Thomas v R

[2019] NSWCCA 88

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Thomas v R [2019] NSWCCA 88
Hearing dates:	18 March 2019; 20 March 2019
Date of orders:	29 April 2019
Decision date:	29 April 2019
Before:	Bathurst CJ at [1]; Price J at [2]; Ierace J at [3]
Decision:	(1)   Leave to appeal granted. (2)   Appeal allowed. (3)   The sentence imposed in the District Court of New South Wales on 25 May 2018 is quashed. (4)   The applicant is sentenced to a term of imprisonment of 5 years with a non-parole period of 3 years 2 months commencing on 22 December 2016 and expiring on 21 February 2020, with a balance of term of 1 year 10 months commencing on 22 February 2020 and expiring on 21 December 2021. (5)   The earliest date the applicant will be eligible to be released on parole is 21 February 2020.
Catchwords:	CRIME – appeal against sentence – supply of a commercial quantity of cocaine – whether error in assessment of objective seriousness of offence – whether failure to take into account remorse – re-sentence
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW), s, 21A Drug Misuse and Trafficking Act 1985 (NSW), s, 25
Cases Cited:	AB v R [2013] NSWCCA 160; (2013) 233 A Crim R 205 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Lees v R [2019] NSWCCA 65 Mulato v R [2006] NSWCCA 282 Paxton v R [2011] NSWCCA 242; (2011) 219 A Crim R 104
Category:	Principal judgment
Parties:	Scott Jon Thomas (Applicant) Regina (Respondent)
Representation:	Counsel: S Kluss (Applicant) K Jeffreys (Respondent)   Solicitors: Mallinson Rake Lawyers (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2016/384084
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 25 May 2018 Before: Girdham SC DCJ File Number(s): 2016/384084

Judgment

1. BATHURST CJ: I agree with the orders proposed by Price J and with his Honour’s reasons.

2. PRICE J: The applicant, Scott Jon Thomas, seeks leave to appeal against the sentence imposed on him by Girdham SC DCJ (“the judge”) in the District Court on 25 May 2018.

3. The applicant pleaded guilty in the Local Court to one offence of supplying a commercial quantity of a prohibited drug (987.3 grams cocaine), contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). This offence has a maximum penalty of imprisonment of 20 years with a standard non-parole period of 10 years. He adhered to his plea in the District Court.

4. The commercial quantity of cocaine is 250 grams.

5. The judge allowed a discount of 25% for the utilitarian value of the plea of guilty and sentenced the applicant to a term of imprisonment of 5 years 6 months to commence on 22 December 2016 expiring on 21 June 2022, with a non-parole period of 3 years 6 months which expires on 21 June 2020.

6. The applicant’s notice of appeal identifies the following grounds:

“Ground 1: Her Honour erred in her assessment of the objective criminality of the offence.

Ground 2: Her Honour erred in finding that the applicant’s remorse was such that she could not take it into account pursuant to s 21A(3) of the Crimes Sentencing Procedure Act.

Ground 3: The sentence imposed by her Honour was manifestly excessive and another sentence is warranted at law.”

Facts

A statement of agreed facts was placed before the judge which may be summarised as follows.

7. On 21 December 2016, the applicant supplied the co-accused, Jason Davidson, with 987.3 grams of cocaine in a red “Nutrition Warehouse” sports bag.

8. Police observed the applicant and the co-accused meeting at the corner of Miller Street and Bulwara Road, Pyrmont. The applicant arrived in a grey Subaru Liberty registered in his name and was seen carrying a red “Nutrition Warehouse” sports bag over his left shoulder.

9. The applicant and the co-accused walked along Bulwara Road and stood next to a grey Holden Rodeo registered in the co-accused’s name. The applicant walked away without the red sports bag.

10. The applicant and the co-accused drove away in their separate cars.

11. Police followed the co-accused, stopped his motor vehicle, introduced themselves and informed him that both he and his motor vehicle would be searched.

12. A red “Nutrition Warehouse” sports bag that the applicant had been seen carrying was found under the front passenger’s seat. Inside the red sports bag was a plastic bag which was wrapped in a black “Nutrition Warehouse” towel. That plastic bag held 83 individual cylindrical packages wrapped in plastic each of which contained cocaine.

13. The co-accused was cautioned and when asked about the red sports bag he replied that somebody had just given it to him.

14. A subsequent analysis found the 83 packages contained a total of 987.3 grams of cocaine with a purity of between 81% and 82.5%. A DNA profile matching the DNA profile of the applicant was identified on three of the drug packages, on the black towel, inside the red sports bag, and on the pull strings of the red sports bag. Five fingerprints located on the plastic bag containing the 83 drug packages also matched the fingerprints of the applicant.

15. The applicant returned to a room at a hotel in Bass Hill. On 22 December 2016, police entered that premises and executed a search warrant. Police found:

1. A Nutrition Warehouse bag;

2. A brown bag containing Thai Airways baggage tags dated 4 December 2016;

3. A boarding pass for Thai Airways Silk from Bangkok to Sydney dated 18 December;

4. An e-ticket for a return flight from Sydney to Bangkok on 20 January 2017;

5. The clothes the applicant was seen to be wearing when he met the co-accused;

6. A business card in the applicant’s name as Chief Operations Officer of G9 Tactical, an intelligence risk management solutions company in Thailand;

7. A Thai driver’s license in the applicant’s name;

8. A Jetstar itinerary for the applicant travelling from Sydney to Tasmania on 23 December 2016; and

9. Keys to his grey Subaru Liberty, which was parked outside.

16. Police also seized the applicant’s Australian passport and it revealed that he frequently travelled between Bangkok and Sydney. The applicant resided in Bangkok and had travelled to Australia for short periods of time for business and to visit his family.

The sentencing proceedings in the District Court

17. Before proceeding further, it is necessary to refer to the sentencing proceedings before the judge on 4 May 2018.

18. The Crown tender bundle included a statement of agreed facts and the material tendered on the applicant’s behalf included a report from Ms Rima Nasr, a forensic psychologist, an affidavit from the applicant which annexed a letter from him to the judge, an affidavit from the applicant’s solicitor annexing material relating to previous assessments of the applicant’s mental health and to his custodial conduct, a letter from Brent Thomas, the applicant’s brother, and two character testimonials.

19. The applicant did not give oral evidence before the judge.

20. The letter to the judge which was annexed to the applicant’s affidavit included expressions of remorse and an account of how he became involved in the offence. Shortly stated, the applicant wrote that it was his belief that the sports bag contained money. When the bag fell on the floor in his hotel room emptying its contents, he did not see money. When he picked up one of the items that had come out of the bag, he “could not confirm what it was, but knew it was not money as [he] was told”. The applicant went on to write:

“As [to] what these items [were]? He has obviously given me the wrong bag. I want to know what is going on, so I put my [clothes] on and grabbed the bag to go and meet my friend for dinner and have him explain to me what exactly these items were?”

21. The Crown Advocate told the judge that the applicant was required for cross-examination. Her Honour was then informed by the applicant’s solicitor that the affidavit was not pressed. Accordingly, the letter was not in evidence.

22. After hearing submissions from the parties, her Honour adjourned the proceedings for sentence on 25 May 2018. On that day, the following exchange took place between the judge and the applicant’s solicitor:

HER HONOUR: Just before [the applicant] is brought up or whilst we’re waiting when the matter was last before me there was an affidavit from [the applicant] which counsel said he was not pressing?

MALLINSON: Yes that’s so.

HER HONOUR: What do you understand to mean by the I’m not pressing, does that mean you don’t press it as a sworn document or is it something you want me to have regard to on the basis that it is unsworn and [untested]?

MALLINSON: The latter.

HER HONOUR: So you don’t want me to ignore it?

MALLINSON: No that’s certainly – I think your Honour indicated on the last occasion that it would be given the weight as expected. [1]

1. Tcpt, 25 May 2018, 1.

23. Her Honour proceeded to sentence the applicant.

24. The applicant’s account in his letter to the judge of not knowing what was in the bag traversed his plea of guilty to the offence. The letter was not properly in evidence and her Honour was not obliged to consider it. However, her Honour dealt with the contents of the letter by concluding that the presence of the DNA and fingerprints indicated that the applicant handled the packages “and not by simply picking them up and not knowing what they were”. [2] Her Honour rejected the unsworn evidence of remorse.

    2. ROS at 12.

25. At the commencement of the hearing of this appeal, the Court’s concern about the contents of the letter were brought to the attention of Ms Kluss, the applicant’s counsel, who was granted an adjournment to obtain instructions. On the resumption of the hearing, Ms Kluss informed the Court that by the time the applicant delivered the sports bag to the co-accused he knew the bag contained cocaine in the packages.

26. It is convenient to summarise some of the submissions made to the judge on the objective seriousness of the offence.

27. The applicant contended that the level of his participation in the offence could be characterised “as one of a link in the supply of drugs but that role was relatively short lived and a minor one”. The applicant pointed to the agreed facts which were said to indicate that he had not earned any financial gain. The items found in his hotel room were said to support this contention and were entirely consistent with his living overseas and travelling frequently between Australia and Thailand where he has family. Another matter brought to her Honour’s attention was that there were no indications of supply in the hotel room.

28. The applicant argued that the level of his role, the actual conduct involved and the duration over which it occurred in addition to the lack of financial gain attributed to him, placed the objective seriousness of his conduct at the lower end of the scale and below the mid-range of objective seriousness.

29. The applicant’s solicitor agreed with the judge that the applicant had the burden on the balance of probabilities to establish that the supply was not for financial gain. He submitted that had been established by what was discovered at the hotel. The judge indicated that she agreed with the solicitor’s further submission that financial gain could not be taken into account as an aggravating factor.

30. The Crown Advocate argued that the objective gravity of the offence was “above mid-range on the higher end on the scale of objective seriousness”. Other than the quantity and purity of the drug, the Crown Advocate founded this submission on the division of the cocaine into 83 separate packages; a contention that the applicant’s actions were part of a wholesale distribution and an element of pre-planning as the applicant met with the co-accused at a pre-organised spot to exchange the bag containing the packaged cocaine.

31. In the proceedings on sentence, the exchanges between the judge and the Crown Advocate included the following:

FIORENZA: The offences were committed for financial gain. The second is the purity of the drugs was for this case 70%, both are matters which elevate the seriousness of the offence. The Crown does concede that on the facts there is no evidence regarding financial gain either way. And there is no evidence to say that he did not make a financial gain but there’s no evidence to say that he did make a financial gain.

HER HONOUR: All right, so the Crown clearly can’t establish that it was for financial gain.

FIORENZA: Yes your Honour… [3]

3. Tcpt, 4 May 2018, 14.

32. And further:

HER HONOUR: So the Crown acknowledges that there is no evidence of financial gain?

FIORENZA: Yes your Honour.

HER HONOUR: What about the submission that’s been put as to the level of involvement in the enterprise, anything to say in relation to that?

FIORENZA: I can’t put it higher than the facts that the offender had the drugs in his possession and passed them on to someone else. That’s as far as I can put them. He met the co-accused at a specified location, exchanged the drugs and then went off. That’s as high as I can put it regarding planning. [4] (Emphasis added.)

4. Tcpt, 4 May 2018, 15.

The applicant’s subjective circumstances

33. The appellant was 46 years old when the offences were committed and 48 years old when sentenced.

34. The applicant’s background is provided in the psychologist’s report. In summary, he had a stable upbringing and commenced a mechanic apprenticeship at TAFE before joining the Australian Defence Force at 17 years of age. Almost his entire career has been served in the military, where he worked as a sniper and team leader. He was deployed on two occasions, to East Timor in 1999 and to Iraq in 2003.

35. Ms Nasr reported that the applicant developed Post Traumatic Stress Disorder (“PTSD”) whilst deployed. The applicant told Ms Nasr that despite transferring to military intelligence, his physical and mental health problems eventually led to his medical discharge from Defence in 2005. Thereafter, his life reportedly destabilised, including the breakdown of his marriage due to the cumulative negative effects of his PTSD.

36. The applicant told Ms Nasr that since 2005 he had maintained a successful security and training business for almost 12 years while he resided in Thailand, and he had travelled to Australia to visit family and friends on a regular basis.

37. As to the applicant’s medical history, Ms Nasr reported that the applicant suffers hearing loss and tinnitus, in addition to knee, ankle and shoulder problems. Ms Nasr also noted that he continues to experience problems with his jaw as a result of having been assaulted in prison.

38. The applicant told Ms Nasr he had abused alcohol to cope with his distress and had experienced “emotional, financial and physical health concerns as a result of alcohol”. Ms Nasr stated that it will be important that he engage in substance use intervention to address his alcohol abuse.

39. Ms Nasr reported that consistent with the DSM-5, the applicant presented with:

1. PTSD (delayed onset);

2. Depression;

3. Anxiety; and

4. Alcohol abuse (in remission, in a controlled environment).

40. Ms Nasr reported that the applicant had been prescribed with Fluvoxamine (to treat his depression) and that over the course of 14 years he had consistently accessed either psychological or psychiatric assistance, which he believed to have been useful in managing his mental health symptoms.

41. The materials annexed to the solicitor’s affidavit, including a letter dated 22 March 2005 from Dr Williams, a consultant psychiatrist; a report dated 27 May 2008 from Dr Morris, a consultant psychiatrist and Director of Veteran’s Mental Health Services; and Justice Mental Health Assessment progress notes. Those documents reveal that the applicant suffered from long-standing chronic PTSD and Major Depressive Disorder. Also annexed was a Corrective Services Case Note Report, which detailed that the applicant is “always polite and respectful” and “has a high skill level with all jobs… and is a valuable asset within the Upholstery Business Unit”.

42. The letter from the applicant’s brother, expressed concern as to the applicant’s safety following an assault in prison due to his status as a former Australian Defence Force veteran. A letter dated 24 April 2018 from Luke Grant, Acting Commissioner, confirmed the assault did occur.

43. The testimonials referred to the applicant’s reliability and trustworthiness, and expressed disbelief as to the possibility that he would knowingly be involved in criminal activity.

44. The applicant has no prior criminal history.

Some findings by the judge

45. When assessing the objective seriousness for drug supply offences, her Honour observed that relevant factors include the amount and purity of the drug, the number of occasions on which the drug was supplied, the motivation for the supply, the planning involved, and the role of the offender in the supply.

46. The judge noted the Crown’s submission that the offence fell above the range in the high end of the scale of objective seriousness principally on the basis that the amount of cocaine supplied to the co-accused was “just 12 grams shy of a large commercial quantity offence”. [5]

    5. ROS at 11.

47. Her Honour said that the applicant’s role was characterised as being part of a wholesale distribution, the cocaine being divided into 83 separate packages asserted by the Crown to make distribution easier. Her Honour noted that the cocaine was of a purity between 81 and 82.5% which was undoubtedly high.

48. Her Honour found that arrangements made for the drug to be supplied as part of a wholesale distribution were not an aggravating feature.

49. After recounting the applicant’s submission that the quantity of the drugs was not the sole or principal consideration but the applicant’s role and level of participation were contended to be more important, her Honour said:

“The evidence as to the role played by [the applicant] is sparse. In this instance, if [the applicant] wished to demonstrate how insignificant his role was, to my mind there would need to be some direct evidence of this. Here, the Court was given no evidence from [the applicant] directly about what he was doing and why he did it.

Notwithstanding [the applicant’s] claim that he was not knowingly involved, his plea of guilty and the characterisation of his involvement urges as a gross one-off error in his judgment demonstrates he accepts otherwise. His account of the contents of the bag spilling onto the floor and not knowing what it was is completely implausible, contrary to his plea of guilty, and I reject it.

In so stating as I have that there is no evidence from [the applicant] I do not proceed on the basis that he is required to persuade the Court beyond reasonable doubt of his role. There is no evidence as to how he came to have access to the cocaine, there is no evidence of financial reward, there is no evidence that suggests he was responsible for putting the drug into the 83 packages, but the fact that his DNA and fingerprints were found, the sum indicates that he did handle the packages, and not by simply picking them up and not knowing what they were.

The cocaine was a purity of between 81 and 82.5%, although there is no evidence that he knew that. I proceed on the basis that [the applicant] was a middleman in a whole distribution of an amount just below the large commercial quantity. To my mind, and giving [the applicant] the benefit of any doubt, the offence falls just at the mid-range of objective seriousness.” [6]

6. ROS at 11-12.

50. The judge took into account the applicant’s lack of prior criminal history as a mitigating factor under s 21A(3)(e) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

51. Her Honour said there was no evidence of remorse and contrition, although the applicant acknowledged in his letter that he owed a debt to society and those families destroyed by the illegal drug trade. Her Honour was satisfied that the applicant regretted the circumstances that had led to his present position and felt deep shame for his actions, but remarked “that is a long way from the acceptance of responsibility to which s 21A(3) is directed”. [7]

    7. ROS at 13.

50. Her Honour noted that it was not disputed that the applicant suffered from PTSD, which was serious and long-lasting, but it was not contended that his mental condition had either caused or contributed to the offence. Her Honour found that the applicant’s mental condition should be taken into account on three bases; that the applicant was an inappropriate vehicle for general deterrence, that a custodial sentence would weigh more heavily upon him, and the weight given to specific deterrence was reduced.

51. The judge was satisfied that as a result of the applicant’s prior defence service becoming known, his custodial conditions would be harsh, which her Honour said was a proper cause for mitigating the sentence.

52. Her Honour found that the applicant’s involvement in the offence was contrary to his character and was satisfied that the applicant’s deep desire not to disappoint his family would guard against any risk of re-offending. Her Honour found that the applicant had good prospects of rehabilitation, which was a mitigating factor.

53. After recounting there had been delay in sentencing which was not the applicant’s fault and that he had utilised that time to make good progress, her Honour determined that only limited weight should be given to specific deterrence.

54. The judge referred to the principles of denunciation of conduct, just punishment, general deterrence and protection of the community and noted the importance of these sentencing considerations in drug supply cases. Her Honour went on to say that general deterrence “still has a role to play in the sentencing exercise” notwithstanding that the applicant “is an inappropriate vehicle for the full force of general deterrence” due to his mental health. [8]

    8. ROS at 15.

55. The judge found special circumstances due to the applicant’s health and varied the non-parole period to be 64% of the head sentence.

Ground 1: Her Honour erred in her assessment of the objective criminality of the offence.

Argument

58. The applicant submitted that the amount, purity and packaging of the drugs were but one aspect of the factors relevant to the assessment of the objective criminality of the offence and not solely capable of establishing that the criminality was just at the mid-range of objective seriousness.

59. The applicant contended that in the absence of evidence there was any financial benefit to the applicant; that he was involved with or held a position within the hierarchy of the operation; and was responsible for putting the drug into the 83 separate packages, his objective and moral culpability lay below the mid-range.

60. During oral argument, Ms Kluss submitted that the concession made by the applicant’s solicitor during the proceedings on sentence that the applicant had to establish his involvement was not for financial gain was inappropriately made as it reversed the onus of proof.

61. Another argument was that the way in which her Honour used the term “middleman” elevated the objective criminality of the applicant’s offending as it placed him as a mid-range person in an organised activity.

62. The applicant submitted that her Honour’s suggestion that a more minimal role could not be established without the applicant’s sworn testimony was contrary to sentencing principles and indicative of error notwithstanding her Honour’s later comments to the contrary.

63. The Crown contended that the judge gave detailed consideration to the factors relevant to the assessment of objective seriousness and that the judge was well aware of the absence of evidence concerning financial reward. The Crown also pointed out that the judge had regard to the location of the DNA and fingerprints of the applicant on the packages, to the fact that the applicant was entrusted with a significant quantity of cocaine and to the concession of the applicant’s legal representative that he was “a link in a chain” of supply.

64. The Crown put to this Court that by finding the applicant was “a middleman”, her Honour made it clear she considered him to be a link in the chain of distribution, that he was not supplying to end users, but was part of the distribution process. The Crown submitted that the judge was not obliged to infer any lesser role simply because there was a lack of evidence as to financial benefit as the quantity of the drug would lead to an inference of some financial gain. Should a lesser role have been advocated, the Crown argued that the applicant bore the burden of adducing satisfactory evidence for judge’s consideration.

65. In answer to a question from this Court as to whether there was any evidence that excluded the reasonable possibility that the applicant’s role was that of a “courier” as opposed to a “middleman”, the Crown said that the labels “middleman” and “courier” were unhelpful, but the applicant delivered the drugs. It was the Crown’s contention that the fact he handled the drugs suggested that he simply did not receive a bag already packaged and transferred it onto the next person, but spoke of a greater role.

66. The Crown submitted that in those circumstances it was entirely open to her Honour to find that the offence fell within the mid-range of objective seriousness.

Consideration

67. The assessment of the objective seriousness of an offence “is quintessentially for the sentencing judge”. [9] This Court has been “very slow” to determine such matters for itself or to set aside such an assessment made by a sentencing judge. [10]

    9. Mulato v R [2006] NSWCCA 282 at [46]; Lees v R [2019] NSWCCA 65 at [55].

    10. Mulato v R [2006] NSWCCA 282 at [37]; Lees v R [2019] NSWCCA 65 at [55].

68. The judge characterised the offence as being “just at the mid-range of objective seriousness” and the question is whether that finding was open on the evidence.

69. Her Honour correctly identified the relevant factors in the assessment of objective seriousness of a drug supply offence. The quantity and purity of the drug supplied is highly relevant as is the role of the offender. [11]

    11. Paxton v R [2011] NSWCCA 242; (2011) 219 A Crim R 104 at [131]-[132]; AB v R [2013] NSWCCA 160; (2013) 233 A Crim R 205 at [54].

70. In the present case, the quantity of the cocaine supplied was almost four times the commercial quantity and as her Honour observed “just 12 grams shy of a large commercial quantity offence”. The level of purity of the prohibited drug, between 81% and 82.5%, was high.

71. From the judge’s remarks on sentence her Honour was plainly aware that whilst the amount and purity of the drug was highly relevant they were not decisive.

72. Having rejected the applicant’s account of how he had become involved in the offence, her Honour properly confined her assessment of the applicant’s role to the statement of agreed facts.

73. Her Honour acknowledged that there was no evidence as to how he came to access the cocaine, no evidence of financial reward and no evidence of who was responsible for putting the drug into the 83 packages. However, her Honour said the fact that the applicant’s DNA and fingerprints were found indicated he handled the packages and did not simply pick them up, not knowing what they were. Her Honour found that the applicant was a middleman in the wholesale distribution of an amount of cocaine just below the large commercial quantity.

74. The Crown Advocate had not put to the judge that the applicant should be sentenced as a “middleman”. The Crown Advocate had placed his submission no higher than the applicant had passed the drugs on to someone else (see [33] above). Whilst the Crown in this Court submitted her Honour used this shorthand description to indicate that the applicant was a “link in the chain”, I am not persuaded that this is what her Honour meant.

75. If it was appropriate to use a shorthand description of the applicant’s participation in the criminal enterprise, there was little to suggest that what he had done was more than a “courier”. There was no evidence of the criminal enterprise that the applicant was involved in other than the packaging of the drugs and the pre-planning revealed by the meeting at Pyrmont. The identification of the applicant’s DNA on three of the 83 drug packages and of his fingerprints on the plastic bag could not elevate his role to that of an intermediary, if that is what the judge meant by “middleman” nor could the fact that he had been tasked with the delivery of a significant quantity of the prohibited drug.

76. The difficulties that arise by using a shorthand description of an offender’s role occur in this case as there was little evidence other than the delivery of the cocaine. As was said by Johnson J (Tobias AJA and Hall J agreeing) in Paxton v R [12] at [135]:

“An assessment of the Applicant's role is not to be determined by the selection of a label which might properly attach to him. As with a person to be sentenced for a Commonwealth importation offence, the criminality of a New South Wales drug supply offender ought be assessed by consideration of the involvement of the offender in the steps taken to effect the drug supply offences. Problems may emerge when a sentencing court attempts to categorise the role of the offender in the drug enterprise as, in many cases, the full nature and extent of the enterprise is unlikely to be known to the Court: The Queen v Olbrich [1999] HCA 54; 199 CLR 270 at 279 [19].”

12. [2011] NSWCCA 242; (2011) 219 A Crim R 104.

77. In my view, the agreed facts do not permit a finding other than the applicant’s involvement in the supply was that he delivered the bag to the co-accused with the knowledge that it contained many bags of cocaine.

78. Notwithstanding the quantity and purity of the drug, in my respectful opinion her Honour’s characterisation of the offence as being “just at the mid-range of objective seriousness” was not open on the evidence.

79. I am satisfied that it was open on the evidence for the judge to find that the offence lay below the mid-range.

80. Ground 1 of the appeal has been established. Accordingly, it will be necessary that this Court exercises the sentencing discretion afresh. [13] Ground 2 of the appeal may be briefly dealt with.

Ground 2: Her Honour erred in finding that the applicant’s remorse was such that she could not take it into account pursuant to s 21A(3) of the Crimes Sentencing Procedure Act.

13. Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37.

81. The applicant’s complaint is that although her Honour accepted there was remorse, her Honour minimised it because the applicant did not give oral evidence. The applicant submitted that the way in which the judge dealt with remorse was contrary to the effect of s 21A of the Crimes (Sentencing Procedure) Act.

82. Section 21A(3)(i) provides:

21A   Aggravating, mitigating and other factors in sentencing

...

(3) Mitigating factors

…

(i)  the remorse shown by the offender for the offence, but only if:

(i)  the offender has provided evidence that he or she has accepted responsibility for his or her actions, and

(ii)  the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both),

…

83. In the letter to the judge, the applicant described the offence as being a grave error of judgment. His position was that he did not know what was going on and did not know what the items were. He took the bag to meet his friend to “have him explain to me what exactly these items were”.

84. In a similar way, the applicant told Ms Nasr that his thinking was to help out a friend, without considering the contents of the bag or what was being asked of him.

85. There was no evidence before the judge that the applicant took responsibility for his offending conduct. It was only in this Court that the applicant instructed his counsel that he knew the bag contained cocaine in the packages (see [26] above). Her Honour was right to observe that the applicant’s expressions of shame were a long way from the acceptance of responsibility.

86. I would dismiss this ground of appeal.

Ground 3: The sentence imposed by her Honour was manifestly excessive and another sentence is warranted at law.

87. As it will be necessary to exercise the sentencing discretion afresh, it is unnecessary to decide this ground of appeal.

Re-Sentence

88. Specific error having been identified, it is this Court’s duty to re-sentence “unless in the separate and independent exercise of its discretion it concludes that no different sentence should be passed”. [14]

    14. Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37

89. The maximum penalty for the offence is 20 years imprisonment with a standard non-parole period of 10 years. These legislative guideposts are to be borne in mind when considering the appropriate sentence, having regard to the objective circumstances of the offence and the applicant’s subjective case.

90. In the independent exercise of my sentencing discretion, the sole finding that I find myself in disagreement with the judge is her Honour’s assessment of the objective seriousness of the offence.

91. For the reasons stated above at [74] - [80], I assess the objective seriousness of the offence as being below the mid-range.

92. I adopt her Honour’s findings on the applicant’s subjective case and the utilitarian discount for the plea of guilty.

93. No complaint has been made about the finding of special circumstances and the reduction in the statutory ratio between the head sentence and the non-parole period will be retained.

94. Accordingly, I propose the following orders:

1. Leave to appeal granted.

2. Appeal allowed.

3. The sentence imposed in the District Court of New South Wales on 25 May 2018 is quashed.

4. The applicant is sentenced to a term of imprisonment of 5 years with a non-parole period of 3 years 2 months commencing on 22 December 2016 and expiring on 21 February 2020, with a balance of term of 1 year 10 months commencing on 22 February 2020 and expiring on 21 December 2021.

5. The earliest date the applicant will be eligible to be released on parole is 21 February 2020.

95. IERACE J: I agree with the orders proposed by Price J and with his Honour's reasons.

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Endnotes

Decision last updated: 29 April 2019