Prince v The Queen

[2020] NSWCCA 110

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Prince v R [2020] NSWCCA 110
Hearing dates:	17 April 2020
Date of orders:	04 June 2020
Decision date:	04 June 2020
Before:	Bell P at [1] Davies J at [2] Button J at [100]
Decision:	(1) Leave to appeal granted.  (2) Appeal dismissed.
Catchwords:	CRIME – appeal – sentencing - drug offences - supply prohibited drug on ongoing basis – further count of ongoing supply on Form 1 – second count of knowingly direct activities of a criminal group – offences of supply prohibited drug and knowingly deal with proceeds of crime on second Form 1   SENTENCING - appeal - whether sentencing judge found ongoing supply offence was aggravated by being committed for financial reward - whether judge erred in determination of objective seriousness – whether sentencing judge took into account positive features of applicant’s subjective circumstances - whether judge failed to deal in substance with question of likelihood of reoffending and rehabilitation – relationship between rehabilitation and likelihood of reoffending - issue of parity with co-offender – where co-offender’s lower sentence reduced further after earlier appeal – where co-offender found to have minimal role in the drug supply – where co-offender charged only with drug supply – no justifiable sense of grievance - whether aggregate sentence manifestly excessive – reliance on statistics – where each ongoing supply offence exceeded the minimum number of supplies to constitute the offences - generous reduction of the non-parole period ­­by sentencing judge - sentence not manifestly excessive
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW) ss21A, 93T Drugs Misuse and Trafficking Act 1985 (NSW) s 25A
Cases Cited:	Cahyadi v R (2007) 168 A Crim R 41 Hordern v R [2019] NSWCCA 210 Kay v R [2019] NSWCCA 275 Masters v R [2019] NSWCCA 233 Mulato v R [2006] NSWCCA 282 Newman v R [2018] NSWCCA 208 Obeid v R [2017] NSWCCA 221 Skocic v R [2014] NSWCCA 225 Zuffo v R [2017] NSWCCA 187
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Bianca Prince (Applicant) Crown (Respondent)
Representation:	Counsel: M C Ramage QC (Applicant) D Patch (Respondent)   Solicitors: Jeffreys Lawyers (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2017/339736
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Citation: Nil Date of Decision: 26 April 2019 Before: Delaney ADCJ File Number(s): 2017/339736

Judgment

1. BELL P:   I agree with Davies J.   

2. DAVIES J:   The applicant pleaded guilty to two charges as follows:

Count 1:    Supply prohibited drug on an ongoing basis contrary to s 25A of the Drugs (Misuse and Trafficking) Act 1985 (NSW). The maximum penalty for this offence is 20 years’ imprisonment.

Count 2: Knowingly direct the activities of a criminal group whose activities were organised and ongoing contrary to s 93T(4A) of the Crimes Act 1900 (NSW). The maximum penalty for this offence is 15 years’ imprisonment.

3. There was a Form 1 attached to the first offence containing a further offence of supplying a prohibited drug on an ongoing basis. There was a Form 1 attached to the second offence containing two offences. The first was supplying a prohibited drug being 47.44 grams of cocaine. The second was knowingly dealing with the proceeds of crime, $44,430. His Honour was also asked to sentence for six counts of driving while disqualified contained on a s 166 certificate.

4. On 26 April 2019, the applicant was sentenced by Acting Judge Delaney in the District Court to an aggregate sentence of imprisonment for five years and six months commencing 9 November 2017 and expiring 8 May 2023 with a non-parole period of three years and two months expiring 8 January 2021. The indicative sentences were imprisonment for four years and six months for count 1, taking into account the other charge of supplying a prohibited drug on an ongoing basis on the Form 1, and two years six months for count 2, taking into account the offences of supplying cocaine and knowingly dealing with the proceeds of crime on the other Form 1.

5. For each of the offences of drive while disqualified his Honour imposed a six month period of imprisonment commencing 28 December 2017. The sentences for all of those offences were wholly concurrent with the others.

The facts

6. The applicant was sentenced on the basis of a statement of agreed facts. For present purposes, those facts may be summarised fairly briefly.

7. During the period 11 August 2017 to 8 October 2017, the applicant, along with a number of other persons including Sharna-Marie Kay, was involved in the supply of small amounts of cocaine on numerous occasions, of which the two offences of ongoing supply were representative. The total amount involved was estimated to be about, but less than, 250 grams, which is the commercial quantity for that drug.

8. The syndicate received orders from customers for the supply of cocaine on a mobile phone service which was called the supplier phone. The syndicate’s customers messaged their location and how much cocaine they wanted in terms of “bags”. Half a bag referred to 0.33 grams of cocaine and cost $150. One bag or a full bag referred to 0.67 grams and cost $300. Depending on who in the syndicate was working at the time, that person would drive to an agreed location and supply the customer with cocaine.

9. The syndicate also used another mobile phone called the runner phone which was occasionally in the possession of another syndicate member, Giuseppina Murdocca. At these times, the applicant would operate the supplier phone and forward the relevant details to Murdocca on the runner phone. She would then drive to meet the customer and supply cocaine to them.

10. From about June 2017, police were authorised to conduct controlled purchases in relation to the syndicate. From about 18 August 2017, police ware lawfully intercepting the supplier phone.

11. At the time of the offences, the applicant was disqualified from driving a motor vehicle until 21 September 2024. She had been convicted of driving while disqualified previously.

12. It is not necessary to detail each of the supplies that constituted the two offences of ongoing supply. It is sufficient to note that the supplies were made to undercover officers, and that on each occasion the applicant drove a motor vehicle to effect the sale. There were six supplies that constituted Count 1. They took place between 11 and 30 August 2017. There were a further six occasions constituting the offence of ongoing supply on the Form 1 between 3 and 29 September 2017.

13. The intercepted phone calls show that the applicant was directing the operations, including in relation to when other members of the syndicate would be working in relation to the sale of the drugs, instructions on how to bag the drugs, instructions on the use of the phones, instructions on who could be involved in the drug-running, and directions about reporting back to her on the amount of stock and cash.

14. On 9 November 2017 police executed a search warrant at the applicant’s house at Sydney Olympic Park. The applicant was present. Police located in the bottom drawer of a kitchen cupboard two bundles of white powder in small, clear, resealable bags packed into larger plastic bags. The white powder was found to be 47.44 grams of cocaine.

15. Two sets of electronic scales with white residue were located. Police also found one Blackberry mobile phone and charger, three Alcatel mobile phones, one white Apple iPhone and one rose gold Apple iPhone.

16. Three amounts of cash totalling $44,430 were found in separate locations in the house. Of the cash seized, six of the $50 notes matched cash previously given to street level operatives to pay the applicant for the cocaine.

17. The applicant now seeks leave to appeal against her sentence on the following grounds:

(1)   The sentencing judge erred with respect to financial gain;

(2)   The sentencing judge erred with respect to his finding of objective criminality Count 2, and in failing to separate the facts from Count 1;

(3)   The sentencing judge erred in failing to take into account positive features of the offender's subjective circumstances;

(4)   The sentencing judge erred in failing to make findings on rehabilitation and re-offending;

(5)   Parity; and

(6)   Manifest excess.

Subjective matters

18. The applicant did not give evidence at the sentence proceedings. Information about her subjective factors came from a Sentencing Assessment Report dated 15 February 2019, and two reports from Mr Anthony Diment, psychologist, dated 4 February 2019 and 23 April 2019.

19. The applicant was the eldest of three children born in December 1985. Her parents divorced when she was six years old. She then lived with her mother, but life was difficult because they did not have much money. She attended a number of primary schools and then completed year 9 at Ryde Secondary College. She finished year 10 at TAFE, and then attempted a tourism course but did not complete it. She had worked from an early age, first in cake shops, and then at a mortgage centre at the age of 16. She told Mr Diment that she suffered from depression and anxiety from what she described as a “rubbish relationship”. She was reluctant to describe that relationship to him. She told him, however, that she had been sexually abused on several occasions by a teacher in primary school. That was why she started truanting from school, and why she started both to smoke and drink at the age of about eight or nine. The drinking increased by the time she was 12 and on occasions she had to go to hospital as a result of being ill from drinking.

20. At the age of about 13 she started smoking marijuana fairly heavily. She subsequently used amphetamines, MDMA and other pills. She then ceased taking drugs from about the age of 22 and simply drank alcohol up to the time of her arrest.

21. She claimed that she was raped at knifepoint by a man whose friend she knew, when she was 16 years of age.

22. She said she was under pressure from her mother to move out of home, probably when she was in her late teens or early twenties. She could not live with her father because he never had a stable residence.

23. Mr Diment administered the Beck Anxiety Inventory (BAI) and the Beck Depression Inventory (BDI-II). On the BAI, the applicant’s score of 46 was well above the average in the "severe" range for anxiety. On the BDI-II, her score of 29 was above average, in the severe range for depression.

24. Mr Diment ultimately diagnosed her in accordance with the DSM-5 criteria as suffering from Post-traumatic Stress Disorder, Persistent Depressive Disorder and Substance Use Disorder – in remission. He said some of the anxiety and depression related to her current situation from being in custody. He said, however, that there was evidence of longer-standing anxiety and depression most Iikely arising from past abuse including sexual abuse from ages eight to ten or so from her mother’s various boyfriends and from a school teacher. These were situations which she reported to her mother but her mother did not believe. The applicant also endured an abusive relationship from the ages of about 16 to 22.

25. The applicant expressed remorse to Mr Diment, particularly because she said that since being in custody she had seen what drugs did to people.

26. In his second report, Mr Diment said that, while he could not say her mental disorders were a direct cause of her engaging in illegal activity, he considered that if she hadn’t been in such a mental state of mind prior to and during her offending, she would most likely not have acted the way she did.

27. In the Sentencing Assessment Report, the applicant told the Community Corrections Officer that she was embarrassed and ashamed about her offending behaviour, and she accepted responsibility for her actions. The Officer reported that she made no efforts to justify her behaviour. The Officer thought she displayed sound insight towards alternative measures that could have been utilised to avoid her offending behaviour. The Officer thought that her offending behaviour appeared to be motivated by financial reward. The applicant told the officer that her symptoms of depression and anxiety impacted her ability to engage in consequential thinking.

28. The applicant was assessed at a medium to low risk of reoffending.

Grounds of appeal

Ground 1:   The sentencing judge erred with respect to financial gain

Submissions

29. The applicant drew attention to the sentencing judge’s reference to “the obvious greed that was involved in this activity as was shown by the money that was obtained”. The applicant submitted that financial or material reward was an element of the offence of ongoing supply under s 25A. The applicant submitted that it is only where the financial gain is more than might be expected in the lowest level of offending for that type of drug supply offence that it may be taken into account as an aggravating factor under s 21A(2)(o) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

30. The applicant submitted that there was no evidence that the money found in her premises represented profit to her or was hers to keep.

31. The Crown submitted that what the sentencing judge said about the applicant’s greed was said in a different context. The Crown submitted that there was nothing to suggest that the sentencing judge regarded the offence being committed for financial reward as an aggravating factor.

32. The applicant responded by submitting that financial gain ordinarily went to aggravation and, if his Honour did not use it as an aggravating factor, he could have been expected to say so.

Determination

33. The sentencing judge’s reference to financial gain appeared in the following context:

The determination of sentence is to begin by considering s 3A of the Crimes (Sentencing Procedure) Act. The question of rehabilitation is a tension within the particular provisions of that section which the Court must consider.

I am satisfied that she has the capacity to be rehabilitated.

I am satisfied that she has the capacity to be able to overcome her requirement for the obvious greed that was involved in this activity as was shown by the money that was obtained.

I am satisfied that those are factors which point to some prospects for the future.

34. It is apparent from that passage that his Honour was concerned with the question of rehabilitation of the applicant. His Honour was not considering aggravating factors. His Honour had earlier considered the matter of the objective seriousness of the offending and the approach he should take to the Form 1 matters. In that regard his Honour pointed to the coordination and organisation of the syndicate which his Honour found was controlled by the applicant.

35. In the passage identified by the applicant (set out above), his Honour was not considering the issue of whether the offence was committed for financial reward. There is nothing in the Remarks on Sentence (ROS) at that point or elsewhere suggesting that financial reward was considered as an aggravating factor. Since his Honour mentioned the matter in connection with rehabilitation, there was no occasion for him to be saying that he was not relying on it as an aggravating factor.

36. I would reject this ground.

Ground 2:   The sentencing judge erred with respect to his finding of objective criminality on the second count and in failing to separate the facts from Count 1

Submissions

37. The applicant pointed to the determination of the sentencing judge that count 2 was in the mid-range of criminality.

38. The applicant submitted that a finding of mid-range criminality was not fairly open on the Agreed Facts and was contrary to the written submission of the Crown that the offence “falls well below the mid-range of objective seriousness”.

39. The applicant submitted that the activities of the criminal group involved the same matters as the ongoing supply in both Count 1 and the Form 1 offence. The applicant pointed to the Crown’s submissions that the applicant’s involvement in directing the criminal group, which was for the supply of cocaine for financial gain, occurred over the same period as the drug supplies. She submitted that his Honour ought to have identified those factors which related to Count 2 and not simply relied on the facts for Count 1 to reach his determination of objective criminality.

40. The Crown pointed to the matters identified by the sentencing judge as being relevant to the objective criminality of Count 2. Those matters included, repetition, system, organisation, frequency of supplies, the role and specific conduct of the applicant and the phone set up.

41. The Crown submitted that there was no error on the part of the sentencing judge in failing to separate facts as between counts 1 and 2. Although there was some factual difference between them, there was significant overlap in the factual matrix. His Honour ultimately dealt with the matter appropriately by imposing an aggregate sentence where there was a large degree of concurrency when the indicative sentences were compared.

Determination

42. In his ROS, the sentencing judge said this:

The brazen continuous disregard that the offender had to her obligations in the community; the use of almost, as Berman DCJ, once described it, an "Uber Eats" of distributing cocaine throughout our Sydney area was painstakingly well organised, coordinated and controlled by the offender for which condign punishment is required. I reject the suggestion that this should be a case that would be below midrange of objective criminality. In my opinion, it is at least midrange of objective criminality, having regard to the manner in which it was organised; the way in which the distribution occurred ...

43. A determination of the objective seriousness of an offence is classically within the discretion of the sentencing judge, and this Court will be slow to intervene: Mulato v R [2006] NSWCCA 282 at [46]. A sentencing judge is not bound to accept the view of the Crown in the assessment of the objective seriousness of an offence.

44. Although the factual matters making up the offences of ongoing supply were largely but not entirely co-extensive with the factual matters informing count 2, that does not preclude a determination that the objective seriousness of both counts were within the mid-range. Indeed, that matter tends to support that conclusion. Such a determination does not result in what the applicant suggested was “double dipping” in relation to the sentence. When the judge comes to consider the commencement date for the sentence in respect of each offence, or how an aggregate sentence will be reached, the judge will need to apply correctly the principles of concurrency and accumulation, considering whether the criminality involved in one offence comprehends the criminality of the other offence: Cahyadi v R (2007) 168 A Crim R 41.

45. The matters identified by the sentencing judge in relation to the organisation of the syndicate, and the role of the applicant in relation to the syndicate’s coordination and control, amply justified his Honour’s assessment of mid-range criminality for this offence.

46. I would reject this ground.

Ground 3:   The sentencing judge erred in failing to take into account positive features of the offender's subjective circumstances

Submissions

47. The applicant pointed to the following matters which were positive aspects of her subjective circumstances. She had a limited criminal record with no prior convictions for drugs; she had a positive assessment as to her awareness of the dangers and damage of drugs; she had an explanation of how she came to be caught up in supplying drugs; she had done drug rehabilitation courses in gaol; the effects of her Post Traumatic Stress Disorder and chronic depression; the Community Corrections Officer assessed her as a medium to low risk of reoffending.

47. The applicant noted that the sentencing judge found special circumstances based on her need to receive ongoing psychological counselling and assistance, but submitted that the other identified matters were not taken into account by his Honour.

48. The Crown submitted that the sentencing judge very carefully considered the applicant's subjective case, and made reference to the reports and other evidence concerning her subjective matters. That included all of the matters identified by the applicant in her submissions. The Crown pointed to a number of favourable findings made by the sentencing judge in relation to her subjective case. The Crown submitted that, in that way, the sentencing judge did not fail to take positive, subjective circumstances into account.

Determination

50. His Honour summarised the subjective material, largely from the first report of Mr Diment. In doing so, his Honour noted issues from her childhood and teenage years including sexual abuse, her unhappy relationship, difficulties with her parents, and the fact that from an early time she had consumed cigarettes, alcohol and drugs. In relation to the last matter his Honour noted that the applicant told Mr Diment that all of those matters caused her simply to give up and let herself get “into this drug stuff”.

51. His Honour noted the personality assessments made by Mr Diment and his diagnosis of PTSD, chronic depression and substance use disorder. He noted Mr Diment’s conclusion that her offending was against that background.

52. It is true that his Honour rejected Mr Diment’s conclusion in his second report that if the applicant had not had such a mental state of mind prior to and during her offending, she would most likely not have acted in the way in which she did. His Honour rightly observed that it was for the applicant to prove that matter on the balance of probabilities, and she had not done so, not the least reason for which was that she did not give evidence at the sentence hearing.

53. His Honour considered letters written on the applicant’s behalf. He accepted that she had little in the way of prior convictions. He accepted that she was remorseful and contrite.

54. When the ROS are read as a whole, it cannot be said that his Honour failed to take into account positive features of her subjective circumstances. It was not incumbent upon the sentencing judge to make reference to every positive matter referred to in the Sentence Assessment Report and the psychological reports from Mr Diment. Bearing in mind what Johnson J said in Zreika v R [2012] NSWCCA 44 at [80]-[81], it is not without significance that, part of the way through his ROS, the sentencing judge asked counsel, “if there is any fact or principle that has been provided to me that you wish to add to the summary of events that I have given so far”. Counsel for the applicant raised only the matter of the Form 1 offences and the issue of special circumstances.

55. I would reject this ground.  

Ground 4:   The sentencing judge erred in failing to make findings on rehabilitation and re-offending

Submissions

56. The applicant relied on similar matters in support of this ground as were relied upon in relation to ground 3. The applicant submitted that the sentencing judge made no findings regarding reoffending and no specific finding in relation to rehabilitation. The applicant acknowledged that the sentencing judge said:

I am satisfied that she has the capacity to be rehabilitated and to be able to overcome her requirement for the obvious greed that was involved.

The applicant described that as a lack of finding. Senior Counsel said that no positive finding was made that the applicant was rehabilitated or was well on the way.

57. The applicant pointed to a number of decisions of this Court, including Zuffo v R [2017] NSWCCA 187, and Masters v R [2019] NSWCCA 233, which were said to impose an obligation on a sentencing judge to make an assessment of the likelihood of reoffending and prospects of rehabilitation.

Determination

58. In the passage set out when considering ground 1 (at [33] above), his Honour said that the applicant had the capacity to be rehabilitated and that she had the capacity to overcome her requirement for the greed that was involved in the offending. He concluded that those factors pointed to some prospects for the future.

59. It was scarcely surprising that his Honour expressed himself in the way he did. First, the mitigating factor in s 21A(3)(h) of the Crimes (Sentencing Procedure) Act refers to “prospects of rehabilitation”. Secondly, that was the approach taken in the applicant’s written submissions to the sentencing judge. It was nowhere submitted to the sentencing judge that the applicant had been rehabilitated.

60. In both Zuffo at [56] and Masters at [32] this Court made clear that the issue of reoffending had been clearly raised before the sentencing judge. In both cases, the sentencing judges had not referred to reoffending in their Remarks.

61. In Zuffo, Price J (with whom Hoeben CJ at CL and Adamson J agreed), having said that rehabilitation and reoffending were not the same, went on to say at [48]:

Notwithstanding the conceptual difference between the prospects of rehabilitation and the unlikelihood of re-offending, both mitigating factors share much in common. For instance, genuine remorse will be a major consideration in determining whether these mitigating factors exist: R v M.A.K.; R v M.S.K. (2006) 167 A Crim R 159; [2006] NSWCCA 381 at [41]. An assessment that an offender is unlikely to re-offend is commonly linked to a favourable finding that the offender has good prospects of rehabilitation. The need for specific deterrence may be reduced when the sentencing court determines that a person is unlikely to re-offend and has good prospects of rehabilitation.

62. In additional remarks, Adamson J said at [92]:

… Although it does not follow from a finding that an offender is unlikely to re-offend, that the offender has good prospects of rehabilitation, I would have thought that a finding that an offender was “substantially rehabilitated” would incorporate a finding that the offender is unlikely to re-offend.

63. In the present case, the parties did not raise the issue of reoffending at the sentence hearing, despite the applicant’s counsel preparing very detailed written submissions. Nevertheless, the sentencing judge made a number of findings which were relevant to the issue of reoffending. His Honour found that the applicant had family support and community support, and she had the ability to be able to reintegrate into society at the conclusion of the sentencing exercise.

64. His Honour also found that the applicant had expressed remorse and contrition, that her background showed an ability to obtain and retain work, that she had a background in family support and assistance “to the degree that it is capable of being provided to her having regard to the obligations of her parents”.

65. Finally, his Honour’s finding that the applicant had the capacity to be able to overcome her requirement for greed, was a finding particularly relevant to the issue of reoffending.

66. In my opinion, there can be little doubt that his Honour did give express consideration to the issue of the applicant’s rehabilitation. That appears clearly from the portion of the ROS extracted earlier in this judgment in relation to ground 1. On a reading of the ROS as a whole, I am not persuaded that his Honour failed to deal in substance with the question of the likelihood of reoffending of the applicant.

67. I would reject this ground.

Ground 5:   Parity

68. One of the other members of the syndicate, Sharna-Marie Kay, pleaded guilty in the Local Count to one count of supplying prohibited drugs on an ongoing basis. She was committed for sentence to the District Court, and came before Delaney ADCJ. She asked his Honour to take into account one further charge of supplying prohibited drugs on an ongoing basis. That offence was placed on a Form 1.

69. On 17 April 2019 she was sentenced to a non-parole period of one year eight months with a balance of term of two years and four months.

70. Ms Kay sought leave to appeal to the Court of Criminal Appeal against the sentence imposed. Her appeal was allowed and the sentence quashed: Kay v R [2019] NSWCCA 275. In lieu, she was sentenced to a non-parole period of 12 months with a balance of term of 17 months.

Submissions

71. The applicant submitted that the sentence imposed by Delaney ADCJ on Ms Kay was 72% of that imposed on the applicant, and the non-parole period of one year and eight months was slightly under half of that imposed on the applicant. The applicant submitted that with the reduction of Ms Kay’s sentence in this Court, Ms Kay’s non-parole period is now less than one third of that imposed on the applicant.

72. The applicant accepted that her role was of greater importance than Ms Kay’s role in the syndicate and accepted that the applicant was sentenced on the basis that the two s 25A offences were representative. The applicant accepted that both of those matters warranted her receiving a longer sentence, but not to the extent of the disparity that exists as a result of this Court’s decision.

73. The Crown pointed to the fact that both offenders were initially sentenced by the same judge, and pointed to the desirability of that being the case. The Crown noted that the applicant’s legal representative accepted before Delaney ADCJ that she was higher in the hierarchy than Ms Kay.

74. The Crown pointed to the significant difference in the role found in this Court in relation to the applicant and Ms Kay. The Crown submitted that the greater difference now established between their roles justified the difference in the severity of the sentence.

Determination

75. The particular error that this Court found in relation to Delaney ADCJ’s sentencing of Ms Kay was his Honour’s equating the sophistication of the organisation with Ms Kay’s role in the organisation.

76. Justice Harrison (with whom Payne JA and N Adams J agreed) said:

[24]   It cannot be seriously disputed that Ms Kay has worked delivering cocaine on behalf of what appears to be a well-organised drug supply operation. As his Honour noted, the “enterprise operated in an organised and systematic way”. His Honour also accepted that, with respect to that syndicate, “the level of planning and organisation was significant”. These findings appear to me to be uncontroversial.

[25]   It is however a mistake in my view to elide or conflate the sophistication of the organisation that employed Ms Kay with her role working for the syndicate as a “runner”. Having regard to the agreed facts, I am unable to accept that Ms Kay played what his Honour described or characterised as “a very significant part”. Stripped to its bare essentials, Ms Kay’s role was to be told by a phone call or message received from a customer where to deliver cocaine and in what quantity and then to deliver it to the customer and collect payment. Ms Kay was clearly at the very bottom of the hierarchy in every sense of the term. She did not source the cocaine. She did not contribute capital or administrative know-how to the criminal enterprise. She did not cut, weigh or package the cocaine. She did not seek out customers. She was required to use her own vehicle. She did not share in the profits of the organisation, as distinct from being paid with respect only for deliveries made by her. She did not organise or give instructions to others in the operation who were subservient to her. In a rhetorical sense, it is difficult to conceive of anyone in the organisation who could have been lower in the scale of responsibilities, influence or income. Indeed, in this last respect it appears that Ms Kay was paid at least partly and occasionally in kind, a factor that in my view bespeaks her particularly vulnerable position in the overall scheme. It is correspondingly difficult for me to accept that his Honour’s assessment of Ms Kay’s role as “very significant” or “a significant player” is accurate.   (emphasis added)

77. Justice Harrison then rejected a submission on behalf of Ms Kay that Delaney ADCJ had not properly taken into account her strong subjective case. His Honour then went on to say:

[27]   I am of a different view about his Honour’s sentence, which is patently based upon a finding that Ms Kay played a very significant role in the organisation for which she worked. With great respect to his Honour, that characterisation is not available upon the agreed facts. Without wishing unnecessarily to add to the ever expanding judicial lexicon in this area of legal discourse, Ms Kay was in effect no more than a minnow. She was dispensable and replaceable. The viability of the operation did not depend upon her remaining in the role she performed. I consider that his Honour’s assessment of Ms Kay’s role was erroneous and that the sentence that he imposed was accordingly manifestly excessive. …   (emphasis added)

[28]   In my opinion, having regard to all of the circumstances, Ms Kay’s criminality was low.

78. Although the ultimate sentence imposed on Ms Kay was a significantly lower sentence than that imposed upon the applicant, the difference in their roles in the syndicate was significant. The applicant’s counsel at the sentence hearing accepted that she knowingly directed the activities of the syndicate and that she did so not to support any use or addiction herself. Rather, her involvement was motivated by financial gain. The drug paraphernalia found at the execution of the search warrant together with the money and the number of mobile telephones found were all further indications of the importance of the applicant’s role in this syndicate.

79. Although it was submitted that there was no evidence that the applicant would retain all of the money found, she did not give evidence about this matter at the sentence hearing. Given that she involved herself in the drug supply business for financial reward, and given her clear organisational role in the syndicate, it is a reasonable inference that she would ultimately be retaining a substantial proportion of the money, even if she was not, as her Senior counsel at the sentence hearing submitted, at the apex of the drug supply chain.

80. The comparison made by the applicant between her sentence and Ms Kay’s sentence fails to take into account that the applicant was also sentenced for directing a criminal group. That count involved two relatively serious offences on a Form 1. Any comparison between the sentences must be with the indicative sentence for count 1. A comparison with the non-parole periods is meaningless in the circumstances because the sentencing judge, quite correctly, did not indicate indicative non-parole periods. It is also clear that his Honour notionally accumulated the indicative sentences to impose the aggregate sentence now challenged.

81. While I accept that there is disparity between the applicant’s indicative sentence for Count 1, and the sentence ultimately imposed on Ms Kay by this Court, I do not consider that the disparity is such as to give rise to a justifiable sense of grievance, when regard is had to the difference in the roles of the two offenders. In the same way, a comparison between Ms Kay’s sentence and the aggregate sentence imposed on the applicant does not give rise to a justifiable sense of grievance, bearing in mind the difference in roles and the fact that the aggregate sentence included punishment for Count 2 and its Form 1 offences.

82. I would reject this ground.

Ground 6:   Manifest excess

Submissions

83. The applicant submitted that the sentence was manifestly excessive whether as a result, directly or indirectly, of the errors identified in the earlier grounds of appeal, or for undisclosed error. I have rejected the earlier grounds asserting error. Any error must be undisclosed error.

84. The applicant submitted that the sentence was unduly harsh, severe and unfair by comparison with sentences imposed on other offenders for like offences. The applicant pointed to the JIRS statistics showing that 41.5% were dealt with by other than a custodial sentence, that 11.9% received suspended sentences, and 24.6 % received intensive corrections orders. The head sentences were said to range from 12 months to seven years, with only two persons receiving a sentence in excess of five years.

85. Since the changes made by the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW) which commenced on 24 September 2018, the applicant submitted that the statistics showed that of 28 persons sentenced for offences against s 25A, 63.8% were dealt with by ICOs and 34% received a full time custodial sentence. No one received a sentence of imprisonment in excess of 54 months, and 56.4% received a sentence of three years or less.

86. The Crown submitted that the approach of the applicant to manifest excess by reliance on the statistics emphasised what this Court has often referred to as the limitations of statistics. Here, it was submitted, reliance is placed by the applicant on bare statistics without knowledge of the factual circumstances of the offending and the subjective circumstances of the offender.

87. The Crown submitted that the issue is not to be determined by whether the sentence falls at the higher end of, or outside, a particular statistical range, but whether the sentence falls outside the range of the permissible exercise of sentencing discretion. The Crown submitted that the objective seriousness of the offence was found to be within the mid-range, and yet the indicative sentence for the ongoing supply was four years and six months where the maximum penalty provided was 20 years’ imprisonment.

88. The Crown submitted that there was the further aspect of the serious charge on the Form 1, being another count of supplying drugs on an ongoing basis.

89. The Crown said that in relation to count 2 where the offence was found to be within the mid-range, the indicative sentence was only two years and six months against a maximum penalty of 15 years.

Determination

90. The general principles relating to a ground of manifest excess have been set out in a number of recent decisions in this Court including Newman v R [2018] NSWCCA 208 at [47] and Obeid v R [2017] NSWCCA 221 at [443]. Because of the narrow basis upon which this ground was argued, it is not necessary to set out those principles.

91. In relation to the use of sentencing statistics in support of a ground of manifest excess, Bellew J (Macfarlan JA and Fullerton J agreeing) said in Skocic v R [2014] NSWCCA 225 at [19]:

The principal submission made on behalf of the applicant was that a conclusion of manifest excess should be reached solely by reference to sentencing statistics. That submission misunderstands, and overstates, the use to which statistical material can be put on sentence. In MLP v R [2014] NSWCCA 183, with the concurrence of Macfarlan JA and Adamson J, I had occasion to make a number of observations (commencing at [41]) regarding this issue. Those observations included the following:

(i)   consistency in sentencing is not demonstrated by, and does not require, numerical equivalence. What is sought is consistency in the application of the relevant legal principles: Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520 at [48]-[49].

(ii)   sentences imposed in other cases do not mark the outer bounds of the permissible sentencing discretion but stand as a yardstick against which to examine a proposed sentence. What is important are the unifying principles which such sentences reveal and reflect: Barbaro v R; Zirilli v R [2014] HCA 2; (2014) 305 ALR 323 at [41];

(iii)   the presentation of sentences passed in the form of numerical tables and graphs is of limited use: Hili (supra) at [48]. This is because reference to the lengths of sentences passed says nothing about why the sentences were fixed as they were;

(iv)   this Court has emphasised the need to adopt a careful approach when asked to have regard to statistics: R v Nikolovska [2010] NSWCCA 153 at [117] per Kirby J, Beazley JA (as her Honour then was) and Johnson J agreeing. A similarly careful approach is required when the Court is asked to compare a sentence imposed in one case with a sentence imposed in another: RLS v R [2012] NSWCCA 236 at [132] per Bellew J, McClellan CJ at CL and Johnson J agreeing. The need to take care in each instance arises, in part, from the fundamental fact that there will inevitably be differences, both in terms of the objective circumstances of offending and the subjective circumstances of the offender, between one case and another;

(v)   the fact that a particular sentence is, by reference to statistics, the highest imposed for a single instance of particular offending does not demonstrate that the sentence is unduly harsh. As a matter of common sense, there will always be one sentence which constitutes the longest sentence imposed for particular offending: Jolly v R [2013] NSWCCA 76; (2013) 229 A Crim R 198 at [75].

92. In Hordern v R [2019] NSWCCA 210 Johnson J (Gleeson JA and Fagan J agreeing) said:

[45]   Since Skocic v R, the High Court of Australia returned to the use of sentencing statistics in The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39. The plurality (French CJ, Keane and Nettle JJ) emphasised (at 559 [28]), amongst other things, that consistency in sentencing involved consistency in the application of relevant principles with consistency not being synonymous with numerical equivalence and with presentation in the form of numerical tables and graphs not being helpful. Bell and Gageler JJ observed (at 565 [47]) that statistical material showing the pattern of past sentences for an offence may serve as a yardstick by which a court assesses a proposed sentence and an appellate court assessed a challenge of manifest inadequacy or manifest excess. Bell and Gageler JJ noted (at 565 [49]) that statistics have a role to play in fostering consistency of sentencing, and in appellate review, provided care is taken to understand the basis upon which they have been compiled.

[46]   In this case, counsel for the Applicant sought to rely upon bare statistics. Counsel’s submissions did not take the Court to the facts of the sentencing decisions to assist an understanding of the outcomes in particular cases. As a result, there was no informed examination of the cases reflected in the statistics. The Applicant’s submissions suffer from the same vice as noted by this Court in Hayek v R [2016] NSWCCA 126 at [98], [101].

93. As in Hordern, there was in the present case no informed examination of the cases reflected in the statistics. Further, the statistics only concerned count 1 when an aggregate sentence was imposed in respect of two counts where it can be observed that some accumulation of the sentences was applied.

94. Further, account must be taken of the offences appearing on each Form 1 relating to the two counts. The applicant benefitted from the fact that a further serious charge of supplying drugs on an ongoing basis was included on a Form 1 rather than being dealt with as a separate offence, a matter commented on by the sentencing judge. In both cases the number of individual supplies well exceeded the minimum in relation to an offence under s 25A, and the charges were said to be representative.

95. Although the applicant’s criminal record was not a serious one, the number of motor vehicle offences (23 in seven years) committed by her commencing from the time when she was a learner driver, coupled with the six offences of drive while disqualified on the s 166 certificate, demonstrated a continuing disobedience of the law. It was also considerably to the applicant’s benefit that she was given six concurrent six month sentences for each of the offences of drive while disqualified contained in the s 166 certificate. Those concurrent sentences were all entirely subsumed in the aggregate sentence imposed.

96. Finally, the applicant received a generous reduction of the non-parole period by reason of the finding of special circumstances.

97. It may be accepted that the aggregate sentence imposed was a stern one. However, it cannot be said to be outside the legitimate range of discretion of a sentencing judge when all the circumstances of the offending are taken into account.

98. I would reject this ground of appeal.

Conclusion

99. Accordingly, I propose the following orders:

(1)   Leave to appeal granted.

(2)   Appeal dismissed.   

100. BUTTON J: I agree with Davies J.   

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Decision last updated: 04 June 2020