R v Burton

Case •

[2023] NSWCCA 299

•

29 November 2023

No judgment structure available for this case.

Court of Criminal Appeal


Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: R v Burton [2023] NSWCCA 299
Hearing dates: 8 November 2023
Decision date: 29 November 2023
Before: Leeming JA; Walton J; Fagan J
Decision:

1. Appeal allowed.

2. Quash the aggregate sentence of 5 years imprisonment with a non-parole period of 3 years and a commencement date of 16 April 2021 imposed by the District Court on 21 July 2023 for counts 3, 4, 5 and 6, and in lieu thereof impose an aggregate sentence of 8 years imprisonment with a non-parole period of 4 years and 8 months commencing on 25 March 2022 and expiring on 24 November 2026, and a balance of term of 3 years and 4 months expiring on 24 March 2030.

3. Vary the sentence imposed by the District Court on 21 July 2023 for counts 1 and 2 so that it commences on 25 September 2021. The non-parole period of that sentence concludes on 24 March 2024 and the balance of the term of that sentence expires on 24 September 2026.

4. The earliest date on which the respondent may apply for parole is 25 November 2026.

Catchwords:

CRIME – Crown appeal – whether aggregate sentence for multiple counts of supplies of large commercial quantities of prohibited drugs manifestly inadequate – totality - significance of sentences previously imposed for separate supplies of large commercial quantities of prohibited drugs – significance of separate sentence imposed by sentencing judge for separate offending contrary to federal law – whether inadequacy of sentence so marked that amounted to an affront to justice – appeal allowed and respondent resentenced

Legislation Cited:

Crimes Act 1914 (Cth), ss 16BA, 16E

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 24, 33, 47, 53A

Criminal Appeal Act 1912 (NSW), ss 5D, 7(1A)

Criminal Code (Cth), ss 11.1, 11.2, 307.2, 307.5

Criminal Code Regulations 2019 (Cth)

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

Judiciary Act 1903 (Cth), ss 68, 79

Cases Cited:

Attorney-General (Cth) v Huynh [2023] HCA 13; 97 ALJR 298

Bott v R [2023] NSWCCA 255

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

Chiarlini v R [2023] NSWCCA 227

Chu v R [2023] NSWCCA 13

El-Helou v R [2014] NSWCCA 209

Elmir v R [2023] NSWCCA 260

Green v The Queen (2011) 244 CLR 462; [2011] HCA 49

Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70

Peel v The Queen (1971) 125 CLR 447; [1971] HCA 59

Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26

R v MAK; R v MSK [2006] NSWCCA 381; 167 A Crim R 159

Rizeq v Western Australia (2017) 262 CLR 1; [2017] HCA 23

Rodgers v R [2018] NSWCCA 47

Rohde v Director of Public Prosecutions (Cth) (1986) 161 CLR 119; [1986] HCA 50

Shi v R [2017] NSWCCA 126

Williams v The King (No 2) (1934) 50 CLR 551; [1934] HCA 19

Category:Principal judgment
Parties: Director of Public Prosecutions (NSW) (Appellant)
Josiah James Burton (Respondent)
Representation:

Counsel:
R Ranken (Appellant)
A Francis (Respondent)

Solicitors:
Solicitor for Public Prosecutions (NSW) (Appellant)
One Group Legal (Respondent)
File Number(s): 2020/00060282
2020/00093955
Publication restriction: Nil
 Decision under appeal 
Court or tribunal:
District Court of New South Wales
Jurisdiction:
Criminal
Date of Decision:
21 July 2023
Before:
Hunt DCJ
File Number(s):
2020/00060282
2020/00093955

JUDGMENT

  1. THE COURT: The Director of Public Prosecutions (NSW) appeals pursuant to s 5D(1) of the Criminal Appeal Act 1912 (NSW) from one of two aggregate sentences imposed by the primary judge (Hunt DCJ) on 21 July 2023 upon the respondent Mr Josiah James Burton. The sentence was 5 years imprisonment with a non-parole period of 3 years, backdated to commence on 16 April 2021.

  2. That sentence was imposed following the respondent’s pleas of guilty to four State offences, all relating to the supply of prohibited drugs. Three of the offences (counts 3, 4 and 5) were supplies of not less than a large commercial quantity of prohibited drugs, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW), which carries a maximum penalty of life imprisonment and a standard non-parole period of 15 years imprisonment. The fourth (count 6) was an offence of supplying an indictable quantity of a prohibited drug, contrary to s 25(1) of the Drugs Misuse and Trafficking Act, which attracted a maximum penalty of 15 years imprisonment with no standard non-parole period.

  3. The guilty pleas attracted discounts of 10% for count 3 and 25% for the other counts.

  4. In each of the first three offences the quantity of prohibited drug was many, many times the threshold for a large commercial quantity. Count 3 involved some 5.95kg of methylamphetamine, count 4 involved 712.6L of gamma-butyrolactone (GBL) and count 5 involved 1,675L of 1,4-butanediol, which is to say, approximately 12, 178 and 415 times the thresholds for large commercial quantities of those drugs. Count 6, the supply of an indictable quantity of prohibited drug, involved 61.8g of methylamphetamine, which is around 12 times the indictable quantity.

  5. The indicative sentences stated by his Honour pursuant to s 53A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) were 3 years and 7 months, 3 years, 3 years and 1 month, and 12 months respectively.

  6. Count 5 also took into account, on a “Form 1” document pursuant to s 33 of the Crimes (Sentencing Procedure) Act, one count of dealing with property reasonably suspected of being the proceeds of crime less than $100,000 contrary to s 193C(2) of the Crimes Act 1900 (NSW). This offence was based on the respondent’s possession of $47,950 at the time of his arrest, in the form of $15,000 in $50 notes in a locked container in a bedroom at his residence, and $32,950 in $100 and $50 notes in his backpack.

  7. Importantly, the respondent was also sentenced by the primary judge to a separate aggregate sentence of 5 years imprisonment with a non-parole period of 2 years and 6 months, commencing 12 months after the sentence imposed for the State offences on 16 April 2022. This aggregate sentence was for two offences: one offence of attempting to possess a commercial quantity of a border controlled drug (namely 1.7722kg of methamphetamine), contrary to ss 307.5(1) and 11.1 of the Criminal Code (Cth) (count 1), and one offence of aiding, abetting, counselling or procuring the importation of a marketable quantity of a border controlled drug (61.3236g of cocaine), contrary to ss 307.2(1) and 11.2(1) of the Code (count 2). The maximum penalties for those offences were life imprisonment and 25 years imprisonment respectively. The indicative sentences stated by his Honour were 3 years and 11 months and 3 years and 7 months respectively, each incorporating a discount of 15%. Count 2 incorporated, pursuant to s 16BA of the Crimes Act 1914 (Cth), an offence of possessing identification information with intent to commit an offence, which carried a maximum penalty of 3 years imprisonment. This offence was based on his possession of four drivers licences and one Medicare card in different names with the intention that they be used to commit various offences.

  8. The respondent had been taken into custody on 25 March 2020 and refused bail. Thus he was being sentenced by the primary judge slightly less than three years and four months thereafter. However, on 26 October 2021 (one year and seven months after being taken into custody), Yehia SC DCJ sentenced him to a separate aggregate term of imprisonment of 5 years and 6 months with a non-parole period of 2 years and 9 months, backdated to commence on 25 March 2020. This sentence was imposed for offending entirely separate from the offending giving rise to the sentences imposed by the primary judge, and it will be convenient to refer to the “2020 offending” to describe the offending for which the primary judge imposed sentence, and the “2018 offending” to describe the offending for which Yehia SC DCJ imposed sentence.

  9. The 2018 offending was two offences of knowingly taking part in the supply of a large commercial quantity of a prohibited drug (namely, 25,045.98g of ephedrine and 1,587.19g of methylamphetamine) committed in June 2018, and a further offence of knowingly taking part in the supply of a prohibited drug (namely, 319.2g of GBL) taken into account on a Form 1 pursuant to s 33 of the Crimes (Sentencing Procedure) Act. Broadly speaking, the respondent had fled New South Wales following the detection of large quantities of drugs in the building where he lived, and seems to have escaped detection, or at least apprehension, until being arrested in connection with the 2020 offending.

  10. It is critical to this appeal to appreciate the effect of the sentences imposed by the primary judge for the 2020 offending upon the sentence already imposed for the 2018 offending. The effect of the three aggregate sentences is much better seen from the following table than from the verbal descriptions already given:

  1. The Director of Public Prosecution’s notice of appeal was filed on 18 August 2023, four weeks after sentence was imposed, and no complaint is made about delay. It contains a single ground, namely, that “the aggregate sentence imposed is manifestly inadequate”.

  2. It will be necessary to address the nature of the offending in more detail, as well as the respondent’s subjective case. However, it may assist to summarise the competing positions at the outset.

  3. The DPP submitted that the individual indicative sentences and the aggregate sentence in fact imposed for the 2020 State offending were manifestly inadequate, which inadequacy was compounded by the degree of concurrency with the aggregate sentences for both the 2018 State offending and the 2020 federal offending as a result of the backdating. The indicative sentences and, much more importantly, the aggregate sentence actually imposed were substantially less than the maximum penalties and the standard non-parole periods to which the primary judge was required to have regard, for offending which involved orders of magnitude more prohibited drug than the thresholds for large commercial quantities. The undiscounted notional starting points for the indicative sentences were around 4 years imprisonment. Further, as is plain from the table reproduced above, a consequence of the backdating is that most of the non-parole period for the 2020 State offending was to be served concurrently with the existing non-parole period for the 2018 offending. Still further, when regard is had to the sentence imposed for the 2020 federal offending, which was also backdated so that part was served concurrently with the non-parole period for the 2018 offending, the consequence is that the very serious 2020 State offending did not result in any period of imprisonment for which the sentence imposed for that offending was solely attributable. Another way of making that final point is that if the entirety of the sentence for the 2020 State offending were set aside, it would make no practical difference to the effective sentence to be served by the respondent.

  4. On the other hand, the respondent emphasised the powerful subjective matters found by the primary judge, some of which were highly unusual, including his good prospects of rehabilitation, the unlikelihood of any reoffending, and mental illness caused by very early exposure to drugs which itself had a causal connection with his offending. None of those findings was challenged in the Crown appeal. It was said that the subjective features of the case meant that the relatively low sentence was one that was open to the primary judge, and that his sentence had virtually no precedential value. It was also said that there was artificiality in the DPP appealing from only one of two sentences imposed, especially when it was necessary to have regard to the entirety of the sentences in order to address totality, and that when proper regard was had to totality, the sentence was one which was open to the primary judge.

Agreed factual background

  1. An agreed statement of facts, signed by the respondent, was tendered and admitted without objection at the proceedings on sentence. The primary judge’s summary of the relevant facts was drawn from this document, as is the following.

  2. NSW Police Force established strike forces to investigate the importation and supply of drugs in the State. Two of those strike forces collaborated in an investigation into drug offending in the Eastern Suburbs of Sydney.

  3. As a result of those investigations, NSW Police became aware of a large number of Post Office boxes suspected of being used for the receipt of international parcels containing illicit substances. The respondent also became a person of interest as a result of the investigations.

  4. In December 2019, NSW Police identified a specific PO box at the Bondi Beach Post Office as being of interest. The PO box was opened by the co-accused Ken Melville on 29 November 2019, under the name “Nicholas O’Donnell”.

  5. On 2 January 2020 NSW Police located and seized a package delivered to the Bondi Beach PO box. The consignment identification was “EB876264225FR”, it was addressed to “Nicholas O’Donnell”, and the sender was recorded as “Iasecu, France”. The consignment was a rectangular cardboard box, which itself contained six individual rectangular packages wrapped in clear plastic and cardboard with a firm substance inside. The substance was found to be methamphetamine with a purity of 80.5% and amounted to 1.7722kg, exceeding the commercial quantity of 0.75kg under the Criminal Code Regulations 2019 (Cth). This consignment formed the basis of count 1 on the indictment.

  6. On 7 January the respondent attended the Bondi Beach Post Office and informed staff that he was there to collect a consignment on behalf of Nicholas O’Donnell. The respondent provided the post office staff with an authorisation collection form for consignment EB876264225FR and a false drivers licence in the name of “Ryan Thompson” (the licence did, however, depict the respondent in its photo). The collection form listed the addressee as Nicholas O’Donnell, the agent as Ryan Thompson, and was signed by both persons. The post office staff advised the respondent to wait at the counter while they retrieved the package. However, unbeknownst to the respondent, the staff contacted NSW Police and advised them that a male was attempting to collect the consignment.

  7. The respondent waited at the counter for a period of time before departing without the consignment and before NSW Police arrived. He left behind the fake drivers licence and collection authorisation form. The police were able to identify the respondent through DNA left on the authorisation form, as well as through CCTV footage.

  8. On 22 January 2020 the respondent leased a PO box at Paddington Post Office. He provided staff with identification bearing his image which was in the name of “Kyle Taylor”. The respondent completed the application form under this fake name, signed the paperwork and paid $99.75 to lease the PO box.

  9. On 27 February 2020, Australian Border Force identified consignment “LH091300838US” for further examination. The consignment was addressed to “Kyle Taylor” at the Paddington PO Box, the sender was recorded as “Anthony Cruz” from Long Beach, California, and the goods were described as “phone parts”. The consignment contained a package wrapped in newspaper, which itself contained a white powder substance within a clear vacuum sealed plastic bag. Border Force’s testing of the powder returned a positive result for cocaine, with a purity of 52.0%. The total pure quantity of cocaine was 61.3236g, which exceeds the marketable quantity for cocaine of 2g under the Criminal Code Regulations. This consignment formed the basis of count 2.

  10. The consignment was provided to NSW Police, who substituted the cocaine with an inert substance before returning the consignment to the Paddington Post Office on 7 March 2020.

  11. On 11 March 2020 the co-accused Mr Edney McFarland attended the Paddington Post Office and provided staff with a collection slip for consignment LH091300838US. Australia Post then notified NSW Police that the consignment was being collected. Mr McFarland waited for a period of time before departing the post office without collecting the consignment. He departed prior to NSW Police arriving.

  12. Sometime in March 2020, NSW Police identified the whereabouts of the respondent and Mr McFarland.

  13. On 25 March 2020, Mr McFarland drove to the respondent’s residence at Victoria Road, Bellevue Hill, where he collected the respondent and drove away from the area. A short time later the vehicle returned, and the respondent exited the vehicle carrying a blue grocery cooler bag with red straps.

  14. The two men then drove to Curlewis Street, Bondi, where they entered an underground carpark. Approximately seven minutes later, Mr McFarland and the respondent attempted to leave the carpark. As they were leaving, NSW Police arrested the men. The arrest was recorded by an officer’s bodycam.

  15. The arresting officers located a black backpack in the passenger footwell of the vehicle. The backpack contained five clip sealed bags containing a crystal substance. The crystalline substance was methylamphetamine, of which there was a total quantity of 61.80g, exceeding the traffickable amount of 3g under the Drug Misuse and Trafficking Act. This formed the basis of count 6 on the indictment.

  16. In the backpack police also found a mobile phone, which had a photo of the respondent as its screensaver, as well as a set of keys. Police used those keys to open a garage unit in the carpark. During a search conducted of the garage, police found 93 cardboard boxes, each containing a 25L drum of liquid. Police also located smaller containers of liquid, multiple vacuum sealed bags and electrical CCTV security equipment. The liquid in 26 of the drums was GBL, with purity levels ranging between 91% and 96.5%. Police also located an additional two drums of liquid GBL in the rear of the vehicle. The total amount of GBL contained in the two drums in the vehicle and the 26 drums in the garage was 700L.

  17. The other 67 drums seized from the garage contained 1,4-butanediol. The total quantity seized by police was 1,675L, which exceeded the large commercial quantity threshold (relevantly, 4L) under the Drug Misuse and Trafficking Act. This formed count 5 on the indictment.

  18. Subsequent to the respondent’s arrest, NSW Police searched the respondent’s residence on 25 March 2020. They located and seized a large number of glass and plastic bottles containing liquids. The liquid was GBL, and the total weight of the liquid was 12.6055L. The total amount of GBL seized by NSW Police at both locations was 712.6055L, exceeding the large commercial quantity of (relevantly) 4L under the Drug Misuse and Trafficking Act. The total amount seized formed the basis of count 4.

  19. Police also located the blue cooler bag with red straps in the hallway of the residence, which the respondent had dropped off to the residence earlier that day. The cooler bag contained a green shopping bag, which itself contained six bags of a crystalline substance. The substance was methylamphetamine. It had a total quantity of 5.95kg, which exceeded the commercial quantity of 250g under the Drug Misuse and Trafficking Act. This formed the basis of count 3.

  20. Police located various forms of false identification during the searches, both in the respondent’s backpack and at the respondent’s residence. In total, they found six false NSW drivers licences, each depicting the respondent in its photograph, one Victorian drivers licence depicting the respondent, one false passport depicting the respondent, eight bank cards in names other than the respondent’s, two Medicare cards in names other than the respondent’s, and one Australia Post MyPost card in a name other than the respondent’s.

  21. The respondent used four of the NSW drivers licences and one of the Medicare cards with the intention of engaging in conduct which constitutes an offence. Mail items addressed to “Ashley Davis” were located both in the respondent’s residence and the Curlewis garage. A NSW drivers licence in the name of “Ashely Michael Davis” was located in the searches. A NSW drivers licence under the name of “Ryan Thompson” was used to rent the Curlewis garage on or about 1 June 2019. The same drivers licence was used in the respondent’s attempt to collect the consignment from the Bondi Beach Post Office on 7 January 2020. A NSW drivers licence in the name of “Kyle Gregory Taylor” was used by the respondent to open the PO Box at Paddington Post Office on 21 January 2020. This drivers licence was also used together with a Medicare card in the name of “Kyle Taylor” to lease the respondent’s residence in Bellevue Hill. A NSW drivers licence in the name of “Jeremy Plaisance” was used on 24 January 2020 to lease a PO Box at Darlinghurst.

  1. Finally, NSW Police found $32,950 cash in the respondent’s backpack, as well as $15,000 cash in a locked container at the respondent’s residence. The total amount seized was $47,950, which formed the Form 1 offence attached to count 5 of the State offending.

  2. There was no challenge to the findings made by the primary judge of the objective seriousness of the offending. Despite the amount of cash in his possession, his Honour said he was “not in a position to make a finding beyond reasonable doubt that he was actively involving himself in actual supply”. As a result, his Honour found that the objective seriousness of counts 3, 4 and 5 fell above the low range but below the middle of the mid-range of objective seriousness, with count 6 (which involved a much smaller quantity of prohibited drug) lower.

The respondent’s subjective case

  1. The primary judge commenced his analysis of the respondent’s subjective case by noting his significant criminal record. His Honour observed that since 2014 the offending “became more serious and has continued to become more serious”, and remarked that his record “does not assist him and deprives him of leniency that would be available to an offender with no record or a much more constrained record”.

  2. The offending included numerous counts of possessing prohibited drugs between 2007 and 2014, culminating in a suspended aggregate sentence of imprisonment for 8 months imposed by the Drug Court of New South Wales in February 2015, and an aggregate sentence of 12 months imprisonment imposed by the Drug Court in October 2016 for manufacturing a prohibited drug in November 2014.

  3. All of that conduct preceded the 2018 and 2020 offending.

  4. The 2018 offending was detected following a suspected fire in a unit in Redfern. New South Wales Fire and Rescue, responding to smoke emerging from the unit, found baking dishes and various other containers with the respondent’s fingerprints at that unit and another unit in the same building where the respondent had been living. Large quantities of ephedrine and methylamphetamine were found in both units, and the 25,045.98g of ephedrine and the 1,587.19g of methylamphetamine which formed the two offences for which he was sentenced by Yehia SC DCJ reflected the total amounts in both units. The 319.2g of GBL taken into account on the Form 1 was found in unit in which he was living.

  5. The respondent gave evidence concerning the period between the fire in June 2018 and his arrest in March 2020. He said that he had permitted a drug dealer to occupy the unit for an ounce of ice. He saw the fire brigade outside and after being questioned by them about who was occupying the unit, he panicked and left the scene. A few days later he fled to Melbourne, leaving behind his girlfriend, his pets and all his personal belongings. He said that he knew the police would want to question him, and he was worried for his safety. He returned to Sydney in April 2019. A friend with whom he had used drugs with in the past supplied the fake drivers licences and Medicare cards, which permitted him to rent the Curlewis Street garage. He said that one of the drug dealers from whom he bought drugs introduced him to “someone who gave me jobs using the fake IDs I had so that I could earn money to pay off my debts”, which led to his obtaining parcels from post offices. He said that he used a false name to rent his home, and thereafter used the garage to store drugs for another person. He said that the $50,000 in cash was dropped off on the day he was arrested, and that he had left $15,000 at home but was intending to give back the remaining $35,000 to the person who had dropped it off.

  6. The primary judge did not make findings in accordance with all aspects of the respondent’s account. However, his Honour did rely upon a number of matters weighing in the respondent’s favour.

  7. First, the primary judge found on the balance of probabilities that the respondent’s motivation for getting involved in the conduct the subject of the offences was to “reduce pre-existing drug debts” and to “continue to fund his own drug addiction”.

  8. Secondly, his role in the offending was of a lesser seriousness. His Honour observed that the respondent was largely “a bailee holding the prohibited drugs for others”, that there was no evidence that he knew of the amounts of the prohibited drugs, and that he was not satisfied beyond reasonable doubt that the respondent’s role was other “than effectively to warehouse them [scil, the drugs]”.

  9. Thirdly, the primary judge referred to the respondent’s “Bugmy factors”. In doing so, his Honour referred to and adopted Yehia SC DCJ’s summary of the respondent’s background, noting that “the material before me remains unchanged in relation to [the respondent’s] family history and dysfunctional upbringing and mental condition”. That summary was as follows:

In this case, the offender’s mental illness and the environment in which he grew up, an environment where he was exposed to heavy use of illicit drugs, are interrelated. He started using drugs at the age of nine, drug use was normalised, he developed a mental illness and sought to self-medicate by using illicit drugs to alleviate the symptoms of that mental illness.

Given the expert opinions, I am satisfied that there is a causal connection between the offender’s mental illness, his development of a substance [ab]use disorder, and his offending conduct, such as to reduce his moral culpability. I am also satisfied that his mental illness operates to reduce the weight to be afforded [to] general deterrence. However, general deterrence remains a relevant consideration, given the nature and seriousness of the offences.

  1. Relatedly, his Honour remarked that the respondent was heavily intoxicated by prohibited drugs at the time of his arrest. Although this was not to be properly understood as a mitigating circumstance, it was relevant in circumstances where drug addiction was picked up early in his life and where there was a background of substantial disadvantage. Ultimately his Honour shared Yehia SC DCJ’s views, noting:

I, too, give effect to a reduction of moral culpability, not simply because of the mental illness and the casual link I find between it and the offending but also because of the Bugmy factors that give rise to another reason to see that [the respondent’s] moral culpability is reduced.

  1. Fourthly, as outlined above, his Honour noted the causative impact of the respondent’s mental illness and his substance abuse upon his offending. In reaching this conclusion, his Honour gave “significant weight” to evidence given about the respondent’s psychiatric condition by two professionals.

  2. Fifthly, the primary judge found the respondent to be remorseful. In so finding, his Honour referred to part of the respondent’s testimonial evidence, in which he said that he “still remain[s] horrified” in seeing images of his arrest where he was affected by drugs, and that he was “still deeply ashamed” of the person he was then.

  3. Sixthly, his Honour found that, because of the respondent’s circumstances, this was a case where “less weight can permissibly be given to general deterrence and specific deterrence”. Specifically, he noted that “[the] time served to date has done a very significant amount of work on specific deterrence in this particular case”.

  4. Seventhly, the primary judge observed that “[r]ehabilitation emerges as particularly important in this case”. He said that the respondent had favourable reports from his time in custody up until the time of sentencing, and had been able to stay clear of prohibited drugs in that time. His Honour remarked that the respondent looked “like a totally different person” to the man who committed the offences, and that he had “good prospects of rehabilitation and he is unlikely to reoffend”. He noted that he was “prepared to accept that [the respondent] stayed out of trouble” while he spent a period of time in Victoria between June 2018 and April 2019.

  5. His Honour was conscious of totality. He explained to the respondent that the effect of the two sentences was a total effective term of 6 years and a total effective non-parole period of 3 years and 6 months. His Honour also explained (although there is either an error in the transcription or in what his Honour said) that when regard is had to the effect of the sentence imposed by Yehia SC DCJ, the total effective sentence was 7 years and 1 month imprisonment, with an effective non-parole period of 4 years and 7 months.

Consideration

  1. The DPP does not rely on any patent error, but instead maintains that the sentence imposed for the 2020 State offending is manifestly inadequate. In Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [42], French CJ, Crennan and Kiefel JJ observed that cases might arise where a court of criminal appeal concludes that the inadequacy of the sentence is so marked that it amounts to “an affront to the administration of justice” which risks undermining public confidence in the criminal justice system. In such a case, that court is justified in interfering with the sentence. We have concluded that this is such a case, despite the unusual combination of facts producing the result that the sentence has virtually no precedential value. We proceed on the basis of all of the highly favourable findings made by the primary judge. Even so, a number of considerations compel the conclusion that the sentence is manifestly inadequate.

  2. First, an aggregate sentence for the 2020 State offending was appropriate, and there should be a high level of notional concurrency for all four of the indicative sentences. However, all were very serious drug offences, with maximum sentences of life imprisonment, life imprisonment, life imprisonment and 15 years imprisonment, and his Honour found that the objective seriousness was towards the lower end of the mid-range having regard to the respondent’s limited role.

  3. Secondly, the sentence the subject of this Crown appeal is less than that imposed by Yehia SC DCJ, notwithstanding that the offending was considerably worse, both in terms of the number of offences (four as opposed to two) and the quantity of the prohibited drugs involved, not to mention the large quantity of cash in the respondent’s possession. Yehia SC DCJ found that each offence comprising the 2018 offending “fell well below the middle of the range for this offence category, although not at the lowest end of the range”. While there is an inevitable level of imprecision in measures of objective seriousness, it is clear that the primary judge regarded the 2018 offending as less serious instances of offending than the 2020 State offending.

  4. We are conscious that the primary judge made a more favourable finding of prospects of rehabilitation than did Yehia SC DCJ, which was open to his Honour having regard to the evidence before him and the additional time in custody. But even so it is impossible to reconcile the two aggregate sentences if considered individually. That does not of itself mean that the sentence imposed by the primary judge is one that is manifestly inadequate, especially having regard to considerations of totality, but it is consistent with that being the case.

  5. Thirdly, and in our opinion decisively, what makes this sentence manifestly inadequate is that more than half of the non-parole period is to be served concurrently with the non-parole period for the separate 2018 offending. Putting to one side for the moment the 2020 federal offences, the effective non-parole period imposed for four very serious drug supply offences, three of which carried maximum sentences of life imprisonment and standard non-parole periods of 15 years imprisonment, was a mere 16 months (from 24 December 2022 to 15 April 2024).

  6. Fourthly, the sentence is markedly out of line with other comparable cases of persons “warehousing” large commercial quantities of prohibited drugs. We can pass over the difficulties in identifying the undiscounted starting point of an aggregate sentence where different discounts have been incorporated in the indicative sentences. The undiscounted starting point of an aggregate sentence of 5 years imprisonment, comprising three indicative sentences incorporating a 25% discount and one incorporating a 10% discount is no greater than the undiscounted starting point of a single sentence for 5 years imprisonment incorporating a 25% discount, which is to say, 6 years and 8 months. This is markedly less than comparable cases.

  1. In El-Helou v R [2014] NSWCCA 209, a 24 year old offender with no criminal record was involved in the transporting, warehousing and delivery of 582kg of pseudoephedrine (some 116 times the large commercial threshold). The offender was involved only for profit, and his appeal against sentence was allowed, this Court resentencing him to 10 years imprisonment, with a non-parole period of 6 years and 8 months, incorporating a discount of 25% for his plea.

  2. In Chu v R [2023] NSWCCA 13, the offender stored two large commercial quantities of cocaine (3,322.5g, some three times the threshold) and methylamphetamine (7,418.36g, approximately 15 times the threshold), a commercial quantity of GBL (2,047g) and 19.16g of 3,4 methylenedioxy-methylamphetamine. He was only storing the drugs for others and was not involved in supplying them, he had no previous convictions and was suffering from drug addiction and mental illness, and was found to have good prospects of rehabilitation. An appeal against sentence was allowed, this Court resentenced him to 7 years and 6 months imprisonment, with a non-parole period of 5 years, incorporating a 25% discount for his plea.

  3. In Chiarlini v R [2023] NSWCCA 227, the offender posted a parcel from Sydney to Perth, which contained some 1.978kg of methylamphetamine (just under four times the threshold for a large commercial quantity). While the sentencing judge found that the offender’s role in the enterprise was of “fundamental importance”, there was no evidence that he was involved in any further planning or organisation beyond posting the parcel, and her Honour was satisfied it was an isolated event. The offender had no prior convictions, was of good character, showed remorse, had positive prospects of rehabilitation, and also suffered from mental illnesses which were said to have a direct and significant correlation to his offending behaviour. This Court dismissed an appeal against the severity of a sentence of 5 years 3 months imprisonment, with a non-parole period of 3 years and 2 months, incorporating a 25% discount for his plea.

  1. El-Helou and Chu are sentences imposed for fewer counts of large commercial quantities of prohibited drug, and relatively favourable subjective cases. The undiscounted starting points for the sentences imposed were 13 years and 4 months, and 10 years imprisonment. It is true that aspects of the respondent’s subjective case were more favourable than those made in El-Helou and Chu, but it is also true that the respondent’s offending was worse, both in number of offences and in the quantity of prohibited drug. Chiarlini is a case where the subjective case is broadly similar to that of the respondent save for the absence of criminal convictions, while the single count was considerably less than any of the three offences of supplying large commercial quantities of a prohibited drug which the respondent committed. Even so, the undiscounted starting point of 7 years is greater than the undiscounted starting point of the sentence from which this appeal is brought.

  2. Against the foregoing, the respondent submitted that considerations of totality justified the sentence. It was said that the total effective sentence for the 2018 offending and the 2020 State and federal offending was 7 years and 1 month, very broadly reflecting an undiscounted starting point of in the order of 9 years, and that was not a sentence which was manifestly inadequate, having regard to the respondent’s strong subjective case. It was said:

There’s nothing about a period of imprisonment of seven years and one month that, in my respectful submission, does not address the principles or the purposes of sentencing in s 3A [of the Crimes (Sentencing Procedure) Act]. And to the extent that the Crown says that the State aggregate sentence doesn’t reflect denunciation.

How totality works, denunciation and whether it was sufficiently addressed in the penalty was to be considered by an analysis of the penalty, and that is seven years and one month. In my respectful submission, denunciation is well encompassed by those numbers, as is retribution.

  1. It was also submitted that it was important to note that no appeal was brought from the sentence imposed for the federal offending:

There is something else at play here which is the significance of totality and the Crown do not challenge the aggregate sentence imposed for the Commonwealth offence, yet here invite your Honours to have regard to various findings in respect of it in a way adverse to the respondent’s case on this appeal and for your Honours to do that would be an error.

  1. We agree with the respondent’s submission that it is essential to have regard to totality. As was observed in Elmir v R [2023] NSWCCA 260 at [41], the “totality principle requires that when sentences are imposed for multiple offences, it is necessary that the aggregation of those sentences is a ‘just and appropriate’ measure of the total criminality involved in their commission”: Mill v The Queen (1988) 166 CLR 59 at 62-63; [1988] HCA 70 and see Postiglione v The Queen (1997) 189 CLR 295 at 307-308; [1997] HCA 26 (McHugh J) and R v MAK; R v MSK [2006] NSWCCA 381; 167 A Crim R 159 at [15].

  2. We also agree that in the absence of an appeal from the sentence imposed for the federal offending, one should put to one side any implicit submission that it too was manifestly inadequate. It would be quite wrong to intervene in respect of the sentence imposed for the 2020 State offending and increase that sentence by reference to any inadequacy in the sentence imposed for the 2020 federal offending from which no appeal has been brought.

  3. Even so, we are unpersuaded that a total effective sentence of 7 years and 1 month imprisonment, with a non-parole period of 4 years and 7 months, is one which is an adequate response to the respondent’s 2018 and 2020 offending combined. Even allowing for the fact that the severity of a sentence is not linear, the total sentence for the 2018 offending and the 2020 offending is too low, and that is because the sentence imposed for counts 3, 4, 5 and 6 should be significantly greater than it is, and significantly greater than the (unappealed from) sentence imposed for the federal counts 1 and 2. That is not because of a conclusion that the 5 year sentence for the two federal counts is inadequate. It is because the backdated 5 year sentence for the four State counts is signally inadequate. It is inadequate whether considered alone, or when compared with the sentence imposed for the federal offending, or when compared with the sentence imposed for the 2018 offending, or when contrasted with the broadly comparable cases identified above.

  4. No separate submissions were advanced on residual discretion, which reflected the absence of any special factors telling against intervention by this Court. We are satisfied that there is no reason to dismiss the appeal in the exercise of this Court’s residual discretion. The Crown appeal must be allowed, the aggregate sentence imposed by the District Court of 5 years imprisonment with a non-parole period of 3 years for the 2020 State offending must be quashed and the respondent resentenced.

Resentence

  1. No appeal was brought against the federal offences. However, the aggregate sentence to be substituted for the 2020 State offending will be substantially longer than the undisturbed sentence for the federal offending. It is preferable for the aggregate sentence for the 2020 State offending to be the final component in the total effective sentence which will be imposed. One reason for this is that otherwise the respondent will not be able to obtain the full benefit of the finding of special circumstances by the primary judge and which we agree is appropriate.

  1. Accordingly, it is necessary, as the DPP submitted, for this Court to adjust the start date for the federal sentence to accommodate the greater sentence imposed for the 2020 State offending. The DPP submitted that this could be done under s 7(1A) of the Criminal Appeal Act. No submission was made to the contrary.

  2. Section 7(1A) relevantly provides:

(1A)  If on an appeal against a sentence under section 5 (1), 5D, 5DA or 5DB, the court quashes or varies the sentence passed at trial on any count or part of an indictment, the court may quash or vary any other sentence passed at the trial—

(a)  in relation to any offence charged in any other count or part of the same indictment, or

…

and pass such sentence, whether more or less severe, in substitution for the other sentence as the court thinks proper, and as may be warranted in law, in respect of the offence.

  1. Quite plainly s 7(1A) provides this Court with the power to vary the aggregate sentence of other State offences passed at trial, including by way of amending the commencement date for those offences. But what is the position when the “other sentence” is for a federal offence? Consistently with what was said in Attorney-General (Cth) v Huynh [2023] HCA 13; 97 ALJR 298, a conferral of State jurisdiction in those terms would be beyond the legislative power of the State in respect of a person convicted and sentenced in federal jurisdiction for an offence under a law of the Commonwealth: see at [37], referring to Rizeq v Western Australia (2017) 262 CLR 1; [2017] HCA 23 at [60]. Thus it is necessary to identify some federal law which picks up s 7(1A) if the starting date of the sentence imposed for counts 1 and 2 is to be altered.

  2. It may be that the relevant Commonwealth law is s 16E(1) of the Commonwealth Crimes Act, which provides that “the law of a State or Territory relating to the commencement of sentences and of non‑parole periods applies to a person who is sentenced in that State or Territory for a federal offence in the same way as it applies to a person who is sentenced in that State or Territory for a State or Territory offence”. This Court has held that s 16E(1) picks up and applies ss 24 and 47 of the Crimes (Sentencing Procedure) Act, which together authorise a sentencing judge to backdate federal offences: see Shi v R [2017] NSWCCA 126 at [6] and Rodgers v R [2018] NSWCCA 47 at [69]-[70]. It is arguable that s 16E(1) likewise operates to pick up and apply s 7(1A) of the Criminal Appeal Act, which requires characterising s 7(1A) as a law “of a State or Territory relating to the commencement of sentences and of non-parole periods”. But even if that were not so, s 68(1) of the Judiciary Act 1903 (Cth) would apply. Section 68(1)(d) picks up and applies “[t]he laws of a State or Territory respecting … the procedure for … the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith”. A long line of High Court authority has established that the section extends to appeals against sentence: Williams v The King (No 2) (1934) 50 CLR 551 at 560; [1934] HCA 19, Peel v The Queen (1971) 125 CLR 447 at 457, 460, 468; [1971] HCA 59 and Rohde v Director of Public Prosecutions (Cth) (1986) 161 CLR 119 at 124-125; [1986] HCA 50. Consistently with that view, s 7(1A) may well answer the description of a law “respecting … the procedure for … the hearing and determination of appeals”. Even if for some reason s 68(1) is not sufficient to make s 7(1A) applicable, then s 79(1) of the Judiciary Act will do so.

  3. For those reasons, the DPP was correct to contend that this Court may vary the commencement date of the aggregate sentence imposed for the federal offences, by reason of s 7(1A) of the Criminal Appeal Act picked up and applied by either s 16E of the Commonwealth Crimes Act or s 68(1) or s 79(1) of the Judiciary Act.

  4. We bear in mind all of the findings made by the primary judge, including the findings of objective seriousness, the impact of the respondent’s mental illness, the Bugmy factors consequent upon the respondent’s exposure to illicit drugs from a very early age, the good prospects of rehabilitation notwithstanding his criminal record, and the encouraging progress made to date. We also have regard to the effect of the sentence imposed by this Court upon the total sentence to be served by the respondent.

  5. The inclination to lenience based upon the primary judge’s favourable findings with respect to subjective considerations is significantly offset by the respondent’s long record of persistent offending. That is particularly so in light of the matters in June 2018 for which Yehia SC DCJ sentenced him and then, after nearly 20 months absence in Victoria, he recommenced his drug supply activities in New South Wales. An appropriate aggregate sentence for the 2020 State offending would be 8 years with a non-parole period of 4 years and 8 months. That sentence is significantly greater than the sentences imposed for the 2018 offending or the 2020 federal offending, but that reflects the fact that the 2020 State offending is significantly more serious. Even so, the respondent enjoys a measure of lenience in the low ratio of the non-parole period (58%) reflecting the finding of special circumstances.

  6. The indicative sentences for counts 3, 4, 5 and 6 are as follows:

Count 3 – supply large commercial quantity (5.95 kg methylamphetamine in the cooler bag in the respondent’s residence, and incorporating a 10% discount): 6 years with a non-parole period of 3 years and 6 months.

Count 4 – supply large commercial quantity (712.6L of GBL, 700L in drums in the Curlewis Street garage and in the vehicle in which the respondent arrived at the premises and another 12L and the respondent’s residence, and incorporating a 25% discount): 6 years with a non-parole period of 3 years and 6 months. The somewhat higher starting point reflects the large quantity involved, but also the lower pattern of sentencing for GBL relative to methylamphetamine: see Bott v R [2023] NSWCCA 255.

Count 5 – supply large commercial quantity (1,675L of 1,4-butanediol in the Curlewis Street garage, and incorporating a 25% discount): 6 years and 6 months with a non-parole period of 3 years and 10 months. This count involved a drug comparable to that in count 4 in a significantly larger quantity, and also takes into account the Form 1 proceeds of crime offence.

Count 6 – supply a prohibited drug (61.8g methylamphetamine in the respondent’s backpack located in the footwell of the vehicle, incorporating a 25% discount): 2 years and 6 months.

  1. It is necessary to determine the starting dates of the sentences for the 2020 offending. The following dates will be adopted in the orders for resentence:

  1. The aggregate sentence for the federal offending to commence on 25 September 2021, being 18 months after the commencement of the sentence imposed by Yehia SC DCJ. The non-parole period for the federal aggregate would end on 24 March 2024 and the head sentence will end on 24 September 2026.

  2. The aggregate sentence for the 2020 State offending to commence on 25 March 2022, 6 months after the commencement of the sentence for the federal matters. The non-parole period for the State aggregate would end on 24 November 2026 and the head sentence will end on 24 March 2030.

  1. The overall effective sentence for the 2020 offending (both State and federal) will be a head sentence of 8 years and 6 months (from 25 September 2021 to 24 March 2030) with a non-parole period of 5 years and 2 months (from 25 September 2021 to 24 November 2026). That is a ratio of 61%.

  2. The overall effect of the combination of sentences for the 2018 offending and the 2020 offending will be a head sentence of 10 years (from 25 March 2020 to 24 March 2030) with a non-parole period of 6 years and 8 months (from 25 March 2020 to 24 November 2026). That is a ratio of 67%.

  3. In considering the effect of the sentence imposed by this Court upon the sentence imposed for the 2018 offending, we have borne in mind the favourable findings made by the primary judge, but also the respondent’s long record of drug convictions prior to the 2018 offending which reduce the extent to which other favourable factors can attract lenience.

  4. On those sentences and commencement dates, the 61% ratio that is achieved for the 2020 State and federal offending is a fair outcome. The fact that the ratio increases to 67% when one takes into account Yehia SC DCJ’s sentence results from the fact that the respondent is being dealt with for two entirely discrete episodes of serious offending, separated by 20 months, the most recent episode being a resumption of the respondent’s activities after he had fled the State following the 2018 fire in the apartment.

  5. The effect of the three aggregate sentences can be seen from the following table:

  1. The formal orders of the Court are:

1. Appeal allowed.

2. Quash the aggregate sentence of 5 years imprisonment with a non-parole period of 3 years and a commencement date of 16 April 2021 imposed by the District Court on 21 July 2023 for counts 3, 4, 5 and 6, and in lieu thereof impose an aggregate sentence of 8 years imprisonment with a non-parole period of 4 years and 8 months commencing on 25 March 2022 and expiring on 24 November 2026, and a balance of term of 3 years and 4 months expiring on 24 March 2030.

3. Vary the sentence imposed by the District Court on 21 July 2023 for counts 1 and 2 so that it commences on 25 September 2021. The non-parole period of that sentence concludes on 24 March 2024 and the balance of the term of that sentence expires on 24 September 2026.

4. The earliest date on which the respondent may apply for parole is 25 November 2026.

  1. The overall effective sentence imposed by this Court is a term of imprisonment of 8 years and 6 months commencing on 25 September 2021 and expiring on 24 March 2030, with a non-parole period of 5 years and 2 months commencing 25 September 2021 and expiring 24 November 2026.

**********

Decision last updated: 29 November 2023

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R v Bui [2025] NSWCCA 114
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Attorney-General (Cth) v Huynh [2023] HCA 13
Bott v R [2023] NSWCCA 255
Bugmy v The Queen [2013] HCA 37