R v Walker

[2023] NSWCCA 219

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

R v Walker [2023] NSWCCA 219

Hearing dates:

10 July 2023

Date of orders:

01 September 2023

Decision date:

01 September 2023

Before:

Leeming JA at [1]
Yehia J at [7]
Weinstein J at [8]

Decision:

(1) Leave is granted for the applicant to rely on an additional ground of appeal.

(2) The appeal is dismissed.

Catchwords:

CRIMINAL LAW – appeals – Crown appeal against sentence – findings of objective seriousness – whether findings of the sentencing judge were open – appeal dismissed

CRIMINAL LAW – appeals – Crown appeal against sentence - manifest inadequacy – aggregate sentence – totality – significance of applicant’s subjective case – appeal dismissed

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Criminal Appeal Act 1912

Drug Misuse and Trafficking Act 1985

Firearms Act 1996

Cases Cited:

Aryal v R [2021] NSWCCA 2

Bektasovski v R [2022] NSWCCA 246; 407 ALR 125

Bell v R [2019] NSWCCA 271

Bobbin v R [2016] NSWCCA 38

DH v R [2022] NSWCCA 200

Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81

Green v The Queen; Quinn v The Queen (2011) 244 CLR 262; [2011] HCA 48

Greentree v R [2018] NSWCCA 227

Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45

House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40

JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297

Kapua v R [2023] NSWCCA 14

Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118

Kochai v R [2023] NSWCCA 116

Kramer v R; R v Kramer [2023] NSWCCA 152

Lawson v R [2012] NSWCCA 56

Lloyd v R [2022] NSWCCA 18

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

Martin v R; Martin v R [2021] NSWCCA 316

Mori v R [2021] NSWCCA 32

Mulato v R [2006] NSWCCA 282

Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39

Nguyen v R (2011) 208 A Crim R 432; [2011] NSWCCA 92

Noonan v R [2021] NSWCCA 35

Paterson v R [2021] NSWCCA 273

R v Campbell [2014] NSWCCA 102

R v Eaton [2023] NSWCCA 125

R v Hammoud (2000) 118 A Crim R 66; [2000] NSWCCA 540

R v James [2017] NSWCCA 287

R v Pearce [2020] NSWCCA 61

R v Sharrouf [2023] NSWCCA 137

The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54

Towse v R [2022] NSWCCA 252

Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64

Yeung v R [2018] NSWCCA 52

Category:

Principal judgment

Parties:

Rex (Applicant)
Glen Walker (Respondent)

Representation:

Counsel:
E Balodis (Applicant)
J Trevallion (Respondent)

Solicitors:
Office of the Director of Public Prosecutions (Applicant)
Kernick Law (Respondent)

File Number(s):

2021/161780

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

Nil

Date of Decision:

20 February 2023

Before:

Flannery SC DCJ

File Number(s):

2021/161780

HEADNOTE

[This headnote is not to be read as part of the judgment]

Mr Glen Walker pleaded guilty to four offences in connection with the manufacture and supply of drugs: one offence of manufacture a large commercial quantity of MDMA contrary to s 24(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (DMTA) (sequence 1); supply a large commercial quantity of methylamphetamine contrary to s 29 of the DMTA (sequence 7); possess unauthorised pistol contrary to s 7(1) of the Firearms Act 1996 (NSW) (sequence 8); and possess precursor contrary to s 24A(1)(a) of the DMTA (sequence 9). Two sequences had offences attached on a Form 1.

In April and May 2021, Mr Walker acted as part of a group in the manufacture of drugs at his rural property with the intent to sell the product interstate. Their communications were intercepted by police. Police conducted a raid on the property and arrested Mr Walker and his co-offenders on 4 June 2021.

On 20 February 2023, Mr Walker was sentenced in the District Court at Port Macquarie by Flannery SC DCJ to an aggregate sentence of 9 years imprisonment with a non-parole period of 6 years. This sentence reflected a 25% discount for Mr Walker’s early plea of guilty and a finding of special circumstances.

The Crown appealed against the sentence on two grounds:

1. Her Honour erred in her assessment of the objective seriousness for sequences 1 and 7; and

2. The sentence imposed was manifestly inadequate.

The Court (Leeming JA, Yehia and Weinstein JJ) held, dismissing the appeal:

As to ground 1:

1. The primary judge appropriately engaged with submissions made by the Crown and the respondent, and it was open to her to make the findings about objective seriousness that she did: [57] per Weinstein J (Leeming JA agreeing at [5]; Yehia J agreeing at [7]).

Consideration by Leeming JA at [3]-[4] and Weinstein J at [56]-[59] of the appropriateness of locating objective seriousness on a hypothetical range.

As to ground 2:

2. In an appeal against an aggregate sentence, the question is “whether the aggregate sentence reflects the total criminality involved”: [76] per Weinstein J (Yehia J agreeing at [7]).

Noonan v R [2021] NSWCCA 35 at [41]; Aryal v R [2021] NSWCCA 2 at [50]; Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81 at [54], considered.

3. While the sentence imposed by her Honour was lenient, it was not unduly so given the subjective case of the applicant: [6] per Leeming JA, [81] – [83] per Weinstein J (Yehia J agreeing at [7]).

JUDGMENT

1. LEEMING JA: I agree with Weinstein J that this Crown appeal should be dismissed, and in light of his Honour’s judgment I can express my reasons very concisely.

2. Ground 1 challenges the findings of objective seriousness made by the primary judge. The challenge is a very narrow one. As Weinstein J points out, the Crown had said at the sentencing hearing that the manufacturing count should have been regarded as “above the mid-range” while her Honour found it to be “within mid range”, and in relation to the supply count, the Crown had said that it should be regarded as “at or above the mid-range” but her Honour found it to be “below the mid-range, but not appreciably so”.

3. I mean no criticism of the primary judge when I say that these distinctions are inherently vague and poorly defined. As much has often been observed: see for example Towse v R [2022] NSWCCA 252 at [12] and Kapua v R [2023] NSWCCA 14 at [121]-[123]. There are also cases where it is unhelpful to locate objective seriousness on some metaphorical range; an example is manslaughter: see Paterson v R [2021] NSWCCA 273 at [32]-[33]. But those difficulties do not deny that it may be useful and indeed orthodox for a sentencing judge articulating his or her assessment of objective seriousness, which is and always has been a critical component of the sentencing process, to do so by reference to a range: see Bektasovski v R [2022] NSWCCA 246; 407 ALR 125 at [11] and the cases there cited. This Court received no submissions on any general proposition concerning refraining from locating objective seriousness on some range, but as presently advised the fact that a description of something so inherently qualitative as the objective seriousness of particular offending is imprecise does not make it wrong to deploy it. The self-evidently qualitative, rather than quantitative, descriptions by reference to a range, for all their limitations and imprecision, facilitate a measure of transparency, and thus assist in exposing the basis upon which a sentencing judge exercises a discretion. They may also permit a measure of agreement between the Crown and the offender at a sentencing hearing, or in the absence of agreement, they may assist to sharpen the parties’ submissions on objective seriousness. Indeed, my impression is that that is the role they played in the present case.

4. In the present case, the sentencing judge was confronted with competing submissions as to objective seriousness, both expressed in terms of a range, and which were only marginally apart. The position resembles that stated in R v Pearce [2020] NSWCCA 61 at [59]:

We are of course conscious that terms like “low range” and “mid-range” are commonplace in performing the intuitive synthesis involved in the exercise of the sentencing discretion, even where, as here, there is no standard non-parole period, and they perform a useful role. The point is that it is difficult to identify a material error when the only difference between the parties on objective seriousness was whether the offending fell within the mid-range, or above the low range but short of the mid-range, when neither term is well-defined, especially given the wide range of conduct capable of giving rise to the offence.

5. I agree with Weinstein J’s conclusion that no appealable error has been established in her Honour’s assessment.

6. Ground 2 contends that the sentence was manifestly inadequate. The sentence of 9 years imprisonment, incorporating a 25% discount for the applicant’s guilty pleas, was a lenient one for very serious drug offending coupled with a firearms offence. On the other hand, there was an unusually strong subjective case, given the applicant’s age, remorse, prospects of reoffending, lack of relevant antecedents, role as carer for his disabled wife and the likelihood that he himself suffered from a mild intellectual disability. I am unpersuaded that it should be inferred that the discretion has miscarried.

7. YEHIA J: I have had the considerable advantage of reading the judgment of Weinstein J in draft. I agree with the proposed orders and with his Honour’s reasons.

8. WEINSTEIN J: The Crown appeals against the sentence imposed upon the respondent, Glen Walker, by Flannery SC DCJ on 20 February 2023 in the District Court at Port Macquarie pursuant to s 5D of the Criminal Appeal Act 1912. The Crown’s appeal is of right.

9. The sentence the subject of appeal is an aggregate sentence imposed with respect to four offences to which the responded pleaded guilty in the Local Court, and with respect to which he was entitled to a 25% discount pursuant to s 25D of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Act). Two sequences (1 and 8) had offences attached on a Form 1, which her Honour took into account when sentencing Mr Walker.

10. The following table, adopted from the Crown’s written submissions, sets out, inter alia, the indicative sentences for each sequence against their corresponding maximum penalty and standard non-parole period:

Sequence No	Offence	Date	Maximum penalty	SNPP	Indicative sentence	Starting point
1	Manufacture a large commercial quantity of MDMA, s 24(2) Drug Misuse and Trafficking Act (DMTA)	2 -5 June 2021	Life and/or fine 5,000 PU	15 years	7 years 6 months NPP 4 years 6 months	10 years NPP 6 years
	Form 1, s 166, sequence 10: deal with proceeds of crime ($16,900), s 193C(2) Crimes Act	4 June 2021	2 years	N/A
7	Supply a large commercial quantity of methylamphetamine (4310.6g), s 25(2)/s 29 DMTA	4 June 2021	Life and/or fine 5,000 PU	15 years	5 years 6 months NPP 3 years 6 months	7 years 4 months NPP 4 years 8 months
8	Possess unauthorised pistol, s 7(1) Firearms Act	4 June 2021	14 years	4 years	3 years NPP 1 year 10 months	4 years NPP 2 years 6 months
	Form 1, s 166, sequence 4: possess ammunition without license/permit, s 65(3) Firearms Act	4 June 2021	2 years and/or 50 PU	N/A
	Form 1, s 166, sequence 5: not keep firearm (pistol) safely, s 39(1)(a) Firearms Act	4 June 2021	2 years and/or 50 PU	N/A
9	Possess precursor (2,736g 3,4 methylenedioxy-phenyl-2-propanone (“MDP2P)), s 24A(1)(a) DMTA	4 June 2021	10 years and/or 2000 PU	No	2 years 6 months	3 years 4 months

11. Her Honour imposed an aggregate sentence of 9 years imprisonment with a non-parole period of 6 years, finding special circumstances. The sentence commenced on 4 June 2021 and will expire on 3 June 2030. The respondent will be eligible for release to parole on 3 June 2027.

12. The Crown’s Notice of Appeal was filed in time but specified only one ground of appeal, that being manifest inadequacy (now ground 2). A ground of manifest inadequacy falls within the last category of case identified in House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40 (House). It may be contrasted with an allegation of specific error. On 7 June 2023, the Crown filed an Application for Leave to Rely on an Additional Ground of Appeal, being ground 1.

13. The Crown relies on two grounds of appeal:

1. Her Honour erred in her assessment of the objective seriousness for sequences 1 and 7; and

2. The sentence imposed is manifestly inadequate.

14. As argued in this court by the Crown, the specific error in ground 1 assists to explain why the sentence was manifestly inadequate.

15. For the following reasons, I would grant leave to rely on the additional ground of appeal and dismiss the appeal.

Facts of the offending

16. Her Honour sentenced Mr Walker in a busy list at a country circuit at Port Macquarie. So much is evident from the transcript of the proceedings which occupies a mere four pages. There is some doubt about whether her Honour sentenced Mr Walker on a statement of Agreed Facts, which formed part of exhibit “A” or a Summary of Sentence Facts, prepared at the request of her Honour [1] , which was tendered by the Crown as exhibit “B”, although it appears that her Honour sentenced the respondent upon the latter [2] . Nothing turns upon that question. Her Honour summarised the facts as follows [3] :

    1. Trans 20 February 2023 p2 at 41.

    2. ROS p 2.

    3. See ROS pp 2-8.

“The facts are that the Australian Federal Police commenced an operation relating to the communications platform "Anom”; that platform provided access to the encrypted communications commonly used in criminal syndicates.

In April 2021, as a result of communications monitored, an investigation was commenced into the co-accused, Mr Jones and Mr Lapraik.

Mr Jones runs two businesses, involving heavy earthmoving equipment and trucks. Those businesses are based at the property he owns at 220 Pacific Highway, Doyalson. Mr Lapraik lived at that address, as did Mr Walker and Mr Jackson, who is Mr Walker's son-in-law. Mr Walker is called 'the Mechanic". Together with his brother, Mr Walker owned land off Collombati Road, Collombatti, a rural area in the Mid-North Coast of New South Wales. It was here that the manufacturing, the subject of sequence 1, was undertaken.

That property is in remote bushland terrain. There is an unsealed track for access.

There were four temporary structures on the property, being a caravan and three shipping containers coloured red, white and blue.

The property does not have electricity, and power is provided by a petrol generator.

In April and May 2021, intercepted communications revealed that Mr Walker was manufacturing drugs at his Collombatti property. He was engaged to reset some loose methylamphetamine crystals and was involved in at least 2 manufactures in that capacity in April and late May 2021. There were 63 bags of methylamphetamine of which 30% of the crystals needed further refining. Photographs were exchanged establishing that Mr Walker had successfully manufactured those crystals.

As the final product was not to the satisfaction of the parties Mr Jones was working with, Mr Jones sought a recipe and input from the international "Anom" group on 30 April 2021. He compared it with what Mr Walker had provided. Mr Walker then made another attempt to refine those crystals in accordance with that new recipe, which involved heating the product to a different temperature to assist in obtaining the best acidity level. Mr Jones said, "We've got a result it's just not the best." The manufacture was delayed by Mr Walker letting Mr Jones know that they needed more of the precursor methylamine.

On 10 May Mr Jones confirmed to Mr Lapraik that Mr Walker had gone well, "Yeah think so it's in the freezer."

The weight of that enterprise was 20 kilograms of methylamphetamine which Mr Jones had arranged to sell for $160,000 a kilo to a customer in WA.

It was to be transported in a truck. Mr Walker drove that truck between the locations and hid the keys to allow the next stage of the delivery to be undertaken. The AFP then seized that drug. None of the offenders knew what had happened to it.

Following that, Mr Walker assisted to destroy incriminating evidence.

The parties did not consider the police had seized the drug, "If it was Feds, "Mechanic" would be locked up and everything would've been raided."

After the drug was seized on 22 May 2021, Mr Walker went to his property and buried drums of chemicals and precursors. Jones and Lapraik then discussed Mr Walker's undertaking another manufacture. Jones said, "I owe four million," and expressed concern that Mr Walker was on the bench. He asked, "Do you think his head is in it after that scare?" However, Mr Walker agreed to do another manufacture and further precursors and equipment were obtained.

Mr Jones and Mr Lapraik discussed "there being enough at the property to do ten kilograms. We should do that first then pump it out." Mr Lapraik observed, "Ten kilos is fuck all to leave work for" but Mr Jones reassured him "In the next six months you could make five hundred K easy life changing".

Of Mr Walker's involvement, Mr Lapraik said, "He's keen to do it and said he would organise another container on Monday. He's got heaps going on. His daughter died on the operating table so he's on his way to hospital. Kidneys failed. Hectic. He said he's come this far not to do it, just got a bit going on ATM." Later Mr Walker indicated it would take two or three days to dig up the buried items and commence the manufacture.

Over the next few days they discussed needing a freezer, vent caps, relief valves, buckets and thick drums in which to store the product.

Mr Walker was concerned the buried items might be damaged and set them back.

On 31 May 2021, Mr Jones said to Mr Lapraik, "We are on here, let's make millions."

On 22 May 2021, Mr Lapraik travelled to Mr Walker's Collombatti property. Mr Walker and Mr Jackson drove in a separate car. They then spent a couple of days digging up the buried items. There was $75,000 worth of one chemical and $10,000 worth of another.

Mr Lapraik bought a large chest freezer and 9 bags of ice as the manufacturing method caused the product to become very hot and the ice and freezer were to prevent the drums in which the product was being stored, from splitting.

On 2 June 2021 Mr Jones asked Mr Lapraik to check with Mr Walker, "Ask Mechanic too was it two litres of tone per litre of oil or three litres of tone". Mr Lapraik replied, "Later yeah three to one."

There was later communication to the effect that Mr Walker had the recipe correct. The manufacture then began.

On 3 June 2021, a test batch of a litre was made to check that the new recipe worked. The product became very hot, and cold water had to be poured constantly over the swelling drums to prevent them splitting and the product being lost. Mr Lapraik told Mr Jones, "We are preparing shit now. I had to run into town to get new scales and things. First lot is done, waiting four hours."

After that success, the manufacturing began again with Mr Lapraik assisting Mr Walker in the manufacturing process. They worked through the night.

Later that day Mr Lapraik bought glassware, a 54-litre storage tub, scales, and other items for the manufacture.

On 4 June 2021, Mr Lapraik told Mr Jones, "Last reactions just done, a/I good drums are round, LOL but didn't blow". Mr Jones went back to the overseas "Anom" members and amongst other things, said, "Do you guys do four litres in a bucket if freezer or do you just do the one litre with three tone. I just did one but hoping can do three or four in a bucket so I can fit more in the freezer".

On 4 June 2021, police watching the property saw Mr Walker moving in and out of the shipping containers in which the apparatus was set up. Police then attended the property and executed a search warrant. Mr Jackson had been keeping watch at the foot of the access track. He had a walkie talkie to communicate with Mr Lapraik and Jones. As police drove up, he informed the others. They then left the red shipping container and closed the doors.

The red and blue shipping containers were positioned under a roof construction some 7 to 10 metres apart. Between the 2 containers was a large freezer and various equipment and tools. The freezer was powered by one of the 2 petrol generators located behind the containers. Inside the red container were numerous containers of various sizes, a large esky, a large bathtub, various substances and equipment and a reflux still system. On the same table with the still system were 4 plastic white containers. One was empty and connected to the reflux system; 3 contained brown liquid and were under pressure. A hose ran from the system into a bucket with iced water.

Numerous containers, bottles, tools and equipment were located in and around the shipping containers.

A number of excavators, tractors and other items used in earthmoving were also at the property.

In respect of sequence 1 21.841 litres of MDMA liquid was in the still with 18 per cent purity. There were a further 3 tubs of liquid MDMA; the first containing 4.281 litres at 20.5 per cent purity, the second containing 4.217 litres of MDMA at 20.5 per cent purity, and the third containing 4.48 litres of MDMA at 17 per cent purity. There were another 5 containers which only contained trace amounts of MDMA.

The total weight of MDMA was 34.819 kilograms. Items containing trace amounts have not been included in that weight.

The pure weight of the MDMA was 6.433 kilograms.

In respect of sequence 7, the supply charge, inside the red shipping container police found a resealable bag containing a white crystalline substance. It had a net weight of 308.8 grams of 80 per cent purity. A white plastic bucket containing 7 bags of brown crystalline substance which contained sludge and crystalline and was of a purity between 60.5 and 78.5% was also found.

The total amount of methylamphetamine located was 4,310.6 grams. The estimated value of the methylamphetamine was $750,000.

In respect of sequence 9, numerous items and substances commonly used were also located including 2736 grams of 3,4-Methylenedioxy Pheniylpropan. It had a purity of 76 per cent.

Other precursors and substances used were also found. Police discovered 3 air purifying masks; 2 had DNA profiles consistent with the offender Mr Walker, and the third had a DNA profile consistent with Mr Jones. Gloves were also found which had profiles on them consistent with being from Mr Walker.

The potential yield from the MDP2P was 1.644 kilograms if other chemicals had been present in the required amounts. Police also located $16,900 in the white caravan packaged in bundles inside a toolbox.

In a drawer in the caravan police found a loaded .38 Smith & Wesson revolver. There were 6 rounds in the chamber. It was manufactured in America and there is no record of it being imported to or sold in Australia. Mr Walker's DNA was found on the trigger and handle of the revolver.

In the toolbox which held the money police found two bags containing numerous rounds of ammunition. Mr Walker does not hold a firearms licence.”

The Sentencing Proceedings

17. The Crown tendered a sentencing bundle and a summary of the Agreed Facts. [4] The respondent tendered a report of Lee Knight, clinical nurse consultant (forensic mental health) dated 9 February 2023. [5] He was not required for cross-examination. The respondent also tendered an undated reference from his daughter [6] , and an extract from the Australian Bureau of Statistics Life Tables which demonstrated that the respondent’s life expectancy is in the range of 25 – 26 years [7] . Also tendered was a newspaper article about the respondent receiving a Certificate of Merit from Sir Roden Cutler in 1977 for rescuing an elderly man from drowning in Bateau Bay [8] .

    4. Exhibit “A”

    5. Exhibit “1”

    6. Exhibit “2”

    7. Exhibit “3”

    8. Exhibit “4”

18. The parties relied primarily on their written submissions. Senior counsel for Mr Walker, Mr Dennis SC, submitted that the parties were not particularly far apart as to the assessment of objective seriousness of the offences. The parties diverged as to the extent of the respondent’s remorse, his prospects of rehabilitation, special circumstances and the effect of Mr Walker’s age on the sentence to be imposed.

19. With respect to the manufacture charge, it was submitted by Mr Dennis that the co-accused Jones and Lapraik were the principals and that Mr Walker’s role was that of the cook, which he conceded was an important and essential role. Senior Counsel observed that it was Mr Jones and Mr Lapraik who stood to profit most from the enterprise.

20. Mr Dennis submitted that the quantity of the drug was but one factor involved in the assessment of objective seriousness. He conceded that the offending was a part of ongoing conduct and that the motivation was financial gain, but he observed that the level of planning and the motivation for financial gain was inherent in this type of offending. He submitted that the manufacture offence was at or above the mid-range, the supply offence was at or below the mid-range, having regard to Mr Walker’s role, the role of other people and the quantity, and that the firearm offence was below the mid-range. It was conceded that the possess precursor offence was a serious example of such an offence, with which the Crown agreed.

21. The Crown submitted that although the quantities seized were manufactured in the one instance rather than over a period of time, the objective seriousness of that offence was above the mid-range of objective seriousness for the following reasons, which her Honour cited in her remarks:

“1. The quantity was almost 70 times the large commercial threshold, and although she accepted the quantity was not the sole factor to consider…the sheer volume could not be overlooked;

2. there was a course of conduct in which Mr Walker had undertaken manufacturing processes of methylamphetamine that was being sold by the kilo interstate by the syndicate for considerable sums of money;

3. the overall syndicate was a sophisticated one;

4. although Ms Jones was the money man and organiser, and Mr Lapraik his right-hand man, Mr Walker’s role was indispensable;

5. although it was not known what Mr Walker was to be paid overall, in her submission one would infer that he was not simply offering his services, his property, his expertise and a willingness to take such a risk over a lengthy period, for no benefit;

6. the operation only stopped when police attended the property, and there was an intention to continue to make millions;

7. the offence was committed for greed; and

8. the operation involved significant premedication and planning which, although not aggravating, in her submission it provided an insight into the scope of the operation and its overall objective seriousness.” [9]

9. ROS pp 9-10

22. With respect to the supply offence, the Crown submitted that it was at or above the mid-range of objective seriousness. With respect to the firearm offence, the Crown submitted that it was made more serious because it was connected to the manufacture offence, and was in the mid-range.

Remarks on sentence

23. Her Honour gave her judgment immediately after hearing the parties’ brief submissions. At the outset, she noted the maximum penalties for each offence and the statutory non-parole periods for each of sequences 1, 7 and 8. Her Honour agreed with the parties that it was important not to double count the criminality of sequences 4 and 5 on the Form 1 attaching to sequence 8, as they were essentially aggravating features of the possess unauthorised pistol offence (sequence 8).

24. Her Honour reduced the indicative sentences she otherwise would have imposed by 25% to reflect the utilitarian value of Mr Walker’s early pleas of guilty.

Objective seriousness

25. Her Honour made the following findings with respect to objective seriousness:

“Mr Walker was not a principal in what was a not insignificant drug enterprise, however, as the Crown says, his role was an essential one as he provided both his expertise and his property for the manufacture of MDMA in what I accept was intended to be an ongoing operation.

The quantity manufactured was significant, although the average purity of the MDMA was only approximately 18%, and although the charge only reflects the manufacture of the MDMA on 3 to 4 June 2021, it must be seen in the context of a course of conduct.

Mr Walker’s motivation was financial and, although there is no evidence about what he would have received, I agree with the Crown that it is unlikely he would have done what he did for an insignificant benefit.

Having regard to his role, which I accept was essentially as a cook who provided his property for the manufacture, to the quantity, the purity, and as the charge relates to one manufacture in the context of a course of conduct, I find the offence falls within the mid-range for such offences.

In relation to the supply offence, having regard to the quantity, the fact that it is a deeming offence and Mr Walker’s role, I find the objective seriousness falls below the mid-range of objective seriousness for such offences but not appreciably so.

In relation to the firearms offence, I agree with the Crown that it is more serious because it is connected to the manufacture offence, and I accept it falls within the mid-range of objective seriousness.

I agree with the parties that the precursor offence is serious.” [10]

10. ROS p 10,11

Subjective case

26. Her Honour then considered the respondent’s subjective case. Her Honour extrapolated and accepted the following from the report of Mr Knight and the reference of the respondent’s daughter.

27. Mr Walker was 61 years old. He had a “relatively minor” criminal history which her Honour found did not disentitle him to leniency. He had been remanded in custody since his arrest on 4 June 2021. Mr Walker considered that he had a happy childhood, although he had meningitis as a young child and suffered a brain injury, which resulted in him having poor memory and learning difficulties. His mother died from cervical cancer when he was 18, soon after which his father left the family home. He made a suicide attempt after his mother died.

28. The respondent left school after completing year 10 and commenced a boilermaking apprenticeship at age 17. When he was a child, he rescued people from drowning and received an award from the Royal Humane Society.

29. Mr Walker worked from age 14 packing shelves at a supermarket. He was then continuously employed as a mechanical hydraulic repair mechanic working on heavy plant machines. His longest period of unemployment was about six months in the late 1980s. Prior to his arrest, he had lost his job due to the Covid-19 lockdowns. He survived on his savings, including his superannuation which had lost a considerable amount of money. It was in this context that Mr Walker agreed to participate in the drug manufacturing operation. He was approached by his co-accused and participated in the commission of the offences for financial gain, as he was unemployed and his superannuation had lost value.

30. Mr Walker used cannabis and heroin from the age of 16 until his arrest. He had been prescribed pethidine and morphine for headaches as a child and commenced taking heroin when he ceased taking that medication ceased at 16 years of age. He had been on a methadone programme for 40 years and is currently prescribed 14 mg a day. He had never received drug and alcohol counselling, but had not used illicit substances since entering custody, where he was working in the woodwork shop. He had no ongoing connection with his co-accused.

31. Mr Walker’s wife of 40 years suffered a traumatic brain injury and other physical injuries about 18 years ago and has NDIS funding. She was cared for by her two children and it was Mr Walker’s intention to return to live with her upon his release from custody. He had the support of his wife, his children and his brother. His daughter has hypertension which has caused heart problems and kidney disease.

32. Mr Walker expressed regret to Mr Knight and to his daughter. Mr Knight considered that Mr Walker was likely to have a mild cognitive impairment and that he suffered from an opioid use disorder which is in partial remission in a controlled environment, managed with methadone. It was recommended that the respondent engage with drug and alcohol services on his release from custody.

Sentence

33. Her Honour accepted that the respondent was remorseful, drawing upon what he told his daughter and Mr Knight. She found that his prospects of rehabilitation were reasonable, taking into account his age, the period since he last committed an offence before these offences and the circumstances in which he had committed these offences. A finding of special circumstances was made taking into account that Mr Walker had spent the entirety of his time in custody in a Covid-19 lockdown environment. Her Honour accepted that the length of the sentence would allow for a significant period on parole.

34. Her Honour took into account the matters on the Form 1 and observed the agreement between the parties that the Form 1 matter attaching to sequence 1 would only marginally influence the sentence imposed as it was fairly typical for money to be in possession in relation to such an offence.

35. Her Honour had regard to the purposes of sentencing set out in s 3A of the Sentencing Act and was satisfied that no penalty other than imprisonment was appropriate. Her Honour sentenced the respondent to an aggregate sentence of 9 years with a non-parole period of 6 years. The statutory ratio was deviated from 75% to 66% on account of special circumstances. In accordance with s 53A(2) of the Sentencing Act, her Honour set out the indicative sentences for each sequence, allowing for a 25% discount for the early pleas of guilty. For those sequences attracting a statutory non-parole period, her Honour indicated a non-parole period in accordance with s 54B of the Sentencing Act.

Crown Appeals

36. Recently, in Kramer v R; R v Kramer [2023] NSWCCA 152 at [131] – [132], McNaughton J, with whom Davies and Hamill JJ agreed, said the following with respect to Crown appeals against sentence:

“[131] Crown appeals against sentence are brought for the primary purpose of laying down principles for the governance and guidance of courts having the duty of sentencing convicted persons. The Crown needs to show the sentencing judge has made an error of the kind identified in House v The King (1936) 55 CLR 499 at 504-505; [1936] HCA 40 (“House”); see CMB v Attorney General for the State of New South Wales (2015) 256 CLR 346; [2015] HCA 9 (“CMB”) at [54] (Kiefel, Bell and Keane JJ). Even if error is established, the court is required to consider whether the Crown’s appeal should nonetheless be dismissed in the exercise of its residual discretion (Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 (“Green”) at [26]; Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [24]). The Crown must “negate any reason why the residual discretion of the Court of Criminal Appeal not to interfere should be exercised” (CMB at [34] (French CJ and Gageler J) and at [56] (Kiefel, Bell and Keane JJ), quoting R v Hernando [2002] NSWCCA 489 (“Hernando”) at [12]; (2002) 136 A Crim R 451).

[132] It was also observed in Green that cases might arise where the court concludes that the inadequacy of the sentence is so marked that it amounts to “an affront to the administration of justice” which risks undermining public confidence in the criminal justice system. In such a case, a court is justified in interfering with the sentence: Green at [42] (French CJ, Crennan and Kiefel JJ).”

37. When error is found, this Court should ordinarily exercise its residual discretion to not interfere with a sentence if it is otherwise within the appropriate range: see for example R v Eaton [2023] NSWCCA 125 (Eaton) per Hamill J (Lonergan and Ierace JJ agreeing). Intervention is not justified simply because the sentence imposed below is different from those imposed in other cases. Rather, intervention will be warranted only when an appellate court concludes that there must have been some misapplication of principle that is apparent from the reasons or otherwise: Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64; Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 (Hili).

Ground 1 – error in assessment of objective seriousness

38. Mr Balodis, who appeared on behalf of the Crown, submitted that the sentencing judge erred in her assessment of objective seriousness with respect to sequences 1 and 7, which he said demonstrated an error of the kind identified in House. Mr Trevallion, who appeared on behalf of the respondent, says that her Honour’s findings were open to her.

39. At the outset it is instructive to observe that the Crown’s complaint is that with respect to sequence 1, her Honour erred in assessing objective seriousness “within the mid-range” when she ought to have assessed it “at above the mid-range”. With respect to sequence 7, the Crown submitted that her Honour erred in finding that the objective seriousness fell “below the mid-range, but not appreciably so”, when she ought to have found it “at or above mid-range”.

40. In my opinion, this case demonstrates the opacity of findings about objective seriousness, and about which this Court has had much to say over the years, in particular since Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 (Muldrock). In my view, assessing objective gravity bespeaks more of art than science.

Parties’ submissions

41. The Crown submitted that both sequence 1 and sequence 7 are very serious examples of offences of their kind, and that the standard non-parole periods for both offences have significance because her Honour assessed the objective seriousness of both offences at or about the mid-range. The respondent submits that the factors which the Crown relied upon (to which see below) do not by themselves, or in combination, justify a conclusion that her Honour’s findings on objective seriousness were not open to her.

Sequence 1 (manufacture charge)

42. The Crown submitted that the seriousness of this offending was elevated for a variety of reasons, including that the respondent was physically involved in the manufacture, that he provided the venue where the manufacture took place, that he had previously concealed the equipment and chemicals to avoid detection, that the operation was of some sophistication, and that his financial motivation and participation was emblematic of a participation in a wider sophisticated criminal syndicate. Thus, in his submission, her Honour’s assessment was not open to her.

43. Before her Honour, the Crown Prosecutor submitted that the offender’s role was indispensable, although she accepted that Jones was the “money man” and that Lapraik was Jones’s “right-hand man”. In this Court, the Crown took issue with her Honour’s finding that “Mr Walker was not a principal in the enterprise, although his role was essential as he provided both his expertise and his property for the manufacture of MDMA” in what she accepted was an ongoing enterprise [11] . The Crown submitted that this finding was not open, because the respondent’s criminality was well within the concept of a “principal”. Counsel for the Crown acknowledged, however, that there is no exhaustive list of factors determining the role of a “principal”: Nguyen v R (2011) 208 A Crim R 432; [2011] NSWCCA 92 at [4]. In oral submissions, the Crown appeared to resile from this submission and said that he did not make a submission that either Jones, Lapraik or the respondent was a principal. Rather, he submitted that they engaged in a partnership without a hierarchy. He submitted that labelling a person’s role was misleading and distracted attention from that which in fact occurred.

    11. ROS p11

44. In oral submissions in this Court, the Crown submitted that the respondent, as the manufacturer of the drugs, provided information to Jones and Lapraik as to how to perfect their recipe, although he conceded that the communications about the perfected recipe for the manufacture were in fact between Jones and Lapraik and those on the overseas encrypted service. He submitted that combined with other factors identified by the Crown Prosecutor before her Honour (and referred to at para [21] above), the respondent was in a role greater than that of a mere cook, such that the objective seriousness of sequence 1 must be greater than that found by her Honour.

42. Ultimately, Mr Balodis acknowledged that her Honour took into account relevant matters in her assessment of objective seriousness but erred by finding that the respondent was not a principal. Whist he conceded that the respondent took direction from Jones, and to a lesser extent Lapraik, in his submission this did not diminish his role as found by her Honour, which he submitted was not open on the evidence.

43. Mr Trevallion submitted that her Honour’s finding with respect to sequence 1 was reasonably open to her. He submitted that the factors which the Crown submitted elevated the seriousness of the offence are consistent with those one would ordinarily expect to feature in an operation of this kind, and as such do not raise the objective seriousness above the finding of the sentencing judge. For example, he argued that “physical involvement” by the respondent in the manufacture was a necessary feature of the offending.

Sequence 7 (supply charge)

47. The Crown submitted that the supply charge was also a serious example of an offence of its kind. The Crown relied upon the quantity of the drug (which it says leads to an inference that it was in the respondent’s possession for the purpose of wholesale supply), its purity, the estimated street value and that the drug the subject of the supply charge was different to that which the respondent manufactured. It was also submitted that the sentencing judge’s conclusion that the respondent was not the principal obscured her Honour’s assessment of what he had done.

48. Mr Trevallion submitted that the sentencing judge’s assessment was open to her. He disputed the figures provided by the Crown as to the purity of the drug seized and submitted that the estimated street value in the Agreed Facts was an extrapolation from the weight of the drug. It was submitted that an expert’s opinion, included as part of the agreed facts, was that it could not be concluded whether the drugs were manufactured at the respondent’s property, that most of the drugs seized were not in a saleable form and only 300 grams could be described as a saleable product.

49. Mr Trevallion also submitted that there was no evidence that Mr Walker had the capacity to purchase this product for on-sale, and there was also no evidence that he had made large profits from the supply of the prohibited drugs. He submitted that it would be rare for an individual who possessed a large commercial quantity of drugs to sell this quantity at a street level.

50. With respect to Mr Walker’s role in the enterprise, Mr Trevallion conceded that his role was an essential one, but he submitted that the respondent was a novice compared to his co-accused Jones and Lapraik. He submitted that despite the sentencing judge’s finding that Mr Walker had an expectation of future production, the agreed facts demonstrate that in conversations between the co-accused, that Mr Walker was in fact reluctant and not committed to future operations. Mr Trevallion argued that there could be no finding beyond reasonable doubt that the respondent was to be a part of a future manufacture, and that the finding that the respondent sat below his co-accused, i.e., was not an equal, was open to her Honour. Mr Trevallion pointed to the fact that it was his co-accused who sought advice on ANOM about the manufacturing process and in particular, the recipe.

Consideration

51. In Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 (Markarian), McHugh J confirmed the task required of a sentencing judge at [51]:

“[T]he judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case.”

52. The task of assessing the objective seriousness of an offence is quintessentially one for the sentencing judge and is an essential element of the sentencing process: see for example Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118; R v Campbell [2014] NSWCCA 102; Yeung v R [2018] NSWCCA 52 (Yeung); Kochai v R [2023] NSWCCA 116.

53. This Court’s review of a sentencing judge’s findings of objective seriousness must be in accordance with the principles stated in House, as there are a range of correct findings. In Mulato v R [2006] NSWCCA 282 at [37], Spigelman CJ said:

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

54. While it is an essential feature of the sentencing judge’s task to identify the objective seriousness of an offence, it is also clear that a sentencing judge is not required to place the objective seriousness on a range or scale. In Eaton, Hamill J said at [57] and [59]:

“[57] Second, while it has become increasingly common for judges to do so, exposing the reasons for the ultimate sentencing outcome does not generally require a sentencing judge to place the objective seriousness of the offence on some putative scale from “low range”, through “mid-range”, to “high range”. In cases involving a standard non-parole period, it will usually be desirable to do because it is only if the case falls in (or above) the so called “middle range of objective seriousness” that the standard non-parole period applies. In FL v R [2020] NSWCCA 114, Wilson J said:

“58. There is no question that a sentencing court is obliged to make an assessment of the objective gravity of each offence for which an offender is to be sentenced. That process is a central part of the sentencing exercise, necessary to ensure that an adequate sentence is imposed upon an offender in compliance with s 3A(a) of the Crimes Sentencing Procedure Act 1999 (NSW); and to observe the principle of proportionality, stated in R v Dodd (1991) 57 A Crim R 349 at 354 in this way:

‘… there ought to be a reasonable proportionality between a sentence and the circumstances of the crime, and we consider that it is always important in seeking to determine the sentence appropriate to a particular crime to have regard to the gravity of the offence viewed objectively, for without this assessment the other factors requiring consideration in order to arrive at the proper sentence to be imposed cannot properly be given their place. Each crime, as Veen (No 2) (1988) 164 CLR 465 at 472; 33 A Crim R 230 at 234 stresses, has its own objective gravity meriting at the most a sentence proportionate to that gravity …’.

59. What is not required is for the sentencing court to express that assessment by reference to a formula, or a percentage, or by classifying the objective seriousness of an offence. In Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 the High Court observed at [29] that:

‘A central purpose of Div 1A is to require sentencing judges to state fully the reasons for arriving at the sentence imposed. The reference in s 54B(4) to ‘mak[ing] a record of its reasons for increasing or reducing the standard nonparole period’ is not to be understood as suggesting either the need to attribute particular mathematical values to matters regarded as significant to the formation of a sentence that differs from the standard non-parole period, or the need to classify the objective seriousness of the offending. It does require the judge to identify fully the facts, matters and circumstances which the judge concludes bear upon the judgment that is reached about the appropriate sentence to be imposed.’

60. What is important is to fully identify the ‘facts, matters and circumstances’ which bear on the assessment of the gravity of the crimes. It is not necessary to express the conclusion reached by reference to a position within a range, or by resorting to mathematical terminology: PK v R [2012] NSWCCA 263 at [24]–[27]; RC v R; R v RC [2020] NSWCCA 76 at [243]–[244].”

…

[59] Third, the utility of such putative scales of objective seriousness in illuminating the reasons for a particular sentencing outcome has been questioned. For example, in Cargnello v Director of Public Prosecutions (Cth) (2012) 266 FLR 464; [2012] NSWCCA 162 Basten JA said at [88]:

“This kind of characterisation, which was no doubt encouraged by the introduction into State law of s 54A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) with respect to offences the subject of standard non-parole periods, is often unhelpful. That is because it is rarely explained what is meant by the 'middle of the range'. Clearly a range is not a point on a scale, but it could cover anything from 25% to 75% of a most serious case, or it could be far more narrowly defined. Unless it is narrowly defined, it is unlikely to provide useful guidance for the sentencing judge, let alone for those reading the judgment.”

See also Yeung at [24] per McCallum J, as her Honour then was, citing her previous observations in Lawson v R [2012] NSWCCA 56 at [19].

55. When a sentencing judge does identify where on a hypothetical scale the objective seriousness of an offence lies after identifying factors relevant to the assessment of objective gravity, in my view it adds little, if anything, to the exercise of instinctively synthesising all relevant factors in the determination of an appropriate sentence, except perhaps by explaining an egregious error in the assessment. In DH v R [2022] NSWCCA 200 (DH v R), Yehia J said at [58] – [60]:

“[58] Some degree of confusion remains as to whether a sentencing judge is obliged to indicate “where on the scale of seriousness each offence falls” when dealing with an offence which carries a standard non-parole period. The applicant submitted that the sentencing judge was obliged to utilise the concept of mid- range offending [emphasis added] and assess where on the scale of seriousness the offending for the offences which carried a standard non-parole period lay.

[59] To be clear, there is no such obligation or requirement. In Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 (Muldrock) at [29] the High Court said that the standard non-parole period legislation:

“is not to be understood as suggesting either the need to attribute particular mathematical values to matters regarded as significant to the formulation of a sentence that differs from the standard non-parole period, or the need to classify the objective seriousness of the offending. It does require the judge to identify fully the facts, matters and circumstances which the judge concludes bear upon the judgment that is reached about the appropriate sentence to be imposed”.

[60] The assessment of objective seriousness of an offence is an essential element of the process of instinctive synthesis, a purpose of which is the imposition of a proportionate sentence: Zreika v R [2012] NSWCCA 44 at [46]; R v Dodd (1991) 57 A Crim R 349 at 354; Khoury v R [2011] NSWCCA 118. A sentencing judge is required to identify all the factors relevant to the objective seriousness of an offence but is not required to nominate a point on the scale of seriousness by reference to a notional mid-point. The use of descriptors such as “low end of the middle of the range”, “upper end of the middle of the range” or, “just below or above the midpoint” add nothing of value to the process of instinctive synthesis and the determination of a proportionate sentence.” (endnote omitted) [emphasis in original]

56. Furthermore, when the parties are not far apart on the issue of objective seriousness, scrutinising a sentencing judge’s placement of an offence on a hypothetical range is usually unhelpful in determining error. In R v Sharrouf [2023] NSWCCA 137, Dhanji J said at [274]:

“[274]…In that regard, I would simply note my view that while the findings of objective gravity for counts 9, 16, and 26 were certainly lenient, having regard to the nature of the review and the inherent imprecision with respect to terms such as “below mid-range” and “at least towards the middle of the range”, it is not immediately clear to me that the sentencing judge was in error: see Lee v R [2023] NSWCCA 70 at [37]; JG v R [2023] NSWCCA 33 at [94]-[103]; Yeung v R [2018] NSWCCA 52 at [24]. In this respect, again noting the imprecision in the nomenclature and corresponding bandwidth usually engaged around identification of objective gravity, I would not necessarily accept that a finding that an offence is “at least towards the middle of the range” is inconsistent with it being “below mid-range”. I am additionally mindful of the sentencing judge’s determination having been made in an adversarial context in which he recorded the respondent had submitted “in a global way” that the offending conduct fell below the mid-range of objective seriousness but that “neither party descended to assistance by way of submissions concerning the objective gravity of individual offences”. Before leaving this ground I would also note, lest silence on the issue suggest otherwise, the sentencing judge was not obliged to assess the objective seriousness of the offences by reference to their relationship with a notional mid-point: see DH v R [2022] NSWCCA 200 at [58]-[60]; Kochai v R [2023] NSWCCA 116 at [47]-[51].”

57. As the authorities make clear, a sentencing judge must take into account all relevant factors, weigh their significance and come to a value judgment about an appropriate and proportionate sentence. Assessing objective seriousness is an essential element of such an exercise. It is not necessary for a sentencing judge to position the offending on a hypothetical range. Here her Honour did nominate where, in her opinion, the objective seriousness fell on a hypothetical range for both sequences 1 and 7 after being invited to do so by counsel. Her Honour appropriately engaged with submissions made by the Crown and the respondent, and in my opinion it was open to her Honour to make the findings about objective seriousness that she did: see DH v R at [62].

58. What is important is how a sentencing judge considers the relevant factors in making an assessment of objective seriousness. In this case, during a busy circuit list, her Honour clearly articulated the facts, weighed the competing submissions of the parties and made evaluative assessments of objective seriousness.

59. As to the role of the offender and her Honour’s alleged mischaracterisation of him as “not a principal”, the facts demonstrate that the respondent was not expert in the manufacturing process, as he sought the assistance of Jones and Lapraik who in turn sought advice from an international associate on the ANOM chat group about the correct combination and quantities of chemicals to be used. The text messages between Jones and Lapraik in exhibit “A” demonstrate that they doubted the respondent’s commitment to the enterprise, that they gave him directions and that they stood to profit most. In my opinion, to the extent that is ever possible to describe an offender’s role in a drug manufacturing enterprise, her Honour’s description of the offender as essentially that of a cook who provided his property for the manufacture was apt and accords with the Agreed Facts. I observe that any shorthand description, be it principal or cook, ought not to obscure the assessment of what the offender in fact did: The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [19]. The Crown does not complain that her Honour failed to have regard to the respondent’s actions and involvement in the enterprise as set out in the Agreed Facts.

60. Before her Honour and in this Court, the differences with respect to the findings of objective seriousness between the parties were marginal. It may even be said that their positions were materially identical and depended only on whether or not they were looking from the vantage point of the Crown or the respondent, noting the comments in R v Pearce [2020] NSWCCA 61 at [56] and [58], where the Court (Leeming JA, Rothman and N Adams J) said:

“[56] It was necessary that his Honour identify the objective seriousness, and it was an important element of the sentencing process, but it is to be borne in mind… that the issue as to objective sentence was a very narrow one, between the Crown’s submission that it was “in the mid-range of seriousness”, and Mr Pearce’s submission that it was “not yet at the mid-range”.

…

[58] Further, the issue arising from the parties’ submissions is poorly defined. How wide was the band of offending which comprised “mid-range”? Was it, say, 10% of all offending, or 50% of all offending, or something in between? It is perfectly possible that the offender had a narrow concept of what constituted “mid-range”, the Crown had a broader concept, and the judge had a concept which was intermediate between the two. Further, plainly enough the offender and the sentencing judge delineated an area of offending which was above “low range” yet below “mid-range”; how much offending fell within that twilight zone is utterly unclear, and was not made any clearer on appeal.”

61. It follows that in my opinion, the findings made by her Honour as to objective seriousness were open to her and no error is established. I would dismiss ground 1.

Ground 2 – manifest inadequacy

62. The Crown submitted that the aggregate sentence imposed by her Honour was manifestly inadequate, that it was unreasonable and plainly unjust and does not reflect the total criminality involved in the respondent’s conduct.

Parties’ submissions

63. The Crown’s submissions in many respects reflected those made with respect to ground 1, as both grounds placed significant reliance on the objective seriousness of the offending. The Crown submitted that the indicative sentences for sequences 1, 7 and 8 are themselves manifestly inadequate, and that the aggregate sentence, by virtue of those indicative sentences and because of undue notional concurrence, is manifestly inadequate. Further, the Crown submitted that the aggregate sentence fails to reflect the totality of the respondent’s criminality and fails to give effect to the sentencing purposes of general deterrence and punishment.

64. With respect to sequence 1, the Crown submitted that it was more serious than the facts in Bell v R [2019] NSWCCA 271 but less so than that in Martin v R; Martin v R [2021] NSWCCA 316. The former case was a parity appeal and turns on its own facts. There the appellant succeeded and was resentenced to a head sentence of 13 years and 4 months with a non-parole period of 9 years. The latter case is significantly more serious than the present case and concerned methylamphetamine in powder or crystal form to the value of between $122.5 and $245 million. It is not an appropriate comparator. The Crown also noted the cases relied upon in its submissions before her Honour: Greentree v R [2018] NSWCCA 227 (Greentree), which it was submitted was of less criminality but greater penalty than here, and Mori v R [2021] NSWCCA 32 (Mori) and R v James [2017] NSWCCA 287 (James), both of which revealed criminality closer to that of the respondent but where sterner penalties were imposed. A close examination of those cases demonstrates the difficulties associated with relying on cases said to be comparable. Greentree is in most respects the most similar to the current case. In that case, allowing for a 30% discount, the Court resentenced the appellant to an aggregate sentence of 8 years with a non-parole period of 5 years and 6 months. In Mori, where the appeal was dismissed, the sentencing judge applied three different discounts of 11%, 20% and 25%, and imposed a sentence of 12 years 6 months and a non-parole period of 8 years 6 months. In James, which involved significantly more serious firearms offences and five Form 1 matters, the Court allowed a Crown appeal and imposed an aggregate sentence of 12 years and 3 months with a non-parole period of 8 years. Each of these cases turned on their own facts and on distinct findings of objective seriousness.

63. In Hili v at [54], French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said:

“In Director of Public Prosecutions (Cth) v De La Rosa, Simpson J accurately identified the proper use of information about sentences that have been passed in other cases.  As her Honour pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed.  That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits.  As her Honour said:  "Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts."  But the range of sentences that have been imposed in the past does not fix "the boundaries within which future judges must, or even ought, to sentence".  Past sentences "are no more than historical statements of what has happened in the past.  They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence" (emphasis added).  When considering past sentences, "it is only by examination of the whole of the circumstances that have given rise to the sentence that 'unifying principles' may be discerned".”

66. The Crown appropriately conceded that comparable cases can never be determinative, but he submitted that they demonstrate that the starting point for sequence 1 is manifestly inadequate. In each of the cases relied upon by the Crown, the courts were dealing with aggregate sentences. In my opinion, it is not possible to extrapolate any sentencing principle from the comparable cases with respect to the indicative sentence for sequence 1.

67. As to sequence 7, the Crown repeated its submissions with respect to objective seriousness, and submitted that the criminality revealed by this offending should have been reflected to a greater extent in the aggregate sentence.

68. With respect to sequence 8, Mr Balodis did not cavil with her Honour’s finding that it was “made more serious because it is connected to the manufacture offence. [12] ” However, he submitted that while her Honour found the objective seriousness of sequence 8 was mid-range, the indicative sentence had a starting point equivalent to the standard non-parole period and a non-parole period well below the standard non-parole period which he said demonstrated error.

    12. ROS p 11.

69. As to accumulation and concurrency, the Crown submitted that ascertaining the extent to which the criminality of a supply offence can be comprehended by the criminality of a manufacture offence will turn on the facts of the case.

70. The Crown submitted that the substantial concurrency between the manufacture and supply offence was inappropriate given the distinct criminality between the two. He pointed to the difference between the drugs the subject of the manufacture and supply offences. He submitted that the criminality of sequences 8 and 9 were deserving of greater notional accumulation. Taking into account all these matters, in the Crown’s submission the aggregate sentence does not reflect the totality of the offending.

71. Mr Trevallion submitted that the aggregate sentence is not manifestly inadequate. He pointed to the following factors: her Honour’s findings of objective seriousness, her finding that the respondent’s financial motivation was due to impecuniousness, the respondent’s early plea of guilty, the finding of genuine remorse, the absence of a criminal history that entitled the respondent to leniency, the finding of reasonable prospects of rehabilitation and the respondent’s personal circumstances.

72. Further, Mr Trevallion submitted that whilst regard may be had to the indicative sentences, the question is whether or not the aggregate sentence is manifestly inadequate. In his submission, whilst it is not impermissible to undertake an analysis of the indicative sentences as well as the notional accumulation, in some ways it is contrary to the policy for aggregate sentences, being the abolition of individual commencement dates, and the Court should avoid overly scrutinising an aggregate sentence’s underlying features. He submitted that each of the indicative sentences were terms that were reasonably open to her Honour.

73. Of the comparative cases pointed to the by the Crown, Mr Trevallion submitted that they might demonstrate that this sentence was lenient, but they do not demonstrate manifest inadequacy.

Consideration

74. As has been pointed out by the High Court on several occasions, there is no single correct sentence. Rather, a sentencing judge is required to instinctively synthesise, which is “the product of human judgment, based on all the facts of the case, the judge's experience, the data derived from comparable sentences and the guidelines and principles authoritatively laid down in statutes and authoritative judgments”, and means that there are a range of sentences which are correct: see Markarian per McHugh J at 52.

75. In Hili at [59], French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said at [59]:

“As was said in Dinsdale v The Queen, "[m]anifest inadequacy of sentence, like manifest excess, is a conclusion".  And, as the plurality pointed out in Wong, appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate "is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases".  Rather, as the plurality went on to say in Wong, "[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons".  But, by its very nature, that is a conclusion that does not admit of lengthy exposition.  And, in the present matters, the Court of Criminal Appeal, having described the circumstances of the offending and the personal circumstances of the offenders, said that "the sentence imposed in these matters is so far outside the range of sentences available that there must have been error"." [footnotes omitted]

76. In an appeal against an aggregate sentence, the question is “whether the aggregate sentence reflects the total criminality involved”: Noonan v R [2021] NSWCCA 35 (Noonan) at [41] per Beech-Jones J, as his Honour then was, referring to Aryal v R [2021] NSWCCA 2 at [50] per R A Hulme J. The indicative sentences are not themselves open to appeal but may reveal the manifest excess or inadequacy of the aggregate sentence: see Noonan per Beech-Jones J; JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297 per R A Hulme J (Hoeben CJ at CL and Adamson J agreeing).

77. In Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81 at [52] – [54]: Beech-Jones CJ at CL, Garling and Yehia JJ agreeing, said

“[52] A contention that a sentence is manifestly inadequate is in effect a complaint that the sentence is “unreasonable or plainly unjust” within the meaning of the so-called fifth limb of the statement in House at 505. A finding to that effect is a “conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate” (Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]). The degree or extent of the elaboration “that is appropriate or possible will vary from case to case” (ibid).

[53] As noted, this is an appeal from an aggregate sentence. In Lee v R [2020] NSWCCA 244 at [32], I (with Payne JA and Fagan J agreeing) stated the following in relation to appellate review of an aggregate sentence on the ground of manifest excess:

“… with an aggregate sentence, although the indicative sentences specified in accordance with s 53A(2) of the Sentencing Act are not themselves amenable to appeal, they can be a guide to whether error is established in relation to the aggregate sentence (JM v R [2014] NSWCCA 297 at [40] per RA Hulme J with whom Hoeben CJ at CJ and Adamson J agreed and cases cited thereat; ‘JM’). Even if the indicative sentences are considered excessive, that does not necessarily mean that the aggregate sentence is excessive (PD v R [2012] NSWCCA 242 at [44], [82]; BJS v R [2013] NSWCCA 123 at [252]-[254]). The corollary of that proposition is that, even if the indicative sentences are not excessive in their own right, then that does not preclude a conclusion that the aggregate sentence is excessive. In that regard, the principles concerning cumulation, concurrency and totality are still applicable to the sentencing exercise when an aggregate sentence is imposed (Beale v R [2015] NSWCCA 120 at [73]; ‘Beale’). The ‘potentials for accumulation’ of the various notional sentences can be examined to determine whether the ‘aggregate sentence represents a sound exercise of sentencing discretion’ (R v Brown [2012] NSWCCA 199 at [35] per Grove AJ; Beale at [73]), although the absence of any requirement to specify beginning and end dates for each notional sentence may make it more difficult to demonstrate a relevant error in applying those principles (Beale id; Martin v R [2014] NSWCCA 124 at [37]). The ‘principle’, or even ultimate, ‘focus of determination of a ground alleging manifest inadequacy or excess will be whether the aggregate sentence reflects the totality of the criminality involved’ (JM at [40]).”

[54] With appropriate modification, these principles are equally applicable to a complaint of manifest inadequacy. These principles allow scope for argument that manifest excess or manifest inadequacy in relation to an aggregate sentence can be addressed by considering the individual indicative sentences (within the context of considering whether overall the aggregate sentence is manifestly inadequate). It follows from the above discussions that comparisons with other cases have utility in this respect. Nevertheless, the ultimate inquiry is the necessity to consider “whether the aggregate sentencing reflects the total criminality involved” (see Aryal v R [2021] NSWCCA 2 at [50], quoting JM v The Queen (2014) 246 A Crim R 528; [2014] NSWCCA 297 at [40]; “JM”).” [emphasis added]

78. The issue is therefore whether or not her Honour’s sentence was sufficient to reflect the totality of the respondent’s criminal activity despite what leniency his subjective case may have attracted. Whilst it is permissible to look at the indicative sentences and accumulation and concurrency, it is only within the context of determining whether or not the sentence was manifestly inadequate.

79. I am not satisfied that that the indicative sentences were such that they point to an error in the aggregate sentence. The same can be said for the degree of accumulation. Questions of accumulation and concurrency are matters which fall within the discretion of a sentencing judge: R v Hammoud (2000) 118 A Crim R 66; [2000] NSWCCA 540 at [7] per Simpson J.

80. Here, although the aggregate sentence reveals a considerable degree of concurrency, it must be seen through the prism of totality. That required her Honour to impose an aggregate sentence that was just and appropriate to the totality of the offending, taking into account all factors. I am satisfied that her Honour did so.

81. The Crown made a submission that the respondent’s subjective case was “unremarkable”, and that “condign” punishment was necessary. I wish to make two comments about that submission. First, in my opinion the respondent’s subjective case was not unremarkable. On the contrary, the respondent pleaded guilty at an early opportunity and he showed genuine remorse, he has reasonable prospects of rehabilitation and he was entitled to some leniency on account of his insignificant criminal history. These findings are not sought to be disturbed on appeal. Further, there was evidence in Mr Knight’s report before her Honour that the respondent’s wife was significantly disabled, that he had lost his employment due to the pandemic and that he likely had a mild intellectual disability. Mr Knight’s report was admitted into evidence, and he was not required for cross-examination. He was a mental health professional with clinical experience in taking a psychosocial history and assessing its significance, and his opinion was entitled to weight in the sentence proceedings: see Lloyd v R [2022] NSWCCA 18.

82. Second, the use of the word “condign” appears to have been used synonymously with “stern”. That is incorrect. Synonyms for “condign” in the sentencing context are “appropriate” or “fitting”. That must be so, as her Honour was bound to consider all the purposes of sentencing in s 3A of the Sentencing Act in arriving at a just and proportionate sentence. The facts and circumstances of the offending and this respondent highlight how the various purposes of sentencing pull in competing directions. As the High Court said of s 3A in Muldrock at [20]:

“The purposes there stated (in s3A) are the familiar, overlapping and, at times, conflicting, purposes of criminal punishment under the common law (Veen v The Queen (No 2) at [476–477]). There is no attempt to rank them in order of priority and nothing in the Sentencing Act to indicate that the court is to depart from the principles explained in Veen v The Queen (No 2) [at 476] in applying them.”

83. In my view, her Honour properly considered both the objective seriousness of all the offending and the respondent’s subjective case. Her Honour then synthesised all relevant matters before arriving at the sentence she imposed, as she was required to do. It was conceded by Mr Trevallion that the sentence was lenient. I agree. However in my opinion, it is not unduly lenient and is within the range of appropriate sentences. It is neither unreasonable nor unjust within the meaning of the fifth limb of the statement in House and is not “an affront to the administration of justice which risks undermining public confidence in the criminal justice system”: Green v The Queen; Quinn v The Queen (2011) 244 CLR 262; [2011] HCA 48 at 42 per French CJ, Crennan and Kiefel JJ.

84. It follows that in my view the sentence is not manifestly inadequate. I would dismiss ground 2.

Conclusion

85. I propose the following orders:-

1. Leave is granted for the applicant to rely on an additional ground of appeal.

2. The appeal is dismissed.

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Endnotes

Decision last updated: 01 September 2023