R v Nakash

[2017] NSWCCA 196

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	R v Nakash [2017] NSWCCA 196
Hearing dates:	10 March 2017
Decision date:	18 August 2017
Before:	Simpson JA at [1] Button J at [26] N Adams J at [117]
Decision:	Crown appeal dismissed.
Catchwords:	CRIMINAL – appeal – sentence – trafficking a commercial quantity of cocaine – whether sentence manifestly inadequate – whether sentence imposed failed to reflect objective seriousness of offending despite compelling subjective features – difficulty in establishing manifest inadequacy in absence of comparative sentences – Crown appeal dismissed
Legislation Cited:	Crimes Act 1914 (Cth), s 16BA Crimes (Sentencing Procedure) Act 1999 (NSW), s 44 Criminal Code Act 1995 (Cth), Sch, ss 302.2(1), 400.3(1), 400.9(1A) Criminal Code Regulations 2002 (Cth), Sch 4 Drug Misuse and Trafficking Act 1985 (NSW), s 25
Cases Cited:	Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2 Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 Halac v R [2015] NSWCCA 121 Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 House v The King (1936) 55 CLR 499; [1936] HCA 40 Johnson v The Queen (2004) 78 ALJR 616; [2004] HCA 15 Le v R (Cth) [2010] NSWCCA 285 Lieu v The Queen [2016] VSCA 277 Ljuboja v The Queen (2011) 210 A Crim R 274; [2011] WASCA 143 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Medan v The Queen [2011] WASCA 142 Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17 Olivares v R [2016] NSWCCA 270 Power v The Queen (1974) 131 CLR 623; [1974] HCA 26 Sergi v Director of Public Prosecutions (Cth) [2005] VSCA 181 Shen v R [2009] NSWCCA 251 The Queen v Kilic (2016) 339 ALR 229; [2016] HCA 48 R v Ng; R v Siu [2009] VSCA 218 The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39 Wong v The Queen; Leung v The Queen (2001) 207 CLR 584; [2001] HCA 64
Category:	Principal judgment
Parties:	Regina (Applicant) David Nakash (Respondent)
Representation:	Counsel: L Crowley (Applicant) GD Wendler (Respondent)   Solicitors: Commonwealth Director of Public Prosecutions (Applicant) John D Weller & Associates (Respondent)
File Number(s):	2010/389509
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 29 July 2016 Before: Whitford DCJ File Number(s): 2010/389509

Judgment

1. SIMPSON JA: I have read in draft the judgment of Button J. The relevant facts and circumstances are comprehensively set out, and need not be repeated, except so far as is necessary to explain the concurring view to which I have come.

2. The sole ground of appeal upon which the Crown relied was that the sentence imposed on the respondent was manifestly inadequate.

3. Sentencing is quintessentially an exercise of discretion: Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [25]. It is a canon of common law that an appellate court will interfere with a discretionary decision only in the limited circumstances stated in House v The King (1936) 55 CLR 499; [1936] HCA 40 - that is, where the judge acts on a wrong principle, takes into account extraneous or irrelevant matters, fails to take into account any material consideration, or mistakes the facts. However, the High Court also recognised that, in some cases, specific error may not be apparent, but nevertheless the appellate court may conclude that the result is "unreasonable or plainly unjust", in which case the court may infer that there has been a failure properly to exercise the discretion conferred. In such cases, the exercise of discretion is reviewed on the basis that a substantial wrong has in fact occurred.

4. I restate these well-known principles because, in this case, the Crown was unable to identify any error of principle to be found in the sentencing remarks or in the stated approach of the sentencing judge. Rather, the Crown relied upon the last of the House categories of error - that a substantial wrong has occurred, from which it should be inferred that some otherwise undiscernible error had caused a failure properly to exercise the sentencing discretion.

5. At the heart of the Crown's submissions was the simple proposition that the sentence imposed was, in the language of House (adopted by Gleeson CJ and Hayne J in Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; and by the plurality in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25]), "unreasonable or plainly unjust".

6. The Crown submissions were somewhat paradoxical. On the one hand, it was submitted that:

“The sentence falls wholly outside the range of sentence [sic] that was reasonably available to the learned sentencing judge, upon an application of all relevant sentencing principles for offences of this nature, when regard is had to the objective seriousness of the offending and the subjective circumstances of the Respondent.”

7. The Crown did not fall into the error of attempting to specify what it asserted was "the range of sentence that was reasonably available". It would not have been permitted to do so: see Barbaro. The Crown, however, placed particular emphasis on the need for sentencing judges to strive for consistency in sentencing. Inherent in the emphasis placed by the Crown on the need for consistency was an unstated assertion (reflected also in the contention that the sentence was outside the available range) that the sentence imposed on the respondent was inconsistent with previously imposed sentences.

8. On the other hand, the Crown declined to rely on any previous sentencing decisions as comparable (or with which the sentence imposed on the respondent was inconsistent), because, it submitted:

"… the circumstances of this case are quite unique, involving on the one hand very serious organised crime concerning a commercial quantity of cocaine and on the other hand involving a range of compelling subjective features, such that there are no other cases against which it may be compared."

The quest for consistency

9. There is no doubt that consistency is an important goal in sentencing practice, both at first instance and on appeal: Wong v The Queen; Leung v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [6]-[7]; Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45; Barbaro v The Queen; Zirilli v The Queen. The consistency that is sought is not numerical equivalence but consistency in the application of principle: Hili at [48]; The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39.

10. No sentence is imposed, and no appeal determined, in a vacuum. Consistency is to be achieved by sentencing judges and appeal courts having regard to what has been done in other cases as illustrating (but not defining) the possible range of sentences available, although that is an exercise that requires caution: Wong at [59]; Hili at [53]; Pham at [29]. The principle of consistency requires that like cases be treated alike; different cases be treated differently: Wong at [6]; Pham at [28]. The effect of previous sentencing decisions should not be overstated. In Pham, French CJ, Keane and Nettle JJ said:

“29 … It is also settled that a 'sentence itself gives rise to no binding precedent’.”

11. Their Honours, however, also recognised that there may be compelling reasons not to have regard to earlier decisions. Such reasons might include:

“… where the objective circumstances of the crime or subjective circumstances of the offender are so distinguishable as to render the [previous decisions] irrelevant …” (at [29])

12. It may be taken that, in characterising the circumstances of the present case as "quite unique", the Crown relied on this exception to the general principle that judges must have regard to previous sentencing decisions. (Their Honours also recognised that a judge may depart from a previous sentencing decision if persuaded that the outcome of the previous case was itself manifestly excessive or inadequate. That exception is not here material. The Crown did not urge departure from any previous comparable decisions; its position was there were none.)

13. Generally speaking (except in relation to newly created offences, or, perhaps, where a variation has been made to the maximum penalty) a pool of previously decided cases is available as a yardstick against which to measure a proposed sentence, or as illustrative of approaches taken by other sentencing judges. In federal cases, the relevant pool to guide a sentencing or appellate court is constituted by decisions of all State and Territories of Australia. That is what the High Court decided in Pham.

14. A necessary concomitant of the fact that sentencing is a discretionary exercise is that it can never be said that there is only one correct sentence that can be imposed and that will meet the requirements of sentencing, and represent a just outcome, taking into account the objective gravity of the offence and the matters personal to the offender. Inevitably, in any sentencing exercise, there will be an upper limit beyond which a sentence would be "unreasonable or plainly unjust", and a lower limit, a sentence below which would fail to meet the demands of sentencing principles. Those limits are determined by the full panoply of relevant sentencing considerations, including, not only the objective gravity of the offence and the personal circumstances of the offender, but also more general considerations such as the need (the extent of which will vary from case to case) for the sentence to reflect an element of general deterrence.

15. In Barbaro, the High Court, while recognising the common terminology of "an available range of sentences" nevertheless frowned on its use (at [28]) as apt to mislead. In submitting that the sentence imposed on the respondent "falls wholly outside the range of sentence that was reasonably available" (while declining to identify any comparable cases) the Crown did no more than reiterate its fundamental argument, that the sentence was manifestly inadequate.

16. The Crown did not attempt to support its implied assertion of inconsistency by reference to previously decided cases. It did not present any "like cases", reference to which might have given some guidance on the question whether the sentence was out of step with sentencing practice. It did not do so, apparently, because it maintained that there were no "like cases".

17. I find this a difficult proposition to accept. It does appear to be the case that the offence of trafficking border controlled drugs created by s 302.1 of the Criminal Code (Cth) is one that is rarely prosecuted. But the trafficking offence is merely the federal counterpart of the offence of supplying prohibited drugs, an offence against s 25 of the Drug Misuse and Trafficking Act 1985 (NSW), and, regrettably, frequently prosecuted. That, indeed, may be the reason for the relatively few prosecutions of the Code offence. No doubt other States and Territories have similar provisions to those of NSW.

18. I see no reason why, in the absence of a pattern of sentencing for the federal offence, some guidance could not have been obtained from the many cases decided under the State legislation. Although, in Pham, the High Court rejected the proposition that a State court sentencing federal offenders should sentence in accordance with the sentencing practices of that State to the exclusion of sentencing practices in other Australian jurisdictions, there is nothing in the judgment of the plurality that prevents reference to sentences imposed in respect of comparable offences under State law. Particularly is that necessary where, as the Crown here asserted, there was no relevant pattern of sentencing in respect of the Code offence.

19. The Crown did present the Court with two decisions of the Western Australian Supreme Court: Medan v The Queen [2011] WASCA 142; Ljuboja v The Queen (2011) 210 A Crim R 274; [2011] WASCA 143, and one of the Victorian Court of Appeal: Lieu v The Queen [2016] VSCA 277. But these were presented as statements of sentencing principle, and, while uncontroversial insofar as they did state relevant principles, they gave no guidance as to the practical application of those stated principles to any given set of facts, nor as to past sentencing practices of the courts from which they were derived.

20. It seems that the principal reason that the Crown asserted that the present case was unique was the contrast between the very considerable level of objective gravity of the respondent's offending and his very "compelling" personal circumstances. That, in my experience, is hardly unique. It is a circumstance that undoubtedly adds to the complexity of the sentencing process.

21. The Court was left with only the three previous decisions discussed by Button J. These are inadequate to establish any sentencing pattern: see The Queen v Kilic (2016) 339 ALR 229; [2016] HCA 48 at [25]. What they do demonstrate is that three past instances of offending against s 302.1 of the Code have been met with sentences with starting points of 27 years, 17 years and 13 years.

22. That calls for analysis, not of the sentence ultimately imposed upon the respondent, but on the starting point of the sentence before appropriate deductions were made. The sentence imposed incorporated a reduction of one-third in recognition of the respondent's plea of guilty and assistance, an assessment to which no challenge was made. That would give a starting point of 12 years. But the sentence also took also into account 1 year and 8 days of pre-sentence custody. The starting point of the head sentence was thus 13 years; the starting point of the non-parole period was about 7 years and 9 months.

23. The Crown has failed to make good its submission that the sentence imposed falls outside a range of sentences shown by past practice to have been applicable to the respondent's offence. It has failed to demonstrate a lack of consistency.

24. There remains, however, the question whether, having regard to the objective seriousness of the offence tempered by the subjective circumstances, the sentence is indicative that "a substantial wrong" has occurred - that is, that the sentence was "unreasonable or plainly unjust".

25. Like Button J, I consider that, having regard to the scale of the offending, measured against the maximum sentence of life imprisonment, the starting point of 13 years appears to be lenient. The sentencing judge accepted, however, that the respondent's personal circumstances were very strong and deserved considerable mitigation of the sentence. In the circumstances, I share the view of Button J that the Crown has failed to establish that a substantial wrong has been done. I agree with the orders proposed by his Honour.

26. BUTTON J:

Introduction

27. This is a Crown appeal brought by the Commonwealth Director of Public Prosecutions (CDPP) against the sentence imposed by Judge Whitford SC upon David Nakash (the respondent) in the District Court at Sydney on 29 July 2016.

28. It was agreed by counsel for the respondent at the hearing before us that there was no need for this matter to continue to be anonymised, as it had been previously.

29. The respondent had pleaded guilty to a single count of trafficking a commercial quantity of cocaine. Pursuant to s 302.2(1) of the Schedule to the Criminal Code Act 1995 (Cth)(the Code), the maximum penalty for that offence is imprisonment for life, along with an extremely large fine. The commercial quantity of cocaine is 2 kilograms, pursuant to Schedule 4 of the Criminal Code Regulations 2002 (Cth).

30. Taken into account on sentence by way of s 16BA of the Crimes Act 1914 (Cth) was an offence against s 400.3(1) of the Code of dealing in money that was, and was believed by the respondent to have been, proceeds of crime, the value of which was $1,000,000 or more. That is a wholly indictable offence that carries a maximum penalty of imprisonment for 25 years, along with a very large fine. For convenience, I shall refer to it as “the secondary offence”.

31. In the event, his Honour imposed a head sentence of imprisonment for 8 years, with a non-parole period of 4 years and 6 months.

32. A co-offender, Joseph Litvin, was sentenced around the same time as the respondent; because neither party relied directly or indirectly upon the sentence imposed upon him, it need not be discussed further.

33. A single ground of appeal was notified and pressed; namely, that the sentence imposed by the learned sentencing judge was manifestly inadequate.

Objective features

34. At the hearing of the appeal, the CDPP made it clear that no finding of fact or evaluative judgment to be found in the remarks on sentence was impugned. Accordingly, I am content to derive the following from the remarks on sentence.

35. The respondent was an important part of a sophisticated, well organised and internationally established drug syndicate that was in the business of importing and trafficking very substantial quantities of cocaine. The count on the indictment is a reflection of the respondent’s ongoing involvement in that activity. As one would expect, the criminal enterprise generated enormous sums of money. The secondary offence is a reflection of his ongoing involvement in the ancillary process of “laundering” those sums.

36. The CDPP made clear on sentence that the single count on the indictment reflected eight separate criminal acts of the respondent, committed between January and July 2009. There was no dispute that, taken as a whole, the respondent personally trafficked approximately six kilograms of cocaine, each of which was valued at $160,000, with the simple mathematical result that he personally trafficked approximately $1 million worth of prohibited drugs over about 6 months.

37. Separately, with regard to the secondary offence, by way of a number of separate criminal acts between September 2008 and December 2009, the respondent dealt with approximately $1.5 million over about 15 months as an essential part of the syndicate reaping the benefit of its criminal activities.

38. As for a more refined analysis of the role of the respondent, his Honour assessed his position in the hierarchy of the syndicate as follows:

[7] The offender… was a central figure in the Australian operations of the group. He directed and oversaw the trafficking of cocaine. He was also responsible for the collection, distribution and transfer of proceeds of the sale of cocaine and, more generally, for other operational decisions of the group…

…

[12] The offender was a central authority figure and played an essential role in the Sydney/Byron Bay based activities of the group of individuals engaged in the illicit activities, which seemed to centre primarily around Amselem [the “managing director” of the syndicate].

…

[14] In terms of his involvement in the group’s activities, so far as is presently relevant, the offender directed and oversaw the trafficking of approximately 6 kilograms of cocaine. He was also responsible for the collection, distribution and transfer of almost $1.5m in proceeds of the sale of cocaine and, more generally, for other operational decisions in the conduct of those illicit enterprises…

[15] The nature and content of the associated telephone intercept material points to the offender having a significant role in an extremely serious criminal enterprise… The offender submitted, and I am prepared to accept, he could reasonably be described as an overseer within the activities of the broader group. He appears to have taken direction from others, notably Amselem, and to have directed others, including Litvin, in particular as to if, when and in what circumstances particular activities – both trafficking and money laundering – would occur. That role extended to fixing the prices for some particular transactions. The offender’s conduct in relation to the incidents of trafficking that found the present charge took place over a relatively short period between January and July 2009. The chronology of the money laundering transactions reflects a longer association among the identified members of the group, the transactions relevant to the scheduled offence having occurred between September 2008 and December 2009.

[16] The material before me points to the offender having been at least a step removed from personal connection to the risks associated with directly handling drugs, but to have been centrally participating with others in the profits gained from their handling in accordance with directives by him and others…

39. As for the objective seriousness of the count on the indictment, his Honour said the following:

[17] Aside from the quantity involved, which though limited is far from a trifling amount, being 3 times the threshold for a commercial quantity, the nature and extent of the organisation within which the offending occurred and the substantial role the offender played in relation to each of the trafficking transactions which found the plea, and his involvement in the money laundering transactions constituting the offence on the schedule, justify the conclusion that this is very serious offending.

40. As I have said, none of the above was impugned as erroneous by the Crown; separately, nor was there any contention about it by counsel for the respondent at the hearing of the appeal.

Subjective features

41. Turning to the respondent himself, he was aged between 43 and 44 years during the commission of the offences, and was aged 51 years when he stood for sentence. Born in Israel, he had suffered an upbringing that his Honour accepted was “horrific”, featuring as it did “significant abuse and violence, characterised as bordering on torture”. He developed an addiction to heroin in late adolescence, and was burdened by that for a number of years (I shall discuss the criminality that arose from that addiction later in this judgment). Two of his siblings died prematurely as a result of their own issues with mental illness and addiction.

42. In 1986 the offender was treated for a drug-induced psychosis, and there was evidence before the sentencing judge that any period of psychosis occasioned in that way causes a degree of brain damage. There was also evidence from the treating psychiatrist of the respondent that he suffers from a “serious cognitive impairment”, most likely caused by his years of abusing prohibited substances. Those propositions were accepted by his Honour, and not the subject of contention before us.

43. By the time he arrived in Australia in 1998, the respondent had freed himself from that dependence, and indeed was abstinent from alcohol and prohibited drugs from 1996 until 2007. He was able to build a happy life with his second wife, who was the successful proprietor of a chain of Japanese restaurants in southern Queensland and northern New South Wales.

44. His Honour accepted that things fell apart when, during a routine blood test, it was found that the respondent was suffering from hepatitis C. That called for him being treated with the drug Interferon in 2007, and there was expert evidence in the proceedings on sentence that a common side effect of that drug is severe depression. His Honour accepted that the treatment for hepatitis had had that effect upon the respondent, and that, in order to self-medicate, he returned to prohibited drugs, despite the fact that he had also sought help from a psychologist for the major depression that had developed. As a result of his return to addiction, his marriage collapsed, and, having returned to the drug milieu, he became the significant drug dealer described above.

45. Separately, his Honour noted that the proceedings had been very delayed, not only because of their complexity, but also to some degree because of interlocutory applications the respondent had made in resistance to his prosecution. The sentencing judge took the view that the delay counted neither for nor against the respondent; yet again, that evaluative judgement is not impugned by the CDPP.

46. A global discount of one third upon the putative starting point of the head sentence was applied by his Honour, in order to reflect the “facilitation of the course of justice inherent in the plea”, along with a degree of assistance provided by the respondent; nor is that discount impugned by either party, and therefore I shall not elaborate upon what founded it.

47. As for his criminal record, the respondent had committed a number of offences to do with house-breaking and the possession of prohibited drugs, as one might expect of a drug addict. A conviction in Israel in 1992 for “export, import, commerce, manufacturing of dangerous drugs” at first blush seems grave, but there was evidence from an Israeli lawyer placed before his Honour confirming that it was constituted by the supply of one gram of heroin by the drug-dependent respondent to another person.

48. Finally, his Honour found that the respondent had demonstrated some contrition for what he had done, “for which he should receive some favourable account”. His Honour also assessed the prospects of rehabilitation of the respondent as being “reasonable to good”.

Aspects of sentence

49. The mechanism whereby his Honour arrived at the sentence actually imposed, and in particular the non-parole period as an assessment of the minimum period that the respondent must spend in custody, is as follows.

50. First, his Honour adopted a starting point for the head sentence of 12 years, reflecting all of the objective and subjective features other than the plea of guilty and the assistance.

51. Secondly, as I have said, a discount of one third was applied to that figure, leading to a head sentence of imprisonment for 8 years.

52. Thirdly and finally, unfettered in sentencing for a Commonwealth offence by any analogue of s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW), and liberated by Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [37]-[38], from the disapproved rule of thumb that in Commonwealth matters the non-parole period should approximate two-thirds of the head sentence, his Honour imposed the non-parole period of four and a half years.

Submissions of the CDPP on appeal

53. The submissions of the CDPP before us were narrowly focused. As I have said, only a single ground was argued, asserting manifest inadequacy. Consequently, the emphasis of counsel was upon the result at first instance, and not upon the process leading up to that result.

54. It was not contended that his Honour had erred in any particular finding of fact, evaluative judgment, or application of legal principle derived from statute or case law. In particular, it was not submitted that the principles about taking into account the mental condition of an offender as a matter sounding in mitigation had been misstated or misunderstood by his Honour. Rather, it was simply said that, whatever the compelling subjective features, and focusing upon the objective criminality of the respondent, the sentence imposed was well outside the sentencing discretion reposed in his Honour.

55. Counsel for the CDPP took this Court to very few comparable cases of trafficking a commercial quantity of a controlled drug. Indeed, only two were referred to, and another brought to the attention of the parties by the Bench during the hearing. It was conceded by counsel for the CDPP that it would not be easy for us to make the affirmative judgment that the sentence imposed was manifestly inadequate without having been provided with a context of other sentences imposed for broadly similar examples of the same offence.

56. As for sentences for separate but related offences, the CDPP did not submit (either at first instance or before this Court) that the well-established range of sentences for importing commercial quantities of controlled drugs can be of assistance. And although sentences imposed in other matters for the lesser Commonwealth offence of trafficking a marketable quantity of a controlled drug were placed before the sentencing judge, they were not the subject of emphasis in the appeal. Finally, counsel for the CDPP did not submit that sentences imposed for the State offence of supplying a controlled drug in a significant quantity should inform our determination.

57. In short, the submission was that the sentence simply cannot be correct, bearing in mind that the primary offence carried a maximum penalty of life imprisonment, that the secondary offence was itself very serious, and that the respondent played a significant role in a business engaged in the importation of a prohibited drug, within which he personally trafficked over $1 million worth of drugs.

58. The ancillary submission of counsel was that the Crown had affirmatively established that the discretion not to intervene should not be exercised; in other words, if error were established, the sentence should indeed be quashed, and a significantly longer sentence imposed by this Court.

Submissions of the respondent

59. Counsel for the respondent did not rely on any comparative cases. He simply emphasised that the starting point adopted by his Honour was by no means insubstantial; that there were a number of compelling subjective features of the matter; that the steps that led from the starting point to the sentence ultimately imposed reveal no error; that merely because a sentence may be thought to be remarkably lenient does not mean that it is also manifestly inadequate; and, finally, that merely because a judge of this Court may feel sure that he or she would have imposed a substantially more severe sentence than a sentencing judge does not fulfil the necessary test for success of a Crown appeal either.

60. In short, it was said that the CDPP had not established the essential pre-conditions for the success of a Crown appeal.

Determination

Two preliminary matters

61. Turning to my determination, one may respectfully query the eschewal by the Crown of sentences imposed for comparable offences as having any role to play in the evaluation of the ground. But as a matter of procedural fairness to the respondent, I adopt the considered position of the Crown of not turning to such cases, nor to statistics with regard to them, nor indeed to statistics with regard to the offence under consideration. Instead, I shall confine myself to analysis of the three cases placed before us, along with reflection upon the objective and subjective features of the matter, in light of the maximum penalty of imprisonment for life and the weight of 2 kilograms, above which the offence of trafficking a commercial quantity of cocaine is made out.

62. In those circumstances, the approach adopted by me should not be read as a determination that sentences imposed for the other offences, referred to at [56] of this judgment, can never be relevant to the question of manifest inadequacy of a sentence imposed for an offence of trafficking a commercial quantity. My approach is founded upon the position adopted by the Crown in this particular matter.

63. Separately, I respectfully think that some of the findings of fact made by his Honour were very generous. For example, the finding of significant cognitive impairment hardly sits comfortably with the focused and intelligent businessman that the listening device product (tendered by the Crown on sentence) reveals the respondent to have been when it came to trafficking cocaine. As I have said, however, because of the approach taken by both parties on the appeal, my analysis proceeds on the assumption that all of the findings of fact and evaluative judgments of his Honour are indeed correct.

General approach to quantum

64. Turning more directly to the ground of appeal, one instinctively questions a mandatory minimum period of imprisonment of four and a half years imposed for an offence that carries a maximum penalty of life imprisonment.

65. One questions it further when reflecting on the fact that taken into account on sentence was an offence that itself would have carried a maximum penalty of imprisonment for 25 years if averred separately.

66. One questions it even more deeply when one reflects on the fact that the respondent occupied a responsible directorial position in a sophisticated criminal business that was (speaking generally) supplying very large amounts of a prohibited drug and generating vast sums of money; combined with the fact that he himself (speaking particularly) trafficked six kilograms of cocaine valued at $1 million, and laundered $1.5 million of drug money.

67. Even giving the compelling subjective features of this matter due weight, I respectfully think that the answer to those questions is that the sentence actually imposed is either manifestly inadequate or very close to it.

68. Separately, I do not consider that the process whereby a non-parole period of four and a half years was derived from a starting point head sentence of 12 years can be impugned. I say that because I accept the concessions of the CDPP that the quantum of the discount on the head sentence was open, and that the ratio between the non-parole period and the head sentence in Commonwealth matters is a question for the discretion of the sentencing judge, subject to the requirement that the mandatory minimum term of imprisonment adequately reflect the objective seriousness of the matter: Hili v The Queen; Jones v The Queen at [37]-[38]; and Power v The Queen (1974) 131 CLR 623; [1974] HCA 26.

69. In those circumstances, the questions for determination can therefore be refined as follows. First, can the starting point of imprisonment for 12 years, reflective of all objective and subjective features other than the facilitation of the administration of justice, be impugned as an error? Secondly, can it be affirmatively said that the non-parole period is also simply too short?

Analysis of sentence appeals to this Court regarding trafficking a commercial quantity

70. In my opinion, the sentences in other matters to which the CDPP referred play some role in answering those questions.

71. I turn to summarise and discuss the three cases upon which reliance was placed on the hearing of the appeal.

72. In Shen v R [2009] NSWCCA 251, the applicant had pleaded guilty to two offences: the Commonwealth offence of trafficking a commercial quantity of MDMA, and the State offence of knowingly taking part in the supply of a large commercial quantity of that prohibited drug. Each offence carried a maximum penalty of imprisonment for life.

73. The Commonwealth offence pertained to 230,000 tablets, with a gross weight of 61 kilograms, and a pure weight of 7.5 kilograms. The commercial quantity of MDMA pursuant to the Code was 500 grams, or half a kilogram.

74. The State offence was founded upon an agreement to supply 10,000 tablets. They had a gross weight of 2.26 kilograms, and a pure weight of 666 grams. The large commercial quantity of MDMA for the purposes of that offence was 500 grams.

75. At first instance, a head sentence of 11 years with a non-parole period of 7 years was imposed for the Commonwealth offence; for the State offence, a head sentence of 9 years and 9 months with a non-parole period of 7 years and 3 months was imposed. The sentence for the Commonwealth offence commenced two years after the State offence, with the result that the applicant received a total head sentence of imprisonment for 13 years with a total non-parole period of 9 years.

76. The offences occurred in the context of a sophisticated importation of prohibited drugs concealed within computer monitors. The criminal syndicate included a person with expertise in recycling computer equipment, and featured the incorporation of a company and the leasing of commercial premises in order to facilitate the importation.

77. The finding was made at first instance that the criminality of the applicant was generally constituted by him assisting an international syndicate involved in importing substantial quantities of prohibited drugs. The sentencing judge also found that the quantities of drugs with which the applicant personally dealt were themselves substantial; that the only motivation of the applicant was a desire to make money; and that his role should be assessed as that of a principal.

78. The applicant was an older man, aged 64 years, with no prior convictions. The sentencing judge accepted that the applicant regretted what he had done, whilst expressing some reticence about accepting that the applicant was remorseful. A 35% discount was applied to a notional starting point, in order to reflect the combined effect of the plea of guilty and assistance provided before sentence.

79. Clearly enough, then, the starting point of the head sentence of the Commonwealth offence of 11 years must have been almost seventeen years.

80. On appeal, two grounds were argued: erroneous disparity with a person who was, in a broad sense, a co-offender, and that the ratio between the total non-parole period and total head sentence was erroneously high. The first ground was upheld, and the second ground not decided, in light of the need for re-sentence in any event. Due to its irrelevance to the current enquiry, I shall not discuss the details of the ground that met with success.

81. On re-sentence, Fullerton J (with the agreement of Hodgson JA and Howie J) said the following at [35]:

The applicant submitted that this Court should approach the re-sentencing exercise by commencing to calculate the head sentence for the Commonwealth offence within the range of 15-17 years (the agreed range in the sentence proceedings) but less than the commencement point his Honour adopted of 17 years. After allowing 35 per cent for the applicant’s assistance and plea of guilty, the agreed range translates to a head sentence between 9 years and 9 months and 11 years. I am not satisfied that it is necessary to disturb the sentence imposed by the primary judge for a sentence in appropriate proportion to [the co-offender’s] sentence to result from the re-sentencing exercise. That can be achieved, in this case, by moderating the extent to which the two sentences are accumulated. The head sentence imposed by his Honour was not only within the agreed range but appropriately reflected both the seriousness of the applicant’s offending and the principle of general deterrence – a principle of fundamental importance when sentencing offenders who are involved in large scale drug trafficking. In addition, I am not persuaded that there is any need to re-sentence for the State offence, particularly having regard to fact that the non-parole period imposed by his Honour was half of the standard non-parole period of 15 years.

(emphasis added)

82. In the result, and despite the overall success of the appeal, the head sentence of 11 years imprisonment with a non-parole period of 7 years was maintained for the Commonwealth offence, but its commencement date backdated, with the result that the total head sentence and total non-parole period each became somewhat shorter.

83. Of course, one decision of this Court with regard to an offence does not tell one very much about the asserted inadequacy (or excessiveness) of a sentence imposed for the same offence. Nevertheless, in my view, the starting point of almost 17 years adopted in that case, and endorsed by the Court of Criminal Appeal on re-sentence, suggests that the starting point of 12 years under consideration here was towards the lower end of the range open to the discretion of the sentencing judge.

84. Turning to Le v R (Cth) [2010] NSWCCA 285, in that case the applicant pleaded guilty to three Commonwealth offences: conspiring to import a trafficable quantity of heroin; conspiring to traffic a commercial quantity of heroin and methylamphetamine; and conspiring to deal with money valued at $1 million or more that was intended to be an instrument of crime.

85. The maximum penalty for the first and third offences was imprisonment for 25 years. The maximum penalty for the conspiracy to traffic a commercial quantity of heroin and methylamphetamine was imprisonment for life.

86. For the first offence, a head sentence of imprisonment for 7 years was imposed at first instance. An identical head sentence was imposed for the third offence. For the second offence, a head sentence of imprisonment for 13 years and 6 months was imposed. The learned sentencing judge was content to make all offences wholly concurrent with each other, and imposed a single non-parole period of 9 years.

82. The agreed facts in that matter may be summarised as follows. For a little over a year, the applicant was “intimately involved” in a sophisticated and highly remunerative criminal syndicate involved in the business of importing and distributing prohibited drugs. The applicant fulfilled the role of “right hand man” to the principal. The agreed facts showed that the applicant was actively involved in nine individual incidents that were part of the business of the syndicate. To give but one example, the applicant arranged for the delivery of two blocks of heroin, each weighing 350 grams, and 1 kilogram of crystal methamphetamine (“ice”) to Melbourne. The price of each of the blocks of heroin was $150,000; the price of the ice was not in evidence. When the couriers who delivered the drugs claimed that the vast bulk of the heroin had been stolen from them, it was the applicant who not only was actively involved in arranging for the transport and supply of the drugs that were successfully delivered, but also for dealing with the consequences of the alleged theft.

83. To give some idea of the scale of the turnover of the criminal organisation, in less than a year, $4.7 million was transferred to the syndicate in return for prohibited drugs. The applicant, along with his principal, generally oversaw the arrangements with regard to that money.

84. Subjectively, the applicant had pleaded guilty to all offences. Of Vietnamese background and born in a refugee camp in Malaysia, he had grown up in Canada. He came to Australia as a young man, and was introduced to the principal of the organisation. Having developed a dependence upon methylamphetamine, he ended up (as I have said) fulfilling the role of “right hand man” to the principal, played a “senior and integral role” in the criminal organisation, and did so with enthusiasm and efficiency.

85. The sentencing judge accepted that the applicant had become trapped, to a degree, by way of gambling and other debts. His Honour also accepted that the applicant was genuinely remorseful.

86. As a result of the applicant providing valuable assistance to the authorities about the organisation, he was incarcerated in special protection.

87. In the remarks on sentence, his Honour spoke of the possibility of the imposition of a sentence of imprisonment for life, were it not for the significant subjective features.

88. Ultimately, a discount of 50% was applied to a notional starting point of a head sentence of imprisonment for 27 years. As I have said, that led to a head sentence of imprisonment for 13 years and 6 months for the trafficking offence, along with wholly concurrent head sentences of 7 years for the first and third offences. As discussed, a single non-parole period of 9 years was imposed.

89. On appeal, two grounds were relied upon: manifest excessiveness, and erroneous disparity. The former ground was rejected without difficulty by this Court. The latter succeeded, and led to a small downward adjustment, with the result that the head sentence became imprisonment for 12 years and 6 months, with a non-parole period of 8 years and 3 months. Again, there is no utility in discussing the reasons why the latter ground succeeded.

90. I repeat the note of caution that I have sounded about drawing much from a single judgment of this Court. Nevertheless, in my view, the starting point adopted in that matter, endorsed by the Court of Criminal Appeal by way of its rejection of the ground of manifest excessiveness, suggests that the starting point of the sentence under consideration is towards the bottom of the spectrum of sentences available to his Honour.

91. Finally, in the recent decision of Olivares v R [2016] NSWCCA 270, the applicant pleaded guilty to one count of trafficking a commercial quantity of methylamphetamine, and one count of dealing with money suspected of being the proceeds of crime to the value of $100,000 or less, contrary to s 400.9(1A) of the Code. The latter is an offence that carries a maximum penalty of imprisonment for 2 years. The commercial quantity of methylamphetamine was, at the time, 750 grams.

92. In a nutshell, the applicant flew from Mexico to Sydney at the request of a drug syndicate. He was sentenced on the basis that his admission that he was to be paid $10,000 for his services was true. On arrest, he was found to be in possession of 7.8 gross kilograms of the prohibited drug at 81% purity, with the result that he possessed 6.335 kilograms of pure methylamphetamine. He was also found to be in possession of $60,000 cash secreted in a ceiling. Sundry other indicia of drug trafficking were identified, including his possession of two mobile telephones in false names, the use of codes by the applicant in intercepted conversations, and his possession of marked bank notes able to be used to facilitate introductions to confederates.

93. The applicant was 48 years of age when he travelled to Australia. He was unknown criminally here. There was no suggestion of psychological or psychiatric problems. The learned sentencing judge accepted that the applicant was remorseful about what he had done. He had pleaded guilty the day after the matter was fixed for trial (the judgment of this Court does not record any discount that was accorded for that plea).

94. For the less serious money laundering offence, a fixed term of imprisonment for 12 months was imposed. For the trafficking offence, a head sentence of 15 years with a non-parole period of 9 years was imposed, that sentence to commence 6 months after the commencement of the shorter sentence. Accordingly, the applicant was sentenced to a total head sentence of 15 years and 6 months, with a total non-parole period of 9 years and 6 months.

95. On appeal, Mr Olivares contended that the sentence imposed was manifestly excessive. This Court noted that the objective seriousness of the offending was “of a high order”; that the quantity of the drug was substantial; that the applicant was sufficiently trusted by persons occupying higher levels in the criminal organisation to be left not only with the valuable prohibited drug, but also with $60,000 cash; and the fact that his part was a significant one.

96. Within the judgment in that matter, reference was made to a number of decisions of this Court and the Court of Appeal of the Supreme Court of Victoria. Amongst them was Shen v R and Le v R, each of which I have already discussed.

97. Also referred to was R v Ng; R v Siu [2009] VSCA 218 (800 pure grams of a methamphetamine analogue trafficked; plea of guilty; lesser but not insignificant role played in return for $5000; head sentence of imprisonment for 6 years with a non-parole period of 4 years).

98. Reference was also made to Sergi v Director of Public Prosecutions (Cth) [2005] VSCA 181 (trafficking of at least 4.2 kilograms of pure MDMA; over $260,000 generated; early plea of guilty but no discount specified in the judgment of this Court; head sentence of imprisonment for 9 years with a non-parole period of 7 years undisturbed on appeal).

99. Finally, in Olivares v R this Court considered Halac v R [2015] NSWCCA 121 (trafficking two kinds of amphetamines with a pure weight of over 40 kilograms; the applicant a principal; prior convictions for similar offences; a similar offence taken into account; 25% reduction for plea of guilty; head sentence of imprisonment for 18 years with a non-parole period of 11 years and 6 months imposed; starting point therefore of a head sentence of 24 years; both head sentence and non-parole period undisturbed on appeal).

100. In the event, in Olivares v R, the head sentence imposed at first instance was assessed by this Court as being “undoubtedly at the high end of the range which a sentencing judge might consider appropriate”, but nevertheless assessed as being within that range.

101. Yet again, one cannot draw much from a single decision. Still and all, I think that recent decision of this Court suggests that the sentence under consideration is a lenient one.

102. What, if anything, can one glean from those three decisions of this Court, taken as a whole? Just as a single decision of this Court does not establish a range, nor does the combined effect of three decisions go very far towards doing so. I consider that the most that can be said is that the three decisions that were placed before us suggest that the sentence imposed is very lenient; I have already accepted that proposition in any event. But although they may also suggest that the sentence could be manifestly inadequate, to my mind they do not compel that affirmative conclusion.

Decision

108. With what is the Court left? On the one hand: the imposition of a short head sentence and a remarkably short non-parole period, when one considers the maximum penalty of the primary offence. A related but separate secondary offence with its own very high maximum penalty. Unquestionably grave objective criminality. Decisions of this Court that suggest that the sentence imposed is a lenient one.

109. On the other hand: a detailed and considered judgment, no aspect of which is impugned except the sentence with which it culminated. Compelling subjective features. A secondary offence that, due to the position adopted by the CDPP at first instance, did not call for imposition of its own sentence. A role that was very significant, but not at the pinnacle of the syndicate. An amount of drugs and money that was very large, but not as enormous as some that one sees. Decisions of this Court that, in my opinion, do not of themselves compel the conclusion that the sentence imposed was manifestly inadequate. Finally, the principle, spoken of by the High Court of Australia both in Johnson v The Queen (2004) 78 ALJR 616; [2004] HCA 15 at [26], and, more recently, in Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17 at [37], that sentencing judges should be accorded the maximum flexibility so long as their sentences accord with principle.

110. Seeking to weigh up all of those countervailing factors, I have come to the view that the sentence imposed, and in particular its non-parole period, is very much towards the lower end of the spectrum.

111. Separately, whether I would have imposed a significantly longer sentence upon the respondent is not to the point.

112. Rather, the very high test on a Crown appeal is simply whether one is affirmatively satisfied that the sentence actually imposed at first instance is inadequate, and that that attribute is “plainly apparent”: see the judgment of Gleeson CJ and Hayne J in Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6].

113. On reflection, and bearing particularly in mind the compelling subjective features established before his Honour, I am not affirmatively satisfied by the CDPP that the sentence imposed is unreasonable or plainly unjust. As an example of a sentence that gave full weight to those subjective factors, and that in particular reflected a humane and merciful approach to the upbringing of the respondent that led to his involvement in prohibited drugs in the first place, and the highly unfortunate circumstances that led to his return to them, I think that the sentence ultimately imposed was open to the discretion of the sentencing judge. I say that even despite the remarkable shortness of the non-parole period, when one considers the maximum penalty.

114. As I have sought to emphasise, that view of mine is very much limited to a number of particular aspects of this case, not least the very favourable findings made by his Honour, and the way in which the Crown presented the appeal.

115. It follows from my lack of affirmative satisfaction that the sentence imposed is manifestly inadequate that I consider that the Crown appeal should be dismissed. There is accordingly no need for me to consider the discretion whether to intervene.

Proposed order

116. I propose the following order:

1. Crown appeal dismissed.

117. N ADAMS J: I have had the advantage of reading both the judgments of Button J and Simpson JA in draft. I respectfully agree that this Crown appeal should be dismissed for the reasons provided by Button J and the additional reasons provided by Simpson JA.  The sentence imposed is very lenient but the Crown has failed to persuade me that a substantial wrong has been done.

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Decision last updated: 18 August 2017