Williams v The Queen

[2016] NSWCCA 68

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Williams v R [2016] NSWCCA 68
Hearing dates:	22 March 2016
Date of orders:	04 May 2016
Decision date:	04 May 2016
Before:	Hoeben CJ at CL at [1]; Harrison J at [2]; Davies J at [61]
Decision:	1. Grant leave to appeal. 2. Dismiss the appeal.
Catchwords:	CRIMINAL LAW – appeal against sentence – supply commercial quantity of prohibited drug and other offences – aggregate sentence – whether judge erred in assessment of objective seriousness – principle of totality – whether judge erred in failing to take account of the principle – parity – whether justifiable sense of grievance – whether judge placed undue weight on protection of community and offences alleged to have been committed in custody – whether sentence manifestly excessive
Legislation Cited:	Drug Misuse and Trafficking Act 1985
Cases Cited:	Cahyadi v Regina [2007] NSWCCA 1; (2007) 188 A Crim R 41 Delaney v R; R v Delaney [2013] NSWCCA 150 House v R [1936] HCA 40; (1936) 54 CLR 499 JM v Regina [2014] NSWCCA 297 Mulato v R [2006] NSWCCA 282 R v Achurch [2011] NSWCCA 186; (2011) 216 A Crim R 152
Category:	Principal judgment
Parties:	Michael Williams (Applicant) Crown (Respondent)
Representation:	Counsel: A Miller (Applicant) P Ingram SC (Respondent)   Solicitors: HNT Legal (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2012/293870
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 7 November 2014 Before: Bennett SC DCJ File Number(s): 2012/293870

Judgment

1. HOEBEN CJ at CL: I agree with Harrison J.

2. HARRISON J: Michael Williams seeks leave to appeal against the severity of an aggregate sentence imposed by Bennett DCJ on 7 November 2014. The offences with which Mr Williams was charged were as follows:

Count 1: Larceny of alcohol valued at $241,050 on 25 April 2012 contrary to s 117 of the Crimes Act 1900. The maximum penalty for this offence is 5 years imprisonment.

Count 2: Supply not less than the commercial quantity of methylamphetamine, being 432.99g between 26 July 2012 and 7 September 2012 contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. The maximum penalty for this offence is 20 years imprisonment and/or $385,000. This offence carries a standard non-parole period of ten years.

Form 1: Destroy property by means of fire, being a motor vehicle in company on 11 July 2012 contrary to s 195(1A)(b) of the Crimes Act, This offence carries a maximum penalty of 11 years imprisonment. It was to be taken into account upon sentence for Count 2.

Count 3: Supply not less than the commercial quantity of methylamphetamine, being 453g on or about 19 September 2012 contrary to s 25(2) of the Act.

3. Mr Williams pleaded guilty to counts 1 and 2 and to the offence on the Form 1. He was found guilty and convicted by his Honour on count 3 following a judge alone trial on 20 May 2014. Mr Williams was sentenced by his Honour on 22 May 2014 for these offences to an aggregate sentence of 5 years imprisonment to date from 20 March 2014 and to expire on 19 March 2018 with an additional term of 3 years and 6 months to expire on 19 September 2021.

4. Mr Williams appeals to this Court against the severity of the sentence on a number of grounds as follows:

Ground 1: His Honour erred in finding that the offence of [offer to] supply not less than the commercial quantity was an offence that fell within the mid-range of objective seriousness.

Ground 2: His Honour erred in failing to assess or properly assess the objective gravity of the offence of supply not less than the commercial quantity of a prohibited drug.

Ground 3: His Honour erred in placing significant weight upon offences alleged to have been committed by the offender whilst in custody.

Ground 4: His Honour erred in failing properly to apply the principle of totality by commencing the aggregate sentence at the expiry of the fixed terms being served at the time.

Ground 5: His Honour erred in finding that as a result of the psychological report submitted by the appellant on sentence that [sic] there was a need to attribute a significant weight to the protection of the community to meet the risk that the offender poses.

Ground 6: The sentences [sic] imposed are manifestly excessive.

Ground 7: His Honour erred in imposing a sentence that infringed the principle of parity.

Background

5. Mr Williams’ pleas of guilty were the subject of agreed facts. They were relevantly as follows.

6. A registered police source met Mr Williams approximately ten years ago when he was involved in the trotting industry. Shortly afterwards the source went back to his employment as an interstate truck driver. In late 2011 the police source met up again with Mr Williams through a mutual connection with Little Athletics. The police source was using speed to help him stay awake. During that meeting they discussed the use of speed (methylamphetamine).

7. On 24 April 2012, the police source picked up a load of 34 pallets of mixed alcohol belonging to Woolworths Pty Ltd from a depot in Laverton, Victoria. He later reported the truck as stolen. In May 2012, police became aware that the police source had been involved in the theft of the truck and he was interviewed. He was subsequently given an inducement and provided police with a version of events that disclosed his drug relationship with Mr Williams.

8. On 5 July 2012, police commenced intercepting Mr Williams’ telephone.

9. On 17 July 2012, a controlled operation was approved. This involved the police source approaching Mr Williams to purchase methylamphetamine. During the course of the operation Mr Williams regularly changed his mobile phone number.

First Supply – 26 July 2012

10. On about 23 July 2012, the police source contacted Mr Williams and they arranged to meet. On 26 July 2012, they met and the police source asked to purchase two ounces of methylamphetamine. Police then intercepted calls from Mr Williams arranging the source of the drugs to be supplied. The police source was provided with $2,500 and he went to the arranged meeting point at a lookout on Remembrance Drive at Razorback. Mr Williams got out of his car and handed him an envelope in return for the $2,500. He noticed that there was another male in the driver’s seat of the car. The envelope was later provided to police and found to contain 55.3 grams of methylamphetamine with a purity of 10.5 percent. The following day the police commenced intercepting the telephone number that Mr Williams was using to contact the police source.

Second Supply – 2 August 2012

11. On 1 August 2012, the police source arranged to purchase two ounces of methylamphetamine from Mr Williams. Police then intercepted calls from him arranging the source of the drugs to be supplied. The following day the police source contacted Mr Williams and arranged another meeting at the same location. He was once again provided with $2,500 by police and went to the arranged meeting place. The police source was fitted with a listening device. At about 1.40pm he received a call from Mr Williams who told him to move up the road. The police source moved his car to the substation on Mount Hercules Road. Mr Williams was standing outside a bronze coloured car. He gave the police source a newspaper with a brown paper bag inside it in return for the money. The conversation was recorded and during the conversation Mr Williams offered some advice about selling the drugs. The Crown case is that the car was being driven by Mr Williams’ co-accused.

12. The bag provided by Mr Williams was then given to police and its contents were analysed and found to be 55.29 grams of methylamphetamine with a purity of 11.5 percent.

Third Supply – 6 August 2012

13. On 6 August 2012 the police source contacted Mr Williams and arranged to purchase four ounces of methylamphetamine. Police then intercepted calls from Mr Williams arranging the source of the drugs to be supplied. A meeting was initially set for the same place in Razorback. The following day the police source was provided with $5,000 by the police. He was fitted with a listening device. Mr Williams contacted him and said he needed 40 minutes. At around 1pm the meeting place was changed to the Cobbitty shops. When the police source arrived there he saw Mr Williams’ co-accused who had just got out of Mr Williams’ car. The police source recognised the car from the last occasion when it had been parked in the car park with Mr Williams standing beside it. The conversation between the two was recorded. Mr Williams provided the police source with 110.1 grams of methylamphetamine, which was in the glove box of the car, in return for the $5,000. The police source provided the drugs to police which were analysed and found to have a purity of 8.5 percent.

Fourth Supply – 24 August 2012

14. On 20 August 2012, the police source contacted Mr Williams and requested a further four ounces of methylamphetamine. Police then intercepted calls from Mr Williams arranging the source of the drugs to be supplied. The initial meeting arranged for 21 August 2012 was postponed to 24 August 2012. The supply was confirmed the following day. On 24 August 2012 police provided the police source with $5,000 and fitted him with a listening device. On this occasion the meeting took place in the Razorback area. The police source travelled to the phone tower on Old Hercules Road. Mr Williams contacted him and told him to follow him in a silver Toyota Hilux. The vehicle stopped on the side of the road and the police source pulled in behind him. Mr Williams provided him with 104.4 grams of methylamphetamine which was later analysed by the police and found to be of 8.5 percent purity. The conversation between the two was recorded. It is the Crown case that the co-accused drove Mr Williams to the meeting.

Fifth Supply – 6 September 2012

15. On 3 September 2012 the police source contacted Mr Williams and arranged the purchase of four ounces of methylamphetamine for 6 September 2012. Police then intercepted calls from Mr Williams arranging the source of the drugs to be supplied. On that day he was provided with $5,000 by police and fitted with a listening device. The police source travelled to the phone tower in Razorback and waited. On this occasion he saw Mr Williams’ vehicle drive past the meeting point and then return. Mr Williams got out of the vehicle from the passenger’s side and supplied the police source with 108.2 grams of methylamphetamine which was later analysed and found to have a purity of 10 percent. The police source gave Mr Williams the $5,000. The conversation was recorded on a listening device.

16. Police intercepted Mr Williams’ telephone calls for at least ten weeks from 5 July 2012 until his arrest on 20 September 2012. During that time there was no evidence of any drug supply other than that which was the subject of the controlled operation.

17. On 11 September 2013, at Campbelltown Local Court Mr Williams pleaded guilty to these offences.

Destroy property in company using fire

18. Throughout June and July 2012, Mr Williams’ de facto partner Natasha Skopin was not residing at their family home at Razorback. She was living with her cousin Rebecca Lambey and her partner Tyson Akosfalui in Bold Street, Cabramatta.

19. On 10 July 2012, Mr Williams was involved in a domestic related incident with Ms Skopin. That incident commenced at Donalds Range Road, Razorback. As a result of the incident Mr Williams contacted several of Ms Skopin’s relatives and friends and warned each of them not to assist her in any way by conveying her to work or their children to school. Mr Williams made direct threats to these people, one of whom was Tyson Akosfalui, indicating that if they went against his wishes he would burn that person’s car.

20. On 11 July 2012, Mr Williams discovered that Ms Skopin had used a motor vehicle that belonged to Mr Akosfalui to drive her children to school and herself to work. Mr Williams contacted Mr Akosfalui and reminded him he had been told not to lend the vehicle to Ms Skopin and that he should expect it to be damaged.

21. On the evening of 11 July 2012 Ms Skopin, Mr Akosfalui and Rebecca Lambey were all at home asleep. Ms Skopin was awoken by a rock hitting her window. There was a loud banging on the front door. The three went outside and found that Mr Akosfalui’s car was on fire. It was parked outside the front of the premises. A neighbour assisted to contain the fire. The fire brigade arrived and extinguished it. They established an accelerant had been used to start the fire. A clear plastic bottle with the remnants of petrol was located on the back seat of the vehicle. A detached spray nozzle was also located. The rear passenger window had been broken.

22. The vehicle was damaged beyond repair. The vehicle was insured. Mr Akosfalui had to pay his excess.

Offer to supply

23. The facts found by his Honour with respect to the offence of which Mr Williams was found guilty by his Honour in the judge alone trial were summarised in his remarks on sentence in these terms:

“On 14 September 2012 at 9.20am the registered source telephoned the offender. The offender referred to the source earning money as a driver and the source said, ‘Oh, well I’ll earn a fucking quid for you if you can fucking do it for me’. The offender said ‘What?’ The source said, ‘I need a pound by next Thursday, man’. The offender said, ‘Uh, I’ll ring you back. I’ll ring you back’. The source said, ‘All right then, mate’.

On 17 September 2012 at 3.36pm, three days later the offender called the source, who misrepresented that he was on his way to Brisbane. The initial exchange in this call concerned the source’s attempting to earn money. The source then went on to describe how he was entering a hospital on the following Monday for surgery to his shoulders. There was a discussion about that and how he would be out of action for about a month in the course of which the source said, ‘Yeah, that’s why I sort of planned on getting that big one up to old mate, because he knows I’m going to be out of action for a month’.

The offender asked questions about ‘old mate’ and how the source knew him. The source represented, ‘and yeah, yeah, no, he’s fucking, no, he’s good’. I found the source v.to be representing the person’s bona fides in the context of these transactions.

There was reference to a lot of money there all the time and ‘old mate’, a truckie who did runs up north to North Queensland. The offender said, ‘yeah. All right, well then when are you back down? I’ll speak to you, when are you back down?’ The source said he would be down tomorrow night. The offender said, ‘Oh right, give us a buzz anyway. I’ll give you a buzz and I’ll catch up to you and have a chat’.

On 19 September 2012 at 9.25am the offender sent a text message to the source ‘at work, finish 3.30’. At 9.28am the source responded, ‘okay bud, got twenty grand in cash, talk later today’. At 2.07pm the same day the offender communicated with a man identified as Craig Mears, represented on the transcript as Wally. After some banter the offender said, ‘All right. Listen, listen, how do, listen, do you trust this cunt or not?’ Mears said, ‘what, what one?’ The offender said, ‘the other bloke’. Mears said, ‘Paxter’. The offender said, ‘what?’ Mears said, ‘Pakky?’ The offender said, ‘talking about the other’. Mears then said, ‘Oh, nah, nah, yeah, nah nah, oh yeah I don’t know ..(unintelligible).. All the time, I don’t know, man, you, you used to be good like that ..(pause).. Well he hasn’t done nothing, he hasn’t done nothing. What, he’s upping it again?’

The offender said, ‘fucking oath’. Mears said, ‘it’s, if it’s cash, fuck. We’ll just drive past’. The offender laughed and Mears said, ‘we’ll just drive past and see if he’s got anyone there.’ The offender said, ‘all right, well I’ll see you anyway, ten, keep your phone on fuck you, see you’, and Mears said, ‘see you’.

At 3.45pm on 19 September 2012 the offender texted to the source ‘what time u leaving?’ At 4.12pm the offender called the source. They discussed where the source was and that he would not be in until late that night. Then the source said, ‘in the morning’. The offender said, ‘all right, let me, let me speak to you tonight anyway all right’. The source said, ‘So, yeah, so roughly’. The offender said, ‘yeah. I’ll come I’ll speak to you tonight anyway, just a bit after all right.’ After further exchanges they terminated the call.

Thereafter there was a text message from the source to the offender in the following terms, ‘hey mate I’m on a tight ship in the morning, can I meet U on the hill around 8.30/9 mate, I have to be back in Brisbane tomorrow night’. Then at 6.24pm the offender responded with the letter ‘k’.

The Crown case was that the agreement was entered at that point in the exchanges when the accused agreed and presented to the source that he agreed to supply the one pound or 453 grams of methylamphetamine. At 6.40pm the offender texted the source, ‘8.30 bud, b there’. In response, at 6.43pm, the source wrote, ‘no worries champ c u there’. On 20 September 2012 at 8.21am there was a text from the source, ‘be there in 15 to 20 champ’. Between 8.30am and 8.42am the text was repeated. Then at 8.45am the source texted, ‘just coming up the hill, mate’ in response to which the offender texted, ‘how far’. At 8.55am the source texted, ‘I’m here, bud’. The offender then texted, ‘I’m stuck, can u meet me where you use 2 park trailers.’ It was common ground that this was a reference to Smeaton Grange where the source parked his trailers in the course of his work as a truck driver. There followed texts as to how long before they would meet.

The police Air Wing was deployed to take part in the surveillance leading to the arrest of the offender.”

The indicative sentences

24. In a detailed and carefully worded judgment, his Honour set out the indicative sentences referable to the individual substantive offences. Even though Mr Williams does not, and cannot, appeal against these indications, they inform to some extent the sentence that is the subject of this appeal. Those sentences were as follows:

Count	Sentence	Dates
1	Indicative	Larceny (Plea of Guilty) 3 years	Commenced 20 March 2013 to 9 March 2016
2	Indicative	Supply (Plea of Guilty) 6 years; NPP 4 years	Commenced 20 March 2014
3	Indicative	Supply (Found Guilty) 7 years; NPP 3 y 6 m	Commenced 20 September 2014
4	Aggregate	8 years 6 months; 5 years NPP	Commenced 20 March 2013

Grounds 1 and 2

25. Even though these grounds deal with different offences, they are all referable to a single aggregate sentence. It is therefore convenient to consider them together.

26. In the case of the offer to supply charge, Mr Williams complains that his Honour failed to give sufficient weight to the fact that the police employed what he described as an agent provocateur. In this context there was no evidence that Mr Williams was supplying any other person with drugs during the period of the controlled operation. The drugs in question did not by definition find their way into the community as they were never supplied in fact. Mr Williams contended that it was significant that there was no evidence that he attempted to source the drugs to complete the arrangement.

27. With respect to the supply count, Mr Williams submitted that his Honour failed to make an assessment of the objective seriousness of the offence. He maintained that his Honour also erred in giving what Mr Williams described as “substantial weight” to the Form 1 offence and by taking into account the objective seriousness of the domestic violence offences in assessing the gravity of that offence. He also relied upon the agent provocateur submission referred to earlier and the contention that his Honour failed to accord sufficient significance to the fact that the drugs did not find their way into the community.

25. A difficulty with the way in which Mr Williams seeks to assail his Honour’s conclusions is that these several arguments are directed at the indicative sentences rather than the aggregate sentence actually imposed. Even if indicative sentences might be considered individually to be excessive, none is separately amenable to challenge on appeal and this Court should not be concerned with separate analysis of the indications. The correct approach is to consider the sentence that has been imposed in order to determine whether the aggregate sentence appropriately reflects the total criminality of all of the offences being considered: see JM v Regina [2014] NSWCCA 297 at [39].

26. The burden of Mr Williams’ submissions is a complaint that in varying respects his Honour “failed to give sufficient weight” to a number of factors such as the use of an agent provocateur, that the supply was only to an undercover policeman, that the drugs did not end up in the community, that the offence was only an offer to supply and the fact that there was no evidence that the drugs were actually sourced. Properly understood, these are submissions that acknowledge that his Honour correctly considered these matters but maintain dissatisfaction with the outcome. That is insufficient to demonstrate error in a classically discretionary exercise. Mr Williams does not contend that his Honour fell into error in the House v R [1936] HCA 40; (1936) 54 CLR 499 sense, as the oft cited passage from that case at 504-5 eloquently reveals:

“But the judgment complained of, namely, sentence to a term of imprisonment, depends upon the exercise of a judicial discretion by the court imposing it. The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. Unlike courts of criminal appeal, this court has not been given a special or particular power to review sentences imposed upon convicted persons. Its authority to do so belongs to it only in virtue of its general appellate power. But even with respect to the particular jurisdiction conferred on courts of criminal appeal, limitations upon the manner in which it will be exercised have been formulated. Lord Alverstone L.C.J. said that it must appear that the judge imposing the sentence had proceeded upon wrong principles or given undue weight to some of the facts (R. v. Sidlow). Lord Reading L.C.J. said the court will not interfere because its members would have given a less sentence, but only if the sentence appealed from is manifestly wrong (R. v. Wolff). Lord Hewart L.C.J. has said that the court only interferes on matters of principle and on the ground of substantial miscarriage of justice (R. v. Dunbar). See, further, Skinner v. The King and Whittaker v. The King.”

30. It is implicit at least in Mr Williams’ complaints that his Honour in fact considered the matters in question and afforded them some weight in his deliberations. It is insufficient for Mr Williams merely to say in this Court that a more favourable result would have been preferred.

31. Mr Williams also complains that his Honour failed to consider or assess the objective seriousness of the offence. It is instructive in this context to recall what was said by Spigelman CJ in Mulato v R [2006] NSWCCA 282 at [37]:

“[37] Characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts. This Court is very slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion. The question must be whether or not the particular characterisation which her Honour gave to the circumstances of the offence was open to her Honour…”

32. Simpson J reinforced this sentiment in the same case at [46] as follows;

“[46] The assessment of the objective seriousness of an offence is quintessentially for the sentencing judge. It is, if not a finding of fact, then the exercise of an evaluative process akin to fact finding or the exercise of a discretion. As such it is reviewable in this Court only on the principles stated in House v The King …The importance of respecting the role of a first instance judge should never be underestimated. It is not the function of this Court to substitute its own view of objective seriousness for that of the first instance judge. That is not because objective seriousness is something determined by reference to the evaluation of the credibility of witnesses, in respect of which it is conventionally held that the first instance judge is in a superior position. It is because it is a fundamental aspect of the appellate system. Each judicial officer in the hierarchy has his or her own function, and those at appellate level need to take care not to trespass upon the role of those at first instance.”

33. More recently, in Delaney v R; R v Delaney [2013] NSWCCA 150, the Crown complained that the trial judge had failed to determine the objective criminality of the offence. Hoeben CJ at CL said this at [56]:

“[56] While it is true that his Honour did not in terms assess the objective gravity of the offending, he did specifically refer to the factors which bore upon its objective seriousness. His Honour took account of the amount involved, the role of the appellant, the nature of the conduct and the period over which it took place. While it may have been preferable for his Honour to have made a specific assessment of the objective seriousness of the offending, he did implicitly do so. I am satisfied that the factors to which his Honour referred were relevant and important and were given proper weight in the sentencing process. While his Honour may not have expressly determined the objective criminality of the offences, he clearly took that into account.”

34. In my opinion it has not been demonstrated that in some relevant sense his Honour’s sentencing discretion miscarried. Mr Williams has not demonstrated that his Honour’s approach to the assessment of the seriousness of the offence was flawed. It is apparent that his Honour considered the offences to be of similar seriousness, having regard to the indicative sentences. The sentence for Count 2 reflected a discount of 25 percent and also took into account the Form 1. The indicative sentence of 8 years before the discount is therefore similar to the indicative sentence of 7 years without a discount on Count 3.

35. Mr Williams also contends that his Honour’s assessment of the malicious damage offence was too harsh. However, that offence was a serious offence, as the agreed facts and his Honour’s analysis of them reveal. It carried a maximum sentence of 11 years if dealt with separately and involved the destruction of a motor vehicle. The conversations that record Mr Williams’ attitude to this offence do not demonstrate contrition or remorse. The destruction of the vehicle was also intentional, rather than merely reckless.

36. Nor was there any error in the way in which his Honour approached the domestic violence offences in assessing the objective seriousness of the Form 1 offence. The offences were intimately connected and explained Mr Williams’ motivation to destroy the motor vehicle. It is not correct in my view to contend that his Honour was impermissibly distracted by the Form 1 offence.

37. Finally, the fact that the drugs were never disseminated in the community is a matter of only minor significance. Mr Williams had the intention to supply and in doing so he knew and believed that the drugs would be likely ultimately to enter the community. The fortuitous circumstance that they did not was not something for which Mr Williams can claim credit and is therefore not something that assists him greatly on sentence. Mr Williams’ moral culpability is not greatly reduced as a result: see R v Achurch [2011] NSWCCA 186; (2011) 216 A Crim R 152 at [88]–[100].

Ground 3

38. This ground once again suffers from the difficulties that it merely asserts an unspecified attribution of significant weight to something that did not warrant it in the first place, in the context of an aggregate sentence in the second place. The portion of his Honour’s remarks on sentence that have attracted Mr Williams’ particular attention are as follows:

“In addition, according to the custodial record, in May 2013 there was an allegation of fighting; later in that same month, an allegation of intimidation and then in November 2013 another allegation of fighting. This impacts upon the assessment of his prospects for rehabilitation. I would note though that I know little more of those matters than appears in the custodial record and the weight that they deserve is limited.”

39. Counsel appearing for Mr Williams objected to the relevance or use of Corrective Services records said to evidence a custodial offence. Mr Williams was not convicted of any offence. He submitted in this Court that as there had been no testing of the allegations in a judicial context, not only were these matters deserving of limited weight, they were entitled to be given no weight at all.

40. However, the material emphasised by Mr Williams fails to take account of what his Honour said concerning another offence as follows:

“The Crown pointed to offences whilst in custody. These include the possession of the phone in custody for which he was sentenced to three months imprisonment.”

41. In my opinion it is reasonable for Mr Williams to raise a concern that he might have been sentenced upon the basis of matters that had not been proved and of which scant details were available for consideration by his Honour in any event. On the other hand, I would be very slow to conclude that a judge with the considerable experience of his Honour would have given any weight at all to matters that were unproven and not particularised. The mobile phone offence fell into a different category and yet must also be taken to be qualified by the words “those matters” which his Honour noted deserved to be given limited weight. Doing the best I can it seems to me that his Honour was at pains to record the Crown submission whilst simultaneously discounting the significance of the matters that had been raised. To the extent that his Honour did not go into detail about them, I consider that it is simply not possible to assess how, if at all, the custodial disciplinary matters affected his sentencing discretion. They appear to me in any event to be de minimus, so that if error were demonstrated, I would not consider that any lesser sentence was warranted.

Ground 4

42. His Honour’s remarks on sentence contain the following reference:

“The offender has been in custody without bail following his arrest on 20 September 2012, and in the care of the Department of Corrective Services since 21 September 2012; from 20 September 2012 he served concurrent imprisonment, extending to 6 months in respect of offences arising in the domestic violence incidents against his former partner to which I referred. The custody referable to the present matters commenced on 20 March 2013; his sentence today shall commence on that date.”

43. Mr Williams complains that his Honour failed to consider or to apply the principle of totality when imposing a sentence that was wholly accumulated on his existing sentence. The critical proposition underpinning this complaint would appear to be that the totality principle applies even where an offender is serving an existing sentence and is subsequently sentenced by a second court for additional offences.

44. In response to this submission the Crown drew attention to the well-known remarks of this Court in Cahyadi v Regina [2007] NSWCCA 1; (2007) 188 A Crim R 41 at [27] as follows:

“[27] In any event there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both.”

45. In my opinion, Mr Williams’ existing sentence for the domestic violence offences is concerned with an entirely separate and discrete act of criminality. The only vaguely related aspect of the sentence complained of is that it took account of an element of retribution that was associated with the malicious damage incident on the Form 1. I can see no arguable or necessary relationship between the events giving rise to these sentences that reliably informs a consideration of the totality principle. It was not incumbent upon his Honour in this case to take account of Mr Williams’ existing incarceration as a necessary influence affecting the aggregate sentence he calculated with respect to a series of unrelated and serious drug supply and larceny charges. This is not a case in which the exercise of prosecutorial discretion could be said to have unfairly increased or multiplied the offences, and thereby the potential penalty, where on an alternative view a single charge or fewer charges could instead have been preferred.

Ground 5

46. His Honour’s remarks on sentence that attract consideration of this ground of appeal are as follows:

“If the assessment is valid as some, if not the, explanation for the offender’s behaviour across the range of the offences with which I am concerned, there is a need to attribute significant weight to the protection of the community to meet the risk that the offender poses.”

47. Mr Williams contended that there was no proper basis for his Honour to place additional weight on protection of the community, particularly as his Honour did not find a causal link between the offending behaviour and the diagnosed condition. However, the comment upon which Mr Williams relies needs to be taken and understood in the context of his Honour’s remarks at the time. They are as follows:

“The psychologist saw the offender in gaol in June 2014. He was stable, though became depressed when speaking of his mother and sometimes disassociated, requiring questions to be repeated, but exhibited no indication of psychosis. He complained of insomnia, disrupted sleep, nightmares, flashbacks, forgetfulness, lack of motivation and concentration, loss of interest, loss of libido and disinterest [sic] in food. He spoke of changing moods, anger, disassociation, irritability and isolationism.

Tests were administered…

The interpretation offered on these results and clinical assessment leads to the opinion that the offender suffers post-traumatic stress disorder, the psychologist drawing upon his 25 years’ experience observing people so afflicted, notwithstanding the invalidity of the personality assessment identified. Further testing, according to the psychologist, would be required for a definitive answer. Continued treatment is recommended with suggestions as to the appropriate options.

It is not said how long the psychologist spent with the offender … Apart from his time with the offender, the psychologist had a statement of agreed facts, his criminal record and was aware of the charges as one count of supply prohibited drug, larceny and damage property by fire.

There is no discussion of the facts to which he was given access, or correlation between the misconduct there described and the assessment he made. If the assessment is valid as some, if not the, explanation for the offender’s behaviour across the range of the offences with which I am concerned, there is a need to attribute significant weight to the protection of the community to meet the risk that the offender poses. At the same time I have some difficulty attributing significant weight to what the psychologist suggests in light of the evidence of the communications from the offender in the course of the controlled operation, and the steps proposed and taken in counter surveillance to ensure the bona fides of the registered source in the last transaction, the offender’s central role in the theft of the liquor from Woolworths, and the exchanges with the victim of the offence of damage to the motor vehicle by fire.

My circumspection is compounded by the offender’s decision not to give evidence in the sentence proceedings so that I might assess the validity of the representations attributed to him by the psychologist.”

48. Having regard to these comments by his Honour, the Crown contended that he did not attribute significant weight to the need to protect the community as a result of the psychologist’s report but, on the contrary, was dismissive of the report as it failed to analyse the offending conduct.

49. In my opinion Mr Williams’ complaint is ill-founded. It misunderstands what his Honour was saying. The passage in question commences with the words “If the assessment is valid”. His Honour did not accept that it was valid. I consider that his Honour was making it plain that those who rely upon reports such as the psychologist’s report tendered on Mr Williams’ behalf, must be ready to accept the favourable opinions and conclusions along with the unfavourable ones. His Honour was to my mind hinting at the presence of unfavourable aspects of the report that, if accepted, would sound against Mr Williams. His Honour did not proceed to accept the unfavourable opinion or to act upon it.

Ground 6

50. Mr Williams contended that his Honour’s aggregate sentence was unreasonable or plainly unjust. If this submission is based upon the suggestion that his Honour misapplied some relevant sentencing principle, it is neither identified by Mr Williams nor evident to me. Mr Williams does repeat his contention that his Honour mischaracterised the level of objective seriousness of the offending, so as to warrant a lesser head sentence and non-parole period. I have already concluded that his Honour made no mistake in that respect.

51. Nor do I consider that the submission has any other general merit. The offences were individually serious, the maximum penalties were considerable and the agreed facts, including material contained on the intercepted telephone material, did not conspire to paint Mr Williams in a favourable light. One of the offences went to trial. The Form 1 offence was a serious example of its type, even having regard to the limited use to which it could be put. The larceny was a substantial offence and the quantity of drugs concerned in the supply and offer to supply offences was in combination a large amount. I can see no basis for the contention that the aggregate sentence was manifestly excessive.

Ground 7

52. Mr Williams contends that he has a justifiable sense of grievance when his sentence is compared to that imposed upon his co-offender Mark Andrew Dunston. Mr Dunston was sentenced by his Honour at Parramatta on 18 February 2016 to an aggregate sentence of 6 years with a non-parole period of 3 years for the following offences:

1. Knowingly take part in the supply of a prohibited drug, not less than the commercial quantity (267.59g of methylamphetamine) contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985.

2. Supply prohibited drug (17g methylamphetamine) contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985.

3. Supply a prohibited drug, not less than the commercial quantity (350.62g amphetamine) contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985.

4. Deal with property suspected proceeds of crime ($9,500) contrary to s 193C(1) of the Crimes Act 1900.

53. Mr Dunston was charged as a co-offender with Mr Williams in relation to the supplies on 2 August 2012, 24 August 2012 and 6 September 2012. Mr Dunston committed the offences numbered 2, 3 and 4 above whilst on bail for the offence numbered 1 above.

54. Mr Williams reasoned as follows. Mr Dunston had previously been sentenced to a term of imprisonment for the ongoing supply of a prohibited drug and unlawful possession of a pistol. Mr Williams had never served a full-time period of imprisonment prior to his arrest on the matters for which he was sentenced. That submission would appear however to overlook the sentence of 6 months imprisonment previously imposed upon Mr Williams arising out of the domestic violence incidents with his former partner, which expired on 19 March 2013.

55. Next, the offences committed by Mr Williams were committed in the course of one series of criminal conduct with the registered police source. Mr Dunston was arrested for his involvement in those offences and was then apprehended and charged with further offences.

56. Mr Dunston was also convicted of dealing with the proceeds of crime. Mr Williams submitted that this was consistent with the large quantity of drugs detected in his possession for the purpose of supply.

57. His Honour concluded that Mr Dunston acted in a warehousing capacity. Drugs were kept at his premises.

58. In the course of sentencing Mr Dunston his Honour specifically, and I consider very helpfully, referred to the fact that he had previously sentenced Mr Williams, and his Honour provided a summary of some of the comparable characteristics of the two sets of offending. It is instructive to record his Honour’s remarks in that respect:

“The offence of knowingly take part in the supply of a commercial quantity of methylamphetamine is as a result of events in April 2012. I have some knowledge of the circumstances leading to this arrest and prosecution because I was the Judge presiding in a trial by Judge in the matter of the R v Michael John Williams, reference 2012/00293870. I found Williams guilty and on 7 November 2014 I imposed sentence. He was charged with the supply of the prohibited drug in a quantity exceeding that with which the offender in this case is concerned although arising generally from the same facts and circumstances. Williams was found guilty of the supply of 453 grams of methylamphetamine upon an undertaking he had given to a registered source acting in conjunction with police officers in a controlled operation whereby he agreed to supply that drug.

He was found guilty. I indicated in the sentence for that matter of seven years including a non-parole period of three years and six months.

He pleaded guilty to a series of transactions which were rolled up into one charge contrary to s 25(2) of the Drug Misuse and Trafficking Act all of which preceded the charge that went to trial. The total weight of the drug actually supplied in those transactions was 432.99 grams. There was an additional offence to be taken into account, one of damaging property, as I recall setting fire to a motor vehicle. He was allowed a discount of 25% for the plea of guilty, and I indicated a sentence of six years imprisonment with a non-parole period of four years.

There was an additional offence upon which sentence was to be imposed, one of larceny, upon the theft of $241,056.74 worth of alcohol. With a discount of 15% for the utility of a plea of guilty to that charge the indicated sentence was one of three years.

Aggregating those sentences I imposed a sentence of eight years and six months with a non-parole period of five years.

For the purposes of the sentencing of this offender it is relevant to bear in mind the sentence imposed in respect of the first offence of which Williams was found guilty and the context in which it was committed, including the earlier transactions rolled up into the one charge to which he pleaded guilty.

Although considerations of parity must be brought to account it must be borne in mind that Williams was charged with supply, and the amount concerned was much greater than that with which this offender is charged.”

59. Without intending to do any disservice to the helpful submissions upon which Mr Williams relies in support of this ground of appeal, his Honour’s analysis is itself sufficient to demonstrate why this ground is without merit. Mr Williams was at pains to emphasise the comparative aspects of the drug charges. However, Mr Williams was also involved in a considerable theft, a much larger quantity of drugs and a significant matter to be taken into account on a Form 1. These are matters that underscore the dissimilarities between Mr Williams and Mr Dunston. This is not a case of the imposition of significantly different sentences for what is clearly or at least arguably similar offending. I am not satisfied that Mr Williams can be said to have any grounds for a justifiable sense of grievance at the sentence imposed upon him in the circumstances.

Conclusion and orders

60. It follows that Mr Williams has been unsuccessful in this appeal. I would propose the following orders:

1. Grant leave to appeal.

2. Dismiss the appeal.

61. DAVIES J: I agree with Harrison J.

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Decision last updated: 04 May 2016