R v Zolfonoon

Case •

[2016] NSWCCA 250

•

10 November 2016

No judgment structure available for this case.

Court of Criminal Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: R v Zolfonoon [2016] NSWCCA 250
Hearing dates:8 June 2016
Date of orders: 10 November 2016
Decision date: 10 November 2016
Before: Beazley P
Garling J
Fagan J
Decision:

(1)   Appeal allowed;
(2)   Quash the sentence imposed in the District Court on 11 December 2015;
(3)   In lieu of that sentence, impose an aggregate sentence on the respondent of a non-parole period of 10 years, commencing 29 August 2013, and concluding on 28 August 2023, with a balance of term of 5 years, concluding on 28 August 2028.

Catchwords: CRIMINAL LAW – Crown appeal against sentence – whether sentence manifestly inadequate – supplying large commercial quantity of a prohibited drug – Drug Misuse and Trafficking Act 1985 s 25(2) – whether sentencing judge erred by double counting subjective features in assessing the appropriate sentence and finding special circumstances – whether sentencing judge erred by having regard to extraneous considerations not relevant to the sentencing exercise – whether sentencing judge erred by failing to consider principles of general deterrence, punishment and denunciation in fixing the non-parole period – whether sentence was manifestly inadequate by reference to the sentences imposed on co-offenders – whether sentencing Judge erred by failing adequately to accumulate indicative sentences when assessing aggregate sentences
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Drug Misuse and Trafficking Act 1985
Cases Cited: Bugmy v R [1990] HCA 18; (1990) 169 CLR 525
Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
Caristo v R [2011] NSWCCA 7
CMB v Attorney General for New South Wales [2015] HCA 9; 317 ALR 308
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321.
Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 242 CLR 462
Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520
Mitreski v R [2015] NSWCCA 137
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
Power v R [1974] HCA 26; (1974) 131 CLR 623
R v Brown [2012] NSWCCA 199
R v El-Hayek [2004] NSWCCA 25; (2004) 144 A Crim R 90
R v Hatzisavvas; R v Lopez-Rios [2016] NSWCCA 147
R v Hernando [2002] NSWCCA 489; (2002) 136 A Crim R 451
R v Mereb; R v Younan [2014] NSWCCA 149
R v Wood [2012] NSWCCA 231; (2012) 84 NSWLR 581
The Queen v Pham [2015] HCA 39; (2015) 244 A Crim R 280
Texts Cited: Not Applicable
Category:Principal judgment
Parties: Regina (Appellant)
Kamran Zolfonoon (Respondent)
Representation:

Counsel:
V Lydiard (Appellant)
B Walker SC / A Demal (Respondent)

  Solicitors:
C Hyland – Solicitor for Public Prosecutions (Appellant)
Elie Rahme & Associates (Respondent)
File Number(s):2013/262965,
Publication restriction:Not Applicable
 Decision under appeal 
Court or tribunal:
District Court
Jurisdiction:
Criminal
Date of Decision:
11 December 2015
Before:
Whitford SC DCJ
File Number(s):
2013/262965

Headnote

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

In November 2011, the NSW Police commenced an investigation under the name Strike Force Taipan into the supply of prohibited drugs by the respondent, Mr Zolfonoon, and others. As a consequence of the investigation, Mr Zolfonoon was charged with two counts of supplying a large commercial quantity of a prohibited drug in contravention of s 25(2) of the Drugs Misuse and Trafficking Act 1985. Mr Zolfonoon pleaded guilty to both offences.

The maximum penalty for each offence was life imprisonment and/or a fine of $550,000. Pursuant to s 54B(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the standard non-parole period was 15 years.

On 11 December 2015, Whitford SC DCJ sentenced Mr Zolfonoon to an aggregate head sentence of 10 years and 9 months imprisonment with a non-parole period of 4 years to commence from the date of his arrest on 29 August 2013. The sentencing judge assessed the respondent’s offending as falling below the mid-range of objective seriousness. His Honour considered that the respondent had excellent prospects of rehabilitation, was at a minimal risk of reoffending, and had shown genuine remorse. In separate proceedings, Whitford SC DCJ sentenced a co-offender of the respondent, Mr Wilson, to an aggregate head sentence of 10 years and 6 months imprisonment with a non-parole period of 6 years.

The Crown appealed the respondent’s sentence pursuant to s 5D(1) of the Criminal Appeal Act 1912 (NSW) on the ground that the sentence was manifestly inadequate.

The principal issues for determination were:

(i)   Whether the sentencing judge erred by double counting the respondent’s subjective features by taking them into account in fixing an overall sentence and in making a finding of special circumstances;

(ii)   Whether the sentencing judge erred by having regard to extraneous considerations not relevant to the sentencing exercise;

(iii)   Whether the sentencing judge erred by failing to consider principles of general deterrence, punishment and denunciation in fixing the overall sentence and non-parole period;

(iv)   Whether the sentence imposed on the respondent was manifestly inadequate by reference to the sentence imposed on Mr Wilson;

The Court (Beazley P, Garling and Fagan JJ):

In relation to (i):

(1) Principle and authority indicate that subjective factors are relevant both to fixing the components of a sentence and in finding special circumstances, and there may be overlap in the features to be taken into account in these two parts of the sentencing exercise. [70].

In relation to (ii):

(1) The sentencing judge’s remarks about the absence of alternative sentencing options did not in any way influence his approach to the sentencing exercise. [71].

In relation to (iii):

(1)   The non-parole period must be the minimum period of custody appropriate to all the circumstances of the offence. [77]

Bugmy v R [1990] HCA 18; (1990) 169 CLR 525; Power v R [1974] HCA 26; (1974) 131 CLR 623.

(2)   The adequacy of the non-parole period is to be approached by considering the mathematical ratio of the non-parole period to the head sentence, the actual length of the non-parole period, and the purposes of sentencing laid down in the legislation. [76]

(3) The purposes of sentencing laid down in s 3A of the Crimes (Sentencing Procedure) Act must be taken into account in determining the non-parole period, but these purposes are, at times, in conflict, and are not ranked by the legislature in order of priority. [76]

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

(4)   The sentencing judge erred by imposing a non-parole period which failed adequately to reflect the principles of general deterrence, punishment and denunciation. [79]

In relation to (iv):

(1)   The non-parole period was manifestly inadequate having regard to the non-parole period imposed on Mr Wilson, in circumstances where the respondent’s criminality was of a higher order than Mr Wilson’s but the respondent was required to serve a shorter non-parole period than Mr Wilson. [80]-[81]

Judgment

  1. THE COURT: This is a Crown appeal pursuant to s 5D(1) of the Criminal Appeal Act 1912 against a sentence imposed in the District Court by his Honour Judge Whitford SC on 11 December 2015.

  2. On 17 July 2014, the respondent, Mr Kamran Zolfonoon, pleaded guilty to two counts of supplying not less than a large commercial quantity of a prohibited drug, an offence contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. The first count concerned approximately 3.5 kgs of methylamphetamine and the second concerned approximately 9 kgs of the same drug. The maximum penalty for each offence is imprisonment for life, a fine of $550,000, or both. A standard non-parole period of 15 years applies.

  3. On 11 December 2015, Whitford SC DCJ sentenced the respondent to imprisonment for 10 years and 9 months with a non-parole period of 4 years, commencing on 29 August 2013.

Facts

  1. The facts, as set out by Whitford SC DCJ in his Remarks on Sentence, may be summarised as follows.

  2. In November 2011, NSW Police commenced an investigation under the name of Strike Force Taipan into the supply of prohibited drugs by the respondent and others. Two registered informers, a male and a female, were used in the investigation.

  3. On 24 November 2011, the female informer introduced the respondent to an undercover police officer (“the UCO”). The respondent indicated that he had access to large quantities of heroin and methylamphetamine. The UCO asked the respondent for samples of these drugs so that she could assess whether it was worth purchasing larger quantities. After this meeting, the respondent contacted AH, a co-offender, and asked if AH could provide him with samples.

  4. On 6 January 2012, after several weeks of difficulty acquiring the samples, the respondent supplied the UCO with 28.35g of methylamphetamine and 19.83g of heroin for $13,500. Surveillance indicated that the respondent obtained the samples from AH.

  5. On 10 January 2012, the female informer ordered 1kg of heroin from the respondent for purchase by the UCO. The respondent then met with AH. During that meeting, he called the UCO to inform her that the heroin could be supplied on 17 January 2012.

  6. On 17 January 2012, AH met Dashti, another co-offender, and obtained 1kg of heroin, which he then on-supplied to the respondent. The respondent then met with the UCO at the Wu Shu Academy in Rozelle and supplied 993g of heroin in exchange for $150,000.

  7. On 1 February 2012, the female informer ordered 0.5kg of heroin from the respondent for purchase by the UCO on 6 or 8 February 2012. The respondent then placed an order for 0.5kg of heroin with AH, who in turn placed an order for that heroin with Dashti. On 6 February 2012, Dashti supplied the heroin to AH, who in turn supplied it to the Respondent. That same day, the respondent supplied 496g of heroin to the UCO for $75,000.

  8. On 8 February 2012, the female informer ordered a further 2kg of heroin from the respondent for the UCO to purchase. The drugs were procured in the same way as described above, with the respondent contacting AH and AH contacting Dashti. However, on 9 February 2012, when the supply of the drugs to the UCO was to take place, Dashti was arrested at a storage facility in Artarmon. Consequently, this transaction did not proceed.

  9. In May 2012, in two meetings with the female informer, the respondent indicated that he had access to multiple kilograms of methylamphetamine. On 24 June 2012, at a meeting with the UCO, the respondent supplied the UCO with a sample of methylamphetamine (0.48g) and discussed supplying large quantities of the drug. The next day, the respondent left Australia and returned to the country on 2 September 2012.

  10. Between September 2012 and May 2013, the male informer met the respondent on 9 occasions. On 24 May 2013, the respondent provided the male informer with a sample of heroin (0.44g) and indicated that he had access to 4-10kg of the drug. On 30 May 2013, the respondent provided the male informer with a sample of methylamphetamine (0.23g) and indicated that he had access to 10-15kg of the drug. At this point, the police initiated further investigations into the respondent’s activities, as a result of which the police identified Haissan Saleh as an up-line supplier to the respondent.

  11. On 10 July 2013, the informers introduced the respondent to another UCO (“UCO 2”). At this meeting, the respondent arranged to supply UCO 2 with a kilogram “sample” of methylamphetamine on 19 July 2013. The transaction was subsequently postponed to 22 July 2013. At 4:46pm on 22 July 2013, the respondent met with UCO 2 at the Wu Shu Academy and indicated that he could no longer provide a kilogram of methylamphetamine. The respondent then called Saleh in an attempt to source a smaller quantity of methylamphetamine. Saleh then took steps to source methylamphetamine from his associates. At approximately 6:05pm, at the Wu Shu Academy, the respondent supplied UCO 2 with a sample (0.21g) of methylamphetamine. UCO 2 then expressed interest in obtaining more of the drug. The respondent then telephoned Saleh, saying “tell her it’s okay” and “just bring it”. A short time later, Saleh retrieved a small dark package from a vehicle of an associate, which he gave to UCO 2 at the Wu Shu Academy. The package contained 97.31g of methylamphetamine for which UCO 2 paid $21,000.

  12. On 29 July 2013, the respondent had a telephone conversation with UCO 2 and inquired when UCO 2 would be available to purchase the one kilogram “sample” of methylamphetamine to which earlier reference has been made. UCO 2 indicated that she would most likely be available on 5 or 6 August 2013. Also on 29 July 2013, the respondent met the female informer and supplied her with a sample (0.4g) of heroin and informed her that he would be able to supply multiple kilograms of heroin for $210,000 to $220,000 per kilogram.

  13. Shortly before 1pm on 6 August 2013, the respondent met with UCO 2 at Mascot. Saleh was in a vehicle nearby. The respondent informed UCO 2 that they had to travel to an address in Greenacre to obtain the kilogram of methylamphetamine. The respondent instructed UCO 2 to follow Saleh’s vehicle, in which the respondent would be travelling. On the way, Saleh called AB several times to inform him that he and the respondent were approaching the Greenacre address. Upon arriving at the address, the respondent went into the house, while UCO 2 waited in his vehicle. A short time later, the respondent emerged from the house carrying a purple bag. The respondent then supplied UCO 2 with 999.6g of methylamphetamine for $235,000. As this transaction was taking place, UCO 2 placed an order of 8 to 10kg of methylamphetamine with the respondent. After the transaction, the respondent took the purchase money into the house in a brown paper bag.

  14. On 26 August 2013, the respondent met UCO 2 and another UCO (“UCO 3”). UCO 2 asked about the progress of the order for multiple kilograms of methylamphetamine made on 6 August 2013. The respondent indicated that he had located an alternative supplier. The respondent then supplied a sample (0.31g) of methylamphetamine to UCO 2.

  15. At around 9pm on 27 August 2013, the respondent met with Saleh and his nephew, co-offender Kassim Saleh. At the meeting, the respondent was introduced to another co-offender, Jay Wilson, who Saleh and his nephew had identified as a potential alternative source of multiple kilograms of methylamphetamine.

  16. On or around 28 August 2013, Wilson provided the respondent with a Nokia mobile phone similar to one used by Wilson. The respondent and Wilson used those phones to communicate exclusively with each other.

  17. On 29 August 2013, the respondent and Wilson met UCO 2 at a warehouse in Kingsgrove for the purpose of supplying 8kgs of methylamphetamine in exchange for $1.8M. At the meeting, UCO 2 and Wilson counted the money, after which Wilson left the warehouse in a taxi and returned in a white vehicle. Wilson then removed an orange bucket from the boot of the vehicle, containing methylamphetamine. Wilson then supplied 7.977kg of methylamphetamine to UCO 2 for $1.8M, of which the respondent took a cut of $240,000. Wilson then placed the money in the white vehicle and attempted to drive away, but was stopped and arrested by police. The respondent attempted to hide in the warehouse but was eventually arrested.

  18. Subsequent to the respondent’s arrest, search warrants were executed at the Wu Shu Academy, where police found small amounts of heroin, opium and methylamphetamine, as well as drug paraphernalia.

  19. Overall, the respondent supplied 3.5kgs of heroin over the course of six transactions (including 2kgs of heroin the respondent agreed to supply but did not in fact supply), and 9.1kgs of methylamphetamine over the course of seven transactions.

Notice of Appeal

  1. On 15 December 2015, the Deputy Director of Public Prosecutions filed a Notice of Appeal against the respondent’s sentence relying upon the ground that the sentence was manifestly inadequate.

Remarks on Sentence

  1. The sentencing Judge, Whitford SC DCJ, delivered carefully prepared and comprehensive Remarks on Sentence.

  2. His Honour began by noting that in sentencing the respondent for the offence of supplying a large commercial quantity of methylamphetamine, he would take into account three additional offences of possession of prohibited drugs contained on a Form 1.

  3. His Honour set out in detail the facts which have been summarised above. His Honour assessed the respondent’s offending as falling below the mid‑range of objective seriousness for offences of this kind. In coming to that conclusion, his Honour noted the number of transactions in which the respondent supplied prohibited drugs and the quantity of drugs involved in those transactions. In particular, his Honour noted that the purity of the heroin and methylamphetamine supplied was not high, particularly in the context of wholesale supply. His Honour identified the respondent as being one of several middlemen in a chain of supply. He concluded that the respondent was not operating as part of an organised hierarchy, but as an individual who used his connections to identify sources of drugs to be supplied to the UCOs. His Honour was satisfied that the respondent was a willing and enthusiastic participant in the transactions.

  4. His Honour was satisfied that the respondent, at least in respect of the two largest methylamphetamine transactions, was motivated primarily by personal financial gain. Such financial gain was significant for the respondent as he was suffering a degree of financial stress. That financial stress was likely a consequence of his limited success in legitimate commercial endeavours and a lifestyle which he lacked the capacity to support.

  5. Leaving aside the final and largest transaction, his Honour concluded that the requests for supply made to the respondent by the two informants and the undercover police operatives:

“… provided the offender with an opportunity, which he willingly accepted, to benefit financially from insinuating himself into the chain of supply between them and the ultimate sources of supply to which his intermediary connections gave him indirect access”.

  1. His Honour separately considered the final transaction, which he concluded represented a substantial escalation in the objective seriousness of the respondent’s offending in comparison to the earlier transactions. The quantity of methylamphetamine supplied in this transaction significantly exceeded the large commercial quantity. The transaction involved a degree of sophistication and organisation that was not a feature of the earlier transactions. However, his Honour noted that the sophistication and organisation of this transaction was attributable primarily to the respondent’s co-offender, Mr Jay Wilson.

  2. His Honour then discussed a number of matters which tended to reduce the objective seriousness of the respondent’s offending, including that the offending was initiated and directed by the authorities such that none of the drugs entered the community, and the respondent’s offending was allowed to continue well beyond the point at which the respondent might have been arrested.

  3. His Honour then turned to consider the subjective features of the respondent. He noted that the respondent was born in Iran and was aged 47. He noted that the respondent had been in a longstanding relationship with his wife, and that they had an 11 year old daughter. His Honour referred to the report of a psychiatrist, which he assessed as having limited weight. His Honour then turned to consider more than 15 referees’ reports which were tendered on behalf of the respondent. He noted that these references reflected the respondent’s deep roots in the Persian community. His Honour summarised these references by saying that the common opinion among all the referees was that the respondent’s offending was “… an uncharacteristic aberration”.

  1. His Honour then turned to consider the question of the respondent’s rehabilitation and found that the respondent had excellent prospects of rehabilitation. He based that conclusion on the following:

  1. the continuing depth and strength of the support that the respondent enjoyed from his wife, family and broader community;

  2. the respondent’s history of consistent employment;

  3. the respondent’s conduct in prison which, according to Corrective Services records, had been exemplary and included making a positive contribution to the life of other prisoners, being polite and respectful to staff and inmates, and having a strong and professional work ethic;

  4. the fact that the respondent’s time in prison had already had a salutary effect upon him such that he was motivated to ensure that he would never find himself in prison again; and

  5. the fact that the respondent had no prior convictions save for one past driving-related offence.

  1. His Honour noted the genuine remorse of the respondent and expressed this conclusion:

“All these various matters I have outlined point strongly, in my assessment, to the likelihood of the offender making a law abiding return to the community. He has the inclination and the capacity for community service generally. He is motivated to provide for the family he has so horrendously let down by his conduct. I am satisfied on the whole of the material that the prospect of him ever reoffending is at best slight”.

  1. His Honour turned to consider the need for general deterrence, specific deterrence and rehabilitation. His Honour expressed these conclusions:

“121.   The various considerations I have outlined must be taken into account in a way that reflects appropriate proportionality between the circumstances of the crime committed and the sentence imposed, taking appropriate account, too, of the subjective circumstances so as to properly reflect the fundamental notion of individualised justice underpinning the exercise of the sentencing discretion.

…

123.   However, the best interests of the community, to which the task of sentencing must ultimately be directed, are not served in my view by imposing a sentence which would be both crushing and operate to deny the community the considerable contributions which the offender is capable of making and, in my assessment, determined in the future to make.

124.   Furthermore, it seems to me that the various countervailing objectives of sentencing can be adequately addressed in this exercise by an appropriately structured sentence. Considerations of general deterrence, punishment and denunciation can be well addressed by a head-sentence proportionate to, in particular, the objective circumstances of the offending. It seems to me that a head-sentence so determined will also contribute a necessary dimension of specific deterrence. Any risk of re-offending, to the extent it exists, can be well addressed by the knowledge that if he reoffends when he is released to parole, the offender faces the prospect of completing the whole of a substantial term of imprisonment”.

  1. His Honour then reiterated that there was a “… real likelihood of the offender in the future making a substantial, law abiding contribution to the life of the community and his family”. His Honour found special circumstances which he regarded as significant.

  2. His Honour noted the Crown submission that there should be some accumulation between the two sentences “… but not to any significant degree”. His Honour accepted that submission and found that some accumulation was warranted. His Honour recorded that the respondent was entitled to at 25% discount in respect of each offence to reflect the utilitarian value of his early guilty plea.

  3. Having reviewed of all of these matters at some length and, as we have remarked earlier, quite carefully and comprehensively, his Honour imposed an aggregate sentence comprising a non-parole period of 4 years commencing on 29 August 2013 and expiring on 28 August 2017, and a balance of term of 6 years and 9 months expiring 28 May 2024.

Crown Submissions

  1. Although the Crown submitted that the aggregate sentence imposed was manifestly inadequate by reference to general sentencing standards, the Crown pointed to a number of specific matters which it submitted contributed to that erroneous outcome.

  2. First, the Crown submitted that his Honour double-counted the respondent’s subjective circumstances by taking them into account in fixing an overall sentence and in making a finding of special circumstances. The Crown’s submission was directed at the following paragraph of his Honour’s reasons:

“126.   Having regard to the various matters I have outlined, I am satisfied that the minimum period that the offender must serve, in order to reflect the objective gravity of his offending and the circumstances in which it was committed, and taking appropriate account, too, of the subjective circumstances so as to properly reflect the fundamental notion of individualised justice to which I have already referred, admits of a significant finding of special circumstances in his favour”.

  1. Second, the Crown submitted that the learned sentencing Judge was “distracted” from giving proper weight to the objective seriousness of the respondent’s offending because he “… [took] into account a series of what could be described as extraneous and irrelevant ‘policy considerations’ ”. At [127], his Honour made the following remarks:

“127.   [I]t is unfortunate that there is not more flexibility in the options available to a sentencing judge to achieve justice in individual cases … In the present day our prisons are filled to overflowing. The daily cost of keeping a prisoner in custody is substantial. The adequate resourcing of the criminal justice system seems beyond the fiscal capacity of governments … [W]here the immediate protection or safety of the community is not otherwise an issue, there seems to be much to recommend alternative forms of punishment.”

  1. The Crown submitted that these considerations were irrelevant to the sentencing exercise upon which his Honour was engaged and to the purposes of sentencing prescribed by the legislation.

  2. Thirdly, the Crown submitted that his Honour had regard to the principles of general deterrence, punishment and denunciation only in the fixing of the total sentence. The Crown submitted that those principles of sentencing were also relevant to the fixing of the non-parole period. The Crown submitted that the non-parole period was manifestly inadequate in part because of his Honour’s failure to consider those principles in fixing the non-parole period.

  3. Finally, the Crown submitted that his Honour provided for inadequate accumulation between the two indicative sentences. The Crown submitted that the effective accumulation of the indicative sentences was only 6 months on the non-parole period and 1 year on the head sentence.

  4. In oral submissions to this Court, the Crown did not challenge the sentencing Judge’s assessment of the respondent’s offending as falling below the mid‑range of objective seriousness. However, the Crown maintained that the aggregate sentence imposed by his Honour was so low as to be demonstrative of error.

Respondent’s Submissions

  1. The respondent’s submissions commenced by drawing attention to the principle that a manifestly inadequate sentence is one that is “… unreasonable or plainly unjust”: see Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321.

  2. The respondent then pointed to particular matters of significance to the respondent’s offending and subjective circumstances which had been referred to in his Honour’s Remarks on Sentence. The respondent also submitted that the sentencing Judge carefully considered the facts in accordance with settled principle and, in particular, took into account in accordance with the relevant legal authorities the nature and conduct of police who had directed the informants and the UCOs.

  3. The respondent’s submissions then addressed each of the four submissions made by the Crown.

  4. With respect to the Crown’s first submission, the respondent submitted that it accords with principle for a sentencing Judge to consider all the relevant attributes and matters peculiar to an offender. It follows in the respondent’s submission that it is not illegitimate, nor double counting, for a sentencing Judge to consider the whole of the relevant material in assessing the offender’s subjective case and in determining whether the threshold of special circumstances has been met. The respondent submitted that the sentencing Judge appropriately took into account the respondent’s subjective case in order to determine the minimum term of incarceration that was necessary to reflect the seriousness of his offending, and ensured that adequate consideration was given to the respondent’s rehabilitation.

  5. In particular, the respondent submitted that the decisions of this Court in R v El‑Hayek [2004] NSWCCA 25; (2004) 144 A Crim R 90 at [105] and Mitreski v R [2015] NSWCCA 137 indicate that factors relevant to the imposition of a non-parole period and the total sentence may also be taken into account in finding special circumstances, without offending any rule against double counting.

  6. With respect to the Crown’s second submission, the respondent submitted that the remarks of the sentencing Judge concerning the lack of alternative sentencing options did not inform the exercise of his Honour’s discretion in sentencing the respondent. The respondent submitted that all the sentencing Judge was doing was highlighting, as is entirely appropriate from time to time, the lack of flexibility in sentencing options. The respondent submitted that it could not be said that these matters infected the sentencing Judge’s discretion in circumstances where his Honour carefully considered all of the principles relevant to the sentencing exercise before sentencing the respondent.

  7. With respect to the Crown’s third submission, the respondent submitted that it would be an erroneous approach for this Court to confine its focus to the comparatively low percentage proportion that the non-parole period bore to the overall sentence. Here that percentage proportion was 37.2%. The respondent submitted that it did not automatically follow that in such circumstances either the non-parole period or the total sentence was manifestly inadequate. In support of that submission, the respondent pointed to the decision of this Court in Caristo v R [2011] NSWCCA 7. In that case, R A Hulme J at [28] expressed the uncontroversial view that the focus of this Court on an appeal against sentence should not solely be upon the percentage proportions that the non-parole and parole period bear to the total term. Rather, the actual periods involved ought to be the focus because they are “equally, and probably more, important”.

  8. With respect to the Crown’s fourth submission concerning inadequate accumulation of the sentences, the respondent, noting that the sentences referred to were only indicative sentences and therefore of no dispositive relevance, drew attention to Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 at [27], where Howie J said:

“In any event there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? …”

  1. The respondent submitted that an answer to the question posed by Howie J would depend on the variable factors present in each individual case, and that what was called for was an analysis of the nature and seriousness of each offence and the factors relevant to the assessment of the totality of criminality. The respondent submitted that the series of individual drug transactions in which he was involved took place over an 18 month period and could properly be understood as a single continuing enterprise that was extended primarily because of police operations.

  2. Finally, the respondent submitted that even if the Court took the view that the overall sentence was manifestly inadequate, the Court should nevertheless exercise its residual discretion not to intervene and dismiss the appeal. In support of that submission, the respondent drew attention to the following matters:

  1. the precise role the respondent played in the offences relative to other offenders;

  2. the involvement of the authorities in the commission of the offences;

  3. the delay between the respondent’s arrest and the imposition of sentence at first instance;

  4. the subjective circumstances of the respondent, including his rehabilitation during his time in custody; and

  5. the fact that the respondent had already spent 2 years and 9 months in custody prior to the appeal coming on for hearing.

Other Relevant Sentences

  1. The Crown drew attention to the sentences imposed on a range of individuals who were dealt with for involvement to varying degrees in the police operation. Two sentences imposed on individuals who were connected with the supply by the respondent of methylamphetamine were of potential relevance. Neither of these sentences was the subject of an appeal to this Court.

  2. The first sentence related to an offender identified by the initials “JK”. JK stood for sentence before Whitford SC DCJ having pleaded guilty to one count of knowing participation in the supply of a large commercial quantity of a prohibited drug, being 7.977kg of methylamphetamine. As has already been discussed, this supply of methylamphetamine took place at a warehouse in Kingsgrove and culminated in the arrest of the respondent and Mr Jay Wilson.

  3. JK was associated with Mr Wilson. JK’s involvement in the transaction at the warehouse was at a very low level. The sentencing Judge accepted that the extent of JK’s involvement in the transaction was facilitating the introduction of Mr Wilson to the respondent, Mr Saleh and Mr Saleh’s nephew. It was in that way that JK knowingly participated in the supply of the 7.977kg of methylamphetamine. The sentencing Judge noted that JK did not profit from this action, and was not relevantly part of any hierarchy of supply in respect of the commercial dealing of drugs.

  4. The sentencing Judge was impressed with the subjective case advanced on behalf of JK. He noted JK’s ongoing drug use. He found that JK’s risk of reoffending was low to medium. The sentencing Judge also found that JK’s case was exceptional. He said of JK that:

“The offending represents the naïve act of an immature young man who foolishly acceded to the request that was made of him. He was not motivated by any desire or intention himself to engage in criminal activity, nor to profit from that activity by others. He was asked to make an introduction and he did so, not wishing himself to be a party to any sale or purchase of drugs, but presumably seeking for himself some cachet or social capital in the antisocial milieu into which his own escalating drug use had drawn him.”

  1. JK was sentenced to a total term of 3 years with a non-parole period of 1 year and 3 months. The sentencing Judge accorded JK a 25% discount on the sentence on account of his early guilty plea.

  2. This brief summary indicates that there are significant differences between JK and the respondent. We do not regard JK’s circumstances and sentence as being of any relevance in considering the adequacy of the respondent’s sentence.

  3. The second matter, which was of direct relevance, was the sentence imposed by Whitford SC DCJ on Mr Wilson. As has already been mentioned, Mr Wilson sourced the 7.977kg of methylamphetamine which he and the respondent supplied to the UCOs before they were arrested. Mr Wilson pleaded guilty to one count of supplying a large commercial quantity of methylamphetamine and stood for sentence on 1 May 2015, some seven months prior to the respondent.

  4. The sentencing Judge found that Mr Wilson was part of an organised group involved in the supply of drugs and was not operating alone. The group was well organised and employed a degree of sophistication in order to avoid detection. His Honour found that Mr Wilson was an authorised and trusted member of the group who was capable of arranging, and did arrange, the supply of a large commercial quantity of drugs to the respondent. He was a person who was acting with autonomy and in a manner that was coherently planned. The sentencing Judge was satisfied that Mr Wilson’s primary motivation was personal financial gain.

  5. Mr Wilson was sentenced to imprisonment for 10 years and 6 months with a non‑parole period of 6 years. He was allowed a 25% discount for his plea of guilty.

Discernment

  1. It is convenient to commence consideration of this Crown appeal with two observations. The first is that the sentencing Judge’s Remarks on Sentence were thorough and careful. It was not suggested that his Honour failed to have regard to any relevant factor or legal principle, nor that he did not identify, or have regard to, all of the relevant facts.

  2. The second observation is that the Crown appeal does not point to any discrete error in the sentencing Judge’s Remarks on Sentence, but rather claims that error emerges once one views his Honour’s sentence in light of “… all the matters that are relevant to fixing the sentence”: Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520 at [60].

  3. In light of these observations, the question upon which this Court is embarked is that expressed by the High Court of Australia in The Queen v Pham [2015] HCA 39; (2015) 244 A Crim R 280 at [27], namely:

“Appellate intervention on the ground of manifest excessiveness or inadequacy is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle.”

  1. The Crown did not seek to make good its appeal by taking the Court to comparable cases in this Court, or sentencing statistics. Rather, the Crown, by pointing to the matters to which reference has earlier been made, attempted to demonstrate that too much or else inadequate weight had been given to particular features of this case. Even if the Crown succeeds on questions of weight, it still must persuade the Court that the sentence imposed on the respondent was unreasonable or plainly unjust.

  2. As well, the Crown relies upon the principle that although indicative sentences are not of themselves amenable to an appeal, an erroneous approach in the indication of the sentences, including the extent to which they are accumulated, may well reveal error in the aggregate sentence imposed: R v Brown [2012] NSWCCA 199 at [15].

  3. As this is a Crown appeal, it is important to keep in mind the approach which this Court must follow. That approach is, with respect, well stated by Johnson J, with whom Gleeson JA and Garling J agreed in R v Wood [2012] NSWCCA 231; (2012) 84 NSWLR 581 where his Honour said at [50]-[51]:

“50.   In order for the Crown to make good its claim of manifest inadequacy, it must satisfy this Court that the sentencing Judge’s discretion miscarried in the sense that the sentence imposed was below the range of sentences that could be justly imposed for the offence consistent with sentencing standards: Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at 588 [24]. In other words, it must be shown that the sentence is unreasonable or plainly unjust: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 370-371 [25].

51.   Of course it is well established that, absent error, this Court may not substitute its own opinion for that of the sentencing Judge merely because (if it be the case) the Court would have exercised its discretion in a manner different from the manner in which the sentencing Judge exercised his or her discretion: Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at 671-672; Zreika v R [2012] NSWCCA 44; 223 A Crim R 460 at 477-478.”

  1. As to the first of the matters raised by the Crown, we are not persuaded that the sentencing judge impermissibly double counted the respondent’s subjective features in determining the total sentence and the non-parole period on the one hand and in finding special circumstances on the other. We accept the respondent’s submission that principle and authority indicate that subjective factors are relevant both to fixing the components of a sentence and in determining whether special circumstances exist. There may, but will not always, be overlap in the features to be taken into account in these two parts of the sentencing exercise. A different way of putting the Crown’s argument in this case is that the sentencing Judge placed too much weight on the existence of special circumstances in determining what non-parole period ought to be fixed. That argument can only be made out if the non-parole period is regarded as manifestly inadequate.

  2. As to the second matter raised by the Crown, we are not persuaded that the sentencing Judge’s remarks about the absence of alternative sentencing options in any way influenced the task upon which his Honour was engaged. His Honour made those remarks in a way which indicated that whilst he regretted the absence of those options, he was nevertheless required to sentence the respondent having regard to the principles and matters to which he was entitled and obliged to have regard. Indeed, a few paragraphs earlier, at [122] of his remarks, his Honour stated that “[t]he nature of [the respondent’s] offending is such that no penalty other than imprisonment is appropriate”.

  3. In considering whether the sentence (or any component of it) which his Honour imposed was unreasonable or plainly unjust, it is necessary to consider the legislative guideposts for the offence in question. The maximum penalty for an offence against s 25(2) of the Drug Misuse and Trafficking Act is life imprisonment and a standard non-parole period of 15 years applies.

  4. In addition, the Court needs to contextualise the respondent’s sentence by viewing it prior to the application of the 25% discount for his early guilty plea. The respondent’s total undiscounted sentenced was 14 years and 4 months. Careful attention must also be paid to the non-parole period. The respondent’s undiscounted non-parole period was 5 years and 4 months.

  5. It is obvious that the non-parole period imposed upon the respondent represented a marked reduction from the standard non-parole period of 15 years. However, it is an error for this court in reviewing the sentence to focus on the maximum penalty fixed by the legislature or the standard non-parole period to the exclusion of all other factors. These legislative guideposts are factors to which a sentencing Judge, together with all other relevant matters, must have regard: Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [27].

  6. The sentencing Judge clearly gave significant, but in our view excessive, weight to the subjective case of the respondent and, in particular, to the finding that he was unlikely to reoffend. There was material upon which such findings could be made. It is undoubted that, as the sentencing judge concluded, a lengthy period on parole will provide a salutary constraint on the respondent’s behaviour should he be tempted to reoffend. However, this was a matter which needed to be kept in balance with the other matters.

  7. The Crown’s submission that the non-parole period failed to reflect the sentencing objectives of general deterrence, punishment and denunciation must be approached by considering not just the mathematical ratio of the non‑parole period to the total sentence (37.2%), but also by focussing on the actual length of the non-parole period. It is correct that the purposes of sentencing as laid down in s 3A of the Crimes (Sentencing Procedure) Act 1999 apply to all parts of a sentence imposed. But it must be kept in mind that these purposes which are, at times, in conflict, are not ranked by the legislature in order of priority: Muldrock at [20].

  8. A non-parole period is correctly to be seen as a mitigation of punishment in favour of rehabilitation through conditional freedom by parole. Ultimately, the non‑parole period actually imposed must be the minimum period of custody appropriate to all of the circumstances of the offence: Bugmy v R [1990] HCA 18; (1990) 169 CLR 525; Power v R [1974] HCA 26; (1974) 131 CLR 623.

  9. This Court has very recently considered the adequacy of a non-parole period imposed in the case of two offenders who were sentenced for offences against s 25(2) of the Drug Misuse and Trafficking Act 1985. For an aggregate sentence imposed for two offences, one of which involved 1kg of methylamphetamine which was below the mid-range of objective seriousness “but not appreciably so”, and the second which involved 13.384kg of methylamphetamine which was in the mid-range of objective seriousness, Hoeben CJ at CL (with whose reasons and orders Fullerton J and RS Hulme AJ agreed) considered, in R v Hatzisavvas; R v Lopez-Rios [2016] NSWCCA 147, that a non-parole period of 5 years for one offender, and 5 years and 6 months for the second offender was so inadequate as to warrant appellate intervention. At [92], the Chief Judge concluded:

“Against a standard non-parole period of 15 years the non-parole periods of 5 years and 5 years 6 months for two large commercial supply offences cannot be justified even on the most favourable view of the respondent’s criminal offending and their subjective cases. I have concluded that the aggregate sentences are so inadequate as to amount to “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 at [42]; R v Van Ryn [2016] NSWCCA 1 at [282]).”

  1. Whilst it is not obvious that the sentencing Judge ignored matters of general deterrence, punishment and denunciation when fixing the non-parole period in this case, the focus of His Honour’s remarks when he dealt with the “sentence structure” – an expression which is to be understood in this case as meaning the determination of the non-parole period – was on the importance to the respondent (and the community) of rehabilitation, the respondent’s low risk of re‑offending and the respondent’s strong prospect of making “a substantial, law abiding contribution to the life of the community and his family”. Although the sentencing judge undertook an evaluation of the minimum period of custody which the respondent ought to serve in all of the circumstances, we have concluded that there must have been a misapplication of principle because the result of the careful sentencing process which was undertaken in this case cannot be justified. The Crown’s submission about the inadequacy of the non-parole period imposed on the respondent ought to be accepted.

  2. The manifest inadequacy of the non-parole period also emerges from a comparison of the sentence imposed on the respondent with the sentence imposed on his co-offender, Mr Wilson. It is to be recalled that the respondent was sentenced for two offences comprising 13 separate transactions of prohibited drugs. His total sentence of 10 years and 9 months was only three months longer than the total sentence imposed upon Mr Wilson, who was sentenced only for one offence comprising a single transaction in which the respondent also participated. As well, the sentencing judge imposed a non-parole period on Mr Wilson which was two years longer than the respondent.

  3. The features identified in the sentencing Judge’s remarks do not seem to be capable of accounting for the sentences imposed on each of Mr Wilson and the respondent. It is true that, unlike the respondent, Mr Wilson did not have a strong subjective case and was not found to be at a minimal risk of reoffending. This notwithstanding, we are persuaded that the respondent’s sentence was manifestly inadequate by reference to the sentence imposed on Mr Wilson. The respondent’s criminality was of a higher order than Mr Wilson’s, given the quantity of drugs involved in his offending and the duration of that offending.

Conclusion

  1. This was an unusual case which presented itself for the sentencing Judge’s assessment. He was required to keep in mind a sense of relativity to, and parity with, the sentences he imposed on other offenders. He was required to balance the particular and unusual subjective circumstances of the respondent. He was dealing with serious offences of a kind which this Court has emphasised require careful attention to the principle of general deterrence. The offences were committed in circumstances where, as His Honour noted, the assessment of objective criminality was influenced by the criminal conduct being permitted (if not encouraged) by police to continue for a long period after initial discovery, when the respondent could have been arrested.

  2. Although the sentencing Judge was entitled to conclude that a degree of leniency ought to be extended to the respondent, we are driven to the conclusion that the aggregate sentence was manifestly inadequate, both in respect of the non-parole period, and the total sentence. The Crown has demonstrated error by the sentencing judge.

  3. This conclusion necessarily resolves the Crown’s submission that there was too little accumulation of the indicative sentences.

Residual Discretion

  1. Even though the Crown has established error in the sentence imposed, the Court needs to consider whether the Crown has persuaded it that it should intervene to re-sentence the respondent. This Court has a “lively” discretion to exercise in determining whether to intervene to resentence: Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 242 CLR 462; R v Wood [2002] NSWCCA 42 at [70]; R v Mereb; R v Younan [2014] NSWCCA 149 at [30]-[31], [40].

  2. The respondent submitted that a number of matters tended against this Court intervening to re-sentence him. As I have earlier mentioned at [54], he relied upon the precise role which he played in the offences compared with the other offenders; the involvement of the authorities in the commission, and prolongation, of the offences; the considerable delay between his arrest and sentencing at first instance; his subjective circumstances, including his rehabilitation whilst in custody; and the fact that, to date, he has spent over three years in custody.

  3. The facts show that the respondent’s offending occurred during 2012 until his arrest on 29 August 2013. He has remained in custody since that time. Proceedings on sentence took place on 5 June 2015 and 30 October 2015. No explanation has been provided to this Court which would address the near two year delay between the respondent’s arrest and the commencement of the sentence proceedings. Sentence was imposed on 11 December 2015. The Notice of Appeal was served on the respondent within a few days. The appeal was heard within 6 months of the sentence being imposed, which is not an unreasonable period.

  4. The effect of this chronology is that the respondent will have served about three-quarters of his non-parole period by the time the Court comes to resentence him if the Crown appeal is upheld. This is often an important factor for this Court to consider, but it is neither the only relevant matter, nor is it a determinative one.

  5. The Crown submitted that the Court’s residual discretion ought not be exercised because of the importance of laying down principles for the “…governance and guidance of courts having the duty of sentencing convicted persons …” (see Green v The Queen; Quinn v The Queen at [1]). The Crown submitted that such was the disparity between the sentence imposed, and a proper sentence, that guidance to sentencing judges was essential given the serious nature of the criminality which existed in this case.

  6. It is important to bear in mind that it is for the Crown to persuade the Court that it should intervene: CMB v Attorney General for New South Wales [2015] HCA 9; 317 ALR 308. It is for the Crown to “… to negate any reason why the residual discretion of the Court of Criminal Appeal not to interfere should be exercised”:R v Hernando [2002] NSWCCA 489; (2002) 136 A Crim R 451. This statement of Heydon JA (as his Honour then was) was approved by the High Court in CMB by French CJ and Gageler J at [34], and by Kiefel, Bell and Keane JJ at [56].

  7. As was said in Green v The Queen; Quinn v The Queen at [2], circumstances relevant to the exercise of the residual discretion can include consequential disparity relative to an unchallenged sentence imposed on a co-offender, and any delay in the appeal process which may disrupt an offender's progress towards rehabilitation. I see no reason why delay in the sentencing process as a whole which is not demonstrated to have been the result of an offender’s conduct cannot also be taken into account. On some occasions, the resentencing of a respondent can result in manifest unfairness, particularly where a considerable part of the non-parole period of a sentence has been served.

  8. Ultimately, the question for the Court is whether the Crown has demonstrated that it would not be unfair or unjust to this respondent for the Court to intervene, having regard to the principles applicable to upholding a Crown appeal. The matters to which reference has just been made all weigh in favour of the exercise of the Court’s residual discretion. However, in our view, such is the extent of the discrepancy between the sentence imposed and an appropriate sentence that it would be inappropriate for the Court to exercise its residual discretion in this case. The respondent’s sentence needs to be corrected to provide guidance to sentencing judges dealing with offences of this kind.

  9. Accordingly, the Court should proceed to resentence the respondent.

Resentence

  1. As the facts outlined above at [4] to [22] indicate, the offences were objectively serious. Although the Crown did not challenge the sentencing judge’s conclusion that the offending fell below the mid-range of objective seriousness, we are not constrained in resentencing the respondent by that assessment. However, while that assessment may have been unduly favourable to the respondent, we think it fairer in all the circumstances to proceed to resentence on that basis.

  2. The quantity of the drugs involved in the respondent’s offending was significant: 3.5kg of heroin and 9.1kg of methylamphetamine. In addition to the two principal offences, there were three additional offences of drug possession to be considered and taken into account on a Form 1. The offending took place over a reasonably lengthy period of time, and comprised 13 transactions. It was not a one-off case of criminal behaviour. The respondent was involved only for financial gain, and was a willing and enthusiastic participant in the events. The transaction involving the supply of 9.1kg of methylamphetamine was particularly sophisticated and organised. And as we have identified above at [81], it is necessary in resentencing the respondent to recognise the higher level of criminality involved in his offending vis-à-vis Mr Wilson’s offending.

  3. We accept that the respondent has strong subjective circumstances of the kind detailed above at [31] to [33]. As well, the respondent has continued to make good progress towards rehabilitation whilst in custody. A finding of special circumstances should be made. We also accept that it was appropriate for the sentencing judge to allow a 25% discount for the respondent’s early guilty plea. We follow that course here.

  4. We propose to proceed by way of an aggregate sentence. The indicative sentences, after allowing for the discount for the respondent’s plea of guilty, are as follows:

Count 1: 10 years imprisonment with a non-parole period of 6 years.

Count 2: 15 years imprisonment with a non-parole period of 8 years and 6 months.

  1. The sentence for Count 2 should be accumulated on the sentence for Count 1.

  2. The aggregate sentence which is appropriate to impose on the respondent, after allowing for the discount for his plea of guilty, is one of 15 years imprisonment with a non-parole period of 10 years.

Orders

  1. The Court makes the following orders:

  1. Appeal allowed;

  2. Quash the sentence imposed in the District Court on 11 December 2015;

  3. In lieu of that sentence, impose an aggregate sentence on the respondent of a non-parole period of 10 years, commencing 29 August 2013, and concluding on 28 August 2023, with a balance of term of 5 years, concluding on 28 August 2028.

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Amendments

10 November 2016 - Further numbering issue in headnote.

10 November 2016 - Numbering issue in headnote

Decision last updated: 10 November 2016

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Most Recent Citation
Elsaj v R [2017] NSWCCA 124
Cases Citing This Decision

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Cases Cited

26

Statutory Material Cited

3

Bugmy v The Queen [1990] HCA 18
Power v The Queen [1974] HCA 26
Power v The Queen [1974] HCA 26