Takiari v The Queen - [2009] NSWCCA 84

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Takiari v R [2009] NSWCCA 84

FILE NUMBER(S):
2007/13155
2007/12567

HEARING DATE(S):
25 March 2009

JUDGMENT DATE:
31 March 2009

PARTIES:
Noel Aaron Takiari (Applicant)
Duane Turei Takiari (Applicant)
Regina (Respondent)

JUDGMENT OF:
McClellan CJatCL Buddin J Rothman J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
07/21/3203 (Noel), 07/21/3204 (Duane)

LOWER COURT JUDICIAL OFFICER:
Sorby DCJ

LOWER COURT DATE OF DECISION:
14 February 2008

COUNSEL:
P Winch (Applicant Noel)
A Cook SC (Applicant Duane)
P Leask (Respondent)

SOLICITORS:
Wells Yates and Associates (Applicant Noel)
S O'Connor (Legal Aid Commission) (Applicant Duane)
S Kavanagh (Solicitor for Public Prosecutions)

CATCHWORDS:
Criminal Law - sentence - possession of a precursor intended to be used in the manufacture of methylamphetamine - theft of property as a clerk - whether features of the case impermissibly used as aggravating factors - parity - totality

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985

CATEGORY:
Principal judgment

CASES CITED:
Bowden v R [2009] NSWCCA 45
Elyard v R [2006] NSWCCA 43
Hewitt v R (2007) 180 A Crim R 306
Natoli v R [2009] NSWCCA 36
Reaburn v R (2007) 169 A Crim R 337
R v Cousins (2002) 132 A Crim R 444
R v Yildiz (2006) 160 A Crim R 218

TEXTS CITED:

DECISION:
Leave to appeal granted. Appeals dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2007/13155
2007/12567
McCLELLAN CJ at CL
BUDDIN J
ROTHMAN J
TUESDAY 31 MARCH 2009

NOEL AARON TAKIARI v R; DUANE TUREI TAKIARI v R

Judgment

McCLELLAN CJ at CL: I agree with Buddin J
BUDDIN J:
Introduction
The applicants Noel Aaron Takiari (whom I shall refer to as NAT) and his brother Duane Turei Takiari (whom I shall refer to as DTT) seek leave to appeal against sentences imposed upon them in the District Court. The applications have, for reasons of convenience, been heard together.
A joint indictment containing four counts was presented against the applicants who entered pleas of guilty to the various counts alleged against them. Count 1 alleged that on 4 September 2006 DTT stole property as a clerk (being 5,456 packets of cold and flu tablets and 1,968 Neutrogena cosmetic products). Count 2 alleged that on 15 September 2006 each of the applicants possessed a precursor (being 106,656 tablets of pseudoephedrine) intended to be used in the manufacture of methylamphetamine. Count 3 alleged that on the same day each of the applicants attempted to dispose of stolen property (being 4,444 packets of cold and flu tablets). Count 4 alleged that on the same day DTT possessed a precursor (being 24,288 tablets of pseudoephedrine) intended to be used in the manufacture of methylamphetamine. NAT also asked that a further offence of goods in custody, which was on a Form 1 document, be taken into account on sentencing. Each of the four counts attracted a maximum penalty of 10 years imprisonment although in respect of counts 2 and 4, a pecuniary penalty was also available.
In respect of count 2, and taking into account the Form 1 matter, NAT received a non-parole period of 3 years with a total term of imprisonment of 5 years. In respect of count 3, a wholly concurrent term of 12 months imprisonment was fixed. His total effective sentence for the two offences is thus one of 5 years imprisonment with a non-parole period of 3 years. In respect of count 1, DTT received a sentence of 18 months. In respect of count 2, he received a non-parole period of 2 years 6 months with a total term of imprisonment of 4 years 6 months. That sentence was wholly accumulated upon the sentence imposed in respect of count 1. In respect of count 3, he received a sentence of 12 months imprisonment which was wholly concurrent with the sentence imposed in respect of count 1. In respect of count 4, he received a sentence of 12 months which was wholly subsumed within the sentences imposed in respect of counts 1 and 2. His total effective sentence for the four offences is thus one of 6 years imprisonment with a non-parole period of 4 years.
Factual background
As there is no dispute about the facts, they can be briefly stated. A police investigation commenced on 13 September 2006 after an Assistant Commissioner of Police granted a controlled operation authority in relation to the supply of pseudoephedrine tablets by NAT and his associates.
Around 1 pm on 14 September a police undercover operative (UCO) made contact with NAT via his mobile phone. NAT and the UCO had a discussion about the sale of 30 cartons of pseudoephedrine based cold and flu tablets. NAT indicated that he had 30 cartons for sale and that he wanted $2,000 for each carton making a total of $60,000. NAT agreed to have a further meeting with the UCO the following morning.
Around 10 am the following morning, 15 September, the UCO rang NAT. They arranged to meet a short time later at a coffee shop in the Stocklands Mall at Wetherill Park. After meeting at the coffee shop, NAT then went to a vehicle where he showed the UCO a sample of the cold and flu tablets. The sample consisted of one packet of Orthoxicol cold and flu tablets.
A price of $60,000 was agreed upon and the parties arranged to meet up again in order to complete the transaction. During the course of the conversation with the UCO, NAT admitted knowing what the pseudoephedrine was to be used for. He went on to explain to the UCO about how to extract the pseudoephedrine from the tablets and also explained to him about the “cooking” of amphetamines.
At around 1 pm that day NAT met the UCO in the car park of the Kennards self-storage centre on the Horsley Drive at Wetherill Park. NAT had 5 Kennards storage boxes in his vehicle which contained the equivalent of 15 cartons of cold and flu tablets. Another UCO then attended the car park with $60,000 in cash. NAT looked at the money and then made a phone call to DTT. DTT arrived shortly thereafter with another 5 Kennards boxes containing the remaining cartons of the cold and flu tablets. The UCO spoke to DTT and then had a look at the items. Police attended the area and the applicants were then arrested.
The 10 boxes contained a total of 4,444 packets. Each packet in turn contained 24 individual tablets making a total of 106,656 tablets. The tablets were analysed and found to contain pseudoephedrine. (These events gave rise to counts 2 and 3 against each of the applicants).
Later that day a search was conducted at NAT’s premises. Police located 12 ship ornaments in white boxes, 43 dog bowls in original packaging and 1 packet of Orthoxicol cold and flu tablets containing 24 tablets and 1 packet of Tylenol cold and flu tablets which also contained 24 tablets. (This discovery gave rise to the Form 1 offence).
A search was also conducted at DTT’s premises. During the course of the search, police located a number of cardboard boxes which contained a total of 1012 packets of pseudoephedrine tablets. In all 24,288 tablets were located. (This discovery gave rise to count 4).
In other boxes, police located 82 cartons of Neutrogena cosmetic products. Each carton contained 24 bottles which meant that there was a total of 1968 Neutrogena cosmetic products.
The products located during the search of DTT’s home, together with the 4444 packets of cold and flu tablets located at the Kennards self storage centre, had been stolen from DTT’s employer, DHL Logistics on 4 September 2006. (It was that activity which gave rise to count 1).
DHL Logistics is a company involved in the warehousing and distribution of all types of products including pharmaceutical and cosmetic products. DTT was part of a team which searched the warehouse for stock that was not logged onto the system, or that was damaged or that had expired and was due for destruction. DTT was responsible for placing the expired stock which was due for destruction into bins. He had a trusted role in the company because he had access to all types of stock.
When interviewed by police, NAT made admissions which included acknowledging that he had arranged for the sale of the pseudoephedrine based products on behalf of his brother for a share of the profits. He also admitted to being aware of the use to which pseudoephedrine is put in the manufacture of amphetamine based drugs. He told police that he had participated in these offences because he had outstanding debts and in order to support his children.
DTT also made full admissions when interviewed by police. He stated that the pseudoephedrine tablets and the Neutrogena products had been stolen from his employer a couple of weeks before his arrest. He admitted that he and three other employees had stolen the items which had all been scheduled to be destroyed. The offender told police that he had just started a new relationship and that he did not want to carry his outstanding debts into that relationship. In relation to the sale of the tablets, DTT stated that he did not know that pseudoephedrine was used in the manufacture of methylamphetamine until after he had been involved in stealing the tablets. DTT stated that he told his brother that if he was able to sell them he [DTT] would take $500 for each carton. He maintained that it was only just prior to the sale of the tablets that he became aware that his brother had been intending to sell them for $2000 per carton.
Evidence before the court revealed that pseudoephedrine, which is itself a prohibited drug, is the most common precursor in the manufacture of methylamphetamine. The evidence also revealed that pseudoephedrine is the active ingredient in “over the counter” cold and flu medication available in community pharmacies. Because of the restrictions on the availability of pseudoephedrine in raw form, persons involved in methylamphetamine manufacture acquire this precursor through a practice commonly known as “pseudo running” whereby person/s attend pharmacies and purchase packets of over the counter pseudoephedrine based products.
There was expert evidence before the court that 106,656 tablets could yield 3.2kgs of extracted pseudoephedrine. The evidence revealed that that amount of pseudoephedrine could be converted into 19 kg of methylamphetamine hydrochloride with a potential street value of $1.9 million if sold in 1 gram packages at $100 per grams.
Subjective features
NAT
The sentencing judge was provided with a body of material from which he was able to discern a great deal about this applicant’s personal circumstances. It consisted of a pre-sentence report, various testimonials, certificates of achievement and evidence from both the applicant and his de facto partner. The evidence revealed that the applicant was born in New Zealand. He and his older brother spent time together in the care of their aunt who fostered them after they had been made wards of the State. That was because their parents had significant issues with alcohol as a result of which they were unable to adequately care for the applicant. It is apparent that the brothers on at least one occasion returned to their mother. It may be accepted that the applicant’s childhood was disrupted and, at times, difficult. The applicant left school at the end of Year 11. He then had various labouring jobs and also completed an apprenticeship in glazing. In 1998 the applicant migrated to Australia when he was aged 23. Shortly after his arrival, he set up a business with another of his brothers. Unfortunately the business failed and the applicant was left with debts of $70,000. At the time of his arrest, the applicant had been working as a forklift driver in a warehousing company. He was then 31 years of age.
At the time of sentence, the applicant had been in a de facto relationship for a period of 10 years. He and his partner have four children. He also has a child from an earlier relationship. His de facto partner gave evidence that she had been regularly visiting the applicant in gaol and that she would continue to support him. At the time of his arrest, the applicant had been heavily addicted to amphetamines. Whilst in custody he had undertaken the SMART program in an effort to deal with his addiction. He gave evidence that upon his release he would undertake further drug rehabilitation, both in a community based program and through his church which is able to assist people to overcome their dependency upon illicit drugs. The applicant had not incurred any misconduct charges whilst in custody and was otherwise progressing well.
The sentencing judge took into account the fact that, when interviewed, the applicant made full admissions to police. He accepted that the applicant, who gave evidence apologising for his actions and indicating that he was ashamed of what he had done, was genuinely remorseful. His Honour extended to the applicant “the full discount” for his early plea of guilty. His Honour noted that, other than traffic matters, the applicant did not have a criminal record. His Honour also made a finding of “special circumstances” because of “his efforts of rehabilitation and the need for ongoing rehabilitation” and also because it was “his first experience of prison”.
DTT
The sentencing judge also had available to him in respect of this applicant, a pre-sentence report, testimonials, certificates of achievement together with oral evidence from the applicant and from his former de facto partner.
From that material, the sentencing judge found that this applicant had also experienced problems in his family life due to the abuse of alcohol. Although the applicant left school at the age of 15, he had been in stable employment ever since. He apparently spent a short period of time in the army where he worked as a carpenter. He then returned to full-time study and completed years 10 and 11 subjects gaining certificates in fabrication, welding and general mechanics. He then worked as a truck driver for 5 years. The applicant moved to Australia where he obtained a certificate in Performing Arts and a Bachelor of Arts degree from Sydney University. For 8 years prior to the offence he had worked at DHL Logistics where he was a team leader at one of the company’s warehouses. During the course of that employment he had completed a Diploma of Logistics, a first aid course and was chairperson of the safety committee. DAT also had four children and enjoyed the on-going support of his former de facto partner. He was 37 at the time of the offence. He too was employed in gaol and was otherwise progressing well. He gave evidence that he would seek employment in the IT industry upon his release from gaol.
The sentencing judge took into account in the applicant’s favour the fact that he had no prior criminal history. He extended to him the “full discount of …25%” for his early plea of guilty. His Honour found that the applicant was genuinely remorseful given his admissions to police and his evidence in the witness box during the course of which he apologised for his actions.
The applicant gave evidence that, at the time of the offence, he had debts totalling $72,000. He said that he had decided to take advantage of his situation “for financial gain”. His Honour made a finding of “special circumstances” because of his “prospects of rehabilitation and his employment” and because it was the applicant’s “first experience of prison”.
Grounds of Appeal
NAT
1 The learned sentencing judge erred by finding, pursuant to s 21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999, as an aggravating circumstance that the offence was a “planned criminal activity”.
2             The learned sentencing judge erred by failing to give sufficient weight to the applicant’s subjective circumstances, particularly his prior good character and lack of previous convictions.
3 The learned sentencing judge erred by using an element of the offence to aggravate the seriousness of the offence contrary to s 21A(2) of the Crimes (Sentencing Procedure) Act 1999.
DTT
1             The sentences for the second and fourth offences on the indictment are manifestly excessive, especially when viewed in combination.
2             The sentence imposed for the second offence lacks due proportionality to that imposed for the same offence on Noel Takiari.
Subsequently notification was received that DTT wished to add two further grounds of appeal, being Grounds 1 and 3 of those relied upon by NAT. When the matter came on for hearing, counsel for DTT indicated that only Ground 1 was now relied upon. In respect of that ground, the applicant DTT adopted the submissions advanced on behalf of NAT.
It is convenient to deal first with the grounds of appeal advanced upon by NAT.
Ground 1 – (both applicants)
Complaint is made about the sentencing judge’s remark that “in aggravation, the offence was part of the planned criminal activity”. Plainly enough that was a reference to s 21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999 which provides that it is an aggravating factor if “the offence was part of a planned or organised criminal activity”. A sentencing court is prohibited from taking into account as an aggravating factor an element of the offence: s 21A(2). The prohibition extends to taking into account a matter that amounts to an inherent characteristic of the offence: Elyard v R [2006] NSWCCA 43.
In R v Yildiz (2006) 160 A Crim R 218, Simpson J, with whom Hoeben agreed, observed:
As in Elyard, there was no evidence that would permit a finding beyond reasonable doubt that the degree of planning in this case exceeded what would ordinarily be expected of an offence of this kind – that is, the degree of planning that would be inherent in the possession of a large quantity of drugs for the purpose of supply. I therefore conclude that what was said was an error. However, in my view, it was something that, at most, marginally affected the selection of the ultimate sentence. (at par 39) (emphasis added)
In Hewitt v R (2007) 180 A Crim R 306, Hall J, with whom McClellan CJ at CL and Price J agreed, said:
The provisions of s 21A(2)(n) have been the subject of consideration on a number of occasions. The following propositions may be derived from relevant decisions:
(a) The wording of the provision conveys more than simply that the offence was planned: Fahs v The Queen [2007] NSWCCA 26 at [12] per Howie J (Simpson and Buddin JJ agreeing). His Honour further observed:
... The fact that there was a "level of planning in the offences" as found by the judge does not necessarily give rise to the aggravating factor in s 21A(2)(n). In Wickham [2004] NSWCCA 193, the Court stressed the importance of making findings under s 21A in accordance with the words of the provision ...(at para 25).
See also Reaburn v R (2007) 169 A Crim R 337; Bowden v R [2009] NSWCCA 45.
In my view, a similar line of reasoning should be applied in the present case. I accept that there was no evidence of any planning on the part of the applicant in the sense in which that expression has been construed in the authorities, and certainly none that went beyond that which is inherent in the offence. Accordingly, in finding that the offence was “planned” within the meaning of s 21A(2)(n), the sentencing judge fell into error.
The critical question remains however whether, to employ the language of Simpson J in Elyard (supra), his Honour’s finding “affected the selection of the ultimate sentence”. During the course of submissions, counsel then appearing for the applicant, conceded that “there was some planning involved in the commission of these offences in first obtaining the goods and then seeking out someone to dispose of the goods”. His Honour responded by saying “On s 21 I’m not so sure I agree that the offence is part of the planned criminality as it’s meant. I think that isn’t what is meant by it.” The Crown’s representative in agreeing with the sentencing judge said that, whilst this feature of the case could not be treated as an aggravating factor, it was still nonetheless relevant to an assessment of the objective gravity of the offences. Counsel for the applicant again stated that “there was some thought given to the commission of this offence over the period of time” to which his Honour responded “Yes all right I accept that bit. But not in terms of s 21A.”

It is puzzling then that shortly after that exchange, his Honour in his remarks on sentence which he delivered ex-tempore, made the reference, albeit cursory, to the offence being “part of the planned criminal activity”. Although it is necessary to treat with appropriate caution what is said by way of debate during the course of submissions, in this particular case it provides a clear indication as to the manner in which the sentencing judge assessed the question of the extent to which the offence was planned. It confirms, in my view, that this matter, as it did in Yildiz, “at most only marginally” affected the sentencing outcome. In arriving at that conclusion, I have of course also had regard to the sentences at which the sentencing judge arrived. I would reject Ground 1.
Ground 2 - (NAT only)
The complaint raised in respect of this Ground is that the sentencing judge erred in not giving sufficient weight to the subjective features of the applicant’s case. In particular it was submitted that the fact that the applicant had no prior convictions was apparently given little weight by the sentencing judge.
As counsel for the applicant readily conceded, the sentencing judge referred, in terms, to the various matters of a subjective nature upon which the applicant was able to rely by way of mitigation. Moreover, his Honour, as I have said, made a finding in the applicant’s favour of “special circumstances”.
Nevertheless, the matters which entitled the applicant to some amelioration of the otherwise appropriate sentence had to be balanced against the very serious offences which had been committed by the applicant. In my view, there is simply no basis upon which it could be inferred that the sentencing judge failed to give sufficient weight to the subjective features of the case.
Although the applicant had a negligible prior criminal record, he has nonetheless subsequently acquired two further convictions, each of which attracted a custodial sentence. However the applicant suffers no detriment because each of these sentences is being served concurrently with the sentences which are the subject of the present application. Those latter sentences are, as I have said, themselves to be served concurrently with one another. I would reject Ground 2 which, it may be noted, was not relied upon by DTT.
Ground 3 – (NAT only)
The complaint in essence is that the sentencing judge contravened the statutory injunction in s 21A(2) which, as I have said, prohibits a court from having “additional regard to any aggravating factor in sentencing if it is an element of the offence”.
Count 2, as I have said, charged the applicants with having had possession of a precursor. The charge was laid pursuant to s 24A(1) of the Drug Misuse and Trafficking Act 1985 which provides that:
[a] person who has possession of a precursor intended by the person for use in the manufacture or production, by that person or another person, of a prohibited drug is guilty of an offence.
It was submitted that because the person in possession must intend that the precursor be used in the manufacture or production of a prohibited drug, it followed that the person must know that the precursor can be so used.
During the course of his sentencing remarks the sentencing judge observed that:
[d]uring the conversation with the UCO, NAT fully admitted knowing what pseudoephedrine was used for and even explained to the UCO about how to extract it, the pseudoephedrine, for the tablets and the cooking of the amphetamines.
It was accordingly submitted that, since knowledge of the use to which the pseudoephedrine is to be put is an element of the offence, it was erroneous for the sentencing judge to use it in aggravation.
Reference was also made to his Honour’s remarks when sentencing DTT:
The question of parity arises in relation to the offence contrary to s 24A(1); that is, 106,656 tablets and s 188(1) offence of the Crimes Act which are common with the co-offender, NAT, who is the offender’s brother. However it seems to me that in relation to the offence involving the 106,656 tablets, the co-offender, NAT’s role was greater. He, on the facts, was the person that dealt with the undercover policeman, did the negotiations, knew what the tablets could be used for and their value if not their potential street value.
It was further submitted that the reference to knowledge in this passage again indicated that the sentencing judge was weighing in the balance against NAT’s interests, one of the elements of the offence.
It is important to recall that the statutory injunction is concerned with ensuring that no “additional regard” is had to an aggravating feature if it is an element of the offence. Its purpose is to ensure that there is no impermissible “double counting”.
In the first passage about which complaint is made, the sentencing judge was simply reciting the factual background to the offence which appeared in the Agreed Statement of Facts. Indeed counsel for the applicant submitted that it was only when one considered the remarks on sentence in respect of DTT, that it became clear that NAT’s knowledge was being treated as an aggravating factor. That submission on behalf of NAT amounted to an acknowledgement that during the course of the remarks on sentence which pertained specifically to his case, there was no indication that the matter had, in reality, been used in an impermissible fashion.
So far as the second passage is concerned, the sentencing judge made it abundantly clear that that aspect of his remarks was addressed to the question of parity. In particular, his Honour was dealing with the issue of the respective roles of the applicants. The totality of the evidence revealed that although DTT stole the precursors, NAT was instrumental in selling them. It also revealed that NAT knew and understood, at an earlier point in time than DTT, the nature and value of the items which DTT had stolen. The critical point of distinction was the time at which the requisite knowledge was acquired by each of the applicants. It was on that basis that the sentencing judge drew a distinction between their roles, a matter which was reflected in the different sentences which the applicants received.
For those reasons, I would reject Ground 3.
It is convenient to now address the two grounds relied upon by DTT.
Ground 1 –(DTT only)
The applicant submitted that the sentences imposed upon him, especially those fixed in respect of counts 2 and 4, were manifestly excessive. I will shortly return to consider that submission.
Complaint was also made in respect of both this, and the following ground, about the manner in which his Honour structured the various sentences. In considering this aspect of the submissions advanced on behalf of this applicant, I have given due consideration to the relevant principles. In Natoli v R [2009] NSWCCA 36, James J, with the concurrence of other members of the Court, said:
The principles to be applied in sentencing for multiple offences were concisely stated by Ipp JA, with the concurrence of the other members of the court, in R v Weldon (2002) 136 A Crim R 55 at 62. His Honour said at par 46-48:-
“[46] A paramount principle of the law of sentencing is that the aggregate sentence should fairly and justly reflect the total criminality of the offender's conduct: Veen v The Queen (No 2) (1988) 164 CLR 465. This principle applies in all cases, including where punishment is imposed for multiple offences. The sentence must be proportionate to the gravity of the offence, having regard to all the circumstances of the case Hoare v The Queen (1989) 167 CLR 348.
[47] The question whether sentences are to be imposed concurrently or cumulatively must always be answered by reference primarily to these criteria.
[48] It is not infrequent that, where the offences arise out of one criminal enterprise, concurrent sentences will be imposed - but this is not an inflexible rule: Wilkins (1988) 38 A Crim R 445 (per Lee CJ at CL and Carruthers J, Allen J dissenting). The practice should not be followed where wholly concurrent sentences would fail to take account of differences in conduct, the subject of punishment on each count: Pearce v The Queen (1998) 194 CLR 610 at 624 (see also 621 to 622).”
In Cahyahi v The Queen (2007) 168 A Crim R 41 Howie J, with the concurrence of the other members of the court, said at 47 (27):
“In any event there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both.”
In the present case I do not consider that the offences committed on different days, even though only a very few days apart, should be regarded as a single discrete episode of criminality, although it remains relevant that all the offences were committed within a very short period. As the authorities I have quoted indicate, whether offences are regarded as discrete acts of criminality or as forming part of a single episode of criminality is not decisive of whether sentences should be concurrent or cumulative or of the extent to which they should be concurrent or cumulative.
The fundamental question to be determined in the present case is whether it was within the sentencing judge’s discretion to regard the aggregate of the sentences he was imposing,…as justly reflecting the total criminality of the applicant or whether the aggregate sentence exceeded the upper limit of the range of total sentences within his Honour’s discretion. (pars 32-35)
Counsel pointed out that the overall effect of the sentences imposed upon him for counts 2 and 4 was a total sentence of 5 years imprisonment with a non-parole period of 3 years. It was contended in written submissions that the sentences for these counts should have been made, if not totally, then substantially concurrent because the tablets in question were all from a common source. It was submitted that “it was a matter of happenstance that on 15 September, the two quantities of tablets became separated and thus formed the basis for two separate counts of possession on the same day”.
The short answer to the submission is that the sentences imposed in respect of counts 2 and 4 were only partially cumulative. The sentence in respect of count 2 was accumulated but by only six months upon the sentence imposed for count 4. Furthermore, even though the tablets came from the same source what were discovered were two very substantial quantities of tablets in separate locations. It was open to the sentencing judge to structure those sentences in the manner in which he did.
A further complaint was made that the sentence for count 4 was wholly cumulative upon the sentence for count 3 notwithstanding the fact that the two offences “were intimately connected and both arose from his controlling the tablets on the particular day”. Although at first blush it may appear that there is some substance in the applicant’s submission, it is necessary, as the authorities make clear, to have regard to the overall effect of the sentences which were imposed upon DTT and to the fashion in which the individual sentences were structured in determining whether or not error has been established. It follows that it is not appropriate to simply consider only some of the individual sentences imposed in isolation from the remainder. As I observed at the outset, the sentence which was imposed in respect of count 3 is wholly subsumed within the sentence which was imposed in respect of count 1, whilst the sentence which was imposed in respect of count 4 is wholly subsumed within the sentences which were imposed in respect of counts 1 and 2. In other words, in practical terms, DTT received no additional punishment for having committed the offences which gave rise to counts 3 and 4. Viewed in that light, the applicant can have no legitimate basis for complaint.
I return then to the question of whether the sentences were manifestly excessive. Although no standard non-parole period applied, the offences committed by the applicant were properly characterised by the sentencing judge as being higher than the mid-range. Not only did the applicant breach his employer’s trust by stealing the tablets in the first place, but he also conceded, as must have been obvious, that he had committed these offences for financial gain. The sheer volume of the material in his possession indicates the scale of the operation and the size of the reward which he expected to reap. The evidence revealed that as a result of this enterprise in which the applicant played a significant role, a very large quantity of methylamphetamine was potentially going to be made available for end users: see generally R v Cousins (2002) 132 A Crim R 444 at 450. As I have said the effective total term of imprisonment was 6 years with a non-parole period of 4 years. Although there were a number of factors upon which the applicant was entitled to rely by way of mitigation, in my view the overall effective sentence, as well as the individual sentences, at which the sentencing judge arrived were within the range of a proper exercise of the sentencing discretion. I would reject this Ground of Appeal.
Ground 2 – (DTT only)
This ground raises an issue of parity with the sentence imposed upon NAT in respect of count 2. As I have indicated, the present applicant received a sentence in respect of count 2, which was six months shorter than that imposed upon NAT. That was because the sentencing judge found that NAT had performed a more significant role in relation to the possession offence. His Honour concluded that NAT “was the person that dealt with the undercover policeman, did the negotiations, knew what the tablets could be used for and their value if not their potential street value”. Although that may have been a favourable finding so far as DTT was concerned, his Honour nonetheless fashioned a sentence which gave effect to that finding. There can be no room for complaint so far as that aspect of the matter is concerned.
The nub of the applicant’s submission appears to be that the effect of the differentiation was neutralised because the sentence in respect of count 3 was accumulated upon the sentence for count 2 whereas in NAT’s case, those two sentences were ordered to run concurrently. I accept that that outcome, in the particular circumstances of the present case, appears somewhat anomalous. That however is not the end of the matter. The real question, so far as this Ground of Appeal is concerned, is whether DTT has a justifiable sense of grievance in respect of the overall effective sentence imposed upon him when compared to that imposed upon NAT.
The difficulty for the present applicant is that he, unlike NAT, stood for sentence in respect of four matters. Accordingly, the sentencing judge had to sentence him in respect of two additional matters whilst bearing in mind the principles of totality. When proper allowance is made for those two considerations, I am not persuaded that requiring DTT to serve a further 12 months beyond the period of imprisonment that NAT was required to serve, reveals that he has a justifiable sense of grievance. I would reject this Ground of Appeal.
The order which I propose is that in each case leave to appeal should be granted but the appeal should be dismissed.
ROTHMAN J: I agree with Buddin J.
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LAST UPDATED:
2 April 2009