R v Achurch
[2011] NSWCCA 186
•16 August 2011
Court of Criminal Appeal
New South Wales
Case Title: R v Achurch Medium Neutral Citation: [2011] NSWCCA 186 Hearing Date(s): 27 May 2011 Decision Date: 16 August 2011 Jurisdiction: Before: Macfarlan JA at 1
Johnson J at 2
Garling J at 174Decision: 1. Crown appeal allowed.
2. Sentences imposed on the Respondent in the District Court on 6 August 2010 quashed.
3. In their place, the Respondent is sentenced as follows: (i) on the first count, sentenced to a fixed term of imprisonment of two years and three months commencing on 16 August 2006 and expiring on 15 November 2008, (ii) on the second count, sentenced to a non-parole period of six years commencing on 16 August 2007 and expiring on 15 August 2013 with a balance of term of two years commencing on 16 August 2013 and expiring on 15 August 2015, (iii) on the fourth count, sentenced to imprisonment by way of a non-parole period of 11 years commencing on 16 August 2008 and expiring on 15 August 2019, with a balance of term of five years commencing on 16 August 2019 and expiring on 15 August 2024.
4. The Respondent will be eligible for release on parole on 16 August 2019.Catchwords: CRIMINAL LAW - Crown appeal on sentence - Respondent convicted at trial of three offences - supply large commercial quantity of methylamphetamine - supply commercial quantity of MDMA - supply MDMA - Respondent a principal in drug supply enterprise - standard non-parole period offences - errors in determination of objective seriousness - limited relevance of non-dissemination of drugs into community - markedly excessive weight given to Respondent's medical condition - subjective factors allowed to overwhelm objective seriousness of offences - failure to give proper regard to standard non-parole periods - sentences manifestly inadequate - Respondent resentenced
Legislation Cited: Criminal Appeal Act 1912
Drug Misuse and Trafficking Act 1985
Crimes (Sentencing Procedure) Act 1999
Crimes (Administration of Sentences) Act 1999Cases Cited: R v JW [2010] NSWCCA 49; 77 NSWLR 7
Khoury v R [2011] NSWCCA 118
R v Green; R v Quinn [2010] NSWCCA 313
Fahs v R [2007] NSWCCA 26
R v Way [2004] NSWCCA 131; 60 NSWLR 168
R v Sellars [2010] NSWCCA 133
R v Knight [2007] NSWCCA 283; 176 A Crim R 338
Hristovski v R [2010] NSWCCA 129
R v Chan [1999] NSWCCA 103
R v Gao [2007] NSWCCA 343
Ly v R [2008] NSWCCA 262
R v Smith (1987) 44 SASR 587 at 589
R v Sopher (1993) 70 A Crim R 570
R v Anastasiou [2010] NSWCCA 100
R v BJW [2000] NSWCCA 60; 112 A Crim R 1
R v Badanjak [2004] NSWCCA 395
R v Higgins [2002] NSWCCA 407; 133 A Crim R 385
R v Wickham [2004] NSWCCA 193
R v Dodd (1991) 57 A Crim R 349
R v Vachalec (1981) 1 NSWLR 351
Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 370-371 [25]
Carroll v The Queen [2009] HCA 13; 83 ALJR 579
Lowndes v The Queen [1999] HCA 29; 195 CLR 665
House v the King [1936] HCA 40; 55 CLR 499 at 505
Hili v The Queen [2010] HCA 45; 85 ALJR 195
Vu v R [2006] NSWCCA 188
Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
Hejazi v R [2009] NSWCCA 282
R v AJP [2004] NSWCCA 434; 150 A Crim R 575Texts Cited: Category: Principal judgment Parties: Regina (Appellant)
Brian William Achurch (Respondent)Representation - Counsel: Ms S Dowling (Appellant)
Mr GA Brady (Respondent)- Solicitors: Solicitor for Public Prosecutions (Appellant)
Australian Criminal Law Specialists Pty Limited (Respondent)File number(s): 2007/8060 Decision Under Appeal - Court / Tribunal: - Before: His Honour Judge Woods QC - Date of Decision: 06 August 2010 - Citation: - Court File Number(s) 2007/8060 Publication Restriction:
Judgment
MACFARLAN JA : I agree with Johnson J and also with the additional observations of Garling J.
JOHNSON J : This is a Crown appeal under s.5D Criminal Appeal Act 1912 with respect to sentences imposed upon the Respondent, Brian William Achurch, at the Sydney District Court on 6 August 2010 for a number of serious drug supply offences.
Following a trial that commenced on 26 May 2008, the Respondent was convicted by the jury on 24 June 2008 of the following offences:
| Offence | Maximum Penalty | Standard Non-Parole Period | Sentence |
| Count 1 - On 7 March 2006, supply prohibited drug (MDMA) (108.7 grams) contrary to s.25(1) Drug Misuse and Trafficking Act 1985 (“DMT Act�) | 15 years’ imprisonment | Not applicable | Imprisonment for a fixed term of two years and three months commencing on 16 August 2006 and concluding on 15 November 2008 |
| Count 2 - On 7 March 2006, supply commercial quantity of a prohibited drug (MDMA) (270 grams) contrary to s.25(2) DMT Act | 20 years’ imprisonment | 10 years | Non-parole period of four years commencing 16 August 2006 and expiring 15 August 2010 (with no balance of term) |
| Count 4 - On 30 May 2006, supply large quantity commercial of a prohibited drug (methylamphetamine) (2.6 kilograms) contrary to s.25(2) DMT Act | Life imprisonment | 15 years | Non-parole period of five years commencing on 16 August 2007 and expiring on 15 August 2012 with a balance of term of eight years commencing on 16 August 2012 and expiring on 15 August 2020 |
The total effective sentence comprised a non-parole period of six years commencing on 16 August 2006 and expiring on 15 August 2012, with a balance of term of eight years' imprisonment commencing on 16 August 2012 and expiring on 15 August 2020.
The Respondent was acquitted by the jury of the third count on the indictment.
The Crown Appeal
A Notice of Appeal under s.5D Criminal Appeal Act 1912 was filed by the Crown on 6 September 2010, asserting that the sentences passed were manifestly inadequate. In accordance with the usual practice ( R v JW [2010] NSWCCA 49; 77 NSWLR 7 at 15-16 [33]-[38]), the Crown filed a document on 29 April 2011 giving notice of additional grounds of appeal. The Crown relies upon the following grounds of appeal:
(a) Ground 1 - his Honour erred in failing to determine the objective criminality of Count 1;
(b) Ground 2 - his Honour erred in failing to determine adequately where Count 2 lay in the range of objective seriousness for offences of that type;
(c) Ground 3 - his Honour erred in failing to determine adequately where Count 4 lay in the range of objective seriousness for offences of that type;
(d) Ground 4 - his Honour failed to have adequate regard to the standard non-parole period for Count 2;
(e) Ground 5 - his Honour failed to have adequate regard to the standard non-parole period for Count 4;
(f) Ground 6 - his Honour gave excessive weight to the Respondent's medical condition;
(g) Ground 7 - the sentences are individually, and as aggregated, manifestly inadequate.
Facts of Offences
The Respondent was convicted of the offences at trial. A summary of facts was tendered by the Crown as part of the sentencing proceedings and was relied upon for the purpose of sentence. The statement of facts revealed the following.
The Respondent's offences were detected as a result of a police investigation into drug trafficking in south-western Sydney. The investigation initially targeted the activities of a street dealer, Andrew Massey ("Massey"), using an undercover police officer who conducted a number of controlled purchases of indictable quantities of methylamphetamine.
Massey's mobile telephone was intercepted. It was apparent that Massey's primary source of methylamphetamine and MDMA was a second offender, Dean Mahanay ("Mahanay").
On the afternoon of 7 March 2006, Mahanay and a third offender, Troy Kearines ("Kearines") attended the Respondent's residence at Horsley Park. Mahanay met with the Respondent and collected from him a quantity of pills containing the prohibited drug MDMA. Mahanay's usual practice was to collect prohibited drugs from the Respondent just prior to meeting with customers, to minimise the risk of being discovered by police or being "ripped off" . For the same reasons, it was also Mahanay's practice to provide the proceeds of the sale to the Respondent following the transaction.
At about 6.50 pm on 7 March 2006, Mahanay and Kearines met an undercover police officer at the Casula shops and supplied him with three types of MDMA pills, totalling 400 pills, for the price of $4,600.00 (Count 1).
At the same time, the undercover officer was supplied with a further seven pills as a free sample of other drugs available for purchase. Mahanay told the undercover officer that he knew a man who was producing a large number of these pills, and that he currently had a number of pills with that particular design motif in stock.
At about 7.15 pm on 7 March 2006, Mahanay and Kearines met with the Respondent at his home in Horsley Park and gave him an amount of money from the earlier drug supply.
After leaving the Respondent's home, and without attending any other location, Mahanay contacted the undercover police officer and offered to supply him with 1,000 MDMA pills (Count 2).
Intercepts on Mahanay's telephone confirmed that Mahanay worked as a drug runner for the Respondent.
On about 8 April 2006, the Respondent and his family moved to a property at Harrington Park. The Respondent arranged with the landlord of his former Horsley Park residence for a further offender, Julian Howard ("Howard"), to lease the Horsley Park property. In an intercepted telephone conversation on 9 April 2006, Howard described himself as being "an employee" of the Respondent, stating that he and Mahanay did the leg work whilst the Respondent sat back and did the organising.
On 20 March 2006, the undercover police officer contacted Mahanay and placed an order for 500 MDMA pills. Intercepted conversations between the Respondent and Mahanay showed that the Respondent was directly involved in the chain of supply of those drugs to the police officer. Further, the Respondent was familiar with the business arrangements to the point that he referred to the undercover police officer by name during these conversations.
The Respondent was implicated in the large commercial supply of prohibited drugs in subsequent lawfully intercepted telephone conversations with Mahanay. Those conversations showed that the Respondent was the employer whilst Mahanay was the employee. On numerous occasions, the Respondent directed Mahanay to perform certain tasks, such as the collecting of sums of money owed by persons in relation to the supply of prohibited drugs. Collected monies were then delivered to the Respondent.
A number of names (including "Church" , "Brian" , "Pops" and "Old Mate" ) were used by Mahanay to refer to the Respondent in his conversations with other criminal associates. In several lawful intercept conversations, Mahanay was heard to tell other criminal associates that he was to collect a certain amount of money before he could go and see the Respondent.
On 30 May 2006, five search warrants were executed simultaneously across south-western Sydney. During the execution of the search warrant at the Respondent's address, police located the mobile phone used by the Respondent during the intercepted telephone conversations. Also located during this search in the laundry area were a set of electronic scales and a quantity of unused "Glad" resealable plastic bags and two large bottles containing acetone. Police also found a notebook which constituted a drug ledger recording amounts of monies and drugs. The ledger referred to amounts of up to $130,000.00, and named both Mahanay and Howard.
A search warrant was executed upon the Horsley Park premises previously occupied by the Respondent, but then occupied by Howard. The rear garage was opened. Located in the garage were several dogs belonging to Howard. During the course of the search of the garage area, police discovered (at two different locations within the garage) six individual "Glad" resealable plastic bags containing 2.6 kilograms of methylamphetamine (Count 4).
The large commercial quantity of methylamphetamine was one kilogram, so that the quantity located was two-and-a-half times the large commercial quantity.
The Respondent was arrested on 16 August 2006 and has remained in custody since that time solely with respect to these offences. As will be seen, the delay between conviction on 24 June 2008 and sentence on 6 August 2010 resulted from defence applications to allow evidence to be obtained concerning the Respondent's medical condition and his medical management in custody.
The Respondent's Subjective Circumstances
The Respondent was born in September 1958. He was 47 years' old at the time of the offences and 51 years' old at the time of sentence.
The Respondent has a prior criminal history. He has convictions for stealing (1984), assault occasioning actual bodily harm and malicious injury (1986), receiving (1991), three counts of armed robbery and larceny motor vehicle (1992), drive whilst licence cancelled (2000), receiving, goods in custody and possession of a prohibited weapon (2002) and possession of a prohibited drug (2002).
The Respondent was sentenced to imprisonment by way of periodic detention for receiving offences in 1991, full-time imprisonment for the armed robbery and larceny motor vehicle offences in 1992 (reduced on appeal to this Court in 1994) and imprisonment for receiving and other offences in 2002 (with the sentences confirmed on appeal to the District Court in May 2004).
On 24 June 2004, the Respondent's parole was revoked by the State Parole Authority, and he was required to serve a term of imprisonment for one year and four days commencing on 14 May 2004 and expiring on 17 May 2005.
As mentioned above, the Respondent's offences were committed between 7 March and 30 May 2006, and he was arrested on 16 August 2006 and has remained thereafter in custody.
The Respondent's sister and ex-wife gave evidence at the sentencing hearing. In addition, a number of medical reports were tendered, including reports of Dr Grant Luxton, renal physician, dated 16 June 2010 and 1 July 2010. A report from Mr Watson-Munro, psychologist, dated 2 June 2010 was also tendered at the sentencing hearing. The Respondent did not give evidence at the sentencing hearing nor apparently at trial.
The evidence on sentence revealed that the Respondent had been a heavy drinker from his mid-teens until his mid-30s, and had also been a regular amphetamine user during this time. After being diagnosed with diabetes at 33 years of age, the Respondent stated that he ceased drinking and taking drugs.
The sentencing Judge accepted that, at the time of sentence, the Respondent had the following medical conditions:
(a) Type 1 diabetes mellitus (insulin-dependant) with associated medical complications of diabetic retinopathy, diabetic neuropathy and chronic kidney disease due to diabetic nephropathy;
(b) hypertension;
(c) left ventricular hypertrophy (due to hypertension);
(d) congestive cardiac failure (due to hypertension and possible ischaemic heart disease);
(e) chronic obstructive pulmonary disease due to smoking; and
(f) peripheral vascular disease and dyslipidaemia (elevated cholesterol).
According to Dr Luxton's report of 16 June 2010, it was anticipated that within the next few years, the Respondent would require dialysis treatment for his chronic kidney condition. Dr Luxton's report of 16 June 2010 concluded with the following statement (AB154):
"It is therefore reasonably likely that prolonged incarceration will significantly reduce his life expectancy although due to the number of variables it is not possible to quantify this."
Some Findings of the Sentencing Judge
Given the issues raised by the grounds of appeal in this Court, it is appropriate to set out a number of statements in the remarks on sentence.
After referring to the history of the proceedings and the jury verdicts, the sentencing Judge referred to the standard non-parole periods applicable to the second and fourth counts and the maximum penalty for the fourth count (AB12-13). His Honour referred to the Respondent's criminal history, observing that there was no prior offence of drug supply (AB13).
His Honour then made a number of significant findings concerning the Respondent's role in the offences (AB13):
"Various co-offenders have been dealt with in relation to the matters - the offender Dean Mahanay, Troy Kearines - but since it is clear that the offender here was a principal, none of the other offenders are directly comparable. I accept the characterisation of the role played by this offender as being that of a principal in relation to counts 1 and 2 and, in relation to count 4, at least a co-principal. The Crown put before the jury the proposition that the accused's role was central, that he was in effect the boss or director of the exercise and that the others involved - Mahanay, persons called Howard and Tina Cobbs - were subordinate to him. While precisely what role Howard played is impossible to tell (perhaps he was a co-principal with the offender) certainly the offender was a principal in relation to the large quantity of materials found in the house at Horsley Park on 30 May 2006. Accordingly, utilising the authorities applicable, nothing other than a substantial sentence of full-time imprisonment is applicable in a case such as this."
Soon after, the sentencing Judge referred to the relationship between the Respondent and the Horsley Park property (AB14-15):
"In the trial proceedings there was evidence of the involvement of the offender with that property in the form of a rental agreement, and exhibit X set out very plainly the position Mr Brian William Achurch as the person having control in effect of the relevant property where the drugs were eventually found. The offender was not himself living there at that stage but his connection with that property was clear and clearly proved to the satisfaction of the jury and, though it is not necessary to say it, to my satisfaction. One of the items found at the property was a very neatly prepared account book in the form of exhibit V, which set out various cash deposits into the Westpac Bank for Michael Achurch. It is plain that not all of income from the drug dealing exercise was being wasted, so to speak - some of it was being used for normal family domestic purposes. But in any event the involvement of the offender, Mr Brian Achurch is clearly proven."
After referring to other aspects of the evidence at trial, the sentencing Judge described the Respondent as having "a principal role and principal culpability" (AB15). His Honour then stated (AB15):
"The courts have repeatedly said that for a business enterprise where drugs, unlawful drugs, are sold on a substantial basis, nothing other than a substantial sentence of imprisonment is appropriate, and I accept and I will be guided by that general principle. The offences were all organised and planned, these were not 'one-off' activities. The sequence of events points to planning, although it does not always point to competence - the tape recordings reveal conversations between Brian Achurch and Mahanay with various complaints about people trying to rip them off, not paying and so on, of a kind which are characteristic of this kind of bumbling enterprise. Nonetheless it was not on the 'spur of the moment' and it was organised activity.
So far as damage to the community is concerned, in cases like this one cannot point to specific individuals who are adversely affected or would be adversely affected by these kinds of crimes. Nonetheless plainly if the drugs had been sold to people willing to take them, there would have been injury and damage."
The remarks then turned to the Respondent's subjective circumstances. His Honour characterised the Respondent's criminal history in the following way (AB16):
"... I have referred to his history of his contact with the courts. It stands in his favour to a limited extent, particularly that there has been no major drug dealing beforehand in his activities, but it is a life of regrettably persistent minor criminality (noting however that he has served a term for armed robbery previously)."
It must be said that this was a somewhat generous depiction of the Respondent's criminal history, which had seen the Respondent imprisoned several times, the last of which had expired on 17 May 2005, 10 months before the offences committed on 7 March 2006.
Following reference to the delay in the sentencing proceedings, his Honour set out, in some detail, aspects of the reports of Dr Luxton and Mr Watson-Munro (AB16-19). The sentencing Judge then observed (AB19):
"Counsel have put before me a number of the leading authorities dealing with the imprisonment of people suffering from illness. One principle is clear; the mere fact that somebody happens to be sick does not mean that they get a free ride or a lighter sentence. Summarising the authorities, my understanding is that that principle is qualified where there is a multiplicity of very serious illnesses so great that it would be a threat to life and a grave impairment of the quality of life to impose a longer period of imprisonment than is minimally necessary to serve purposes of punishment. I am satisfied on all the medical material before me that this is an exceptional case. It is not so exceptional that Mr Achurch gets straight out of gaol, but it is sufficiently significant for me to take it into account as an exceptional reason why I should, in sentencing for the principal offence, set a non-parole period which is significantly lower than otherwise would be the case."
His Honour indicated an intention to impose concurrent sentences for the first and second counts and to commence the sentence on the fourth count one year after the commencement of the sentences for the other counts. His Honour then imposed a fixed term of imprisonment on the first count, observing that he declined to set a non-parole period "for the obvious reason that that sentence has already been served" .
His Honour then moved to the second count and imposed initially a fixed term of four years' imprisonment, stating that he declined to set a non-parole period "for the reason that the structure of the sentences imposed overall makes it inappropriate" (AB20).
The transcript reveals that the following discussion ensued immediately after his Honour made that statement (AB20):
"BROWN [for the Crown] : Sorry your Honour, I think you have to fix a non-parole period with a standard non-parole period offence.
HIS HONOUR: Well I need to explain why I am setting the sentence don't I? I don't need to ...
BROWN: Yes but I think it's part of the legislation that with standard non-parole period offences there needs to be a non-parole period and a parole period set, that's all, to comply with the legislation.
HIS HONOUR: What section's that?
BROWN: I haven't brought my practice. I think it might be under s54.
HIS HONOUR: Very well, thank you. For count 2 the offender is sentenced to imprisonment for four years to date from 16 August 2006 and to expire on 15 August 2010. I set a non-parole period of four years. My reason for setting a non-parole period which is less than the standard non-parole period is because in my view this offence is significantly less substantial in terms of culpability than a mid-range offence for such an offence."
The notation on the back of the indictment, signed by his Honour, said with respect to the second count "I find special circumstances - criminality of offence is well below mid-range of seriousness" (AB5).
His Honour then turned to the fourth count and imposed a non-parole period of five years with a balance of term of eight years. His Honour explained this sentence as follows (AB20-21):
"In my view, this is not a matter which I should set the objective seriousness of the offence as being mid-range for the reason that the offender has no history of drug supply and because the offence was 'nipped in the bud' and nothing in effect came of it. There was no actual supply to members of the community; albeit the offence itself is serious in the grave potential danger it poses the community."
Before concluding his remarks on sentence, the sentencing Judge said (AB21):
"As I explained, there are medical considerations which I regard as being exceptional to a point where I have reduced what would otherwise be the justifiable retributive punishment to a lower level. The offender will be eligible to be considered for release to parole at the expiration of the non-parole period on 15 August 2012. I recommend that in considering the grant of parole or otherwise, the Parole Board take into account these remarks on sentence and the medical condition of Mr Achurch at the time when parole is being considered.
That means Mr Achurch that the non-parole period is not an automatic point at which you may be released from custody. It's possible that you may be released from custody at that time. But for your accumulation of serious medical conditions, your actual sentence, your actual non-parole period, your minimum time in custody, would have been longer, and whether or not you will be released to custody in 2012 or some later date, remains a matter for the Parole Board in the light of its consideration of the matters I have mentioned."
The notation concerning the fourth count on the back of the indictment, signed by his Honour, said "I find special circumstances - medical condition" .
Evidence in the Court of Criminal Appeal
Before this Court, the Crown sought to read the affidavit of Magdalen Clements sworn 13 May 2011, which annexed reports of Dr K Suresh Badari, senior staff specialist with Justice Health. The Court allowed the affidavit to be read upon the basis that it would only become relevant in the event that the Court found error and determined to resentence the Respondent. Dr Badari gave evidence and was cross-examined by Mr Brady, counsel for the Respondent.
In addition, an affidavit of the Respondent affirmed 12 May 2011 was read at the hearing in this Court, upon the same basis as evidence was received from Dr Badari.
I will return to the evidence of Dr Badari and the affidavit of the Respondent after considering the grounds of appeal.
Ground 1 - Failure to Determine Objective Criminality of First Count
Submissions
The Crown submitted that it is axiomatic that, to determine the appropriate sentence for a particular offence, it is first necessary to assess the gravity of the crime. Without such an assessment, it was submitted that it is not possible to reliably impose a sentence that is reasonably proportionate to the criminality of the offending.
The Crown submitted that the first count was a very serious example of an offence of supplying a prohibited drug. The sentencing Judge recited the facts relating to the supply of 108.7 grams of MDMA, and noted that the Respondent was a principal in the organised drug syndicate that affected the supply and that it was part of an ongoing operation for commercial gain. His Honour recited the Respondent's subjective circumstances and then pronounced sentence.
The Crown submitted that his Honour made no finding as to the objective gravity of this offence and gave no reason for the sentence that he imposed. Had his Honour considered the objective criminality of this offence, it was submitted that given the Respondent's role as the principal of the drug operation, the level of planning, the commercial gain and the quantity of drugs involved, together with the fact that the Respondent was not a drug user and was dealing for commercial gain, that this was a very serious example of such an offence.
It was submitted for the Crown that this error served to explain why a manifestly inadequate sentence was imposed for this offence, an argument developed further with respect to Ground 7.
Mr Brady submitted that his Honour specified the factual basis upon which he sentenced the Respondent, including factors which aggravated or mitigated the seriousness of the offence. Whilst acknowledging that the sentencing Judge did not specifically state where the offence fell in the range of objective seriousness, Mr Brady submitted that his Honour clearly considered the seriousness of the offence.
Mr Brady submitted that a fixed term of imprisonment of two years and three months, in view of the objective criminality and the Respondent's subjective circumstances, was not outside the range of available sentences for an offence of this type. Bearing in mind the finding that this was an exceptional case, he submitted that no error had been demonstrated in the manner complained of in this ground.
Decision
The maximum penalty for the first count, an offence under s.25(1) DMT Act is imprisonment for 15 years. There is no standard non-parole period for this offence.
In Khoury v R [2011] NSWCCA 118, Simpson J (Davies J and Grove AJ agreeing) observed at [71]:
"Assessment of the objective gravity of any offence has traditionally been an essential element of the sentencing process: R v Geddes (1936) 36 SR (NSW) 554; R v Dodd (1991) 57 A Crim R 349. It should not be doubted that any sentencing decision calls for attention to be paid to the objective gravity of the offence: Markarian v R [2005] HCA 25; 228 CLR 357."
It is the case that the sentencing Judge adverted, in a somewhat global fashion, to factors which bore upon the objective seriousness of the three offences for which the Respondent stood to be sentenced. The second and fourth counts carried standard non-parole periods and the arguments with respect to these counts will be considered under separate grounds of appeal.
In my view, the principles of sentencing required at least some assessment of the objective gravity of the first count on the indictment. The principles referred to by Simpson J in Khoury v R called for such an assessment. It was not done in this case.
Errors of this type with respect to standard non-parole period offences have been characterised by this Court as errors of process, with the question remaining whether the sentence actually imposed discloses error with which the Court should interfere on a Crown appeal under s.5D, or on an offender's application for leave to appeal under s.6 Criminal Appeal Act 1912 .
In my view, a similar approach is appropriate here. The Court should mark the fact that no finding or conclusion was made with respect to the objective gravity of the first count, but then consider what flows from that in the context of determination of the seventh ground which alleges manifest inadequacy.
Grounds 2 and 3 - Suggested Errors in Failing to Determine Adequately Where Counts 2 and 4 Lay in the Range of Objective Seriousness for Offences of that Type
Grounds 4 and 5 - Suggested Failure to Have Regard to the Standard Non-Parole Periods for Counts 2 and 4
The written submissions of the parties addressed these four grounds of appeal together and it is appropriate for this Court to take the same course.
Submissions
As the sentences were imposed after trial, the Crown submitted that the standard non-parole period provisions had direct application on sentence in this case with respect to the second and fourth counts. The Crown submitted that it was necessary to assess the objective seriousness of these offences to determine whether each offence fell within the mid-range of objective seriousness for offences of the relevant kind.
The Crown submitted that this is a basic rule of sentencing and is no idle formality: R v Green; R v Quinn [2010] NSWCCA 313 at [72]-[73].
The Crown submitted that at no time prior to the announcement of the sentences, did the sentencing Judge assess the objective seriousness of these offences or state where in the relevant range they lay. It was only after his Honour had pronounced the sentences on the first and second counts and had already determined the sentence on the fourth count, and only after the Crown lawyer raised the issue with his Honour, that the sentencing Judge provided a reason for departing from the standard non-parole period with respect to the second count.
It was submitted that his Honour gave no reasons at all for the finding with respect to the second count and that the reasons provided with respect to the fourth count were misguided. It was submitted that the Respondent's criminal history could not bear upon an assessment of the objective seriousness of the offence, nor could the fact that police had intercepted the supply of methylamphetamine involved in the fourth count before it was disseminated into the community.
The Crown submitted that matters which rendered the second and fourth counts at least mid-range offences, if not higher, included the Respondent's role as the principal of a highly organised drug operation, the fact that he was not a drug user, and was supplying for commercial gain only, the fact that the quantity involved in the fourth count was 2.6 times the large commercial quantity and the fact that the offences were part of an ongoing drug operation. The Crown submitted that the Respondent's criminality was at the highest level for offences of this type: R v Green; R v Quinn at [82]ff.
It was submitted that the greater the departure from the standard non-parole period, the greater is the requirement for reasons to be given to explain the departure. It was submitted here that there was, in reality, a massive discrepancy between the standard non-parole period for the second count (10 years) and the non-parole period imposed (four years) with no balance of term. With respect to the fourth count, the standard non-parole period was 15 years and the non-parole period imposed was five years.
The Crown submitted that both the content of the remarks on sentence, and the actual non-parole periods imposed, revealed error as asserted by the Crown in Grounds 2, 3, 4 and 5.
Mr Brady submitted that the sentencing Judge did advert to the standard non-parole periods with respect to the second and fourth counts, and did have regard to them in passing sentence.
Concerning the second count, whilst acknowledging that the sentencing Judge gave no specific reasons for the assessment that the offence was less than the mid-range, Mr Brady submitted that his Honour was entitled to come to that view because, whilst the crime was organised, it was a "kind of bumbling exercise" , and by reference to the amount of drug involved in the second count and the fact that the offence involved an offer to supply only.
With respect to the fourth count, Mr Brady accepted that the sentencing Judge did err in stating that the objective seriousness was reduced by the Respondent's lack of history for drug supply. He submitted, however, that the sentencing Judge was entitled to consider the fact that the drug was not actually supplied as a matter reducing its objective seriousness: Fahs v R [2007] NSWCCA 26 at [29]. He submitted, as well, that the amount of the drug lay at the bottom end of the range of large commercial quantity and that this served to reduce the objective seriousness as well.
Mr Brady noted that the Crown submission in the District Court was that the fourth count was "above mid range but not substantially so" , and that the sentencing Judge had concluded that the offence was at the mid-range of seriousness. He pointed to the discussion during the sentencing hearing concerning the role of the standard non-parole periods.
Mr Brady acknowledged that there was a radical departure from the standard non-parole periods in this case. He submitted that this must be considered in the light of all his Honour's reasons, which included an assessment of the seriousness of the offences, as well as an assessment of the Respondent's subjective circumstances.
Whilst acknowledging that there was error demonstrated in taking into account the Respondent's past history in considering the objective seriousness of the fourth count, Mr Brady submitted that this was not such as would lead this Court to resentence the Respondent.
Decision
As the Respondent had been convicted after trial, the standard non-parole periods with respect to the second and fourth counts had direct application by force of statute, and not merely as a guidepost on sentence following a plea of guilty: R v Way [2004] NSWCCA 131; 60 NSWLR 168 at 184 [68].
When sentencing for offences for which Parliament has provided a standard non-parole period, it is necessary for Judges to specify where the offences lie on the range of objective seriousness for those crimes: R v Sellars [2010] NSWCCA 133 at [12]; R v McEvoy at [87].
The sentencing Judge imposed non-parole periods for the second and fourth counts which were very significantly below the standard non-parole period for each offence. The further downwards the sentencing Judge moves from the standard non-parole, the greater the need for close examination of the findings, in particular concerning the objective seriousness of the offence: R v Knight [2007] NSWCCA 283; 176 A Crim R 338 at 341 [4]. There is, of course, a statutory obligation to give reasons for increasing or reducing the standard non-parole period: s.54B(4) Crimes (Sentencing Procedure) Act 1999 .
With respect to the second count, a standard non-parole period of 10 years was prescribed. The sentencing Judge initially imposed a fixed term of imprisonment for four years. After the inability to make such an order had been raised by the Crown, his Honour stated that a non-parole period of four years would be fixed.
In reality, his Honour set a fixed term of imprisonment, an approach which was contrary to statute: s.45(1) Crimes (Sentencing Procedure) Act 1999 ; Hristovski v R [2010] NSWCCA 129 at [7].
Accordingly, error has been demonstrated concerning the sentence imposed on the second count. Further, I am satisfied that error has been demonstrated with respect to the reasons given by the sentencing Judge concerning the role of the standard non-parole period on sentence. His Honour explained why such a non-parole period (effectively a fixed term) was imposed because "this offence is significantly less substantial in terms of culpability than a mid range offence for such an offence" .
The sentencing Judge had made no specific findings concerning the offence contained in the second count. As a result, this conclusion was opaque. Although Mr Brady made submissions by reference to the facts of the second count in support of a contention that this finding was open to the sentencing Judge, these were not findings made by his Honour and, in my view, do not leave reasonably open the conclusion expressed by his Honour to explain the sentence passed on this count. This error was compounded by the finding of "special circumstances" recorded on the back of the indictment, said to be because the criminality of the offence was "well below mid range of seriousness" . Such an approach involved a clear and impermissible double counting of this factor. More to the point, his Honour did not fix any balance of term. The sentence was, in reality, a fixed term.
I am satisfied that error of process, and error in substance, has been demonstrated concerning the sentence passed on the second count.
With respect to the fourth count, counsel for the Respondent conceded that one of the two factors referred to by the sentencing Judge did not bear upon the objective seriousness of the offence so that error was demonstrated in this respect. There was a live issue in the District Court as to whether the fourth count lay above the mid-range (the Crown submission) or below the mid-range (the defence submission). His Honour did not refer to this controversy or resolve it. An analysis of these submissions, in my view, could not place this offence below the mid-range.
It is clear that the fact that the Respondent had "no history of drug supply" did not bear upon the objective seriousness of the fourth count.
In any event, the statement was factually incorrect. By the time the Respondent committed the offence contained in the fourth count on 30 May 2006, he had committed offences on 7 March 2006 of supplying a prohibited drug (the first count) and supplying a commercial quantity of a prohibited drug (the second count).
In relation to the fourth count, the sentencing Judge provided as one of the two reasons as to why he should not "set the objective seriousness of the offence as being mid range" was that the offence was "nipped in the bud" and there was no actual supply to members of the community. However, his Honour acknowledged that the offence itself was serious in the "grave potential danger it poses the community" .
It was the case that the large commercial quantity of 2.6 kilograms of methylamphetamine was located in six individual resealable plastic bags in the garage of the Horsley Park premises. Mr Brady contended that the fact that the drug was not supplied, and would never reach the public (as any supply would be to an undercover police officer) reduced the objective seriousness of the offence. He relied upon Fahs v R in this respect.
A number of decisions of this Court have considered the relevance of this factor on sentence for a drug supply offence.
In R v Chan [1999] NSWCCA 103 at [21], Smart AJ (Sheller JA and Studdert J agreeing) said at [21]:
"In assessing the sentence to be imposed it is relevant to take into account that the prohibited drugs supplied to undercover agents will not be disseminated into the community. Of itself this is usually unlikely to lead to other than a very minor diminution of culpability. The offender had the intention to supply and in supplying knew and believed that the drugs would be likely to find their way into the community. The fact that they did not do so was not due to the offender."
In R v Way , the Court (Spigelman CJ, Wood CJ at CL and Simpson J) said at 198-199 [172]:
"We also consider that it was appropriate for his Honour to have regarded the offence as one committed without regard for public safety (another s 21A(2) factor). The applicant was not to know that the buyer was an undercover operative and that the drugs would be seized and destroyed. What was relevant in this context was his motivation or understanding, so far as that went to an assessment of his moral culpability. He undertook the transaction expecting a considerable personal profit, and in the understanding that the drugs would be resold, heedless of the consequences to those who purchased and consumed them, or of the fact that users commonly resort to property offences to feed a habit, leaving other victims in their wake. The observations of Smart AJ in Regina v Chan [1999] NSWCCA 103 [at para 21] as to the limited relevance of the fact that drugs which are supplied to undercover agents will not reach the community, apply. As his Honour pointed out, that circumstance was not due to any act of the offender."
Later in R v Way , the Court said at 200-201 [181]:
"We are not however persuaded that the applicant can properly suggest that his objective criminality was in any way reduced by reference to the conduct of the undercover officer. While the applicant could lawfully have been arrested after the first supply offence, there were very good reasons for the police to pursue the operation in order properly to investigate any suspected distribution network in Coffs Harbour and its supply sources. That could not be done without the undercover operative expressing a continuing interest to make further purchases, in a context where the applicant had indicated both a willingness, and a capacity, to oblige. The present case was distinguishable from the case of a reluctant offender who was encouraged to commit an offence, or 'pushed' to supply larger quantities of a drug which he would not have done absent pressure or persuasion from police, in which some mitigation of sentence would be warranted, as was the situation in R v Rahme (1991) 53 A Crim R 8."
In R v Gao [2007] NSWCCA 343, Latham J (Basten JA agreeing) said at [22]:
"In Fahs v Regina [2007] NSWCCA 26, Howie J (with whom Simpson and Buddin JJ agreed) expressed the view at [29] that the fact that a commercial quantity of ecstasy did not reach the public, because of the supply of that quantity to an undercover police officer, reduced the objective gravity of the offence in that case below the mid-range. I do not understand his Honour to have been expressing any matter of principle. Clearly, there may be cases where a combination of factors, including a plea of guilty and supply to undercover operatives, will nonetheless justify a finding that the offence falls within the mid-range of objective gravity and warrants the imposition of a non parole period approaching the standard non parole period. That is, as I understand it, the Crown's argument in the instant case."
Rothman J agreed with Latham J in R v Gao , and made the following additional comments, at [47]-[48], which are pertinent to this issue:
"47 No principle establishes as a general proposition that the fact, simpliciter, that the drugs are sold to undercover police and do not, therefore, reach the public, diminishes the culpability of the offending.
48 In such an undercover operation, it is beneficial to the community that the drugs are not able to be used. But that benefit is the result of the actions of law enforcement agencies, and not the result of any intention or action of the person charged. That there are no victims to such a sale may be a factor, like many others, that a sentencing judge takes into account, but for my own part, I would not generally consider it significant."
In Ly v R [2008] NSWCCA 262. Hislop J (Beazley JA and Harrison J agreeing) said at [26]-[27]:
"26 That the drugs were not disseminated into the community is a relevant factor, the weight of which will vary from case to case: see R v Chan [1999] NSWCCA 103 at [21]; Fahs v R [2007] NSWCCA 26 at [29]; R v Gao at [22].
27 Whilst the drugs found in the applicant's possession were not actually disseminated by the applicant into the community, the applicant was to be sentenced for deemed supply in circumstances where it was clear that this was not an isolated occasion of the possession of drugs for the purpose of supply. In the circumstances, little, if any, weight can be attached to the fact that these drugs were not actually supplied."
In Hristovski v R , with the concurrence of McClellan CJ at CL and Grove J, I said at [41]:
"The fact that the drugs actually supplied would not be disseminated to the community because the supply took place to an undercover police operative does not materially assist the Applicant. The Applicant fully intended that the drugs would be disseminated to the community, and it was no act of the Applicant which stood in the way of such dissemination: Ly v R [2008] NSWCCA 262 at [27]."
These authorities make clear that, although the fact that drugs are not disseminated into the community may be a relevant factor on sentence, the weight to be given to that factor will vary from case to case. A primary consideration remains that an offender intended to supply the prohibited drug to members of the community, and that it was no act of an offender that resulted in this not happening.
It is also relevant to consider whether the offence in question is an isolated occasion of possession of drugs for the purpose of supply, or was a supply made in the course of an established commercial activity: R v Way at 197 [163].
I return to the facts of this case. The large commercial quantity of methylamphetamine, bagged in six separate packages, was located by police upon the execution of the search warrant in the garage of the Horsley Park premises. There is no doubt that the Respondent intended to supply this quantity of prohibited drug, through his distribution network, to ultimate end users in the community. It was no act of the Respondent that caused this dissemination not to happen. If any actual supply of this drug was to an undercover police officer, then it would not reach the public. However, the Respondent did not know this. He intended the drug to reach end users, and he planned and expected to make a substantial profit from this crime. Further, this was not an isolated offence on the Respondent's part. It was part of an established commercial activity.
In my view, this factor was of very limited assistance, at best, to the Respondent on sentence. It was not reasonably open to the sentencing Judge to take this into account in a way that provided anything more than a modest reduction in the objective seriousness of the fourth count.
The principal role of the Respondent, taken with the substantial quantity, the profit motive and the fact that the offence was part of an ongoing drug supply business, placed the fourth count at the mid-range for this type of offence.
I am satisfied that the Crown has demonstrated error with respect to both factors which the sentencing Judge referred to as reducing the fourth count below the mid-range of objective seriousness.
I am satisfied that the Crown has made good Grounds 2, 3, 4 and 5 and that the impact of these errors on sentence was significant in this case.
Ground 6 - Suggested Error in Giving Excessive Weight to the Respondent's Medical Condition
Submissions
The Crown submitted that the sentencing Judge was clearly very sympathetic to the Respondent's poor health, but that his Honour had failed completely to consider the appropriate balance between the criminality of the conduct in question, and any damage to the Respondent's health or shortening of life, in accordance with the principles in R v Smith (1987) 44 SASR 587 at 589; R v Sopher (1993) 70 A Crim R 570 at 573-574 and R v Anastasiou [2010] NSWCCA 100 at [22].
The Crown submitted that it should be kept in mind that, if an offender's health deteriorates during the course of his sentence, the executive is empowered to order release on humanitarian grounds.
It was submitted that the sentencing Judge referred, in a truncated way, to the applicable principles, but then failed to make any factual findings about the Respondent's medical condition. Rather, his Honour merely stated that this was an exceptional case.
The Crown submitted that given his Honour's failure to make any findings as to the objective criminality of the offences, it is difficult to ascertain what weight had been given to the Respondent's ill health. Absent such findings, it was submitted that the sentencing Judge could not, and did not, conduct the balancing exercise referred to in R v Sopher .
It was submitted that, had his Honour correctly considered the evidence, he would have noted Dr Luxton's opinion that Justice Health can and does provide regular dialysis treatment to inmates (AB153). The Crown submitted that the only shortcoming in treatment provided by Justice Health identified by Dr Luxton, was that fluid and dietary management in prison can be difficult (AB153).
The Crown submitted that Dr Luxton's conclusion that prolonged incarceration will "significantly reduce" the Respondent's life expectancy was not supported by the balance of his report. Dr Luxton had stated in his second report (dated 1 July 2010) that he did not know whether the mortality rate for patients on dialysis is greater in the prison population than in the general population (AB168). It was submitted that it was the Respondent's medical condition (not his treatment) that put him at risk of severe illness and early mortality, and that the only potentially adverse factor from imprisonment identified by Dr Luxton was the possible difficulty in managing fluid and dietary needs (AB168).
Whilst acknowledging that the Respondent's medical condition, and its impact on his conditions of custody, were relevant factors to be taken into account on sentence, the Crown submitted that the very low sentences imposed indicated that the sentencing Judge had allowed these circumstances to overwhelm the objective gravity of the offences.
Mr Brady submitted that the Respondent's medical condition was a significant issue throughout the sentencing hearing and that it was apparent that his Honour was alive to the balancing exercise required. He submitted that the sentencing Judge made factual findings on sentence in relation to the Respondent's health and the effect of his health on sentence.
Counsel submitted that the sentencing Judge had recited and accepted the evidence contained in the reports of Dr Luxton (AB17-18).
Mr Brady submitted that, contrary to the Crown submission, the sentencing Judge had noted that part of Dr Luxton's report where he observed that there had usually been no obstacle to providing regular dialysis to Long Bay Gaol inmates (AB18).
It was submitted that Dr Luxton was well placed to form the opinion that prolonged incarceration would significantly reduce the Respondent's life expectancy, and that Dr Luxton's reports were admitted without objection and he was not required for cross-examination. It was submitted that it was open to the sentencing Judge to accept the opinion of Dr Luxton.
Having accepted Dr Luxton's opinion, Mr Brady submitted that it was open to the sentencing Judge to find that this was an exceptional case which allowed for a substantial departure from the standard non-parole periods and that the sentencing Judge made this clear in his remarks on sentence.
Mr Brady submitted that no error had been demonstrated in the reasoning of the sentencing Judge concerning the relevance of the Respondent's medical condition on sentence.
Decision
Where illness is seen as relevant to the determination of sentence, its weight must be assessed in light of all the circumstances of the case, and an appropriate balance has to be maintained between the criminality of the offender and any damage to health or shortening of life: R v Sopher at 573; R v BJW [2000] NSWCCA 60; 112 A Crim R 1 at 6-8 [23]-[31].
In R v Badanjak [2004] NSWCCA 395, Wood CJ at CL (McClellan AJA and Smart AJ agreeing), at [9]-[11], summarised the principles applicable where an offender's medical condition was sought to be taken into account on sentence:
"[9] It was held in R v Smith (1987) 44 SASR 587 at 589, an authority to which the Applicant made express reference, that while the health of the offender is relevant to the type and length of any sanction imposed, generally speaking it will only be a factor tending to mitigate punishment when there is evidence to show that there is a serious risk that imprisonment will be a greater burden on an offender, by reason of ill health, or where there is a serious risk that imprisonment will have a grave adverse effect on the offender's health.
[10] That decision was applied by the High Court in Bailey v DPP (1988) 62 ALJR 319, and by this court in R v Vachalec [1981] 1 NSWLR 351 and R v L NSWCCA 17 June 1996: see also R v Burrell (2004) 114 A Crim R 207 and R v Azar [2000] NSWCCA 26.
[11] It remains the responsibility of the Corrective Services Authorities to provide appropriate care and treatment for prisoners: R v Vachalec , and R v Krasser NSWCCA 2 September 1993. Most conditions can be adequately managed by those authorities without the need for mitigating the sentence that would otherwise be appropriate, and it is only in relatively rare cases that the Smith principle is applicable."
It is the case that persons with serious health problems are managed within the prison system. This Court has considered this factor on sentence in different contexts, including, for example, offenders with the HIV virus ( R v Higgins [2002] NSWCCA 407; 133 A Crim R 385), asthma and angina ( R v Wickham [2004] NSWCCA 193) and ischaemic heart disease and non-insulin dependent diabetes ( R v Way ).
In R v Higgins , Howie J (Wood CJ at CL and Smart AJ agreeing) said at 391 [32]:
"Unfortunately for the applicant, this Court cannot give priority to his health and well being as the medical profession is required to do. The criminal justice system has at its heart the welfare of the community generally and its protection. The courts must tailor their sentences with an eye to that overriding concern so far as common humanity will allow."
In R v Wickham , Howie J (Bell and Hislop JJ agreeing) said at [18]:
"It may be accepted that the applicant's physical condition was poor and that prison would be difficult for him in that regard. It is trite that poor physical health and its impact upon the severity of an offender's imprisonment are relevant factors in sentencing. R v Kier [2004] NSWCCA 106 is a recent authority for that proposition if any is needed. But it is clear that ill health does not necessarily require that a sentence be mitigated from that which would otherwise be appropriate: R v L (NSWCCA, unreported, 17 June 1996); Kier at 65. One of the relevant considerations in determining what, if any, weight to give to that factor will be the seriousness of the offence. Another will be whether the medical condition existed at the time of the offence and whether it has deteriorated in the period between the offence and sentence. Common humanity will sometimes require a court to consider a life-threatening physical illness as a matter of mitigation even though the offender was suffering from such an illness at the time of the commission of the offence. However, where as here, the issue is one of the protection of the community, it may be that common humanity for the offender gives way to concern for potential victims."
In R v Way , this Court allowed an offender's appeal against sentence, and resentenced the offender. The Court referred at 199 [173] to the fact that the middle-aged offender (47 years' old) had "ischaemic cardiac disease and non-insulin dependent diabetes which were less likely to be treated appropriately, or managed as effectively, within a prison environment, particularly during a sentence of the length imposed, which would have had him confined for 10 years, than on the outside" .
Having taken the offender's medical condition and a range of other objective and subjective factors into account, the Court resentenced the offender, but declined to find "special circumstances" justifying a departure from the statutory ratio "since all the relevant circumstances have already been taken into account in setting the non-parole period" and no other factor had been identified to justify further variation (at 201 [185]).
The State Parole Authority may direct the release of an offender on parole before the offender's eligibility date if the offender is dying, or if the State Parole Authority is satisfied that it is necessary to release the offender on parole because of exceptional extenuating circumstances: s.160(1) Crimes (Administration of Sentences) Act 1999 ("CAS Act"). Further, the prerogative of mercy is preserved: s.270 CAS Act.
Justice Health is a statutory health corporation, with functions including the provision of health services to offenders and persons in custody: s.236A CAS Act. The Chief Executive Officer of Justice Health has a statutory right to have free and unfettered access at all times to correctional centres, medical records and offenders to ensure that statutory provisions relating to Justice Health are being complied with: s.236B CAS Act.
Accordingly, the Court should approach an appeal such as this upon the basis that the contemporary statutory regime entrusts and empowers Justice Health to take all necessary steps to provide health services to an inmate such as the Respondent whilst in custody. Further, clause 47 Crimes (Administration of Sentences) Regulation 2008 ("CAS Regulation") makes provision for diet, and clause 47(3) requires the diet of an inmate having special dietary needs to be planned having regard to those needs. Where, as in this case, the special dietary needs relate to the care, management and treatment of a medical condition, then Justice Health is in a position to ensure that the diet is being provided to the inmate.
This ground of appeal should be considered without regard to the evidence of Dr Badari and the affidavit of the Respondent read at the hearing of this appeal. That evidence will become directly relevant should the Court move to resentence the Respondent.
There is a risk in a case such as this that attention to persuasive subjective considerations may cause inadequate weight to be given to the objective circumstances of the case: R v Dodd (1991) 57 A Crim R 349 at 354; R v BJW at 8 [31]. In substance, this is what the Crown contends has happened in this case.
The starting point is to fairly read the two reports of Dr Luxton which were before the sentencing Judge. I accept the Crown submission that, fairly read, these reports did not suggest any difficulty arising from the likely need for dialysis for the Respondent at some time in the future whilst in custody. Rather, the reports suggested that the potentially adverse factor related to the possible difficulty in managing the Respondent's fluid and dietary needs.
I accept that there is something of a disconnect between the particulars contained in Dr Luxton's reports and his conclusions. It is reasonable to approach the present Crown appeal upon the basis of a complete reading of Dr Luxton's reports, including his conclusions.
Having undertaken that task, I am satisfied that the sentencing Judge has given excessive weight on sentence, to a marked degree, to the Respondent's medical condition. His Honour has allowed this aspect of the Respondent's subjective case to distract from the need to give adequate and proper weight to the objective seriousness of the offences. Quite simply, the sentences imposed for the second and fourth counts (in particular) are well below the range for the offences found, and do not reflect the objective seriousness of those offences: R v BJW at 8 [31]. Those sentences do not meet a fundamental purpose of sentencing, namely that the Respondent be adequately punished for his crimes: s.3A(a) Crimes (Sentencing Procedure) Act 1999 .
Although his Honour observed that the seriousness of the offences had been balanced with what were said to be the exceptional circumstances of the Respondent's health, there was a very substantial underweight on the objective seriousness side of the scales and a very substantial overweight on the subjective side of the case.
It must be kept in mind that the Respondent had a long history of diabetes with the consequences of that condition having affected him for many years. The other conditions which affected him at the time of sentence had more recent origin in the early 21 st century.
The Respondent was subject to these conditions at the time when he engaged in the very serious crimes for which he was convicted by the jury. These were offences of organised drug supply in which the Respondent was a principal or co-principal. The crimes were carried on for commercial gain over a period of months between March and May 2006. It may be taken that the Respondent was well aware that the consequence of his arrest and conviction for these serious crimes would be a lengthy period of imprisonment. He had recent experience of his medical conditions being managed in custody up to May 2005, yet 10 months later he was organising and profiting from substantial drug supply offences.
As the Courts have stated repeatedly in this context, ill health cannot be allowed to become a licence to commit crime, nor should offenders expect to escape punishment because of the condition of their health, with it being the responsibility of the correctional services authorities to provide appropriate care and treatment for sick prisoners: R v Vachalec (1981) 1 NSWLR 351 at 353-354; R v Smith at 589. Common humanity will operate in the sentencing discretion, but the welfare and protection of the community is important, as is the need for adequate punishment to be imposed for serious crimes.
Where an offender with serious health problems engages in serious and protracted criminality, knowing that the consequence of detection is a substantial period of imprisonment, then this consideration is also relevant to the weight to be given to an offender's medical condition on sentence.
The Respondent had a prior criminal history and had served sentences of full-time imprisonment between 1991 and 1997 (for armed robbery) and in 2004-2005 (for receiving and other offences).
Having been released from prison in May 2005, he committed these serious drug supply crimes in March to May 2006.
The Respondent was entitled to have the sentencing Court give appropriate weight to his medical condition, including the prospect of dialysis (which could be managed in custody) and the possibility of some difficulty in the management of fluid and dietary needs. Dr Luxton's reports pointed to adverse factors related to incarceration, but did not permit any accurate assessment concerning the likely impact on the Respondent as a result of his incarceration.
In my view, it was not reasonably open to the sentencing Judge to find that this was an exceptional case which permitted, in reality, the Respondent's medical condition to become the dominant and controlling factor on sentence at the expense of the objective seriousness of his crimes.
I am satisfied that Ground 6 has been made good.
Ground 7 - The Sentences are Individually and as Aggregated Manifestly Inadequate
Submissions
The Crown submitted that the sentences ultimately imposed failed to reflect the criminality involved in the offences and were manifestly inadequate. It was submitted that the first count was an objectively serious offence and that the second and fourth counts were at least in the mid-range of offences of their type. As the Respondent was sentenced after trial, the standard non-parole periods were of very great significance to the second and fourth counts, as were the maximum penalties.
The Crown submitted that nowhere in the remarks on sentence did his Honour refer to any of the purposes of sentencing. In particular, there was no reference to considerations of deterrence.
Whilst acknowledging that the Respondent's health problems constituted a factor calling for some mitigation of sentence, the Crown submitted that adequate weight was required to be given to the criminality of the offences and considerations of general and personal deterrence.
The Crown submitted that the total concurrency of the sentences on the first and second counts and the accumulation of only one year of the sentence on the fourth count was also suggestive of error. It was submitted that there was no considered assessment by the sentencing Judge of the totality of the offending, or the extent to which the aggregate sentence could accommodate the totality of the Respondent's criminality.
It was submitted that the first and second counts, although committed on the same day, were discrete supplies of substantial quantities of MDMA and were not part of a single offence so that complete concurrency was not appropriate. Further, it was submitted that the fourth count related to an entirely separate event, involving a different drug, separated in time and location from the first and second counts.
The Crown submitted that the imposition of an aggregate non-parole period of six years, with a balance of term of eight years, was manifestly inadequate.
Mr Brady submitted that the sentencing Judge accepted that those who involve themselves in trafficking of illicit drugs for profit can expect to receive substantial custodial sentences so that his Honour had not overlooked this principle.
Further, Mr Brady submitted that his Honour had given effect to the principles of deterrence and that attention had been given to the issues of concurrency and accumulation.
Although Mr Brady acknowledged that his Honour's reasoning with respect to concurrency and partial accumulation was condensed, it was clear that his Honour had regard to the relevant principles. He submitted that this was a discretionary matter and that it had not been demonstrated that the discretion had miscarried.
Mr Brady submitted that the sentences were not manifestly inadequate.
Decision
To make good this ground, it is necessary for the Crown to demonstrate that the sentences were manifestly inadequate in the well-recognised sense that they are unreasonable or plainly unjust: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 370-371 [25]; Carroll v The Queen [2009] HCA 13; 83 ALJR 579 at [8]-[9].
It is, of course, a basic principle that, absent error, the Court of Criminal Appeal may not substitute its own opinion for that of the sentencing judge merely because (if it be the case), the Court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his discretion: Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at 671-672 [15]. Intervention is warranted only where error is established in accordance with the principles in House v the King [1936] HCA 40; 55 CLR 499 at 505: Hili v The Queen [2010] HCA 45; 85 ALJR 195 at 207-208 [58].
The first count involved an actual supply of 400 MDMA pills to an undercover police officer in exchange for the sum of $4,600.00. The Respondent was convicted at trial. He has not demonstrated remorse. Apart from his medical condition, his subjective circumstances did not provide any real assistance to him. Although I regard a fixed term of imprisonment of two years and three months as being a lenient sentence for this offence, I am not persuaded that that sentence is manifestly inadequate having regard to the relevant principles.
I am persuaded that an effective fixed term of imprisonment for four years on the second count is manifestly inadequate in the circumstances of this case. Although that offence involved an offer to supply 1,000 MDMA pills without an actual supply being involved, it is important to bear in mind that agreement to supply or offers to supply prohibited drugs each constitute transactional activities that play an important and central role in the chain of drug trafficking: Vu v R [2006] NSWCCA 188 at [88]. The sentencing Judge found that the Respondent was a principal in relation to the second count and that he was motivated by profit. The Respondent was convicted after trial and the standard non-parole period had direct application. In my view, it was appropriate to place this offence at the middle of the range of objective seriousness. The Respondent was entitled to a measure of mitigation because of his medical condition. Beyond that, there was really nothing operating in the Respondent's favour on the subjective side of the case.
A further question concerns the imposition of completely concurrent sentences for the first and second counts. In the circumstances of this case, this approach was generous to the Respondent. As I propose that the Respondent should be resentenced on the second count, it is not necessary to say more at this point.
The fourth count involved a very serious offence where more than two-and-a-half times the large commercial quantity of methylamphetamine was to be supplied. I am well satisfied that a non-parole period of five years is manifestly inadequate for this offence.
In reality, the sentencing Judge appears to have given a very substantial double counting in favour of the Respondent by reference to his medical condition. Firstly, his Honour appears to have brought that factor into account to very substantially reduce the appropriate non-parole periods (on the second and fourth counts), and then the factor has been taken into account again to justify a finding of special circumstances, so as to vary greatly the statutory relationship between the non-parole period and the head sentence on the fourth count. This approach is erroneous: R v Way at 201 [185] (see [123] above). This erroneous approach serves to explain how manifestly inadequate non-parole periods came to be passed for these offences.
It is necessary to give weight, and proper weight, to the very significant factors of general and specific deterrence applicable to this class of crime. The Respondent had some experience in other serious types of crime for which he had served sentences of imprisonment, as recently as 10 months before the offences of 7 March 2006. As a man of experience and maturity, he embarked upon this serious course of drug supply for profit as a principal in an organisation effectively controlled by him. All of this happened at a time when he was aware of his own health difficulties. He took the risk of being sentenced to lengthy terms of imprisonment, no doubt because of the substantial profits to be made.
In my view, clear error is revealed in this process giving rise to a manifestly inadequate sentence for this count.
The Crown has established Ground 7.
Resentencing the Respondent
Error has been demonstrated in accordance with each of the grounds of appeal relied upon by the Crown. This Court retains a residual discretion to reject the Crown appeal for reasons other than double jeopardy: R v JW at 515 [150]. No discretionary basis has been demonstrated for this Court to decline to intervene in the circumstances of this case.
In determining to resentence the Respondent, I have had regard to the reports of Dr Badari dated 9 and 11 May 2011, together with his oral evidence given on 27 May 2011, and also the affidavit of the Respondent affirmed 12 May 2011. That evidence provides an up-to-date account of the treatment available to, and provided to, the Respondent in custody by Justice Health. The evidence demonstrates that, in the likely event that dialysis is required, the Respondent will receive appropriate treatment at the Long Bay Prison Hospital and, if need be, at the Prince of Wales Hospital. The evidence also reveals that Justice Health takes steps to inform relevant officers within the Department of Corrective Services of the special diet required for the Respondent, given his condition. There is the possibility that the relevant diet may not be provided consistently to the Respondent, although it ought be expected that the Respondent, together with relevant Justice Health staff and correctional officers, will have an understanding of what is required in this respect.
In summary, the evidence before this Court provides a firmer foundation than that before the District Court with respect to the provision of appropriate treatment to the Respondent whilst in custody. I have taken this evidence into account for the purpose of resentencing the Respondent.
In my view, having regard to the objective seriousness of the second offence and after taking into account the Respondent's subjective circumstances, a non-parole period of six years ought be imposed for this offence. As the Respondent's medical condition has been taken into account in the determination of sentence, it is not appropriate to double count that factor in his favour by way of a finding of "special circumstances" under s.44(2) Crimes (Sentencing Procedure) Act 1999 : R v Way at 201 [185]. Accordingly, for this offence, the appropriate sentence is one of a non-parole period of six years with a balance of term of two years.
In my view, the fourth count may be properly characterised as lying in the middle of the range of objective seriousness. The Respondent is entitled to have his subjective factors, principally his medical condition, taken into account to mitigate penalty. In my view, a non-parole period of 12 years is appropriate for this offence. Once again, the Respondent is not entitled to have his medical condition double counted in his favour by way of a finding of "special circumstances" . For this offence, I would impose a non-parole period of 12 years with a balance of term of four years.
I turn to issues of concurrency, accumulation and totality. The principles to be applied are those stated by Howie J in Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 at 47 [27]:
"In any event there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both."
Applying these principles, I am satisfied that accumulation for one year should occur with respect to the sentences imposed on the first and second counts. The fourth count involves separate and very serious criminality with respect to a different prohibited drug and the commission of a substantially more serious offence. In my view, the sentence with respect to the fourth count should involve a further measure of accumulation of one year.
Allowing for accumulation, the proposed sentences would see a total effective non-parole period of 14 years with an effective balance of term of four years. The effective non-parole period would represent 78% of the effective full term.
I find "special circumstances" on the fourth count, arising from the process of accumulation and application of the totality principle: Hejazi v R [2009] NSWCCA 282 at [36]. The non-parole period on the fourth count will be a period of 11 years, with a balance of term of five years.
Accordingly, the total effective non-parole period will be 13 years, with an effective balance of term of five years.
In my view, an effective non-parole period of 13 years represents the minimum period that the Respondent should serve in custody, having regard to all the objective and subjective factors relevant to the determination of sentence for the three offences.
Orders
I propose the following orders:
(a) Crown appeal allowed;
(b) sentences imposed on the Respondent in the District Court on 6 August 2010 quashed;
(c) in their place, the Respondent is sentenced as follows:
(i) on the first count, sentenced to a fixed term of imprisonment of two years and three months commencing on 16 August 2006 and expiring on 15 November 2008,
(ii) on the second count, sentenced to a non-parole period of six years commencing on 16 August 2007 and expiring on 15 August 2013 with a balance of term of two years commencing on 16 August 2013 and expiring on 15 August 2015,
(iii) on the fourth count, sentenced to imprisonment by way of a non-parole period of 11 years commencing on 16 August 2008 and expiring on 15 August 2019, with a balance of term of five years commencing on 16 August 2019 and expiring on 15 August 2024.
(d) the Respondent will be eligible for release on parole on 16 August 2019.
GARLING J : I agree with the orders proposed by Johnson J and with his reasons.
I desire to add some observations about the fourth count on the indictment, namely, the Respondent was guilty of supplying 2.6 kg of methylamphetamine. The quantity was in excess of the larger commercial quantity.
On this count, after a jury finding of guilty, the Respondent was sentenced to a five-year non-parole period with a balance of term of eight years. The first available date for release on parole is 15 August 2012, namely, a little over one year. The total sentence imposed was two years less than the standard non-parole period.
The consequence of the sentence proposed by Johnson J, and which I agree is appropriate, is that the Respondent will not be released before 16 August 2019, namely in a little over eight years' time.
The offence of which the Respondent was found guilty carried a maximum of life imprisonment and a standard non-parole period of 15 years.
The difference in the sentences imposed by the trial judge and that thought appropriate by this Court, focuses attention on the existence of, and role to be played by, standard non-parole periods.
A standard non-parole period is to be considered together with the maximum penalty imposed by the legislature for an offence: R v Way [2004] NSWCCA 131; 60 NSWLR 168 at 182 [50]. The statutory maximum, here life imprisonment, reflects the seriousness of the offence in the eyes of the public and the policy of the legislature: Way at [53].
The standard non-parole period, here 15 years imprisonment, is the legislature's expression of its intention as to the minimum period of actual imprisonment: Way at [53].
The consequences of the prescription of a standard non-parole period is, or may well be, to change, by increasing, an established sentencing pattern: Way at [54], R v AJP [2004] NSWCCA 434; 150 A Crim R 575.
Whilst the existence of a standard non-parole period is not again a mandatory sentence, nevertheless where the relevant offence, as was here the case, falls within the mid-range of objective seriousness, and the conviction follows a trial, then proper attention must be paid by a sentencing judge to the legislation, and to the two statutory benchmarks and reference points, namely the maximum sentence and the standard non-parole period.
In this case, insufficient weight was given by the learned sentencing judge to these matters with the result that his sentence was to a significant degree manifestly inadequate.
This case serves as a reminder that proper care and attention must be paid by sentencing judges to the relevant maximum penalties and standard non-parole periods fixed by the legislation.
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