Toole, Kurt v R; Toole, Joshua v R

[2014] NSWCCA 318

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Toole, Kurt v R; Toole, Joshua v R [2014] NSWCCA 318

Hearing dates:

14 March 2014

Decision date:

18 December 2014

Before:

Basten JA at [1];
Button J at [5];
RS Hulme AJ at [6]

Decision:

In respect of each applicant:

(1) Grant leave to appeal.

(2) Dismiss the appeal.

Catchwords:

CRIMINAL LAW - appeal against sentence - whether procedural fairness denied in failing to warn sentence imposed would be accumulated contrary to submissions by the Crown - whether there was a failure to account for the applicants' personal and mental health problems - whether sentences imposed are manifestly excessive - whether applicants have a justified sense of grievance arising from disparity and lack of proportion with sentences imposed on other offenders

Legislation Cited:

Crimes Act 1900 (NSW), ss 114, 193B
Crimes (Sentencing Procedure) Act 1999 (NSW), s 54A
Drug Misuse and Trafficking Act 1985 (NSW), s 25
Environment Protection and Biodiversity Conservation Act 1999 (Cth), s 303GN

Cases Cited:

Aoun v R [2011] NSWCCA 284
Baroudi v R [2007] NSWCCA 48
Efstathiadis v R [2009] NSWCCA 317
Fairbairn v R [2006] NSWCCA 48; 165 A Crim R 434
GAS v The Queen [2004] HCA 22; 271 CLR
Green and Quinn v The Queen [2011] HCA 49; 244 CLR 462
Hili v The Queen [2010] HCA 45; 242 CLR at 75.
Lawson v R [2012] NSWCCA 56
Ly v R [2008] NSWCCA 262
Melikian v R [2008] NSWCCA 156
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
Nair v R [2013] NSWCCA 79
Parker v DPP (1992) 28 NSWLR 282
Paxton v R [2011] NSWCCA 242; 219 A Crim R 104
Postiglione v The Queen [1997] HCA 26; 189 CLR 295
R v Amurao [2005] NSWCCA 32,
R v Blair [2005] NSWCCA 78; 153 A Crim R 78
R v Diamond (unreported NSWCCA, 18 February 1993)
R v Ehrlich [2012] NSWCCA 38; 219 A Crim R 415
R v Henry [1999] NSWCCA 111; 46 NSWLR 346
R v Le Cerf (1975) 13 SASR 237
R v Mahmud [2010] NSWCCA 219
R v MAK [2006] NSWCCA 381; 167 A Crim R 159 at [16];
R v Muanchukingkan (1990) 52 A Crim R 354
R v Paredes [2012] NSWCCA 4
R v Sciberras [2006] NSWCCA 268; 165 A Crim R 532
R v Spiteri [1999] NSWCCA 3
R v Stanbouli [2003] NSWCCA 355; 141 A Crim R 531
R v Steele (unreported NSWCCA, 17 April 1997)
R v Swan [2006] NSWCCA 47
Radi v R [2010] NSWCCA 265
Tan v R [2010] NSWCCA 207
Vakauta v Kelly (1989) 167 CLR 568
Wang v R [2009] NSWCCA 223
Wong and Leung v R [2001] HCA 64; 207 CLR 584

Category:

Principal judgment

Parties:

Kurt Toole (Appellant)
Joshua Toole (Appellant)
Regina (Respondent)

Representation:

Counsel:
T Game SC (for Kurt Toole)
P Hamill SC (for Joshua Toole)
V Lydiard (Crown)
Solicitors:
Caine Kensit Messenger (Appellants)
Solicitor for Public Prosecutions (Crown)

File Number(s):

2010/315710 2010/315752

 Decision under appeal 

Jurisdiction:

9101

Date of Decision:

2012-09-12 00:00:00

Before:

Wells DCJ

File Number(s):

2010/315710
2010/315752

Judgment

1. BASTEN JA: I agree with RS Hulme AJ that there should be a grant of leave to appeal in these matters, but that the appeals be dismissed. Subject to one point of clarification, I also agree with the reasons he gives for those orders.

1. Counsel for Joshua Toole contended that the sentencing judge had failed to give proper weight to the evidence of his mental health problems. That raised questions, as Hulme AJ has noted, with respect to the strength of the evidence, the manner in which it was taken into account on sentencing and, objectively, its relevance as a factor in mitigation. I agree with that analysis. However, some caution must be exercised in dismissing the evidence as to the applicant's use of anabolic steroids and the consequences as being, in a lay person's terms, a drug addiction and therefore not a factor in mitigation.

1. A mental illness which is not "self-induced" is treated as a disability or, in morally neutral terms, a misfortune, which may be a material mitigating factor in sentencing. However, to treat a drug addiction as a self-inflicted condition for which the offender must bear full moral responsibility is a less nuanced approach than the law requires. To qualify the absolute position by reference to an exception based on "unusual circumstances" certainly reflects the possibility of consideration, although the circumstances are not identified.

1. In Henry, Spigelman CJ dismissed "a need for funds to feed a drug addiction, as being lower in the scale of moral culpability than other perceived requirements for money": R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [202]. The case law and matters of principle relevant to that conclusion were discussed at length by other members of the Court whose conclusions, though not necessarily in conflict with those of the Chief Justice, were identified with a degree of flexibility: see Wood CJ at CL at [271]-[273], with the agreement of Newman J at [278], RS Hulme J at [331] and, after further careful consideration, by Simpson J at [348] and [356]. The principles need not be restated: they do not assist the applicant in the present case.

1. BUTTON J: I agree with the orders proposed by RS Hulme AJ. I also agree with the reasons his Honour has given, subject to the point of clarification raised by Basten JA, with which I agree.

1. RS HULME AJ: On 12 September 2012 the above named Applicants for leave to appeal were sentenced by Wells SC DCJ in respect of a number of offences. In the case of Joshua Toole the charges were:

(1)   That on 3 September 2010 he knowingly took part in the supply of not less than the commercial quantity of cannabis. The amount the subject of the charge was 95.398 kilograms.

(2)   That between 26 July and 23 September 2010 he supplied not less than the large commercial quantity of methylamphetamine, viz 6,048.8 grams.

(3)   That between 22 September and 3 November 2010 he dealt with proceeds of crime, viz $200,000, knowing that it was the proceeds of crime and intending to conceal that fact.

1. The statutory provisions against which Joshua offended, the maximum penalties of imprisonment prescribed and the sentences imposed were:

(i) Drug Misuse and Trafficking Act 1985 (NSW) s 25(2) - 15 years imprisonment - a fixed term of 3 years imprisonment commencing on 22 March 2010;

(ii) Drug Misuse and Trafficking Act s 25(2) - life imprisonment - imprisonment for 13 years including a non-parole period of 8 years, both periods commencing on 22 September 2011;

(iii) Crimes Act 1900 (NSW) s 193B(1) - 20 years imprisonment - a fixed term of 3 years imprisonment commencing on 22 September 2010.

1. The effective sentence was thus of 14 years, including a non-parole period of 9 years. The effective sentence imposed for each of the proceeds of crime and cannabis offences was six months before the next sentence commenced.

1. In arriving at the sentence imposed for the methylamphetamine offence, a charge under s 303GN(2) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) of possessing a non-native illegally imported specimen, recorded on a Form 1 was taken into account. The Crown conceded that this offence should have little or no weight in the sentencing process.

1. For an offence of supplying not less than a large commercial quantity of methylamphetamine, a standard non-parole period of 15 years imprisonment has been prescribed - Crimes (Sentencing Procedure) Act 1999 (NSW), s 54A et seq.

1. In the case of Kurt Toole the charges were:

(1)   Between 5 July and 7 September 2010, supplying 17.2 kg of cannabis leaf;

(2)   Between 5 June and 7 September 2010, supplying not less than the large commercial quantity of methylamphetamine, viz 1,005.5g.

(3)   On 20 August 2010, entering land with intent to commit an indictable offence, to wit intimidation of Matthew Leslie.

1. The statutory provisions against which Kurt offended, the maximum penalties of imprisonment prescribed and the sentences imposed were:

(i) Drug Misuse and Trafficking Act s 25(1) - 10 years imprisonment - a fixed term of 2 years and 9 months imprisonment commencing on 22 March 2011;

(ii) Drug Misuse and Trafficking Act s 25(2) - life imprisonment - imprisonment for 9 years and 9 months including a non-parole period of 6 years, both periods commencing on 22 September 2011;

(iii) Crimes Act s 114(1)(d) - 7 years imprisonment - a fixed term of 3 years imprisonment commencing on 22 September 2010.

1. The effective sentence imposed was thus of imprisonment for 10 years and 9 months including a non-parole period of 7 years. The effective sentence imposed for each of the cannabis and entering land offences were six months before the next sentence commenced.

1. In arriving at the sentence imposed for the methylamphetamine offence, a charge on a Form 1 of damaging property by fire, was taken into account. It was of far more significance than the offence on Joshua's Form 1.

1. The grounds of appeal relied on by Joshua are:

(1) The Applicant was denied procedural fairness in that the sentencing Judge failed to warn those appearing for him that her Honour proposed to accumulate the sentences, contrary to the written submission of the Crown on sentence.

(2) The Applicant has a justifiable sense of grievance as a result of the disparity and lack of proper proportion between his sentence and the sentence imposed on the co-offender, Kurt Toole.

(3) The sentencing Judge erred in failing to take into account the evidence of the Applicant's mental health problems.

(4) The sentence is manifestly excessive.

(5) The Applicant has a justifiable sense of grievance arising out of the disparity and lack of proper proportion between the sentences imposed on him and sentence(s) imposed on other offenders including co-offenders.

1. The grounds of appeal relied on by Kurt are:

(1) The sentencing Judge erred in her treatment of the Applicant's psychiatric case on sentence. In particular:

(a) the sentencing Judge failed to find that a motivation for the offences was to support the Applicant's drug abuse and gambling problem; and

(b) the sentencing Judge failed to adequately evaluate the Applicant's psychiatric case when considering the subjective circumstances.

(2) The sentence imposed on count 2 is manifestly excessive.

(3) The Applicant has a justifiable sense of grievance arising out of the disparity and lack of proper proportion between the sentences imposed on him and sentence(s) imposed on other offenders including co-offenders.

1. The last ground of appeal of each Applicant was added by leave during the hearing.

1. Before turning to the grounds of appeal, it is necessary to provide further details of the Applicants' offending, her Honour's remarks and some other matters. The details of most of these matters are taken from the remarks on sentence of Wells DCJ which, in these respects, were not challenged.

1. Her Honour observed that the Applicants were engaged in significant drug trafficking and had had a number of other persons working for them. Her Honour was supplied with particulars of the sentences previously imposed on about eight of these other persons.

1. Her Honour recorded that in the case of both offenders the charges of supply were rolled up charges, in that they involved a number of individual acts of obtaining drugs for supply or actually supplying drugs to others. In the case of Joshua, there were 9 separate transactions reflected in the quantity of 95.398 kg of cannabis and 5 separate transactions reflected in the 6,048.8g of methylamphetamine. This supply occurred over a 2 month period during which he was subject to police surveillance.

1. The $200,000, the subject of the third charge against Joshua, was cash found in a safe security box held in Joshua's name at a bank.

1. In the case of Kurt, there were 12 separate transactions reflected in the quantity of 17.2 kg of cannabis and 26 reflected in the 1,005.5g of methylamphetamine. Again, the quantities were supplied over a 2 month period and those involved in the individual occasions of supply, indicate that both offenders were supplying to dealers lower in the chain of supply.

1. Her Honour found that the drug offences were premeditated and reasonably sophisticated, that both Applicants were directly involved in transactions themselves and also in directing the activities of others. Her Honour concluded that Joshua had a role higher than that of Kurt relying in this connection on the fact that Joshua had handled larger and wholesale quantities, he had had the cash in the bank and his activities involved less leg-work than Kurt's. Her Honour concluded that Joshua seemed to be operating more in the capacity of an overall supervisor of Kurt and others. She observed that some of the text messages in evidence revealed that Joshua was directing Kurt more than the other way around.

1. She observed that the quantity of methylamphetamine, the subject of one of the charges against Kurt, "just scrapes into the large commercial quantity range and that, of course, is highly relevant to his culpability in terms of the sentence to be imposed."

1. That said, her Honour observed that the distance between the brothers' respective roles and the amounts handled by each, was ameliorated by a number of factors. One was what her Honour referred to as some double counting in the quantity charged against Joshua. Her Honour remarked that "some (of the 6 kilograms) involves the same quantity he handled twice when he obtained it for supply and when he supplied it to others."

1. (There was no attempt during the hearing of the appeal to quantify the amount double counted and the Court did not query her Honour's remarks.) In fact, it would seem that there was no double counting, the 6 kg being made up from the following transactions detailed in the Agreed Facts:

17/8/2010	85.2	grams supplied
26/8/2011	27.2	grams supplied
27/8/2010	1,817.6	grams received
14/9/2010	1,817.6	grams received
22/9/2010	2,301.2	grams received
6,048.8	grams

1. A second factor was that Kurt was involved in a far greater number of transactions, her Honour observing that Kurt had showed "what might be fairly described as unbounded enthusiasm for the task of supplying drugs on an almost daily basis to other people." She described Kurt's role as acting as the right hand man of Joshua and having a close involvement in the operation, but reiterated her view "that Joshua Toole had a more significant and more superior role".

1. Her Honour observed that Kurt had a somewhat more significant criminal history and was on conditional liberty, having been placed on a bond only shortly before the commission of the subject offences. She remarked that his conduct "shows a disregard for the authority of the law and for the opportunity that he had been given on that occasion."

1. The circumstances of Kurt's entering land offence were that, not long before his arrest, he had been involved in an argument and small street fight with a Mr Leslie and took offence at some insults made by the latter. He went to the relevant land accompanied by a number of friends and smashed the glass panelling in the front door and several windows. Mr Leslie alleged he had been hit with a bat when he opened the front door to the invaders but, together with the other occupants of the house, declined to make a formal complaint.

1. Kurt was involved in the exchange in a number of text messages relating to the matter. The messages by Kurt display a shocking preference for violence and intimidation over decent behaviour. They included an assertion that Mr Leslie and another person had said they were going to take over running the drugs, that he had hit someone on the head when the door was open. Later Kurt sent another message thanking persons for being "soldiers" indicating "thats wat we are all about striking and standing our ground and showing people who we all are we are served to survive soldiers and brothers ...". (sic) In referring to this offence, her Honour remarked: "Not only did it involve threatening people in their own home, it involved the use of weapons and was motivated by standover tactics on the part of the offender."

1. The offence taken into account was of destruction by setting alight a car of someone whom Kurt believed was a "dog" and had informed police about the Applicants' involvement in drug supply.

1. Both offenders were arrested on 22 September 2010 and remained in custody thereafter. Both pleaded guilty at the earliest opportunity and her Honour indicated she allowed a 25% discount for their doing so. Both offenders had an excellent upbringing with a loving and supportive family, a very good education and good opportunities. Joshua Toole had been abusing steroids and Kurt some other drugs. Kurt also had a significant problem with gambling. Her Honour observed that "[n]either of them, in terms of expressions of remorse, have said anything other than through their pleas of guilty" but that such indications were weakened by the fact that the Crown case was strong. Her Honour seems to have also thought that their statements to Dr Nielssen, a psychiatrist whose reports, one in respect of each Applicant, came into evidence militated against remorse.

1. Furthermore, her Honour said that she did not accept most of the matters Joshua had told Dr Nielssen which she described as "a transparent attempt to minimise his role in the offences". She indicated also that she rejected some of what Kurt had told Dr Nielssen.

1. That said, her Honour opined that the Applicants' prospects of rehabilitation were quite high relying, inter alia, on the conduct of the Applicants while on remand, "the lack of significant ongoing drug and alcohol addictions [and] that there are no significant or chronic mental problems in evidence".

1. Kurt was born in July 1990 and Joshua in October 1983.

Joshua - Ground 1

The Applicant was denied procedural fairness in that the sentencing Judge failed to warn those appearing for him that her Honour proposed to accumulate the sentences, contrary to the written submission of the Crown on sentence.

1. The foundation for this ground lies in written submissions made by the Crown prosecutor below. The relevant passage was:

"Concurrency of sentences for drug trafficking:

Provided the totality of the offender's conduct is recognised, concurrent sentences could be imposed for the two roll-up drug trafficking offences given their intertwined nature and timing.

Ditto re the sentence for the deal with proceeds of crime offence given it too is intertwined with the drug trafficking."

1. Appearing for the Applicants at first instance, Mr Peter Hastings QC made oral submissions which included:

"I don't take any real issue with what the Crown had put forward in the submissions certainly as to the applicable law and principles. I don't disagree with anything which is contained in the documents."

1. Her Honour read the written submissions while on the bench and reserved her decision. No one said anything further on the topic of concurrency and accumulation.

1. In support of this ground the Court was referred to a number of prior decisions - Fairbairn v R [2006] NSWCCA 337; 165 A Crim R 434, Baroudi v R [2007] NSWCCA 48, Nair v R [2013] NSWCCA 79 - which have held, or in which it has been said, that there had been a denial of procedural fairness when a judge had, without notice, departed from an intimation he or she had made during the course of sentencing proceedings.

1. Reference was also made to remarks of Kirby P, with whom Handley and Sheller JJA agreed, in Parker v DPP (1992) 28 NSWLR 282 at 296. His Honour said:

"It used to be said that 'silence' in a judge was 'a counsel of perfection': see, eg, R v Watson; ex parte Armstrong (1976) 136 CLR 248 at 294. However, at least in the case of a trial judge sitting without a jury, that view has now been disapproved by the High Court of Australia: see Vakauta v Kelly (1989) 167 CLR 568 at 571. Respectfully, I strongly endorse the view there expressed. Fair procedure requires, at least for important decisions and those critical to the determination of a case, that considerations of importance to the judicial officer's conclusions should be drawn to the notice of the parties affected or their representatives so that a fair opportunity is presented for contrary argument to persuade the judicial decision-maker to a different view."

1. The remarks of the High Court in Vakauta v Kelly to which Kirby P referred were made in an appeal in a personal injury case and in the following context:

"In the course of an eloquent passage in his judgment in Reg v Watson; ex parte Armstrong, Jacobs J expressed the view that judicial 'silence' is 'counsel of perfection'. We respectfully disagree with the application of that observation to a trial judge sitting without a jury. It seems to us that a trial judge who made necessary rulings but otherwise sat completely silent throughout a non-jury trial with the result that his or her views about the issues, problems and technical difficulties involved in the case remained unknown until they emerged as final conclusions in his or her judgment would not represent a model to be emulated."

1. Parker v DPP was a case where, in the course of an offender's appeal from a deferral of sentence and fine imposed in the Local Court, a District Court judge, without notice of what he contemplated (which would have given the offender an opportunity to withdraw his appeal) imposed a custodial sentence. It was a situation where time honoured practice meant that a judge would not increase a sentence without notice.

1. The circumstances in both cases are radically different from those in sentencing proceedings in the District Court. Not uncommonly a judge will have a number of cases before him, hopefully some or all of which will be disposed of during the day. The circumstances of each may be simple or complex. The Crown will often hand up written submissions which may deal with a few or, on the other hand, a myriad of issues and which may or may not contain concessions. Generally defence counsel, but not the judge, will have had those submissions in advance. The Crown may make concessions in the course of oral submissions.

1. For a judge, who may wish to reserve because of the difficulties of a particular case, or so that he or she can deal with other cases in their list, in those circumstances to be obliged to read or listen to those submissions with a fine tooth comb, so that he or she can comprehensively identify any concessions and bring any with which he or she does or may disagree, to the attention of defence counsel, is to place a burden on the judge that the system cannot, and in my view should not, have to bear. The judge is there to read or listen to what is put before him or her and to decide, in light of the relevant statutory provisions and other law, the sentence appropriate to impose. The representatives of the parties have the obligation to raise matters that argue in favour of their respective clients, they can fairly be assumed to know them (or they should not be practising in the jurisdiction), and in sentencing proceedings I do not believe "fair procedure requires ... that considerations of importance to the judicial officer's conclusions should be drawn to the notice of the parties or their representatives".

1. I do accept that if a judge gives a positive indication that he or she is disposed to adopt a particular argument or approach, and a party or legal representative in reliance on that indication, also adopts a particular course, then the judge will, because of his or her or own conduct, come under an obligation to warn of the possibility of any change of view. To maintain silence when the judge's view has changed is to mislead and is in character no different from representations that are or become misleading in other fields of activity. Thus, I have no difficulty in accepting the law as laid down in Fairbairn v R; Baroudi v R; and Nair v R.

1. For these reasons I do not regard there having been a denial of procedural fairness. But there is another reason why this ground cannot succeed. The concession by the Crown was qualified. It used the expressions, "could be imposed" and "provided the totality of the offender's conduct is recognised". The first of these expressed a possibility. It did not say "should be imposed" or that no other course was open.

1. In, to some extent, accumulating the sentences for the drug offences, her Honour was clearly demonstrating that she did not regard one of those sentences as properly reflecting the totality of Joshua's conduct. In those circumstances, what is now relied on as a concession by the Crown, accepted that her Honour was entitled to impose sentences not, or not wholly, concurrent.

1. In these circumstances, I need not pursue the question whether there was any conceivable possibility that entirely concurrent sentences would not have been erroneous. As presently advised, I do not see how Joshua's criminality in supplying 95 kg of cannabis, often in transactions quite separate from those involving methylamphetamines, could possibly have been encompassed within a proper sentence for the methylamphetamine supply count.

Joshua - Ground 2

The applicant has a justifiable sense of grievance as a result of the disparity and lack of proper proportion between his sentence and the sentence imposed on the co-offender, Kurt Toole.

1. As has been said, the sentences for the methylamphetamine charges were, for Joshua, 13 years including a non-parole period of 8 years, and for Kurt, 9¾ years including a non-parole period of 6 years. The effective total sentences and non-parole periods were each 1 year longer.

1. In the argument made in support of this ground, no challenge was made to her Honour's findings summarised above. Rather was emphasis placed on the fact that Kurt had a more significant record, including offences of threatened or actual violence and that he had committed the subject offences whilst on conditional liberty. The gravity of the offence on his Form 1 was emphasised. These matters may be conceded.

1. However, operating with considerable force in the other direction, is the difference in roles of the Applicants as found by her Honour and the difference in quantities in the methylamphetamine charges. In support of the contention that quantity is not the principal determinant in fixing an appropriate sentence, counsel for Joshua relied on R v Stanbouli [2003] NSWCCA 355; 141 A Crim R 531 at [102] and Melikian v R [2008] NSWCCA 156 at [42]. I have no difficulty in accepting what is said in those paragraphs. The whole of them is important. In R v Stanbouli I said:

"And although a majority of the High Court has said that weight is not the chief factor to be taken into account in fixing a sentence - see Wong v R (2001) 207 CLR 584 at [67], their Honours also made it clear that weight is material. Given the terms of the legislation and the fact that the extent of the illegal profit and the degree of harm arising from an importation is liable to be roughly proportional to weight, it could hardly be otherwise."

1. The passage from Melikian v R reads:

"It is well established that the quantity of the drugs is not the sole or even the principal determinant for sentencing in relation to drug offences. As was pointed out by Wood CJ at CL in Regina v MacDonnell (2002) 128 A Crim R 44 at [33]:

'What is more important is the role of the offender, and the level of his or her participation in the offence; subject of course to the fact that, in relation to supply offences under State law, there is a gradation of seriousness reflected by an increase in penalty as the quantity of drug involved moves into those levels which answer the descriptions of a commercial quantity, or of a large commercial quantity.'"

1. Joshua was running a commercial operation. No doubt an increase in quantity increased his profit as it undoubtedly increased the extent of the harm, or prospect of the harm, that has led to the unlicensed methylamphetamine trade being rendered illegal. Dealing as Joshua did in roughly six times the quantity that was the subject of the charge against Kurt, required a substantially higher sentence. Given the differences in quantities and in the roles of the Applicants as found by her Honour, I see no error in the disparity between the sentences imposed. A fortiori is this so when her Honour provided detailed findings and reasons for the difference, findings and reasons which have not been challenged - see R v Swan [2006] NSWCCA 47 at [71].

Joshua Ground 3

The sentencing Judge erred in failing to take into account the evidence of the Applicant's mental health problems.

1. Originally, the foundations of this ground were a challenge to her Honour's finding that "there are no significant or chronic mental problems in evidence" and reference to a report of Dr Nielssen concerning Joshua: judgment on sentence, p 14. In oral submissions, Mr Game SC who appeared for Joshua, added a further contention, viz that her Honour had not dealt adequately with the psychiatric material.

1. In his report on Joshua, Dr Nielssen records a diagnosis of:

"Substance abuse disorder (anabolic steroids)

Substance induced psychotic illness, in remission."

1. Dr Nielssen went on to provide reasons for these diagnoses, saying:

"The diagnosis of substance dependence disorder is made on the basis of Mr Toole's account of heavy use of a range of potent anabolic steroids and the psychological complications of anabolic steroid use, which included irritability, increased impulsivity, the role of the drugs in triggering psychotic illness and the role of his abuse of anabolic steroids in these offences. Mr Toole reported that his involvement [in] the offences was the direct result of his attempts to source a supply of steroids.

Mr Toole reported symptoms of what was probably a steroid induced psychotic illness triggered by the very high doses of steroids and the emotional changes brought about by his use of anabolic steroids. The disorder was described as being in remission as a result of cessation of those drugs and treatment with a low dose of an antipsychotic medication under the supervision of a psychiatrist. He did not have features of a chronic mental illness such as schizophrenia, and may be able to withdraw from the medication in due course.

... Mr Toole is assessed to have good prospects of rehabilitation."

1. Earlier, Dr Nielssen had recorded that Joshua had described his main problem as the use of large doses of anabolic steroids, that he had reported "a strong family history of psychiatric disorder, as he understands his father had periods of depression ...". Joshua had said that in the year before his arrest, his general practitioner diagnosed a psychotic illness thought to be secondary to steroid use and prescribed psychotic medication. The features of the disorder were irrational anger and irritability and abnormal preoccupation with his partner's infidelity. On his reception into prison, Joshua had been assessed by another psychiatrist who prescribed another antipsychotic medication.

1. When Dr Nielssen asked about the presence of other symptoms of psychosis, Joshua said he had severe mood swings, from anger to sadness and occasioned periods of elevated mood within a short period. Joshua had also described having strong impulses to do things he would find embarrassing. He reported hearing conversations inside his head but denied experiencing typical hallucinations of voices or the belief that he could communicate by thoughts. Joshua told Dr Nielssen that his health had gradually improved since he stopped using anabolic steroids.

1. A significant omission from the criticism of what her Honour said was any attention to her Honour's use of the terms "significant" and "chronic". Dr Nielssen's diagnoses of a disorder and illness were that both were in remission and had been due in any event to Joshua's use of anabolic steroids, a use that had stopped. There was no evidence that there was any likelihood of them recurring and thus these problems were not chronic or, so far as the future was concerned, significant.

1. So far as the past was concerned, while in psychiatric language Joshua might have been said to have a disorder and an illness, in layman's terms, he had a drug addiction and this Court has made it clear that, except in unusual circumstances, a drug addiction is not to be regarded as a matter in mitigation - R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [202]. It would be illogical to treat differently the irrationality or psychoses that commonly are consequences of such drug taking.

1. In fact such evidence as there is does not indicate that Joshua's drug taking or anabolic steroid use contributed in any way to his offending beyond creating a need for funds which he sought to satisfy, by undertaking what seems to have been an efficient commercial operation. To treat his drug taking or any psychiatric conditions that flowed as therefore entitling him to any of the consideration normally extended to those with mental illnesses would distort the sentencing process.

1. There are other matters relevant to the complaint that her Honour did not deal adequately with the psychiatric material. Joshua's account of his offending given to Dr Nielssen differed significantly from the Agreed Facts and her Honour regarded what Joshua had said to the doctor as "a transparent attempt to minimise his role in the offences". Joshua's report to Dr Nielssen of "a strong family history of psychiatric disorder" was not confirmed by the Applicant's father during the sentencing hearing. Joshua was proved to be a liar and, given it was largely based on what Joshua had said, Dr Nielssen's opinion could be little or no more reliable than the information on which it was based. Furthermore, counsel appearing for the Applicants addressed not one word about the psychiatric evidence in the course of his address, one suspects because of its weaknesses to which I have referred. In the circumstances prevailing, her Honour dealt adequately with that evidence.

Kurt Ground 1

The sentencing Judge erred in her treatment of the applicant's psychiatric case on sentence. In particular:

(a) The sentencing Judge failed to find that a motivation for the offences was to support the applicant's drug abuse and gambling problem; and

(b) The sentencing Judge failed to adequately evaluate the applicant's psychiatric case when considering the subjective circumstances.

1. The latter complaint faces similar difficulties to the complaint made on Joshua's behalf just dealt with. Given counsel who appeared for the Applicants did not mention the topic in his address and the circumstances which may well have explained that stance, arguably Kurt had no "psychiatric case".

1. Certainly, there was the diagnosis of Dr Nielssen that Kurt suffered from:

(1) Substance abuse disorder

(2) Substance induced psychotic illness, in remission, and

(3) Obsessive compulsive disorder, in remission.

1. Dr Nielssen stated the bases for these opinions as follows:

"The diagnosis of substance abuse disorder is made on the basis of Mr Toole's account of abuse of a range of drugs known to have harmful psychological effects, and the history of complications of substance abuse, including the triggering of symptoms of obsessive compulsive disorder and psychotic illness, the contribution of drug use to the unrealistic thinking of compulsive gambling and the role of substance abuse in these offences.

The diagnosis of substance induced psychotic illness is made on the basis of the history of abnormal beliefs and other symptoms triggered by use of drugs, which had abated since withdrawing from drugs and had not returned after the withdrawal from treatment with psychotropic medications. There is a family history of psychiatric disorder and behavioural problems during his upbringing, which suggests some vulnerability to develop psychosis.

The diagnosis of obsessive compulsive disorder is made on the basis of the history of typical symptoms of the disorder, including intrusive unwanted thoughts alleviated by anxiety reducing rituals, and the magical belief that members of his family might come to some harm if he did not perform those rituals. The disorder is described as being in remission as Mr Toole reported that the symptoms had abated since receiving treatment, and have not returned since stopping medication.

At the time of the recent interview Mr Toole appeared to be free of symptoms of mental illness. However, he carries a risk of further episodes of mental illness because of the pattern of symptoms he reported and what appears to be an inherited vulnerability to mental illness. He would be strongly advised to abstain from drugs known to trigger mental illness, including all forms of stimulant drugs and anabolic steroids.

Mr Toole is assessed to have good prospects for rehabilitation ..."

1. The doctor had earlier remarked:

"Mr Toole reported the onset of symptoms of obsessive compulsive disorder soon after leaving school, in the form of intrusive and distressing thoughts alleviated by anxiety reducing checking rituals. He ... described loud thoughts in the form of conversations inside his head ... He described being irrationally angry and abnormally concerned about the fidelity of his girlfriend in Bathurst.

...

Mr Toole said that he was assessed by a psychiatrist on his reception to prison and was prescribed another antipsychotic medication ... He said that he had withdrawn from all the medication at about the beginning of the year, with no return of voices in his head or paranoid thoughts.

...

He reported the use of methamphetamine (ice) from the age of sixteen or seventeen. He said that the pattern of drug use was to binge over several days intermittently, and said his use increased in frequency over time ... He said that he also went through a period of heavy cocaine use, paid for by the sale of other drugs."

1. Dr Nielssen had also recorded that Kurt had withdrawn from all relevant medications seven months earlier, with no return of voices in his head or paranoid thoughts and that his health had improved whilst in prison. Dr Nielssen's reason for the view that there was a risk that Kurt might have further episodes of mental illness in the future, that there appeared to be "an inherited vulnerability to mental illness", suffered from the disadvantage, that while both Joshua and Kurt had given Dr Nielssen a history to that effect, their father gave evidence denying it. Neither Joshua nor Kurt gave evidence. Her Honour also rejected as untruthful Kurt's accounts to Dr Nielssen of his brother's involvement in the offences and, in these circumstances, it could not be said that there was any firm foundation for Dr Nielssen's opinion of a risk in the future.

1. Furthermore, apart from some problems with anger at school, the history of psychiatric symptoms Kurt gave Dr Nielssen all post-dated (or were at least consistent with post-dating) Kurt's commencement of drug taking. In these circumstances, there was no basis for concluding that any psychiatric condition Dr Nielssen found, was not due to that cause.

1. The matters to which I have just referred might well have been the reason why counsel for Kurt did not rely on the matter in submissions. Her Honour's remarks to the effect that "there are no significant or chronic mental problems in evidence", indicates that she directed attention to the issue and in the circumstances to which I have referred, there was no obligation on her Honour to deal with Kurt's "psychiatric case" further.

1. Turning to paragraph (a) of this ground, what her Honour said on the question of motive was:

"The operation was premeditated and reasonably sophisticated. They deal in large quantities of the cannabis leaf and the methylamphetamine. They were motivated by profit. Neither relied on a problem of drug dependence of the sort that is usually claimed in matters of this kind as motivating involvement in the supply and sale of various drugs."

And later,

"In terms of their upbringing, though, they had an excellent upbringing... [c]onsequently, it is mystifying no doubt to them and this court in the light of their backgrounds, how it was they came to be involved in these offences. I can only conclude that it was a desire for fast money and, as has been suggested, to some extent, coming within a circle of bad influences.

I note that each of them have had slight problems of a different kind in relation to drug abuse, with Joshua Toole abusing steroids and his brother abusing other drugs. Kurt Toole, in addition, has indicated that he has a significant problem with gambling. None of these matters explain or excuse the offences, but are relevant matters to take into account in considering their subjective circumstances."

1. Neither offender gave evidence but there was, in the pre-sentence report and Dr Nielssen's report relating to Kurt, substantial reference to Kurt having been motivated by gambling and drug issues. For example, in the pre-sentence report it is recorded, "Mr Toole ... stated that his offending behaviour was motivated by gambling, drug and alcohol issues and stated that... at the time of his offending, he was living a 'high life'."

1. Dr Nielssen recorded that Kurt told him he had been diagnosed at a particular medical centre as suffering from drug induced psychosis and that he had access to some of the progress notes from that centre. Dr Nielssen's report indicated no reservations concerning Kurt's reported drug use.

1. In these circumstances and in light of her Honour's remarks, it seems to me that there is no room for doubting that Kurt had a significant gambling and drug problem. I agree with her Honour that these matters do not excuse Kurt's offending, but her Honour was in error in saying that they did not "explain" his offending. I also see no basis for her Honour's description of Kurt's drug problems as "slight".

1. The question arises, however, as to the effect these errors might have had on her Honour's sentencing. I have already adverted to R v Henry at [202] where this Court rejected drug addiction and addiction to gambling, with its attendant need for money, as mitigating factors (except in exceptional circumstances - see at [194]).

1. The need to disregard these matters was a fortiori in Kurt's case. The pre-sentence report records that he had failed to complete some gambling intervention program with the Probation and Parole Service and Dr Nielssen's report records that, having been diagnosed by his general practitioner with a drug induced psychoses several months before his arrest, he did not take up a referral with the local mental health team.

1. In these circumstance, I am not persuaded that the errors to which I have referred, had or might have had any effect on the sentencing of Kurt and though I do not need to rely on it, I am reinforced in that view by her Honours' findings of Kurt's "unbounded enthusiasm for the task of supplying drugs on an almost daily basis to other people" and her description of the entering enclosed lands offence as involving "threatening people in their own home", by the use of weapons and standover tactics on the part of the offender.

1. Again, it is noteworthy that counsel appearing for Joshua and Kurt made no reference in his submissions to any problem with gambling Kurt may have had or either offender's drug use.

Joshua Ground 4 and Kurt Ground 2

(Joshua) The sentence is manifestly excessive.

(Kurt) The sentence imposed on count 2 is manifestly excessive.

1. In support of these grounds, reference was made to the Judicial Commission statistics and a number of prior cases. The point (which I accept) was made that a number of the cases in this area were decided before the decision of the High Court in Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120. Accordingly the cases, and the statistics, should be approached with caution.

1. Before I turn to the matters relied on behalf of the Applicants, it is appropriate to refer again to the statutory provisions for they constitute guideposts to which regard must be had - Muldrock v The Queen at [27]. Joshua's offence of supplying the large commercial quantity of methylamphetamine involved just over 6 kg. That is six times the amount of the bottom of the large commercial range, though it must also be recognised that there is no upper limit to that range. The maximum penalty prescribed for such an offence is, as has been said, life imprisonment and there is a standard non-parole period of 15 years prescribed for an offence in the middle of the range of objective seriousness.

1. Joshua's sentence, for the offence involving a large commercial quantity, was imprisonment for 13 years, including a non-parole period of 8 years. Thus, even when allowance is made for the 25% discount for his plea, the non-parole period imposed is significantly shorter than the prescribed standard. Obviously the 13 years, even grossed up with the plea discount added back, is a long way below the statutory maximum. And in this connection, it must not be forgotten that sentences are not linear - see R v MAK [2006] NSWCCA 381; (2006) 167 A Crim R 159 at [16]; R v Mahmud [2010] NSWCCA 219 at [69].

1. Of course, the 6 kg which Joshua supplied was vastly less that the indeterminate maximum quantity, the supply of which would constitute an offence under the section though it was, of course, six times the maximum commercial quantity, which renders an offender liable to imprisonment for 20 years and for which a standard non-parole period of 10 years has been prescribed. Given the overall scheme of the Drug Misuse and Trafficking Act, which, albeit by steps, provides for higher and higher penalties as the quantity involved in offences increases, this seems to me a proper factor to take into account.

1. Of course as many cases, including R v Stanbouli and Melikian v R referred to above, make clear, quantity, while important, is only one factor and regard must also be had to other matters. An offender's role has been regarded as a major factor in the determination of penalty. Indeed in the passage from Melikian v R, Woods CJ at CL is quoted as regarding it as more important than quantity. Running as he was a commercial operation for his own profit, Joshua's role rated very highly in the hierarchy of offenders.

1. Joshua's role also leads to the conclusion that he scored highly on any scale of other factors identified by the High Court in Wong and Leung v The Queen [2001] HCA 64; 207 CLR 584 at [68], [69] as material to the determination of any sentence - knowledge of quantity and purity, and the kind and size of reward. To these factors, one should add Wells SC DCJ's findings that Joshua was as an overall supervisor of Kurt and directing others in an operation she described as "reasonably sophisticated".

1. Joshua was a principal (even if his supplier in Sydney might have had a more extensive range of customers). His offences were premeditated and his offending had occurred over a period of months and he dealt in a quantity appreciably above the maximum commercial and minimum large commercial quantity. Except for quantity, I would rank Joshua's criminality as at or very close to the top of that contemplated by the statutory provisions applicable to the supply of a large commercial quantity. If one is permitted to make the comparison, his criminality was a long way above the mid-range for an offence involving a commercial quantity.

1. The Judicial Commission statistics for the supply of large commercial quantities covering the period October 2006 to September 2013 show that of 35 offenders who pleaded guilty and were sentenced to non-consecutive terms, six had sentences of over 10 years and four had sentences of 12 years. The highest non-parole period was 10 years and only five offenders had non-parole periods of 8 years or more. Of 28 offenders who were sentenced to consecutive terms, only four received over 10 years as their longest sentence. The limited usefulness of this information has been indicated in numerous cases and a comparison with some prior cases is more useful although, again, it is important to recognise differences and that each sentence is the result of a separate exercise of discretion - see generally Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 at [54].

1. In R v Ehrlich [2012] NSWCCA 38; 219 A Crim R 415 the offender pleaded guilty to supplying a large commercial quantity of methylamphetamine, viz 1.615 kg in the course of nine separate supplies during a 3 month period.

1. The offender, aged 35 at the time of the offence, was involved in a large scale drug syndicate and his role was "at least a principal" although the objective seriousness of his offence was assessed as "in the middle of the range... but very much towards the bottom of the middle of that range": at [20]. He had an appreciable work history but became addicted to drugs, he had a prior record, including for drug supply, but his prospects of rehabilitation were assessed as reasonably good.

1. This Court dismissed a Crown appeal on the grounds of manifest inadequacy against a sentence of imprisonment for 6½ years including a non-parole period of 4 years and 10 months, that sentence reflected discounts totalling 35% and thus a starting point of 10 years including a non-parole period of 7½ years. Johnson J, who dissented, thought that the starting point before discounts should have been 14 years. The report contains a review of a number of prior cases.

1. In Aoun v R [2011] NSWCCA 284 this Court dismissed an appeal against a number of sentences, only one of which needs to be referred to here. It was a sentence of 12 years including a non-parole period of 7 years for the supply (an offer to supply) 3.36 kg of ecstasy tablets, i.e. a little over 6.7 times the minimum large commercial quantity. Based on a sample that had been supplied, the drug would have had what was described as a quite low purity of 9%.

1. The offender was 27 at the time of his offending. He had a reasonable work history but had become addicted to drugs. He was regarded as having no significant record although the instant offence was committed in the course of drug trafficking at a wholesale level to a substantial degree. He pleaded guilty in the Local Court and although the report does not mention the discount given on that account, it may be inferred it was 25%.

1. In Paxton v R [2011] NSWCCA 242; (2011) 219 A Crim R 104 the offender pleaded guilty to a number of serious drug offences, only one of which need be referred to here, viz. the supply of 2.314 kg of methylamphetamine by a number of transactions over two months. The offender was engaged in the supply of a number of drugs on a substantial scale, although not regarded as a principal. His offending was regarded as not higher than moderately above mid-range. Taken into account with the methylamphetamine offence were two offences of supplying something over 2.6 and 3 kg of cannabis. He was aged about 33 at the time of offending with a limited criminal history not including offences of drug supply. After allowing a 20% discount, the sentence imposed by this Court for the offence mentioned was imprisonment for 16 years including a non-parole period of 12 years

1. In R v Mahmud [2010] NSWCCA 219 the offender faced a number of charges including the deemed supply of 1.78 kg of methylamphetamine of a purity ranging between 2 and 2.5% found in his residence. He was regarded as a warehouse-keeper, a convenient repository for someone else's drugs for a modest return and the objective gravity of his offence as substantially below mid-range. Taken into account were some firearm offences but it was said that in the circumstances of the case the increase on their account would not have been large.

1. The offender was aged in his mid-20s, he had had a disruptive childhood, had some work history until he became addicted to drugs and a minor criminal record for offences other than drugs.

1. This Court allowed a Crown appeal and, holding that an appropriate starting point was 11 years, and after allowing a discount of 17.5%, imposed a sentence of 9 years including a non-parole period for 6½ years for the methylamphetamine offence. The Court drew attention to R v Le Cerf (1975) 13 SASR 237 and other cases that made it clear that those who assist at a low level in the illegal drug trade must expect heavy sentences.

1. In Efstathiadis v R [2009] NSWCCA 317 this Court dismissed an appeal by an offender who pleaded guilty to one instance of the supply of 1.9 kg of methylamphetamine and who had been sentenced to imprisonment for 14 years including a non-parole period of 10 years. His criminality was assessed as "only very slightly below" the mid-range. He had been sentenced some years previously for an offence of on-going supply. The sentencing judge had found that the offender had good prospects of rehabilitation but he had received a discount for his plea of only 10%. It may be that the pre-Muldrock view of the standard non-parole period affected the sentence.

1. In Wang v R [2009] NSWCCA 223 the offender who pleaded not guilty had taken delivery of ecstasy pills weighing about 1,464g. This was a large commercial quantity, the lower limit for that drug being 0.5 kg. The offender's precise role in any hierarchy was not determined although it was conceded he was not a mere courier. He had a minor criminal record. Holding that the objective gravity of the offence fell somewhat below the mid-range this Court imposed a sentence of 16 years including a non-parole period of 12 years.

1. In Ly v R [2008] NSWCCA 262 an appeal against a sentence of 12 years including a non-parole period of 8 years imposed for an offence of (deemed) supply of 1,101.22g of methylamphetamine was dismissed. Three offences of goods in custody being cash totalling some $330,000 were taken into account. The offender had received a discount of 25% for his plea. While recognising that the quantity was not far above the bottom of the large commercial range the sentencing judge assessed the offence as falling within the mid-range of seriousness. Large amounts of money in the bank and, together with other indicia of drug dealing, at the offender's home contributed to this conclusion. Hislop J, with the concurrence of the other members of the Court, observed that the sentence was in conformity with other decisions to which the Court was referred.

1. Reference may also be made to the summary of other cases appearing in the report of Tan v R [2010] NSWCCA 207, recognising of course that they concerned ecstasy where the minimum large commercial quantity is 0.5kg.

1. Recognising the limitations a summary table imposes - for example the table that follows does not record the presence or significance of a Form 1, or prior convictions, or findings as to objective seriousness - it is nevertheless useful to compare the sentences imposed on the Applicants with the results in the cases just referred to and a deduced or stated undiscounted starting point:

Name	Role	Qty	Sentence	Discount	Starting Point
Ehrlich	One of a number of principals	1.615 kg	6.5y/4.8 y	35%	10y.
Aoun	Wholesaler	3.36 kg	12y/7y	25% (probably)	16y
Paxton	Ran one-man multidrug supply operation	2.314kg	16y/12y	20%	20y
Mahmud	Warehouse keeper	1.78kg	9y/6.5y	17.5%	11y
Efstathiadis	Part of network	1.9kg	14y/10y	10%	15.5y
Wang	More than mere courier	1.464kg	16y/12y	Nil	16y
Ly	In business of supply	1.101kg	12y/8y	25%	16y
Joshua	Principal	6.04	13y/8y	25%	17.3y
Kurt	Wholesaler/right hand man	1.005	9.75y/6y	25%	13y

1. While the decision in R v Ehrlich argues in Joshua's favour (if one ignores the difference in quantity) and that in R v Mahmud may do so (if one ignores the purity) when regard is had to quantity, Joshua's role, and the other features referred to in Wong and Leung, the other cases to which I have referred make it clear that the sentence imposed on Joshua was not manifestly excessive. Indeed, by comparison with some, it is low.

1. In the case of Kurt, whose sentence was of imprisonment for 9 years and 9 months including a non-parole period of 6 years, again the maximum penalty prescribed was life imprisonment and there was a standard non-parole period of 15 years. Given that the quantity of methylamphetamine with which he was involved was only just above the bottom of the large commercial range, it is probably also relevant to have regard to the statutory provisions relevant to a commercial quantity. For such an amount the maximum penalty prescribed is imprisonment for 20 years and there is a standard non-parole period (for an offence in the middle of the range of objective seriousness) of 10 years.

1. Recognising that Kurt was not a principal and the periods of his sentence must be grossed up by reference to the plea discount he was given, nevertheless those periods do not appear to be excessive when compared with any of the legislative provisions. Grossed up, his head sentence was about 13½ years - well below the 20 years and life periods and his non-parole period (similarly adjusted) of 8 years is appreciably short of the 10 or 15 year periods. A fortiori when one recognises that his sentence had to take account also of his offence on the Form 1.

1. The Judicial Commission statistics for commercial quantities for the period October 2006 to September 2013 suggest that the sentence imposed on Kurt was heavy. They show that of 73 offenders who pleaded guilty and were sentenced to non-consecutive terms for the supply of a commercial quantity of amphetamines, only three offenders (not including Kurt) were sentenced to imprisonment of 9 years and only one had a longer sentence, of 12 years. Of those 73, five had a non-parole periods of 6 years and only one had a longer non-parole period, viz. 7 years. Of the 55 offenders who were sentenced to consecutive terms, only nine received a sentence over 8 years and only one received a sentence over 9 years as their longest sentence. It must be recognised that many of these sentences may have reflected a view of the standard non-parole period legislation held in Muldrock v R, but if anything that error probably had the effect of increasing the sentences where it occurred. Of course the statistics do not detail quantities or role.

1. Reference should also be made to specific decisions. In R v Paredes [2012] NSWCCA 4 this Court dismissed an appeal against a sentence of imprisonment for 7½ years including a non-parole period of 4½ years for knowingly taking part in the supply of a commercial quantity of methylamphetamine. The quantity was approximately, but less than, 1 kg. The offender had pleaded guilty on the first day of trial. The only ground of appeal was lack of parity. The offender was described as "intimately involved" although because the offenders were arrested before the supply occurred, his offending was for participation in an agreement to, or arranging a, supply.

1. In Lawson v R [2012] NSWCCA 56 this Court dismissed an appeal from a sentence of 9 years including a non-parole period of 5½ years for the (deemed) supply of 907.5g of methylamphetamine. Two offences on a Form 1 were taken into account, but are unlikely to have had much effect on the sentence. A sentence of 5 years including a non-parole period of 3½ years for the supply of 128g of ecstasy was made concurrent. The offender was regarded as a mid-level drug dealer supplying drugs in portions significantly larger than street deals. At the time of offending the offender was serving a sentence by way of home detention and was not regarded as having good prospects of rehabilitation. He had pleaded guilty but the discount was not stated in the report.

1. In Radi v R [2010] NSWCCA 265 an offender, in whose vehicle a bag containing 991g of methylamphetamine was found, was sentenced to imprisonment for 10 years including a non-parole period of 7 years. The appeal was only against conviction but the report suggests - I put it no more strongly - that there was little or no other evidence indicating the offender's role. The bag would seem to have been placed in the car by another person with whom the offender had had numerous phone calls.

1. In R v Sciberras [2006] NSWCCA 268; (2006) 165 A Crim R 532 this Court allowed a Crown appeal and imposed sentences for, inter alia, supplying some 474g of methylamphetamine and some 175.49g of ecstasy. The sentences imposed were imprisonment of 8 years including a non-parole period of 6 years and imprisonment for 8 years including a non-parole period of 5 years. In respect of the second of these offences, a number of offences on a Form 1 were taken into account and could be expected to have led to some increase in sentence. The sentences had different starting dates and the effective sentence imposed in respect for the offences mentioned was of 10 years including a non-parole period of 7 years.

1. The offender had been, for about 5½ months, trafficking to a substantial degree in more than one drug to fund his and his partner's drug addiction. Most sales were to ultimate users. The offending was regarded as not below the mid-point of objective seriousness. It may well be that the standard non-parole was given more weight than it would have received after the decision in Muldrock. However, operating in the other direction, and in recognition of the proceedings being a Crown appeal, the Court said that the sentences imposed were less than should have been imposed at first instance.

1. The offender was found to have good prospects of rehabilitation and unlikely to re-offend. He was given a discount of, or of the order of, 25% for his plea.

1. In R v Blair [2005] NSWCCA 78; (2005) 152 A Crim R 462, this Court imposed a sentence of 7 years including a non-parole period of 5 years and 3 months on an offender who had been convicted of an offence of the (deemed) supply of 371.3g of methylamphetamine found in a freezer at his home. He was treated as a courier and storeman who assisted some other unidentified person. There was no evidence of personal gain to the offender. On account of the quantity and the offender's role, his offence was not regarded as falling in the mid-range of objective seriousness. The offender had health problems and it is clear that this operated to reduce his sentence. He had some criminal record but not including drugs. Although the Court also took into account the sentences passed prior to the introduction of the standard non-parole period, it appears that the standard non-parole period may have had an effect greater than it would now.

1. In R v Amurao [2005] NSWCCA 32, the offender had been charged with a number of offences. Three are of present relevance, viz.

(i) On 26 July 2002 supplying 10 grams of methylamphetamine;

(ii) On 28 June 2002 supplying 28 grams of crystalline-methylamphetamine (ice); and

(iii) On 25 July knowingly taking part in the supply of 137.3 grams of methylamphetamine.

1. Each offence arose under s 25(1) of the Drug Misuse and Trafficking Act and rendered the offender liable to imprisonment for 15 years. There was no standard non-parole period. Taken into account in connection with the third of these offences was an offence of having custody of $3,050 reasonably suspected of being unlawfully obtained.

1. The offender had no prior record. He was held entitled to a discount of 30% for his plea and assistance. His motivation was money. He was regarded as well up and having some authority in a well organised criminal enterprise.

1. In respect of the 3 offences mentioned, and after a review of the statistics for large commercial quantities, commercial quantities and quantities less than commercial, this Court sentenced the offender to imprisonment for periods of respectively a fixed term of 15 months, a fixed term of 2 years, and a term of 5½ years including a non-parole period of 2 years and 4 months. The starting dates of the sentences were 1 year apart, resulting in an effective sentence for the 3 offences (involving a total of 175.3g of methylamphetamine) of 7½ years including a non-parole period of 4 years and 4 months.

1. Again, despite its limitations, a table may be useful:

Name	Role	Qty	Sentence	Discount	Starting Point
Paredes	Intimately involved	~ 1kg	7.5/4.5y	10%	8.3y
Lawson	Mid level dealer	907gm	9/5.5y	?	?
Radi	Possessor	991gm	10/7y	Nil	10y
Sciberras	Dealer	474gm	8/5y	25%	10.7
Blair	Courier/storeman	371gm	7/5.25y	Nil	7y
Amurao	"Well up"	175gm	7.5/4.3y	30%	10.5y
Kurt	Wholesaler/right hand man	1.005gm	9.75y/6y	25%	13y

1. Looking only at the raw figures, by comparison Kurt's sentence was high. However once account is taken of the quantity with which Kurt was involved, the fact that he was on conditional liberty at the time, and of the offence on his Form 1, it is not. It is certainly not manifestly excessive or unreasonable or plainly unjust - Hili at [75].

1. In what I have said in respect of these grounds, I have concentrated on the methylamphetamine offences with which the Applicants were charged. Their overall sentences were, of course, increased in consequence of the other charges against them. However, given that the increase was only of 1 year for each Applicant, if the sentences for the methylamphetamine offences were not manifestly excessive, then the overall sentences certainly were not.

1. There is one further matter to which I should advert. The courts cannot be unconscious of the increase in frequency of offences involving trafficking in amphetamines. Statistics published by the Bureau of Crime Statistics confirm that that is the case, the rate of offences per 100,000 of the population having roughly doubled over the last 10 years. Clearly the weight to be given by the courts to deterrence should also markedly increase and result in a commensurate increase in sentences. However, I have not found it necessary in considering this ground to place weight on this factor.

Joshua Ground 5 and Kurt Ground 3

[Each] Applicant has a justifiable sense of grievance arising out of the disparity and lack of proper proportion between the sentences imposed on him and sentence(s) imposed on other offenders including co-offenders.

1. These grounds were added, by leave, during the hearing of the appeal. They arise out of sentences imposed by Maiden DCJ on 5 December 2012 on an offender GB and by Tupman DCJ on 6 September 2013 on an offender McGann. They were not adequately addressed by Counsel who appeared for the Crown during the hearing and the Court subsequently invited further submissions, observing that the sentence imposed on GB might answer one or other of the descriptions of "manifestly inadequate", "grossly manifestly inadequate" or "an affront to the administration of justice". The Crown provided further submissions on 22 August last and Mr Game SC on behalf of the Applicants responded on 25 August 2014.

1. The Applicant noted that the Crown did not contend that the sentence imposed on GB answered one of the descriptions just quoted, contenting itself with describing the sentence imposed on GB as "arguably erroneously lenient". In fact, the Crown had earlier described GB's sentence as "undoubtedly low".

1. The Applicants' submissions went on to contend that, as the Crown had not submitted that the sentence imposed on GB was manifestly inadequate, it would not be appropriate for the Court to embark on its own consideration of whether GB's sentence answered that description or one of the other epithets referred to above. It was submitted that if the Court concluded there was disparity, it should at least reduce the Applicant's sentences to the bottom of the appropriate sentencing range.

1. Given that the invitation from the Court to make further submissions expressly raised the possibility that the sentence imposed on GB might answer one or other of the descriptions quoted, the Applicants were on notice that the Court was concerned that that such a characterisation might be appropriate. Given that the Applicants had an opportunity to make submissions on the issue, the Court is not precluded by the attitude of the Crown from so finding. Providing that to depart therefrom is not a denial of natural justice, a sentencing Court is not bound by the attitude of the Crown to a particular issue or sentence - GAS v The Queen [2004] HCA 22; (2004) 217 CLR 198 at [30] et seq. Accordingly, I propose to consider the sentence imposed on GB free of any restrictions such as contended for on behalf of the Applicants. It should be noted however, that the Crown's submissions did include the contention that any reduction in the Applicant's sentences would lead to a sentence which was "an affront to the administration of justice".

Parity - GB

1. GB was sentenced in respect of three charges:

(i) Supplying a large commercial quantity viz. 5.936 kg of methylamphetamine;

(ii) Supplying a commercial quantity viz. 74.976 kg of cannabis leaf;

(iii) Dealing with the proceeds of crime viz. a sum of $142,095.

1. GB was a courier transporting drugs on at least six occasions between 12 August 2010 and 23 September 2010 from Sydney to Newcastle and returning with the cash. He received for each round trip $500. The subject of the charges were drugs and cash found in GB's vehicle at the time of his arrest. It is apparent from all the material before the Court, that he was arrested just after supplying Joshua for the last time and the quantity of methylamphetamine with which he was charged equals that contained in the deliveries to Joshua detailed above. GB provided assistance to the authorities for which he was given a discount of 25% in addition to a similar discount for his plea. He had a conviction in 1980 for the importation of heroin, receiving for that offence, a sentence of imprisonment for 15½ years. He had significant health problems being "serious depressive and anxiety disorders", serious orthopaedic injuries and heart problems. There was a likelihood that his general health would continue to deteriorate while incarcerated. Maiden DCJ regarded GB as unlikely to re-offend.

1. His Honour also said that if GB was discharged from the prison hospital, where he apparently was at the time of sentence, and possibly in any event, it was most likely that GB would go into protective custody. (I might add that the authorities indicate that the possibility of such custody is encompassed within the discount for assistance.)

1. Maiden DCJ's remarks on sentence indicate he was aware of the sentences imposed on the Applicants. The sentences he imposed were:

(i) On the methylamphetamine charge, imprisonment for a fixed term of 24 months commencing on 22 September 2010;

(ii) On the cannabis charge, imprisonment for a fixed term of 18 months commencing on 22 September 2011;

(iii) On the proceeds of crime charge, imprisonment for 18 months, including a non-parole period of 12 months, both such periods commencing on 22 September 2012.

1. The effective sentence was thus of 3½ years including a non-parole of fixed term of 3 years. At least at first blush, as the following table demonstrates, there is thus a substantial difference between the sentence imposed on GB and the Applicants:

GB		Joshua		Kurt
Qty	Sent	Qty	Sent	Qty	Sent
M'amphetamine	5.96 kg	2 y FT	6.04 kg	13/8 y	1.005 kg	9.75/6 y
Cannabis	74.9kg	1.5 y FT	95 kg	3 y FT	17.2 kg	2.75y FT
3rd Offence	$142k	1.5/1. y	$200k	3 y FT	N A	3 y FT
Overall	3.5/3 y	14/9 y	10.75/7 y

1. Given that, because of the choice of starting dates, the sentences imposed on the Applicants for their cannabis offences were effectively for only 6 months, the Applicants have no legitimate cause for complaint despite the differences in quantities and the nominal length of the sentences for the offences involving that drug. For similar reasons and because of its relative insignificance in the overall sentences, I take the same view in respect of the sentences for the third offences.

1. The situation in relation to the methylamphetamine offences is different. Compared against the statutory criteria, and even adding back the 50% discount GB received, the sentence imposed on him for that offence was extraordinarily light. Certainly he was a courier on a per trip rate but, as was said in R v Muanchukingkan (1990) 52 A Crim R 354 at 356, the law is that:

"No reason existed for extending particular leniency because of the fact that the applicant was a courier, for the reasons outlined in Regina v Le Cerf.... As was there stated, couriers and intermediaries must expect substantial sentences because without them the trade in narcotics would collapse".

1. The decision in R v Mahmud referred to above provides further confirmation of that view. So does the extensive review of authorities I carried out in the context of drug importation in R v Spiteri [1999] NSWCCA 3.

1. There can also be no doubt that Maiden DCJ's sentence on GB was much influenced by his particular subjective considerations. Furthermore, given that he was a courier, his offence was arguably not in the middle of the range of objective seriousness. However, the repetitive and premeditated nature of GB's offending, effectively assisting in the distribution of almost 6 kg of methylamphetamine, means that his sentence was manifestly inadequate.

1. Should Joshua's and/or Kurt's sentence be reduced to accord more with that imposed on GB?

1. Adding back the 50% discount GB received, his sentence was nominally a fixed term of 4 years. With his plea discount added back, the non-parole element of Kurt's sentence equates to 8 years and the head sentence to about 13½ years - figures which, as I have said, are well below the 10 or 15 year standard non-parole periods and the 20 years and life periods referred to in the applicable legislation. Account needs to be taken also of the fact that Kurt's sentence reflects a very serious offence on a Form 1 and which required a significant increase in the sentence beyond that appropriate for the drug offence itself.

1. The 8 and 13½ year figures of course reflect that Kurt was on conditional liberty and his Form 1 offence. In accordance with sentencing practice, those factors were never quantified but they could well account for half of the difference between the notional 4 and 8 year periods. Once that circumstance is recognised, there becomes limited scope to reduce Kurt's sentence if it is not of itself, manifestly inadequate. Similar considerations apply in any comparison of the grossed up full terms.

1. When disparity in sentences exists on account of a manifestly inadequate sentence, this Court has a discretion whether to reduce the higher sentence -R v Diamond (unreported NSWCCA, 18 February 1993); R v Steele (unreported NSWCCA, 17 April 1997). Having regard to the considerations referred to in the immediately preceding two paragraphs and the extent of the inadequacy in the sentence imposed on GB, that discretion should be exercised against interfering in Kurt's sentences.

1. Of course there is a much greater difference between the sentence imposed on GB and that imposed on Joshua, the grossed up fixed term and non-parole periods being 4 years and 10.7 years. There was of course the difference in roles of GB and Joshua - courier on a per-trip rate and an entrepreneur whose earnings presumably reflected supply and demand and profit - and GB's particular subjective considerations, but these matters cannot sensibly account for the difference in sentences.

1. Again the question arises, should this Court interfere? Although I do not go so far as to conclude that any lower sentence on Joshua would be "an affront to the administration of justice" or manifestly inadequate, when regard is had to the statutory provisions and his situation, the Court should not in the exercise of its discretion, reduce Joshua's sentence in an attempt to reflect, even partly, the manifestly inadequate sentence imposed on GB. The inadequacy of the sentence imposed on GB means that Joshua has no legitimate sense of grievance arising from the disparity between the sentences. Furthermore, and though I do not need to rely on this, the enormous damage that methylamphetamines are doing to the community - and which judges cannot but be conscious of - is such, that the perfectly proper sentence imposed on Joshua for his deliberate criminality, should not be reduced.

Parity - McGann

1. Mark McGann was sentenced by Tupman DCJ in respect of one count of supplying 1.64 kg of ecstasy and one count of supplying 250.1g of methylamphetamine. Both supplies were said to have occurred on 22 September 2010. The sentences imposed were:

(i) For the supply ecstasy charge - imprisonment of 7½ years including a non-parole period of 4½ years both such terms commencing on 1 October 2011;

(ii) For the supply methylamphetamine charge - imprisonment for 4 years including a non-parole period of 2 years commencing on 1 October 2011.

1. However, before proceeding further on the question of what should be the impact on the Applicants of these sentences, the question arises whether McGann was a co-offender with either or both of the Applicants. There were two pieces of evidence suggesting that McGann was such a co-offender. One was contained in an affidavit of the solicitor for the Applicants which, after referring to receipt of the remarks on sentence of Tupman DCJ, continues:

"14. On perusal of the Remarks there is no indication of an association between Mark McGann and the Applicants. On the advice of counsel, I investigated the connection between Mark McGann and the Applicants. I made contact with the Officer in Charge of the police investigation and the ODPP and I perused the original police brief.

15. The original Fact Sheet in the case states inter alia:

'Investigators established that Joshua TOOLE sourced amphetamines and cannabis from a source in Sydney. This source is believed to be Mark McGANN utilising telecommunications number [XXXXX XXXX]. Once a week, Joshua TOOLE would organise a delivery of cannabis and amphetamines. Co-accused [GB] would then drive from Sydney to Newcastle.'

16. The statement of agreed facts on sentence referred to [GB] ...but does not refer to Mark McGann. I am not aware why his name was removed from the statement of facts. However, where the agreed facts refer to the Applicant's 'supplier in Sydney' I believe that this is a reference to Mark McGann."

1. There was nothing to confirm that McGann's name was "removed" from the statement of facts.

1. The second piece of evidence lies in a transcript of the sentencing proceedings of GB which occurred on 30 November 2012 and where he indicated that he was involved as a driver in an enterprise involving Joshua Toole and McGann.

1. The statements of Agreed Facts tendered in the proceedings against the Applicants referred to GB delivering some of the methylamphetamine, the subject of the charges, to Joshua following requests by Joshua to his "supplier" at about 5.21 pm on 21 September 2010. On prior occasions he had delivered methylamphetamine and/or cannabis. Maiden DCJ's remarks, when sentencing GB, refer to him transporting drugs from Sydney to Newcastle and, it may be inferred from those remarks, to the Applicants. In those remarks, the supplier is referred to as "M" but there is no other description.

1. The last delivery to the Applicants occurred at about 8.55am on 22 September 2010, at about which time Joshua and GB were arrested.

1. In Judge Tupman's remarks when sentencing McGann, her Honour describes the circumstances of the offences with which she was concerned. They were, that at about 12.40 pm on 22 September 2010, McGann and a co-offender Steven Cox drove vehicles into a carpark, spoke to one another and then separately drove out. Soon afterwards, both vehicles were stopped by police and searched. Found in McGann's vehicle was money totalling $82,150. Found in Cox's vehicle was 1.64 kg of ecstasy and the 250.1g of methylamphetamine. It was accepted that Cox was a courier.

1. Judge Tupman also referred to the sentence imposed on Cox. Her Honour's references in that regard, make it clear that Cox was not GB.

1. There is no evidence that the Applicants dealt in ecstasy. Both the difference in name and the timing of the arrest of GB make it clear that he was not Cox and was not involved in the offences for which McGann was sentenced by Tupman DCJ. It may be that M, referred to by Maiden DCJ, was the Sydney supplier to the Applicants, but none of the remarks on sentence made in the case of the Applicants, GB or McGann provide evidence of that fact. It is also clear that the offences for which McGann was sentenced did not involve the Applicants.

1. In these circumstances, I am not persuaded that McGann and the Applicants were co-offenders in any of the offences for which McGann was sentenced by Tupman DCJ. It may be that McGann was sentenced on another occasion also, but if so, there is no evidence of that before this Court. Such similarities as there were in their offending - one a supplier of drugs and the other a customer of such a supplier - does not persuade me that considerations of parity between them arise any more than they do between unrelated offenders who are charged with similar offences and this, notwithstanding the remarks in Green and Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462 at [30].

1. Accordingly, I regard the sentences imposed on McGann as of no higher significance than those imposed on other offenders who have committed relevantly comparable offences. I have referred to a number of these above.

Conclusions

1. I propose the following orders in the case of each Applicant:

(1) Grant leave to appeal.

(2) Dismiss the appeal.

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Decision last updated: 18 December 2014