A v R [2020] NSWCCA 145

Catchwords: CRIME – Appeals – Appeal against aggregate sentence – prohibited drug offences including not less than large commercial quantity of methylamphetamine – whether error in District Court record was an error in sentence – whether misstatement of facts had the capacity to affect the sentence – whether error in assessing the objective seriousness of the supply of the large commercial quantity of methylamphetamine – whether error in failing to give a sentencing discount for past assistance to police – whether error in determining special circumstances – whether marked disparity with sentences imposed on co-offenders – re-sentence – indicative sentences – aggregate sentence imposed Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: A v R [2020] NSWCCA 145 Hearing dates: 17 February 2020 14 April 2020 – Written Submissions Date of orders: 1 July 2020 Decision date: 01 July 2020 Before: Johnson J at [1]; Price J at [2]; Davies J at [147] Decision: (1) Leave to appeal granted. (2) Appeal against sentence allowed. (3) Direct the Registrar of the District Court at Parramatta to amend the Court’s record to correctly reflect the sentence imposed in the District Court of New South Wales on 6 March 2019. (4) The sentence imposed in the District Court of New South Wales on 6 March 2019 is quashed. (5) In lieu thereof, A is sentenced to 11 years 3 months imprisonment consisting of a non-parole period of 7 years 11 months, commencing on 22 June 2016 and expiring on 21 May 2024, with a balance of term of 3 years 4 months which will expire on 21 September 2027. The applicant will be eligible to be released on parole on 21 May 2024 Catchwords: CRIME – Appeals – Appeal against aggregate sentence – prohibited drug offences including not less than large commercial quantity of methylamphetamine – whether error in District Court record was an error in sentence – whether misstatement of facts had the capacity to affect the sentence – whether error in assessing the objective seriousness of the supply of the large commercial quantity of methylamphetamine – whether error in failing to give a sentencing discount for past assistance to police – whether error in determining special circumstances – whether marked disparity with sentences imposed on co-offenders – re-sentence – indicative sentences – aggregate sentence imposed Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) ss 23, 43, 53A Crimes Act 1900 (NSW) s 93T Criminal Appeal Act 1912 (NSW) ss 5, 6 Drug Misuse and Trafficking Act 1985 (NSW) s 25 Cases Cited: Baxter v The Queen [2007] NSWCCA 337; (2007) 173 A Crim R 284 BJS v R [2013] NSWCCA 123 Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 House v The King (1936) 55 CLR 499; [1936] HCA 40 JM v R [2014] NSWCCA 297 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 LB v R [2013] NSWCCA 70 Lees v R [2019] NSWCCA 65 Mulato v R [2006] NSWCCA 282 Newman (a pseudonym) v R [2019] NSWCCA 157 Paxton v R [2011] NSWCCA 242; (2011) A Crim R 104 PD v R [2012] NSWCCA 244 Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 R v Cramp [2004] NSWCCA 264 R v XX [2017] NSWCCA 90 R v Ilbay [2000] NSWCCA 251 R v Kollas and Mitchell [2002] NSWCCA 491 Roberts (a pseudonym) v R [2019] NSWCCA 102 The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 Thomas v R [2019] NSWCCA 88 Texts Cited: --- Category: Principal judgment Parties: A (Applicant) Regina (Respondent) Representation: Counsel: Mr S J Odgers SC (Applicant) Ms E Wilkins SC (Respondent) Solicitors: R Hill & Associates (Applicant) Solicitor for the Office of the Director of Public Prosecutions (NSW) (Respondent) File Number(s): 2016/190598 Publication restriction: Orders have been made under the Court Suppression and Non-publication Orders Act 2010 that there be no publication of the names of persons referred to in this judgment by the letters A, B, C, D, E, F, G and H. Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Citation: --- Date of Decision: 6 March 2019 Before: Delaney ADCJ File Number(s): 2016/190598 Judgment JOHNSON J : I agree with Price J. PRICE J : A ( “ the applicant ” ) seeks leave to appeal against the aggregate sentence imposed upon him in the District Court by Delaney ADCJ ( “ the judge ” ) on 6 March 2019. The applicant pleaded guilty in the Local Court to the following charges: Sequence 1 – Supply of not less than the large commercial quantity of a prohibited drug, namely 1.104kg of methylamphetamine, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) ( “ the DMT Act ” ). The maximum penalty for an offence of supplying not less than the large commercial quantity of a prohibited drug is life imprisonment and/or a fine of $550,000. A standard non-parole period of 15 years imprisonment has been prescribed. The judge was asked to take into account, when sentencing for sequence 1, the following charges that had been placed on a Form 1: Sequence 8 – Supply of a prohibited drug, namely 50 3,4 Methylenedioxymethamphetamine ( “ MDMA ” ) capsules, contrary to s 25(1) of the DMT Act; Sequence 9 – Supply of a prohibited drug, namely 4g of MDMA, contrary to s 25(1) of the DMT Act; and Sequence 11 – Supply of not less than the commercial quantity of a prohibited drug, namely 280g of MDMA, contrary to s 25(2) of the DMT Act. The maximum penalty for an offence contrary to s 25(1) of the DMT Act is 15 years imprisonment and/or a fine of $220,000. The maximum penalty for an offence contrary to s 25(2) of the DMT Act is 20 years imprisonment and/or a fine of $385,000. A standard non-parole period of 10 years imprisonment has been prescribed. Sequence 2 – Supply of not less than the commercial quantity of a prohibited drug, namely 278g of MDMA, contrary to s 25(2) of the DMT Act. Sequence 12 – Participate in a criminal group contributing in the supply of prohibited drugs, contrary to s 93T(1) of the Crimes Act 1900 (NSW). The maximum penalty for an offence contrary to s 93T(1) is 5 years imprisonment. Sequence 13 – Conspire to possess for the purpose of supply not less than the large commercial quantity of a prohibited drug, namely 1kg of MDMA contrary to ss 25(2) and 26 of the DMT Act. The maximum penalty for this offence was life imprisonment and/or a fine of$550,000. As the judge intended to impose an aggregate sentence, his Honour indicated the following sentences after a deduction of 4 0% for the combined discount of 25% for the pleas of guilty and 15% for future assistance to police: Sequence 1 – Taking into account the Form 1 charges, 9 years imprisonment with a non-parole period of 5 years and 9 months; Sequence 2 – 5 years imprisonment with a non-parole period of 2 years and 6 months; Sequence 12 – 12 months imprisonment; and Sequence 13 – 5 years imprisonment. Having found special circumstances, the judge imposed an aggregate sentence of 12 years imprisonment with a non-parole period of 8 years and 6 months commencing on 22 June 2016. The Notice of Appeal The notice of appeal identifies seven grounds: The sentence as recorded in the District Court records is erroneous. The sentencing judge misstated the facts in relation to the charge of supply a large commercial quantity of methylamphetamine. The sentencing judge erred in the assessment of the objective seriousness of the supply of a large commercial quantity of methylamphetamine. The sentencing judge erred in failing to provide any discount for past assistance. The sentencing judge erred in failing to provide reasons for the finding of special circumstances. The sentencing judge erred in determining special circumstances. The applicant has a legitimate grievance as a result of disparity of sentence B and C. ” The proceedings on sentence During the proceedings on sentence on 7 November 2018, the Crown tendered a lengthy statement of agreed facts, a Form 1 document, a pre- sentence report and the judge ’ s sentencing remarks in the matters of C, D and E. The Crown further handed up to the judge an envelope that contained confidential material which was said to be relevant to s 23 of the Crimes (Sentencing Procedure) Act 199 9 (NSW) ( “ the Sentencing Act ” ). The applicant did not give evidence during the sentencing proceedings. Included in the written material tendered in his case was a report from John Machlin, a clinical psychologist, a letter from the applicant to the judge, various certificates of attainment, letters from the Coptic Orthodox Chaplain for the Department of Corrective Services and some statistical material from the Judicial Commission Information Research System. The sentencing remarks of Colefax SC DCJ dated 22 September 2017 in the matter of B were also tendered. After receiving written submissions and hearing oral argument, the judge reserved his decision. The applicant’s subjective circumstances The applicant was born in XXXXX in XXXX and at the time of the offending was XX years old. His background is provided in the psychologist ’ s report. In summary, the applicant was the elder of two boys in the family. The father ran a kebab shop. The applicant told the psychologist that both his parents were opium users. He described a troubled relationship with both his parents and continual instability living with either parent during periods of parental separation and an atmosphere of conflict and neglect in the family. The applicant attended school in XXXXX to age 16. He assisted his father in the kebab shop and worked briefly as a taxi driver. He was married when he was 19 and the marriage lasted two years. He is now divorced and there were no children. He left XXXXX in 2013 reporting that he did not have a religion, and that put him in a vulnerable position as regards the laws of the State. On arriving in Australia, the applicant was initially detained in Darwin. He then spent a month in Brisbane and six months in Melbourne by which time he received a work visa in 2014. He came to Sydney for work and was intermittently employed as a painter. He was not employed at the time of his arrest. The applicant told Mr Machlin that he started using methamphetamine and opium in XXXXX at age 14 and developed a daily habit over subsequent years until he left Iran. He said he did not use drugs at all during his first two years or more in Australia. In the six months prior to his arrest, he said that he started using MDMA, cocaine, methamphetamine and “ G ” (GHB or GBL) and at the time of his arrest he was using these prohibited drugs daily. Mr Machlin ’ s DSM-5 diagnosis was at the time of the offences, the applicant would have met the criteria for Substance Use Disorder. The psychologist further noted that the applicant had described a long history of depressive features dating back to early trauma, family dysfunction and self-harm in his youth. Mr Machlin reported that the applicant suffered pronounced depressive symptoms in custody and was being treated with antidepressants. Mr Machlin opined that at a minimum, the applicant ’ s symptoms were consistent with an Adjustment Disorder with Depressed Mood. The psychologist reported that whilst in custody, the applicant was the victim of a stabbing that required hospital treatment. The perception was that the applicant ’ s potential willingness to assist police in their investigations had placed him in danger and he remained in a state of vigilance. He had spent most of his time in protection. Other factors that increased the applicant ’ s hardship in detention were his depressive illness, lack of family support and fears for his future. Mr Machlin reported that the applicant had expressed remorse for his offending and recognised he needed further therapeutic assistance. Mr Machlin agreed from a clinical perspective that drug rehabilitation was warranted, as well as ongoing mental health review of his depressive condition and his need for antidepressant medication. The applicant told Mr Vallance, the author of the pre-sentence report, that his offending behaviour commenced after he met his co-defendants through his recreational drug use. He stated that he soon became involved in their criminal organisation and began selling small amounts of MDMA in various bars and clubs. He stated that his role graduall y increased, until he became a “ middleman ” for various different groups, buying and selling large amounts of methamphetamine, MDMA and cocaine. Mr Vallance reported that the applicant appeared to justify his role as a “ middleman ” by stating that it was merely a way to meet people, socialise and continue his “ party ” lifestyle and drug use. The applicant stated that he made little to no money for his role and simply did it to help his associates. Mr Vallance concluded that the applicant app eared to minimise his offences. While the applicant stated he intended to cease substance use and focus on finding employment on release, Mr Vallance observed that remained untested within a community setting. Mr Vallance further observed that the applicant appeared to blame the Police, as he believed the use of a Police informant was unfair as it falsely “ framed ” him as a significant supplier. Some findings by the judge The judge delivered his sentencing remarks on 6 March 2019. After reciting the offences for which the applicant stood for sentence, the judge said that the applicant was entitled to a discount of 25% for the utilitarian value of the pleas of guilty for each of the offences that had been entered in the Local Court. The judge observed that the offences occur red between 21 June 2016 and 22 June 2016 and the applicant had been in custody since 22 June 2016. His Honour noted that the applicant, C, F, G, D and E were six persons charged with serious drug offences arising out of an investigation by police about the large scale supply of MDMA and other drugs in Sydney. The judge recounted that “… investigations identified [the applicant] at the centre of a criminal group supplying a range of prohibited drugs on a regular and systematic basis, but in particular, MDMA. ” As to sequence 13, the judge said this conspiracy extended over a significant period of time. In summarising the effects of the conspiracy, the judge said that between 18 and 24 May 2016, numerous telephone conversations were intercepted that involved the applicant, D, G and others. His Honour found that there were attempts by the applicant to obtain a large commercial quantity of MDMA for the purpose of supply. The applicant discussed with others how that would be done. On 18 May, the applicant told D that he needed that quantity. The applicant was with D when D spoke to F discussing the price. The judge recounted that in a subsequent call, F said that the price was likely to be over $40,000. In a further conversation with the applicant on 19 May, F said that the price of the Dutch premium import was expensive; “ Half is like 23, and the local product for a full would be 30. ” The judge said that the applicant requested F to get a price for both and enquired whether he would be able to get it tonight as he would take it if it was available. There were further discussions between the applicant and F and they arranged to meet so that the attempts could continue. His Honour went on to say that the attempts to obtain a kilogram of MDMA recommenced on 23 May and there were further phone calls between the applicant and F. On 24 May 2016, the applicant told F that this supplier had let him down by changing the price. F called the applicant saying “… he might be able to sort a half maybe a full tonight ” but the applicant could not be given a full one as F needed some as well. The judge assessed the objective gravity of offence sequence 13 as being “ below mid-range of objective criminality for that offence. ” His Honour said that “ [the applicant] had, much more to do with it than others involved, other than F ” and “ therefore his actions in relation to it are greater than somebody, such as D, who was tangentially involved. ” The judge then referred to offence sequence 1. His Honour said that the intercepted phone calls on 21 June saw discussions between the applicant and C about purchasing three kilograms of methylamphetamine for $80,000 per kilogram. After making some enquiries, C advised the applicant that he could arrange to do half a kilogram at a time and the full three kilograms supply over two days. The judge recounted that an intercepted communication on 22 June recorded the applicant being told that the methylamphetamine would be available before 6pm on 22 June. In the evening, the applicant and B attended Parramatta whereby a supply of slightly more than one kilogram of methylamphetamine occurred. The judge found that the prohibited drug was supplied by C. The judge referred to conversations continuin g until a meeting was arranged. G called the applicant who informed him that he was driving along the M4. Electronic surveillance corroborated that G, believed to be the customer, and D were at Rhodes. The judge said that ultimately the police performed a vehicle stop at which time the applicant and B were in the vehicle. During a vehicle search, a backpack was located from which the police obtained a “ sample ” . The applicant was placed under arrest. He stated that in the backpack was “ ice ” purchased for $80,000. In relation to the supply of MDMA in capsule form by the applicant, the judge found that G was the applicant ’ s partner “ but they were mostly getting it from … H. ” The judge recounted that the applicant and his associates were selling MDMA, “ but only one time ice, and that was simply because H wanted it. ” The judge said that “ [t]he plan was to cut it with other rubbish to increase its weight so that they could get a benefit from the amount that they paid. ” The judge said that the applicant and G had a combination to a safe inside the Rhodes unit. The judge then considered offence sequence 12. The judge said that during the operation, the applicant was identified as being ‘ at the heart ’ of the ongoing group supplying MDMA throughout Sydney. ” The applicant ’ s central role in the group, the judge said, was identified in the facts relating to sequences 2, 8, 9, 11 and 13. His Honour recounted that “ [m]embers of that group did not deal exclusively in MDMA, but [the applicant] played an active role in relation to the supply of a large commercial quantity of methylamphetamine on 22 June 2016. ” The judge found that the applicant “ helped to broker the supply and acted as a middleman between C and the purchaser, H. ” When referring to the Form 1 matters, his Honour said they were serious but particularly the supply of a commercial quantity of a prohibited drug. The judge assessed the objective gravity of offence sequence 1 as “ just below mid-range ” of objective criminality, and offence sequences 2 and 12 as “ below mid-range. ” The judge allowed a combined discount for each of the offences of 40% including the pleas of guilty and assistance to authorities. As to the applicant ’ s subjective case, the judge was satisfied that the applicant was remorseful and contrite; that his time in custody would be more onerous than otherwise might be the case; that he was unlikely to re-offend and that he would, at least, have some basis to commence consideration for rehabilitation upon his ultimate release. His Honour said that he had taken into account the letter that the applicant had written to the Court and referred to parts of the letter which included the applicant ’ s apology to the Court and to the community for what he had done. After indicating the sentences that would have been imposed and finding special circumstances, the judge imposed the aggregate sentence [1] . Ground 1: The sentence as recorded in the District Court is erroneous The applicant pointed out that the results sheet signed by the judge recorded that the aggregate term of imprisonment was 12 years and 6 months whereas the actual sentence pronounced by his Honour was 12 years. The Crown accepted that the judge had made an error when he signed the results sheet but submitted that this was not an error of law or fact that enlivens the jurisdiction of this Court to hear an application for leave to appeal against sentence instituted under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW). The Crown submitted that the error did not occur in the sentencing process but was simply an error in recording the result. Furthermore, the error was not an “ error of law ” of the technical variety to which s 43 of the Sentencing Act would apply. The Crown referred to the ‘ slip rule ’ which enabled the District Court on its own motion or application by a party to correct the error. The applicant had not referred to any steps taken to contact the District Court Registry to correct the record. The Crown argued that this Court has the power to correct its own orders under the slip rule, but this power did not extend to orders of another court where the error is properly characterised as a slip. However, given the other grounds of appeal, this Court has the power, regardless of the outcome of the appeal, to direct the Registrar of the District Court that the order be corrected. Consideration oral argument, Mr S J Odgers SC, the applicant ’ s senior counsel accepted that what had occurred was not an error in sentence but in the recording of the sentence and that this Court does not have the jurisdiction to correct the error. This Court will write to the Registrar of the District Court at Parramatta requesting that the order be corrected. I would dismiss this ground of appeal. Ground 2: The sentencing judge misstated the facts in relation to the charge of supply a large commercial quantity of methylamphetamine The applicant contended that the judge repeatedly misstated the facts in relation to the amount involved in the offence as “ 1.145kg ” when the actual amount was 1.104kg. The applicant submitted that the “ 1.145kg ” was based on the agreed facts which was orally and in writing corrected by the Crown. The applicant argued that the judge may have imposed a different sentence if he had been cognisant of the correct amount. This was a matter that was unknown. Furthermore, this was a factual error that may have impacted upon the judge ’ s assessment of objective gravity which was of relevance to Ground 3 of the appeal. In referri ng to Newman (a pseudonym) v R [2] , the applicant submitted that there was no useful basis for relying on what was said by Basten JA in that case. The Crown accepted that the judge made an error in referring to the slightly higher weight at ROS 2.5 and 5.7. However, the Crown argued that this was not an error that had the capacity to guide or affect the sentencing determination because of other correct references to the weight of the prohibited drug in the remarks on sentence. Furthermore, the difference of 40g between 1.104kg and 1.145kg was clearly marginal in terms of the degree to which the drug transaction exceeded the 500g threshold. Consideration In the statement of agreed facts, the facts relevant to sequence 1 being the supply of a large commercial quantity of methylamphetamine appeared under the heading: “Sequence 1 – Supply Large Commercial Quantity (1.145kg) of Methylamphetamine on 22 June, 2016”. Further reference was made to the amount of the prohibited drug in paragraph 31 which stated: “A search of the beige coloured backpack was conducted with approximately 1.145 kilograms of methylamphetamine within 6 separate resealable bags.” During the sentencing proceedings, the Crown told the judge that the correct weight was “ actually 1.104 ” as the amount referred to in the charge was “ the gross weight of the drug plus packaging. ” The Crown explained that “ 40-odd grams ” had been lost in the packaging. In the Crown ’ s written submissions that were before the judge, the Crown stated: “Ultimately only one kilogram of methylamphetamine (1,104 grams net) was supplied by C to A on 22 June, 2016” In his remarks on sentence, his Honour made the following references to the amount of the prohibited drug in sequence 1: After detailing the offences on the Form 1, his Honour said: “These offences are all to be taken into account on sequence 1, the offence for supply a large commercial quantity of prohibited drug, 1.145 kilograms.” Before summarising the facts relating to sequence 1, his Honour said: “The next part of the Crown bundle related to sequence 1, the supply of large commercial quantity; namely, 1.145 kilograms of methylamphetamine on 22 June 2016.” When assessing the objective seriousness of the offence his Honour said: “It seems to me that the supply (sic) a large commercial quantity of prohibited drug under 1.145 kilograms of methylamphetamine is just below mid-range of objective criminality.” (Emphasis added). Although it is true that the judge on two occasions misstated the amount of the prohibited drug as being 1.145kg, it is instructive that when his Honour came to assess the objective seriousness of the offence, he referred to the amount as being “under” 1.145kg. The available inference for the use of the preposition “ under ” is that the judge was aware of the correction made by the Crown that the reference to 1.145kg was the gross weight including packaging. It should not be overlooked that the judge had sentenced C on 13 August 2018 for the offence. When sentencing C, his Honour said: “In the backpack was 1.145 kilograms of methylamphetamine within six separate resealable bags.” And further: “The six separate methylamphetamine items seized by police were later analysed to contain 1,104.3 grams of methylamphetamine.” During the applicant ’ s proceedings on sentence, the C remarks on sentence were tendered. Submissions were made by the applicant ’ s counsel to the roles played by the applicant and C. When sentencing the applicant, his Honour recounted that there had been discussions with C about purchasing three kilograms of methylamphetamine for $80,000 per kilogram. His Honour went on to say: “In the evening, the [applicant] and B attended Parramatta whereby a supply of slightly more than 1 kilogram of methylamphetamine occurred. The methylamphetamine was supplied by C as previously discussed on the intercepted service of the [applicant]…” (Emphasis added). And further: ”Ultimately, the [applicant] was placed under arrest. He stated that in the backpack was ice purchased for $80,000.” In Newman , Basten JA explained that not all errors lead to a conclusion that the exercise of the senten cing discretion has miscarried [3] . His Honour referred to Roberts (a pseudonym) v R [4] , in which a concession had been made by the Crown that even if a sentencing error was “ immaterial ” , this Court was required to resentence the offender. His Honour considered at [10] that “ in that case, the proposition that resentencing was required, ‘ whether or not the error is material ’ is argua bly obiter and also ambiguous. ” [5] After referring to the High Court ’ s judgment in Kentwell v T he Queen , Basten JA said at [12]-[14]: “The first limb of the passage states that this Court does not assess, as a matter of fact, whether the error has influenced the outcome; what it does assess is the capacity of the error to have such an effect. An extraneous factor which does not “guide or affect the determination” involves no miscarriage. It is true that Kentwell referred to a statement by Latham J in Baxter that “confined error to those that are material in the sense that they have the capacity to infect the exercise of the sentencing discretion, regardless of whether it can be demonstrated that the error has in fact influenced the outcome”, as differing from the reasoning of the Chief Justice, but did not dismiss it as erroneous. It appears to conform to the High Court’s own statement of principle, although the term “material” is avoided. ” In stating that the error need not be “material”, Roberts should be understood as eschewing the analysis of effect, rather than capacity to affect. On that understanding, counsel for the Director misread Roberts as saying something different; but the error is understandable and language of materiality is readily open to such a misunderstanding. Following Kentwell , it is best avoided. In contrast to the circumstances in Roberts , where the error was clearly capable of affecting the outcome in a significant manner, the present case raised a question as to whether that was so...” [6] I am not persuaded that the judge sentenced the applicant on the misunderstanding that the amount of the methylamphetamine was 1.145kg. In my view, the incorrect references to 1.145kg in the remarks on sentence which preceded the reference to “ under ” 1.145kg did not have the capacity to affect the outcome of the sentence for the offence being sequence 1. I would dismiss this ground of appeal. Ground 3: The sentencing judge erred in the assessment of the objective seriousness of the supply of a large commercial quantity of methylamphetamine The applicant contended that the judge ’ s assessment of the objective seriousness of offence sequence 1 as being “ just below the mid-range of objective criminality ” was erroneous. The applicant pointed to C being sentenced on the objective seriousness of his offence as being “ below mid- range ” . The applicant submitted that bearing in mind the applicant was essentially a middleman between the manufacturers (represented by C) and a purchaser (represented by H), a finding that his offending was significantly below the middle of the range would have been appropriate. The Crown referred to the offence involving the planned purchase of slightly more than one kilogram of methylamphetamine for $80,000 and as the first instalment of a planned three kilograms worth of purchases. The Crown submitted that from the agreed facts that C was making enquiries for the applicant. The applicant was also personally involved in the actual supply at Parramatta and admitted knowledge to the police following his apprehension with B that the drug had been purchased for $80,000. The Crown submitted that the agreed facts for the offence should be read within the context of the agreed facts as a whole which stated that the applicant was “ at the centre ” and “ at the heart ” of the group to which others belonged. The Crown argued that even though the applicant was described as a “ middleman ” in terms of what steps he took specifically for the offence, it did not follow that the objective seriousness of his offending in sequence 1 was less than “ just below the mid-range ” and his Honour ’ s finding of objective seriousness was open to the judge. Consideration The assessment of the objective seriousness of an offence “ is quintessenti ally for the sentencing judge ” [7] . This Court has been “ very slow ” to determine such matters for itself or to set aside such an assessm ent made by a sentencing judge. [8] The judge characterised the offence as being “ below mid-range ” of objective seriousness and the question is whether that finding was open on the evidence. When sentencing for drug supply offences, this Court has emphasised the importance of focussing upon what an offender actually did rather than using a shorthand description such as “ middleman ” , “ street vendor ” or “ courier ” , of an offender ’ s participation in the criminal enterprise. As was said by Johnson J (Tobias AJA and Hall J agreeing) in Paxton v R at [135]: “An assessment of the Applicant's role is not to be determined by the selection of a label which might properly attach to him. As with a person to be sentenced for a Commonwealth importation offence, the criminality of a New South Wales drug supply offender ought be assessed by consideration of the involvement of the offender in the steps taken to effect the drug supply offences. Problems may emerge when a sentencing court attempts to categorise the role of the offender in the drug enterprise as, in many cases, the full nature and extent of the enterprise is unlikely to be known to the Court: The Queen v Olbrich [1999] HCA 54; 1 99 CLR 270 at 279 [19].” [9] The agreed facts disclosed that the applicant had been identified at the centre of a criminal group that was supplying a range of prohibited drugs on a regular and systematic basis. Intercepted communications revealed that on 21 June 2016, the applicant negotiated with C for the purchase of three kilograms of methylamphetamine for $80,000 per kilogram. C advised the applicant that he could arrange to do half a kilogram at a time and do the full three kilograms supply over two days. Further intercepted communications between G and the applicant revealed that the supply of two kilograms of the methylamphetamine was for a customer of G. On 22 June 2016, the applicant continued to discuss the purchase of three kilograms of methylamphetamine with C. During these discussions, C informed the applicant that the methylamphetamine would be available before 6pm on that day. Further negotiations continued throughout the day. Later in the evening, the applicant and B attended the Parramatta region whereby a supply of “ slightly more ” (the 1,104.3 grams) of methylamphetamine occurred. The applicant had further conversations with G about his estimated time of arrival and how much of the prohibited drug was to be supplied. It was during this journey that the vehicle was intercepted by police and the methylamphetamine was found in the backpack. The applicant and B were occupying the front driver and passenger seats of the vehicle. In sentencing C, the judge found that his objective criminality was “ below mid-range ” . His Honour found that C ’ s role, whilst not the highest up in the hierarchy, was significant in leading to the distribution of the drugs. Furthermore, a significant sum of money was involved. During oral submissions made to the judge in the applicant ’ s sentencing proceedings, Ms Kluss, the applicant ’ s counsel, in referring to parity issues, submitted that the applicant ’ s role was somewhat less than that of C. Ms Kluss went on to say: “…we would respectfully submit that his role is somewhat less than that, and that your Honour would perhaps consider that the matter was not above the mid-range of objective criminality, particularly given the amount of the drug that was actually supplied, but at a point at the mid-range, as opposed to above it.” When referring to the submissions by Ms Kluss as to the applicant ’ s role, in his remarks on sentence, the judge said: “She referred to the role played, she compared the role played by the [applicant] and C, but there were significant differences between C and the [applicant] in relation to the totality of offending.” It was open to the judge to find on the evidence that there were significant differences between C and the applicant. The applicant ’ s conduct extended beyond the negotiations with C and included the applicant ’ s actual participation in the collection of the methylamphetamine and intended supply to G. In my view, no error has been demonstrated in the judge ’ s assessment of the objective seriousness of the offence as being “ below mid-range ” . I would dismiss this ground of appeal. Ground 4: The sentencing judge erred in failing to provide any discount for past assistance. Consideration of this ground of appeal was delayed by the inability to locate the confidential material provided to the judge during the sentencing proceedings. On 17 February 2020, this Court deferred a decision on the tender of reconstructed copies of most of that material to enable searches to be made by the judge and the Registrar of the District Court at Parramatta for the missing material. As a consequence of this Court being informed that those searches had been unsuccessful, this Court permitted the tender of an affidavit of the officer-in- charge of the case, Detective Senior Constable Nathan Gabriel, dated 11 February 2020. Detective Senior Constable Gabriel ’ s affidavit annexed a copy of his letter to the judge and the applicant ’ s statement. However, an affidavit of the Police Commander which was also provided to the judge could not be found. Further written submissions on this ground of appeal were received on 14 April 2020. The applicant submitted that the judge had erred in failing to allow any discount for past assistance. The applicant referred to the judge noting in his remarks on sentence, the Crown ’ s concession that “ some aspects of a statement provided some assistance and corroborated known evidence towards the prosecution case ” . It was submitted it had been accepted that the applicant had been seriously assaulted by being stabbed in the chest whilst in custody in consequence of the assistance that he had provided. As a result he was placed in protection and it was put by Ms Kluss (without dispute by the Crown) that “ there are reduced amenities available to prisoners whilst they are on protection ” . The Crown pointed to the judge ’ s findings that the applicant ’ s past assistance was “vague” and that “some aspects” provided “some assistance” by way of corroboration of “known evidence”. The Crown contended that the finding and lack of discount for past assistance revealed no error. The Crown submitted that there was only one item of potentially previously unknown information given to police, but it was insufficient to enable any charges to be laid. This was, the Crown argued, the material described by the judge as “ vague ” . Furthermore, as submitted by the Crown during the sentencing proceedings, the information provided was not given in a timely fashion, but more than two years after the event. Consideration A decision under s 23(1) of the Sentencing Act that a lesser penalty should be imposed for assistance provided to police and if so, the assessment of the extent of that reduction are discretionary judgments that are only reviewable by this Court in accordance with the principles of House v The King (“House") [10] . Prior to dealing with the confidential material that had been handed up in court, the judge recounted the terms of ss 23(1)-(2) of the Sentencing Act. His Honour then referred to the evaluation of the assistance: “…[T]hat the evidence offered by the offender was vague, but some aspects of a statement provided some assistance, and corroborated known evidence towards the prosecution case. More particularly, the offender, it was said, placed himself at serious risk of retribution. The evidence, it was said, may assist the Crown case against at least one of the other offenders. I take that into account and I propose in relation to those matters to accord a total deduction, including the deduction for the guilty plea, a total deduction on sentence for each of the offences of 40% including the pleas of guilty and assistance to authorities.” All of what his Honour said was consistent with the evaluation by Detective Senior Constable Gabriel of the applicant ’ s past assistance to police. His Honour made no mention of the passage in the police officer ’ s letter to the judge that the applicant had committed himself to provide future assistance. The judge had earlier allowed a 25% discount for the pleas of guilty. Accordingly, the deduction for assistance was 15%. However, the judge was obliged to indicate whether the discount applied to past and or future assistance in order to comply with s 23(4) of the Sentencing Act [11] . This requirement was brought to his Honour ’ s attention by Ms Kluss in the following exchange: “KLUSS: But because part of the assistance involves the future assistance. HIS HONOUR: Yes that’s right. KLUSS: I think your Honour needs to, at some stage, differentiate the past and future. HIS HONOUR: Well, all of that’s assistance is to the future. HIS HONOUR: Well, that 15% is to the future. And thank you, Ms Kluss, for reminding me…” It is surprising that the judge did not attribute any discount to the applicant ’ s past assistance to which he had referred in his remarks on sentence whilst he had not referred to the promise of future assistance. It appears that the judge had overlooked the requirement to give consideration to both past and future assistance. Matters material to the decision whether to impose a lesser penalty included the significance and usefulness of the applicant ’ s assistance; the timeliness of the assistance and whether the applicant would suffer harsher custodial conditions as a consequence of the assistance or undertaking to assist [12] . Although the evidence offered by the applicant was described as “ vague ” , there were aspects of the evidence which provided some assistance and corroboration of the prosecution case. Furthermore, during the proceedings on sentence, the Crown accepted that it was likely because of the applicant ’ s assistance that he had been attacked whilst in custody, receiving a puncture wound to the lung and that he could go into protective custody. As the Crown pointed out to the judge, the assistance was given more than two years after the applicant ’ s arrest. However, this lack of timeliness did not mean that the applicant ’ s past assistance had no value as his statement provided support for evidence obtained by police and prosecutions against other co-offenders had not been concluded. I am satisfied that House error has been demonstrated. In my respectful opinion, a modest discount should have been given for past assistance. I would uphold this ground of appeal as specific error has been identified. As specific error has been identified, it is this Court ’ s duty to re-sentence, “ unless in the separate and independent exercise of its discretion, it concludes that no different sentence should b e imposed. ” [13] Accordingly, the remaining grounds of appeal can be dealt with relative brevity. The submissions made in this appeal remain material to the re-sentencing exercise. Ground 5: The sentencing judge erred in failing to provide reasons for the finding of special circumstances. Ground 6: The sentencing judge erred in determining special circumstances. The applicant referred to the reasons advanced by Ms Kluss during the sentencing proceedings for a finding of special circumstances which included the applicant ’ s youth; his alienation from his family; his first custodial sentence; the relatively offensive nature of his custody due to his need to be in protection, his drug use and the need for rehabilitation and extensive supervision on release. The applicant submitted that although the judge made a finding of special circumstances, his Honour erred in not providing reasons for that decision. The applicant contended that although that error did not invalidate the sentence, the failure to provide reasons supports a conclusion based on the resultant ratio of 71% that the judge did not properly assess the extent of those “ special circumstances. ” Consideration Contrary to the applicant ’ s complaint, the judge did provide reasons for finding special circumstances. His Honour said: “The aggregate sentence taking into account special circumstances, those special circumstances being the need for some assistance on ultimate release to be able to re-integrate into society.” Section 44(2) of the Sentencing Act requires that the balance of the term of the sentence must not exceed one-third of the non-parole period of the sentence unless the court decides that there are special circumstances. A decision to vary the statutory proportion of the sentence is a discretionary judgement, reviewable on House principles. As was observed in R v Cramp , “… the size of such an adjustment raises so many matters of a discretionary character that this Court shoul d be very slow to intervene ” . [14] There is nothing that indicates that the judge ’ s discretion miscarried in varying the statutory proportion of the sentence. No error by his Honour has been demonstrated. I would dismiss Grounds 5 and 6 of the appeal. Ground 7: The applicant has a legitimate grievance as a result of disparity of sentence with B and C The applicant referred to the sentence imposed by Judge Colefax SC on B on 22 September 2017 and to the findings made by that judge. Particular reference was made to the starting point of the sentence of 8 years imprisonment, which was then reduced by 20% for the plea of guilty and by a further 35% for assistance to authorities (3 years 7 months). The non-parole period was 2 years 2 months (a ratio of 60%). The applicant also referred to the sentence imposed by the judge on C and to the findings made by his Honour. The applicant pointed to the starting point of C ’ s sentence being 11 years which was reduced to 8 years 3 months with the plea discount. A finding of “ special circumstances ” resulted in a non-parole period of 5 years 2 months (a ratio of 62.6%). The applicant submitted that the starting point of the applicant ’ s sentence of 15 years involved relevant disparity with both B and C. The applicant also complained of the disparity of his discount for assistance of 15% with B ’ s discount of 35%. Another submission pointed to the disparity with respect to the ratios between the non-parole periods and terms of the sentence (60% and 62.5% compared with 71%). The Crown referred to the different offences and different factual findings made by Judge Colefax SC and the judge in the sentences imposed on B, C and the applicant. The Crown emphasised the more senior role played by the applicant, the wider criminality that had to be reflected in the applicant ’ s aggregate sentence and the breadth of the sentencing discretion in allowances made for special circumstances. Consideration Where there is a marked disparity between the sentences imposed on co- offenders giving rise to a justifiable sense of grievan ce, this Court will intervene [15] . The applicant must show that a reasonable person, looking at the circumstances of the case, would regard the appli cant's grievance as justified. [16] The plurality (French CJ, Crennan, and Kiefel JJ) in Green v The Queen; Quinn v The Queen ( “ Green ” ) said at [31]: “…The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria. The application of the parity principle does not involve a judgment about the feelings of the person complaining of disparity. The court will refuse to intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise.” [17] (Citations omitted). As the applicant ’ s complaint of disparity is confined to the sentence indicated by the judge for offence sequence 1, it is important to re-state well established principle. An indicative sentence is not in itself amenable to appeal, although it may provide a guide as to whether error is established in relation to the aggregate sentence. Furthermore, the assessment of an indicative sentence as being excessive does not mean that the aggregate sentence is excessive. [18] In this appeal, the applicant does not complain that his aggregate sentence is manifestly excessive. However, consideration of the sentences imposed on B and C will provide guidance to this Court in re-sentencing the applicant. The applicant complains that he has a legitimate sense of grievance in light of the sentences imposed upon B and C. Before considering the competing arguments, it is useful to detail how these co-offenders came to be sentenced. B B was sentenced by Colefax SC D CJ ( “ the sentencing judge ” ) on 22 September 2017 for one count of supplying a large commercial quantity of methylamphetamine, namely 1.104kg of methylamphetamine, contrary to s 25(2) of the DMT Act. This was the same offence as offence sequence 1 for the applicant. B had also asked the sentencing judge to take into account on a Form 1, his participation in a criminal group. This was the same offence as sequence 12 for which a sentence of 12 months imprisonment was indicated for the applicant: see [3] above. B did not face sentence for offence sequences 2 and 13. Furthermore, offence sequences 8, 9 and 11 played no part in B ’ s sentencing whereas these offences had been included on a Form 1 for the applicant: see [2]-[3] above. The sentencing judge was satisfied beyond reasonable doubt that B expected to receive a substantial financial benefit from the transaction; that he had some role in the negotiations; and that his role in carrying the purchase money to the transaction and carrying the drugs after the transaction was not insignificant. The sentencing judge considered that B was a trusted participant in both the principal offence and the Form 1 matter. The sentencing judge said he was unable to identify with any further precision, B ’ s role in either matter. His Honour found that there was “ a level of opaqueness about [B ’ s] place in the syndicate. ” His Honour went on to say that he was unable to be satisfied beyond reasonable doubt that B played an equal role with C or the applicant. The sentencing judge found that B was significantly involved in the criminal syndicate for personal financial reward and had been involved in drug trafficking to a significant degree. The sentencing judge assessed the objective seriousness of the principal offence “ as being approximately equidistant between the middle and the bottom of the range for an offence of its type. ” As to B ’ s subjective case, he was XX years old at the time of sentence. He was born in XXXXX and arrived in Australia in 2013. The sentencing judge was not persuaded that B ’ s expressions of remorse were genuine. His Honour regarded his prospects of rehabilitation as being guarded notwithstanding that he had no other convictions in Australia. The sentencing judge allowed a 20% discount for the utilitarian value of his plea of guilty. The sentencing judge described the assistance that B had provided under s 23 of the Sentencing Act to be “ very significant ” . His Honour accepted the submission made by B ’ s counsel which was not opposed by the Crown that there should be an additional discount of 35%, being 10% for past assistance and 25% for future assistance. His Honour said that but for the 55% combined discount, B would have been sentenced to 8 years imprisonment. After the discount and a finding of special circumstances, B was sentenced to imprisonment for 3 years and 7 months with a non-parole period of 2 years and 2 months. C As I have previously mentioned, the judge sentenced C on 13 August 2018 for one count of supplying 1.104kg of methylamphetamine contrary to s 25(2) of the DMT Act. This was the same offence as sequence 1 for the applicant. C had also asked the judge to take into account two matters on a Form 1, namely the supply of 10g of MDMA and the supply of 24.4g of cocaine contrary to s 25(1) of the DMT Act. These offences are different to the offences on the Form 1 which were taken into account by the judge when indicating a sentence for sequence 1 in the applicant ’ s aggregate sentence. C was also sentenced for participating in a criminal group contrary to s 93T(1) of the Crimes Act . This was the same offence as offence sequence 12 for the applicant. I have dealt with the assessments made by the judge in assessing the objective seriousness of the offending of the applicant and C for the supply of the large commercial quantity of methylamphetamine: see [66]-[82] above. The judge assessed the objective criminality of C ’ s participation in a criminal group to be at the “ lower end of the scale ” . In his sentencing remarks, the judge considered the approach taken by Judge Colefax in sentencing B. The judge found that C “ was significantly more involved and was culpable to a greater degree ” than B. As to C ’ s subjective case, it appears that he was XX years old at the time of sentence and arrived in Australia in 2011. The judge found that C had expressed some remorse and contrition. His Honour was satisfied that C may be able to effect rehabilitation but because he had limited support in the community, there may be problems. The judge found that C ’ s moral culpability was significant but was “ less than some others who may be involved in this offence, particularly [the applicant] ” . His Honour allowed a 25% discount for the utilitarian value of the pleas of guilty and found special circumstances. His Honour stated that the undiscounted starting point of the sentence for the supply of the large commercial quantity of methylamphetamine (taking into account the Form 1 offences) was 11 years imprisonment. C was sentenced to 8 years and 3 months for this offence. He was also sentenced to 12 months imprisonment for participation in the criminal group. This was the same as the indicative sentence for offence sequence 12 in the applicant ’ s aggregate sentence. Conclusion There are material differences in the respective cases of the applicant, C and B. The steps that the applicant took in committing the offence of supplying more than the commercial quantity of methylamphetamine were more than those of his co-offenders. The judge was correct in assessing the objective gravity of the applicant ’ s offending as being more serious than that of C and C ’ s offending as being more objectively serious than that of B ’ s. The offences on the Form 1, which the judge was asked to take into account when sentencing the applicant, were much more serious than the offences on the Form 1 for C. As the judge observed, all of the offences were serious but more particularly sequence 11 – the supply of not less than the commercial quantity of a prohibited drug, namely 280g of MDMA contrary to s 25(2) of the DMT Act. In my opinion, these material matters justified the difference between the undiscounted starting point of 15 years imprisonment for the indicative sentence for offence sequence 1 and the undiscounted starting point of 11 years for C ’ s sentence. A further complaint was the difference between B ’ s discount for assistance of 35% and the applicant ’ s discount of 15%. I have already indicated that a modest discount should be given to the applicant for past assistance. Having read the confidential material provided to Judge Colefax during B ’ s sentencing proceedings, it is sufficient to state that it justified Judge Colefax ’ s assessment for past and future assistance. There are material differences in the quality and timeliness of the assistance provided by B and the applicant which lead me to conclude that the applicant does not have a justifiable sense of grievance save for the absence of a discount for past assistance. It is unnecessary to further decide this ground of appeal. Re-sentence The material admitted on re-sentence was confined to an affidavit of a solicitor from the Office of the Director of Public Prosecutions which annexes the applicant ’ s updated custodial history and three custodial infringement reports, all of which are drug related. Whilst these infringements could be seen to detract from the applicant ’ s prospects of rehabilitation, there was no challenge by either the applicant or the Crown to the findings made by the judge as to the applicant ’ s subjective case. Accordingly, I propose to adopt them. The function of this Court is to exercise the sentencing discretion afresh. The applicant does not have to establish that the aggregate sentence imposed by the judge was manifestly excessive in order for this Court to exercise its discretion in his favour under s 6(3) of the Criminal Appeal Act 1912 (NSW). In the exercise of my sentencing discretion, I agree with the judge ’ s assessment of where the offences stood on the objective scale of seriousness. The only matter in which I find myself in disagreement with the judge is in his Honour ’ s failure to give any discount for past assistance to police. I will allow 5% for the past and 15% for future assistance – a total of 20%. The parties did not challenge the 25% discount for the pleas of guilty. Accordingly the combined discount will be 45%. I find special circumstances being the need for some assistance, particularly to overcome his prohibited drug use, upon release. In accordance with s 53A of the Sentencing Act, I will impose an aggregate sentence. The following Table discloses the sentences that would have been imposed but for the aggregate sentence after the 45% discount has been applied. Sequence Number Indicative sentence after 45% discount (round figures) Sequence 1 (including Form 1 matters) 8 years 3 months Non-parole period: 5 years 9 months Sequence 2 4 years 7 months Non-parole period: 3 years 2 months 15 days Sequence 12 11 months Sequence 13 4 years 7 months In assessing the aggregate sentence, I have fixed an appropriate sentence for each offence and considered questions of cumulation or concurrence and totality. The aggregate term of imprisonment is 11 years 3 months. The minimum term of imprisonment will be a period of 7 years 11 months. Accordingly, I propose the following orders: Leave to appeal granted. Appeal against sentence allowed. Direct the Registrar of the District Court at Parramatta to amend the Court ’ s record to correctly reflect the sentence imposed in the District Court of New South Wales on 6 March 2019. The sentence imposed in the District Court of New South Wales on 6 March 2019 is quashed. In lieu thereof, A is sentenced to 11 years 3 months imprisonment consisting of a non-parole period of 7 years 11 months, commencing on 22 June 2016 and expiring on 21 May 2024, with a balance of term of 3 years 4 months which will expire on 21 September 2027. The applicant will be eligible to be released on parole on 21 May 2024. DAVIES J : I agree with Price J. ********** Endnotes 1. See [3]-[4] above. 2. [2019] NSW CCA 157 (“Newman”). 3. 2019] NSW CCA 157. 4. [2019] NSW CCA 102 (“Roberts”). 5. Newman at [10]. 6. (2014) 252 CLR 601; [2014] HCA 37 [42]. 7. Mulato v R [2006] NSW CCA 282 at [46]; Lees v R [2019] NSW CCA 65 at [55]. 8. Mulato v R [2006] NSW CCA 282 at [37]; Lees v R [2019] NSW CCA 65 at [55]. 9. [2011] NSW CCA 242; (2011) A Crim R 104; see also Thomas v R [2019] NSWCCA 88 at [76]. 10. (1936) 55 CLR 499; [1936] HCA 40; see also R v XX [2017] NSW CCA 90 at [60]. 11. LB v R [2013] NSWCCA 70 at [44]-[45]. 12. Crimes (Sentencing Procedure) Act 1999 (NSW) s 23(2). 13. Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [35]. 14. [2004] NSW CCA 264 at [31] per Spigelman CJ. 15. Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26. 16. R v Ilbay [2000] NSWCCA 251 at [6]; R v Kollas and Mitchell [2002] NSWCCA 491 at [50] (2011) 244 CLR 462; [2011] HCA 49. 17. (2011) 244 CLR 462; [2011] HCA 49. 18. JM v R [2014] NSW CCA 297 at [40] citing PD v R [2012] NSWCCA 244 at [44]; BJS v R [2013] NSW CCA 123 at [252]-[254]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 August 2020