15. Bourke SC DCJ then turned to the applicant’s involvement with a house in Allawah. His Honour’s findings included that on 15 January 2022, the applicant picked up his co-offender, Mr Wang, from his home, took him to the Allawah house where they stayed for about an hour and then dropped Mr Wang back at his home. On 26 January 2022, in an intercepted telephone conversation with Mr Wang, the applicant asked if Mr Wang had been to the house and he said he had. The applicant then said that he had gone to the house yesterday and put a number of items there which he asked Mr Wang to put away. The two then arranged to meet at the house that night. They arrived separately at about midnight and they were observed at the house by police surveillance which commenced at about 6:15 am the next morning, 27 January 2022. At about 6:35 am Mr Wang left the house and drove away in his car but returned shortly afterwards. Between about 8:00 and 9:00 am, the applicant left the house with a backpack which he put in his car, then went back into the house, left and drove away and returned, went inside and then came out of the house again and went to his car where he opened the backpack, moved items and drove away.

16. The applicant was then followed and stopped by police in Hurstville. His vehicle was searched and inside the backpack were found four blocks of heroin weighing a total of 1.4077 kilograms. This is the subject of the sequence 1 offending of supplying a large commercial quantity of prohibited drug contrary to s 25(2) of the DMTA.

17. Police also found laboratory glassware in bubble wrap and $2,700 in cash in the car, and $2,010 in cash on the applicant. The cash was the subject of the sequence 2 offending, dealing with suspected proceeds of crime contrary to s 193C(2) of the Crimes Act. The applicant was arrested and taken into custody.

18. Later, on 27 January 2022, police forced entry into the Allawah house where they found an active clandestine drug laboratory including:

1. a tube containing 34.45 grams of methamphetamine at 53% purity;

2. a metal reaction vessel containing 970 grams of methamphetamine at 1% purity;

3. numerous other items with residue of methamphetamine on them including a 20-litre flask, a 5-litre plastic container and a 10-litre plastic container;

4. an in-line duct filter, a metal condenser, a metal tube elbow point, a Ph meter pen, electric hotplates, thermometer, plastic bulb pipette, scales and gloves;

5. four blocks of compressed heroin weighing a total of 1.4053 kilograms, which are the subject of the sequence 3 offending, supplying a large commercial quantity of a prohibited drug contrary to s 25(2) of the DMTA; and

6. drug precursors including 3,300 grams of pseudoephedrine, about 83 grams of ephedrine, about 2,270 grams of hypo-phosphorous acid, about 9,600 grams of iodine, and a quantity of P₂P, which were agreed to be indicative of the manufacture of prohibited drugs.

19. The applicant’s fingerprint was found on a glass beaker containing a white crystalline substance and his DNA was found on several latex gloves and a mask and a handle from a glad wrap roller. DNA from two other identified persons was also found in the premises.

20. There was expert opinion that an indictable quantity of methylamphetamine had been manufactured at the Allawah house and a commercial quantity of methylamphetamine could be manufactured using the chemicals found at the house.

21. This manufacture of at least an indictable quantity of methylamphetamine at the Allawah house was identified later in the remarks as the subject of the sequence 19 offending contrary to s 24(1) of the DMTA.

22. On 28 January 2022 police executed a search warrant at the applicant’s residence in Liverpool where indications of the manufacture of methylamphetamine were found including laboratory equipment and precursor chemicals, together with a driver’s licence in the name of Leo Wai and various mobile phones and laptop computers. A drug manufacturing expert concluded that a quantity of methylamphetamine had been manufactured in the premises. This appears to be the offending contrary to s 24(1) of the DMTA which is the subject of sequence 21, which was part of the offending taken into account on the Form 1.

23. A Cellebrite analysis of the applicant’s phone revealed messages sent from that phone on 17 October 2021 providing his address and messaging “Wang” saying “drop by my place […] Liverpool. Give you the keys and address”.

Assessments of objective seriousness

24. Bourke SC DCJ then addressed his assessments of objective seriousness.

25. As to sequence 1, a deemed supply relating to about 1.4 kilograms of heroin found in the applicant’s backpack upon his arrest, his Honour observed that the heroin was “of high purity and comfortably in excess of the large commercial quantity”. His Honour found that, even though there was no actual supply, the applicant had involved himself in the offence in the expectation of financial gain. His Honour then said:

“Having regard to all the evidence which includes the offender being engaged with drug possession and manufacture at more than one location I consider that his position was at least that of a trusted middleman in a hierarchy the details of which I cannot determine.”

26. His Honour went on to assess the objective seriousness of sequence 1 as being “slightly below the mid-range of objective seriousness”.

27. With respect to sequence 3, the deemed supply relating to another approximately 1.4 kilograms of heroin found at the Allawah house, his Honour observed that the heroin was of “high purity”, “comfortably more than the large commercial quantity” and found that the applicant also intended to obtain personal financial gain from the offence. His Honour concluded, having regard to all the evidence, that the applicant was “a trusted middleman in some sort of hierarchy” and that the objective seriousness of that offence fell “slightly below the mid-range of objective seriousness”.

28. Sequence 18 related to approximately two kilograms of pseudoephedrine at the Canley Heights house and, in that regard, his Honour observed that the quantity of drug involved was well in excess of the commercial quantity and of high purity. His Honour found that the applicant’s object was financial gain and that the applicant “held at least a role as a trusted middleman”. His Honour assessed the objective seriousness of this offence being “near the mid-range of objective seriousness”.

29. For sequence 19, the manufacturing of at least an indictable quantity of methylamphetamine offence, his Honour saw “no basis to conclude that the offender occupied any different role in relation to this offence than he did with respect to the above three offences”. However, given that his Honour was unable to find that more than five grams had been manufactured, and of unknown purity, his assessment was that the offence fell “below the mid-range but not at the lowest range of objective seriousness”.

30. In making his assessments of objective seriousness of the various offences, the sentencing judge said that he had taken into account his conclusions as to the applicant’s moral culpability. His Honour also referred to, but rejected the Crown’s submissions that:

“the [applicant] was a ‘vital cog’ in a criminal enterprise and acted as an expert consultant/contractor employed by various syndicates to assist in the manufacture of methylamphetamine, and that he also manufactured methylamphetamine for his own supply”

and

“the [applicant] was well connected to suppliers or importers of heroin, and to major organised crime networks, and clearly in a position of trust.”

31. The sentencing judge said that while there must be very strong suspicions that these submissions were correct, it was not possible to make such findings beyond reasonable doubt. His Honour’s summary of the findings available from the evidence was as follows:

“Like many drug enterprises, there was no doubt a network of individuals, performing a variety of tasks, and with differing levels of seniority, but as with many such enterprises the details cannot be determined on the basis of the limited evidence available to the court. Nonetheless, and as I have said, I am satisfied that in relation to each of the offences the offender occupied a centrally important and trusted role, best described as a middleman, in a hierarchy of persons wo are all engaged for the purposes of profit.”

Subjective case

32. The sentencing judge noted that the applicant’s relevant subjective case was presented by way of written material. He was 45 years old at the time of the sentence proceedings and had come to Australia when he was three. The psychological report of Mr Chris North noted no history of educational issues except for repeating Year 11 before leaving school. The applicant had a history of some work as a tiler and a forklift driver, interrupted by periods of incarceration and had described a history of cannabis use from age 17 and heroin on a daily basis from about age 20 to 25.

33. It was found that his criminal history did not at all assist him, and the fact that he was on parole for a drug supply offence at the time of the offending for which he was being sentenced was a matter that aggravated his overall criminality.

34. The sentencing judge referred to the applicant’s married life but noted that he had spent much of this in custody. His Honour noted the applicant’s wife’s tragic death in October 2021 from an apparent drug suicide, which was said to have led to an escalation in the applicant’s use of drugs and engagement with reckless behaviour. Although there were no overt symptoms of post-traumatic stress the applicant did report symptoms of depression, emotional numbing, sleep difficulties and pessimistic thinking, acknowledging that he had not yet addressed the grief relating to his wife’s death and the trauma associated with his discovery of her body. The psychologist concluded that the applicant satisfied the diagnostic criteria for stimulant use disorder, amphetamine type substance – moderate, and concluded that he would benefit from engagement in a number of treatment programs. Given the timing of his wife’s death and the applicant’s earlier involvement in the offending, the sentencing judge concluded that it could not be said that the applicant’s engagement in the deemed supply offence in sequence 18 was contributed to in any way by the death of his wife. As to the offending other than sequence 18, however, his Honour was satisfied that the aftermath of his wife’s death reduced to a material degree the applicant’s moral culpability for that offending, but his moral culpability remained relatively high.

35. His Honour also accepted that the aftermath of his wife’s death engaged the principles in DPP (Commonwealth) v De La Rosa (2010) 79 NSWLR 1; [2011] NSWCCA 194 (De La Rosa). In addition, the need for denunciation was also reduced “to some degree”.

36. The sentencing judge referred to the evidence concerning the applicant’s family’s difficult circumstances but accepted that such matters could only significantly reduce an otherwise appropriate sentence if they were exceptional as explained in R v Edwards (1996) 90 A Crim R 510 at 517. It was recorded that Senior Counsel for the applicant, on sentence, conceded that the present circumstances were not so exceptional as to engage the principles in that case. Nonetheless, his Honour said that increased hardship to the applicant’s family by reason of his imprisonment was one of the matters taken into account in determining the appropriate sentence.

37. Bourke SC DCJ found that there was “some degree of remorse in this case” based on the applicant’s letter apologising for his offending and its consequences, the psychologist’s report which noted that he accepted responsibility for his offences and expressed regret, and other circumstances.

38. As to the applicant’s prospects of rehabilitation and the likelihood of re-offending, it was concluded that:

“… notwithstanding the offender’s prior poor criminal history, I assess his prospects of remaining offence free as guarded but perhaps reasonable, although largely dependant on whether he can maintain the determination to obtain treatment and to distance himself from past bad influences and bad habits”.

39. His Honour found that there was a risk of institutionalisation, which was a matter to be taken into account on the question of special circumstances.

40. As to the issue of parity with the sentences for Mr Wang and another co-offender, it was noted that the Crown submitted that in the circumstances there were no parity issues that needed to be considered and no submission to the contrary had been made on behalf of the applicant. In those circumstances, the sentencing judge was satisfied that there was no parity issue that arose.

Other matters

41. In respect of the three offences on the Form 1 to be taken into account when sentencing for the sequence 1 offence, Bourke SC DCJ noted that the Court could take such matters into account by giving greater weight to the need for personal deterrence and to the community’s entitlement to extract retribution for serious offences. Both of those matters were found to be of relevance in the circumstances and ought to exert some degree of upwards pressure on the sentence to be imposed for sequence 1.

42. The sentencing judge referred expressly to having regard to totality principles and the extent to which there should be any notional accumulation in imposing an aggregate sentence and the need to avoid a sentence which was inappropriately crushing. His Honour concluded that the offences ought to be viewed as a continuing course of conduct over a period of some months involving related offending and thus, although there should be some notional accumulation, it should be “fairly limited” and the indicative sentences should be treated as largely concurrent.

43. His Honour recorded that he had had regard to s 3A of the Sentencing Procedure Act, the need for general deterrence in relation to drug offences, the fact that he was satisfied that the s 5 threshold had been crossed and noted that he intended to impose an aggregate sentence.

44. A finding of special circumstances was made on the basis of the “qualified positive findings” regarding prospects of rehabilitation, the need for a lengthy period of supervision, the risk of institutionalisation, and hardship in custody occasioned by Covid and the untreated grief associated with his wife’s death.

45. On the question of backdating, his Honour noted that the applicant’s parole had been revoked and he was then serving the balance of his term which would expire on 26 April 2025. Given that the applicant had been arrested for the current offences on 27 January 2022, Bourke SC DCJ held that the more appropriate course was to backdate the sentence partly so as to give the applicant the benefit of approximately half of the period spent in custody to the date of sentence.

Sentence

46. His Honour then identified the indicative sentences and imposed the aggregate sentence set out in the table below [5].

Ground 2

47. The specific error effectively asserted in ground 2 was that the sentencing judge erred by finding that there was a “hierarchy” and that the applicant participated in that hierarchy at a particular level, as “a trusted middleman”, when there was no evidence concerning details of the “hierarchy”.

Submissions

48. In relation to the second ground of appeal, the applicant accepted that he had to demonstrate error of the type referred to in House v The King (1936) 55 CLR 499; [1936] HCA 40 in relation to the finding that the applicant was a “trusted middleman” in a “hierarchy”. It was submitted that in this case such a finding was erroneous because there was no evidence of “some sort of linear hierarchy of criminal responsibility” and because, as was accepted by the sentencing judge, the details of the hierarchy could not be determined. The applicant referred to the comments of McCallum J (as her Honour then was) in Kemp v R [2014] NSWCCA 153 concerning an assumed vertical or linear hierarchy in relation to drug supply. It was then in effect submitted that a finding that the applicant was a “trusted middleman” could not on the evidence be made beyond reasonable doubt.

49. The Crown submitted that the sentencing judge had not assumed that there was a vertical or linear hierarchy but rather had made the more limited finding that there was “no doubt a network of individuals, performing a variety of tasks, and with differing levels of seniority”, but the details could not be determined on the limited evidence available to the court. It was submitted that there was sufficient evidence to support the finding, in the circumstances, that the applicant “occupied a centrally important and trusted role, “best described” as a “middleman”.

Consideration

50. It is well established that when determining the objective seriousness of drug supply offences, the sentencing judge is to have regard to the involvement, or role, of the offender in supplying prohibited drugs to the public: Kurniawan v R [2017] NSWCCA 171 (Kurniawan) at [48] (N Adams J, with Bathurst CJ and McCallum J agreeing). That task can, however, only be undertaken based on the evidence before the sentencing judge: Kurniawan at [48].

51. A sentencing judge is not required to go behind the material before the Court in order to make speculative findings as to the particular acts that an offender performed in supplying drugs; nor is it necessary to define the precise role of an offender in supplying drugs: Kurniawan at [52].

52. Error in the exercise of the sentencing discretion may arise in the circumstances described by McCallum J (Simpson and Adams JJ agreeing) in Kemp v R [2014] NSWCCA 153 at [33] where:

“[i]t is … assumed, without analysis, that the supply of drugs involves a vertical or linear hierarchy from manufacturer to end buyer … in which the seriousness of the role of any individual participant is necessarily greater the closer that person is to the ultimate supplier.”

53. The point that McCallum J went on to make was that there may in fact be such a hierarchy in some instances but this could not be elevated to the status of a legal principle or presumption. Each case must be assessed on its own facts according to the material before the court.

54. In the present case, the only evidence before the sentencing judge relevant to the role or involvement of the applicant was what was contained in the agreed facts. His Honour was careful not to make findings in relation to the applicant’s role and involvement, such as those sought by the Crown, of which he could not be satisfied beyond reasonable doubt. In addition, the sentencing judge explicitly acknowledged that in so far as the applicant participated in a hierarchy, the details of that hierarchy could not be determined on the evidence before him.

55. Bourke SC DCJ did not, however, fall into the error of assuming, without analysis, that the supply of drugs in the present case involved a vertical or linear hierarchy with particular levels of participation. Rather, his Honour’s more nuanced finding was that “there was no doubt a network of individuals, performing a variety of tasks, and with differing levels of seniority, but … the details cannot be determined on the basis of the limited evidence available to the court”. Such a finding was well open on the evidence in the agreed facts which has been summarised above and which included the applicant’s involvement in: the deemed supply of greater than a large commercial quantity and a commercial quantity of a number of different prohibited drugs; the manufacture of prohibited drugs at various locations at different times; the use of encrypted communications to contact and direct other persons also involved with the supply and manufacture of those prohibited drugs; and, the dealing with the suspected proceeds of crime well in excess of $100,000. Furthermore, the evidence established that the applicant was trusted to transport more than 1.4 kilograms of heroin, trusted to be in the drug laboratories, his DNA and fingerprints having been found on some of the equipment, and trusted to be in the house where approximately 1.4 kilograms of heroin was found. Further, the inference was clearly available that others, including Mr Wang and Mr Chen, were also involved in some ways in the manufacture, distribution and supply or potential supply of the prohibited drugs to the public. The fact that the applicant instructed Mr Wang to put certain items at the Allawah house away supported a finding that the applicant gave directions as to what was to be done in relation to the drug laboratory at that house.

56. The sentencing judge concluded his remarks on the objective seriousness of the applicant’s offending with the observation that he was “satisfied that, in relation to each of the offences, the [applicant] occupied a centrally important and trusted role, best described as a middleman, in a hierarchy of persons who are all engaged for the purposes of profit”. His Honour’s use of the word “hierarchy” in this context does not establish error. The passage quoted from the remarks and, in particular, the reference to a hierarchy is to be understood in the context of the remarks as a whole, including the finding that “there was … a network of individuals, performing a variety of tasks, and with differing levels of seniority” but the details of that network or hierarchy could not be determined. When the remarks are read fairly as a whole, his Honour’s use of the term “hierarchy” is to be understood as an attempt to describe in a meaningful way the level of the applicant’s involvement as being between the highest and lowest levels, “best described as a middleman”. This was one legitimate way of conveying the same point as counsel for the applicant, in oral submissions, attempted to convey when he said that he accepted “that the applicant was involved in a serious level, at some level, of the illegal drug milieu”.

57. Put another way, on a fair reading of the remarks on sentence, his Honour’s descriptions of the involvement of the applicant in the supply of prohibited drugs were a conscientious attempt to carry out the required task of assessing the objective seriousness of the offending by reference, inter alia, to the involvement, or role, of the applicant in the supply of prohibited drugs to the public based on the evidence before him. His Honour’s findings that the applicant was a trusted participant in drug manufacture and supply and a “middleman” were open on the evidence and hence, in my view, there was no error as contended under ground 2.

58. For these reasons, while ground 2 was arguable and I would grant leave to appeal in respect of that ground, I would dismiss the appeal on that ground.

Ground 1

59. The first ground of appeal was that the aggregate sentence was manifestly excessive because the indicative sentences were excessive.

Submissions

60. The applicant referred to the principles relating to whether an aggregate sentence is manifestly excessive. In substance, the applicant’s contention was that the indicative sentences for sequences 1, 3, 18 and 19, after adjusting for the discount of 25%, were excessive having regard to the quantities of drugs involved, where that could be determined, and the applicant’s compelling subjective features. As a result, the aggregate sentence was also manifestly excessive.

61. The Crown’s submissions also referred to relevant principles in relation to whether a sentence is manifestly excessive. In particular, it was submitted that whether or not an aggregate sentence is manifestly excessive is to be viewed against the total criminality involved. It was contended that the aggregate sentence in the present case was not manifestly excessive having regard to the matters relating to objective seriousness raised in respect of ground 2, the maximum penalties and standard non-parole periods and the various objective and subjective circumstances in the present case which were raised in the submissions.

Consideration

62. The principles in relation to manifest excess as a ground of appeal against an aggregate sentence were not in dispute. They can therefore be referred to relatively briefly.

63. Only the aggregate sentence, being the operative order, is amenable to appeal. The indicative sentences recorded in accordance with s 53A(2) of the Sentencing Procedure Act are not themselves amenable to appeal, although they may be a guide to whether error is established in relation to the aggregate sentence: JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528 (JM) at [40] (R A Hulme J, with Hoeben CJ at CL and Adamson J agreeing).

64. Intervention in respect of a sentence on the ground of manifest excess is only warranted where the sentence imposed is so far outside the range of sentences available that it can be concluded there must have been error: Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [76] (R A Hulme J, with Bathurst CJ, Leeming JA, Hamill and N Adams JJ agreeing). In order to establish that that a sentence is manifestly excessive, an applicant must establish that the sentence was unreasonable or plainly unjust, in a context where there is no single correct sentence and sentencing is not a precise mathematical exercise: DL v R [2020] NSWCCA 164 at [107] (Hoeben CJ at CL, with Fagan and Cavanagh JJ agreeing) and the authorities there cited.

65. One factor to be considered in the assessment of whether an aggregate sentence is manifestly excessive is whether the sentence reflects the totality of the criminality involved: Du Plessis v R [2024] NSWCCA 164 at [75] (N Adams, Ierace and Sweeney JJ) citing JM at [40].

66. In sentencing, the maximum penalty applicable in respect of an offence for which an offender is to be sentenced provides a yardstick, when balanced with all other relevant factors, in light of which the appropriate sentence is to be determined: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 (Markarian) at [31] (Gleeson CJ, Gummow, Hayne and Callinan JJ). In particular, the maximum penalty commonly invites comparison between the case with which a court is dealing and cases falling within the category of the "worst case": Markarian at [31]. Similarly, a standard non-parole period, where applicable, relevantly “represents the non-parole period for an offence … that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness”: s 54A(2) of the Sentencing Procedure Act.

67. In the present case, the aggregate sentence was imprisonment for 11 years 6 months, with a non-parole period of 7 years 6 months. The applicant’s principal contention was that the starting points for the indicative sentences (set out in the table after [5] above) prior to the application of the 25% discount were excessive and as a result the aggregate sentence was manifestly excessive. I do not accept that submission in light of a number of considerations.

68. First, the applicant’s subjective case did not involve factors which tended markedly in favour of mitigation of the sentence. In fact, some of the subjective factors tended in the contrary direction. These included the fact that he was on parole for previous similar drug offending at the time of the offending and his criminal history disentitled him to any leniency and heightened the need for specific deterrence. In addition, the factors tending in favour of mitigation were generally qualified. For example, there was held to be only “some degree of remorse” and his prospects of remaining offence free were “guarded but perhaps reasonable” if he obtained treatment and avoided past bad influences and bad habits. The risk of institutionalisation was taken into account in a generous finding of special circumstances leading to a non-parole period of approximately 65% of the aggregated sentence. The hardship to the family was not so exceptional as to attract a significant reduction on that account. Finally, the applicant’s mental health issues relating to the death of his wife were found to reduce to a material degree his moral culpability in relation to the offences other than sequence 18 on the basis that the principle in De La Rosa was found to be engaged “to some degree”.

62. Secondly, the starting points for the indicative sentences before the 25% discount were not individually excessive given the circumstances of the offending, the unchallenged assessments of objective seriousness of the offending, the applicant’s subjective factors and relevant sentencing principles.

63. In particular, for the sequence 1 offending, the undiscounted starting point was 13 years 4 months with NPP of 9 years 6 months. Given all the relevant circumstances set out in the remarks on sentence including, inter alia, the applicant’s subjective case, the fact that the applicable maximum penalty was life imprisonment with SNPP of 15 years, the offending was “slightly below the mid-range of objective seriousness”, two offences of dealing with suspected proceeds of crime (sequences 2 and 20) and one offence of manufacturing not less than an indictable quantity of methylamphetamine (sequence 21) were to be taken into account on a Form 1 exerting some upward pressure on the sentence and general deterrence was of some significance given the nature of the offending, the starting point was not so far outside the range of available sentences as to bespeak error. Nor was it unreasonable or plainly unjust.

64. The same conclusion that the indicative starting points for the other sequences were also not excessive should also be reached for substantially the same reasons, notwithstanding taking into account the applicant’s subjective case. In particular:

1. the starting point for the sequence 3 offending of 12 years’ imprisonment with NPP of 7 years 9 months (approximately) was not excessive in all the circumstances including, inter alia, the maximum penalty was life imprisonment with SNPP of 15 years, the offending was “slightly below the mid-range of objective seriousness” and all aspects of the applicant’s subjective circumstances;

2. the starting point for the sequence 18 offending of 9 years 4 months’ imprisonment with NPP of 6 years was not excessive in all the circumstances including, inter alia, the maximum penalty was 20 years with SNPP of 10 years, the offending was “near the mid-range of objective seriousness” and all aspects of the applicant’s subjective circumstances; and

3. the starting point for the sequence 19 offending of 6 years’ imprisonment was not excessive in all the circumstances including, inter alia, the maximum penalty was 15 years, the offending was “below the mid-range but not in the lowest range of objective seriousness” and all aspects of the applicant’s subjective circumstances.

72. Furthermore, even if it were accepted, contrary to my conclusions, that one or more of the indicative sentences were manifestly excessive, it would not follow in the present case that the aggregate sentence was also manifestly excessive.

73. Despite the fact that there was separate and distinct offending related to three different locations over a significant period of time, the aggregate sentence involved a very substantial degree of notional concurrence between the indicative sentences. One way in which to express the degree of notional concurrence is to observe that the indicative sentences for sequences 3, 18 and 19, which totalled 20 years 6 months, only added 1 year 6 months to the indicative sentence of 10 years for sequence 1 to yield the aggregate sentence of 11 years and 6 months. In these circumstances, any potential excess in the indicative sentences did not lead to the aggregate sentence being manifestly excessive.

74. This conclusion is reinforced by the consideration that the aggregate sentence was also made partially concurrent with the remainder of the sentence being served by the applicant as a result of the revocation of his parole in respect of the earlier unrelated serious drug offending.

75. In my view, there was no basis to conclude, having regard to the totality of the criminality involved and all the relevant subjective and objective circumstances, the purposes of sentencing and other applicable sentencing principles, that the aggregate sentence nominated by the sentencing judge was unreasonable or plainly unjust.

76. Finally, I am confirmed in my conclusion that the aggregate sentence was not manifestly excessive by the observation of counsel for the applicant during oral submissions in relation to ground 2. The applicant’s counsel submitted that if this Court came to resentence it would have to be accepted that “any downward adjustment … would be very modest in the circumstances, and … despite the fact there may be a defect [in the sentencing process] that this Court may come to a conclusion that no other sentence less severe is appropriate”. The latter comment in the submission appears to be inconsistent with the aggregate sentence being outside the range of available sentences.

77. For all these reasons, I would grant leave to appeal but reject the first ground of appeal.

Conclusion and Orders

78. Accordingly, I propose the following orders of the Court:

1. Grant the applicant leave to appeal.

2. Dismiss the appeal.

79. CAVANAGH J: I agree with Wright J.

80. YEHIA J: I have had the considerable advantage of reading the judgment of Wright J in draft. I agree with his Honour’s proposed orders and the reasons provided.

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Decision last updated: 16 December 2024