Osman v R

[2020] NSWCCA 78

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Osman v R [2020] NSWCCA 78
Hearing dates:	19 August 2019
Date of orders:	22 April 2020
Decision date:	22 April 2020
Before:	Johnson J at [1] Price J at [2] Lonergan J at [3]
Decision:	(1) Leave to appeal against sentence allowed. (2) Appeal dismissed.
Catchwords:	CRIMINAL LAW — particular offences — drug offences — supply prohibited drug — indictable quantity — traffickable quantity — possession of prohibited drug SENTENCING — appeal against sentence — severity — whether sentence manifestly excessive — whether sentencing judge erred by failing to take into account a legislative amendment that allowed the offence to be dealt with summarily — grounds not made out SENTENCING — relevant factors on sentence — multiple offences — totality — whether sentencing judge erred by failing to properly apply the totality principle — ground not made out
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Appeal Act 1912 (NSW) Criminal Procedure Act 1986 (NSW) Drug Misuse and Trafficking Act 1985 (NSW)
Cases Cited:	Bugmy v R (2013) 249 CLR 571; [2013] HCA 37 Dagdanasar v R (2010) 57 MVR 230; [2010] NSWCCA 310 GS v R [2016] NSWCCA 266 Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 Kandemir v R [2018] NSWCCA 154 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 R v Doan (2000) 50 NSWLR 115; [2000] NSWCCA 317 R v Hammoud (2000) 118 A Crim R 66; [2000] NSWCCA 540 R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 R v Jones [2003] NSWCCA 54 R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381 R v MJR (2002) 54 NSWLR 368; [2002] NSWCCA 129 R v Oliver (1980) 7 A Crim R 174 R v Ronen (2006) 161 A Crim R 300; [2006] NSWCCA 123 R v Said El Masri [2005] NSWCCA 167 R v Sandford (1994) 33 NSWLR 172 RCW v R (No 2) (2014) 244 A Crim R 541; [2014] NSWCCA 190 Taitoko v R [2020] NSWCCA 43 ZA v R (2017) 267 A Crim R 105; [2017] NSWCCA 132 Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44
Category:	Principal judgment
Parties:	Wagdi Osman (Applicant) Regina (Respondent)
Representation:	Counsel: T Quilter (Applicant) R Ranken (Respondent)   Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2017/228155
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Citation: --- Date of Decision: 12 October 2018 Before: Judge O’Rourke SC File Number(s): 2017/228155

Judgment

1. JOHNSON J: I agree with Lonergan J.

2. PRICE J: I agree with Lonergan J.

3. LONERGAN J: Mr Wagdi Osman seeks leave to appeal, pursuant to s 5(1) (c) of the Criminal Appeal Act 1912 (NSW), against a sentence imposed at the District Court at Campbelltown on 12 October 2018. He pleaded guilty to two counts of supply prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW). A further smaller drug supply offence was taken into account on a Form 1.

4. The offences to which the applicant pleaded guilty were:

1. One count of supply indictable quantity - 21.88 g - of methylamphetamine contrary to s 25(1) of the Drug Misuse and Trafficking Act which carries a maximum penalty of 15 years imprisonment and/or 2000 penalty units ($220,000).

2. One count of supply traffickable quantity - 4.07 g - of cocaine contrary to s 25(1) of the Drug Misuse and Trafficking Act which carries a maximum penalty of 15 years imprisonment and/or 2000 penalty units ($220,000).

3. Taken into account on a Form 1, a single count of possession - 0.35 g - of heroin contrary to s 10(1) of the Drug Misuse and Trafficking Act which carries a maximum penalty of 2 years imprisonment and/or 200 penalty units ($22,000).

5. After applying a 25% discount for his guilty pleas, the applicant was sentenced to an aggregate term of 2 years and 8 months with a non-parole period of 1 year and 8 months, to commence on 23 September 2018.

6. In accordance with s 53A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the sentencing judge indicated the separate sentences which would have been imposed had an aggregate sentence not been employed. Those indicative sentences were as follows in each case after a reduction of 25% for the plea: 2 years and 6 months imprisonment for the supply of methylamphetamine, taking into account the possession offence on the Form 1, and 18 months imprisonment for the supply of cocaine.

7. The applicant was arrested shortly after the offending on 26 July 2017 and has been in custody since that time. There is some complexity associated with his time in custody because of other offending which meant that at the time of this offending, the applicant was subject to various forms of conditional liberty.

8. On 16 May 2018, the applicant pleaded guilty and was committed for sentence. After an initial adjournment from 25 May 2018, the sentence hearing took place on 4 October 2018.

9. In the intervening period, the applicant was charged with further offences and was also called up by the Fairfield Local Court for breaching a community service order and a good behaviour bond.

10. First, on 6 June 2018, the applicant was charged with destroy/damage property and common assault, both offences said to have taken place on 22 June 2017.

11. Second, on 19 June 2018, the applicant was called up by the Fairfield Local Court for breaching the community service order that had been imposed upon him for an offence of stalk/intimidate committed on 27 December 2015. The Court revoked the community service order and sentenced the applicant to a term of imprisonment of 6 months commencing 27 July 2017 and concluding 26 January 2018.

12. On 26 July 2018, the Burwood Local Court dealt with the applicant for the June 2017 offending: one offence of destroy/damage property and one offence of common assault. The applicant was also called up for breaching the s 12 bond imposed for a previous offence of drive whilst disqualified. For that offence, the Court imposed a (fully backdated) sentence of imprisonment for 8 months, commencing on 26 July 2017 and concluding 25 March 2018. For the destroy/damage property and common assault, the applicant was sentenced to wholly concurrent sentences of 12 months imprisonment, commencing on 19 July 2018 and concluding 18 July 2019. Each sentence had a non-parole period of 6 months, which expired on 18 January 2019.

13. As a consequence of the combination of his arrest in July 2017 and the sentences imposed by the Fairfield and Burwood Local Courts, at the time of sentence by O’Rourke SC DCJ in October 2018, the applicant had, between March and July 2018, spent a total of 3 months and 25 days in custody solely referable to the drug offences.

14. A notice of appeal against sentence was filed on 16 May 2019.

15. The notice contains three proposed grounds of appeal:

1. The sentencing judge failed to properly apply the totality principle.

2. For count one, the sentencing judge erred by failing to take into account a legislative amendment that allowed offences of this type to be dealt with summarily.

3. The sentence is manifestly excessive.

16. These reasons adopt the following structure:

1. The Agreed Facts on sentence

2. The proceedings on sentence, including exchanges with Counsel addressing the other offending and matters going to totality and sentence calculations

3. The reasons given by the sentencing judge

4. The grounds of appeal summarising within each ground the parties’ submissions and the relevant reasons of the sentencing judge

The Agreed Facts on Sentence

17. The following Agreed Facts were signed by the applicant and his solicitor on 4 October 2018 and tendered on sentence:

1. The Offender in this matter is Waldi Cabir OSMAN (DOB 26/12/1995).

2. At around 6pm on Wednesday 26 July 2017 police were patrolling Middleton Road, Leumeah where they observed a White Mitsubishi Pajero 4WD (NSW Rego AD46PP) enter Middleton Road from Angle Road, Leumeah. Police followed AD46PP for a short distance then activated their warning lights with the intention of stopping the vehicle for a random breath test.

3. The vehicle pulled over outside 14 Middleton Road, Leumeah. Police then approached the vehicle and conducted a random breath test followed by a random drug test on the driver Jean SALEM. Whilst this was occurring, police knocked on the passenger side window and asked the offender who was seated in the front passenger seat to put the window down.

4. The Offender OSMAN wound down his window and police requested he produced his licence. The Offender stated, "I don't have any, I can give you my name". The offender then provided police with his name and date of birth.

5. Police observed the offender OSMAN fidgeting around within the cabin of the vehicle. Police conducted checks upon all occupants of the vehicle on the Police computer system. Checks upon the Offender showed that he had recent intelligence for drug supply and firearms offences. Police informed the Offender that they were going to search him for drugs and that he was being handcuffed for officer safety.

6. Police conducted a search of the Offender. Within the offender's black shoulder bag they located several small, empty, clear resealable bags. Police also located a men's moisturiser container concealed in the accused's left pant leg. The container was sealed shut with masking tape. Police opened the container and observed the following:

1. 2 x clear resealable bags containing a white crystalline substance. This substance was later analysed as 21.88 grams of methylamphetamine.

2. 1 x clear resealable bag containing a white powder. This substance was later analysed as 4.07 grams of cocaine.

3. 1 x clear resealable bag containing two small white pressed powdered rocks. The rocks were later analysed as 0.35 grams of heroin.

7. The traffickable quantity of methylamphetamine is 3 grams. The indictable quantity of methylamphetamine is 5 grams. It is agreed the offender had 21.88 grams of methylamphetamine in his possession for the purpose of supply.

8. The traffickable quantity of cocaine is 3 grams. The small quantity of cocaine is 1 gram. It is agreed the offender had 4.07 grams of cocaine in his possession for the purpose of supply.

9. Police formally cautioned the offender and placed him under arrest. The offender denied the substance belonged to him. Police seized the container and the offender's black iPhone. The offender was taken into police custody and conveyed to Campbelltown Police Station and where he was afforded the opportunity to speak with a legal practitioner.

Police conducted a search of the vehicle and located a set of scales in the driver's side door. Police also conducted [a] searched [sic] of the driver Jean SALEM and located $1,315 cash in his right pant pocket. Following caution, SALEM told police the money was a gift from his sister who had given it to him a few days earlier, to buy a car. The third passenger Sharee BRANTHWAITE was also searched by police who found nothing of note. Jean SALEM's random drug test returned a positive result for methylamphetamine and he was also taken into police custody and conveyed to Campbelltown Police Station.

The Proceedings on Sentence

18. The proceedings on sentence took place on 4 October 2018. After attending to formal matters, her Honour sought assistance from the Crown as to an appropriate starting date for any sentence she should impose, working backwards through the material to identify when custody commenced solely attributable to the offending for which her Honour was sentencing the applicant [1] . The Crown correctly submitted that the start date for any sentence imposed would be a matter for her Honour’s discretion taking into account the other sentences for the earlier offending. [2]

    1. R v Osman, Proceedings on Sentence, 4 October 2018, p. 3.

    2. Ibid.

19. Reference was made to some of the specifics of the applicant’s prior offending and the periods of imprisonment that resulted from the call-up of bonds and subsequent penalties imposed in the Local Court for that offending. At the time of the sentencing hearing, the applicant had served approximately 3 months of the 6 month non-parole period of the 12 month sentence of imprisonment imposed upon him on 26 July 2018 at the Burwood Local Court.

20. Her Honour specifically noted that the legal representative for the applicant was “seeking for some period of any sentence imposed to have some concurrency, ultimately, with that non-parole period”. [3]

    3. R v Osman, Proceedings on Sentence, 4 October 2018, p. 3 to 4.

21. The Crown drew attention to the fact that if her Honour backdated the sentence to 25 March 2018, it would have the effect of entirely subsuming the sentence imposed by the Burwood Local Court that had commenced on 19 July 2018. A submission was also made that there needed to be recognition of “that separate and distinct offending”. In that exchange her Honour indicated that she appreciated the submission that there is some level of concurrency, but that there is “also the separate offending”. Her Honour observed that the applicant "has been given opportunities by the Court which has been breached on numerous occasions” and that “the drug offending was committed whilst the applicant was on conditional liberty”. [4]

    4. R v Osman, Proceedings on Sentence, 4 October 2018, p. 4.

22. The Crown submitted that the sentencing judge should read the facts of the stalk/intimate charge that gave rise to that conviction, and that she should give “some effect to that as separate and distinct offending”.

23. The Crown noted that there had been previous lenient treatment by other courts, including a number of s 9 bonds. [5]

    5. R v Osman, Proceedings on Sentence, 4 October 2018, p. 4 to 5.

24. There was also reference in the exchange to the stalk/intimate offence that was called up on 19 June 2018 and the 6 month sentence of imprisonment imposed that had been backdated to 27 July 2017, the date of the applicant’s arrest for the drug offences. [6]

    6. R v Osman, Proceedings on Sentence, 4 October 2018, p. 5.

The Reasons of the Sentencing Judge

25. Before proceeding to the facts of this offending, her Honour referred to the applicant’s prior offending and the sentences that had been or were being served:

“The offender was arrested on 26 July 2017, the date of the offending, and has been in custody since that day. It is common ground between the parties that the offender has spent three months and 25 days solely attributable to this offence. Since 26 July 2017, the offender has been sentenced to other terms of imprisonment, one from 27 July 2017 until 26 January 2018. The offender served a six-month fixed sentence for H number ending in 398, which is a stalk/intimidate call-up and, two, from 26 July 2017 to 25 March 2018, the offender served an eight-month fixed sentence for H number ending in 290, which is a drive whilst disqualified call-up wholly concurrent with H number ending in 398.

Thirdly, from 19 July 2018, the offender has been serving a twelve-month sentence with a non-parole period of six months in which he is due for release to parole on 18 January 2019 and fully expire[s] on 18 July 2019. This is for H number 302, which was a common assault and destroy/damage property. Therefore, from 26 March until 19 July 2018, the time spent in custody was solely attributable to this offending. This period of custody, this time solely attributable to this matter, will be taken into account and any sentence imposed will be backdated to take account of that period.” [7]

7. R v Osman, Remarks on Sentence of O’Rourke SC DCJ, p. 2 to 3.

26. Her Honour then set out the Agreed Facts in full. She noted the need to have regard to the objective seriousness of the drug offences. She observed that the purity of each drug was unknown. She made a finding that the applicant’s role in the supply of drugs was difficult to determine but based on some of the indicia in the car and the varieties of drugs upon his person he appeared to be “above a street dealer”. [8] The objective seriousness was assessed at somewhere between the low and mid-range for offending of this type, as conceded by the Crown in oral submissions. [9]

    8. R v Osman, Remarks on Sentence of O’Rourke SC DCJ, p. 6.

    9. R v Osman, Remarks on Sentence of O’Rourke SC DCJ, p. 7.

27. Her Honour then discussed the applicant’s subjective case. She noted that he was 22 years old at the time of sentence, having come from Sudan as a refugee. She referred to the psychologist’s opinion that the applicant had described to the psychologist symptoms consistent with post-traumatic stress disorder and that the applicant satisfied the criteria for stimulant use disorder although moderate and in early remission in a controlled environment.

28. Her Honour noted the opinion of the psychologist that the applicant’s drug use and offending behaviours were directly associated with his history of trauma and poor emotional regulation skills.

29. Her Honour observed that the author of the Sentencing Assessment Report had noted that substance abuse “figured significantly in the offending behaviour” and that the applicant had told the author of the report that he had a methylamphetamine addiction that was costing him approximately $300-$400 per day prior to his incarceration, and that he had also been occasionally using cocaine and heroin. [10]

    10. R v Osman, Remarks on Sentence of O’Rourke SC DCJ, p. 9.

30. Her Honour noted that the applicant had been assessed as at medium risk of reoffending and that he had a number of protective factors including supportive and pro-social family members, acceptance of responsibility for his offences and a willingness to engage in treatment to address his substance abuse and mental health issues.

31. Her Honour referred to the fact that drug offending of this type has attracted parliamentary recognition of the need for general deterrence as well as the need for denunciation and recognition of the harm to the community caused by the supply of prohibited drugs. [11]

    11. R v Osman, Remarks on Sentence of O’Rourke SC DCJ, p. 10 to 11.

32. Her Honour specifically rejected a submission that the applicant was not a proper vehicle for general deterrence, stating that she had “decided to take his mental health into account in alternative ways” noting that there is “a need for specific deterrence in light of the offender’s criminal history as well and his apparent lack of insight or real insight into the seriousness of his offending”. [12]

    12. R v Osman, Remarks on Sentence of O’Rourke SC DCJ, p. 11.

33. Her Honour clearly was cognisant of the nature and relevance of the other convictions and the applicant’s conduct that had led to the call-up and imposition of custodial sentences, as indicated by the following remarks:

“The offender has several prior convictions of violence including, as well, significant traffic matters and a considerable portion of his offending relates to his refusal to abide by court orders and impositions. This record of offending and the failure to adhere to court orders and, indeed, opportunities, demonstrates quite a blatant disregard for court orders and clearly disentitles the offender to leniency, but it will not be regarded for these sentencing purposes to be an aggravating feature.

The offending occurred whilst the offender was subject to S9 and S 12 bonds and, thus, whilst he was on conditional liberty. The Courts have long recognised the commission of an offence whilst the offender is subject to a form of conditional liberty is an aggravating factor of sentence[:] Kerr v R [2016] NSWCCA 218.” [13]

13. Ibid.

34. Her Honour then proceeded to deal with mitigating factors. She referred to the conclusions of this Court in R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 to the effect that drug addiction is not a mitigating factor on sentence. She found that the offences were not part of a planned or organised criminal activity. She accepted that the applicant had a very difficult childhood and upbringing given the Civil War, emotional loss, trauma, displacement and disadvantage he had suffered. In addressing these issues her Honour apparently accepted the applicant’s submissions that Bugmy v R (2013) 249 CLR 571; [2013] HCA 37 had some relevance, but “whilst acknowledging that mitigating factors must be given appropriate weight and must be not allowed to lead to a disproportionate sentence”. [14]

    14. R v Osman, Remarks on Sentence of O’Rourke SC DCJ, p. 12.

34. Her Honour concluded that a causal link could be “inferred, if indeed not established” [15] between the offender’s background and the offending. Her Honour accepted the diagnoses of PTSD and stimulant use disorder, concluding that there was a relationship between the offending behaviour and those diagnoses, which “reduces to some extent the [applicant’s] moral culpability”. [16]

    15. R v Osman, Remarks on Sentence of O’Rourke SC DCJ, p. 13.

    16. Ibid.

35. Her Honour found that there was very limited evidence of remorse, comprising a single line in Ms North’s report that the applicant accepts responsibility for his offending. [17]

    17. Ibid.

36. After analysing the evidence on prospects of rehabilitation, her Honour concluded that his prospects were “fair” and “will improve if he engages in treatment programs, finds steady employment, and abstains from drug use”. [18]

    18. R v Osman, Remarks on Sentence of O’Rourke SC DCJ, p. 14.

37. In referring to Kandemir v R [2018] NSWCCA 154 at [99], her Honour concluded that the sentence will incorporate a degree of accumulation to properly reflect the differing drugs and thus the total criminality involved. [19]

    19. R v Osman, Remarks on Sentence of O’Rourke SC DCJ, p. 15.

38. Her Honour made a finding of special circumstances, noting that it “will cause the statutory ration [sic] to be affected to some, but not a substantial, degree” [20] based upon a finding that the applicant’s mental health will make his time in custody more onerous.

    20. Ibid.

39. In imposing sentence her Honour stated:

“I intend to proceed to sentence the offender by way of an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act. It does not mean that the considerations of accumulation are no longer relevant. It is to be acknowledged as stated earlier, that three different prohibited drugs were located and, for reasons discussed earlier, I have determined that there will be a degree of accumulation between the offences to accurately comprehend the criminality involved in the offending. The ultimate sentence imposed must reflect the total criminality. The aggregate non-parole period must also reflect the minimum period of imprisonment required to be served by an offender, having regard to the purposes of sentencing. In determining an appropriate sentence, I have kept in mind the legislative guideposts of the maximum penalty, which is 15 years for each offence.” [21]

21. R v Osman, Remarks on Sentence of O’Rourke SC DCJ, p. 16.

41. On the issue of backdating her Honour stated:

“The sentence will date from 23 September 2018 to take into account the time that you have spent in custody solely for this offence.” [22]

The applicant had been sentenced to imprisonment for 1 year for the offences of common assault and destroy/damage property. That sentence commenced on 19 July 2018. His earliest release date for that offending was 19 January 2019. The commencement date for the sentence imposed by her Honour for the drug offending is precisely 3 months and 25 days before 19 January 2019, thus absorbing entirely this period in the non-parole period being served.

22. Ibid.

42. After setting out the indicative sentences (set out in [6] of this judgment), her Honour referred to the call-up of the assault charge:

“In relation to the call-up matter of the common assault, I note the combined submission from the parties that this was effectively part and parcel of the stall/intimidation charge, which was also called up and ultimately converted to six months’ imprisonment from July 2017. In light of that, I have found it proven, but I have decided in the particular circumstances of this case and the method of your sentences of imprisonment for that offence to not order any further action.” [23]

Ground 1: Totality

23. R v Osman, Remarks on Sentence of O’Rourke SC DCJ, p. 17.

Submissions

43. The applicant complains that the total effective non-parole period, 2 years and 10 months, and the total effective sentence of 3 years and 10 months, suggests that her Honour did not undertake the necessary review or “a last look” at the total sentence to ensure it was a just and appropriate measure of the total criminality involved.

44. Whilst it is clear that her Honour took into account the 3 months and 25 days the applicant spent on remand between March and July 2018 solely referrable to the drug offending by backdating the sentence to commence on 23 September 2018, her Honour added that to the “14 month” period of imprisonment already served (actually a period of just under 13 months at the time of sentence).

45. There was no specific reference in the remarks to the submission made at the sentencing hearing that “some level of concurrency would be appropriate given that it was the current offences that saw the applicant being placed on remand, and taking into account the principle of totality”. [24]

    24. Applicant’s written submissions, at [48].

46. Her Honour did not “expressly comment” on the submission, nor did she indicate that she rejected it. Further, her Honour did not expressly refer to the totality principle in the context of the earlier sentences, did not expressly say that she had chosen to add the aggregate sentence to the other 14 month period, and did not expressly refer to the total effective head sentence of 3 years and 10 months and the total effective non-parole period of 2 years and 10 months.

47. When making the finding of special circumstances, [25] her Honour was referring only to the notional degree of accumulation between the two indicative sentences, and not the total effective sentence.

    25. R v Osman, Remarks on Sentence of O’Rourke SC DCJ, p. 15.

48. There also seems to be a faintly pressed submission that the applicant’s age – 22 years old at the time of sentence – ought to have had some specific articulated consideration in the context of the imposition of the effective period of imprisonment imposed. [26]

    26. Applicant’s written submissions, at [53].

49. The Crown argued that on a consideration of the transcript of the proceedings on sentence and a fair reading of the whole of the remarks on sentence, the principle of totality was properly considered. It was evident during the proceedings on sentence that her Honour was well aware that the representative for the applicant was “seeking for some period of any sentence imposed to have some concurrency, ultimately, with that non-parole period” and specifically invited the Crown’s submissions on that issue. [27]

    27. R v Osman, Proceedings on Sentence, 4 October 2018, p. 3.

50. The exchange that occurred between her Honour and the Crown at pages 4 to 5 of the Proceedings on Sentence demonstrated an understanding by her Honour that whilst there may be the need for some degree of concurrency, there was also the separate offending that needed to be addressed, the fact that the applicant had squandered previous opportunities given to him by the courts that had led to the imposition of custodial sentences earlier in 2018 in the Local Court, and that the drug offending occurred whilst he was at conditional liberty.

51. That her Honour had turned her mind to the totality of the overall period in custody was evident in her approach to the sentence imposed from the substantial degree of concurrency inherent in the aggregate sentence itself, as well as in the concurrency between that aggregate sentence and the existing sentences being served.

52. The Crown also pointed out that there is no general rule as to whether sentences are to be dealt with concurrently or consecutively and that this is a matter within the discretion of the sentencing judge.

Decision

53. The principle of totality is set out with clarity by this Court in R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381 at [15]-[18]:

“[15] … whenever the Court sentences an offender for multiple offences, including when there are different victims, or sentences an offender who is already serving a sentence after conviction for other offences, it is necessary for the judge to ensure that the aggregation of all of the sentences is a “just and appropriate measure of the total criminality involved”: Postiglione v The Queen (1997) 189 CLR 295 at 307-308; 94 A Crim R 397 at 406 per McHugh J. The need to maintain an appropriate relationship between the totality of the criminality involved in a series of offences and the totality of the sentences to be imposed for those offences arises for at least two reasons.

[16] The severity of a sentence is not simply the product of a linear relationship. That is to say severity may increase at a greater rate than an increase in the length of a sentence. As Malcolm CJ said in Clinch v The Queen (1994) 72 A Crim R 301 at 306:

‘…the severity of a sentence increases at a greater rate than any increase in the length of the sentence. Thus, a sentence of five years is more than five times as severe as a sentence of one year. Similarly, while a sentence of seven years may be appropriate for one set of offences and a sentence of eight years my [sic] be appropriate for another set of offences, each looked at in isolation. Where both sets were committed by the one offender a sentence of 15 years may be out of proportion to the degree of criminality involved because of the compounding effect on the severity of the total sentence of simply aggregating the two sets of sentences.’

[17] The second matter that is considered under the totality principle is the proposition that an extremely long total sentence may be “crushing” upon the offender in the sense that it will induce a feeling of hopelessness and destroy any expectation of a useful life after release. This effect both increases the severity of the sentence to be served and also destroys such prospects as there may be of rehabilitation and reform. Of course, in many cases of multiple offending, the offender may not be entitled to the element of mercy entailed in adopting such a constraint.

[18] A sentencing court must, however, take care when applying the totality principle. Public confidence in the administration of justice requires the Court to avoid any suggestion that what is in effect being offered is some kind of a discount for multiple offending: R v Knight (2005) 155 A Crim R 252 at [112]. For similar reasons in a case such as the present where an offender who is already serving other sentences comes to be sentenced for additional offences, the impression must not be given that no, or little, penalty is imposed for the additional offences.”

54. Application of those stated principles is discussed at [99]:

“[99] It should be made clear that, where a judge is sentencing for offences in a situation where another judge has already sentenced the offender for other offences, the second judge must regard the first sentence as an appropriate exercise of the first judge's discretion and not seek to reduce or increase it by the sentences the second judge imposes. We are not suggesting that this is what Hidden J did or attempted to do. But we note the difficulty that confronts the second judge in trying to determine what the overall sentence would have been had a single judge been sentencing the offender for all offences for which he is, and has been, punished. That is in effect part of what an application of the principle of totality requires. We should approach the task, as Hidden J was required to do, by taking into account that the sentences imposed by Sully J were appropriate to reflect the seriousness of the offences before him.

[100] As we noted in R v MMK , the sentences imposed by Sully J were justifiably heavy as the criminality was high and there was little by way of mitigation of the objective seriousness of the offences or otherwise. But as we have already stated, the total criminality before Hidden J was also substantial and there was little by way of mitigation. The principal consideration was therefore to impose a sentence that significantly reflected the total criminality and the proper purposes of punishment but took into account the purposes to be served by the principle of totality discussed above.” (Emphasis added).

55. Totality is clearly a matter to be demonstrated by the way in which the sentencing judge goes about his or her task, rather than an arid recitation of principle without any evidence that it has in fact been applied.

56. The aggregate sentence her Honour imposed for the drug offences had an effective 6 month concurrency with the sentences imposed by the Burwood Local Court for the offences of destroy/damage property and common assault. The aggregate sentence imposed for the drug offending also entailed a significant degree of concurrency between the two offences.

57. As stated in Markarian at [27]:

“... Judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies”. [28]

28. Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 referring to Johnson v R (2004) 205 ALR 34 at 348 [5]; [2004] HCA 15.

58. The structuring of the sentence in these circumstances is very much a matter within her Honour’s discretion, and it is a matter upon which minds might legitimately differ: see R v Hammoud (2000) 118 A Crim R 66; [2000] NSWCCA 540.

59. It is not necessary nor, arguably, is it appropriate in the circumstances prevailing here to parse her Honour’s remarks on sentence in light of the exchange between her Honour and the Crown at the sentencing hearing 10 days before to support the conclusion that she acted with the relevant considerations in mind: RCW v R (No 2) (2014) 244 A Crim R 541; [2014] NSWCCA 190 at [37]. The manner in which her Honour has gone about the sentencing task, included focused and succinct reference to relevant considerations, demonstrates that her Honour has kept in mind and applied the relevant considerations that underpin the proper application of principle.

60. First, her Honour referred to the need for general deterrence, denunciation and recognition of the harm to the community caused by drug supply. Second, there was reference to the relevance of the applicant’s prior convictions for offences involving violence. Third, there was reference to the reality that a considerable portion of the offending was a reflection of the applicant’s failure and/or refusal to abide by court orders and opportunities provided for him that had given him the benefit of leniency in the previous sentences prescribed. Fourth was the fact that this behaviour reflected, in her Honour’s view, a blatant disregard for such matters. [29] This all led to a disentitlement to leniency.

    29. R v Osman, Remarks on Sentence of O’Rourke SC DCJ, p. 11.

61. The short passage in her Honour’s remarks on sentence that addressed these considerations, [30] evidences that her Honour’s approach was consistent with principle.

    30. R v Osman, Remarks on Sentence of O’Rourke SC DCJ, p. 10 to 12.

62. There was also succinct reference to the fact that the offending occurred whilst the applicant was subject to s 9 and s 12 bonds and the law considers that to be an aggravating feature. [31]

    31. R v Osman, Remarks on Sentence of O’Rourke SC DCJ, p. 10.

63. There is no need to expressly state in a self-conscious fashion every nuance being considered and how and why it has been applied. There is no particular form of words that must be used to indicate the sentencing judge has kept totality considerations in mind; it can be implicit from the remarks on sentence or can be inferred: R v Jones [2003] NSWCCA 54 at [32] per Santow JA (Simpson J and Smart AJ agreeing); GS v R [2016] NSWCCA 266 at [54] per Gleeson JA (Fagan and N Adams JJ agreeing).

64. Her Honour’s backdating of the sentence of imprisonment to 25 September 2018, thus providing for the remand period of 3 months and 25 days to be completely subsumed in the non-parole period then being served, clearly demonstrates her Honour’s cognisance of the complexities of the sentencing task.

65. There is nothing in the remarks on sentence or in the structuring of the effective sentence imposed by her Honour that suggests that she had not taken into account and understood the length of the effective non-parole period and effective sentence the applicant will have to serve as a result of his multifaceted, various and repeated offending.

66. Her Honour’s provision for a 6 month period of concurrency for the drug offending with the sentences imposed for the destroy/damage property and common assault offences indicates a mindfulness of the totality principle.

67. Consistently with R v MAK; R v MSK, it was important for her Honour not to structure and backdate the sentence she imposed in such a way as to entirely subsume the sentence then being served for the other offending.

68. It has not been demonstrated that her Honour failed to apply the totality principle. It was not necessary that her Honour articulate a detailed formula of words concerning the totality principle. It was discernible from the remarks on sentence as a whole, and the sentence imposed, that the totality principle was applied as part of the instinctive synthesis involved in the sentencing process: ZA v R (2017) 267 A Crim R 105; [2017] NSWCCA 132 at [87].

69. The first ground of appeal fails.

Ground 2: Legislative change

Submissions

70. At the time of the applicant’s arrest, whilst the first offence was strictly indictable, (involving the supply of at least 5 g of methylamphetamine), the second offence fell below the 5 g threshold and therefore was capable of being dealt with in the Local Court.

71. After the applicant was committed for sentence, s 29A of Schedule 1 of the Criminal Procedure Act 1986 (NSW) commenced. This resulted in the option for offences involving the supply of less than 250 g of methylamphetamine to be dealt with summarily, in the absence of an election made by either party.

72. This change meant that there was an option available for the sentence to be limited to the jurisdictional limit of 2 years imprisonment if the matter stayed in the Local Court.

73. Whilst acknowledging that the amendment did not apply to proceedings commenced before the amendment, previous decisions of this Court recognise that the fact that an offence could have been dealt with summarily is a relevant consideration in the exercise of the sentencing judge’s discretion which may, depending on the circumstances of the case, contribute to a degree of mitigation.

74. Second, it was submitted that the timing of the amendment should not prevent this Court’s intervention. Whilst it did not directly apply to the applicant’s case, it did not mean that the amendment was irrelevant.

75. Nothing was said at the sentencing hearing or in the remarks on sentence about the amendments or the new jurisdictional limit. The sentencing judge erred in not taking into account the effect of this statutory amendment. It was relevant to the sentencing task because in the process of instinctive synthesis, this statutory amendment was a relevant “legislative indicator” that should have been considered as part of the instinctive synthesis that led to the sentence.

76. Support was enlisted from McHugh J in Markarian at [80] where his Honour stated that “a judge is sensitive to legislative trends”, (but in the context of and discussion about changes to the maximum penalty for an offence – a situation which does not apply here).

77. Attempt was made to bolster the submission using R v Ronen (2006) 161 A Crim R 300; [2006] NSWCCA 123 at [41], [70]-[76], (also dealing with a change in maximum penalty for an offence), submitting that it was accepted that “trends” emerging after an offence but before sentencing, that were beneficial to an offender should, as a matter of fairness, be taken into account in his or her favour.

78. Reliance was also placed on s 19 of the Crimes (Sentencing Procedure) Act:

19 Effect of alterations in penalties

(1) If an Act or statutory rule increases the penalty for an offence, the increased penalty applies only to offences committed after the commencement of the provision of the Act or statutory rule increasing the penalty.

(2) If an Act or statutory rule reduces the penalty for an offence, the reduced penalty extends to offences committed before the commencement of the provision of the Act or statutory rule reducing the penalty, but the reduction does not affect any penalty imposed before that commencement.

(3) In this section, a reference to a penalty includes a reference to a penalty that is expressed to be a maximum or minimum penalty.

79. Counsel for the applicant acknowledged that s 19 “may not have direct application” because the maximum penalty had not been altered, but submitted that the “fairness considerations” referred to by Spigelman CJ in R v MJR (2002) 54 NSWLR 368; [2002] NSWCCA 129 at [27], [31], were apposite and that the sentencing judge should have taken all of this into account as part of her broad discretion.

80. The third argument posed was that whilst there was a practical expectation that the applicant’s legal representatives would bring a mitigating factor like this to the attention of the sentencing judge, the failure to do so should not affect its consideration on appeal. Both parties and the sentencing judge overlooked it and to not consider the issue on appeal may render a serious injustice: Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44 at [80]-[83].

81. In oral submissions, the ground was pressed on the basis that the legislative change amounted to a “very significant point for a sentencing judge to take on because it’s an indication from parliament that in a lot of cases, 2 years will often be a reasonable sentence in all circumstances” and at the least, “it should have been borne in mind as part of the whole process of instinctive synthesis which is informed by so many different things”.

Decision

82. This ground is beset by a number of problems, not the least being a high level of artificiality, given that the legislative change relied upon did not directly apply to the applicant nor was it raised for the sentencing judge to consider.

83. As stated by Johnson J in Zrieka at [109]-[112]:

“[109] Unless this Court is able to clearly determine that the offence in question, committed by the particular offender with his or her criminal history, ought to have remained in the Local Court, then the argument is theoretical at best. The bare theoretical possibility of the matter being dealt with in the Local Court does not suffice: Wise v R [2006] NSWCCA 264 at [31]; R v Cage [2006] NSWCCA 304 at [31]; Edwards v R at [47]; McIntyre v R [2009] NSWCCA 305; 198 A Crim R 549 at 561-562 [62]-[67].

[110] Grounds of appeal, as asserted by the present Applicant, have been considered in a number of recent decisions of this Court, including Bonwick v R [2010] NSWCCA 177, Dagdanasar v R [2010] NSWCCA 310, Lewis v R [2011] NSWCCA 206, Kean v R [2011] NSWCCA 136 and LB v R [2011] NSWCCA 220. The frequency of appeals which raise this ground tends to emphasise the fact that the issue is well known as a potential factor to be taken into account on sentence, so that this Court should apply a rigorous approach in requiring offenders to take the point at first instance, before being permitted to raise it in this Court.

[111] The ground of appeal can only be meaningful if this Court determines that the total sentence for the particular offence should not have exceeded the jurisdictional limit of the Local Court. It might be thought that a ground asserting manifest excess is capable of covering the same ground, if the position is that clear in the particular case.

[112] Unless it is plainly wrong that the offence is in the District Court, it is difficult to see how an offender can succeed on a ground of appeal which claims that a relevant factor has not been taken into account by the sentencing Judge.”

84. It was not “plainly wrong” for the offences to be dealt with in the District Court. That the provisions regarding jurisdiction (not, I emphasise, the maximum penalty) changed after commencement of proceedings but shortly prior to the applicant being sentenced, was not a relevant consideration. A change to the maximum penalty is a different matter. In Ronen at [72], the Court observed that the maximum penalty for an offence is the pronouncement of the policy of the legislature and “reflects the seriousness of the crime in the mind of the public as given voice through parliament”. [32]

    32. R v Oliver (1980) 7 A Crim R 174 at [177]

85. In any event, as the Crown submitted, even where the fact that a matter could have been dealt with in the Local Court genuinely arises as a relevant consideration on sentence, it does not of necessity operate to reduce the sentence: R v Said El Masri [2005] NSWCCA 167 at [29] citing R v Sandford (1994) 33 NSWLR 172 at [195] and R v Doan (2000) 50 NSWLR 115; [2000] NSWCCA 317 at [124]. There was no “serious injustice caused” to the applicant by this argument not being made on sentence.

86. The extent of the criminality involved is another important consideration. An existing criminal record and the offences having been committed whilst on parole and in breach of conditional liberty, called for a sentence greater than 2 years. In those circumstances, this Court has previously held that an offender is not entitled to any weight being given to the loss of a chance of a summary disposition: Dagdanasar v R (2010) 57 MVR 230; [2010] NSWCCA 310 at [40].

87. While I would grant leave to appeal on this ground, it is not made out.

Ground 3: Manifest excess

88. In order to succeed on this ground, the applicant must establish the sentence was “unreasonable” or “plainly unjust”: Markarian at [25]; Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59].

89. As observed by Leeming JA in Taitoko v R [2020] NSWCCA 43 at [123]:

“There is no single correct sentence and sentencing is not a mathematical exercise, and so this ground proceeds on the basis that sentencing judges are to be allowed as much flexibility as is consonant with consistency of approach and applicable sentencing principle. This Court will not interfere with a sentence merely because it may have exercised its discretion differently.”

90. The applicant argued that a combination of factors indicates that the sentence imposed is plainly unjust and given that Her Honour made a number of findings that should have led to a lesser sentence; she must not have properly weighed them in reaching the sentence that she imposed.

91. First, her Honour found that custody would be more onerous for the applicant because of his psychological difficulties and second, his moral culpability was reduced to some extent given those problems. Third, the applicant was only 21 years old at the time of the offending and so rehabilitation should have figured more prominently. Fourth, although supply of prohibited drugs is a serious crime, this was not a particularly serious example of that. Fifth, although the applicant was not entitled to leniency because of his previous record and the fact that he was in breach of conditional liberty, there were no previous convictions for drug dealing. Sixth and finally, there was the early guilty plea.

Decision

92. This ground also must be rejected. As the Crown pointed out, there was no issue taken with her Honour’s findings as to objective seriousness for the drug offending. There were two separate counts of offending which attract a potential maximum penalty of 15 years for each offence. Categorised as between low and mid-range for offending of this type, there is nothing excessive about the aggregate sentence imposed of 2 years and 8 months with a non-parole period of 1 year and 8 months. The sentence reflects an undiscounted head sentence of 3 years and 8.5 months taking into account the 25% reduction for the early guilty plea.

93. The aggravating factors noted by her Honour, as well as all the subjective factors raised by the applicant in support of this ground, were factors to be weighed by the sentencing judge and that weighing is a matter for sentencing discretion.

94. The remarks on sentence indicate that proper consideration had been given to all of the competing factors. The structuring of the sentence itself which included a very significant period of concurrence (10 months) with the period of imprisonment he was then serving, also demonstrates that totality had been properly taken into account.

95. Whilst overall the total effective sentence may seem to be a stern sentence for a young offender with a difficult background, it is not manifestly excessive.

96. The offending to which the total effective sentence responds included violence, intimidation, and property damage at different times involving different victims, as well as on a broader scale, harm to the community generally associated with supply of both methylamphetamine and cocaine.

97. There is nothing unreasonable or plainly unjust in the sentence imposed and ground 3 is rejected.

Orders

98. I propose the following orders:

1. Leave to appeal against sentence allowed.

2. Appeal dismissed.

**********

Endnotes

Amendments

22 April 2020 - typographical error of date on coversheet

Decision last updated: 22 April 2020