R v Wong

[2018] NSWCCA 20

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	R v Wong [2018] NSWCCA 20
Hearing dates:	7 February 2018
Date of orders:	02 March 2018
Decision date:	02 March 2018
Before:	Beazley P at [1] Garling J at [2] Hidden AJ at [98]
Decision:	(1)   Appeal upheld. (2)   Quash the sentence imposed by Delaney A‑DCJ on 11 September 2017. (3)   In lieu, impose upon the respondent an aggregate sentence of 4 years non-parole with a balance of term of 2 years commencing from 8 August 2016. The total sentence to expire on 7 August 2022 with a non-parole period expiring on 7 August 2020.
Catchwords:	CRIME – Crown appeal against sentence – supply prohibited drug – ongoing supply prohibited drug – Drug Misuse and Trafficking Act 1985 ss 25(1) and 25A – knowingly direct criminal activities of a criminal group – Crimes Act 1900 s 93T(4A) – whether aggregate sentence manifestly inadequate – whether sentencing Judge erred in failing to give adequate weight to general deterrence – whether sentence reflected additional criminality of offence on Form 1 – whether sentencing Judge erred in failing to appropriately accumulate multiple offences – whether sentencing Judge erred in extent of statutory variation of head sentence to non-parole period ratio – appeal allowed
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 Drug Misuse and Trafficking Act 1985
Cases Cited:	Brown v R [2010] NSWCCA 73 Bugmy v The Queen [2013] HCA; (2013) 249 CLR 571 Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462 Griffiths v The Queen [1977] HCA 44; (1977) 137 CLR 293 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 Nguyen v The Queen [2016] HCA 17; (2016) 256 CLR 656 Parente v R [2017] NSWCCA 284 PD v R [2012] NSWCCA 242 R v AB [2017] NSWCCA R v Brown [2012] NSWCCA 199 R v Burns [2007] NSWCCA 228 R v Cahill [2015] NSWCCA 53 R v GWM [2012] NSWCCA 240 R v Pickett [2010] NSWCCA 273 R v Rae [2013] NSWCCA 9 R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704; 126 A Crim R 525 Way v R [2004] NSWCCA 131; (2004) 60 NSWLR 168
Texts Cited:	Not Applicable
Category:	Principal judgment
Parties:	Crown Kevin Yeh Wong (Respondent)
Representation:	Counsel: N Adams (Crown) H Dhanji SC (Respondent)   Solicitors: Solicitor for Public Prosecutions (Crown) Benjamin & Leonardo Solicitors (Respondent)
File Number(s):	2016/238753
Publication restriction:	Not Applicable
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 11 September 2017 Before: Delaney A-DCJ File Number(s): 2016/238735

Judgment

1. BEAZLEY P: I agree with Garling J’s reasons and his Honour’s proposed orders.

2. GARLING J: This is a Crown appeal pursuant to s 5D(1) of the Criminal Appeal Act 1912 against an aggregate sentence imposed in the District Court by Acting Judge Delaney on 11 September 2017.

3. The respondent, Kevin Yeh Wong, pleaded in the Local Court to five offences contrary to the Drug Misuse and Trafficking Act 1985 (the “DMT Act”).

4. The following table outlines the offences, the applicable maximum penalties, and the sentences indicated (after allowing for a 25% discount for the guilty plea) by his Honour:

Charge No.	Nature of the Offence	Maximum Penalty	Indicative Sentence
1	Supply prohibited drug: s 25(1) DMT Act: 28 April 2016 – 27.97g methylamphetamine	15 years imprisonment	9 months
2	Supply prohibited drug: s 25(1) DMT Act: 8 August 2016 – 55.8g methylamphetamine	15 years imprisonment	12 months
3	Supply prohibited drug: s 25(1) DMT Act: 8 August 2016 – 167.1g cocaine	15 years imprisonment	12 months
4	Ongoing supply of a prohibited drug: s 25A DMT Act: 26 May 2016 – 21 June 2016 – 5 occasions of supply	20 years imprisonment	22 months
5	Ongoing supply of a prohibited drug: s 25A DMT Act: 29 June 2016 – 25 July 2016 – 5 occasions of supply	20 years imprisonment	24 months

5. When being sentenced for the fifth charge, the respondent asked the Court to take into account on offence on a Form 1, namely, knowingly directing the activities of a criminal group contrary to s 93T(4A) of the Crimes Act 1900 (“the Form 1 offence”).

6. With respect to all of the offences, the respondent was sentenced to an aggregate term of imprisonment of 4 years and 6 months commencing on 8 August 2016 and expiring on 7 February 2021, with a total non-parole period of 2 years and 5 months expiring on 7 January 2019.

7. On 25 October 2017, the Acting Deputy Director of Public Prosecutions filed a Notice of Appeal against the sentence imposed on the ground that it was manifestly inadequate. This Notice was served on the respondent on 27 October 2017.

8. The Crown, in its appeal, seeks to challenge the aggregate sentence including the non-parole period imposed by Delaney A-DCJ and have it set aside, and the respondent re-sentenced. The Crown submits that the sentence is “plainly unjust”, being so far below the range of sentences that could justly be imposed by the sentencing Judge that it is likely to undermine public confidence in the proper administration of criminal justice.

Facts

9. A lengthy statement of Agreed Facts was tendered to the sentencing Judge, setting out the details of the offences, which occurred between 28 April 2016 and 8 August 2016. This statement can be summarised as follows.

10. The respondent came to the attention of the police in January 2016 in their undercover operations and telephone monitoring of another individual, David Zlatanovic, in an investigation relating to the supply of methylamphetamine. Similar covert investigative measures were employed to monitor the respondent, who was believed to be the “up-line supplier” to Mr Zlatanovic.

First Charge: Supply of prohibited drug

11. On 28 April 2016 an undercover police officer (“UCO”) attended premises at Port Kembla where he met Mr Zlatanovic. Whilst inside the premises, the UCO arranged the supply of an ounce (or 28 grams approximately) of methylamphetamine with Mr Zlatanovic. The UCO was informed by Mr Zlatanovic that he needed to obtain the drugs and asked to return later. When the UCO returned to the premises, the respondent attended and was invited inside by Mr Zlatanovic. The respondent handed the drugs to the UCO in exchange for $5,000. The drug was later analysed and determined to be 27.97 grams of methylamphetamine with a purity of 81%. The respondent and the UCO then made arrangements for the further supply of one ounce of methylamphetamine for $5,000.

Fourth Charge: Ongoing supply of prohibited drug

12. This charge relates to five occasions of supply by the respondent to the UCO of methylamphetamine in the period between 26 May 2016 and 21 June 2016. On each of these occasions, the respondent met with the UCO, in accordance with previous arrangements, in public car parks in various locations where the respondent handed over the drugs and the UCO handed over cash.

13. The detail of these five occasions are set out below:

Date	Location	Drug and Quantity	Cash Amount
26 May 2016	Haywards Bay	27.96g methylamphetamine (81% purity)	$5,000
2 June 2016	Dapto	55.2g methylamphetamine (78% purity)	$8,500
8 June 2016	Warilla	55.75g methylamphetamine (77% purity)	$8,500
15 June 2016	Willoughby	55.7g methylamphetamine (75.5% purity)	$8,500
21 June 2016	Warilla	55.8g methylamphetamine (78% purity)	$8,500

Fifth Charge: Ongoing supply of prohibited drug

14. This charge related to four occasions of supply by the respondent to the UCO of methylamphetamine. On three of these occasions, the respondent also supplied cocaine. On one occasion, only cocaine was supplied. The occasions commenced on 29 June 2016 and concluded on 25 July 2016. On two occasions the respondent attended a house in Warilla, on the other three occasions, the drug supply transaction occurred in a public car park.

15. The details of the five occasions are as follows:

Date	Location	Drug and Quantity	Cash Amount
29 June 2016	Warilla	55.3g methylamphetamine (78% purity) 55.8 g cocaine (50.5% purity)	$8,500 $14,000
4 July 2016	Heathcote	55.6g methylamphetamine (76.5% purity)	$8,500
8 July 2016	Heathcote	56g cocaine (52% purity)	$14,000
20 July 2016	Warilla	56g methylamphetamine (77.5% purity) 55.8g cocaine (63% purity)	$8,500 $14,000
25 July 2016	Heathcote	55.78 g methylamphetamine (82.5% purity) 55.84g cocaine (60% purity)	$8,500 $14,000

Second and Third Charge: Supply prohibited drug

16. Arrangements were made between the UCO and the respondent for the supply of six ounces of cocaine and two ounces of methylamphetamine. On 8 August 2016 in Heathcote the respondent met the UCO. A co-offender Mr Kevin Nguyen was there. The UCO handed the respondent $50,000 whilst the respondent was sitting in his car. Police then arrested the respondent and Mr Nguyen. The drugs supplied were 55.8 grams of methylamphetamine with a purity of 78.5% and 167.1 grams of cocaine with a purity of 44.5%.

Form 1 Offence

17. The Form 1 offence of knowingly direct the activities of a criminal group arose because the police had collected evidence during the undercover investigation that demonstrated that the respondent was directing an ongoing criminal group consisting of Mr Zlatanovic and Mr Novina. The respondent would supply Mr Zlatanovic and Mr Novina with drugs, and they would then supply the drug to others and return a share of the resultant profits to the respondent. The sentencing Judge found that the evidence supported the proposition that the objective of the group was to obtain material financial benefit from the supply of drugs.

Remarks on Sentence

18. The proceedings on sentence took place on 11 August 2017, and his Honour sentenced the respondent on 11 September 2017.

19. The sentencing Judge commenced his Remarks on Sentence by outlining the life that the respondent had lived before his participation in the offending behaviour began. His Honour detailed some of the subjective features of the respondent, including his personal history and upbringing, and noted that the respondent had no criminal history.

20. The sentencing Judge also noted that there was no dispute that for each of the offences the respondent was entitled to a discount of 25% for his early guilty pleas.

21. The sentencing Judge then referred to evidence given by the respondent, his sister and girlfriend, as well as the exhibits tendered by the defence, which included the psychological report of Mr Sam Borenstein. His Honour noted that the respondent had been brought up in a family situation where he was cared for, nurtured and provided with educational opportunities. By reference to Mr Borenstein’s report, his Honour found that the respondent’s home life was disrupted by problems with his father, who had an inveterate gambling habit. His Honour ultimately found that he was satisfied that the respondent’s issues with his father had elicited distress in the family at or about the time immediately before the respondent committed the offences.

22. The sentencing Judge also noted the discussion in Mr Borenstein’s report about the respondent’s drug dependencies. The respondent had claimed to Mr Borenstein that he was a recreational user of cocaine and, occasionally, Ice. He said that leading up to the offence he was abusing cocaine on a regular basis, upwards of two grams a day. He claimed that his offending behaviour was motivated by his desire to financially support his mother and protect his father, as well as his desire to support his personal cocaine habit, which he used primarily as a form of self‑medication in combination with alcohol and occasionally Xanax. His Honour accepted that the respondent did indeed have some drug dependency.

23. After reviewing the facts of offending, the sentencing Judge made the finding that the supply offences were below the mid-range of objective criminality. His Honour found that the ongoing supply offences, “…having regard to the arrangement circumstances and time between the original supplies and otherwise”, were just below the mid-range of objective criminality.

24. The sentencing Judge noted that the respondent had given evidence orally and in an affidavit expressing that he was truly sorry for the crimes he had committed, that he was now free of drugs, that he realised the poor decisions he had made that had led him to where he was, and that coming to jail and seeing the detrimental effects that drugs had on people had made him further regret his actions.

25. His Honour noted that the respondent was cross-examined about his expressions of remorse and contrition. Whilst his Honour initially had reservations about the respondent’s evidence, he indicated that he was prepared to accept it and found the respondent to be genuinely remorseful for his actions. His Honour found that he was unlikely to re-offend. His Honour noted the support from the respondent's family, and his intelligence and capacity to obtain and maintain employment.

26. The sentencing Judge then summarised the oral submissions from the Crown and senior counsel for the respondent. The Crown had highlighted to his Honour that the respondent had ready access to several types of drugs at short notice. The respondent had supplied these drugs without question to persons he did not know in circumstances where he apparently did not and could not have known the origin and contents of the drugs. His Honour accepted these submissions of the Crown, and noted the organisation and sophistication of the respondent’s supply operations. It was the Crown’s submission that this was a very serious example of drug supply requiring condign punishment, having regard to the effects of the supply of those drugs on the community.

27. Senior counsel had also submitted that the respondent's role was at least equal to Mr Zlatanovic who arranged the supply of the prohibited drug and appears to have been the point of liaison for the UCO. However, the sentencing Judge did not consider that the respondent’s presence and direct involvement distinguished him from the case of a senior person. Whilst his Honour found that it was not possible to say that the respondent had been at the highest end or the lowest end of the hierarchy, he was clearly a person who was directly involved in the transaction with the UCO.

28. The sentencing Judge found special circumstances on the basis that this was the respondent's first time in custody, and that he would need rehabilitation in relation to his drug use, as well as vocational assistance.

29. The sentencing Judge pronounced indicative sentences for each offence and then determined the aggregate sentence to be imposed upon the respondent. The aggregate sentence imposed was imprisonment for 4 years and 6 months with a non-parole period of 2 years and 5 months.

The Respondent’s Subjective Case

30. A substantial body of documentary material concerning the applicant’s background and personal circumstances was tendered in the sentence proceedings to which it is appropriate to refer. This material included Mr Borenstein’s report and statements of people with whom the respondent had regular contact in the earlier part of his life. The respondent also gave evidence before his Honour.

31. The respondent, who was 26 years old at the time of the offences, described the events of his life up to age 14 as “normal”. His mother and father emigrated from Taiwan and Vietnam, respectively. His mother works in a wholesale bakery.

32. The respondent’s life changed dramatically when the house they were living in burned down, and he moved with his mother and sister to Taiwan for a period of about six months.

33. Upon returning to Australia, the respondent attended high school and completed his Higher School Certificate. He had an unremarkable time at high school.

34. The gambling habits of the respondent’s father worsened until, when the respondent was 15 years old, his father was imprisoned for 4 years for importation of illicit substances. His father began to use Ice upon his release and the respondent said that he is now drug dependent.

35. After finishing high school, the respondent attended a business and accounting college, and later enrolled in an information technology course at TAFE. He obtained employment in IT, then in hospitality and ultimately attained sufficient qualifications to work part-time as a chef.

36. The respondent was able to involve himself in serious romantic relationships and live what appeared to be a normal life. Indeed, Mr Borenstein’s report stated that there was no suggestion of any cognitive impairment, psychiatric disorder or psychosis in the respondent. Assessments administered to the respondent in July 2017 revealed that the respondent has issues with anger management and experiences moderate to severe symptoms of stress, anxiety and depression.

Notice of Appeal

37. On 25 October 2017, the Acting Deputy Director of Public Prosecutions signed a Notice of Appeal which was filed the following day.

38. The Notice of Appeal nominated as the only ground of appeal that:

“… the sentence pronounced was manifestly inadequate.”

39. The Crown drew attention in its submissions to what it described as four errors in the Judge’s reasoning which assisted to establish its ground of appeal. The Crown submitted that these four particular errors caused his Honour to impose a manifestly inadequate sentence.

Crown Submissions on the Appeal

40. The Crown contended that both the aggregate head sentence and the aggregate non-parole period imposed on the respondent were lenient to the extent that they are "unreasonable or plainly unjust".

41. The Crown acknowledged that only the aggregate sentence can be the subject of appeal, and not the indicative sentences pronounced by his Honour. However, the Crown argued that "...erroneous approach in the indication of the sentence that would have been imposed for the offence may well reveal error in the aggregate sentence reached…'': R v Brown [2012] NSWCCA 199 at [17] per Grove AJ (with whom Macfarlan JA and McCallum J agreed); PD v R [2012] NSWCCA 242 at [44] per Beech-Jones J (with whom Basten JA and Hall J agreed); R v Rae [2013] NSWCCA 9 at [33] per Button J (with whom Macfarlan JA and Price J agreed).

42. The Crown contended that the indicative sentences specified by the sentencing Judge were, on their face, well outside the range of appropriate sentences for offending of this type, particularly in light of the legislative guideposts of the maximum penalties of 15 and 20 years imprisonment for the supply and ongoing supply offences respectively. Further, the Crown submitted that the indicative sentences failed to reflect the different criminality involved in the offending and failed to adequately reflect the importance of general deterrence in sentencing for drug offences.

43. The Crown submitted that the sentencing Judge’s assessment of the objective seriousness of the three counts of supply simpliciter as below mid-range and the two counts of ongoing supply as just below mid-range was not supported by clear reasoning and lacked a rational basis. The Crown submitted that his Honour, in the phrase "having regard to the arrangement circumstances and time between the original supplies and otherwise", was rather vague and failed to adequately express any sufficient reasons for the findings.

44. The Crown contended that a finding that all offending fell below mid-range could not be reconciled with the number of transactions involved in the offending, the quantity and high purity of the drugs supplied and the respondent’s key role in organising the transactions. It contended that when drugs of high purity are supplied, as in the respondent’s case, "cutting" of the drugs with other chemicals by dealers further down the distribution chain is readily facilitated. The Crown submitted that the facts of the offending, in all the circumstances, indicated that the respondent was close to the main source of supply, and that it could not be reasoned that the respondent was a mere courier or a low-level street dealer.

40. Put simply, the Crown submitted that his Honour, in setting the indicative sentences that he did, fell into error by failing to give effect to his own assessment of objective seriousness, leading to the imposition of a manifestly inadequate aggregate sentence.

41. The Crown drew attention to a failure by the sentencing Judge to give any, or adequate, weight to general deterrence. The Crown accepted that in his Remarks, the sentencing Judge noted the necessity of considering s 3A of the Crimes (Sentencing Procedure) Act 1999, and referred to “questions of general, and if appropriate, specific deterrence”. However, the Crown submitted that his Honour merely offered a “ritual incantation of sentencing principles in the broadest possible terms”. The Crown drew attention to the recent decision of a five‑judge bench in this Court of Parente v R [2017] NSWCCA 284 at [107]-[113] and submitted that Parente clarified the principles which should be applied by sentencing judges in drug supply cases.

42. Those considerations when sentencing for drug supply offences relevant here can be shortly stated:

1. that whilst all of the objectives of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act must be kept in mind, general and specific deterrence, and protection of the community, are of most direct relevance;

2. having regard to the concealed and covert nature of illicit drug supply which requires the dedication of significant public resources for detection and prosecution, a consistent message of deterrence by a sentencing Judge is necessary;

3. protection of the community is usually of significance because of the social impact of drug use, including it being an underlying cause of other criminal offending; and

4. careful attention must be paid by sentencing Judges to the maximum penalties for offences, and where fixed, to standard non-parole periods.

48. The Crown submitted that the sentences imposed by Delaney A-DCJ did not properly accord with the settled principles articulated in Parente.

49. The third error relied on by the Crown was that his Honour erred in failing to give effect to his stated intention of taking into account the Form 1 offence when imposing sentence for the fifth offence of ongoing supply. The Crown noted that the respondent’s offence fell within the subsection (4A) of s 93T of the Crimes Act, which carries a maximum term of 15 years imprisonment. The Crown argued that his Honour’s finding that “[i]t is not possible to say that [the respondent] was at the highest end or the lowest end of the hierarchy” cannot logically accord with the role of the respondent as admitted in the Form 1 offence.

50. The fourth error advanced by the Crown was a failure on the sentencing Judge’s part to provide for an appropriate degree of accumulation (albeit a notional one). In R v Cahill [2015] NSWCCA 53 at [111], Johnson J observed that:

"[t]he imposition of an aggregate sentence is not to be used to minimise the offending conduct, or obscure or obliterate the range of offending conduct or its totality”.

51. The Crown submitted that the aggregate sentence imposed by his Honour had the effect of obscuring the totality of the offending conduct. It noted that the offending involved a pattern of multiple offending committed over a period of about four months. In particular, the Crown drew attention to the fact that the indicative sentences nominated by sentencing Judge for the offences in the second and third charges were only three months longer than the first charge, despite the fact that they occurred after the two ongoing supply offences, and involved ten times the sum of money and eight times the quantity of the drugs supplied in the first charge.

52. Finally, the Crown submitted that there was an allegedly “erroneously lenient” variation of the statutory ratio between the head sentence and the non-parole period imposed, to one of 53%. His Honour found special circumstances on the basis that it was the respondent's first time in custody and that he would require rehabilitation in relation to his drug use upon release, as well as vocational assistance. The Crown pointed to the Remarks of Howie J (Macfarlan JA and Hislop J agreeing) in Brown v R [to note that a “first prison sentence” will “not normally be” a proper basis to find special circumstances. Further, while it was accepted by the Crown that a finding that a respondent would need a longer period of community supervision could be a sound reason for reducing the statutory ratio, it was submitted that this would rarely result in a reduction to the ratio of 53%. The Crown contended that his Honour had erred in giving undue and disproportionate weight to the respondent’s rehabilitation, rather than general deterrence, specific deterrence and other sentencing considerations.

53. Ultimately, the Crown submitted that this Court should not exercise its residual discretion to decline to intervene and re-sentence the respondent. The Crown noted that its submissions on appeal were the same as those presented before the learned sentencing Judge, that there was no significant delay in the lodgment of the Crown appeal, that the respondent’s non-parole period has not yet expired, and that no relevant no post-trial evidence exists that would bear upon the Court’s decision to decline to re-sentence the respondent.

Respondent’s Submissions

54. Counsel for the respondent submitted that the sentence imposed by Delaney A-DCJ, whilst lenient, was not manifestly inadequate; and in the alternative, that this Court would not in the circumstances of this case be persuaded that it should intervene and re-sentence the respondent.

55. The respondent noted that no direct challenges were made by the Crown to the sentencing Judge’s factual findings. It was submitted that in determining an appropriate sentence for the respondent, his Honour expressly noted his consideration of s 3A of the Crimes (Sentencing Procedure) Act and the concepts of specific and general deterrence. His Honour was entitled to give significant weight to the respondent’s prospects of rehabilitation, given the respondent’s relatively young age, lack of criminal history and the tumultuous family circumstances which gave rise to the offending. It was submitted that even if this Court would have taken a different approach to the consideration of prospects of rehabilitation, it was open to his Honour to determine the weight to place on this and all other factors in sentencing: Bugmy v The Queen [2013] HCA; (2013) 249 CLR 571 at [24].

56. As to the sentencing Judge’s findings on objective seriousness, the respondent further submitted that as none of the offences committed by the respondent were offences for which a standard non-parole period had been fixed, the significance of the relationship between the offences and any identification of the mid-range seriousness was attenuated. It was submitted that references to the “mid-range” are not to be viewed in light of typical or commonly seen variations of the relevant offence, but with a view to the full range of offending: Way v R [2004] NSWCCA 131; (2004) 60 NSWLR 168.

57. Further, the respondent submitted that it is clear that the sentencing Judge considered the matters of sophistication, weight and role, and clearly indicated his view of the gravity of the offending. His Honour’s conclusions were open to him, especially as the respondent’s dealing with the money was transitory, the respondent dealt with the UCO personally rather than at a distance, there were no firearms involved, nor indicia of a more established operation, and there was no indication the respondent was involved in warehousing, diluting, packaging or otherwise running premises devoted to drug supply. It was also submitted that care should be taken when consideration is had to the fact of repetition in offending, as drug offences are, by their nature, continuing offences, and persons who voluntarily desist are the exception: R v Burns [2007] NSWCCA 228 and R v Pickett [2010] NSWCCA 273.

58. As to the Crown’s assertion of failure to give weight to general deterrence, the respondent submitted that it would be unfair to label the sentencing Judge’s reference to s 3A and general deterrence as a mere “ritualistic incantation”. The respondent argued that this submission was simply another way for the Crown to assert that the sentence was manifestly inadequate.

59. The respondent submitted that the Form 1 matter was specifically mentioned and considered by his Honour in his Remarks, and that it was open for his Honour to place emphasis on the respondent’s prospects for rehabilitation when considering the relationship between the Form 1 matter, the primary offence and the other offences. In essence, the same criminality involved in the Form 1 matter was captured in the primary offence, and the sentencing judge was not obliged to find that significant additional weight was required to be given to retribution based on the offence on Form 1.

60. On the alleged failure to provide for an appropriate degree of accumulation, the respondent submitted that the degree of accumulation is well within the ambit of the sentencing Judge’s discretion: Nguyen v The Queen [2016] HCA 17; (2016) 256 CLR 656. Further, as the longest individual indicative sentence was 2 years, and the total sentence was 4 years and 6 months, the respondent submitted that there was clearly a significant degree of accumulation involved.

61. The same position arose in relation to the error alleged by the Crown with respect to the sentencing Judge’s findings on special circumstances. It was noted that the appellant Crown did not squarely challenge the availability of a finding of special circumstances. Further, the respondent cited the following extract from Spigelman CJ’s judgment in R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704; 126 A Crim R 525, at [73]:

“One practical effect of the statutory proportion has been to create a field of disputation which enables matters of fact and judgment to be expressed as if they constituted propositions of law. This arises only because the fetter is expressed in words which suggest a legal standard. It will be a very rare case in which there is no fact capable as a matter of law, of constituting a “special circumstance”. The decision is first one of fact - to identify the circumstances - and, secondly, one of judgment - to determine that those circumstances justify a lower proportionate relationship between the non-parole period and the head sentence. There are well known restraints on an appellate court from interfering with decisions of this character. As a practical matter there are unlikely to be many cases in which this Court will interfere unless the non-parole period is found to be manifestly inadequate or manifestly excessive.”

62. It was submitted that the sentencing Judge struck a lenient but nonetheless available balance between the various competing sentencing considerations.

63. Finally, the respondent contended that in the event that error is established by the appellant Crown, there are powerful reasons for this Court to exercise its residual discretion Court to refrain from interfering with the respondent’s sentence. The reasons articulated by the respondent include the fact that the Crown appeal was lodged 1½ months after the sentence was pronounced, with no notification to the respondent or his representatives until well after the period during which an offender is required to lodge his or her intention to appeal. Further, it was said that this Court could provide guidance to lower courts on proper sentencing principles without moving to re-sentence the respondent.

Discernment

64. The commencement point for the consideration of manifest inadequacy is the identification of the seriousness of the offences to which the respondent pleaded guilty. Although the sentencing Judge was not obliged to determine the objective seriousness of the offences by reference to a range of offending, his doing so does not constitute an error. The offence of supplying a prohibited drug contrary to s 25(1) of the DMT Act carries a maximum penalty of 15 years imprisonment. The offence of ongoing supply of a prohibited drug contrary to s 25A of the DMT Act carries a maximum penalty of 20 years. In specifying these maximum sentences, the Parliament has indicated that it regards the offences as serious. The maximum penalty is a legislative guidepost to which a sentencing court is obliged to have regard: Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at 132 [27]. However, there is necessarily a range of facts and circumstances for offences of the kinds specified.

65. The sentencing Judge concluded that the sentences were below the mid‑range. Whilst it is true that the quality of the drugs sold to the UCO were of a relatively high purity, and the respondent was able to supply the drugs on the many occasions which he did to the UCO without any apparent difficulty in sourcing them in the requested quantities, I am not satisfied that it was inappropriate to regard the offences as being below the mid-range.

66. I have no difficulty in concluding that although there were five separate offences to which the respondent pleaded guilty, together with the Form 1 offence which he admitted, when considering each of these offences, the sentencing Judge was entitled to come to the conclusion which he did.

67. The individual offences of supply did not involve any facts or circumstances which merited a different conclusion. As well, the charges of ongoing supply, which are serious charges, nevertheless included a limited number of transactions within a relatively confined period – namely one month for each charge.

68. In those circumstances, the finding was open to the sentencing Judge, and I do not think that any error in the ultimate sentence imposed can be attributed to this finding.

69. The sentencing Judge was obliged, as the Crown submitted, to have careful regard to the objectives of sentencing in s 3A of the Crime (Sentencing Procedure) Act, including particularly the issues of general and specific deterrence and protection of the community. As the facts demonstrated, the respondent carried out his work covertly, at a variety of places, and in a way which required significant resources to be devoted by the police investigators to obtain evidence of the respondent’s involvement in the supplying of a prohibited drug.

70. As well, it was necessary for the sentencing Judge to keep in mind the significant maximum penalties which were available.

71. It is difficult to see that the aggregate sentence which was imposed adequately reflected any issue of general deterrence. The respondent was not acting alone. He accepted that he knowingly directed the activities of a criminal group. The facts demonstrated that he worked with at least two other people in so doing. He was able to freely access drugs and provide them as regularly as was required by the UCO. Ultimately, the final transaction was for a very significant quantity of drugs and involved a very significant sum of money. The supply of drugs by the respondent was not a one-off or single instance activity. His plea of guilty to the ongoing supply charges bespeaks a person who was not just engaging in the transaction so as to be able to experience taking drugs himself. Rather, all of the facts, matters and circumstances demonstrate that the respondent was engaging in these transactions so as to be a source of significant income – which he used for family and selfish purposes.

72. I am not satisfied that the total sentence which was here imposed in any way reflects adequately the principles of general deterrence and community protection.

73. The sentencing Judge seems to have been impressed with the respondent’s subjective case. It is not suggested that the Judge fell into error in finding that the respondent had made significant progress on the path to rehabilitation. However, the respondent’s upbringing and his family circumstances, in respect of which he was entitled to some sympathy, did not explain (nor could they be said to have contributed to) his decision to obtain the income needed to support the family from engaging in the illicit drug trade. He was adequately educated and was capable of making entirely rational decisions. The fact that, as a matter of previous history, the respondent had not committed any previous crime no doubt assisted him with a degree of leniency. However, what is significant is that it demonstrates that the respondent’s upbringing was not one which led him into a path of unlawful supply of prohibited drugs.

74. When one also takes into account that, whilst a finding of special circumstances was open to be made, the ratio ultimately fixed by the sentencing Judge resulted in the respondent’s parole period of 25 months being only marginally less than his non-parole period of 29 months. This seems to me to demonstrate that the non-parole period was manifestly inadequate in failing to reflect the minimum period of imprisonment required in light of the admitted criminality of the offences.

75. The discretionary variation of the statutory ratio between the head sentence and the non-parole period is confined by the need to ensure that the time an offender must spend in prison reflects all the circumstances of the offence and the offender, including the objective gravity of the offence and the need for general deterrence: see R v Simpson at [65] per Spigelman CJ; R v GWM [2012] NSWCCA 240 at [118]; R v AB [2017] NSWCCA 88 at [70]-[72] (per Bathurst CJ, R A Hulme J and Beech-Jones J agreeing).

76. In my view, a period of 2 years and 5 months imprisonment did not adequately reflect the seriousness of the offences for which the respondent was being sentenced. In coming to this conclusion I keep in mind that the non‑parole period reflected a discount for the early pleas of guilty.

77. The offences did not occur in isolation. The respondent engaged in the supply of prohibited drugs so as to benefit financially as well as supporting a relatively confined drug habit. There was no particular compelling reason for him to engage in the supply of the prohibited drugs, and his subjective case did not adequately explain it.

78. In all of the circumstances, I am satisfied that that the Crown has demonstrated that the aggregate sentence which was imposed was manifestly inadequate and erroneous.

Residual Discretion

79. The Court has a residual discretion when considering a Crown appeal to decline to uphold the appeal even if the Crown establishes error, as has here occurred. The Crown bears an onus to persuade the Court that, even if error is found, the Court should nevertheless intervene to uphold the appeal and re‑sentence the respondent.

80. In this context, it is necessary to bear in mind that Crown appeals reflect a limited purpose, namely, not just the correction of error in particular cases, but rather the laying down of principles for the guidance of sentencing courts: Griffiths v The Queen [1977] HCA 44; (1977) 137 CLR 293 at 310; Green v The Queen; Quinn v The Queen [2011] HCA 49 at [1]; (2011) 244 CLR 462.

81. The Crown argued that the Court’s discretion would be exercised, in this case, to provide governance and guidance to sentencing courts to ensure that aggregate sentences of imprisonment imposed by such courts continue to adequately reflect the total criminality of an offender, general deterrence and an adequate degree of accumulation for multiple offending over time. The Crown also argued that the Crown appeal reflected submissions which were consistent with those put below, there was no significant delay between the imposition of the sentence and the lodging of the Crown appeal. The Crown submitted that six weeks was a not inappropriate period for that to occur, and that the expiration of the non-parole period was still many months away at the time the appeal was heard and the decision of this Court delivered.

82. The respondent argued that even if the sentences were found to be manifestly inadequate, the fact was that no real sentencing principle was being raised by this appeal. Further, the respondent submitted that guidance of the kind claimed by the Crown to be appropriate could be given by this Court finding error by way of manifest inadequacy, but not exercising the residual discretion.

79. The respondent submitted that in fact, in the context of the length of his imprisonment, the delay in lodging the appeal was significant. Particularly was this so, the respondent argued, because no notification by letter or other less formal means was received by the respondent from the Crown about its dissatisfaction with the sentence imposed. The respondent drew attention through a number of affidavits to his circumstances since being sentenced and, in particular, surrounding the notification of the Crown appeal.

80. The respondent was arrested, and had been in custody from 8 August 2016, being the date upon which his sentence was fixed to commence. Accordingly, by the time he came for sentence in the District Court, he had already been in custody for 13 months or so, and only with respect to the charges upon which he was being dealt.

81. Accordingly, by the time the respondent came to be notified of the Crown appeal at the end of October 2017, he was classified as a minimum security prisoner, and was within a relatively short period (about six weeks) of being able to apply for day release. He was located at a correctional centre in Glen Innes from which day release was possible and inmates were entitled to day-long family visits.

82. The consequence of the Crown appeal was a change in his classification, which meant that he could no longer remain at Glen Innes, and he would not be eligible to apply for any day release without a further change in his classification.

83. The respondent relied upon deterioration in his psychological health attested to by a clinical psychologist, Mr Borenstein, in a report of 14 January 2018, as providing a significant circumstance as to why the Court would not be persuaded by the Crown not to exercise its residual discretion. Mr Borenstein noted that the significant deterioration in the respondent’s psychological health meant that his symptomatology was consistent with an adjustment disorder with mixed anxiety and depressed mood, and that the respondent’s positive rehabilitation course to date could well be derailed by an adverse consequence of the appeal. He anticipated that, if the respondent’s psychological condition deteriorated as a consequence of any increased sentence, the respondent would require medication together with psychological, and possibly psychiatric, intervention.

84. I am satisfied that these matters, whilst real, do not militate against intervention by this Court. The Crown appeal was commenced and brought on promptly. There is still a considerable period to elapse on the respondent’s non-parole period. I am not satisfied that the respondent’s particular difficulties and potential exacerbation of his psychological or psychiatric state are reasons why this Court should decline to exercise its discretion.

85. The Crown has satisfied me that the residual discretion should not be exercised to refrain from intervening.

86. In my view, the disparity between the sentence actually imposed and the sentence necessary to reflect the seriousness of the offences and, in particular, the objects of sentencing including general deterrence and the protection of the community, points to the need to maintain public confidence in the administration of justice, such that it would be inappropriate to exercise the Court’s residual discretion to refrain from intervening.

Re-Sentence

91. I proceed on re-sentencing upon the basis that the crimes fell below the mid‑range of seriousness.

92. As well, in re-sentencing the respondent I keep in mind that he is entitled to a 25% discount for his early plea. I also keep in mind that there is no reason to doubt that he has made significant steps on the path to rehabilitation and that he is unlikely to offend again. Upon release, he has good prospects of securing employment and a stable home, and maintaining ongoing relationships within his family. These matters also point to the likelihood of successful rehabilitation.

93. I have also taken into account the objective seriousness of the offences and all of the subjective circumstances of the respondent which have been described above. It is unnecessary to repeat those circumstances here.

94. Again, it is appropriate to proceed by way of aggregate sentence as did the sentencing Judge.

95. I commence the process by indicating the following sentences:

Charge No.	Nature of the Offence	Maximum Penalty	Indicative Sentence
1	Supply prohibited drug: s 25(1) DMT Act: 28 April 2016 – 27.97g methylamphetamine	15 years imprisonment	15 months
2	Supply prohibited drug: s 25(1) DMT Act: 8 August 2016 – 55.8g methylamphetamine	15 years imprisonment	20 months
3	Supply prohibited drug: s 25(1) DMT Act: 8 August 2016 – 167.1g cocaine	15 years imprisonment	28 months
4	Ongoing supply of a prohibited drug: s 25A DMT Act: 26 May 2016 – 21 June 2016 – 5 occasions of supply	20 years imprisonment	34 months
5	Ongoing supply of a prohibited drug: s 25A DMT Act: 29 June 2016 – 25 July 2016 – 5 occasions of supply	20 years imprisonment	40 months

96. In my view, an appropriate aggregate sentence is 4 years non-parole with a balance of term of 2 years commencing from 8 August 2016. The total sentence would expire on 7 August 2022 with a non-parole period expiring on 7 August 2020.

Orders

97. Accordingly, I propose the following orders:

1. Appeal upheld.

2. Quash the sentence imposed by Delaney A-DCJ on 11 September 2017.

3. In lieu, impose upon the respondent an aggregate sentence of 4 years non-parole with a balance of term of 2 years commencing from 8 August 2016. The total sentence to expire on 7 August 2022 with a non‑parole period expiring on 7 August 2020.

98. HIDDEN AJ: I agree with Garling J.

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Decision last updated: 07 March 2018