R v Cidan

[2014] NSWCCA 66

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

R v Cidan [2014] NSWCCA 66

Hearing dates:

26 March 2014

Decision date:

29 April 2014

Before:

Hoeben CJ at CL at [1]
Fullerton J at [2]
Adamson J at [3]

Decision:

(1) Allow the appeal

(2) Vary the sentence imposed by Puckeridge A-DCJ on 8 October 2013 by altering the commencement date in respect of count 2 from 18 July 2012 to 18 July 2014;

(3) Vary the sentence imposed by Haesler DCJ on 22 January 2014 by:

(a) increasing the sentence for the offence of supplying methylamphetamine from 7 years to 9 years; and

(b) altering the commencement date for that sentence from 18 July 2016 to 18 July 2017 and increasing the non-parole period from 3 years to 4 years

Note that the first date on which the respondent will be eligible for release is 18 July 2021.

Catchwords:

CRIMINAL LAW - sentence - Crown appeal - manifest inadequacy - substantial concurrence of sentence with sentence already imposed - drug offences - relevance of respondent's role and quantity of drugs

Legislation Cited:

Crimes Act 1914 (Cth), s 16BA, s16A, 16E, s 19AD
Criminal Appeal Act 1912 (NSW), s 5D
Criminal Code 1995 (Cth), s 314.4, s 400.4
Crimes (Sentencing Procedure) Act 1999 (NSW), s 32, s 44, s 54A, s 54B
Drug Misuse and Trafficking Act 1985 (NSW), s 25

Cases Cited:

Bugmy v The Queen [2013] HCA 37
Carroll v The Queen [2009] HCA 13
Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1
DPP v Karazisis [2010] VSCA 350; 31 VR 634
Everett v The Queen [1994] HCA 49; 181 CLR 295
Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
Hili v The Queen; Jones v The Queen [2005] HCA 45; (2010) 242 CLR 520
Mac v R [2014] NSWCCA 24
Munda v Western Australia [2013] HCA 38
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
Power v R (1974) 131 CLR 623
R v Engert (1995) 84 A Crim R 67
R v MAK [2006] NSWCCA 381; 167 A Crim R 159
R v Mulato [2006] NSWCCA 282
R v Niketic [2002] NSWCCA 425
Weininger v The Queen [2003] HCA 14; 212 CLR 629
Wong v The Queen [2001] HCA 64; 207 CLR 584

Category:

Principal judgment

Parties:

Regina (Appellant)
Aziz Cidan (Respondent)

Representation:

Counsel:
P Neil SC/TD Anderson (Appellant)
C Davenport SC (Respondent)
Solicitors:
Commonwealth Director of Public Prosecutions (Appellant)
John B. Hajje and Associates (Respondent)

File Number(s):

2011/232309

Publication restriction:

Nil

 Decision under appeal 

Before:

Puckeridge A-DCJ

File Number(s):

2011/232309

Judgment

1. HOEBEN CJ at CL: I agree with Adamson J.

1. FULLERTON J: I agree with Adamson J.

1. ADAMSON J: This is an appeal by the Crown pursuant to s 5D of the Criminal Appeal Act 1912 (NSW) against:

(1)   the sentence imposed by Puckeridge A-DCJ on 8 October 2013 in the District Court, Sydney following a trial by jury (the Puckeridge sentence); and

(2)   the sentence imposed by Haesler DCJ on 22 January 2014 in the District Court, following a plea of guilty (the Haesler sentence).

1. Puckeridge A-DCJ imposed the following sentences:

Count	Section	Offence	Max. Penalty	Sentence Imposed
1	S 307.2 of the Criminal Code 1995 (Cth)	Import marketable quantity (14,875.9 g) border controlled drug (opium)	25 years imprisonment +/- $550,00 fine	Imprisonment for 7 years to date from 18/7/2011 and to expire on 17/7/2018 NPP of 5 years and 8 months to expire on 17/3/2017
2	S 307.9 of the Criminal Code 1995 (Cth)	Possess marketable quantity (8,342.1 g) of border controlled drug (opium) reasonably suspected of having been unlawfully imported	25 years imprisonment +/- $550,00 fine	Imprisonment for 7 years to date from 18/7/2012 and to expire on 17/7/2019 NPP of 5 years and 8 months to expire on 17/3/2017

1. Haesler DCJ imposed the following sentences:

No.	Section	Offence	Maximum Penalty	Sentence Imposed
1	S 400.4(1) of the Criminal Code 1995 (Cth)	Deal with money that the respondent believed was the proceeds of crime in an amount of more than $100,000	20 years imprisonment +/- $132,000	Imprisonment for 4 years 4 months to date from18/7/15 and to expire on 17/11/2019. NPP of 2 years to expire on 17 July 2017 (arising from fixing new NPP of 6 years for all federal offences commencing 18 July 2011).
1 x s 400.4(1) of the Criminal Code 1995 (Cth) taken into account on s.16BA Schedule	Deal with money that the respondent believed was the proceeds of crime in an amount of more than $100,000.
2	Section 25(2) DMTA	Deemed supply of a large commercial quantity of methylamphetamine, being an amount not less than 1 kg: 2,270.8 g	Life imprisonment +/- $550.000 Standard non-parole period 15 years	Imprisonment for 7 years to date from 18/7/16 NPP of 3 years to expire on 17/7/19. A 12.5% discount was allowed for the plea of guilty.
1 x s 25(2) DMTA taken into account on a Form 1	Deemed supply of a commercial quantity of heroin, being an amount not less than 250 g: 894.8 g

1. The principal complaint is that each of the sentences, and the combined sentence, were manifestly inadequate (ground 4 in respect of the Puckeridge sentence and ground 1 in respect of the Haesler sentence).

1. In respect of the Puckeridge sentence, the additional grounds are:

(1)   Accumulating the two sentences by one year was erroneous (ground 1);

(2)   Insufficient effect was given to the respondent's role (ground 2);

(3)   It was erroneous to take into account the respondent's depressive condition and opium use in the absence of evidence of a temporal or causal link to the offending (ground 3).

1. In respect of the Haesler sentence the additional grounds are:

(1)   Failure to have sufficient regard to the Standard Non-Parole Period (SNPP) for the drug offences (ground 2); and

(2)   The erroneous finding that depressive illness and opium use ought be taken into account in the commission of the offences in the absence of evidence of a causal or temporal link to the offending (ground 3).

The facts

Procedural matters: severance of the opium counts

1. On 18 June 2013 the respondent entered a plea of not guilty to an indictment containing seven counts involving the importation, possession and supply of various border-controlled drugs. Counts 1-3 concerned opium. Counts 4-7 concerned morphine, heroin and methylamphetamine. Puckeridge A-DCJ granted the respondent's application to sever counts 4-7 from counts 1-3.

1. On 24 June 2013, the Crown presented a fresh indictment that contained only counts 1-3, the opium counts. By verdicts returned on 12 July 2013, the jury found the respondent guilty of counts 1 and 2.

The facts as established in the trial conducted by Puckeridge A-DCJ

1. In about July 2010 the respondent left Australia for Iran. After his return a month or two later, the first of seven shipments arrived in Sydney by air from Tehran, Iran. Each of the consignments was addressed to Ali Roshane (who did not exist) at an address in North Parramatta which was a similar address to one used by the respondent in 2001 and 2002. The first six containers were not examined by Australian Customs and Border Security (Customs).

1. In May 2011, the seventh consignment of goods arrived and was examined. Its contents were described as "Carpet, bed sheet, samovar". The consignment contained samovars (Persian tea urns) and rugs. Analysis of a brown substance concealed in the samovars revealed it to be opium. The net weight of the opium was 14,875.9 g. Unlike other drugs, such as heroin and cocaine, opium has no "pure weight". Section 314.4 of the Criminal Code 1995 (Cth) defines a "marketable quantity" of opium to be an amount between 20g and 20 kgs.

1. Telephone records showed calls between the phone number on the consignment notes for the seventh and a previous consignment and phone numbers of persons associated with the respondent.

1. A search warrant executed on a locker at Rydalmere in a storage facility operated by Kennard's revealed six samovars, one of which contained opium, in the form of a brown substance, which had a net weight of 8,342.1 g (the subject of the second count). A set of electronic scales, a knife and small zip lock plastic bags were also found, together with a receipt associated with the respondent's wife. The respondent's fingerprints were found on various items within the locker.

1. The storage locker also contained other drugs (methylamphetamine, heroin and morphine) the details of which will be set out below since the respondent was sentenced for offences relating to those drugs by Haesler DCJ.

1. A search warrant was executed on the respondent's home at Bella Vista on 18 July 2011. One of the phones seized was linked to the consignment. A key which fitted the padlock on the storage locker at Rydalmere was also found.

1. The total amount of cash in the respondent's possession was $348,350. This offence was on a schedule to be taken into account by Haesler DCJ pursuant to s 16BA of the Crimes Act 1914 (Cth) when sentencing the respondent for an offence of dealing with the proceeds of crime.

1. The principal issue at the trial before Puckeridge A-DCJ was whether the respondent knew, or was reckless as to the fact, that the consignment contained opium. There was considerable evidence to establish the respondent's involvement in the consignment as well as closed circuit television (CCTV) footage of his accessing the storage facility on five occasions.

The respondent's case at trial

1. The respondent denied knowledge of the consignment and the opium found at the storage unit and his home. He admitted using the storage unit but said he visited it only on the occasions recorded on CCTV and that it belonged to a friend. He denied having anything to do with the opening of an account with Kennard's Storage several years before.

The sentence hearing before Puckeridge A-DCJ

1. The Crown read an affidavit of Detective Sergeant Stipnieks, whose evidence was not challenged. He opined that the combined street value of opium resin was $706,758 and its wholesale value was $471,200.

1. At the sentence hearing, the respondent tendered:

(1)   his statement in support of his application for a protection visa together with documents to establish that he suffered from depression in Iran;

(2)   a document and a certified translation that stated that his brother was executed on 16 August 1984;

(3)   a report of Becky Salter, family caseworker, which recorded the detrimental effect of the respondent's incarceration on his family; and

(4)   a report dated 10 August 2013 of Dr Allnutt who saw the respondent on 30 July 2013 for the purposes of preparing a report for the sentence hearing.

1. In his report Dr Allnutt concluded:

Your client states that since he has been in Australia he had continued to have underlying depressive and anxiety symptoms and has continued to use opium until the time of his arrest thus manifesting both a Depressive Disorder and probable Opium Dependence Disorder both of which it appears were active at the material time of the alleged offending.

Your client denies the offending and thus it is not possible for me to provide any opinion on the nexus between of the relationship between any psychiatric disorder that he might be experiencing and his offending in and of itself.

1. Puckeridge A-DCJ found that it was the respondent who arranged for the importation of the opium in the samovars and that he was aware both the type of drug and the quantity. He made the arrangements on his own account in that he was not part of a criminal organisation involved in the importation of drugs. His role was, accordingly, significant. He was no mere courier.

1. Puckeridge A-DCJ referred to the fact that the respondent is Kurdish and applied for a protection visa by reason of persecution in Iran. He came to Australia as a refugee in 1999. His Honour referred to the following history the respondent gave to Dr Allnutt:

(1)   he had used opium from the time he arrived in Australia and was still using it, at the rate of half a gram a day, at the time of the offending for his depression;

(2)   he was concerned about his children's welfare;

(3)   he suffered from nightmares, and experienced tremors when exposed to prior traumatic events.

1. His Honour made the following finding:

"I consider that on the evidence before this Court his experiences in Iran were such that it is more than likely that those experiences had an enduring psychological effect upon him and that the evidence as to his intake of opium as at the time of the committing of the offence is evidence to be taken into account as he probably was suffering from the effects of depression as at the time of the committing of the offences."

1. His Honour referred to the report of Ms Salter and the difficulties experienced by the respondent's wife and young children arising from his incarceration. His Honour said in the remarks on sentence:

"I have taken these matters into account but have to bear in mind what is stated in s 16A [of the Crimes Act 1914 (Cth)], that a court must impose a sentence that is of severity appropriate in all circumstances of the offence."

Procedural matters: balance of charges

1. The remaining four counts on the original indictment were the subject of negotiation which resulted in an agreement. The respondent pleaded guilty to two of the remaining four counts and the other two charges were dealt with on a Form 1 pursuant to s 32 and s 33 of the Crimes (Sentencing Procedure) Act1999 (NSW) and a schedule pursuant to s 16BA of the Crimes Act1914 (Cth).

1. These matters were listed for sentence before Haesler DCJ on 22 January 2014 since Puckeridge A-DCJ was no longer available, his final Commission having expired.

The sentence hearing before Haesler DCJ

1. The facts were agreed and were summarised by Haesler DCJ in the remarks on sentence.

1. The respondent created a false identity in order to deposit money in Westpac bank account at Chatswood. In the period from 11 March to 8 June 2011 he deposited a total of $213,687 in seven separate transactions and then instructed a total of $196,370 to be remitted from this account to four individual recipients in Iran. This money, which the respondent knew to be proceeds of crime, derived wholly or partly from the commission of drug-related offences. These facts relate to the first count on the indictment before Haesler DCJ: deal with money that the respondent believed was the proceeds of crime in an amount of more than $100,000, contrary to s 400.4(1) of the Criminal Code 1995 (NSW).

1. On or about 18 July 2011 a search warrant was executed on the respondent's storage unit at Rydalmere. A clear plastic bag was found inside a HUGGIES nappy box which contained gross weight of 2,270.8 g of methylamphetamine. The respondent's fingerprints were on the bag and on electronic scales, which were also found in the storage unit. Those scales, and another set found at the respondent's home in Bella Vista, tested positive to traces of methylamphetamine and heroin.

1. The possession of 2,270.8 g (gross weight; net weight of 1,777.25 g) of methylamphetamine amounted to a deemed supply of a large commercial quantity (being a quantity in excess of 1 kg) in contravention of Section 25(2) Drug Misuse and Trafficking Act 1985 (NSW) (DMTA). This offence was the second count on the indictment presented before Haesler DCJ. The uncontested evidence of Detective Sergeant Stipnieks was that this amount of methylamphetamine had a street value of $1,135,400 and a wholesale value of $567,500.

1. A brown powder substance was also found in the storage unit. It comprised a combination of:

(a)   morphine with a net weight of 280.9g; and

(b)   heroin with a gross weight of 894.8 g and a net weight of 574.5 g of pure heroin.

1. The deemed supply of a commercial quantity of heroin was on a Form 1 before Haesler DCJ to be taken into account in the sentence for the offence of supply of methylamphetamine. The uncontested evidence of Detective Sergeant Stipnieks was that this amount of heroin had a street value between $574,480 and $670,250 and a wholesale value of $231,400.

1. In the course of the execution of the search warrants on 18 July 2011, a total of $348,350 was located: $242,800 in the Blue HUGGIES box in the storage unit and $105,550 at the respondent's home. The money, which the respondent knew to be proceeds of crime, was partly or wholly derived from the commission of drug-related offences. Possession of such substantial amounts of money was beyond the legitimate means of the respondent and his wife, who were both recipients of Centrelink payments. This offence was taken into account in the sentence for count 1 by Haesler DCJ pursuant to s 16BA of the Crimes Act 1914 (Cth).

1. The Crown tendered the respondent's criminal history and bail report. The respondent tendered the same documents as he had tendered before Puckeridge A-DCJ. In addition he tendered a character reference from Soliman Gilany, who employed the respondent as a cleaner in Department of Housing projects, which contained the following paragraph:

"I've seen him as an honest, reliable and family man. He is a community minded individual who puts the needs of others before his own, best evidenced through his community work, both professional and voluntary work."

Haesler DCJ's remarks on sentence

1. Haesler DCJ found that the respondent was a sole trader who was the principal in his own "fairly large scale supply operation" which he organised and controlled for his own financial gain. The drugs were being held in storage for a commercial purpose with items that indicated ongoing supply, although the precise way in which this was to be done was not revealed in the evidence.

1. His Honour adverted to the maximum penalty and to the harm that flowed from illicit drugs and said:

"It bears repeating that the sale of illicit drugs causes considerable harm not just to those who purchase and ingest such drugs but to the community in general. The illicit trade in drugs is one of the principal sources for crime in our community. It is not just the sale of drugs, it is the crimes that are committed by those who seek to obtain the funds for drugs and the destruction of family life and personal life that drugs cause. For that reason significant maximum penalties are set by Parliament and for that reason significant penalties must be imposed by sentencing judges."

1. Haesler DCJ referred to the SNPP in the following terms:

The standard non-parole period fixed by Parliament must be taken into account in determining the appropriate sentence. I note that that standard non-parole period, here 15 years, represents an offence in the middle of the range of seriousness taking into account only the objective factors affecting the relative seriousness of that offence.

I note I am required to make a record of my reasons for setting a non-parole period that is longer or shorter than the standard non-parole period and the need to identify the reasons for each factor I take into account. I am not, as I understand it, required to identify the extent to which the seriousness of the offence for which the non-parole period is set differs from that - an offence to which the standard non-parole period is referable.

There are reasons here for a shorter non-parole period, they include firstly, the plea of guilty, secondly, that the offence is not objectively within the middle of the range. Given the quantities that could be caught by the section and the level of organisation by this offender and the fact that it was found in storage and not individually packaged, I find that it falls reasonably well below the middle of the range of objective seriousness. I note the subjective matters which I will refer to shortly. Some subjective matters call for a finding of special circumstances. There is also a need in this matter for a finding of special circumstances particularly to allow for accumulation and the proper application of the principal of totality.

1. Haesler DCJ referred to the respondent's subjective circumstances and found:

"He suffered, at the time of this offence and still does, from what Dr Allnutt, exhibit 1, describes as a depressive disorder. This on balance I find relates to and is caused by his background in Iran. Without going into any significant detail, the evidence before me supports that he was, as a Kurd, persecuted, imprisoned, tortured and aware that his brother was executed for his political activities. Those matters founded his being granted a protection visa by the Australian government.

It is clear from the material before me that his opium use could be and probably was related to that background. His opium use and his depression does not and cannot excuse his offending but they may explain his state of mind and why his capacity to exercise sound judgment was impaired.

1. Pursuant to s 19AD(2)(e) Crimes Act 1914 (Cth) Haesler DCJ fixed a new single non-parole period of six years in respect of all federal sentences that commenced on 18 November 2011 and expired on 17 November 2017. The only sentence imposed by Haesler DCJ which is the subject of appeal is the sentence for the offence relating to methylamphetamine against s 25(2) of the DMTA and the associated count of supply of heroin which was to be taken into account on a Form 1.

The appeal against the sentence imposed by Puckeridge A-DCJ

Principles that relate to Crown appeals

1. The Crown accepts that its right to appeal should be exercised rarely and principally for the purpose of allowing the Court to lay down principles for the guidance of sentencing judges: Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 (Green v The Queen; Quinn v The Queen) at 465 [1]-[2]. This Court retains a residual discretion in the exercise of the jurisdiction under s 5D to refuse to intervene in a sentence even if error has been demonstrated and manifest inadequacy established. This Court is obliged to consider whether to exercise the residual discretion to dismiss the appeal even in circumstances where the Crown has demonstrated error and established manifest inadequacy: Bugmy v The Queen [2013] HCA 37 at [24] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).

1. The limitations that apply to Crown appeals were summarised by McHugh J in Everett v The Queen [1994] HCA 49; 181 CLR 295 at 306:

"Defining the limits of the range of appropriate sentences with respect to a particular offence is a difficult task. What is the range in a particular case is a question on which reasonable minds may differ. It is only when a court of criminal appeal is convinced that the sentence is definitely outside the appropriate range that it is ever justified in granting leave to the Crown to appeal against the inadequacy of a sentence. Disagreement about the adequacy of the sentence is not enough to warrant the grant of leave. Sentencing is too inexact a science to make mere disagreement the criterion for the grant of leave to appeal against the inadequacy of a sentence."

1. If this Court considers it appropriate to re-sentence a respondent to a Crown appeal, it is obliged to exercise restraint and re-sentence at the lower end of the acceptable range to overcome the manifest inadequacy of the sentence imposed.

1. As grounds 1, 2 and 4 are substantially related I propose to address them together. The third ground, which relates to subjective circumstances, is discrete. I shall deal with the third ground first.

Ground 3: Puckeridge A-DCJ erred by taking depressive illness and opium use into account in the commission of the offences in the absence of evidence of a causal or temporal link to the offending

1. The respondent did not give evidence at the sentence hearing before Puckeridge A-DCJ. Accordingly, there is no verification of the history he gave to Dr Allnutt other than the documentary material tendered to establish that his brother was executed and that he suffered from depression. The history is of limited weight since the respondent's version could not be challenged by the Crown in cross-examination: R v Niketic [2002] NSWCCA 425 (Wood CJ at CL, Howie J and Smart AJ agreeing).

1. Furthermore the respondent denied the offending when he conferred with Dr Allnutt. Puckeridge A-DCJ found that the respondent was suffering from depression at the time of the commission of the relevant offences and said that he took it into account in sentencing the respondent. By implication, Puckeridge A-DCJ regarded the depression as a mitigating factor and appears to have inferred that there was a causal connection between the depression and the commission of the offence, notwithstanding the lack of evidence to support such a finding.

1. The respondent submitted that it was open to the sentencing judge to find a causal connection because of the temporal connection. Ms Davenport SC, who appeared on behalf of the respondent, contended that in these circumstances, the respondent's illness was a mitigating circumstance which ought be taken into account in his favour.

1. Mental illness is a potentially relevant factor in sentencing. It may bear upon the appropriate sentence in various ways, not all of them mitigating: R v Engert (1995) 84 A Crim R 67 at 71 (Gleeson CJ, Allen and Sully JJ agreeing). However, in my view, it was not open to Puckeridge A-DCJ to find that the respondent's depression contributed to the commission of the offence.

1. First, as appears from the passage of his report set out above, Dr Allnutt opined that, in circumstances where the respondent denied the offending, such assessment was "impossible". Secondly, there is no proper basis to infer a causal connection from a temporal one. Thirdly, one might have thought it less likely that depression, which is a notoriously debilitating illness, could reasonably be regarded as contributing to the conducting of a large-scale successful business that required the transfer of substantial sums of money and illegal goods across the world, particularly where deception was required to mask its illegality.

1. ln my view, the erroneous inference the sentencing judge drew as to the connection between the mental illness and the offence led Puckeridge A-DCJ into the error of regarding the respondent's mental illness as diminishing his moral culpability.

1. The third ground has been made out.

1. Because of the view to which I have come in relation to ground 4, it is necessary for this Court to re-sentence the respondent in any event. Accordingly, there is no need to quantify the effect on the sentence of the third ground having been made out.

Ground 1: Puckeridge A-DCJ failed to give effect to the principle of totality by accumulating the sentences for counts 1 and 2 by only one year

Ground 2: Puckeridge A-DCJ failed to give effect to the finding that the respondent's role was greater than that of a mere courier

Ground 4: the sentence was manifestly inadequate

1. The Crown accepted that it was likely that the opium in the first count was imported from Iran in the same manner as the opium in the second count. However, it submitted that there was no other connection between the two offences, which formed part of the respondent's business enterprise. The Crown contended that the offences were distinct and represented the respondent's involvement in two critical stages of drug distribution: importation on the one hand, and possession (deemed supply) for the purposes of supply in smaller quantities on the other. It submitted that this factor ought to have reduced the level of concurrency whereas it appears to have increased it. The Crown argued that Puckeridge A-DCJ failed to pay regard to the finding of the respondent's principal role in the enterprise.

1. Furthermore the Crown submitted that the overall sentence imposed was manifestly inadequate having regard to the quantity of drugs and the respondent's involvement.

1. Ms Davenport submitted that there was no evidence of actual supply, although she accepted that it could be inferred that the opium had been imported for the purposes of sale and was in the possession of the respondent pending its division into smaller amounts for sale. She submitted that the question of what category in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 at [207]-[224] (McClellan CJ at CL) was appropriate was largely a matter of judgment which Puckeridge A-DCJ was pre-eminently in a position to make. Ms Davenport contended that the difference between the first count (importation) and the second count (deemed supply) was substantially a matter of timing since the first count concerned opium that was arriving and the second count concerned opium that had arrived. In substance, the criminality between the two counts was much the same and, for that reason, the substantial overlap of head sentences was appropriate.

1. I am persuaded that the sentence imposed by Puckeridge A-DCJ was so manifestly inadequate to reflect the criminality of the respondent's importation and possession of opium that it must have involved error: Hili v The Queen; Jones v The Queen [2005] HCA 45; (2010) 242 CLR 520 (Hili v The Queen). The sentence imposed by Puckeridge A-DCJ was such as to create an inconsistency in sentencing standards such as to require this Court's intervention to maintain adequate standards of punishment for offences of this kind.

1. The manifest inadequacy arose, in my view, from the inadequate accumulation between the sentences imposed for importation of opium on the one hand and supply on the other.

1. Although there is no general rule that determines whether sentences ought be dealt with concurrently or consecutively, the principle of totality is an overriding principle by reference to which sentences are to be measured: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 at 308 (McHugh J). I am persuaded that Puckeridge A-DCJ failed to take account of the overall criminality in accumulating the sentences for the two counts by only one year.

1. In my view, consistent with the principle of restraint in determining Crown appeals, the individual sentences imposed by Puckeridge A-DCJ ought stand but the commencement date for the sentence for the supply offence ought be varied to 18 July 2014 so as to increase the period of accumulation from one year to three years. Having regard to the need to take account of the sentences imposed by Haesler DCJ for the other offences, it is not necessary to express a view about the non-parole period for the opium offences.

The appeal against the sentence imposed by Haesler DCJ

1. As grounds 1 and 2 are substantially related I propose to address them together. I shall address ground 3 first since it is distinct from the other two grounds.

Ground 3: Haesler DCJ erred by finding that depressive illness and opium use ought be taken into account in the commission of the offences in the absence of evidence of a causal or temporal link to the offending

1. The relevant finding is contained in the passage from Haesler DCJ's remarks on sentence set out above. It was:

"[The respondent's] opium use and his depression does not and cannot excuse his offending but they may explain his state of mind and why his capacity to exercise sound judgment was impaired."

1. The Crown submitted, largely for the reasons for which it contended in support of ground 3 against the Puckeridge sentence, that the finding was not supported by the evidence of Dr Allnutt, which was the only evidence adduced that was germane to the connection, if any, between the offending conduct and the respondent's opium use and his mental state.

1. Ms Davenport accepted that the opium use and depression were relevant only to the determination of how onerous a sentence of imprisonment might be for the respondent. She conceded that a connection between them and the criminal conduct could not be made in light of the evidence of Dr Allnutt.

1. In my view, Haesler DCJ, in using the word "may", may have been engaging in no more than a speculative exercise of envisaging what was possible, as distinct from making a finding. If, however, his Honour took into account a causal connection between the opium use and mental state on the one hand and the offending conduct on the other, this would have amounted to an error, since the evidence did not support the finding.

1. Because of the view to which I have come in relation to grounds 1 and 2, it is necessary for this Court to re-sentence the respondent in any event. Accordingly, there is no need to quantify the effect on the sentence of the third ground having been made out.

Ground 1: the sentence imposed for the drug offences by Haesler DCJ is manifestly inadequate

Ground 2: by the sentence imposed for the drug offences, Haesler DCJ failed to have adequate regard for the SNPP

1. The SNPP for offences under s 25(2) of the DMTA is 15 years. Accordingly for such offences this represents the non-parole period for an offence in the middle of the range of objective seriousness, taking into account only the objective factors affecting the objective seriousness of the offence: s 54A of the Crimes (Sentencing Procedure) Act. Haesler DCJ was obliged to take it into account: s 54B(2). His Honour also obliged to take into account the respondent's guilty plea: s 22, as his Honour did, by discounting the sentence by 12.5%.

1. The remarks on sentence show that Haesler DCJ had regard to the SNPP. His Honour's reasoning as to where the offences fell within the range of objective seriousness appears from the following passage:

Given the quantities that could be caught by the section and the level of organisation by this offender and the fact that it was found in storage and not individually packaged, I find that it falls reasonably well below the middle of the range of objective seriousness.

1. Although the second ground is expressed in terms of a failure to have adequate regard for the SNPP, the Crown's principal submission was that it was not open to Haesler DCJ, in all the circumstances, to find that the offence of deemed supply of 2,270.8 g of methylamphetamine fell "reasonably well below the middle of the range of objective seriousness". The Crown relied on the quantity and value of the drugs and the respondent's role in the enterprise. It submitted that the fact that the methylamphetamine did not happen to have been packaged at the time of the seizure was both inconsequential and fortuitous since the compelling inference was that, in due course, it would be packaged for distribution and sale.

1. Ms Davenport submitted on behalf of the respondent that the Crown had, in its submissions to Haesler DCJ, relied on the sentence imposed by Sweeney DCJ on 25 May 2012 on Tien Ly Mac. She contended that the sentence imposed by Haesler DCJ was not out of the range as indicated by the sentence imposed on Mac by Sweeney DCJ and that the Crown, having put it forward as a relevant comparable, ought not be heard to contend to the contrary.

1. In that case, Mac was found to have travelled to Vietnam and organised for a shipment of heroin to be delivered to an address owned by him in his daughter's name. Customs intercepted the parcel and found the heroin among packets of tea. When the offender attempted to collect the parcel from the Lakemba Mail Delivery Centre he was arrested. The powder in the parcel had a bulk weight of 1,387.3 g and contained 981 g of pure heroin. Mac was found to be in possession of $554,250 in cash. The jury's verdict of guilty indicated that it rejected his argument that this money was the proceeds of gambling. A large commercial quantity of heroin (1,016.5 g) and a large commercial quantity of methylamphetamine (1,532.6 g) were found in his home safe, each of which were intended for supply for financial reward. Mac had all of the equipment and supplies necessary to cut, weigh and package the drugs in his possession.

1. Mac was a refugee from Vietnam and had no previous convictions. He played an organisational role in having the parcel sent from Vietnam, although others were also involved. Mac knew that the package contained heroin and he knew how much had been sent. His motive was financial gain.

1. Mr Mac was convicted after trial of all four charges and sentenced as follows:

Count	Section	Offence	Max. Penalty	Sentence Imposed
1	S 11.1(1) and 307.2(1) of Criminal Code	Attempting to import a marketable quantity (not less than 2 g) of border controlled drug (heroin)	25 years imprisonment	9 years imprisonment, to commence on 23 October 2011 with a NPP of 5 years
2	S 400.4(1) of Criminal Code	Deal with money the offender believed was the proceeds of crime in an amount of more than $100,000 ($554,250)	20 years imprisonment	8 years imprisonment to commence 23 October 2011 with a NPP of 5 years
3	S 25(2) of DMTA	(Deemed) supply of an amount (1,016.5 g) of a prohibited drug (heroin) which is not less than the commercial quantity (250 g)	Life imprisonment with SNPP of 15 years	8 years imprisonment to commence 23 October 2014 with a NPP of 5 years
4	S 25(2) of DMTA	(Deemed) supply of an amount (1,532.6 g) of a prohibited drug (methylamphetamine) which is not less than the commercial quantity (0.25 kg)	Life imprisonment with SNPP of 15 years	9 years imprisonment to commence 23 October 2015 with a NPP of 5 years.
TOTAL	13 years imprisonment with a NPP of 9 years

1. Mr Mac was convicted after trial. This Court dismissed his appeal against conviction and refused his application for leave to appeal against sentence: Mac v R [2014] NSWCCA 24 (Mac). In Mac it was the offender who sought to challenge the sentence, including on the ground of manifest excess. That this Court did not consider his challenge to the sentence to warrant a grant of leave does not particularly illuminate the issues in this appeal which concern manifest inadequacy.

1. Haesler DCJ sentenced the respondent by reference to the agreed facts and the documentary evidence adduced at the sentence hearing. No oral evidence was adduced. Accordingly, the exercise of finding the facts on which the respondent was to be sentenced did not involve the sophisticated evaluative assessment (such as is commonly required following a trial or where the evidence at the sentence hearing is disputed) which was considered by the High Court in Weininger v The Queen [2003] HCA 14; 212 CLR 629 at [18]-[24] (Gleeson CJ, McHugh, Gummow and Hayne JJ).

1. As Spigelman CJ (Simpson J agreeing) said in R v Mulato [2006] NSWCCA 282 at [37]:

"Characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts. This Court is very slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion. The question must be whether or not the particular characterisation which her Honour gave to the circumstances of the offence was open to her Honour."

1. If this Court finds that the characterisation made by Haesler DCJ was not open to his Honour, this Court is entitled to form a different view as to where, in the objective scale of offending, the respondent's conduct stood, although this Court is bound by his Honour's findings of facts, to the extent to which they are not challenged: Carroll v The Queen [2009] HCA 13 at [24].

1. In my view, it was not open to Haesler DCJ to characterise the respondent's offence of supply of methylamphetamine as below the middle of the range of objective seriousness having regard to his Honour's finding that the respondent was a sole trader in a "fairly large scale drug importation" and the undisputed quantity of the methylamphetamine.

1. Although, as the High Court found in Wong v The Queen [2001] HCA 64; 207 CLR 584 (Wong), at [73], the proposition that the gravity of a drug offence can usually be assessed by reference to the weight of the drug is false, the converse is not. In the circumstances of the present case, the quantity of the drug concerned is, in my view, material to the objective seriousness of the offending conduct. The methylamphetamine was in the respondent's possession for the purposes of supply in the course of his own business for his personal financial gain. He was no mere bit player, or courier, who might be regarded as being ignorant of the details of quantity and purity (cf. Wong at [68] per Gaudron, Gummow and Hayne JJ). The amount found in his possession was over twice the minimum amount that would have qualified as a "large commercial quantity".

1. There are some similarities between Mac and the instant case. It was, in my view, appropriate for the Crown at the sentence hearing to include it in the list of sentences to which regard might be had by Haesler DCJ in passing sentence on the applicant. However, care must be taken in drawing direct comparisons between sentences passed, those to be passed and those which are, or have been, the subject of appeal: see generally, Hili v The Queen at [53]- [56] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.

1. In my view, his Honour's assessment of the objective seriousness of the respondent's criminality in his commission of the offence concerning methylamphetamine as being "reasonably below the middle of the range of objective seriousness" was not reasonably open to his Honour. Accordingly, the second ground has been made out.

1. The first ground is that the sentence imposed by Haesler DCJ was manifestly inadequate. Like manifest excess, manifest inadequacy, is a conclusion that does not require identification of a specific error: Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at [6] (Gleeson CJ and Hayne J). The error the subject of the second ground has been identified and made out but the determination of the first ground requires the conclusion to be examined.

1. The sentence imposed by Haesler DCJ for the drug offences was seven years to date from 18 July 2016 with a non-parole period of three years.

1. The non-parole period should be the minimum period that an offender must spend in gaol having regard to all the relevant considerations, including the objective seriousness of the crime, deterrence and the subjective circumstances: Power v R (1974) 131 CLR 623 at 627-629. These considerations are also relevant to the fixing of the total term. The ratio between the non-parole period and the total term is a matter for the sentencing judge, who is bound by the statutory ratio, subject to finding special circumstances: s 44 of the Crimes (Sentencing Procedure) Act. Section 44 applies to sentences for federal offences, by reason of s 16E of the Crimes Act 1914 (Cth).

1. Paying due regard to the discretion of Haesler DCJ and the flexible approach allowed to sentencing judges in structuring sentences, I consider that Haesler DCJ failed sufficiently to reflect the totality of the criminality of the offending conduct, having regard to the sentences imposed by Puckeridge A-DCJ. I consider the sentence imposed to have been so manifestly inadequate that it must have involved error: Hili v The Queen; Jones v The Queen.

1. The offence for which the respondent was sentenced by Haesler DCJ and the count to be taken into account on the Form 1 not only involved different drugs than those for which Puckeridge A-DCJ sentenced him, but involved different offending conduct.

1. In my view the sentence imposed by Haesler DCJ was manifestly inadequate, both as to the non-parole period and as to the total term, having regard to the respondent's criminal culpability concerning heroin and methylamphetamines. The sentence imposed on Mac does not, in my view, provide a reason for concluding that the sentence imposed in the present case was other than inadequate, and, in my view, manifestly so.

1. Where a sentencing judge passes sentence on an offender who has already been sentenced by another judge, the second judge must regard the first sentence as an appropriate exercise of the first judge's discretion. Accordingly, whatever view Haesler DCJ formed about the Puckeridge sentence, his Honour was bound by it and was not entitled to seek to reduce or increase it by the sentences his Honour imposed: R v MAK [2006] NSWCCA 381; 167 A Crim R 159 at [99] per Spigelman CJ, Whealy and Howie JJ.

1. In my view, the sentence imposed by Haesler DCJ ought be varied to increase the total term by two years from seven years to nine years to date from 18 July 2017. This is, in my view, the minimum sentence, in the circumstances which include the Form 1 offence, to overcome the manifest inadequacy of the sentence imposed. The taking into account of the Form 1 offence pursuant to s 33 of the Crimes (Sentencing Procedure) Act ought, in my view, increase the sentence beyond that which would be required for the count 2 offence alone: see the summary of relevant principles in Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115.

1. The accumulation of sentences is conventionally regarded as providing the basis for a finding of special circumstances in respect of the last of a number of sentences imposed, in order to achieve an appropriate relationship between the effective non-parole period and the overall term. For the reasons given below I consider that the non-parole period stipulated by Haesler DCJ in respect of the drug offence ought be varied from 3 years to 4 years.

1. In these circumstances there is no need to vary the order made by Haesler DCJ pursuant to s 19AD(2)(e) of the Crimes Act 1914 (Cth) fixing a new single non-parole period of six years for all federal offences, which commenced on 18 July 2011 and will expire on 17 July 2017.

The total effective sentence imposed

1. For the reasons given above, I am persuaded that each of the Puckeridge and Haesler sentences were infected by the specific errors identified and were manifestly inadequate.

1. However, it does not follow from this conclusion that the appeal ought be allowed since the total effective sentence imposed, if not manifestly inadequate, ought stand. It is therefore necessary to address the total effective sentence since it is only if it, too, is manifestly inadequate that the appeal ought be allowed, and even then, it ought only be allowed if this Court decides not to exercise the residual discretion.

1. The total effective sentence for the whole criminality is 12 years to date from 18 July 2011 with a NPP of 8 years to expire on 17 July 2019 and the total sentence to expire on 17 July 2023.

1. I reject Ms Davenport's submission that when the effective sentences imposed by Puckeridge A-DCJ and Haesler DCJ are considered together, it could not be said that a total head sentence of 12 years with a non-parole period of 8 years was outside the limits of the range for the offending conduct.

1. In my view, the total effective sentence is manifestly inadequate. The respondent's criminality involved the importation of opium and the supply and possession of opium, heroin and methylamphetamine. He was a sole trader, importer and wholesaler of these drugs. The quantities involved, their value and the concomitant cash generated by the business was substantial. The difficulty of detecting such offences and the great social consequences that follow from their commission, together with the quantities of drug involved, the respondent's role in their future distribution and the potential rewards to the respondent for his participation are factors that require a sentence to be imposed which is greater than the total effective sentence actually imposed by Puckeridge A-DCJ and Haesler DCJ.

1. In my view, but for the residual discretion, the exercise of which is considered below, it would be appropriate to re-sentence the respondent. As indicated above, I consider that the Puckeridge A-DCJ sentence ought be varied as follows:

Count	Offence	Varied sentence
1	Import marketable quantity (14,875.9 g) border controlled drug (opium)	Imprisonment for 7 years to date from 18/7/2011 and to expire on 17/7/2018
2	Possess marketable quantity (8,342.1 g) of border controlled drug (opium) reasonably suspected of having been unlawfully imported	Imprisonment for 7 years to date from 18/7/2014 and to expire on 17/7/2021

1. As indicated above, I consider that the Haesler sentence, in so far as it concerns the drug offences should be varied as follows:

No.	Offence	Varied sentence
2	Deemed supply of a large commercial quantity of methylamphetamine, being an amount not less than 1 kg: 2,270.8 g	Imprisonment for 9 years to date from 18/7/17 Non-parole period of 4 years.
Form 1	Deemed supply of a commercial quantity of heroin, being an amount not less than 250 g: 894.8 g

1. This would have the effect of increasing the total effective sentence for all offences from 12 years to 15 years. The effective total non-parole period after the Haesler DCJ sentence had been imposed was 8 years, or 2/3 of the total effective sentence. The Crown did not submit, as a separate ground, that the ratio between the total effective non-parole period and the total effective sentence was, of itself, erroneous. In these circumstances, I consider it to be appropriate to maintain the ratio arrived at by Haesler DCJ. Accordingly I consider that the total effective non-parole period ought be varied from 8 years to 10 years, in order to maintain the ratio between the total term and the non-parole period. As referred to above, this would be achieved by varying the non-parole period for the drug offence for which Haesler DCJ sentenced the respondent from three years to four years.

1. The first date on which the respondent would be eligible for release would be, if he were re-sentenced on this basis, 18 July 2021.

1. I note that the effect of the re-sentence is to leave undisturbed the sentence imposed by Haesler DCJ for the offences concerning dealing with proceeds of crime, which would then be entirely subsumed in the new sentence for the drug offences. This produces a result which does not impose any effective punishment on the respondent for these offences. However, in all the circumstances I consider it preferable to leave this part of the sentence undisturbed since there was no challenge to it and accordingly no need for this Court to lay down any guidance to sentencing judges in respect of it.

The residual discretion

1. The factors relevant to the exercise of the residual discretion in any given case include delay, parity, the totality principle, rehabilitation, fault on the part of the Crown and significant deterioration in the respondent's health or mental well-being in the period between the imposition of the sentence and the hearing of the appeal: DPP v Karazisis [2010] VSCA 350; 31 VR 634 at [104]-[115], cited with approval in Munda v Western Australia [2013] HCA 38 at [72], footnote 71 (French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ); see also Green v The Queen; Quinn v The Queen at [43] (French CJ, Crennan and Kiefel JJ).

1. Ms Davenport did not put forward any reason why the residual discretion ought be exercised in the respondent's favour. Nor does any reason emerge from the evidence.

1. There is no issue of delay. By email dated 15 October 2013 from the Crown to his solicitors, the respondent was given notice that the Crown was considering an appeal against the Puckeridge sentence, which had been passed a week before, on 8 October 2013. The respondent was notified that the Notice of Appeal had been filed on 7 November 2013. By email dated 31 January 2014, the respondent was notified that the Crown was considering an appeal against the Haesler sentence, which had been passed on 22 January 2014. The respondent was notified by email of the filing of a notice of appeal on 21 February 2014, the date of filing. Notification of two further grounds was given on 3 March 2014.

1. I am not persuaded that it is appropriate to exercise the residual discretion in the respondent's favour to dismiss the Crown appeal.

Proposed orders

1. The orders I propose are:

(1)   Allow the appeal.

(2)   Vary the sentence imposed by Puckeridge A-DCJ on 8 October 2013 by altering the commencement date in respect of count 2 from 18 July 2012 to 18 July 2014;

(3)   Vary the sentence imposed by Haesler DCJ on 22 January 2014 by:

(a)   increasing the sentence for the offence of supplying methylamphetamine from 7 years to 9 years; and

(b)   altering the commencement date for that sentence from 18 July 2016 to 18 July 2017 and increasing the non-parole period from 3 years to 4 years.

(4)   Note that the first date on which the respondent will be eligible for release is 18 July 2021.

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Decision last updated: 29 April 2014