SF v R

[2022] NSWCCA 216

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

SF v R [2022] NSWCCA 216

Hearing dates:

8 April 2022

Decision date:

07 October 2022

Before:

Simpson AJA at [1];
Hamill J at [2];
Ierace J at [3]

Decision:

(1)   Application for leave to appeal granted.

(2)   Appeal allowed.

(3)   Quash the sentence imposed in the District Court and in lieu thereof sentence the applicant to an aggregate term of imprisonment of 7 years backdated to commence on 29 January 2019 and expiring on 28 January 2026, with a non-parole period of 4 years 2 months. The earliest date the applicant will be eligible for release to parole is 28 March 2023.

Catchwords:

CRIME – Appeals – Appeal against sentence – Covid-19 pandemic – where sentencing judge acknowledged the impact of the Covid-19 pandemic during the proceedings on sentence – where remarks on sentence did not expressly acknowledge the likely impact of Covid-19 on conditions of imprisonment – whether sentencing judge erred by failing to take into account that the Covid-19 pandemic renders conditions of imprisonment more onerous

CRIME – Appeals – Appeal against sentence – Parity – where applicant and a co-offender were each sentenced by a different sentencing judge – whether there is a disparity in the sentence of the applicant and the co-accused that gives rise to a justifiable sense of grievance on the applicant’s behalf – discussion of how the respective ratios of the non-parole period to the head sentence of each co-accused are compared

Legislation Cited:

Crimes Act 1900 (NSW), s 93T

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 44

Drug Misuse and Trafficking Act 1985 (NSW), s 24

Cases Cited:

Church v R [2012] NSWCCA 149

Dunshea v R [2016] NSWCCA 244

Green v The Queen (2011) 244 CLR 462; [2011] HCA 49

Li v R [2005] NSWCCA 442

Lin v R [2006] NSWCCA 258

Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46

Moodie v R (2020) 24 A Crim R 87; [2020] NSWCCA 160

Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26

R v Edwards (1996) 90 A Crim R 510

R v Pearce [2020] NSWCCA 61

Stojanovski v R [2013] NSWCCA 334

Thach v R [2018] NSWCCA 252

Valentine v R [2020] NSWCCA 116

Category:

Principal judgment

Parties:

SF (Applicant)
Rex (Respondent)

Representation:

Counsel:
S Flood (Applicant)
E Wilkins SC (Respondent)

Solicitors:
Kingston Fox Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2018/91426

Publication restriction:

Pseudonyms used in accordance with non-publication orders made 11 April 2022

 Decision under appeal 

Court or tribunal:

District Court

Date of Decision:

19 October 2020

Before:

Turnbull SC DCJ

File Number(s):

2018/91426

Judgment

1. SIMPSON AJA: I agree with Ierace J.

2. HAMILL J: I have had the advantage of reading the judgement of Ierace J in draft form. I agree that ground 1 is established for the reasons given by his Honour and that the sentencing discretion must be exercised afresh. Having undertaken that exercise without reference to the sentence imposed at first instance, I agree that no lesser aggregate sentence (7 years) is warranted. However, for the reasons given by Ierace J, there should be a more substantial adjustment to the non-parole period to take into account the applicant’s conditions of incarceration, including the strictures of the regime resulting from the Covid-19 pandemic, the matters raised in the evidence tendered on the usual basis and the desirability that the applicant has a lengthy period of supervised parole. Due to the seriousness of the offending, and in particular the applicant’s significant role in the manufacture of such a large amount of the prohibited drug, the applicant should serve a minimum of 4 years and 2 months of the sentence in custody. In coming to this conclusion, I considered the maximum penalty and standard non-parole period as well as the issue of parity or proportionality. As Ierace J demonstrates in his analysis of ground 2, Mr Washington’s involvement was at a much lower level than that of the applicant. Accordingly, I agree with the orders proposed by Ierace J.

3. IERACE J: The applicant, who I will refer to in this judgment as SF [1] , seeks leave to appeal against the severity of sentences imposed on him by Judge Turnbull SC (“the sentencing judge”) in the District Court on 19 October 2020, following pleas of guilty to the following two offences:

1. Participating in a criminal group, knowing he was participating in a criminal group where he was reckless as to whether his participation in that group contributed to the occurrence of any criminal activity, contrary to s 93T(1) of the Crimes Act 1900 (NSW).

2. Manufacturing a prohibited drug, namely, 3, 4-methylenedioxy-amphetamine (“MDA”) in an amount of not less than 24kg, being an amount greater than the large commercial quantity applicable to that prohibited drug, contrary to s 24(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (“DMTA”).

   1. SF are not the initials of the applicant.

4. Both offences were stated in the indictment to have been committed between 2 October 2017 and 22 March 2018 (“the indictment period”). The first offence had a maximum penalty of five years and the second offence had a maximum penalty of life imprisonment and a standard non-parole period of 15 years. In relation to the second offence, a large commercial quantity is 500g.

5. For the first offence, the applicant was sentenced to a term of imprisonment of two years and for the second offence, a sentence of 7 years imprisonment, with a non-parole period of 4 years 6 months. Both sentences were backdated to commence on 29 January 2019, so that he will be eligible for release to parole on 28 July 2023. The total sentence of the second offence will expire on 28 January 2026.

6. The applicant was one of eight persons who were alleged by police to be part of a joint criminal enterprise to manufacture MDA. He was sentenced with a co-offender, “P”. Another co-offender, Derrick Washington, was sentenced by Judge Zahra SC on 25 June 2021.

7. The applicant sought leave to appeal against his sentence on two grounds, which are as follows:

1. The sentencing judge erred by failing to take into account that the Covid-19 pandemic makes conditions of imprisonment more onerous.

2. There is a disparity in the sentence of the applicant for the second offence and that imposed on his co-offender, Derrick Washington, that gives rise to a justifiable sense of grievance on the applicant’s behalf

8. The applicant and P were sentenced on the basis of individual agreed facts. His Honour recited the agreed facts in respect of P, stating that he intended to rely upon them for the sentence of the applicant as well. A comparison of what appears in the remarks on sentence (“the Remarks”) with the applicant’s agreed facts that were tendered at the sentence hearing (“the agreed facts”) confirms that they are relevantly the same. They are to the following effect.

Factual background

9. In June 2017, an investigation by New South Wales police commenced, that in due course identified the applicant as being engaged with the other seven persons in the manufacture of MDA. The roles of each participant were described in the agreed facts and the Remarks as follows:

“a)   Vanni Raisa who was identified as directing the criminal group and organising the purchase, storage, and diversion of chemicals for production of MDA. … Raisa owns the premises at Units 34 [and] 35 … [at] Wetherill Park [(‘the Wetherill Park premises’)] which were used for the storage and diversion of chemicals as precursors. … Raisa also owns the rural property at [(‘the Mount Rankin property’)] which was used for [the] manufacture of precursors and the storage of chemicals used in the manufacture of MDA at [(‘the Neville property’)]. Raisa also owns the neighbouring property at … Mount Rankin which was also used for the storage of chemicals.

b)   Charles Chiha, who was identified as directing the group and being responsible for the supply of chemicals used in the manufacture of MDA. Chiha is the owner of [business premises at Yennora]. Chiha was involved in the importation of Sassafras oil and the other chemicals and their diversion for the production of MDA by the group.

c)   [‘Z’] who was involved in the manufacture of MDA at [the Neville property] on multiple occasions and organising with other group members to attend the premises and transport items to the Neville and Mount Rankin properties.

d)   [‘C’] who … was involved in the manufacture of MDA at [the Neville property] on multiple occasions and organising with other group members to attend the premises and transport items to the Neville and Mount Rankin properties.

e)   [The applicant] who was directly involved in the manufacture of MDA at [the Neville property] on multiple occasions.

f)   [‘P’] who was directly involved in the manufacture of MDA at [the Neville property].

g)   Khalil Youssef who was directly involved in the manufacture of MDA at [the Neville property] and the transport of chemicals to Neville.

h)   Derrick Washington who is an employee of Raisa and Chiha and was knowingly involved in the diversion and decanting of chemicals at the Wetherill Park premises used by the group members for the manufacture of MDA. Washington also transported chemicals to the Mount Rankin property.”

10. A forensic chemist estimated that “not less than 24[kg] of [MDA] was manufactured” at the Neville property “as part of the joint criminal enterprise”.

Commission of the offences

11. The agreed facts refer to the involvement of the eight members of the group in activities associated with the criminal enterprise, as surveilled or covertly recorded, at the Wetherill Park premises (which were storage-type units in a light industrial park) and the Neville and Mount Rankin properties. The following summary of the offending by the group focuses on the incidents in which the applicant and/or Mr Washington were involved, as it is their roles that are relevant to the grounds of appeal.

Activity at the Wetherill Park premises and delivery of chemicals to the Mount Rankin properties and the Neville property

12. On 13 September 2017, Mr Washington was seen arriving at the Wetherill Park premises at 9:09am driving a white Hino Pantec truck. He met C, Mr Chiha and Mr Raisa nearby. Mr Washington left the premises at 9:55am with Mr Raisa in a silver station wagon. Mr Washington returned in that vehicle at 10:25am with Z and re-entered the premises. C drove to the Neville property later that afternoon in a maroon Holden Rodeo utility registered under Mr Washington’s name. C confirmed in a phone conversation with Z that he was going to the Neville property, and Z gave him coded directions about an MDA manufacturing process.

13. On 29 September 2017, Mr Washington was observed at the Wetherill Park premises with C and Mr Raisa.

14. On 9 October 2017, Mr Washington drove his maroon utility to the Wetherill Park premises, arriving at 9:25am. C was observed unloading items from the maroon utility and placing them in a blue Hilux, which he drove to the Mount Rankin property. The previous day, Mr Raisa had told C that he would “send [Mr Washington] there in the morning”.

15. On 19 October 2017, at 9:16am, Mr Washington was observed walking between the two units at the Wetherill Park premises. Mr Washington and four members of the criminal group placed multiple white 20 litre containers in the blue Hilux which C drove to the Neville property.

16. On 15 November 2017, at 8:10am, Mr Washington was observed using a forklift to unload 200 litre drums from the Hino truck. Mr Raisa was also present. On 16 November 2017 and 19 November 2017, intercepted phone conversations between Mr Raisa and C involved discussion of instructions they had given to Mr Washington. During an intercepted conversation of 16 November 2017, Mr Raisa and C made coded references to Mr Washington decanting chemicals at the Wetherill Park premises.

17. On 20 November 2017 at 10:20am, C, Mr Raisa and the applicant were seen at the Wetherill Park premises. The applicant and C travelled to the Neville property and were recorded unloading the vehicle into the drug laboratory there.

18. On 6 December 2017, Mr Raisa, C and the applicant were observed at the Wetherill Park premises. Mr Washington was also observed unloading items from the Hino truck at those premises.

19. On 5 and 9 January 2018, during intercepted phone conversations with C, Mr Washington disclosed an awareness of the layout of the Mount Rankin property and where chemicals were placed.

20. On 28 February 2018 at 9:28am, Mr Washington was at the Wetherill Park premises while C loaded white 20 litre containers into a white Ford Ranger utility. Mr Youssef was also present to assist. C then drove to the Neville property. After C left, Mr Washington moved items around the Wetherill Park premises using the forklift.

21. On 19 March 2018, C and the applicant loaded multiple white 20 litre containers from one of the units at the Wetherill Park premises into the white Ford Ranger, and then drove it to the Neville property.

Activity associated with MDA manufacture recorded at the Neville property and Mount Rankin – from 31 October to 1 November 2017

22. On 1 November 2017, the applicant was recorded at the Neville property entering and exiting the drug laboratory and carrying 20 litre chemical drums and buckets with C and Mr Youssef. On the same date, Z was recorded handling chemical drums believed to contain methanol and checking chemical levels. Mr Youssef appears to have operated the pill press housed in a shed on the same property.

Activity associated with MDA manufacture recorded at the Neville property

11 November 2017 to December 2017

23. On 11 November 2017 at 9:28am, Z and the applicant discussed in a recorded phone conversation the use of an excavator at the Neville property and the need to get all the work done as the excavator had to be returned soon. This was a reference to the excavator being used to dispose of waste from the manufacturing process.

24. On 16 November 2017 at 11:48am, Mr Raisa and C were monitored having a phone conversation as to whether Washington had been decanting chemicals at the Wetherill Park premises, as he had been instructed to do.

25. Between 21 and 23 November 2017, the applicant and C were recorded entering and exiting the drug laboratory at the Neville property throughout the day and walking around. It appears that they were staying in the residential building.

26. Between 1 and 2 December 2017, the applicant, C and Z were recorded entering and exiting the drug laboratory carrying items including white coloured 20 litre containers.

27. The applicant was recorded at the Neville property on 10 December 2017.

28. On 21 December 2017, the applicant and C were monitored in a phone conversation discussing returning to work after the New Year break. The applicant said: “It’s actually important that we speak before we do anything because I think I might have a different solution … Which might make the process a bit quicker”, referring to the MDA manufacturing process.

29. On 30 December 2017, the applicant was monitored in an intercepted telephone conversation with P discussing returning to work on 10 January 2018.

30. On 18 January 2018 at 8:36pm, the applicant and P were monitored in an intercepted telephone conversation where P said he would be driving to Neville. The applicant replied: “All good, in that case the keys will be in the usual spot”. P said, “No worries brother. Where did you leave the concrete, the cement bags and that for the tiling?” The applicant replied: “They’re just in the kitchen area, the second kitchen area, you can’t actually miss it”. The terms “concrete”, “cement bags” and “tiling” are in reference to items used in the manufacture of MDA.

27 February 2018 to 1 March 2018

31. Between 8:18am on 27 February 2018 and 1pm on 28 February 2018, the applicant and Z were recorded inside the drug laboratory at the Neville property mixing chemicals, carrying white 20 litre containers and measuring cylinders with chemicals around the laboratory, and setting up three 20 litre flasks which were filled with chemicals used in MDA manufacture. They were recorded discussing the manufacturing process while engaging in what a forensic chemist identified as the manufacture of a “precursor substance” to MDA, namely, 3,4-methylenedioxyphenyl-2-propane, or MDP2P.

32. During this period, Mr Washington agreed to “drop … drums off” at a specified location, at C’s instruction, in an intercepted phone conversation with C.

33. On 28 February 2018 and 1 March 2018, the applicant was involved in decanting chemicals in the drug laboratory with Z and C, which a forensic chemist indicated was part of the manufacturing process of MDP2P, which is formed at the “second last stage of production” of MDA. They also attended the laboratory on 2 March 2018.

4 March 2018

34. On 4 March 2018, the applicant, C and Z were inside the drug laboratory. It appeared that they placed MDA and other chemicals into 20 litre buckets, which they later emptied into a larger open container.

6 March 2018

35. On 6 March 2018, the applicant and C were inside the drug laboratory. They dried out “large quantities of a substance” and discussed the formation of crystals, opining that there was about 26kg which would reduce to 20kg “as the crystals dry and grow”. This was a reference to 20kg of MDA. They expressed concern that it was not dry enough to put in a blender (which would create difficulty reducing the MDA to a powder, so it could then be pressed into tablet form).

12 March to 21 March 2018

36. On 12 March 2018, the applicant travelled to the Neville property with C. He met P at the Mount Rankin property the next day. The following day, on 14 March 2018, P transported six to eight white 20 litre containers from there to the Neville property.

37. On 19 March 2018 and 20 March 2018, the applicant, C and P were inside the drug laboratory on the Neville property, decanting chemicals and pouring them into 20 litre flasks which were then in distillation for a period of time. The applicant and P moved multiple 20 litre white containers from the white Ford Ranger utility into the drug laboratory. The applicant, P and C discussed “24 kilograms” as they completed the manufacturing process.

The applicant’s arrest

38. The applicant was arrested, cautioned, and conveyed to Granville Police Station on 22 March 2019. He participated in an electronically recorded interview in which he refused to answer questions about the investigation. He took part in a forensic procedure and provided a DNA sample.

Proceedings on sentence

39. The proceedings on sentence took place on 17 August 2020.

The Crown’s evidence on sentence

40. In addition to the agreed facts, the Crown tendered the applicant’s criminal and custodial records and a folder of confidential material in relation to the sentence.

The applicant’s evidence on sentence

41. Counsel for the applicant tendered a Defence Bundle comprising a letter of apology from the applicant, a report by a registered psychologist, Chafic Awit, medical documentation concerning the health of his parents, documentation concerning his progress in treatment for a gambling issue and five character references. The defence also tendered an excerpt of two ERISPs with the co-offenders C and P respectively. The applicant did not give evidence.

The psychologist’s report

42. In his report, dated 10 August 2020, Mr Awit gave an overview of the applicant’s background, which was to the effect that he was born in Lebanon. When he was aged three, his parents migrated to Australia, leaving him and his younger sister in the care of their grandparents. When he was aged eight, the civil war in Lebanon commenced, which led to him witnessing multiple traumatic incidents of violence and seeing numerous dead bodies. The sound of gunfire and bombings, and the scarcity of food, was a daily occurrence. The applicant and his sister joined their parents in Australia when he was 10 years old. In the interim, his parents had three other children which, according to Mr Awit’s report, prompted him to feel like an outsider to his family. He experienced language issues at school and difficulties relating to peers as a result of his childhood experiences. Nevertheless, he obtained his Higher School Certificate.

42. Mr Awit also outlined the applicant’s employment history, which commenced when he was aged 14, working every day after school and on weekends at a fast-food outlet. Between the ages of 20 and 24, he worked in a large law firm’s accounting department. He then established his own retail business, which failed after five years, resulting in a loss of $160,000. Other employment and business initiatives followed, with mixed success.

43. Mr Awit stated that his opinion was based on an “ongoing assessment” of the applicant, who had attended the practice nine times for psychological sessions and was booked in to return.

44. Mr Awit applied the Beck Anxiety Inventory, or BAI, to the applicant, which indicated that the applicant suffered from “Moderate Anxiety” in the lead-up to the period of offending, which Mr Awit reported is “consistent with the DSM – V Diagnostic Posttraumatic Stress Disorder”. Mr Awit reported that the BAI results current at the time of assessment indicated that the applicant suffered from “Severe Anxiety”.

45. Mr Awit also applied the Beck Depression Inventory, or BDI, to the applicant, which indicated that he suffered from “Moderate Depression” during the lead up to the period of offending, which Mr Awit reported is “consistent with the … DSM – V Diagnostic criteria for Major Depressive Disorder”. As at the time of assessment, that is, at the time of the report, the BDI indicated that the applicant suffered from “Severe Depression”.

46. Mr Awit found that the applicant’s symptoms met the DSM-V Diagnostic Criteria for a post-traumatic stress disorder (“PTSD”), a “Major Depressive Disorder with Psychotic Features” and a “Gambling Disorder”.

47. Following a review of the applicant’s personal and employment history and diagnoses, Mr Awit concluded that there was a “psychological link between [the applicant’s] condition and the offences before the Court”, which he opined stemmed from the applicant’s “impaired decision making ability at the time of the offences” due to “financial burdens”, difficulty proving his identity and his gambling in order to address anxiety and depressive symptoms. Mr Awit opined that PTSD, depression and a gambling disorder can cause individuals to “experience a bombardment of negative thoughts” with a “significantly diminished” ability to control them, leading to poorly evaluated decisions. He noted that the applicant had shown an understanding of the impact of his offending despite his “small” role in the “bigger picture” after reflecting and spending time in custody.

48. Mr Awit considered that the applicant posed a “low risk of reoffending”, noting that he was “actively participating in his treatment program” with Mr Awit and had achieved “significant stability” through his employment.

Medical letters

50. The Defence Bundle included letters by Dr Jacqueline Youssef and Dr Mounjed Dagher, concerning the medical condition of the applicant’s parents.

51. Dr Youssef noted that the applicant’s mother had been diagnosed with various psychological and physical conditions. The applicant was his mother’s “main carer” and “financial provider”, and he suffered “a great deal of added stress” due to the deterioration in her condition. Dr Youssef further noted that the applicant’s parents had “limited mobility” and “heavily rely” on the applicant to drive them to medical appointments and translate for them, expressing concern for the welfare of the applicant’s mother if the applicant was returned to custody.

52. Dr Dagher reported that the applicant’s parents suffered from “multiple medical conditions”. He similarly reported that the applicant was their sole carer, that their mobility was limited and that they did not speak or understand English. He observed that if the applicant did not continue as their carer there could be a “detrimental impact on their health and well being”.

The applicant’s letter

53. In his letter, the applicant stated that he accepted “full responsibility” for his offending and that he understood the seriousness of the offences, including “the extent of damage drugs can do to the end user and the community as a whole”. He stated that, since being in custody, he had seen “first-hand” the impact of drugs on people.

54. The applicant said that he been in employment whilst on bail and had been “honest … and truthful” with his employer about his charges. He reported being promoted to “operations manager” and overseeing the “entire running operation of the company”. His employer was supportive of him taking time to attend his parents’ medical appointments. He had experienced a “very challenging period” because of Covid-19, specifically, that “the fear of my elderly parents [being] put in a nursing home” if he returned to custody “haunts [him] every night given the state of the current health crisis”, and “the terrible tragedy that has affected my immediate family in Lebanon”.

55. Finally, the applicant reported seeking the help of a psychologist which had assisted him to “address [his] offences honestly and openly” with his family and friends and to identify and address a gambling problem by enrolling in an “online gambling help facility”.

Character references

56. As noted, the Defence Bundle included five character references, provided by the applicant’s brother, his employer, his former partner, a long-term friend and his nephew.

57. The applicant’s brother said that his letter was drafted on behalf of the applicant’s parents as well as himself and the applicant’s other sibling. He stated that the applicant was a source of “strength and support” within the family who had acted out of character in committing the offences. He noted the applicant’s willingness to assist his brothers with their business ventures and his role as “sole carer” for their parents, stating that the applicant’s incarceration would have “serious and adverse effects” on them. He stated that the applicant had demonstrated “sincere regret and remorse”.

58. The applicant’s employer stated that the applicant had been a full-time employee since 6 January 2020, and that he had been “very honest and sincere about his conviction” when seeking out the role following his release from custody. He noted that the applicant was promoted to “Operations Manager” overseeing a “large work force”, describing him as a “honest, loyal, respectable and reliable team player” and a “highly valued staff member”. He noted that the applicant was “dedicated to fulfilling a life of respect for the legal system” and that he believed he was “remorseful” and “rehabilitated”.

59. The applicant’s former partner stated that she had known him for “approximately fifteen years” and that they had “dated for many years”. She emphasised his good character, describing him as a “hard worker” with strong religious ties and beliefs. She described the applicant as “very remorseful” and upset about the impact of his offending on his family.

60. The applicant’s friend described knowing the applicant for “nearly 20 years”, noting that he had come to know him “more closely in the past 10 years” after the applicant had joined his social golf club. He perceived the applicant as “extremely remorseful” and described him as “friendly and kind and a trustworthy person of sober habits” from a “respected family”.

61. The applicant’s nephew stated that the applicant was a “role model” and “mentor” for him who had advised him on “all facets of life”, and that he had expressed remorse to him.

The remarks on sentence

62. The sentencing judge first addressed P’s offending and then moved on to the applicant, stating:

“… noting as I do that the same statement of facts underpins [the applicant’s] position, the same offences and the same approach I intend to adopt as discussed in relation to the maximum penalties, concurrency, aggravating factors and the like.”

Objective seriousness

63. The sentencing judge rejected a submission made by the applicant that the objective seriousness of his offending was “at the bottom or close to the bottom of the range”, instead finding that it was “at about the same level” as that of P. Accordingly, it is relevant to set out the sentencing judge’s findings as to the objective seriousness of P offending:

“As a general proposition … I find that this offence is in the mid-range of objective seriousness when considered as an enterprise. The amount itself is not determinative, but this was a committed manufacturing process and the amount that was yielded and was about to be yielded was considerable …

…

I consider the role of [P], and to an extent also [the applicant] … to be relatively unsophisticated, and so the objective gravity of this offender’s conduct, bearing in mind the significant difference between that and the conduct of the principals and the more egregious conduct of [Z] and ‘C’, and the less egregious conduct of Youssef and Washington, places his culpability for this offence towards the bottom, if not at the very bottom, of that mid-range.”

64. Addressing the applicant specifically, the sentencing judge stated that:

“Again just adopting the reasoning and analysis that applies to [P] in terms of the objective seriousness of the offence, I conclude this is a serious example of a serious crime and this offender played, not an indispensable role, but an important and significant role in it. He was at the clandestine laboratory in Neville from 1 November 2017 and he was there on a regular basis up to 20 March 2018. It is said by the Crown that he was actively involved in the process of manufacture, and so much cannot be gainsaid, although involvement sits at different levels.”

65. The sentencing judge assessed where the applicant’s role fitted in to the hierarchy of the criminal group, finding that:

“… he was there fulfilling his role and it was one of an individual, in my view, responsible for carrying out the manufacturing process above the two lower individuals, Youssef and Washington …

…

… he might have had a lesser involvement than others and a lot less involvement than the principals, but the significance of the role distinctions as between ‘C’, [P], [Z] and [the applicant] in this matter seems to become obscured in another way. I mean, none of these people were mere couriers, labourers, warehousers, front men … Those are the kind of people who are commonly recognised at the bottom rung of the manufacturing hierarchy.”

66. The sentencing judge found that each member of the criminal group, including the applicant, would have received a “not insubstantial financial reward framed in terms of their various roles”. The applicant was involved in “some logistical arrangements” and could make suggestions to improve the efficiency of the manufacturing process, although there was no evidence that these were implemented.

Subjective circumstances

67. The sentencing judge noted the applicant’s personal history as an immigrant from a war-torn country who, despite language issues and family disruptions, had persevered at school and obtained his Higher School Certificate. His employment history bespoke a strong work ethic, although he had encountered business difficulties and failures, involving the loss of substantial sums of money. These stresses contributed to him resorting to gambling over a number of years, which, the sentencing judge noted, was not a matter that excused his criminal behaviour or attracted significant weight, although it may “explain it all” and demonstrate a degree of vulnerability.

68. The sentencing judge noted that, at the time of sentence, the applicant was the registered sole carer of his father. His Honour accepted the evidence that the applicant’s incarceration would be detrimental to his parents’ welfare but found that this hardship was not exceptional in the sense identified in R v Edwards (1996) 90 A Crim R 510 that would warrant a substantial reduction of penalty, although it was a matter to be take into account in the general mix of relevant circumstances.

69. The sentencing judge noted the psychologist’s opinion that the applicant was suffering from “a relevant condition at the time of the offence”, but concluded:

“Ultimately, I can only accept to the required standard that aspects of his judgment have been likely affected by exposure to war as a child, a gambling disorder and depression, but the extent to which any of those issues reduces culpability for his committed involvement in this criminal enterprise of manufacturing kilos of MDA can only, in my view, be slight. None, save perhaps the need for money consequent on gambling losses, has made any apparent material contribution to the commission of this offence, and that is not a mitigating factor, as I have noted. Indeed, it makes clear that [the applicant’s] involvement was for financial gain; I have already concluded that.”

Mitigating circumstances

70. The sentencing judge found that the applicant was “unlikely to reoffend” and had “good prospects for rehabilitation” because he had “seemingly turned his life around”.

71. In addition, the sentencing judge acknowledged that the applicant “accepts responsibility for his offending behaviour” and “has a differently attenuated discount potentially available in relation to an honest appraisal” of his actions and the actions of others.

Delay

72. In the course of delivering the Remarks relating to P, the sentencing judge made the following comment concerning delay which is also of relevance to the applicant:

“There is another matter that I want to – before I impose sentence on this man – mention, and it refers, frankly, to all of the offenders which I have to deal with. These gentlemen have only come to sentence some years later. The accused, as they then were, sent a considerable period of time on remand before bail was ultimately granted. It is well-known that on remand you do not have access to the same kind of conditions and opportunities that arise as a sentenced prisoner. Thereafter their liberty has been curtailed while subject to onerous bail conditions. Proceedings were adjourned from early this year as a result of the pandemic when, quite properly and effectively, unnecessary entrants into gaol were left in the community waiting for determination of their cases. There has also been, as recently as last week, an issue with transport from this regional Court. The mental anguish to the offenders and their families I cannot calculate in terms, but I want to ensure that they are aware that I recognise, as part of the instinctive synthesis, the factors that have arisen as a result. To have this kind of thing hanging over your head, to be traipsing around, to not be able to re-engage your life, are significant matters.”

Special circumstances

73. The sentencing judge found special circumstances, stating:

“I repeat my comments about the course that has been charted to this point and the stress on the individuals and the difficulties that they inevitably have faced while waiting. I find special circumstances. I think I have indicated there is a basis for it so there will be an adjustment there. He has only got a minor criminal record, in my view, and it does not disentitle him to leniency. I think I have dealt with all the relevant matters.”

74. The sentencing judge’s reasons for finding special circumstances were reflected in his Honour’s orders of 19 October 2020:

“Discount of 25% recorded for plea, discount of 15% for assistance, finding of special circumstances confirmed on the basis of supportive family, issues with gambling, PTSD and mental health”.

Assistance

75. The sentencing judge allowed the applicant a sentence reduction of 10 per cent for past assistance and 5 per cent for future assistance, because the applicant made a statement concerning the offending which “is considered of some limited value … it is supportive of others’ accounts”.

Sentence

76. The total term of imprisonment was reduced by 25 per cent on a utilitarian basis. Consequent to the finding of special circumstances, the ratio of the non-parole period for the second offence to the total sentence was adjusted from 75 per cent to 64 per cent: s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the CSP Act”).

Ground 1

The sentencing judge erred by failing to take into account that the Covid-19 pandemic made conditions of imprisonment more onerous

The applicant’s submissions

77. The applicant submitted that the sentencing judge failed to consider the “future impact” of Covid-19 when sentencing the applicant, either expressly or by implication. In written submissions to the sentencing judge, the applicant had requested that the impact of Covid-19 on the conditions of incarceration for prisoners be taken into account, since:

“… at the present time any sentence of imprisonment is inevitably harsher than would normally be the case due in part to the Covid 19 restrictions but also due to the anxiety and fear of infection due to enforced close proximity.”

78. The applicant cited certain Court of Criminal Appeal cases that considered the relevance of the impact of Covid-19 on sentences of imprisonment, including Valentine v R [2020] NSWCCA 116. The applicant submitted that it was a matter that was relevant to a finding of special circumstances.

79. In the course of oral submissions by senior counsel for the applicant concerning special circumstances, the sentencing judge said: “Just while I’m on that, the question of COVID, of course, I’m aware of, and I will take that into account”. Later, during oral submissions by the Crown, the following exchange occurred:

“HIS HONOUR: … I’m looking at a finding of special circumstances which is a generous one, but knowing that he’s got to go before the Parole Board and he’s got to justify release in circumstances where we’ve got all manner of things, including the COVID issues which Courts – [counsel for the applicant] reminds me in these submissions where recent decisions of [the] Court of Criminal Appeal and the Supreme Court have given substantial weight to that … I haven’t been doing myself before realising that the superior courts are taking a much more proactive line, there.

[PROSECUTOR]: Yes. I did notice that from my friend’s submissions about the COVID. The Crown doesn’t wish to be heard against the issue of COVID.

HIS HONOUR: No.

[PROSECUTOR]: It poses special problems in relation to how prisoners are dealt with.”

80. Later again, in the course of an exchange with senior counsel for the applicant, the sentencing judge again referred to his intention to reflect the issue in the sentence:

“I think his life in custody’s going to be tougher because of COVID-19, to be quite frank. That’s everybody’s issue. They can’t see their family, they can’t communicate in the same way and their movements are strictly limited.

As I say, I’m now, thanks to your submissions, well aware of how superior courts are dealing with it and I obviously am obliged to give it significant weight.”

81. The applicant noted that the Remarks did not include an express acknowledgement of the likely impact of Covid-19 on the applicant’s conditions of incarceration and submitted that there was no reasonable basis upon which it could be inferred that the sentencing judge had taken it into account. The applicant also relied on the orders made by the sentencing judge which listed reasons for the finding of special circumstances, pointing out that considerations of the impact of Covid-19 on conditions of incarceration were not one of them. The fact that the sentence was handed down two months after the hearing was relevant to whether it could reasonably be assumed that, although it was not mentioned, it was nevertheless a factor that the sentencing judge had taken into account: see, for example Church v R [2012] NSWCCA 149 per Button J at [35], [36].

The respondent’s submissions

82. The respondent relied on the comments of the sentencing judge during the proceedings on sentence concerning the impact of Covid-19 on prison conditions, extracted at [79] and [80] above, and the passages from the Remarks extracted at [72] and [73] above, to found an inference that the sentencing judge did take into account that Covid-19 made imprisonment more onerous, as part of the process of instinctive synthesis.

82. The respondent submitted that the sentencing judge considered the impact of being in custody during the Covid-19 pandemic in the finding of special circumstances, stating:

“… the combination of all of the above references, understood in context, indicates that [the sentencing judge] found special circumstances not based solely on the pre-sentence custodial difficulties faced by the applicant, but as part of his overall ‘instinctive synthesis’ exercise on sentence; which necessarily encompasses considerations of what should be the totality of both the custodial and non-custodial portions of the applicant’s sentence.”

84. The respondent also relied on the observations of Bell P (as his Honour then was) (Davies J and N Adams J agreeing) in Moodie v R (2020) 284 A Crim R 87; [2020] NSWCCA 160, at [144], where the President stated that the relevance of Covid-19:

“… should not be overstated or necessarily extrapolated, given the fluid nature of distancing restrictions and the current cautious confidence in New South Wales as to control of the pandemic and the concomitant gradual relaxation of emergency restrictions on social movement.”

Consideration

85. It is apparent from the observations made by the sentencing judge at the sentence hearing that, consistent with authority, he intended to take into account as a circumstance of mitigation the likely impact of the Covid-19 pandemic on the applicant’s conditions of imprisonment. His Honour indicated that he intended to give it “significant weight”. However, the only references in the Remarks to the consequences of the Covid-19 pandemic concerned it being responsible for the delay experienced by the offenders in the resolution of their sentence proceedings. The question thus arises, whether one can safely infer from the sentence judgment, which was delivered two months after the sentence proceedings, that the sentencing judge had indeed taken it into account.

86. This Court has cautioned against reliance upon exchanges between the Bench and Bar table that precede a judgment as a basis for drawing inferences from the judgment. In R v Pearce [2020] NSWCCA 61, the Court said, at [61]:

“Exchanges during a hearing are not part of a judge’s reasons (unless they have been incorporated as such): see Craig-Bridges v NSW Trustee and Guardian [2017] NSWCA 197 at [121] and the authorities there cited. However, where, as here, the reasons for sentence are ambiguous, and inferences are sought to be drawn from details in the language, it can be helpful to consider the submissions to which they related. An example may be seen in Voronov v R [2017] NSWCCA 241 at [25].”

87. In my view, the passages in the sentencing judgment relied upon by the respondent do not give rise to an ambiguity concerning the issue of Covid-19 that could be resolved by recourse to the sentencing judge’s statement of intention in the sentence hearing. His Honour’s references in his Remarks to the impact of the pandemic were clearly confined to the issue of delay, which was given weight as one of the factors leading to a finding of special circumstances in the passage extracted at [73] above.

88. In some circumstances it has been accepted that a sentencing judge had taken into account a matter that was ventilated in the sentence hearing although not subsequently identified in the remarks on sentence. In Church, the sentencing judge failed to acknowledge an issue raised by the applicant that they had suffered from extra-curial punishment in the form of intense media scrutiny. Button J (McClellan CJ at CL and Price J agreeing) found, at [35], that it could be inferred that his Honour had factored it into his sentence, because:

“The solicitor for the applicant made oral submissions about the media attention very shortly before his Honour delivered the remarks on sentence. It is most unlikely that his Honour had forgotten or disregarded what had been said by the solicitor of the applicant moments before.”

89. In Stojanovski v R [2013] NSWCCA 334, the applicant submitted that the sentencing judge had failed to consider considerable evidence of remorse, although his Honour had favourably acknowledged the applicant’s rehabilitation. Simpson J (as her Honour then was) (Hoeben CJ at CL and Johnson J agreeing) said, at [41]:

“In my opinion, remorse is to be seen as a mitigating factor because it is a concomitant of rehabilitation, meaning that future offending is unlikely or less likely. Rehabilitation was treated by his Honour in some depth. Even if his Honour had expressly referred to, and accepted, the evidence of remorse as an independent factor, it could not have had any real bearing on the outcome.”

90. In Dunshea v R [2016] NSWCCA 244, a case also concerning an absence of reference in the remarks on sentence to the factor of remorse, Hidden J (Beazley P agreeing) cautioned against an endorsement of Church and Stojanovski as an approach to be generally adopted. His Honour said, at [29]:

“It is important to understand the observations of Button J in Church and Simpson J in Stojanovski in their context. In each case they were observations made in the light of the facts of the case at hand, and they should not be elevated into statements of principle having general application.”

91. The cases of Church and Dunshea, unlike this case, involved sentencing judgments that were delivered ex tempore, so that an inference was more readily available that the sentencing judge had indeed turned their minds to an issue that featured prominently in submissions. In Dunshea, in spite of that factor, Hidden J (Beazley P agreeing) concluded that, in the circumstances of that case, the evidence of significant remorse warranted express consideration. No reference was made in Stojanovski as to how long after the sentence hearing the sentence was handed down.

92. The circumstances in this case relevant to this issue are that the sentence was handed down two months after the sentence hearing, the Remarks make no reference to the applicant’s likely conditions of imprisonment, either generally or consequent to the impact of the Covid-19 pandemic on the prison system and, in particular, it is not one of the bases that were identified in the sentencing judge’s orders for his Honour’s finding of special circumstances. Although it is of course possible that the sentencing judge did take it into account, in view of his stated intention in the course of the sentence proceedings to give weight to that factor, I cannot safely infer from the Remarks that his Honour did in fact do so.

93. Accordingly, in relation to ground 1, I would grant leave to appeal and allow the appeal.

94. Although it is unnecessary to consider the second ground, as the Court must resentence the applicant, it is appropriate to determine it.

Ground 2

There is a disparity in the sentence of the applicant for the second offence and that imposed on his co-offender, Derrick Washington, that gives rise to a justifiable sense of grievance on the applicant’s behalf

Background

95. Mr Washington was convicted in a judge-alone trial by Judge Zahra SC of two offences:

1. Between 4 September 2017 and 22 March 2018, in Wetherill Park and other locations in the State of New South Wales, he did participate in a criminal group, knowing that it was a criminal group, and knowing that his participation in that group contributed to the occurrence of a criminal activity, contrary to s 93T(1) of the Crimes Act;

2. Between 4 September 2017 and 22 March 2018, in Wetherill Park and other locations in the State of New South Wales, he did knowingly taking part in the manufacture of a prohibited drug, namely, MDA, in an amount not less than 500g being an amount not less than the large commercial quantity for such drug contrary to s 24(2) of the Drug Misuse and Trafficking Act.

96. Judge Zahra SC handed down Mr Washington’s sentence on 25 June 2021, which was eight months after the applicant received his sentence. Mr Washington received a fixed term of imprisonment of 1 year 6 months for the first offence and a sentence of imprisonment of 4 years and 3 months, with a non-parole period of 2 years, for the second offence. The sentences reflected a 5 per cent discount for the utilitarian benefit of the trial being shortened by the defence agreeing to the narrowing of issues for determination. The sentences, to be served concurrently, were backdated to 6 July 2020 to reflect a period of pre-sentence custody, so that Mr Washington became eligible for release to parole on 5 July 2022.

Relevant findings concerning Mr Washington

97. In his remarks on sentence, Judge Zahra SC adopted the same overview of the respective roles of the co-offenders that was set out by the sentencing judge, which is extracted at [9], above. As to the specific role of Mr Washington, his Honour made the following findings for the purposes of sentence, on the basis of the evidence in the trial:

1. Mr Washington did not enter the joint criminal enterprise before November 2017, which was “well after the manufacturing of MDA was commenced”;

2. There was no evidence that Mr Washington attended the drug laboratory on the Neville property;

3. There was no evidence that Mr Washington transported precursor chemicals to the Mount Rankin property;

4. The manner in which Mr Washington was knowingly concerned in the manufacture of MDA was “by facilitating the movement of precursor chemicals he knew would be used in the manufacture of a prohibited drug”;

5. As to those steps:

“Whilst the evidence establishes that the offender assisted in moving chemicals within the Wetherill Park complex and between Yennora and Wetherill Park, these appear to be on a relatively small number of occasions”;

6. Mr Washington’s role was not indispensable, because:

“… there were a number of other persons carrying out tasks there of moving and transporting precursor chemicals to be used in the Neville laboratory”;

7. As to the extent of Mr Washington’s awareness of the quantity of drug manufactured, his Honour concluded that he knew it “substantially exceeded [500 g]”; and

8. Mr Washington engaged in the criminal enterprise for financial gain, but the extent to which he hoped to be financially rewarded is not known.

98. As to objective seriousness, Judge Zahra SC concluded:

“I am of the view that the objective seriousness of the offending falls towards the bottom of the range of objective seriousness for offences involving the manufacture of large commercial quantity of prohibited drugs. This primarily is based upon my conclusion that [Mr Washington] was involved in a relatively small number of steps; that he did not provide any intelligence towards the undertaking of the processes of manufacture; that he engaged in simple labouring tasks; that he followed the directions of others and his role was dispensable. Whilst the steps he engaged in spanned over some months, [Mr Washington] was not continuously involved but [was] brought in to undertake relatively minor tasks when a particular need arose.

Offending of this kind is however, of a serious kind and sentences imposed on those who are involved in the manufacture of prohibited drugs at any level should reflect the paramount need for deterrence.”

99. As to subjective factors, Judge Zahra SC found that Mr Washington was a person of good character with one minor prior conviction for a driving offence. Mr Washington was an American citizen, born and raised in the southern states, where he endured the trauma of racism. He would likely be extradited upon completion of his sentence. He had an adult child who resided in Australia and who was emotionally dependent upon him, and thus would lose that family contact. He was known as a hard worker.

100. Judge Zahra SC noted that Mr Washington was held on remand for almost 12 months and was then on bail for over two years until his sentence, the long delay being for reasons beyond Mr Washington’s control, one of which was the impact of the Covid-19 pandemic. He had good prospects of further rehabilitation and was unlikely to re-offend. His Honour accepted that returning to custody after a long period at liberty would create hardship for Mr Washington’s family and Mr Washington himself, which he took into account “as part of the general mix of subjective circumstances”.

101. Judge Zahra SC found that there were special circumstances, since Mr Washington’s return to custody would impact upon his progress towards rehabilitation and he would thus require:

“… lengthy supervision upon his release primarily to ensure the offender’s associations with others are monitored and he receives guidance and counselling as he returns to a stable life after prison.”

102. Judge Zahra SC expressly acknowledged considerations of parity in fixing the sentence, annexing to his remarks on sentence a table setting out the sentences that had been imposed up to that time on the co-offenders, which included the applicant and P. His Honour stated:

“The sentences [that] I intend to impose here will reflect my findings that the offender is at the bottom of the hierarchy of those involved in the manufacture of MDA and reflect the different circumstances of the individual cases against each co-offender.”

The applicant’s submissions

103. The applicant noted that there is a seven-year disparity in the nominal starting points of the applicant’s sentence for the second offence (11 years 8 months) and Mr Washington’s sentence for the second offence (approximately 4 years 6 months). He submitted that, allowing for the differences between the respective cases including the differently formulated second offence and Mr Washington’s conviction at trial, he has an objectively justifiable sense of grievance in respect of the sentences imposed on Mr Washington, including the ratio of the non-parole period to the head sentence of the second offence.

104. This was the case, in the applicant’s submission, even after accounting for his “more serious role”, the findings of Judge Turnbull SC and Judge Zahra SC regarding objective seriousness, and knowledge about the quantity of drug involved. The applicant pointed to similarities in their roles; they were members of the “same criminal enterprise working to achieve the same criminal objective”, both were not indispensable in that venture and the same maximum penalties applied to both offences.

105. The finding of special circumstances for Mr Washington resulted in the ratio of his non-parole period to total sentence being adjusted to 47 per cent. The applicant submitted that one of the reasons for which Judge Zahra SC found special circumstances, namely, to monitor Mr Washington’s associations with others, “would also have been a further basis” for the sentencing judge’s finding of special circumstances in the fixing of his non-parole period. The applicant relied on Li v R [2005] NSWCCA 442 and the related case of Lin v R [2006] NSWCCA 258 as demonstrating that a “disparity in the non-parole period imposed on co-offenders” is one way in which an “objectively justifiable sense of grievance” may arise, in those cases because the sentencing judge made the same findings regarding two offenders but imposed different statutory ratios.

106. The applicant submitted that his subjective case was at least similar in mitigatory weight to that of Mr Washington, although arguably stronger, having regard to the evidence of the applicant’s remorse (as opposed to Mr Washington being convicted at trial), and the applicant’s mental conditions.

The respondent’s submissions

107. The respondent submitted that the applicant could not demonstrate a justifiable sense of grievance when one takes into account the relevant differences between the findings in the respective judgments, concerning:

“… the charges, the objective facts as found by their Honours in their respective remarks on sentence, and in the subjective cases presented by each offender ... the principal differences … included the different discounts available to each on sentence, the roles of the offenders, the amounts of the drugs involved and the extent of the adjustment to the non-parole period as a result of the finding of special circumstances.”

Consideration

108. The principles that are relevant to the issues of parity of sentencing are well-known. In Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, Dawson and Gaudron JJ stated, at 301:

“The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them [in Lowe v The Queen (1984) 154 CLR 606; [1992] HCA 29 at 610-611 per Mason J]. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. … the parity principle, as identified and expounded in Lowe v The Queen, recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to ‘a justifiable sense of grievance’. If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options.

Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co- offenders in question and their different degrees of criminality.” (footnotes omitted)

109. A sentence that is not in itself manifestly excessive may be reduced in order to avoid a marked disparity with a sentence imposed on a co-offender: Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, at 609-610, or an “unjustifiable disparity”; Green v The Queen (2011) 244 CLR 462; [2011] HCA 49, at [32].

110. In my view, a comparison of the objective and subjective features in each case does not bear out the applicant’s complaint of relative disparity. Most importantly, in contrast to the applicant’s role in the joint criminal enterprise, the framing of the second offence in respect of Mr Washington, that he was “knowingly concerned” in the manufacture of MDA, reflected the Crown’s acceptance, as noted by Judge Zahra SC, that there was no evidence that he was directly involved in the manufacturing process of the MDA. His role was simply to move chemicals, an activity which his Honour found was restricted to the Wetherill Park premises, where he had been lawfully employed by Mr Raisa as a labourer in a legitimate hospitality business “over many years”. The finding that Mr Washington had not transported precursor chemicals to the Mount Rankin property was a reduction in Mr Washington’s role as it was understood from the agreed facts in the sentencing of the applicant; and noted by the sentencing judge: see [9](h) and [16] above.

111. This is in contrast to the applicant’s role, which consisted of being directly involved in the manufacture of the MDA on multiple occasions; being present at the Wetherill Park premises and the Mount Rankin properties and at times residing at the Neville property; carrying and decanting chemicals; and being so supportive of the joint criminal enterprise that he made suggestions on how the manufacturing process might be shortened (see [28] above) and discussed the need to quickly dispose of waste from the manufacturing process using an excavator at the Neville property.

112. Another significant disparity was as to the quantity of MDA involved in the manufacturing process. Judge Zahra SC found that Mr Washington’s awareness of the quantity of MDA produced was to be inferred from him transferring large volumes of precursor chemicals at the Wetherill Park premises. He must have been aware that the quantity of end product of MDA would have been “substantial”. In contrast, the form of the second offence to which the applicant pleaded guilty stated the quantity that he manufactured as part of the joint criminal enterprise to be 24kg.

109. These differences were reflected in the findings as to objective seriousness; for the applicant, “towards the bottom, if not at the very bottom, of that mid-range” and for Mr Washington “towards the bottom of the range” for such offences.

110. Mr Washington’s subjective case, in my view, was stronger than that for the applicant. Whereas Mr Washington was a person of prior good character, the applicant had a criminal record comprising multiple convictions for matters of fraud and theft, although none resulted in a custodial sentence.

111. The applicant’s various mental conditions were a double-edged sword. While they may have contributed to his vulnerability to engage in criminal offending, if unaddressed, they could contribute to further offending. There was no evidence of Mr Washington having a destabilising mental condition.

112. I am not satisfied that the sentence for the second offence that was imposed on the applicant was so disproportionate to the total term of the sentence for the second offence that was imposed on Mr Washington by Judge Zahra SC as to warrant appellate intervention. Indeed, I am not persuaded that the applicant’s sentence for the second offence was relevantly disproportionate at all, when one considers the differences between him and Mr Washington as to their roles in the joint criminal enterprise as I have summarised them.

113. A discrete aspect of parity raised by the applicant was the variance between the sentences as to the ratio of the non-parole period to the total term of sentence (“the ratio”). As noted, the sentencing judge varied the ratio in the applicant’s sentence to 64 per cent on the basis of “supportive family, issues with gambling, PTSD and mental health”. Judge Zahra SC varied the ratio in Mr Washington’s sentence for the second offence to 47 per cent due to a need “to ensure the offender’s associations with others are monitored and he receive[s] guidance and counselling as he returns to a stable life after prison”.

114. If the considerable difference between those ratios in the two cases is to be assessed only in the context of the reasons for finding special circumstances and the comparative subjective cases, it could reasonably be described as a “marked” or “unjustifiable” disparity warranting appellate intervention. However, the non-parole period of a sentence of imprisonment reflects other sentencing factors which must be compared as well, in order to discover whether the non-parole periods are relevantly disparate.

115. In Thach v R [2018] NSWCCA 252, Davies J (Bathurst CJ and R A Hulme J agreeing) reviewed authority as to the constraints upon the reduction of the ratio.

“42   It is not appropriate to fix a non-parole period primarily from the perspective of the length of the period of supervision on parole, or primarily by reason of considerations of rehabilitation: [R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534] at [55]-[59]. The correct perspective is reflected in the terms of s 44(1) of [the CSP Act], and the line of authority was summarised by this Court in R v MA (2004) 145 A Crim R 434; [2004] NSWCCA 92 at [33]:

[T]he Court in Simpson followed what had been said by the High Court in Power v The Queen (1974) 131 CLR 623 at 627-629 to the effect that the purpose of fixing the non-parole period is not to convert a punishment into an opportunity for rehabilitation, but that the non-parole period should be the minimum period that the offender must spend in gaol having regard to all the elements of punishment, including the objective seriousness of the crime, deterrence and the subjective circumstances.

[Emphasis added]

43   Accordingly, the discretion to find special circumstances is subject to ‘the ultimate constraint that the non-parole period must itself appropriately reflect the criminality involved in the offence’: Simpson at [63] per Spigelman CJ. This principle was restated in R v Lulham [2016] NSWCCA 287 at [55], where Bellew J held (Bathurst CJ, Beazley P, Hall and N Adams JJ agreeing) that a sentencing judge is not permitted to reduce a non-parole period to a level below that which is necessary to punish the offender and provide specific and general deterrence, even if he or she is satisfied that there are special circumstances.”

120. It follows that a comparison of the ratio must take into account the respective findings as to objective seriousness and the need for general and specific deterrence as well as the subjective cases. When this is done, as I have already observed, there is a significant difference between the applicant’s case and that of Mr Washington, which appropriately constrained the extent to which the sentencing judge could reflect the finding of special circumstances in a reduction of the ratio.

121. Accordingly, in relation to ground 2, I would grant leave to appeal and dismiss the appeal.

Resentence

Fresh material

122. Affidavit evidence was read at the hearing without objection, to be taken into account on resentence, should that occur. The affidavit evidence comprised an affidavit sworn by the applicant on 11 March 2022 and an affidavit of the applicant’s solicitor sworn on 15 March 2022.

123. In his affidavit, the applicant outlined adverse conditions that he had experienced in prison consequent to the impact of the Covid-19 pandemic. He stated that he was initially placed in a cell with one other prisoner as a form of quarantine for a period two weeks, the only time out of the cell being “15 to 20 minutes every couple of days to make a quick phone call, pick up soap and go back”. At the time of swearing his affidavit, he was at a prison where for a period of nine days his pod was without hot water. Plumbers could not attend to fix the problem over that period because of Covid-19 restrictions. He had spent half of the three months that he had been detained at that prison in lockdown, due to Covid-19. In the 12 months prior to his affidavit, he had only one family visit due to Covid-19 restrictions. He was permitted video and telephone contact with his family two days per week. He believed that he was unable to be re-classified to a level that would enable him to participate in work release in the community, because courses that would facilitate his re-classification had been cancelled because of Covid-19.

124. The applicant stated that his parents continue to be in poor health. The applicant’s anxiety has been impacted by the conditions of incarceration, his frustration at not being reclassified and concern over his parents’ health and welfare.

125. The applicant’s solicitor’s affidavit was to the effect that, after speaking to him on “more than 20 occasions” in 12 months via audio-visual link and telephone conferences, she had noticed changes in his demeanour, specifically that he had become “less communicative” and “his usual sharp wit is dulled”. The applicant’s solicitor also attached copies of the applicant’s custodial history and an excerpt of the Public Defenders’ Bugmy Bar Book titled “COVID-19: Risks and Impacts for Prisoners and Communities”.

126. An affidavit sworn by a solicitor for the respondent attached documentation from Corrective Services that broadly corroborated the assertions in the applicant’s affidavit as to the need for him to complete a particular course in order to progress to a lower classification. The respondent’s solicitor’s affidavit also attested to the applicant’s positive progress in prison and the availability of electronic means to facilitate on-going family contact while visits are prohibited.

Consideration

127. I have regard to the agreed facts as set out at [9]–[38] above, with the exception that I disregard the last sentence of set out at [9](h) above, in keeping with the finding of Judge Zahra SC that is recited at [97(3)](3) above. I conclude that, although the applicant was not a principal, he was nevertheless a participant in the joint criminal enterprise at a reasonably senior level, being actively involved in the manufacturing of the MDA, seeking to facilitate a faster method of production, residing at the remote location of the laboratory and moving the ingredient chemicals around.

128. In relation to the second offence, I have regard to the significant quantity of MDA involved, which is 48 times the large commercial quantity of 500g, the maximum penalty of life imprisonment and the standard non-parole period as legislative signposts. I make the same finding as the sentencing judge as to the objective seriousness of the offence, placing it as towards the bottom of the mid-range of objective seriousness. I also make the same findings as to the subjective features of the case. The fresh evidence as to the applicant’s positive progress corroborates the evidence at the sentence hearing that he has good prospects of rehabilitation and is unlikely to re-offend. Although the hardship occasioned to his family by his incarceration does not meet the standard required for significant weight that is required by Edwards, I take it, and his distress at that hardship, into account in the general mix of subjective circumstances.

129. Having regard to the purposes of sentencing that are identified in s 3A of the CSP Act and pursuant to s 5(1) of that Act, I am satisfied that only a sentence of imprisonment is appropriate. I find special circumstances on the basis of the need for treatment of the applicant’s depression, PTSD and gambling disorder when he is released to the community, in order to reduce their potential to undermine his progress towards rehabilitation. I also take into account in finding special circumstances the continuing impact of the Covid-19 pandemic on the applicant’s conditions of incarceration.

130. In my view, a lesser sentence is warranted, by way of further reduced ratio of the non-parole period to the total term. I would impose an aggregate sentence of imprisonment of 7 years, backdated to commence on 29 January 2019 and expiring on 28 January 2026, with a non-parole period of 4 years 2 months, so that the applicant would be eligible for release to parole on 28 March 2023. I nominate indicative sentences of 2 years in respect of the first offence and 7 years with a non-parole period of 4 years 2 months in respect of the second offence.

Orders

131. I propose the following orders:

1. Application for leave to appeal granted.

2. Appeal allowed.

3. Quash the sentence imposed in the District Court and in lieu thereof sentence the applicant to an aggregate term of imprisonment of 7 years backdated to commence on 29 January 2019 and expiring on 28 January 2026, with a non-parole period of 4 years 2 months. The earliest date the applicant will be eligible for release to parole is 28 March 2023.

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Endnote

Amendments

23 October 2023 - Anonymisaton amended

Decision last updated: 23 October 2023