Rodgers v R

[2018] NSWCCA 47

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Rodgers v R [2018] NSWCCA 47
Hearing dates:	26 February 2018
Date of orders:	23 March 2018
Decision date:	23 March 2018
Before:	Hoeben CJ at CL at [1] Johnson J at [2] N Adams J at [119]
Decision:	1. Leave to appeal against sentence granted. 2. Appeal dismissed.
Catchwords:	CRIMINAL LAW – sentence appeal – offences of supplying large commercial quantity of cocaine and offering to supply large commercial quantity of cocaine under s.25(2)Drug Misuse and Trafficking Act 1985 – offence of giving corrupt benefit to a Commonwealth public official (a police officer) under s.142.1(1) Criminal Code (Cth) – Form 1 offence of supplying indictable quantity of cocaine – whether error in commencement date of sentence for Commonwealth offence – claim of illegitimate disparity in sentence for one offence with co-offenders – claim of error and denial of procedural fairness concerning “special circumstances” for State offences - claim that sentences manifestly excessive – no error demonstrated – parity ground rejected – objective gravity of drug supply offences – objective gravity of offence of giving corrupt benefit to police officer to obtain confidential information to assist importation of border-controlled drugs – maintenance of public confidence in integrity of police force – importance of specific and general deterrence – appeal dismissed
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Crimes Act 1914 (Cth) Drug Misuse and Trafficking Act 1985 Criminal Code (Cth)
Cases Cited:	Abbas v R (2013) 231 A Crim R 413; [2013] NSWCCA 115 Baroudi v R [2007] NSWCCA 48 Borsa v R [2003] WASCA 254 Brennan v R [2018] NSWCCA 22 Button v R [2010] NSWCCA 264 CL v R [2014] NSWCCA 196 Delaney v R (2013) 230 A Crim R 581; [2013] NSWCCA 150 Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 Haines v R [2012] NSWCCA 238 Hiron v R [2018] NSWCCA 10 House v The King (1936) 55 CLR 499; [1936] HCA 40 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Martinez v R [2015] NSWCCA 5 Milsom v R [2014] NSWCCA 142 Owen v R [2017] NSWCCA 54 Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 R v Buckskin [2010] SASC 138 R v Casey [2015] NSWCCA 142 R v Duong (1999) 109 A Crim R 60; [1999] NSWCCA 353 R v Kalache (2000) 111 A Crim R 152; [2000] NSWCCA 2 R v Newman (2004) 145 A Crim R 361; [2004] NSWCCA 102 R v Nguyen (2010) 205 A Crim R 106; [2010] NSWCCA 238 R v O’Mally [2005] NSWCCA 166 R v Pangallo (1991) 56 A Crim R 441 Shi v R [2017] NSWCCA 126 Usher v R [2016] NSWCCA 276 ZA v R [2017] NSWCCA 132
Texts Cited:	---
Category:	Principal judgment
Parties:	Nathan Rodgers (Applicant) Regina (Respondent)
Representation:	Counsel: Ms S Kluss (Applicant) Ms B Baker (Respondent)   Solicitors: SJT Law (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2014/125335
Publication restriction:	---
Decision under appeal	Court or tribunal: Sydney District Court Jurisdiction: --- Citation: --- Date of Decision: 15 July 2016 Before: His Honour Judge Toner SC File Number(s): 2014/125335

Judgment

1. HOEBEN CJ AT CL: I agree with Johnson J and the orders which he proposes. I also agree with the judgment of N Adams J.

2. JOHNSON J: The Applicant, Nathan Rodgers, seeks leave to appeal with respect to sentences imposed at the Sydney District Court on 15 July 2016 with respect to State and Commonwealth offences.

3. Following pleas of guilty, the Applicant was sentenced by his Honour Judge Toner SC with respect to the following offences:

1. Count 1 - on 3 March 2014, supplying a large commercial quantity of a prohibited drug (cocaine) contrary to s.25(2) Drug Misuse and Trafficking Act 1985, an offence punishable by a maximum penalty of life imprisonment with a standard non-parole period of 15 years;

2. Count 2 - on 11 April 2014, offering to supply a large commercial quantity of a prohibited drug (cocaine) contrary to s.25(2) Drug Misuse and Trafficking Act 1985, an offence punishable by a maximum penalty of life imprisonment with a standard non-parole period of 15 years;

3. Count 3 - between 24 January 2014 and 2 March 2014, giving a corrupt benefit to a Commonwealth public official contrary to s.142.1(1) Criminal Code (Cth), an offence punishable by a maximum penalty of five years’ imprisonment.

4. The Applicant requested the sentencing Judge to take into account on a Form 1, when passing sentence on Count 1, an offence that on 24 January 2014 he supplied an indictable quantity of a prohibited drug (cocaine) which, if prosecuted separately, would carry a maximum penalty of 15 years’ imprisonment.

5. The sentencing Judge imposed the following sentences:

1. Count 1 (taking into account the Form 1 offence) - imprisonment for eight years and six months commencing on 28 October 2014 and expiring on 27 April 2023, with a non-parole period of six years commencing on 28 October 2014 and expiring on 27 October 2020;

2. Count 2 - imprisonment for eight years commencing on 28 October 2015 and expiring on 27 October 2023 with a non-parole period of five years and six months commencing on 28 October 2015 and expiring on 27 April 2021;

3. Count 3 - imprisonment for three years commencing on 27 April 2014 and expiring on 26 April 2017 with a non-parole period of two years commencing on 27 April 2014 and expiring on 26 April 2016.

6. For all offences, the total effective sentence was one of imprisonment for nine years and six months from 27 April 2014 with a non-parole period of seven years expiring on 27 April 2021.

Grounds of Appeal

7. By Notice of Application for Leave to Appeal filed on 3 November 2017, the Applicant communicated the following grounds of appeal:

1. Ground 1 - his Honour erred in relation to the commencement date of the Commonwealth matter (Count 3);

2. Ground 2 - his Honour erred in relation to parity considerations between the offenders regarding Count 1;

3. Ground 4 - his Honour erred by not finding special circumstances;

4. Ground 5 - his Honour imposed sentences that are manifestly excessive.

Facts of Offences

8. An Agreed Statement of Facts was tendered at the sentencing hearing which revealed the following.

9. In December 2013, police commenced an investigation into the conduct of the Applicant and others involving the use of physical surveillance, surveillance devices and other techniques.

10. On 23 January 2014, a Controlled Operation Authority issued which authorised a civilian participant and an undercover officer to participate in negotiations or agreements relating to, or to knowingly take part in any step of, the supply of prohibited drugs involving the Applicant and others associated with him.

Form 1 Offence - Supply Prohibited Drug (Cocaine) in Not Less Than Indictable Quantity

11. On the morning of 24 January 2014, the civilian participant met the Applicant near the KFC store at Mascot. During the meeting, the Applicant discussed the availability of cocaine and indicated that he had access to numerous syndicates that supplied varying quantities. During this meeting, the civilian participant and the Applicant entered a Honda CRV motor vehicle. Whilst in the vehicle, the Applicant handed the civilian participant a white paper bag containing a white compressed powder substance purporting to be one ounce of cocaine. The civilian participant gave the Applicant $8,000.00.

12. The white compressed powder was analysed and identified as 27.7 grams of cocaine with a purity of 71%.

Count 1 - Supply Prohibited Drug (Cocaine) in Not Less Than Large Commercial Quantity

13. On 20 February 2014, the civilian participant met with the Applicant in Mascot. During the meeting, the Applicant discussed the availability of kilogram quantities of cocaine and his ability to source those amounts. The Applicant told the civilian participant that he had been dealing with a syndicate and had recently purchased two one kilogram quantities of cocaine. During the meeting, the civilian participant told the Applicant that they were interested in purchasing a kilogram of cocaine. The Applicant indicated that he would be able to do this and would contact the civilian participant once he was able to facilitate the supply. The Applicant indicated a price of $235,000.00 for one kilogram of cocaine.

14. In late February 2014, the Applicant contacted the civilian participant and made arrangements to meet on 2 March 2014. Through coded conversations, the Applicant indicated that he would be able to supply one kilogram of cocaine to the civilian participant.

15. At about 5.55 pm on 2 March 2014, the civilian participant met with the Applicant in Maroubra. At the meeting, the Applicant produced an Apple iPhone and showed the civilian participant a text message he had attempted to send to the civilian participant that indicated that he was having difficulties in sourcing one kilogram of cocaine. During the meeting, the Applicant sent several messages to the “up-line supplier” in an attempt to facilitate the supply of one kilogram of cocaine. The Applicant told the civilian participant that he would wait for a message or call from the “up-line supplier” and message the civilian participant if he could supply one kilogram of cocaine the next day.

16. At about 11.20 pm on 2 March 2014, the Applicant sent the civilian participant a text message stating “9.00 am”.

17. At about 9.00 am on 3 March 2014, the civilian participant met the Applicant at a café in Maroubra. During the meeting, the Applicant told the civilian participant he had been able to source one kilogram of cocaine and that it was currently being held at a female associate’s house. He told the civilian participant the price was now $245,000.00, which included $5,000.00 added for his services and $5,000.00 added for the services of an unnamed associate. The civilian participant explained to the Applicant that they would not be willing to purchase one kilogram of cocaine at that price given the original quoted price of $235,000.00. The Applicant told the civilian participant that the increased price was due to the higher purity of the cocaine. He told the civilian participant that he often purchased a few ounces at a price of $7,300.00 an ounce and he would cut the product before selling it and make a large profit.

18. The Applicant told the civilian participant that he would again contact the “up-line supplier”. He said that he would send a coded text message stating “I have ran into some of your friends” which would mean that he would be able to supply one kilogram of cocaine for $235,000.00.

19. At about 10.45 am on 3 March 2014, the Applicant contacted the civilian participant and stated “I have something to show you” and arrangements were made for the two men to meet again at Maroubra. About an hour later, the civilian participant met the Applicant in Maroubra and the Applicant told him that he had been in contact with an associate who was willing to supply one kilogram of cocaine for $235,000.00. The Applicant said that the supply would take place in a carpark at Riverwood Plaza, Riverwood but that he was waiting for a text message to confirm the time and location of the supply. Following this meeting, the Applicant sent a text message to the civilian participant stating “… see you at the entry to Coles”.

20. At about 2.30 pm on 3 March 2014, the civilian participant met the Applicant and Fouad El Hassan (“El Hassan”) in the Riverwood Plaza, Riverwood. During this meeting, the Applicant told the civilian participant that there had been a problem so that the price of one kilogram of cocaine would be $245,000.00. The Applicant told the civilian participant that it was his problem and that the civilian participant would be able to purchase the cocaine for $235,000.00.

21. El Hassan told the Applicant and the civilian participant it would be necessary to follow him to an address in Wiley Park where the supply of the one kilogram quantity of cocaine would take place. During this meeting, the undercover officer was waiting for the civilian participant in a vehicle in a carpark.

22. El Hassan, the Applicant, the civilian participant and the undercover officer drove in convoy to McDonalds at Canterbury Road, Wiley Park. El Hassan travelled in one vehicle with the Applicant travelling in a separate vehicle and the civilian participant and the undercover officer travelled in a third vehicle.

23. At McDonalds, the civilian participant, the Applicant and El Hassan discussed the proposed supply of cocaine whilst the undercover officer remained in his vehicle. El Hassan drove to an address in Renown Street, Wiley Park where Omar Zahed (“Zahed”) entered his car. El Hassan and Zahed returned to the area where the Applicant and the civilian participant were located.

24. After a short discussion, the civilian participant got into the Applicant’s vehicle. The Applicant and the civilian participant then followed El Hassan and Zahed to the address at Renown Street, Wiley Park. El Hassan, Zahed and the civilian participant walked to the rear of the house where they met Ahmed Refaieh (“Refaieh”).

25. Whilst Refaieh, El Hassan, Zahed and the civilian participant were on the rear patio area, one of the males approached an outdoor lounge chair and lifted the cushion, thereby exposing a block of white compressed powder wrapped in plastic in a heat-sealed plastic bag. Using a rubber glove, that male picked up the block of compressed white powder and asked the civilian participant to sample the powder, but he declined to do so. The civilian participant and El Hassan walked to the front of the house. The civilian participant returned to the Applicant who had been waiting in his vehicle. The civilian participant and the Applicant returned to McDonalds at Wiley Park in the Applicant’s vehicle with El Hassan following in another vehicle.

26. The Applicant, El Hassan and the civilian participant discussed the supply of one kilogram of cocaine. During this time, El Hassan communicated with Zahed using a mobile phone. Arrangements were made to conduct the supply at McDonalds at Wiley Park.

27. A short time later, the civilian participant entered McDonalds. The Applicant, El Hassan, Refaieh and Zahed were inside McDonalds. Zahed was carrying a blue and grey backpack.

28. Upon entering McDonalds, the civilian participant was approached by El Hassan who told him to tell the undercover officer to go to the toilet area. The civilian participant did so and the undercover officer entered the disabled toilet at McDonalds followed by Zahed. Once in the toilet area, Zahed opened the backpack and told the undercover officer to remove the block of compressed white powder wrapped in plastic and in a heat-sealed plastic bag. The undercover officer did so and Zahed told him to put the $235,000.00 into the backpack. The undercover officer did so and he and Zahed then left the toilet.

29. Zahed and Refaieh left McDonalds whilst the Applicant and El Hassan remained seated in McDonalds. Zahed and Refaieh walked back to the premises in Renown Street, Wiley Park.

30. The one kilogram block of white compressed powder was analysed and identified as a total of 1,001 grams with a purity of 76%.

Count 2 - Offer to Supply Prohibited Drug (Cocaine) in Not Less Than Large Commercial Quantity

31. On 27 March 2014, the civilian participant and the Applicant met at KFC at Mascot. During the meeting, the civilian participant purchased a Blackberry mobile phone from the Applicant for $2,400.00. The Applicant told the civilian participant that they could negotiate future drug supplies using their Blackberry phones. The Applicant used the name “Love To Gossip” on his encrypted Blackberry PGP network.

32. At about 8.50 am on 11 April 2014, using his Blackberry, the Applicant sent a message to the civilian participant stating “… will have one kg in my hands on Monday if interested”. The civilian participant responded “Same as before? What price? Is it the same guys? I didn’t get a good feeling about them …”.

33. At about 9.45 pm on 11 April 2014, the Applicant replied “No! My old crew. They give to me and let me run! Lot easier. 220k My love! I have been working well with them since I last saw you!”.

34. The text messages related to an offer to supply one kilogram of cocaine for $220,000.00 to the civilian participant.

35. On 27 April 2014, the Applicant was arrested and a search warrant was executed at his home. During the search, police seized a number of items of interest including the clothing worn by the Applicant at the time of the offences, a Blackberry mobile phone and an Apple mobile phone.

36. The Applicant was charged with the State offences on 27 April 2014 and remained in custody thereafter.

Count 3 - Giving a Corrupt Benefit to a Commonwealth Public Official

37. A separate and detailed Agreed Statement of Facts was tendered with respect to the Commonwealth offence.

38. Between 2007 and 2012, the Australian Commission for Law Enforcement Integrity (“ACLEI”) received intelligence which led it to suspect that the Applicant was a member of a criminal drug syndicate with a contact within the Australian Federal Police (“AFP”) who supplied him with confidential police information.

39. In December 2013, a Joint Taskforce consisting of members of the ACLEI and the AFP created fictitious entries in the AFP’s internal database which referred to a person named “Tiago Vasquez” and his purported links to a fictitious investigation of a drug importation. The Taskforce arranged for a civilian participant to approach the Applicant to seek his help in obtaining confidential police information about herself, her links to “Tiago Vazquez” and a drug importation which she was purportedly planning.

40. The Applicant agreed with the civilian participant that he would obtain the information from a serving police officer in exchange for her providing $10,000.00 to the officer and $2,000.00 for an intermediary. The Applicant told the civilian participant that, if the information was good (in the sense that the purported drug importation could proceed), the serving police officer would require further payments totalling around $30,000.00.

41. The Applicant conveyed the request for information to a serving AFP officer, Benjamin Hampton (“Hampton”), through an associate. It was not alleged that there was an express offer of payment to Hampton in advance, although both the Applicant and his associate understood and expected that Hampton would require a cash reward for providing the information.

42. On 16 January 2014, Hampton conducted searches on the AFP’s Police Real Online Management Information System (“PROMIS”) for “Tiago Vasquez” and then conveyed that information to an associate who provided it to the Applicant.

43. After the information had been provided by Hampton, the civilian participant provided $10,000.00 in cash to the Applicant, who caused it to be provided to Hampton as a reward for his corrupt conduct.

44. The Applicant believed that the release of internal police information would assist an associate with an importation of border-controlled drugs.

45. The Applicant said he hoped for a financial benefit for himself if the civilian participant’s purported information was successful and he also told the civilian participant that he had used his police contacts several times in the past to obtain confidential information.

46. Through his conduct, the Applicant dishonestly caused a benefit of $10,000.00 to be provided to Hampton, a Commonwealth public official, knowing that the receipt of the benefit would tend to influence a public official in the exercise of his duties, in particular the duty of confidentiality.

47. Much of the evidence against the Applicant for the Commonwealth offence was based upon listening devices and other forms of surveillance. At the time of the Applicant’s sentencing, Hampton had pleaded not guilty to charges relating to his role in the Commonwealth offence and another matter, with those matters having been listed for trial.

37. On 28 October 2014, the Applicant was charged with the Commonwealth offence, in relation to which he declined to be interviewed.

The Applicant’s Subjective Circumstances

49. At the time of the offences, the Applicant was 40 years old. He was 43 years old at the time of sentence.

50. The Applicant had a limited criminal history. In January 1999, he was fined and disqualified at the Downing Centre Local Court for an offence of driving whilst his licence was cancelled. In March 2014, he appeared at the Balmain Local Court on a charge of possession of a prohibited drug for which he was placed on an eight-month good behaviour bond under s.10 Crimes (Sentencing Procedure) Act 1999.

51. Tendered on sentence in the Applicant’s case was a report of Ms Michelle Player, psychologist, dated 23 November 2015 together with a number of references and letters of support.

52. The Applicant did not give evidence at the sentencing hearing.

Some Findings of the Sentencing Judge

53. The sentencing Judge allowed the Applicant a 25% discount for the utilitarian value of his pleas of guilty for the State offences and a similar discount for his plea of guilty and facilitation of the course of justice for the Commonwealth offence (ROS1-2).

54. After summarising the facts of the offences, his Honour noted that there did not appear to be any factor within the State offences which aggravated those offences and which was not either an element of the offences charged or inherent in those elements (ROS18-19).

55. With respect to the Commonwealth offence, his Honour observed that “This is a serious rendition of this particular crime, all offences which weaken the public confidence in the due administration of justice are serious and in particular the Police Force” (ROS19). His Honour observed that it was “noted in the facts relating to this offence that the offender was anticipating undertaking a significant drug transaction, being the importing of drugs into Australia based upon information he anticipated receiving as a result of his corrupting a federal police officer” (ROS19).

56. His Honour noted that questions of specific and general deterrence loomed large in sentencing for both the State offences and the Commonwealth offence (ROS19-20).

57. His Honour said with respect to the Applicant’s role in the drug supply offences (ROS20):

“The Crown concedes that this offender was not a ‘principal’ in this offence but can be fairly described as the ‘middleman’. He was not the person who handed over the drugs, nor was he the person that collected the money which to my mind is significant in this case, and in all probability the person that did, namely Mr Zahed, was more likely to have been significantly higher in the hierarchy of those criminally involved in this supply.”

58. In assessing the objective seriousness of each of the State offences, his Honour noted that the quantity of drugs involved in Count 1 was at the very bottom of the statutory threshold for the large commercial quantity (one kilogram) (ROS20). The sentencing Judge made the following additional findings with respect to the objective seriousness of the State offences (ROS20-21):

“The facts do not reveal how much money Rodgers was to receive for his role in the supply matter but I conclude that he was to receive a financial benefit which would not have been insignificant given the size of the transaction but I am unable to say how much it was or would have been.

In relation to the second offence which stands discrete from the first, albeit that the participants were largely the same, in that case the facts suggest that he was to receive $5,000 for his efforts when the total value of the transaction was about $235,000 which again would suggest that he was a long way from being a principal in that deal. It seems to me that the role that he was to play in relation to the supply matter and was to play in relation to the offer to supply matter were about the same, and again, the quantity involved in the second offence, namely the offer to supply, was at the bottom of the range of weights involved for offences of this type, although, of course, I am mindful of the fact that the weight of the drugs involved is not determinative, it is but a factor, and a significant factor in each of these cases. Thus, I am of the opinion that his culpability objectively is below the middle of the range for offences of this type but above that of Fouad Elhassan, and you will need to have reference to the reasons that I gave in relation to Elhassan in that regard.”

59. The sentencing Judge observed that the Applicant’s criminal history was “insignificant” and the Court was “prepared to treat him as someone with no prior criminal history” (ROS21).

60. His Honour considered the psychological report of Ms Player and the subjective material tendered in the Applicant’s case on sentence (ROS22):

“I have carefully considered the psychologist’s report. It seems that there is little psychologically wrong with Mr Rodgers other than the fact that he has some difficulty with alcohol and perhaps gambling. In more recent times he seems to have been using ecstasy, as the psychologist noted. He has from time to time used other drugs but in the broad scheme of things there appears to be little from his psychological makeup which contributed to his commission of these offences. The purpose of the psychologist’s report, as is so often the case, was really to get before me his history. I accept, as does the Crown, that he appears to have had a fairly lonely childhood with limited parental guidance. What seems to have brought him to these crimes is the fact that he was under significant financial pressure and reverted to what seems to have been a relatively easy way to make money, from his perspective, rather than working. I find that that was his motivation to commit these crimes.

He suffers from a number of medical problems, particularly back problems and I note the various reports that are contained within exhibit 1 to that effect.

He is regarded by many as a decent man, although it is hard sometimes to reconcile the views of many of these people with the crimes that have been committed here. True it is that the drugs were not going to be disseminated into the community because the people that the offender was in fact dealing with were either police officers or agents of the State but nonetheless he was not to know that and his clear motivation was to facilitate the sale of the drugs so he could make some money, and anticipated that those drugs would in fact be disseminated into the community and have the deleterious effects that are so sadly well-known.”

61. The sentencing Judge made the following findings favourable to the Applicant (ROS23):

“However, the material which is contained within exhibit 1 demonstrates that he represents good prospects of rehabilitation. He has significant ongoing community support as those documents well reveal. I find that he is genuinely remorseful for his crimes and accepts responsibility for what he has done which augurs well for his prospects of rehabilitation and I will take those factors into account when sentencing both in relation to the State offences and the Federal offence.”

62. Before passing sentence, his Honour stated (ROS23):

“There will need to be a degree of accumulation to reflect that each of these offences was discrete, one from the other, albeit that there is a relationship between the two State matters that were separate offences.

The Federal offence stands by itself.

In structuring the sentences it seems to me that I should sentence in relation to the Federal offence first.”

63. With respect to special circumstances concerning the State offences, the sentencing Judge said (ROS24):

“I have not found special circumstances in the circumstances of this case, save to maintain a proper ratio between the non-parole period and the head sentence.”

64. In light of Ground 1 concerning the commencement date for the Commonwealth offence, it is appropriate to record the discussion which took place at the conclusion of the sentencing remarks (ROS24):

“HIS HONOUR: …. Crown, anything else?

HATFIELD: No, your Honour.

HIS HONOUR: Sit down, Mr Rodgers.

HATFIELD: I just ask, your Honour, I think it’s within your Honour’s discretion but just noting that Mr Rodgers was on - his custody from 27 April 2014 was only referrable to the State matters. I understand he wasn’t in custody on the Commonwealth matters till a later date but I think, your Honour--

HIS HONOUR: All right. I will make it clear.

In fixing the dates that I have the process has been determined in that way to reflect principles of totality, see Pearce amongst others.

HATFIELD: Yes, your Honour.

HIS HONOUR: Is there anything else, from anybody?

MITCHELL: No, thank you, your Honour.”

Ground 1 - Suggested Error in Relation to Commencement Date for Commonwealth Offence (Count 3)

Submissions of the Parties

65. Ms Kluss, counsel for the Applicant, submitted that the sentencing Judge had fallen into error in commencing the sentence for the Commonwealth offence on 27 April 2014, given that the Applicant was in custody from that date on the State offences only.

66. Whilst pressing this ground, counsel accepted that his Honour’s approach made no difference to the overall sentence given that some accumulation would have been necessary in any event for the Commonwealth offence.

67. The Crown submitted that the approach adopted by the sentencing Judge was intentional and reflected discussion which had taken place during the sentencing hearing, and his Honour’s explanation at the conclusion of the sentencing remarks where reference was made to Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57.

68. The Crown submitted that the approach adopted by his Honour with respect to the commencement date of the sentence for the Commonwealth offence was not erroneous.

Decision

69. The Court was authorised to backdate the State offences pursuant to ss.24 and 47 Crimes (Sentencing Procedure) Act 1999 and to backdate the Commonwealth offence under s.16E Crimes Act 1914 (Cth), which relevantly applies ss.24 and 47 to sentencing for Commonwealth offences: Shi v R [2017] NSWCCA 126 at [6].

70. The requirement of s.47(3) Crimes (Sentencing Procedure) Act 1999 is to take into account any time for which the offender has been held in custody in relation to the offence. Section 16E(1) Crimes Act 1914 (Cth) applies s.47(3) and s.16E(3) requires similarly that presentence custody be “taken into account”. Neither ss.47 nor 16E mandate how presentence custody is to be taken into account.

71. A sentencing Judge’s decision as to when to commence a sentence is a discretionary decision and it is necessary for the Applicant to demonstrate error in accordance with House v The King (1936) 55 CLR 499; [1936] HCA 40 to challenge this decision: Delaney v R (2013) 230 A Crim R 581; [2013] NSWCCA 150 at 594 [60].

72. It is the case that the Applicant had been in custody for the State offences only from 27 April 2014 with the prosecution for the Commonwealth offence having commenced on 28 October 2014. Ordinarily, a sentencing court would select the commencement date for an offence in relation to which the offender was in custody at that time. However, there is no inflexible rule in this respect.

73. During the course of sentencing submissions, his Honour adverted to the difficulty which would result from commencing the sentences for the State offences, and accumulating the Commonwealth sentence upon those sentences in circumstances where the Commonwealth offence related to separate, but serious criminality, but where the Commonwealth sentence was likely to be significantly shorter than those for the two State offences (T54, 8 July 2016). His Honour was correct in this observation.

74. To impose the sentences in the reverse order would have likely seen the sentence for the Commonwealth offence being entirely subsumed within the sentences for the State offences so that no additional punishment would have been referable solely to a serious Commonwealth offence. Such an approach would not do justice to the process of sentencing of the Applicant for a serious Commonwealth offence.

75. The approach to the commencement date adopted by the sentencing Judge was a principled and appropriate response to the difficult task of sentencing an offender in respect of Commonwealth and State offences.

76. The Applicant received full credit for the whole of his presentence custody. The sentences for the State and Commonwealth offences were appropriately backdated, rather than reduced, so as to demonstrate that the whole of the Applicant’s presentence custody had been taken into account: Martinez v R [2015] NSWCCA 5 at [19]. There is no prohibition on a court backdating a sentence to commence from an earlier point, notwithstanding that an offender was not actually in custody in relation to that offence at that point in time: R v Newman (2004) 145 A Crim R 361; [2004] NSWCCA 102 at 368-370 [25]-[32].

77. In circumstances where the Applicant received full credit for his presentence custody and the sentencing Judge backdated the sentences rather than reducing them, it was within the sentencing Judge’s discretion to structure the sentences by commencing the sentence for the Commonwealth offence before the commencement of the sentences for the State offences.

78. This ground of appeal is devoid of merit and leave to appeal by reference to it ought be refused.

Ground 2 - Claim of Error with Respect to Parity Considerations Between Offenders Regarding Count 1

Submissions of the Parties

79. Counsel for the Applicant submitted that the Applicant had a legitimate sense of grievance arising from the sentences imposed on Count 1 for the co-offenders Refaieh and El Hassan. Whilst accepting that the Applicant was sentenced for other offences as well and that there were some points of difference with respect to the Applicant and the co-offenders, it was submitted that this Court should intervene upon the parity ground with respect to Count 1.

80. The Crown submitted that, aside from the additional two offences for which the Applicant was to be sentenced, there were other differences both objectively and subjectively as between the offenders. These differences included the fact that a separate supply offence was taken into account on the Form 1, with respect to Count 1 on sentencing the Applicant. The Crown submitted that the parity ground had not been made good in this case.

Decision

81. The Applicant and the co-offenders were each sentenced by his Honour Judge Toner SC so that this Court should be cautious before determining that one co-offender has a justifiable sense of grievance based only on different outcomes: Usher v R [2016] NSWCCA 276 at [73].

82. With respect to the offence in Count 1, Refaieh was sentenced to six years’ imprisonment with a non-parole period of four years and El Hassan was sentenced to seven years’ imprisonment with a non-parole period of five years and three months.

83. The recital of the facts with respect to Count 1 made mention of the conduct of Refaieh and El Hassan as well as that of the Applicant (see [20]-[29] above).

84. It may be seen that the role of the Applicant was more extensive than that of Refaieh who was present on the occasion when drugs were shown to the civilian participant and was at McDonalds where the supply occurred, but not in the immediate vicinity.

85. El Hassan was first involved when the Applicant met the civilian participant at Riverwood Plaza, Riverwood. He met Refaieh and discussed the supply and, like Refaieh, he was not in the immediate vicinity of the supply when it occurred. The sentencing Judge described his role as being of greater significance than that of Refaieh in that he was an active participant in the supply operation and directed the movements of those involved in it.

86. The sentencing Judge assessed the objective seriousness of the Applicant’s offence in Count 1 as being below mid-range but above that of El Hassan with El Hassan being assessed as being above Refaieh.

87. The different sentence imposed on the Applicant for Count 1, as opposed to the sentences for Refaieh and El Hassan, may be explained by the Form 1 offence (which applied only to him) and the difference in the roles played by each of the three men in the supply. The Form 1 offence related to an entirely separate instance of supply so that there was an additional need for deterrence and retribution in sentencing the Applicant on Count 1: Abbas v R (2013) 231 A Crim R 413; [2013] NSWCCA 115 at 425-426 [22]-[23].

88. The sentencing Judge concluded correctly that the Applicant’s criminality was more serious than that of El Hassan. The Applicant was the person who negotiated the sale of the cocaine and who arranged the supply.

89. The sense of grievance necessary to attract appellate intervention in a severity appeal based upon parity is to be assessed by objective criteria. The application of the parity principle does not involve a judgment about the feelings of the person complaining of disparity. The Court will refuse to intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise: Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 at 474-475 [31].

90. There was an entirely explicable foundation for the differences between the sentences imposed for Count 1 on the Applicant, El Hassan and Refaieh. The sentencing Judge was seized of all relevant objective and subjective considerations when called upon to pass sentence upon these offenders. It has not been demonstrated that the differentiation made by the sentencing Judge was not open to him in the exercise of his discretion: Hiron v R [2018] NSWCCA 10 at [58]-[59].

91. The Applicant has not made good his claim of an objective legitimate sense of grievance arising from the sentences imposed upon El Hassan and Refaieh.

92. I would reject the second ground of appeal.

Ground 4 - Claimed Error in Not Finding Special Circumstances

Submissions of the Parties

93. Counsel for the Applicant submitted that a finding of special circumstances should have been made with respect to the State offences in this case. It was noted that the Crown, at first instance, did not make submissions that a finding of special circumstances should not be made in this case.

94. Ms Kluss contended that this was to be the Applicant’s first period in custody and that features contained in the psychological report with respect to gambling, alcohol and drug use ought to have led to a finding of special circumstances in the Applicant’s favour.

95. The Crown submitted that the sentencing Judge had considered the issue of special circumstances and found that such circumstances did not exist beyond the maintenance of a proper ratio between the non-parole period and the head sentence (see [63] above). The effective non-parole period constituted 73.6% of the total effective sentence. The Crown submitted that this conclusion was open to the sentencing Judge in the exercise of the Court’s discretion.

Decision

96. A court’s finding as to whether or not there are special circumstances, so as to justify an adjustment of the ratio of the non-parole period and the head sentence for State offences, is a quintessentially discretionary decision in relation to which this Court is slow to intervene: R v Casey [2015] NSWCCA 142 at [36].

97. The Crown Prosecutor in the District Court did not concede that there should be a finding as to special circumstances, but rather made no submission on that issue. In any event, it remained a matter for the Court. The sentencing Judge gave the Applicant’s counsel ample opportunity to be heard and indicated that he would consider the issue in respect of the Applicant (T35-36, 8 July 2016). It was open to the sentencing Judge to reach the conclusion which he formed with respect to special circumstances. No error has been demonstrated in this respect.

96. I would reject the fourth ground of appeal.

Ground 5 - Claim of Manifest Excess

Submissions of the Parties

99. Counsel for the Applicant submitted that the total effective sentence imposed for the State offences and the Commonwealth offence was manifestly excessive in all the circumstances of the case. It was submitted that the total effective sentence was disproportionate to the offending and may be considered a crushing sentence calling for the intervention of this Court.

100. Reliance was placed, as well, upon sentencing statistics which had been provided to the sentencing Judge.

101. The Crown submitted that the individual sentences and the total effective sentence did not demonstrate manifest excess. The Crown submitted that the limitations upon statistics were such that they provided no assistance to the Applicant in this case.

102. The Crown submitted that the Applicant was being sentenced for a combination of serious State offences and a serious Commonwealth offence so that it was necessary for the sentencing Judge to impose sentences which reflected the objective seriousness of all offences. The Crown submitted that manifest excess was not demonstrated in this case.

Decision

103. It is for the Applicant to demonstrate that the sentences imposed in this case were unreasonable or plainly unjust: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at 371 [25].

104. The Applicant was to be sentenced for serious drug supply offences in which he was an important participant in the supply of cocaine in significant quantities. The maximum penalties and standard non-parole periods for the State offences reflect the seriousness of the matters for which he was to be sentenced, with the Form 1 offence to be taken into account as well on Count 1.

105. The Commonwealth offence was a serious offence involving, as it did, the giving of a corrupt benefit to a police officer in the context of the Applicant’s involvement in drug supply. An offence of this type strikes at the heart of the administration of justice and must be severely punished: R v Pangallo (1991) 56 A Crim R 441 at 443; R v Duong (1999) 109 A Crim R 60; [1999] NSWCCA 353 at 63 [14]; R v O’Mally [2005] NSWCCA 166 at [16]-[17].

106. Providing a corrupt benefit to a police officer to facilitate the disclosure of confidential information is a very serious crime. In R v Buckskin [2010] SASC 138, Nyland and Gray JJ (sitting as members of the South Australian Court of Criminal Appeal) said at [49]-[50]:

“[49]   … It is crucial that members of the community believe that police will keep entirely confidential material or information provided for particular purposes. The misuse of the information provided by the defendant had the capacity to fuel criminal activity, including interference with the administration of justice.

[50]    The seriousness of corruption in the course of police work and the misuse of public office cannot be overemphasised. It is vital that public confidence in the integrity of the police force and its members be maintained. Behaviour such as that of the defendant has the capacity to erode that confidence. Once public confidence in the police force has been undermined, the utility and effectiveness of the force is likely to be impaired. The reputation of the police force and confidence in that force is far easier to lose than to rebuild. Loss of confidence in the police department and its officers has the capacity to infect the reputation of the justice system as a whole and the public’s confidence in that system. It is vital for the law, order and governance of society, that there be confidence in the institutions administering that law, order and governance. It is imperative that those in public office and in particular, those in positions of public trust such as police and other legal officers, are aware of the standards required of their positions and the importance of their obligation to maintain public confidence in the proper fulfilment of those positions.”

107. These principles apply, as well, to the Applicant who corruptly obtained confidential information from a police officer. General deterrence is a major factor on sentence, both for a corrupt police officer and for those (such as the Applicant) who seek to corrupt a police officer: R v Pangallo at 443; Borsa v R [2003] WASCA 254 at [28]; R v Buckskin at [52]; CL v R [2014] NSWCCA 196 at [61]-[62].

108. In this case, the Applicant committed the corrupting benefits offence on the understanding that he would be assisting those involved in serious criminal activity. The information concerned whether, and to what extent, the AFP had detected and/or investigated a serious, and potentially ongoing, Commonwealth narcotics offence. This connection with anticipated serious criminal offending increased the objective seriousness of the Applicant’s conduct: R v Kalache (2000) 111 A Crim R 152; [2000] NSWCCA 2 at 161 [18].

109. The Applicant’s Commonwealth offence provided a grave and additional feature on sentence for a person otherwise involved in substantial drug supply. It was necessary for the sentence for the Commonwealth offence to itself involve a level of denunciation and specific and general deterrence. The Applicant was fortunate that a period of only six months’ imprisonment was referable exclusively to the Commonwealth offence.

110. The Applicant committed these serious offences at the age of 40 years. He could not rely upon the immaturity of youth: R v Nguyen (2010) 205 A Crim R 106; [2010] NSWCCA 238 at 126-127 [72](k).

111. The Applicant’s reliance upon sentencing statistics in support of this ground does not provide material assistance to him. This Court has stressed the limitations with respect to sentencing statistics: Owen v R [2017] NSWCCA 54 at [72]. Further, in the circumstances of this case, there was the unusual combination of serious drug supply offences and the offence of giving a corrupt benefit to a Commonwealth public official.

112. The sentencing Judge had regard to the objective gravity of all offences and the Applicant’s subjective circumstances as well as the need for denunciation and specific and general deterrence to be reflected on sentence. The sentences, and the total effective sentence, lay within the reasonable exercise of sentencing discretion in this case.

113. The Applicant has not demonstrated that this was a crushing sentence. The sentences, and the total effective sentence in this case, were warranted by the gravity of the crimes and application of relevant sentencing principles to all the circumstances of the case: Haines v R [2012] NSWCCA 238 at [57]; ZA v R [2017] NSWCCA 132 at [68]-[84].

114. I would reject the fifth ground of appeal.

Conclusion

115. I express my agreement with respect to the additional matters raised by N Adams J concerning Ground 4.

116. The Applicant has not made good any of the grounds of appeal.

117. Given the length of the sentence imposed, I would grant leave to appeal against sentence.

118. I propose the following orders:

1. leave to appeal against sentence granted;

2. appeal dismissed.

119. N ADAMS J: I have had the advantage of reading the reasons of Johnson J in draft. I agree with the orders proposed for the reasons provided by his Honour. I wish, however, to make some additional observations in relation to Ground four.

120. As Johnson J has observed, a court’s finding as to whether or not there are “special circumstances” within the meaning of s.44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) so as to justify an adjustment of the ratio between the non-parole period and the head sentence is quintessentially a discretionary decision. I agree that no error in the exercise of that discretion has been demonstrated in this matter. But the applicant made an additional complaint under this ground; he complained in his written submissions that the sentencing judge had “diverted the agitation of the finding” of special circumstances. This complaint is, in effect, one of a denial of procedural fairness. The applicant relied upon the following portion of the transcript of the proceedings before his Honour on 8 July 2016 in support of this ground:

“HIS HONOUR:  I didn’t ask you Mr Smith [senior counsel for the applicant], about special circumstances, nor did I ask you Mr Leggat [senior counsel for Mr El Hassan] about special circumstances.  Do you want to say something about it?

SMITH:  Yes your Honour.  We submit that ours is an appropriate case of special circumstances--

HIS HONOUR:  Well you’ve got very little form, right.

SMITH:  That’s right, we’ve got family commitments.

HIS HONOUR:  It’s your first time in gaol.

SMITH:  First time, family commitments - well they rely on him and that’s a matter, the wife has had to go out and do two jobs and all that to support the family in the interim.

HIS HONOUR:  Crown, do you want to be heard in relation to Mr Rodgers and a finding of special circumstances?

HATFIELD:  No your Honour.”

121. The transcript records that his Honour then turned to hear from senior counsel for Mr El Hassan who submitted that special circumstances existed because of that offender’s rehabilitation and the fact that he was a university graduate. His Honour queried the relevance of this given his previous offending and then asked if there was anything else “to say about special circumstances” to which Mr El Hassan’s counsel replied, “post-traumatic stress”. His Honour then responded:

“HIS HONOUR: Yes all right, I’ll think about it, anything else gentlemen…”

122. It is the context of these exchanges that the complaint that his Honour “diverted the agitation of the finding” of special circumstances in relation to the applicant is to be considered.

123. The issue of procedural fairness in the context of sentencing proceedings was recently considered in Brennan v R [2018] NSWCCA 22. Although the point considered in that appeal differs to that in the present matter, the decision provides a convenient summary of the relevant principles. In Brennan v R, Button J (with whom Bathurst CJ and Hoeben CJ at CL agreed) held that, as a matter of procedural fairness, a sentencing judge should give an offender notice if he or she proposes to vary the statutory ratio (or, as Bathurst CJ described it, the “base ratio”) in s.44(2) of the Crimes (Sentencing Procedure) Act (NSW), such that the non-parole period would exceed 75% of the head sentence. In that matter, no indication had been given by the sentencing judge during the proceedings on sentence that this would occur.

124. A denial of procedural fairness may well be established if counsel is led to understand that a certain course would be taken but ultimately it is not, to the detriment of the offender. In Baroudi v R [2007] NSWCCA 48, it was held that procedural fairness was denied when the sentencing judge failed to warn counsel for the offender that he intended to impose a non-parole period of around 12 months longer than the concession that had been made by the Crown.

125. In Button v R [2010] NSWCCA 264, procedural unfairness was established in circumstances where the sentencing judge had stated he thought that a head sentence of between two and a half and three years with a non-parole period of one year was appropriate. The Crown did not make submissions against this course of action. The sentencing judge indicated that "the effect of it will be I intend to release him within a year of his going into custody” and reserved his decision. An aggregate non-parole period of 18 months was later imposed without further hearing from the applicant or the Crown.   In considering the relevant principles, Latham J, with whom Kirby J and Simpson J (as her Honour then was) agreed, observed (at [14]-[15]):

“At the heart of the denial of procedural fairness claimed in this appeal is the absence of an opportunity to be heard further in relation to a matter of penalty, where the applicant relied upon a representation by the Judge that a particular sentence was to be imposed, and the Judge departed from that representation without notice to the applicant.

Gleeson CJ said in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6 at [35] and [37] ; (2003) 214 CLR 1 at 14:-

‘But what must be demonstrated is unfairness, not merely departure from a representation. Not every departure from a stated intention necessarily involves unfairness, even if it defeats an expectation. In some contexts, the existence of a legitimate expectation may enliven an obligation to extend procedural fairness. In a context such as the present, where there is already an obligation to extend procedural fairness, the creation of an expectation may bear upon the practical content of that obligation. But it does not supplant the obligation. The ultimate question remains whether there has been unfairness; not whether an expectation has been disappointed. 

Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice’.”

126. In Milsom v R [2014] NSWCCA 142, procedural unfairness was established in circumstances whereby the sentencing judge had given the impression he would not impose a custodial sentence and urged the solicitor for the Crown to obtain an undertaking from his superior that no Crown appeal would follow if he took such a course. The offender was ultimately sentenced to a non-parole period of two years and six months with a balance of term of three and a half years. Garling J (with whom Macfarlan JA and Johnson J agreed) noted at [66]:

“The key to determining whether there has been a breach of the requirement of procedural fairness is to ascertain the consequence of any departure from the dictates of proper procedure because what is ultimately in issue is whether unfairness has resulted from the process: See Lam at [34]. The concern of the law is to avoid practical, and not merely theoretical, injustice: Lam at [37].”

127. The circumstances in which a denial of procedural fairness was established in those matters differ significantly to those in the present application.

128. It was submitted on behalf of the applicant in written submissions in this court that there were additional matters outlined in the psychologist’s report and other evidence that could have been agitated by counsel relevant to such a finding. These factors included: that the applicant was under financial stress at the time of the offending and unable to cope with that stress; that his response to stress triggered his binge drinking episodes that had otherwise been in remission; that the applicant had outstanding issues from his childhood that were also masked by his use of cocaine and ecstasy and he would need assistance in the community with his underlying psychological condition on release; that the applicant had issues with problematic gambling; and that the applicant had medical problems including injury to his back contained.

129. It may well be the case that with the benefit of hindsight these were additional matters that could have been put by counsel relevant to the issue of special circumstances but what must be established is that the sentencing judge prevented those matters being put to him.

130. I am not satisfied that the approach taken by his Honour during the proceedings on sentence as reflected in the transcript above foreclosed any further submissions being made. When his Honour highlighted the factors relevant to a finding of special circumstances as being “very little form” and the fact that it was the applicant’s first time in custody, his counsel added a further factor to be the applicant’s family commitments. The transcript does not reflect that his counsel was precluded from making any further submissions arising from the psychologist’s report. In any event, it could not be said that his Honour failed to have regard to the psychologist’s report. On the contrary, he dealt with it in his reasons.

131. I am not satisfied that the transcript reflects that the applicant’s senior counsel was prevented from making further submissions on the question of special circumstances. Nor does the fact that the Crown Prosecutor made no submission on the issue of special circumstances oblige the sentencing judge to make such a finding. His Honour raised the issue, heard from senior counsel, reserved his decision and ultimately did not make the relevant finding. There was no denial of procedural fairness in his Honour’s approach on this issue.

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Decision last updated: 23 March 2018