R v Thomson

[2016] NSWCCA 56

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	R v Thomson [2016] NSWCCA 56
Hearing dates:	24 March 2016
Date of orders:	18 April 2016
Decision date:	18 April 2016
Before:	Hoeben CJ at CL at [1] Harrison J at [77] Davies J at [78]
Decision:	(1)   The Crown appeal is allowed. (2)   The sentences imposed by his Honour on 28 September 2015 are quashed. (3)   In lieu thereof, the respondent is sentenced as follows: (i)   In respect of the State offences, including the matter on the Form 1, the respondent is sentenced to an aggregate sentence of imprisonment with a non-parole period of 6 years commencing 19 January 2012 and expiring 18 January 2018 with a balance of term of 3 years expiring 18 January 2021. (ii)   In respect of the Commonwealth offence, the respondent is sentenced to imprisonment with a non-parole period of 7½ years commencing 19 January 2015 and expiring 18 July 2022 with a balance of term of 6½ years expiring 18 January 2029.
Catchwords:	CRIMINAL LAW – Crown appeal against sentence – conspiracy to import substantive quantity of drugs including 3.96kgs pure cocaine and 2.25kgs pure MDMA and supply large commercial quantity 1.97kgs methylamphetamine – conspiracy to import and large commercial supply separate and discrete offences – sentence for large commercial supply fully concurrent with sentence for conspiracy to import – objective seriousness of each offence high – modest subjective case – need to ensure public confidence in the administration of criminal justice – error in sentences not being partially cumulative – need to re-sentence.
Legislation Cited:	Crimes Act 1914 (Cth) – s 16A Crimes (Sentencing Procedure) Act 1999 (NSW) – s 32 Criminal Appeal Act 1912 (NSW) – s 5D Criminal Code Act 1995 (Cth) – ss 11.1(5) and 307.1(1) Drug Misuse and Trafficking Act 1985 (NSW) – ss 25(1), 25(2) Weapons Prohibition Act 1998 (NSW) – s 7(1)
Cases Cited:	CMB v Attorney General for New South Wales [2015] HCA 9 Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 Everett v The Queen [1994] HCA 49; 181 CLR 295 Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 Griffiths v The Queen [1977] HCA 44; 137 CLR 293 Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 House v R [1936] HCA 40; 55 CLR 499 Kentwell v The Queen [2014] HCA 37; 252 CLR 601 Makarian v The Queen [2005] HCA 25; 228 CLR 357 Pannowitz v R [2016] NSWCCA 13 R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66 R v Thomson (District Court (NSW), Williams SC DCJ, 28 September 2015, unrep) Regina v Cahyadi [2007] NSWCCA 1 Regina v XX [2009] NSWCCA 115 SZ v Regina [2007] NSWCCA 19; 168 A Crim R 249
Category:	Principal judgment
Parties:	Regina – Appellant Crown Reese Daniel Thomson - Respondent
Representation:	Counsel: Mr Bourke SC – Appellant Crown Mr G Scragg - Respondent   Solicitors: Commonwealth Director of Public Prosecutions – Appellant Crown JPM Legal - Respondent
File Number(s):	2012/3529422014/78591
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 28 September 2015 Before: ML Williams SC DCJ File Number(s): 2012/352942 2014/78591

Judgment

1. HOEBEN CJ at CL:

Offences and sentence

On 28 September 2015 Williams SC DCJ sentenced the respondent for a Commonwealth offence and State offences. The offences were charged by way of two separate indictments as follows:

First Indictment

1. Conspiracy (between 18 August 2011 and 20 January 2012) to import a border-controlled drug (commercial quantity – 3.96kgs pure cocaine; 1.3kgs pure methamphetamine; 2.25kgs pure MDMA; 3.79kgs pure PMMA). This was an offence contrary to ss 11.1(5) and 307.1(1) of the Criminal Code Act 1995 (Cth) for which the maximum penalty was life imprisonment.

2. Possess (on 19 January 2012) a prohibited weapon (taser) – with a further offence (supply prohibited drug on 19 January 2012) taken into account on a Form 1 under s 32 Crimes (Sentencing Procedure) Act 1999 (NSW). These were offences contrary to s 7(1) Weapons Prohibition Act 1998 (NSW) and s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW). The maximum penalty for the weapons offence was imprisonment for 14 years with a standard non-parole period of 3 years.

Second Indictment

Supply (between 27 September 2011 and 5 October 2011) a prohibited drug (large commercial quantity – 1.97kgs methylamphetamine). This was an offence contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) for which the maximum penalty was life imprisonment with a standard non-parole period of 15 years.

2. The respondent was sentenced in respect of the offences on these two indictments as follows:

1. Conspiracy to import a border-controlled drug – imprisonment with a non-parole period of 7½ years commencing 19 January 2012 and expiring 18 July 2019 with a balance of term of 6½ years expiring 18 January 2026.

2. Possess a prohibited weapon (with Form 1 supply offence) and large commercial supply of methylamphetamine – an aggregate sentence of imprisonment with a non-parole period of 6 years commencing 19 January 2013 and expiring 18 January 2019 with a balance of term of 3 years expiring 18 January 2022. The indicative sentences were imprisonment for 8 years in respect of the supply offence and imprisonment for 2 years and 6 months in respect of the possess prohibited weapon offence.

3. The effect of those sentences is that the sentence of imprisonment in respect of the State offences was wholly concurrent with that imposed in respect of the Commonwealth offence.

4. The Crown has appealed against those sentences on the following grounds:

Ground 1 – His Honour erred in ordering that the sentences for State offences for which the offender was being sentenced, be served wholly concurrently with the Commonwealth sentence.

Ground 2 – The sentence was manifestly inadequate.

Particulars:

(a)   His Honour failed to have due regard to the nature and seriousness of the offending;

(b)   His Honour failed to have due regard to general and specific deterrence;

(c)   His Honour failed to have due regard to totality in sentencing; and

(d)   His Honour erred in giving undue weight to the offender’s subjective circumstances.

Ground 3 – His Honour erred in failing to indicate non-parole periods for the State offences in accordance with s 54B(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Factual background

Conspiracy to import commercial quantity of drugs and possession of taser.

5. The conspiracy involved a plan to import packages containing drugs. The drugs were to be smuggled inside a metal “after market” supporting frame of an industrial oven, but authorities in Canada detected the drugs and removed them before the oven was shipped from Canada. The oven arrived in Sydney on 7 January 2012, and was seized by Australian Federal Police.

6. The respondent had been in Canada between about 19 August and about 25 September 2011. After his return to Australia on 27 September 2011, he made calls to several telephone numbers in Canada.

7. On 3 January 2012 (shortly before the oven arrived by air freight in Sydney), a man named Robert Weller (Weller) (an associate of the respondent) leased a storage unit at Storage City, West Gosford, using the name of another associate, Richard Jansson. The respondent and Weller were in contact (both by phone and in person) with each other around this time, and remained in contact until their arrest on 19 January 2012.

8. After seizing the oven, police prepared 14 substitute packages (to match the packages of drugs seized in Canada) and put them into the frame of the oven, so as to resemble its original condition prior to detection. The oven and frame were placed onto the original timber pallet, and secured with three packing straps, which had been present on the shipment before its interception by police in Canada. After re-constructing the shipment, police released it to a freight forwarding company (Specific Freight) so that it could be delivered to the address on the Airway bill (Mr George Tourvas, at "Prospero's" Restaurant, The Entrance, Central Coast, NSW).

9. On 9 January 2012 Weller made arrangements with a furniture removalist to move the oven from Prospero's Restaurant to the storage unit at West Gosford. On 10 January, the respondent met with Weller and then with George Tourvas (Tourvas) (the Consignee named on the Airway bill), at Prospero's Restaurant. At about 2.35pm (during the meeting with the respondent), Tourvas spoke by telephone with someone at Specific Freight and gave them an email address ([email protected]) to which invoices and Customs documents relating to the oven could be sent. At 2.36pm that day, Specific Freight sent an email to that address, which attached invoices for freight and other charges ($2,606.99) relating to the shipment. Shortly after that email was sent, the respondent left the restaurant and went to the public library at The Entrance, where he used a library computer to view the Specific Freight email and print the attached documents. Shortly after this, Weller deposited $2,607 into the bank account nominated by Specific Freight. Weller met up with the respondent about an hour later.

10. On that same day (10 January 2012) a Controlled Operation Authority was issued to facilitate the controlled delivery of the consignment. The next day, 11 January 2012, Weller attended Active Hire at West Gosford and also spoke by telephone to the respondent about a "place with forklifts". Weller and the respondent agreed to meet later that morning.

11. During the afternoon, Weller attended Hornsby Police Station and told police that he was involved in the importation of drugs in an industrial oven. Police advised Weller that, in order to facilitate his co-operation, they would need to apply for a Controlled Operation Authority, which would take some days, and that until then, he would be criminally liable for his actions in relation to the shipment.

12. On 12 January 2012 a forklift (which had been arranged by Weller) was delivered at the back of Prospero's Restaurant. Weller took delivery of the forklift just after 9am and was in contact (by telephone and two-way radio) with the respondent both before and after delivery. The respondent was seen at this time to be driving close to the restaurant and at times stopped in locations which provided a view of the back of the restaurant. At about 11.15am, Weller took delivery of the oven at the restaurant, and then unpacked it, removing the three packing straps. The respondent was seen by police travelling past the rear of the restaurant at about this time. At about 11.56am the removalists (arranged by Weller) arrived at the back of Prospero's Restaurant and were spoken to by Weller. Soon after, the respondent was seen in a car at the back of the restaurant, where he was spoken to by Weller. The oven was then loaded on to a truck by the removalists and taken to the storage unit at West Gosford.

13. Shortly after this, the respondent spoke by telephone with Weller. During the conversation, the respondent asked Weller (a number of times) to confirm that there were three straps still attached to the oven when it was delivered. Weller confirmed that the three straps were still in place. The next day (13 January 2012) the respondent met with Weller, after which Weller attended the storage unit, where he placed a padlock on the roller door of the unit where the oven was located. On 14 January 2012 the respondent was seen in a car being driven past the storage unit building. The respondent and Weller also met on 16 and 18 January 2012.

14. On 19 January 2012, Weller spoke with the respondent, who said that he had "the keys" and they arranged to meet at West Gosford in half an hour. Shortly after this call, Weller hired equipment, including an angle grinder and a crow bar, and met briefly with the respondent. Weller then went to the storage unit, where he removed the oven from its supporting frame and used tools to cut into the frame. At around this time the respondent had a telephone conversation with Weller in which reference was made to "a cooker". The respondent was seen to drive past the storage unit on two occasions. Weller cut the frame into sections, some of which he placed into a car. He then placed the oven back into the unit, and called the respondent, who agreed to meet him at The Entrance in about an hour.

15. Weller was arrested shortly after this telephone call. In his car, police found two sections which had been cut from the frame, one of which contained a substituted package of "drugs". Weller was also in possession of some diagrams and some typed and handwritten instructions on how to cut the frame in order to get access to the drugs. The respondent's handwriting, and fingerprints were found on the page of instructions.

16. Police entered the respondent's home and arrested him and another man (Dong). A search of the respondent's premises and car located a number of items, including the following:

A notebook which, after forensic examination, revealed the respondent's handwriting (as well as his fingerprints and those of Weller) which referred to "drugs", and a "6 burner stove for Prospero's".

A shipping invoice (relating to the oven).

A USB device which contained copies of the Master Airway Bill and other documents referring to the shipment and storage of the oven.

An orange cardboard folder from Storage City, which contained various documents (with fingerprints of the respondent and Weller on many of them) relating to the shipment as well as notes from the notebook referred to above.

17. The taser was found by police under a cushion in the lounge room of the respondent’s home. A box containing 10 taser cartridges with “darts” was also found by police.

Form 1 offence

18. Police searching the respondent’s home found a number of plastic resealable bags of cocaine. Three bags (57.3gms, 90.8gms, 1gm) were found inside a safe. A fourth bag (0.2gms) was found on a bedside table. The total quantity of cocaine seized was 149.3gms gross weight 95.4gms pure weight. Police also found a packet of bicarbonate of soda on the bedside table and two sets of digital scales, one of which contained traces of cocaine.

Large commercial supply of methylamphetamine

19. This offence was detected in the course of an investigation of an Asian crime syndicate. The investigation was conducted by various police agencies and Customs. It occurred between July 2011 and March 2012. In the course of that investigation police conducted surveillance of two Asian males – Truong and Van.

20. On 3 October 2011 Truong and Van flew from Melbourne to Sydney. Truong was in possession of a black roller suitcase. After arriving in Sydney, the two men travelled to Gosford, during which time they remained in contact by telephone with other suspected members of the crime syndicate. After arriving in Gosford, Truong and Van met with the respondent at a hotel. During the meeting, the respondent gave the men a box (in wrapping paper) which contained 2kgs of "ice" (high grade methylamphetamine). Telephone conversations being monitored by police (involving other members of the suspected syndicate) suggested that an amount of $20,000 had been paid by the men as (at least a part) payment for the 2kgs of ice.

21. After receiving the drugs from the respondent, Truong and Van left Gosford and returned to Sydney where a ticket was purchased for Truong to travel to Melbourne by bus. On 4 October 2011 Truong boarded the bus in Sydney and placed the black roller bag into the cargo hold. On his arrival in Melbourne the next morning (5 October 2011), Truong was arrested and the black bag seized.

22. Inside the bag, police found a package, contained within wrapping paper in which there were four resealable plastic bags, each containing about 500gms of "ice". The total gross weight of ice (with a purity between 90-100%) was 1971.4gms. The estimated value of the drugs was between $260,000 ("wholesale") and $3,000,000 ("street" value).

23. The respondent's fingerprints were detected on the inside of the package wrapping and on the resealable plastic bags of ice. The respondent was formally "arrested" on 14 March 2014 in relation to this supply offence while he was in custody at the Silverwater Correctional Centre for the conspiracy to import offence.

24. Two indictments came into existence due to the following circumstances. The respondent was arrested on 19 January 2012 and charged with the conspiracy to import offence and the supply prohibited drug offence (which was later put onto a Form 1). On 7 September 2012 he was charged with the prohibited weapon offence. The respondent was subsequently committed for trial and a trial date (with two co-accused – Dong and Tourvas) set for 21 October 2013 in relation to the conspiracy to import charge. On the first day set for trial, the respondent indicated an intention to plead guilty to the conspiracy and the prohibited weapon offences and to acknowledge guilt in relation to the supply offence.

25. On the next day (22 October 2013) the respondent entered pleas of guilty to the two offences on the “first indictment” and signed the Form 1. However, at that time, the respondent had been informed that he would also be charged with a further offence of supply (large commercial quantity of methylamphetamine) and on 14 March 2014 (when the respondent was in custody) he was charged with that offence. He subsequently entered a plea of guilty to that offence in the Local Court and was committed for sentence. This offence became the subject of the second indictment.

Proceedings in District Court

26. The respondent did not give evidence. Evidence was given by AVL from Canada by the respondent's mother.

27. The Agreed Facts set out the value of the drugs which comprised the conspiracy to import offence as follows. The six blocks of cocaine had a purity of 65 - 70% with a wholesale value of $1,180,000 and a street value of between $2.83 million and $3.16 million. The two packages of methamphetamine had a purity of between 66 - 76% with a wholesale value of $413,600 and a street value of about $1.32 million. The six blocks of MDMA had a purity of between 16 - 20%. This and the MDMA were likely to have been converted to tablets and sold as Ecstasy and would have produced between 50,000 - 120,000 tables with a wholesale value of between $386,000 and $1.57 million and a street value of between $967,000 and $4.232 million.

28. His Honour noted that the evidence before him included a pre-sentence report, references from the respondent’s mother and a family friend and a handwritten letter from the respondent. His Honour found that although the history in the pre-sentence report was not verified, or adopted on oath by the respondent, his Honour was satisfied that the history was reasonably accurate. This was because of the evidence given by his “mother and the other circumstances in the case”.

29. His Honour summarised the respondent’s subjective case as follows. He was a single male, born in Cairns but he grew up mainly in Victoria in British Columbia. His parents had divorced and his mother had left Australia with the two children to escape a violent, alcoholic and mentally ill husband. The respondent had lived in Canada for about 17 years and then returned to Australia when he was about 19 or 20 at which time he made an unsuccessful attempt to establish a meaningful contact with his father.

30. The respondent had been in a relationship, which produced a son, when he was aged 25. The respondent left school after Year 11 having been expelled for smoking cannabis and for truancy. He had worked in manual tasks, including work as a groundsman and handyman, and then in various roles in the hospitality industry as a kitchen hand or chef when he came to Australia. He had stopped working due to his drug use. His drug use included using alcohol at age 5 and being hospitalised for alcohol poisoning at age 11. He started using cannabis at the age of nine and by 12 years was a heavy user. At the age of 13 he went on to LSD, mushrooms and then crack cocaine at the age of 16. He was addicted by the time he was 19. He attended a rehabilitation facility in Canada but was asked to leave after a few days.

26. His Honour accepted that the respondent had made efforts to address his addictions and that he had completed twelve sessions of an addictive behaviour program while in custody. His Honour noted that the respondent had started using ice at the age of 18 and at the age of 26 started using heroin. The respondent said that he was never a particularly heavy user of ice, but was using any drug that became available by the time of his arrest. His Honour accepted that the respondent had been clear of drugs while in custody. The only part of the respondent’s history recorded in the pre-sentence report which his Honour declined to accept, was his assertion that his offending behaviour was intended to fund his own drug habit and to make a small profit in order to pay off his debts to dealers. His Honour found:

“In view of the relatively sophisticated operation and the amount of drugs ultimately detected, I am unable to accept that history, particularly where it was not verified and subject to challenge.” (Sentence judgment, 9.2)

32. His Honour noted that according to the Community Corrections Officer, the respondent had accepted full responsibility for his offending behaviour. His Honour considered that the respondent’s letter to the court indicated that he had a sincere regret for his actions and had a genuine desire to study and engage usefully with society and his family when he was released from his period of imprisonment.

33. By reference to the evidence of the respondent’s mother, his Honour accepted that both the respondent and his sister had suffered traumatically at the hands of their father because of his bi-polar episodes of alcoholism. She described the respondent’s father as a scary and violent person. She said that the children battled depression and that the respondent became angry and went through behaviour modification programs for significant periods during his adolescence and was prescribed anti-depressant medication during those periods. His Honour took into account the evidence of the mother that it had been suggested by a doctor that the respondent “had a heavy genetic load to carry given that his father’s family was beset with addiction problems and his maternal grandmother was a paranoid schizophrenic”.

34. His Honour noted that the respondent had no close family members living in Australia and that he would not have any family support when he was released from prison.

35. His Honour took into account the report of a psychologist, Mr Bradley. He diagnosed a major depressive disorder with anxious distress of moderate severity. He also diagnosed a severe opiate use disorder, a severe amphetamine use disorder and a severe cocaine use disorder, all of which were in full remission while he was in custody. Mr Bradley took a history that at the time of the offending, the respondent’s drug consumption was high including an eight-ball of heroin weekly and substantial consumption of ice and cocaine. Mr Bradley regarded the respondent as being at moderate risk of committing further offences upon his release.

36. In relation to character, his Honour said:

“Mr Thomson comes before the Court as essentially a man of good character, having only minor matters on his record of low range PCA and an offensive language matter in 2007, although, as has been noted in the authorities, prior good character is not of particularly significant weight in serious drug matters.” (Sentence judgment, 10.7)

37. By reference to s 16A of the Crimes Act 1914 (Cth) his Honour said that he had taken into account the nature and circumstances of the offence, the degree to which the respondent had shown contrition and the deterrent effect that any sentence might have. His Honour said that he had also had regard to the need to ensure that the respondent was adequately punished, the prospects of his rehabilitation and the probable effect that any sentence would have on the respondent’s family or dependants. His Honour had regard to the subjective aspects of the respondent.

38. In relation to the role played by the respondent, his Honour accepted that the respondent:

“… while not being the principal, was a principal in the conspiracy to import border controlled drugs in that he carried out the following tasks at least: He communicated with the drug exporting syndicate based in Canada including providing the delivery name and address, being his employer, he arranged for his employer to contact the freight forwarder, he oversaw Mr Weller’s actions, including taking delivery of the consignment, organising its transport to the storage facility and directing attempts to extract the drugs for delivery to him, he provided instructions to Weller on how to cut the frame and extract the drugs, and he undertook some surveillance.” (Sentence judgment, 11.3)

39. His Honour found that in relation to the large commercial supply offence that the respondent was also a principal and that he was substantially involved in the trafficking of significant quantities of drugs with significant wholesale and street values.

40. His Honour found that it was not established by the evidence that the respondent had knowledge of the precise quantities of drugs being imported, although he would have known that a “reasonable amount of border-controlled drugs” were being imported. His Honour accepted that the respondent was involved in the offending for profit, although he was not able to assess the amount of money which the respondent was to receive. The only indication was that the respondent received $20,000 for the supply of the methamphetamine in the second indictment. His Honour concluded:

“On any view of objective seriousness, the conspiracy was a sophisticated and well planned operation in which the offender played a substantial role.” (Sentence judgment, 12.9)

41. His Honour noted that he had to take into account general deterrence so that the sentence was of such severity that it would deter others from engaging in illicit drug activities of this kind and would signal to potential drug traffickers that any financial rewards would be neutralised by the risk of severe punishment.

42. In relation to sentence discounts, his Honour accepted that in relation to the large commercial supply on the second indictment, there should be a discount of 25% on sentence and in relation to the other matters there should be a discount of 10%. In the case of the State offences, this would recognise the utilitarian value of the pleas of guilty and in the case of the Commonwealth matter, it would recognise the willingness of the respondent to assist in the administration of justice.

43. His Honour said the following on the question of accumulation:

“The Crown submits that a degree of accumulation is warranted in relation to the Commonwealth and State offences because they are factually different and do not form part of the one course of criminal conduct, so that the sentence for the Commonwealth offence could not comprehend and reflect the criminality for the State offences.

Mr Lange conceded that that is an appropriate submission and that there would be a degree of accumulation in the two sentences, and I have taken into account and I am satisfied that the sentences that I impose adequately reflect the degree of criminality involved in both offences.” (Sentence judgment, 14.5)

44. His Honour made a finding of special circumstances as follows:

“I accept Mr Lange’s submission that it is appropriate to make a finding of special circumstances in relation to the State offence and to otherwise reduce the generally accepted ratio of non parole period to head sentence in the Commonwealth offence by virtue of factors such that it will be his first time in custody, and he has reasonable prospects of rehabilitation.” (Sentence judgment, 15.8)

45. His Honour noted that he needed to take into account the offence on the Form 1 so that in relation to the possess taser offence, he should have regard to the need for personal deterrence and the community’s entitlement to exact retribution for the serious offences.

Ground 1 – The imposition of sentences that were effectively wholly concurrent.

46. By reference to the two principal offences – conspiracy to import and supply large commercial quantity of methylamphetamine – the Crown submitted that each offence was discrete and involved unrelated offending. Each offence was factually different and did not form one course of conduct. Therefore it was wrong in principle for the Commonwealth offence to comprehend and reflect the criminality for the large commercial supply offence, despite the discretionary nature of such an assessment. The Crown noted that both counsel had accepted that some level of accumulation would be appropriate and that his Honour did not indicate either in argument or in his reasons why some level of accumulation was not appropriate.

47. The Crown submitted that because the sentence for the State offences was wholly subsumed within the sentence for the Commonwealth offence, the respondent’s conduct in committing the State offences had effectively gone unpunished. While accepting that a sentencing judge had a wide discretion and should be allowed as much flexibility in sentencing as is consonant with consistency of approach and principle, the Crown submitted that some accumulation was necessary in circumstances where the principal offences were extremely serious and where both counsel had agreed on that issue. The Crown submitted that no explanation was given by his Honour for the failure to order any effective level of accumulation. The Crown submitted that to say that the concurrent sentences “adequately reflect the criminality involved in both offences” did not provide such an explanation.

48. The Crown submitted that on this issue the sentencing exercise miscarried because in setting the sentences, his Honour failed to order some degree of accumulation and that the sentencing discretion further miscarried by the failure of the sentencing judge to expose his reasoning for the lack of accumulation in the sentences.

49. The respondent submitted that the starting point for the Commonwealth offence was about 15 years and 5 months before the 10% discount for the plea of guilty. He submitted that this starting point adequately reflected the total criminality of the Commonwealth offence.

50. The respondent submitted that using that as a starting point, his Honour’s mode of reasoning was clear. He had, as he was entitled to, assessed the sentences for the Commonwealth offence and for the State offences. He had taken into account the parties’ submissions as to accumulation and had found special circumstances. Having done so, he had then looked at the question of totality and had decided that no accumulation beyond the sentence imposed for the Commonwealth offence was necessary. The respondent submitted this was a classic example of the exercise by his Honour of the sentencing discretion. The only way in which it could be successfully challenged was if a House v R [1936] HCA 40; 55 CLR 499 error could be demonstrated, and that this had not been done.

Consideration

51. The principles applicable to a Crown appeal are now well understood. A claim of manifest inadequacy requires the Crown to establish that the sentences imposed were unreasonable or plainly unjust in a sentencing environment where there is no single “correct” sentence and judges at first instance are to be allowed as much flexibility in sentencing as is consonant with the application of proper principle and consistency of approach (Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at [6]; Makarian v The Queen [2005] HCA 25; 228 CLR 357; Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 at [58]).

52. “Uniformity of sentencing is a matter of great importance in maintaining confidence in the administration of justice… inadequate sentences also give rise to a sense of injustice, not only in those who are the victims of the crimes in question, but also in the general public and are likely to undermine public confidence in the ability of the courts to play their part in deterring the commission of crime. To permit the Crown as well as convicted persons to appeal against sentences assists in maintaining confidence in the administration of justice (Everett v The Queen [1994] HCA 49; 181 CLR 295 at [306] (McHugh J)).

53. The primary purpose of a Crown appeal against sentence is to lay down principles for the governance and guidance of courts having a duty of sentencing convicted persons. In the exercise of its jurisdiction under s 5D Criminal Appeal Act 1912 (NSW) the Court retains a residual discretion to decline to interfere with a sentence, even though the sentence is erroneously lenient (Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 at [1]). The Crown must negate any reason why the residual discretion of this Court not to interfere should be exercised (Griffiths v The Queen [1977] HCA 44; 137 CLR 293; CMB v Attorney General for New South Wales [2015] HCA 9 at [35] - [36]. As was observed in Green v The Queen; Quinn v The Queen at [42] cases might arise where the court concludes that the inadequacy of the sentence appealed from is so marked that it amounts to “an affront to the administration of justice” and risks undermining public confidence in the criminal justice system. In such a case, the court is justified in interfering with the sentence.

54. On the issue of accumulation, an important statement of principle was made by Howie J (Adams and Price JJ agreeing) in Regina v Cahyadi [2007] NSWCCA 1; 168 A Crim R 41 where his Honour said:

“27    … there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. …”

55. There is no issue that in this case the criminality of each of the conspiracy to import offence and the supply a large commercial quantity of methamphetamine offence was separate and discrete. There is no issue that the offending in relation to each of the principal offences was extremely serious. Each carried a maximum penalty of imprisonment for life. Moreover, counsel for the respondent in the sentence proceedings accepted that some level of accumulation was appropriate. While his Honour was not bound to accept that concession, he should at the very least, have provided reasons for why he did not do so. On the facts of this case, given the serious criminality involved in each of the principal offences, and given the concession of counsel for the respondent, it was an error for his Honour not to provide some level of accumulation when imposing sentence and in failing to provide reasons why some accumulation was not appropriate.

56. It is, of course, understood that the extent of accumulation is a matter of judicial discretion made in accordance with established principle R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66 at [7]. Nevertheless, in circumstances as stark as those confronting his Honour in this case, it was an error not to accumulate in part the sentence for the Commonwealth offence with the aggregate sentence for the State offences.

57. In Regina v XX [2009] NSWCCA 115 Hall J (with whom Tobias JA and Kirby J agreed) set out at [52] a number of propositions concerning accumulation and concurrency that his Honour said could be derived from the case law. Those propositions focused on a consideration of the similarity, differences and degree of connection between the offending both in time and type to ascertain the extent to which the sentence for one offence could comprehend and reflect the criminality of the other. It is clear that when those propositions are applied to the facts and criminality in the two principal offences here, some accumulation was required.

58. As was recently stated in Pannowitz v R [2016] NSWCCA 13 by Davies J (with whom Hoeben CJ at CL and Beech-Jones J agreed):

“40   … To those matters may be added a need to ensure public confidence in the administration of criminal justice to avoid the perception that an offender will not be punished more severely for committing multiple offences: Khawaja v R [2014] NSWCCA 80 at [24]-[25] following R v Harris [2007] NSWCCA 130; (2007) 171 A Crim R 267 at [46].”

59. Applying the principles applicable to a Crown appeal, it is clear that the failure to properly apply the principle of totality in this case has led to the imposition of an inadequate sentence which is likely to give rise to a sense of injustice in the general public and is likely to undermine public confidence in the ability of the courts to appropriately punish serious offending. The inadequacy of the sentence in this case is so marked that it risks undermining public confidence in the criminal justice system.

60. This ground of appeal is made out.

Ground 2 - The sentence was manifestly inadequate

(a)   His Honour failed to have due regard to the nature and seriousness of the offending.

61. While his Honour set out the factual background to the offending and found that the respondent was “a principal”, that both the index offences were very serious, that the quantity and value of the drugs involved was very high, that considerable sophistication and planning was involved, those findings were not reflected in the sentence ultimately imposed. It is not sufficient for a sentencing judge to record such findings as having been made. Those findings should be reflected in the sentence imposed. As often happens in sentencing, there can be sentencing principles pulling in different directions so that the “instinctive synthesis” process operates to bring about a sentence which adequately takes into account those conflicting principles. Here there was very little by way of conflict. There was no real issue as to the objective seriousness of each of the offences. What was primarily raised on behalf of the respondent was his subjective case. Looked at properly, however, his subjective case was not such as would justify a sentence as low as that which was ultimately imposed.

62. The above comments are directed at the total effective sentence imposed by his Honour of imprisonment with a non-parole period of 7½ years and a balance of term of 6½ years, not to the individual sentences imposed for the conspiracy to import offence and the large commercial supply offence. I have concluded that each individual sentence was not inadequate, rather it is the total effective sentence which attracts that characterisation.

(b)   His Honour failed to have due regard to general and specific deterrence.

63. As has been stated earlier, while his Honour recited the importance of general and personal deterrence in this case, he failed to impose a sentence which gave effect to those findings. As with (a) this conclusion applies to the total effective sentence not to the individual sentences.

(c)   His Honour failed to have due regard to totality in sentencing.

64. This has been dealt with under Ground of Appeal 1.

(d)   His Honour erred in giving undue weight to subjective circumstances.

65. While the respondent had a reasonable subjective case, it could not be assessed as strong or compelling. On an acceptance of the respondent’s mother’s evidence, it is apparent that up to the age of three, the respondent was exposed to violence and erratic behaviour on the part of his father. Thereafter, he was taken by his mother to Canada. The events which there occurred seemed to be substantially due to the respondent’s own behaviour. No explanation was offered for his early poly-substance abuse, other than a genetic predilection. This was based on second-hand hearsay speculation on the part of an unnamed doctor. He did have (apparently until he went into custody) a very heavy drug habit. The ease with which he is said to have overcome that addiction while in custody is atypical of persons who have a drug addiction at the level attributed to the respondent. In any event, his Honour rejected the primary submission in the respondent’s subjective case, i.e. that his involvement in drug importation and supply was to support his drug habit and not for profit.

65. Even putting the respondent’s subjective case at its highest, it is not an unusual circumstance for drug-addicted persons to be heavily involved in the supply of drugs. While this can be taken into account in sentencing, depending upon the particular circumstances, it has never been regarded as a factor which substantially reduces the weight to be given to the objective seriousness of the offending.

66. When one takes into account his apparent heavy drug addiction and the rather generous findings by the sentencing judge of “sincere regret” and “remorse and acceptance of responsibility”, those subjective matters still had to be balanced against the objective seriousness of the offending and in particular, the fundamental importance of general deterrence in relation to drug offences. In that regard, the observations of Howie J (with whom Simpson and Buddin JJ agreed) in SZ v Regina [2007] NSWCCA 19; 168 A Crim R 249 remain apposite:

“4   There is a limited degree to which an otherwise appropriate sentence can be discounted for one reason or a combination of reasons and yet result in a sentence that duly reflects the objective seriousness of the offence and the purposes of punishment. There was by applying common law principles, and there still is by the application of the provisions of the Crimes (Sentencing Procedure) Act 1991 (NSW), a bottom line beneath which a sentence cannot legitimately be set. If that bottom line is not respected, the sentence will fail to carry out the purposes of punishment. …

6   These observations are trite and so there is a risk that they will be overlooked in an attempt to achieve one of the purposes of punishment at the expense of another. I simply wish to emphasise that, because there is only limited room to discount a sentence without going below the bottom line, it must follow that the application of one discount for one purpose will inevitably impact upon the extent to which another discount can be applied to achieve a different purpose. …”

68. I have concluded that if the explanation for why the respondent’s sentence is inadequate is because of the weight which his Honour gave to his subjective case, then House v R error has occurred in that regard. As with the other particulars of inadequacy of sentence, this finding applies to the total effective sentence not to the individual sentences.

69. This ground of appeal has been made out in respect of the total effective sentence.

Ground 3 – His Honour erred in failing to indicate non-parole periods for the State offences in accordance with s 54B(4) of the Crimes (Sentencing Procedure) Act 1999.

70. Section 54B(4) provides:

“(4)   When determining an aggregate sentence of imprisonment for one or more offences, the court is to indicate and make a written record of, for those offences to which a standard non-parole period applies, the non-parole period that it would have set for each such offence to which the aggregate sentence relates had it set a separate sentence of imprisonment for that offence.”

71. The two State offences of supply a large commercial quantity of drugs and possess a prohibited weapon carried standard non-parole periods of 15 years and 3 years respectively. His Honour clearly failed to comply with s 54B(4). That having been said, s 54B(7) provides that a failure to comply with the section does not “invalidate” the sentence. Nevertheless, his Honour’s failure to indicate in the indicative sentences the non-parole periods which would have been imposed involved another error in sentencing in this case.

72. It follows from the above that the Crown appeal has been made out. This does not end the matter. It remains to be considered whether the Crown has established that the residual discretion should not be exercised in favour of the respondent.

The residual discretion

73. The Crown has been successful in establishing that his Honour erred in making the sentence for the State offences wholly concurrent with that imposed for the Commonwealth offence. That error was exacerbated by his Honour’s failure to properly reflect in the sentence, the principles of personal and most particularly, general deterrence, which are so important in large drug supply offences of this kind. This was not a case where the respondent’s subjective case was of such strength as to require a significant amelioration of the punitive elements which are important in sentencing for drug supply offences. As earlier indicated, the inadequacy in the sentence was such as to risk undermining public confidence in the criminal justice system. In those circumstances, the Crown has been successful in negating any reason why the residual discretion of this Court not to interfere in this sentence should be exercised.

Re-sentence

74. In re-sentencing the respondent, it is necessary to follow the guidance of the High Court in Kentwell v The Queen [2014] HCA 37; 252 CLR 601 at [42] where the plurality (French CJ, Hayne, Bell and Keane JJ) said:

“42   … When a judge acts upon wrong principle, allows extraneous or irrelevant matters to guide or affect the determination, mistakes the facts or does not take into account some material consideration, the Court of Criminal Appeal does not assess whether and to what degree the error influenced the outcome. The discretion in such a case has miscarried and it is the duty of the Court of Criminal Appeal to exercise the discretion afresh taking into account the purposes of sentencing and the factors that the Sentencing Act, and any other Act or rule of law, require or permit. As sentencing is a discretionary judgment that does not yield a single correct result, it follows that a range of sentences in a given case may be said to be "warranted in law". A sentence that happens to be within the range but that has been imposed as the result of a legally flawed determination is not "warranted in law" unless, in the exercise of its independent discretion, the Court of Criminal Appeal determines that it is the appropriate sentence for the offender and the offence. …”

75. The only additional information before the Court beyond that which was available to the sentencing judge was material from the University of Southern Queensland which supported the submission by the respondent that he intended to engage in tertiary study while in custody. While this is reflective of an intention on the part of the respondent to rehabilitate himself, it does not significantly affect the other material which is before the Court, in particular, that relating to the circumstances in which the offences were committed.

In re-sentencing the respondent, I have imposed the same sentences as those imposed by the sentencing judge, but have adjusted the accumulation to increase the non-parole period by 3 years. Accordingly, the orders which I propose are as follows:

1. The Crown appeal is allowed.

2. The sentences imposed by his Honour on 28 September 2015 are quashed.

3. In lieu thereof, the respondent is sentenced as follows:

1. In respect of the State offences, including the matter on the Form 1, the respondent is sentenced to an aggregate sentence of imprisonment with a non-parole period of 6 years commencing 19 January 2012 and expiring 18 January 2018 with a balance of term of 3 years expiring 18 January 2021.

2. In respect of the Commonwealth offence, the respondent is sentenced to imprisonment with a non-parole period of 7½ years commencing 19 January 2015 and expiring 18 July 2022 with a balance of term of 6½ years expiring 18 January 2029.

76. HARRISON J: I agree with Hoeben CJ at CL.

77. DAVIES J: I agree with Hoeben CJ at CL.

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Decision last updated: 19 April 2016