Published by Geoff Harrison | 5 July 2023
The offence of Supply prohibited drug is under s25 of the Drug Misuse and Trafficking Act 1985 ('the Act'). The definition of Supply is extremely broad and it does not require there to be a financial transaction eg. handing over drugs is supply. A prohibited drug is defined within Schedule 1 of the Act. The maximum penaltyies for Supplying a prohibited drug are:
15 years imprisonment and/or 2000 penalty units for an indictable quantity of drugs (s32 of the Act).
20 years imprisonment and/or 3,500 penalty units for a commercial quantity of drugs (s33(2) of the Act). There is a Standard Non-Parole period of 10 years that applies to this offence (see item 18 of the s54A Table).
Life imprisonment and/or 5,000 penalty units for a large commercial quantity of drugs (s33(3) of the Act). There is a Standard Non-Parole period of 15 years that applies to this offence (see item 19 of the s54A Table).
The relevant quantities of drugs is also prescribed in Schedule 1 of the Act. Supplying more than the indictable quantity but less than the commercial quantity of prohibited drugs and the offence of on-going supply are table 1 offences hence, can be heard in the Local Court (Part 6, Schedule 1 of the Criminal Procedure Act 1986). There is no distinction between the type of prohibted drug supplied and or the potential harm of the drug. In R v Dang [2005] NSWCCA 430 per Howie J at [29] stated that:
This courtno longer approaches the evaluation of the seriousness of a particular supply offence by distinguishing between different types of drugs according to the perceived dangerousness of the drug being supplied. Rather the Court has stressed that the appropriate consideration is the relevant statutory regime and the maximum penalty prescribed for the offence: cited with approval in R v Des Rosiers (2006) 159 A Crim R 549 at [23].
The fact that the drugs were supplied to an undercover officer and not disseminated into the community is not a mitigating factor; the offender's intention was simply to supply the drugs: Taysavang v R at [49]; Hristovski v R [2010] NSWCCA 129 at [41]; R v Achurch (2011) 216 A Crim R 152 at [97].
Deemed Supply - s29
Where a person is in possession of a prohibted drug that is not less than the traffickable quantity the person is deemed to posess the prohibed drug for the purpose of supply. Hence, the prosecution is only required to prove:
Possession of a prohibited drug; and
that it is not less than the traffickable quantity.
Once the deeming provision is satisfied the onuse then falls to the accused to satisfy the court on the balance of probabilities (s142 of the Evidence Act 1995) that the person posessed the prohibted drugs for the purpose other than to supply (s29(2) of the Act). The general defences to a charge of deemed supply are:
Personal use; and the
Carey defence.
The Carey defence is based upon R v Carey (1990) 20 NSWLR 292. In this decision Hunt J found that, "supply" does not include possession of a prohbited drug with the intention to return the drugs to the actual owner. In this case Hunt J cited an examplte of borrowing a neighbours' lawn mower and that in returning the mower a person would not be supplyuing the owner with a lawn mover. Also see Alliston v R [2011] NSWCCA 281 in that the Carey defence can also apply to part of the drug in the possession of the accused hence, it can possibly reduce the quantity of drug relied upon in relation to quanity of the deemed supply.
Another important deeming provision of the Act is s40 (se belwo). Uner this section, if a person represents or holds out a substance that is not a prohibted drug to be a prohibited drug the substance is deemed to be a prohibited drug. Hene, this section is relevant to drug rip-off cases: Morris v R [2022] NSW 207.
On-Going Supply - s25A of the Drug Misuse and Trafficking Act 1985
Where a person on 3 or more separate occasions during any period of 30 consecutive days, supplies a prohibited drug for financial or material reward is guilty of the offence of ongoing supply. The maximum penalty is 3,500 penalty units and/or 20 years imprisonment. It is an element of the offence that the supplying is for financial or material reward: see Huang v R [2017] NSWCCA 312. This provision was introduced in 1998 with the Drug Misues and Trafficking Act Amendment (Ongoing Dealing) Bill. In the sesecond reading speech the Hon. P. Whelan stated:
The new offence plugs a potential loophole under the existing law. It targets dealers who have organised their affairs in such a way as to limit the full effect of the Drug Misuse and Trafficking Act 1985. Presently, it could be argued that dealers who carry small quantities of prohibited drugs can avoid serious penalties under the Act as the penalty structure is largely based on quantity.
An offence under s25A will normally involve a sentence of full time custody unless there are exceptional circumstances: Fayd'herbe v R [2007] NSWCCA 20 and Robertson v R [2017] NSWCCA 20.
Drug exhibits
The diagram below from the Bench Book [5-6700] outlines the relevant procedures and timeings related to drug exhibits:
Sentencing
Whilst the "Clark Principle" which held that suppling of a prohibited drug to a substantial degree should attract a full time custodial sentence unless there are exceptional circumstances has been considered in cases such as Parente v R [2017] NSWCCA 284 and Robertson v R [2017] NSWCCA 20. These cases illustrate that the "Clark Principle" or mantra should not be elevated to be considered a statutory requirement that limits judicial discretion.However, as noted by Simpson JA in Robertson v R at [50]:
[I]t may be accepted that examination and analysis of sentencing practices establishes that, where the facts of an offence demonstrate drug dealing “to a substantial degree”, a sentence of imprisonment will ordinarily be imposed. Moreover, recognition of the serious social implications of drug dealing (reflected, if in nothing else, in the maximum prescribed sentences) suggests that, in the ordinary case, a sentence other than imprisonment will fail to meet sentencing objectives.
Arguabley the most imporatn consideration in assessing the objective seriousness of a drug supply offence is the offendner's role and level of participation. The offender's role and level of criminality is considered more important than the quanity of drug involved: Melikian v R [2008] NSWCCA 156 per Price J at [42].
From the Bench Book [19-870]:
The term “principal” is often used to describe an offender’s role. Simpson J, in Nguyen v R (2011) 208 A Crim R 432 (Davies J agreeing at [18]), in the context of an offence cultivating a large commercial quantity of cannabis, said of the definition of principal at [4]:
[T]he indicator of the role of an offender as “principal” involves at least some of the following characteristics:
contributing financially to the cost of setting up the operation;
standing to share in the profit (as distinct from receiving payment);
having some hand in the management of the operation (although it is well recognised that principals will, so far as possible, distance themselves from the day to day operation, they nevertheless maintain considerable control over the enterprise);
having some decision making role (which may not be different from the item above).
This does not purport to be anything like an exhaustive list. There may well be other features that indicate that an offender ought to be characterised as a principal.
See the case of Sahyoun v R (below) where the court imposed an Intensive Corrections Order for Commercial Supply of methamphetamine.
Drug “rip-offs”
Drug rip-offs are considered objectively serious as the victim of a drug rip-off is unlikely to report the matter to police. Hence, general deterence is significant and only in exceptional cases will a non-custodial sentence be appropriate: see R v Kijurina [2017] NSWCCA 117 at [99 -103].
A significant factor in most drug supply sentences is addiction
Arguably the most cited case is R v Henry on this issue. From the Bench Book [19-880]:
An offender who is not a drug user but supplies drugs out of greed was placed in the worst category of suppliers: Nguyen v R [2007] NSWCCA 15 at [46]; R v Liang (unrep, 2/6/95, NSWCCA); R v Ramos (2000) 112 A Crim R 339; R v Kalache (2000) 111 A Crim R 152. (The appropriate terminology following The Queen v Kilic (2016) 259 CLR 256 must be “worst case”: see [10-005] Cases that attract the maximum.)
However, addiction to drugs is generally not, of itself, a matter of mitigation at sentence: R v Henry (1999) 46 NSWLR 346 at [178], applied in Ma v R [2007] NSWCCA 240 at [79]; R v Vu [2006] NSWCCA 188 at [73]. The relevant principles identified in R v Henry at [273] are:
(a) the need to acquire funds to support a drug habit, even a severe habit, is not an excuse to commit an armed robbery or any similar offence, and of itself is not a matter of mitigation;
(b) however the fact that an offence is motivated by such a need may be taken into account as a factor relevant to the objective criminality of the offence in so far as it may throw light on matters such as:
(i) the impulsivity of the offence and the extent of any planning for it …;
(ii) the existence or non-existence of any alternative reason that may have operated in aggravation of the offence, for example, that it was motivated to fund some other serious criminal venture or to support a campaign of terrorism;
(iii) the state of mind or capacity of the offender to exercise judgment, for example, if he or she was in the grips of an extreme state of withdrawal of the kind that may have led to a frank disorder of thought processes or to the act being other than a willed act …
In R v Tulloh (unrep, 16/9/93, NSWCCA) Hunt CJ at CL held that a user/dealer who sells primarily to feed his or her own habit is at a lower level of criminality than a trafficker motivated by greed. The weight to be attributed to an offender’s drug addiction is diminished when considering operations above street level: R v Bernath [1997] 1 VR 271 per Callaway JA, with whom Winneke P and Brooking JA agreed; applied in R v Haidar [2004] NSWCCA 350.
However, Wood CJ at CL stated in R v Kairouz [2005] NSWCCA 247 at [98] that the decision in R v Tulloh does not provide support for the bald proposition that an offender’s motivation to participate in drug trafficking, arising from the need to feed a drug habit, rather than greed, placed him at the lower level of criminality. In R v Tulloh Hunt CJ at CL noted that every case depends on its circumstances and that, irrespective of whether the motivation for trafficking is need or greed, the overriding principle is that a custodial sentence is normal for trafficking to any substantial degree, regardless of whether or not a profit has been obtained.
In R v Dang [2005] NSWCCA 430 Howie J, with whom Studdert and Whealy JJ agreed, found that the offender had been motivated by his addiction to cocaine, even though he had become addicted as a matter of choice. His Honour noted at [32] that the offender’s role was that of a middleman who was to receive money and drugs, and:
Even though his judgment might have been clouded by his use of cocaine, that can have little mitigation of the objective seriousness of the offence because it was self-induced by his abuse of drugs.
Nevertheless, the offence fell below the mid range of objective seriousness, as the offender was not a principal and only became involved in a single instance of supply because of his addiction to cocaine.
Definitions
"supply" includes sell and distribute, and also includes agreeing to supply, or offering to supply, or keeping or having in possession for supply, or sending, forwarding, delivering or receiving for supply, or authorising, directing, causing, suffering, permitting or attempting any of those acts or things.
"sell" includes sell whether by wholesale or retail and barter and exchange, and also includes dealing in, agreeing to sell, or offering or exposing for sale, or keeping or having in possession for sale, or sending, forwarding, delivering or receiving for sale or on sale, or authorising, directing, causing, suffering, permitting or attempting any of those acts or things.
DRUG MISUSE AND TRAFFICKING ACT 1985 - SECT 4
4 ADMIXTURES
In this Act, a reference to a prohibited drug includes a reference to any preparation, admixture, extract or other substance containing any proportion of the prohibited drug.
25 SUPPLY OF PROHIBITED DRUGS
(1) A person who supplies, or who knowingly takes part in the supply of, a prohibited drug is guilty of an offence.
(1A) A person of or above the age of 18 years who supplies, or who knowingly takes part in the supply of, a prohibited drug (other than cannabis leaf) to a person under the age of 16 years is guilty of an offence.
(2) A person who supplies, or who knowingly takes part in the supply of, an amount of a prohibited drug which is not less than the commercial quantity applicable to the prohibited drug is guilty of an offence.
(2A) A person of or above the age of 18 years who supplies, or who knowingly takes part in the supply of, an amount of a prohibited drug (other than cannabis leaf) which is not less than the commercial quantity applicable to the prohibited drug to a person under the age of 16 years is guilty of an offence.
(2B) Where, on the trial of a person for an offence under subsection (1A) or (2A), the jury are satisfied that the person charged had, at the time the offence is alleged to have been committed, reasonable cause to believe, and did in fact believe, that the person to whom the prohibited drug was supplied was of or above the age of 16 years, they may acquit the person of the offence charged and find the person guilty of an offence under subsection (1) or (2), respectively, and the person is liable to punishment accordingly.
(2C) A person of or above the age of 18 years who procures a person under the age of 16 years to supply, or take part in the supply of, a prohibited drug (other than cannabis leaf) to another person is guilty of an offence.
(2D) A person of or above the age of 18 years who procures a person under the age of 16 years to supply, or take part in the supply of, an amount of a prohibited drug (other than cannabis leaf) which is not less than the commercial quantity applicable to the prohibited drug is guilty of an offence.
(2E) It is a defence to a prosecution for an offence under subsection (2C) or (2D) if the defendant establishes that the defendant had, at the time the offence is alleged to have been committed, reasonable cause to believe, and did in fact believe, that the person who was procured to supply, or take part in the supply of, the prohibited drug was of or above the age of 16 years.
(3) Where, on the trial of a person for an offence under subsection (2) or (2D), the jury are not satisfied that the amount of prohibited drug involved is equal to or more than the commercial quantity applicable to the prohibited drug, they may acquit the person of the offence charged and find the person guilty of an offence under subsection (1) or (2C), respectively, and the person shall be liable to punishment accordingly.
(4) Nothing in this section renders unlawful the supply of a prohibited drug by--
(a) a person licensed or authorised to do so under the Poisons and Therapeutic Goods Act 1966 , or
(b) a person acting in accordance with an authority granted by the Secretary of the Department of Health where the Secretary is satisfied that the supply of the prohibited drug is for the purpose of scientific research, instruction, analysis or study, or
(c) a person acting in accordance with a direction given by the Commissioner of Police under section 39Q, or renders unlawful the taking part by any other person in the supply of a prohibited drug by a person to whom paragraph (a), (b) or (c) applies.
(5) Nothing in this section renders unlawful the administration of a prohibited drug to a person being cared for by another person in the circumstances described in section 10 (2) (d).
DRUG MISUSE AND TRAFFICKING ACT 1985 - SECT 25A
25A OFFENCE OF SUPPLYING PROHIBITED DRUGS ON AN ONGOING BASIS
(1) Offence provision A person who, on 3 or more separate occasions during any period of 30 consecutive days, supplies a prohibited drug (other than cannabis) for financial or material reward is guilty of an offence.
Maximum penalty--3,500 penalty units or imprisonment for 20 years, or both.
(2) Same prohibited drug not necessary A person is liable to be convicted of an offence under this section whether or not the same prohibited drug is supplied on each of the occasions relied on as evidence of commission of the offence.
(3) Jury must be satisfied as to same 3 occasions of supply If, on the trial of a person for an offence under this section, more than 3 occasions of supplying a prohibited drug are relied on as evidence of commission of the offence, all the members of the jury must be satisfied as to the same 3 occasions in order to find the person guilty of the offence.
(4) Alternative verdict--relevant supply offences If, on the trial of a person for an offence under this section, the jury is not satisfied that the offence is proven but is satisfied that the person has, in respect of any of the occasions relied on as evidence of commission of the offence under this section, committed a relevant supply offence, the jury may acquit the person of the offence charged and find the person guilty of the relevant supply offence, and the person is liable to punishment accordingly.
(5) Double jeopardy provisions A person who has been convicted of an offence under this section is not liable to be convicted--
(a) of a relevant supply offence, or
(b) of a separate offence under this section,
on the same, or substantially the same, facts as those relied on as evidence of commission of the offence in respect of which the person has been convicted.
(6) A person who has been acquitted of an offence under this section is not liable to be convicted--
(a) except as provided by subsection (4)--of a relevant supply offence, or
(b) of a separate offence under this section,
on the same, or substantially the same, facts as those relied on as evidence of commission of the offence in respect of which the person has been acquitted.
(7) A person who has been--
(a) convicted of a relevant supply offence, or
(b) acquitted of a relevant supply offence,
is not liable to be convicted for an offence under this section on the same, or substantially the same, facts as those relied on as evidence of commission of the relevant supply offence.
(8) Liability for relevant supply offences not affected by offence under this section Subject to subsections (5) and (6), this section does not--
(a) remove the liability of any person to be convicted of a relevant supply offence, or
(b) affect the punishment that may be imposed for any such offence.
(9) Exemption--lawful supply Nothing in this section renders unlawful the supply of a prohibited drug by--
(a) a person licensed or authorised to do so under the Poisons and Therapeutic Goods Act 1966 , or
(b) a person acting in accordance with an authority granted by the Director-General of the Department of Health where the Director-General is satisfied that the supply of the prohibited drug is for the purpose of scientific research, instruction, analysis or study.
(10) Definitions In this section--
"cannabis" means cannabis leaf, cannabis oil, cannabis plant and cannabis resin.
"relevant supply offence" means any offence under this Act (other than under this section) relating to the supply of a prohibited drug.
29 TRAFFICKABLE QUANTITY--POSSESSION TAKEN TO BE FOR SUPPLY
A person who has in his or her possession an amount of a prohibited drug which is not less than the traffickable quantity of the prohibited drug shall, for the purposes of this Division, be deemed to have the prohibited drug in his or her possession for supply, unless--
(a) the person proves that he or she had the prohibited drug in his or her possession otherwise than for supply, or
(b) except where the prohibited drug is prepared opium, cannabis leaf, cannabis oil, cannabis resin, heroin or 6-monoacetylmorphine or any other acetylated derivatives of morphine, the person proves that he or she obtained possession of the prohibited drug on and in accordance with the prescription of a medical practitioner, nurse practitioner, midwife practitioner, dentist or veterinary practitioner.
32 PENALTY FOR OFFENCES DEALT WITH ON INDICTMENT
(1) Except as provided by sections 30 and 31, the penalty for--
(a) an offence under section 23 (1),
(b) an offence under section 24 (1),
(c) an offence under section 25 (1),
(c1) an offence under section 25 (1A),
(d) an offence under section 26 of conspiring to commit an offence referred to in paragraph (a), (b), (c) or (c1),
(e) an offence under section 27 of aiding, abetting, counselling, procuring, soliciting or inciting the commission of an offence referred to in paragraph (a), (b), (c) or (c1), or
(f) an offence under section 28 of conspiring to commit, or of aiding, abetting, counselling, procuring, soliciting or inciting the commission of, an offence under a law in force outside New South Wales which corresponds to section 23 (1), 24 (1) or 25 (1) or (1A),
is--
(g) except as provided by paragraph (h), a fine of 2,000 penalty units or imprisonment for a term of 15 years, or both, or
(h) where the offence relates to cannabis plant or cannabis leaf, a fine of 2,000 penalty units or imprisonment for a term of 10 years, or both.
Note : Offences referred to in this section may be dealt with summarily in certain cases. See Chapter 5 of and Schedule 1 to the Criminal Procedure Act 1986.
DRUG MISUSE AND TRAFFICKING ACT 1985 - SECT 40
40 EFFECT OF CERTAIN REPRESENTATIONS
(1) A substance (not being a prohibited drug) which, for the purpose of its being supplied, is represented (whether verbally, in writing or by conduct) as being a prohibited drug or a specified prohibited drug shall, for the purposes of this Act and the regulations, be deemed to be a prohibited drug or the specified prohibited drug, as the case requires.
(1A) A substance (not being a prohibited drug) which, for the purpose of its being supplied, is represented (whether verbally, in writing or by conduct) as being a Schedule 9 substance or a specified Schedule 9 substance is, for the purposes of this Act and the regulations, taken to be a Schedule 9 substance or the specified Schedule 9 substance, as the case requires.
(2) A growing plant (not being a prohibited plant) which, for the purpose of its being supplied, is represented (whether verbally, in writing or by conduct) as being a prohibited plant or a specified prohibited plant shall, for the purposes of this Act and the regulations, be deemed to be a prohibited plant or the specified prohibited plant, as the case requires.
(3) A substance (not being a psychoactive substance) which, for the purpose of its being supplied, is represented (whether verbally, in writing or by conduct) as being a psychoactive substance or a specified psychoactive substance is, for the purposes of this Act and the regulations, to be taken to be a psychoactive substance or the specified psychoactive substance, as the case requires.
__________________________________________________________________________________
Sahyoun v R [2020] NSWCCA 87 (1 May 2020)
Court of Criminal Appeal Supreme Court New South Wales
Case Name: Sahyoun v R
Medium Neutral Citation: [2020] NSWCCA 87Hearing Date(s): 8 November 2019Date of Orders:1 May 2020Decision Date: 1 May 2020
Before: Gleeson JA at [1] Walton J at [3] Fullerton J at [116]Decision: (1) Grant leave to appeal and allow the appeal against sentence. (2) Quash the sentence imposed in the District Court on 9 November 2018. (3) In lieu thereof, the applicant is sentenced to an aggregate term of imprisonment of 2 years and 6 months to date from 7 January 2020 with a non-parole period of 15 months to date from 7 January 2020.
(4) Direct that the sentence be served by way of an intensive corrections order.Catchwords: CRIMINAL LAW – appeal – appeal against sentence – utilitarian value of plea – reasons for delay – principles of totality – aggregate sentences – principles in Parente – community safety – objective factors – general deterrence – parity – manifest excess – resentencing – ordersLegislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Crimes (Sentencing Procedure) Amendment (Sentencing Options) Bill 2017 (NSW) Criminal Appeal Act 1912 (NSW) Drug Misuse and Trafficking Act 1985 (NSW) Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017(NSW)Cases Cited: Charhaji v R [2019] NSWCCA 28 Elchiekh v R [2016] NSWCCA 225 Fenech v R [2018] NSWCCA 160 Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 Hallak v R [2014] NSWCCA 48 Jimmy v R (2010) 269 ALR 115; [2010] NSWCCA 60 Johnson v The Queen (2004) 205 ALR 346; [2004] HCA 15 Karout v R [2019] NSWCCA 253 Lloyd v R [2017] NSWCCA 303 Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284 Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 PG v R (2017) 268 A Crim R 61; [2017] NSWCCA 179 R v AB [2011] NSWCCA 229 R v Araya [2005] NSWCCA 283 R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102 R v Cardoso (2003) 137 A Crim R 535; [2003] NSWCCA 15 R v Johnson [2003] NSWCCA 129 R v Newman [2004] NSWCCA 113 R v Pullen [2018] NSWCCA 264 R v Scott [2003] NSWCCA 286 R v Zamagias [2002] NSWCCA 17 Tunivono v R [2013] NSWCCA 176 Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64Category: Principal judgmentParties: George Sahyoun (Applicant) Regina (Crown)Representation: Counsel: G James QC (Applicant) F Veltro (Crown) Solicitors: Galloways Solicitors & Attorneys (Applicant) Solicitor for Public Prosecutions (NSW) (Crown)File Number(s): 2015/233108Decision under appeal: Court or Tribunal: District Court of New South WalesJurisdiction: CriminalDate of Decision: 9 November 2019Before: Judge Maiden SCFile Number(s): 2015/233108
JUDGMENT
1. GLEESON JA: I agree with Fullerton J.
2. I note for completeness that the sentence imposed reflects the fact the applicant has spent a period of time in custody from 4 September 2013 to 5 September 2013 and 9 November 2018 to 1 March 2019; a total period of 3 months and 24 days. The commencement date for sentence has been backdated to take into account this period in custody.
3. WALTON J: The applicant, George Sahyoun, seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912(NSW) to appeal against sentence imposed upon him on 9 November 2018 in the District Court at Darlinghurst by Judge Maiden SC.
4. The applicant was charged, on indictment, with the following offences:
(1) Count 1: On 19 June 2013, at Pendle Hill in the State of New South Wales, did supply a prohibited drug, namely, 3.4 grams of methylamphetamine, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW) (“DMTA”).
(2) Count 2: On 27 June 2013, at Pendle Hill in the State of New South Wales, did supply not less than the indictable quantity of a prohibited drug, namely, 27.5 grams of methylamphetamine, contrary to s 25(1) of the DMTA.
(3) Count 3: On 23 July 2013, at Pendle Hill in the State of New South Wales, did supply not less than the commercial quantity of a prohibited drug, namely, 332.1 grams of methylamphetamine, contrary to s 25(2) of the DMTA.
5. On 23 July 2018, the first day the trial, the applicant entered pleas of guilty in respect of counts one and two. The applicant then stood trial before Judge Maiden SC and a jury in the District Court of New South Wales at Darlinghurst between 25 July 2018 and 1 August 2018 in respect of the third count.
6. On 3 August 2018, the applicant was acquitted on count 3 on the indictment. However, he was found guilty by the jury of the statutory alternative under s 25(3) of the DMTA, of supplying not less than the indictable quantity of a prohibited drug, namely 55.4 grams of methylamphetamine.
7. On 9 November 2018, Maiden DCJ (hereinafter “the sentencing judge”) sentenced the applicant to imprisonment. The actual terms of that sentence are themselves controversial. His Honour imposed a head sentence of 3 years 7 months commencing from 9 November 2018 and expiring on 8 June 2022 with a non-parole period of 2 years 5 months expiring on 8 April 2021.
8. His Honour appeared to indicate the following sentences for counts 1 and 2:
(1) Count 1: 9 months’ imprisonment.
(2) Count 2: 12 months’ imprisonment.
9. It may be noted that, with respect to the sentence as to third count, the sentencing judge stated that the sentence was 43.2 months, after a discount of 10%, which sentence “includes the other matters”. That aspect of his reasons for sentence will be central to ground 3 of the appeal.
BACKGROUND FACTS
10. A statement of facts for all three counts was tendered on sentence and marked as part of Exhibit A. The factual summary derived from those facts by the Crown for the purposes of this appeal was uncontentious.
11. Between March and July 2013, police conducted an investigation into the supply of prohibited drugs by a co-offender, Mohammed Niazy and his associates which included the applicant.
12. On 19 June 2013, Mr Niazy met an undercover police officer (“UCO”) and agreed to supply him with methylamphetamine. Mr Niazy was subsequently recorded calling the applicant and arranging to meet him. Later that day, Mr Niazy met the applicant in the vicinity of his home at Girraween at which time the applicant supplied Mr Niazy with 3.4g of methylamphetamine. Mr Niazy subsequently supplied the UCO with the drugs and was paid $1400. At that time, Mr Niazy and the UCO were recorded discussing the price of an ounce and the possibility of weekly supplies and future meetings. The following day, Mr Niazy was recorded phoning the applicant and telling him that he had not heard back yet but "as soon as I do, brother, I’ll be the first one to let you know". The drugs supplied were subsequently analysed to have a purity of 83.5%. These facts constituted count 1.
13. On 27 June 2013, Mr Niazy met the UCO in Merrylands and the two of them then travelled in the UCO's vehicle to an address in Giraween. Mr Niazy was observed leaving the UCO's car and approaching the applicant who was sitting in another vehicle. The applicant supplied Mr Niazy with 27.5g of methylamphetamine. Mr Niazy then returned to the UCO's vehicle and supplied him with the drugs in return for $8,500. Mr Niazy was then observed returning to the applicant and handing him an item. The drugs supplied on this occasion were subsequently analysed to have a purity of 80.5%. These facts constituted count 2.
14. In early July 2013, Mr Niazy arranged to supply the UCO with methylamphetamine. On the day the supply was to take place, Mr Niazy unsuccessfully attempted to contact the applicant. On this occasion, the UCO told Mr Niazy he was tired of waiting and left. A short time later, the applicant sent Mr Niazy a text telling him that he will call him in 5 minutes. Mr Niazy replied that it was too late.
15. On 17 July 2013, Mr Niazy agreed to supply the UCO with 10 ounces of ice at $8000 per ounce the following week. They arranged to meet at Penrith Panthers Leagues Club.
16. On 22 July 2013, Mr Niazy was observed meeting the applicant at Parramatta. At 12.05pm on 23 July 2013, the applicant was recorded calling Mr Niazy. Mr Niazy asked, "Is it all good?" and the applicant replied, "Yeah, so far”. The applicant told Mr Niazy to get a car and come to see him before 2pm.
17. At 1.50pm, Mr Niazy was observed being driven to the applicant's residence in Giraween by another co-offender by the name of Abdul Khaliqi. Mr Niazy walked into the unit block where the applicant's apartment was located whilst Mr Khaliqi lifted the bonnet of the vehicle and secured it open. Mr Niazy and the applicant were then observed walking to the front of the vehicle.
18. Mr Niazy and Mr Khaliqi were followed by police to Penrith Panthers Leagues Club where they met the UCO. Mr Niazy lifted the bonnet of the car and Mr Khaliqi opened the air filter which revealed a number of packages. The UCO was directed to remove the larger of the packages. These packages were later analysed to be 139.4 grams and 137.3 grams of methylamphetamine.
19. Police then moved in and arrested Mr Niazy and Mr Khaliqi. A third bag containing 55.4 grams of methylamphetamine was later found in the air filter. The jury were not satisfied beyond a reasonable doubt that the applicant had also supplied the two larger bags and acquitted him of count 3, but found that he had supplied the smaller quantity of 55.4 grams and found him guilty of the statutory alternative, namely supply not less than the indictable quantity of a prohibited drug.
COURSE OF PROCEEDINGS
20.The applicant was originally discharged at committal proceedings in August 2014.
21. An ex-officio Indictment was filed on 3 September 2015 and the applicant was arraigned on that indictment on 10 September 2015.
22. The matter was listed for trial on three occasions but did not proceed.
23. On 28 March 2018, the applicant made an application for the counts on the indictment to be tried separately. This application was refused.
24. On 26 June 2018, the applicant indicated a willingness to plead guilty to counts 1 and 2 in full satisfaction of the indictment but not to count 3.
25. This offer was rejected by the Crown on 28 June 2018. On 18 July 2018, the applicant's legal representatives indicated that the applicant was prepared to plead to 2 ounces rather than 12 in respect to count 3.
26. The pleas to counts 1 and 2 were entered on the first day of trial, 23 July 2018. Count 3 proceeded to trial and the applicant was found guilty of the statutory alternative by the jury after trial.
27. Following delivery of the verdict, the Crown made a detention application. His Honour refused the application and continued the applicant's bail, commenting at the time that the matter "could be lineball for an ICO".
28. The matter next proceeded before his Honour for sentence on 18 October 2018. On that occasion the Crown tendered a sentence bundle (Exhibit A) which comprised various documents including the applicant's criminal and custodial history, a sentencing assessment report dated 12 October 2018, and the remarks on sentence and criminal histories for both Mr Niazy and Mr Khaliqi, who had by that time already pleaded guilty and been sentenced by Hanley DCJ.
29. The applicant did not give evidence or call any evidence on sentence but did tender a number of documents (Exhibit 1) which comprised detailed written submissions on sentence, a psychological report dated 14 October 2018 and various character references.
30. His Honour subsequently adjourned the proceedings to 9 November 2018 for sentence and continued the applicant's bail.
REASONS FOR SENTENCE
31. The sentencing judge stated that Mr Niazy had pleaded guilty to a count of supply a prohibited drug greater than a commercial quantity, namely 332.1 grams of methylamphetamine which had been secreted into 3 bags one of which contained 55.4 grams of the substance.
32. His Honour considered the applicant was not guilty of the large supply but only to the supply of 55.4 grams.
33. The sentencing judge recorded that the applicant had initially been discharged at committal with respect of count 3 but after further investigations with respect to that count, an ex officio indictment was filed on 3 September 2015 which resulted in the trial commencing 23 July 2018.
34. His Honour indicated that the applicant had pleaded guilty to counts 1 and 2 on 26 June 2018 but not to count 3. His Honour noted that a representation was then made by the applicant’s legal representative to enter a plea with respect to the lesser amount of 55.4 grams but these discussions failed.
35. His Honour then found:
In respect of the matter of negotiation, I am of the view that ultimately [sic] offer, if I can call it that made on behalf of the offender was appropriate and is confirmed by the jury verdict in its entirety. That being so then the question arises as to what discount should be given for the willingness to plead guilty to not only counts 1 and 2 but to count 3.
36. His Honour noted that though the pleas for counts 1 and 2 were entered on the first day of trial, the pleas to those counts had been foreshadowed some three or four weeks or so earlier. His Honour found “In my mind, certainly with respect to counts 1 and 2 there should be a discount of 10% because of the willingness and the acceptance of those offences at trial,although that indication had been formally given some weeks earlier”.
37.As earlier mentioned, a plea to the statutory alternative to count 3 had also been offered but rejected by the Crown. His Honour found that “in respect of count 3 I am of the view that a similar discount should be applied”.
38. The sentencing judge referred to the applicant being 31 years of age at the time of the offending and that he was 36 years of age at the time of sentencing.
39. The sentencing judge also referred to other aspects of the applicant’s background including that he had married his wife (with whom he had been in a relationship for 11 years) since his arrest and had one child by that relationship and the report of Dr Pusey that the applicant was unlikely to reoffend.
40. His Honour found that the applicant was unlikely to reoffend as a drug dealer. Even though he had contacts within the “drug society”, having regard to his marital status, his child and the success of his business, the applicant was rehabilitated.
41. His Honour noted that the applicant may have met the criteria for a substance dependence disorder but appeared to be in remission. He also noted that the applicant may be likely to engage in impulsive behaviour in the future and that he appeared to have a lack of insight into his psychological makeup.
42. The sentencing judge found the objective seriousness of the offence to be "in the mid-range of dealing, he being the wholesaler who obtained the drugs to give to Mr Niazy to deliver and provide. The drugs were of high purity, approximately 84% and thus were capable of being ’cut’ for distribution to the street".
43. His Honour found that issues of parity were raised as a result of the sentence imposed on the co-offender Mr Niazy. Further, his Honour found in that respect:
The matters of parity do arise with Mr Niazy, having been sentenced by my brother, Judge Hanley. Nr Niazy has a different background to this offender having come from Afghanistan to Pakistan and then migrating to this country at an early age. He also was diagnosed with post-traumatic stress disorder having members of his family being killed and injured by groups of the Taliban before coming to Australia. Thus, in respect of Mr Niazy it is not a matter where general deterrence is as high as it would be in this matter. On the other hand, Mr Niazy did plead guilty at an early stage and received a 25% discount.
44. His Honour took into account the delay in the length of time it had taken for the matter to be determined and found that the applicant had positively improved his position in that time.
45. His Honour dealt with the appropriateness of a custodial sentence as follows:
This matter does not require consideration of general deterrence, and that is that if persons want to deal with the drug culture, implementing and providing dangerous substances such as methylamphetamine, then a custodial sentence is appropriate.
46. His Honour found special circumstances on the basis that it was the applicant's first time in custody and what he has done himself towards his rehabilitation.
47. The sentencing judge then gave the following reasons as to the sentence imposed:
I propose to deal with the three matters without accumulation. In respect of the first matter, I would indicate a head sentence of nine months, and the second matter I would indicate 12 months imprisonment. In respect of the third matter, which includes the other matters, it will be a period of four years from which I deduct 10% for the pleas of guilty, which leaves a total time of 43.2 months. From that, I propose to apply special circumstances that I have found of 66.6%, which means that I should deduct from that 43.2 months, 14.4 months. In other words, he will serve a sentence of two years and five months from today, and the balance of term will expire four years, three months from today.
48. After the close of the reasons for sentence his Honour asked for assistance as to the “mathematics”. During the course of that discussion which appeared with the sentencing decision, the following exchange occurred with Mr B Galloway for the applicant and his Honour:
HIS HONOUR: Is there any submission or anything else that you can think of? GALLOWAY: I must have been somewhat mistaken, I got the impression at the end of the trial and last time we were your Honour was talking about getting an ICO. HIS HONOUR: Having gone through it all I don't think this is appropriate. GALLOWAY: I probably would have addressed you further if I'd known that, that's all. HIS HONOUR: That was thinking aloud at the time, but having sat down with the papers and gone through it and having considered it, including the parity issues, I think that I was unable to extend that leniency, I think I would have fallen into appealable error. I hadn't read Mr Niazy's. GALLOWAY: I'm so sure the parity issue is important given the - put it this way, loosely, the change in- HIS HONOUR: I think it's very important here because- GALLOWAY: -the change addressed by the Court of Criminal Appeal applies I think, having regard to that it becomes less important. HIS HONOUR: But it has to be considered where people are in the batting i order, and based upon the finding of Niazy, counts 1 and 2, and then partly 3-- GALLOWAY: It's just the way I see it, that's all. HIS HONOUR: --he got a gaol sentence. And as I understood your submissions, could I have got the matter under two years, well, I don't-- GALLOWAY: Three years, your Honour. HIS HONOUR: I beg your pardon? GALLOWAY: Three years, your Honour. HIS HONOUR: Under three, well, I couldn't do it now. But thank you for your help, and your assistance, Mr Crown.
GROUNDS
49. The applicant relied upon the following grounds in support of leave to appeal:
(1) Ground 1: The applicant's sentences were in error as being out of parity with that of the co-offender, such that were it in parity, an intensive corrections order might have been available.
(2) Ground 2: His Honour erred in fixing the percentage for the utilitarian discount at only 10%.
(3) Ground 3: His Honour erred having regard to the principles in Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 (“Pearce”) in the way in which he passed a total sentence for all offences when sentencing for Count 3 on the indictment.
(4) Ground 4: The sentences and the total sentence were manifestly excessive particularly having regard to parity with the co-accused and to the mode by which his Honour accumulated the sentence and the effect of Section 68 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Act”) (See R v Pullen[2018] NSWCCA 264 (“Pullen”)).
(5) Ground 5: His Honour erred in law in failing to apply the Sentencing Act as it had been amended as and from 24 September 2018 by the passing of the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Bill 2017 (NSW) which came into effect on 24 October 2017.
CONSIDERATION
50. As the parity issue raised by ground 1 accepts the sentence is otherwise appropriate (see Jimmy v R (2010) 269 ALR 115; [2010] NSWCCA 60 at [251]; Charhaji v R [2019] NSWCCA 28 at [159]), I shall first deal with ground 2.
Ground 2 - His Honour erred in fixing the percentage for the utilitarian discount at only 10%
51. The applicant submitted that given that the pleas had been offered at an earlier date to counts 1 and 2 on the indictment and to the “one bag of the drug” that he was ultimately convicted of, a discount of 10% was, for his pleas of guilty, manifestly inadequate and did not comply with the principles in R v Thomson; R v Houlton[2000] NSWCCA 309 (“Thomson”) nor those expressed in R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1 (“Borkowski”).
52. The defendant accepted the pleas were late but contended they were made prior to the trial. It was contended that would normally produce a discount of 10 to 15 per cent. Further, the applicant had negotiations regarding count 3 and made an offer, rejected by the Crown, which represented the upshot of the trial.
53. It was also submitted the discount of 10 per cent was that customarily offered on the first day of a trial, but there would have been no trial at all if the Crown had accepted the offer made by the applicant. Hence, there was a significantly higher utilitarian value “in the offer and the pleas”.
54. In the pre Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 (NSW) era (the period in which the sentencing for the applicant occurred), the utilitarian value of a plea to the criminal justice system was generally assessed in the range of 10-25 per cent discount. However, the range of discount referred to in Thomson is a guideline which creates no presumption nor entitlement to a particular discount to reflect the utilitarian value of an offender's plea of guilty: R v Scott [2003] NSWCCA 286 at [28] (per Howie J, with whom Tobias JA and Shaw J agreed); R v Newman [2004] NSWCCA 113 at [12] (per Wood CJ at CL, with whom Simpson and Bell JJ agreed); R v Araya (2005) 155 A Crim R 555; [2005] NSWCCA 283 at [44] (per Johnson J, with whom Simpson and Rothman JJ agreed); Tunivono v R [2013] NSWCCA 176 at [60] (per Price J, with whom Basten JA and Campbell J agreed); and Hallak v R [2014] NSWCCA 48 at [22] (per Davies J, with whom R A Hulme and Adamson JJ agreed).
55. A primary consideration regarding the utilitarian value of a plea was the time it was entered. What constitutes an early plea varies according to the circumstances of the case and was a matter to be determined by the sentencing judge: Thomson at [152].
56. Generally speaking, the reason for the delay is irrelevant. The utilitarian value for a delayed plea is less and consequently the discount is reduced even when there has been a plea bargain: Borkowski at [32] per Howie J (with whom McClellan CJ at CL and Simpson J agreed).
57. Reference may be made to the recent decision by Johnson J (with which Bell P and myself agreed) in Bae v R[2020] NSWCCA 35 at [55]- [59]:
[55] It will be apparent from the authorities referred to so far, including R v Borkowski, that identification of the utilitarian value of a plea of guilty involves an objective assessment to be undertaken for the purpose of s.16A(2)(g) Crimes Act 1914 (Cth). If an offender has demonstrated contrition involving facilitation of the course of justice, this factor may be taken into account in the offender’s favour on sentence in accordance with s.16A(2)(f) Crimes Act 1914 (Cth). This aspect falls on the subjective side of factors and involves an enquiry as to the attitude of the offender and an assessment of contrition. Reference to objective and subjective factors in this way was adopted in Diaz v R [2019] NSWCCA 216 at [77]- [83] as a useful way of distinguishing between these considerations. [56] As the cases have made clear, however, there is no bright line test for distinguishing between these objective and subjective considerations so that these factors may overlap. In Singh v R [2018] NSWCCA 60, Payne JA (with the concurrence of Campbell J and myself) said at [28]:
“Whilst it is correct that contrition and remorse are factors required to be taken into account separately under s 16A(2)(f) in addition to the plea of guilty under s 16A(2)(g), those factors often overlap. Nothing in Xiao provided to the contrary.”
[57] The utilitarian value of a plea of guilty is an objective factor to be considered and preferably quantified (Xiao v R at [280]; Huang v R (2018) 332 FLR 158; [2018] NSWCCA 70 at [9], [49], [55]), with the subjective side involving demonstration of contrition to be an unquantified factor assisting the offender on sentence as part of the process of instinctive synthesis, but with the sentencing court guarding against double counting of these aspects in a manner favourable to the offender. [58] Mr Anderson, counsel for the Appellant, submitted that an assessment of the utilitarian value of the Appellant’s pleas of guilty may take into account the reasons for delay in the entry of pleas, said to be referrable to the Appellant’s unclear understanding of the brief of evidence and the strength of the prosecution case flowing from his earlier legal representation before Mr Ricci came to represent him. I do not accept this submission. Those aspects may bear upon the subjective issue of facilitation of the course of justice in explaining why the Appellant did not plead guilty earlier. However, they do not affect the utilitarian value, which in this case is reduced irrespective of the reason for the delay: R v Borkowskiat [32](8) (at [52] above). [59] The discount for the utilitarian value of the Appellant’s pleas should have regard principally to the timing of the pleas of guilty which occurred after the first trial date had been vacated and shortly before the second trial date. The Court was informed that the trial had a six-week estimate as a joint trial with a co-accused, but a two-to-three week estimate if the Appellant was tried alone (T14, 6 February 2020). It may be taken that the Crown had been preparing for trial up to October 2011. Although there may have been limited further preparation for trial between October 2011 and the rescheduled trial date of 23 January 2012, it was not until shortly before the rescheduled trial date that the pleas of guilty were entered.
57. The applicant was arraigned upon the ex-officio indictment for count 3 on 10 September 2015. Noting that there was an application for a separate trial in the intervening period, the first intimation of a plea of guilty by the applicant was made with respect to counts 1 and 2 was only about 4 weeks prior to the trial (the offer was rejected by the Crown 2 days later). The pleas for counts 1 and 2 were entered on the first day of the trial.
58. As the utilitarian value of the plea is primarily to be determined by the timing of the plea, in my view, the lateness of the guilty plea resulted in a discount of 10% for that plea falling within the available exercise of discretion of the sentencing judge.
59. The defendant went to trial on count 3 and was convicted of an alternative verdict. Nonetheless, an offer to plea to “2 ounces rather than 12” with respect to count 3 was made only about 1 week prior to the trial. A discount is available notwithstanding the absence of a utilitarian value because the offer by the applicant, rejected by the Crown, was consistent with the jury verdict: Borkowski at [9].
60. However, those very circumstances reduced the discount available. A finding that a discount of 10% was available for court 3 was, in the result, also open to his Honour.
61. As framed, ground 2 must, therefore, fail.
Ground 3 - His Honour erred having regard to the principles in Pearce in the way in which he passed a total sentence for all offences when sentencing for Count 3 on the indictment
63. This ground fixes upon the manner in which his Honour passed sentence and, in particular, the final paragraph of the reasons for sentence (see at [47]) of this judgment) where the sentencing judge identified that he was dealing with the three matters without accumulation and that, after imposing a sentence of 9 months with respect to count 1 and 12 months for count 2, his Honour stated that he imposed a sentence of 4 years “which includes the other matters”. A discount was then applied for the plea of guilty and special circumstances were found.
64. The applicant relied upon Pearce at [45] where the High Court (per McHugh, Hayne and Callinan JJ) stated that a judge sentencing an offender for more than one offence must “fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality”.
65. Reference was also made to R v Merrin (2007) 174 A Crim R 100; [2007] NSWCCA 255 at [37], where Howie J (with whom Giles JA and Fullerton J agreed) stated:
[37] There is no justification for imposing a sentence for one offence that is increased to encompass the criminality of all offending. Such an approach, apparently adopted by the Judge, runs contrary to sentencing practice that has been followed since Pearce and for nearly a decade.
66. Mr F Veltro of counsel, who appeared for the Crown, properly conceded that the manner his Honour passed sentence, as reflected in the final paragraph of his reasons for sentence was unclear. Mr James SC described it as confused - both descriptions were apt.
67.Counsel for the Crown ventured that it appeared the sentencing judge intended to impose an aggregate sentence pursuant to s 53A of the Sentencing Act.
68. Four factors were relied upon to sustain that submission. They were as follows:
(1) The sentencing judge only “indicated” the head sentence he intended to impose for counts 1 and 2.
(2) His Honour did not nominate non-parole periods with respect to those counts.
(3) There were no starting dates nominated for those counts.
(4) The sentencing judge dealt with the three counts without accumulation immediately before indicating the head sentences for counts 1 and 2. Counsel submitted that the sentencing judge’s use of the term "without accumulation", when read in context, was merely an inelegant or shorthand way of saying that the sentencing judge was not required to specify non-parole periods or engage in what has been described as the laborious and sometimes complicated task of creating a cascading or stairway sentencing structure when the principle of totality requires some accumulation of sentences: JM v R [2014] NSWCCA 297 at [39(1)] (per R A Hulme J, with whom Hoeben CJ at CL and Adamson J agreed).
69. However, the Crown conceded that, if that were the approach adopted, and his Honour was proceeding under s 53A, he failed to comply with those provisions because:
(1) He failed to indicate in the decision that an aggregate sentence was being imposed;
(2) He failed to include the sentence he would have imposed for count 3. Rather, the sentencing judge appeared to provide that count 3 included the sentence he indicated for the other counts. This has a close parallel to ground 3 of the appeal as it was necessary in assessing the individual sentences to have regard to the requirements of Pearce as the criminality involved in each offence needs to be assessed individually: JM v R at [39(4)];
(3) The applicant stood to be sentenced for three separate offences of supplying a quantity of methylamphetamine at increasing levels over a 5 year period. Contrary to his Honour’s finding, some level of accumulation was required (unless the approach in Johnson v The Queen (2004) 205 ALR 346; [2004] HCA 15 was adopted - a consideration not applicable if the sentencing judge’s approach is treated as an attempt to impose an aggregate sentence).
(4) As previously mentioned, when pronouncing sentence, the sentencing judge reduced his nominated starting point for the aggregate sentence by 10%, but the appropriate course was to include the discount with respect to each individual sentence: JM v R at [39(3)]
70. If the sentencing judge did impose an aggregate sentence, it may be accepted that those errors are readily apparent in the sentencing judgement. The Crown submitted, however, that by virtue of s 53A(5), these errors do not invalidate the sentence but rather are pertinent to the question of whether the aggregate sentence (or the sentence) can be shown to be manifestly excessive.
71.In that respect, Mr G James SC contended that, irrespective of the manner his Honour approached the sentencing process, it would seem that he imposed a sentence of 43 months with 9 months’ imprisonment for count 1, 12 months’ imprisonment for count 2 and an unspecified period for count 3.
72. From that starting point, it was submitted that bearing in mind the principle of totality and the need for “some overlap”, the best explanation of the sentence of count 3 is that it exceeded 22 months, unless there is concurrency in which case count 3 may be as high as 43 months.
73. The Crown submitted that the Court should conclude that his Honour approached the imposition of an aggregate sentence in the sense of a “step ladder” on the following bases:
(1) The sentences for the three counts were not accumulated.
(2) The total aggregate sentence was 3 years and 7 months.
(3) The sentence imposed for count 1 of 9 months corresponded to a small quantity drug supply of 3.4 grams. Count 2 had a greater quantity (27.5 grams) and accordingly the indicative sentence was 12 months. Count 3 involved a greater quantity again of 55.4 grams, and would attract a greater sentence.
(4) Having deducted the sentences for counts 1 and 2, the sentence for count 3 was 1 year and 10 months.
(5) The discount is erroneously deducted, as previously mentioned, from the aggregate sentence rather than the individual sentences.
74. Whilst the submissions of the Crown in this respect represented some ingenuity, I do not consider that the sentencing judge did, in substance, impose an aggregate sentence. The very errors the Crown contended occurred in the “aggregate sentencing process”, speak against such a conclusion.
75. When seen in that light, it is clear his Honour erred in failing to fix a sentence for each count and then consider and apply the principles of totality. The Crown did not suggest otherwise. In the result, the Court must undertake a fresh and independent sentencing exercise in accordance with Kentwell v Queen (2014) 252 CLR 601 [2014] HCA 37. However, it will be useful before doing so, to first consider the remaining grounds 1 and 5, although in reverse order.
Ground 5 - His Honour erred in law in failing to apply the Sentencing Act as it had been amended as and from 24 September 2018 by the passing of the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Bill 2017 (NSW) which came into effect on 24 October 2017.
76.The applicant’s submissions as to ground 5 were as follows:
(1) The sentence was manifestly excessive. It was also submitted that the sentencing judge:
(a) failed to take into account relevant considerations;
(b) failed to apply Parente v R [2017] NSWCCA 284 (“Parente”) and thereby erred in the exercise of his discretion (a House v King error);
(c) failed to have regard to community safety; and
(d) alternatively, the sentencing judge failed to give paramount consideration to community safety pursuant to s 66 of the Sentencing Act
(2) His Honour’s reasons were not adequate to indicate that his Honour had given consideration to all necessary matters which needed to be included in the “synthesis”. At best, the reasons constitute a reiteration of the so called “Clark principle" notwithstanding the decision in Parente. So far as his Honour might be thought to be considering a sentence other than full time imprisonment, he made no mention of that, nor of the considerations which might guide a court to consider service of a sentence of imprisonment otherwise than by full time custody.
(3) Further, it was submitted that the reasons for sentence show an absence of any consideration of the principle of community safety, having regard to the provisions of s 66 of the Sentencing Act.
(4) It was in this light the applicant submitted:
(a) It was noted his Honour made findings pertinent to the question of community safety, such as the lack of likelihood of re-offending as a drug dealer and an acceptance of the applicant’s prospects of rehabilitation.
(b) It was accepted that considerable weight was to be given to the need for general deterrence in drug-related cases.
(c) While it was accepted that the issue of the community safety alone was not determinative of the manner in which a sentence of imprisonment ought to be served (see subsection (3); Pullen at [87] per Harrison J, citing with approval Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25(“Markarian”)), the legislation makes clear that community safety is “the paramount consideration”. The sentencing judge’s remarks do not disclose that any regard was had to the issue of community safety. On the contrary, reference was only made to the nature of the offence (compare with s 3A(a) of the Sentencing Act and the need for general deterrence (compare with s 3A(b) of the Sentencing Act)).
(d) The absence of any reference in the impugned paragraph concerning the appropriateness of an ICO, “notwithstanding the legislative command”, demonstrated that his Honour did not, as required, have regard to community safety as the “paramount consideration” in deciding whether to make an order for an ICO.
(e) This case does not constitute a category of case which would warrant a sentence not involving the imposition of an ICO.
(f) Drug cases must be viewed in the light of the statutory requirement to give paramount consideration to community safety: Pullen at [93] and Parente.
77. The sentencing judge was first required to determine whether no sentence other than imprisonment was appropriate and then the length of the sentence, both regardless of how the sentence might be served. The Court was then required to turn to whether alternatives to full-time incarceration were available and appropriate: Parente at [114].
78. The sentencing judge followed those steps and found a custodial sentence was appropriate. No challenge was made to that finding.
79. The sentencing judge then was required to and did determine the length of the sentence. His Honour arrived at a sentence in excess of 3 years which finding precluded consideration of the availability of an ICO (see s 68(2) of the Sentencing Act).
80. The principle of “community safety” under s 66 of the Sentencing Act was not a relevant consideration at the time the sentencing judge was considering the length of the sentence. The length of the sentence cannot be influenced by the modes of sentencing that might be available: Parente at [115], R v Zamagias [2002] NSWCCA 17 at [26] (per Howie J, with whom Hodgson JA and Levine J agreed) and Karout v R [2019] NSWCCA 253 (per Fullerton J even though in dissent). The fact his Honour may have entertained the possibility of imposing an ICO during submissions does not alter that conclusion.
81. In the recent decision of Karout v R, Fullerton J (with whom Hoeben CJ at CL agreed) stated:
[88] By stipulating in s 66(1) that community safety is to be treated by sentencing courts as the paramount consideration when a submission is advanced that a sentence of imprisonment should be served in the community, the Legislature should not, in my view, be taken to have intended that community protection be elevated to a mandatory consideration in the sentencing exercise, in the sense that it should dominate considerations of broader sentencing principles, including considerations which may dictate that no lesser sentence than one involving a full-time custodial term is appropriate.
82. His Honours findings as to the applicant’s rehabilitation prospects of re-offending may have, in an abstract sense, supported the exercise of power under s 66 for the making of an ICO, but those were not the only factors relevant to his Honour’s consideration in that respect. Section 66(3) required consideration of the objective seriousness of the offending and general deterrence. His Honour was entitled, in the matter before him, to impose a sentence which reflected a component of general deterrence. As stated by the Court in Parente at [115] (citing, the judgment of Howie J in R v Zamagias [2002] NSWCCA 17 at [28]):
[115] ... [T]he appropriateness of an alternative to full time custody will depend on a number of factors, one of importance being whether such an alternative would result in a sentence that reflects the objective seriousness of the offence and fulfils the manifold purposes of punishment. The court in choosing an alternative to full time custody cannot lose sight of the fact that the more lenient the alternative the less likely it is to fulfil all the purposes of punishment.
83. I would reject ground 5.
Ground 1 - The applicant's sentences were in error as being out of parity with that of the co-offender, such that were it in parity, an intensive corrections order might have been available
84. The applicant contended as follows:
(1) The applicant has a justifiable sense of grievance in light of the sentence imposed upon the co-offender, Mr Niazy. Mr Niazy pleaded guilty to the offence of knowingly taking part in the supply of a commercial quantity of prohibited drug contrary to s 25(2) of the DMTA. The amount particularised in respect of that offence was some 363 grams. The maximum penalty for that offence is imprisonment for life (and/or a fine) and there is a Standard Non-Parole Period of 15 years prescribed under the Sentencing Act. Mr Niazy was sentenced by Hanley SC DCJ to a total term of 3 years with a non-parole period of 18 months. This sentence was imposed after his Honour had afforded Mr Niazy a discount of 25% to reflect the utilitarian value of his plea of guilty.
(2) In relation to Mr Niazy’s subjective case, he was 19 years old at the time of the commission of the offences. Hanley SC DCJ accepted the opinion of both Dr Richard Furst and Dr Sam Borenstein that, at the time of the commission of the offences, Mr Niazy was suffering from “post-traumatic stress disorder” as a result of the atrocities he suffered as a child and the subsequent difficulties that arose in his relocating to Australia. At the time of the commission of the offences, he had no criminal convictions as an adult. Hanley DCJ found that his prospects of rehabilitation were “good”.
(3) The applicant presented a positive subjective case on his sentence proceedings. The applicant had been on bail for a substantial period of time, in excess of 3 years, with no difficulties. The sentencing judge accepted that the applicant was unlikely to reoffend as a drug dealer having rehabilitated and re-established himself as a family man. The applicant had ceased his drug use and his Honour noted that the applicant and his wife had established a car detailing business and had recently been engaged to provide services to Parramatta Mazda.
(4) The sentencing judge found that the applicant acted as a wholesaler who obtained drugs to provide to Mr Niazy. Notwithstanding this, it was submitted that the more limited involvement of the applicant was properly reflected in his acquittal at trial on the allegation of the supply of 332.1 grams of drug when the jury found that Mr Niazy had obtained the further 276.7 grams of drug from an alternate source. Regardless of whether regard is had to the role, or the amount of the drug involved, the offence to which the co-offender pleaded was objectively more serious than the offence involving the applicant.
(5) The applicant submitted that, in the sentencing proceedings, parity was, in effect, conceded by the Crown, namely, that the applicant would have a justifiable sense of grievance if he received a similar sentence to Mr Niazy. The sentencing judge imposed the sentence he did notwithstanding the concession, without adequate reasons and without further calling upon the applicant having regard to an intention to give a similar sentence to Mr Niazy.
(6) The sentencing should have been on a parity basis less than 3 years.
85. Further, even allowing for some difference on the pleas discounts for such a sentence, an ICO was available. The sentencing judge approached the issue of parity as follows:
The matters of parity do arise with Mr Niazy, having been sentenced by my brother, Judge Hanley. Mr Niazy has a different background to this offender having come from Afghanistan to Pakistan and then migrating to this country at an early age. He also was diagnosed with post-traumatic stress disorder having members of his family being killed and injured by groups of the Taliban before coming to Australia. Thus, in respect of Mr Niazy it is not a matter where general deterrence is as high as it would be in this matter. On the other hand, Mr Niazy did plead guilty at an early stage and received a 25% discount.
86. In Fenech v R [2018] NSWCCA 160 at [29]- [33], RA Hulme J (with whom Beazley P and Button J agreed) summarised the parity principle as follows:
[29] A succinct statement of the parity principle may be drawn from the joint judgment of French CJ, Crennan and Kiefel JJ in Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [28]:
“Consistency in the punishment of offences against the criminal law is ‘a reflection of the notion of equal justice’ and ‘is a fundamental element in any rational and fair system of criminal justice’ [Lowe v The Queen (1984) 154 CLR 606; [1992] HCA 29 at 610 per Mason J]. It finds expression in the ‘parity principle’ which requires that like offenders should be treated in a like manner [Leeth v The Commonwealth (1992) 174 CLR 455; [1992] HCA 29 at 470 per Mason CJ, Dawson and McHugh JJ]. As with the norm of ‘equal justice’, which is its foundation, the parity principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances [Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 at 301 per Dawson and Gaudron JJ].
87. . In Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [31], French CJ, Crennan and Kiefel JJ said:
88. In Lloyd v R [2017] NSWCCA 303, R A Hulme J, with whom Payne JA and Garling J agreed, stated (at [95]-[97]):
[95] It is possible that the difference between the sentences imposed upon the co-offenders might have been greater. However, it must be kept clearly in mind that this was a discretionary assessment by a judge who had the facts and circumstances of the offences and each offender in mind in the one sentencing exercise. [96] It is a basic principle of appellate review of sentencing that "there is no single correct sentence" and "judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies": Markarian v The Queen(2005) 228 CLR 357 at 371 [27]; [2005] HCA 25 (Gleeson CJ, Gummow, Hayne and Callinan JJ). That observation may be translated to a review of the degree to which a sentencing judge has differentiated the sentences imposed upon co-offenders sentenced in the one sentencing exercise.
89. In terms of the grounds of appeal as raised by the applicant, it is not appropriate for this Court to ‘second-guess’ the primary judge and to consider what this Court would have done: see Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at 671-672; [1999] HCA 29 at [15]. The question may be stated as such: was the differentiation made by the judge one that was open to her in the exercise of her discretion? In my view, the answer must be affirmative.
90. The Crown prepared a helpful table to the objective and subjective circumstances of the applicant and the co-offenders (the applicant only made submissions regarding Mr Niazy), which table is annexed as Annexure A to this judgment and, in my view, clearly assists in demonstrating why this ground was without merit.
91. The gravamen of the applicant’s case under this ground was that the objective seriousness of the applicant’s offending was significantly less than the co-offender, Mr Niazy, because of the amount of the drug in the offending in count 3 (which was reflected in the acquittal of the applicant in the charges brought against him for supply of 332.1 grams of methylamphetamine and the conviction for a significantly smaller quantity), stood in contrast to the further 276.7 grams of the drug, with respect of which Mr Niazy was convicted.
92. The applicant also contested that the differences in their roles was immaterial and the applicant also had a positive subjective case, particularly given the findings of the trial judge as to the prospects of rehabilitation.
93. However, I do not consider that these factors demonstrate error in the respective sentences imposed on the applicant and the co-offender, if the head sentence imposed was 3 years 7 months and Mr Niazy’s sentence was a term of imprisonment of 36 months with a non-parole period of 18 months (and an Intensive Corrections Order was imposed on Mr Khaligi for 2 years with mandatory conditions).
94. It is true that Mr Niazy was sentenced in respect of the supply of a greater quantity of drugs which attracted a higher maximum penalty of 20 years with a standard non-parole period of 10 years, whereas the applicant fell to be sentenced for an offence attracting a maximum penalty of 15 years.
95. Whilst the quantity of the drugs is a very material consideration in assessing the overall seriousness of the offence, it is not the sole or chief factor: Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64. Rather, the relevance of this factor will depend on the circumstances of each case. What is more important is the role of the offender and the level of his participation in the offence: Elchiekh v R [2016] NSWCCA 225 at [42]. The respective roles of the applicant differed with the applicant being a wholesaler supplying Mr Niazy (Mr Khaligi was described as a “naïve driver).
96. There were other significant differences which account, in my view, for the respective sentences imposed upon the applicant and Mr Niazy.
97. Unlike the applicant, Mr Niazy also had the benefit of youth (he was 19 at the time of the offence), an early plea which attracted a discount of 25% and a finding of objective seriousness of "just below the mid-range".
98. The finding by Hanley DCJ that Mr Niazy was not a suitable candidate for general deterrence as a result of the significant disadvantage he had suffered as a result of his deprived background and early childhood, and the application of Bugmy principles, resulted in a much more significant reduction in the sentence than that which could have been otherwise imposed. The Crown was correct to emphasise the significant reduction in the relevance of general deterrence arising in the circumstances.
99. Finally, I do not consider the Crown made no concession. The Crown merely drew the sentencing judge’s attention to the fact that, if he ultimately arrived at a sentence in the vicinity of 3 years or more, he had to give consideration to whether such a sentence would give rise to a justified sense of grievance. It was not submitted that his Honour could not impose a sentence greater than 3 years. Further, at no time did his Honour give any indication that he did not intend to impose such a sentence.
Ground 4: The sentences and the total sentence were manifestly excessive particularly having regard to parity with the co-accused and to the mode by which his Honour accumulated the sentence and the effect of Section 68 of the Sentencing Act (See R v Pullen [2018] NSWCCA 264 )
100. It is strictly unnecessary to deal with this ground given the Court has found error and the applicant will be resentenced. In any event, the ground should be rejected.
101. In substance, the applicant relied upon the following contentions in support of this ground:
(1) The applicant’s positive subjective case, including fresh material, later referred to in this judgment;
(2) The timing of the pleas;
(3) The applicant’s criminal record did not warrant him being dealt with as severely as he was;
(4) The failure to apply the principle of parity, when attention is properly directed to the sentence imposed upon the co-accused; and
(5) The failure to pass a sentence which “would fall within the range prescribed by s 68 of the Sentencing Act.
102. I have rejected earlier the second and fourth bases when dealing with grounds 1 and 2.
103. The first, third and fifth grounds are dealt with in resentencing the applicant below, but the following may be noted for present purposes:
(1) Whilst there are positive aspects of the applicant’s subjective case (although well below the significance of Mr Niazy’s subjective factors), those findings could not result in a sentence that was not reasonably proportionate to the gravity of the offence: R v Dodd (1991) 57 A Crim R 349 at [354] (per Gleeson CJ, Lee CJ and Hunt J). I do not consider the sentencing judge failed to properly assess, in this case, the balancing of factors appropriate to sentencing the applicant.
(2) The criminal record of the applicant does not entitle him to leniency.
(3) The sentencing judge did not err in deciding, having regarding to the objective seriousness of the offending and general deterrence, that no other sentence than imprisonment was appropriate.
104. In my view, this ground should be rejected.
RESENTENCING
105. The applicant was sentenced for three separate supplies of methylamphetamine over a period of about five weeks. The total quantity supplied amounted to 86.3grams. The prescribed indictable quantity involving methylamphetamine for an offence under s 25(1) of the DMTA ranges from 5 grams to 249 grams. The maximum penalty for an offence under s 25(1) is 15 years’ imprisonment. No standard non-parole period is prescribed.
106. The applicant made no challenge to a number of findings of the sentencing judge which, were available on the facts before him and which I propose to apply in resentencing.
107. The sentencing judge noted that the methylamphetamine supplied was of a high purity and capable of being "cut" for further distribution.
108. The sentencing judge found the applicant to be a "wholesaler" and assessed the objective seriousness of the offence to be "in the mid-range of dealing". This finding was less serious than what had been submitted by the applicant in submissions, namely, that the objective seriousness of the offence "lay at a higher end of the mid-range level on the scale of objective seriousness for offences of this type".
109. In addition to the findings of the sentencing judge, the Court received for the purposes of resentencing:
(1) An Update Sentencing Assessment Report (“the Sentencing Report”);
(2) Updated Psychological Report of Dr Paul Pusey, dated 2 November 2019;
(3) Affidavit of George Sahyoun, sworn 4 November 2019;
(4) Affidavit of Kieryn Sahyoun, sworn 4 November 2019;
(5) Affidavit of Hwaida Sahyoun, sworn 4 November 2019; and
(6) Affidavit of Jessica Tohi, sworn 1 November 2019.
110.The applicant was born in 1982. He was 31 years of age at the time of offending and 36 years of age at the time of sentencing (and now 37 years of age).
111. The applicant has the support of his extended family. He established a car washing and detailing business with his wife, whom he married after his arrest. He had recently been engaged to provide services to Parramatta Mazda. That position was confirmed by the Sentencing Report.
112. The applicant has a prior criminal record, including a ‘possess’ drug offence in 2001. However, the sentencing judge found that, even though he had contacts with drug society, his marital and business status should result in a conclusion that he was unlikely to reoffend as a drug dealer as he had been rehabilitated. There was no demur from the Crown as to that finding. In any event, it is supported by the fresh material before the Court. The Sentencing Report referred to the applicant as by a low risk of reoffending. Dr Pusey supported that conclusion, notwithstanding the applicant had not engaged in formal substance use treatment, given the time the applicant has been abstinent from drug use and “the psychosocial stressors he has been exposed to during this time”. It may be noted that, in that affidavit, the applicant is started to have admitted to being ‘a junkie’ at the time of the offence and had had a drug problem for a long time. He explained the difficult process of withdrawing from methylamphetamine.
113. In my view, the nature of the offending must result in general deterrence significantly featuring in sentencing.
114. Having regard to the principles stated in Parente at [115], my findings in relation to ground 4 and the sentencing exercises above, I do not consider that any sentence other than full time imprisonment is appropriate, particularly when the objective seriousness of the offence, the need for general deterrence and the fulfilment of the purposes of punishment are borne in mind. In particular, I do not consider an alternative sentence of an ICO is appropriate.
CONCLUSION
115. Having regard to the judgment of the majority to impose an intensive corrections order, it is unnecessary for me to promulgate the custodial sentence I would have imposed in the circumstances. It is sufficient to record that I agree with the orders (1) and (2) proposed by Fullerton J
116. FULLERTON J: I have read and considered the judgment of Walton J.
117. I have also come to the view that the error the subject of the third ground of appeal has been made out and that the applicant will need to be resentenced.
118. I have concluded, however, for reasons that will follow, that a lesser sentence of imprisonment than that imposed by the sentencing judge is warranted. I am further of the opinion that an intensive corrections order under s 66(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) should be made allowing the applicant to serve that sentence in the community.
119. I also agree with Walton J that the remaining grounds of appeal (grounds 1, 2 and 4) should be dismissed and with his Honour’s reasons for dismissing ground 1 of the appeal.
120. I would prefer, however, to set out my own reasons for both upholding ground 3 and dismissing grounds 2 and 4.
121.In doing so, it is not necessary to restate the facts upon which sentence was passed or the evidence adduced by the applicant on sentence and on resentence as summarised by Walton J. I will, however, restate the history of the proceedings in order that my reasons for dismissing ground 2 are made clear referable to that history.
The history of the proceedings
122. After being discharged following committal proceedings in August 2014, the applicant was charged by an ex officio indictment filed in the District Court on 3 September 2015 with the following offences:
(1) Count 1: On 19 June 2013, supply of a prohibited drug, namely, 3.4 grams of methylamphetamine, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW) (“DMTA”).
(2) Count 2: On 27 June 2013, supply of not less than the indictable quantity of a prohibited drug, namely, 27.5 grams of methylamphetamine, contrary to s 25(1) of the DMTA.
(3) Count 3: On 23 July 2013, supply of not less than the commercial quantity of a prohibited drug, namely, 332.1 grams of methylamphetamine, contrary to s 25(2) of the DMTA.
123. On his arraignment on 10 September 2015, the applicant entered pleas of not guilty to each count.
124. The matter was listed for trial on three occasions but did not proceed.
125. On 28 March 2018, the applicant made an application for the counts on the indictment to be tried separately. That application was refused.
126. On 18 July 2018, the applicant indicated a willingness to enter a plea of guilty to count 3 if it were reframed to allege the supply of not less than the indictable quantity of methylamphetamine. That offer was rejected.
127. On 23 July 2018, the applicant entered pleas of guilty to counts 1 and 2 on the indictment and stood trial before Maiden SC DCJ on the third count.
128. On 3 August 2018, the applicant was acquitted of the supply of a commercial quantity of methylamphetamine but convicted of the statutory alternative, under s 25(3) of the DMTA, of supplying not less than the indictable quantity of methylamphetamine, namely 55.4 grams of that prohibited drug.
The proceedings on sentence
129. Following verdict, the Crown made a detention application. His Honour refused the application and continued the applicant’s bail, commenting at the time that the matter “could be lineball for an ICO”.
130. The matter was listed for sentence on 18 October 2018. On that occasion the Crown tendered a sentence bundle (Exhibit A) which comprised various documents, including the applicant’s criminal and custodial history, a sentencing assessment report dated 12 October 2018, and the remarks on sentence and criminal histories for both Mr Niazy and Mr Khaliqi (two co-offenders), who had by that time already pleaded guilty and been sentenced by Hanley DCJ.
131. The applicant did not give evidence or call any evidence on sentence. He did tender a number of documents (Exhibit 1) which included detailed written submissions on sentence, a psychological report dated 14 October 2018 and various character references.
132. His Honour subsequently adjourned the proceedings to 9 November 2018 for sentence and continued the applicant’s bail.
The sentence imposed
133. In his reasons for sentence, his Honour “indicated” the following sentences:
(1) Count 1: 9 months’ imprisonment;
(2) Count 2: 12 months’ imprisonment.
134. With respect to the sentence for the alternate verdict to count 3 delivered by the jury, the sentencing judge announced a sentence of 43.2 months (after applying a discount of 10 per cent) which he stated included “the other matters”. It is this aspect of his Honour’s sentencing reasons which underpins ground 3 of the appeal.
135. In the result, the sentencing judge imposed a non-parole period of 2 years and 5 months commencing on 9 November 2018 and expiring on 8 April 2021 with a balance of term of 1 year and 2 months expiring on 8 June 2022.
Ground 3: His Honour erred in regard to the principles in Pearce v The Queen in the way in which he passed a total sentence for all offences when sentencing for count 3 on the indictment
136. Since I am satisfied that the error the subject of the third ground of appeal has been made out, I propose to deal with that ground of appeal first.
137.Irrespective of whether the ultimate sentencing order is to be understood as an aggregate sentence imposed pursuant to s 53A of the Crimes (Sentencing Procedure) Act (the submission advanced by the Crown on the appeal), or whether it is to be understood as comprising a series of discrete sentences with the sentences imposed on counts 1 and 2 to be served wholly concurrently with the sentence imposed on the third count without the sentence for that count being specified (the applicant’s submission), in my view, there are compound errors in the approach of the sentencing judge to the sentencing exercise.
138.As reflected in the following extract from the sentencing reasons, the language used by the sentencing judge when making the sentencing order is both obscure and confused:
I propose to deal with the three matters without accumulation. In respect of the first matter, I would indicate a head sentence of nine months, and the second matter I would indicate 12 months imprisonment. In respect of the third matter, which includes the other matters, it will be a period of four years from which I deduct 10% for the pleas of guilty, which leaves a total time of 43.2 months. From that, I propose to apply special circumstances that I have found of 66%, which means that I should deduct from that 43.2 months, 14.4 months. In other words, he will serve a sentence of two years and five months from today, and the balance of term will expire four years, three months from today.
139. Although the fact that sentences of 9 and 12 months were “indicated” for counts 1 and 2, respectively, might suggest that the sentencing judge was intending to impose an aggregate sentence, the fact remains that he did not indicate a sentence for count 3 as he was obliged to under s 53A(2) if an aggregate sentence was to be imposed. Neither did he say that he was sentencing according to that statutory process. In addition, he failed to apply the discount for the pleas of guilty to counts 1 and 2 before indicating a sentence for each count. Instead, he deducted “10 per cent for the pleas of guilty” (plural) from what the Crown submitted should be understood to be the aggregate sentence of 4 years; an approach which is clearly contrary to law where an aggregate sentence is imposed (PG v R (2017) 268 A Crim R 61; [2017] NSWCCA 179).
140. In addition, and fairly conceded by the Crown, even were the sentencing order capable of being unravelled and reconstituted as an aggregate sentence, it lacked the transparency fundamental to the aggregate sentencing process because of the sentencing judge’s failure to make any assessment of the objective criminality inherent in each offence before imposing an aggregate sentence to comprehend the total criminality.
141. On the other hand, if the sentences for counts 1 and 2 (neither of which comprise a non-parole period) might be understood to be fixed term sentences pursuant to s 45 of the Crimes (Sentencing Procedure) Act, the sentencing judge has failed to comply with the requirements of s 44(2) which oblige a sentencing judge who declines to set a non-parole period to make a record of the reasons for doing so.
142. Without any indication, express or implied, that the sentencing judge was purporting to impose fixed terms for counts 1 and 2, the inevitable conclusion is that the sentences on those counts and on count 3 were imposed contrary to the obligation in s 44(1) which obliges a sentencing court when imposing individual sentence for a series of offences to set a non-parole period, being the minimum period for which the offender must be kept in detention in relation to each offence before questions of accumulation or concurrency are considered. That is the approach mandated by Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57.
143. In the result, in my view the sentencing order was defective. Subject only to correcting technical sentencing errors, it is not for this Court to endeavour to decipher the intentions of a sentencing judge or what was meant by a sentencing order. In this case, the sentencing discretion miscarried by the sentencing judge’s failure to clearly and concisely articulate the basis upon which the ultimate sentence of imprisonment was arrived at in order to ensure it was understood both by the applicant and by the community.
Ground 2: His Honour erred in fixing the percentage of the utilitarian discount at only 10 per cent
144. The applicant’s written submissions appear to complain about the 10 per cent discount for the pleas of guilty for counts 1 and 2 and the sentencing judge’s failure to afford a greater discount than 10 per cent for what was said to be the utilitarian value of the applicant’s willingness to enter a plea of guilty to a supply of methylamphetamine of not less than the indictable quantity, the offence upon which he was ultimately convicted by the jury.
145. Although at the hearing of the appeal Mr James QC limited his submissions to the latter, to the extent that the applicant is to be understood to have maintained the submission that there was error in the appointment of a 10 per cent discount for the pleas of guilty to counts 1 and 2, I would reject that submission.
146. The pleas of guilty to counts 1 and 2 were entered on the first day of the trial, almost three years after the applicant entered pleas of not guilty to all three counts on his arraignment. It was common ground in the sentence proceedings that there was no evidence that pleas of guilty were even discussed until the fourth trial date. On any view of it, the pleas of guilty were entered late. The fact that the form of the indictment might have been the subject of negotiation between the Crown and the accused, and that late entry of the pleas of guilty might be explained on that basis, was irrelevant to an assessment of the utilitarian value of the pleas of guilty at the time they were entered (see R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102 at [32] per Howie J with McClellan CJ at CL and Simpson J agreeing; cf Bathurst in R v AB [2011] NSWCCA 229 at [3]).
147. So far as concerns the applicant’s offer to plead guilty to an offence which was ultimately consistent with the jury’s verdict on count 3, Mr James submitted that although there is no utilitarian value in the offered plea in the strict sense, if the plea had been accepted it follows that it would have precluded a trial altogether. In his submission, by allowing a 10 per cent discount for the sentence to be imposed on the third count the sentencing discretion miscarried. I do not accept that submission. While the applicant’s willingness to enter a plea of guilty to an indictable supply of methylamphetamine might have been suggestive of a subjective preparedness on his part to facilitate the course of justice (as to which no evidence was adduced and no submission advanced at the sentencing hearing) what the authorities make clear is that the utilitarian value of a plea of guilty is in the actual utility in the plea, assessed objectively, not some notional or hypothetical utility (see R v Cardoso (2003) 137 A Crim R 535; [2003] NSWCCA 15 at [17]).
148. Although his Honour’s preparedness to apply a 10 per cent discount to the sentence for count 3 was a course open to him, it being at least implicit that the plea of guilty to the lesser charge was justified on the available evidence (see R v Johnson [2003] NSWCCA 129 at [44]), I am not satisfied that the sentencing discretion miscarried by not allowing a greater discount than 10 per cent in all the circumstances.
Ground 4: His Honour erred in law in failing to apply the Crimes (Sentencing Procedure) Act as it had been amended as and from 24 September 2018 by the passing of the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Bill 2017 which came into effect on 24 October 2017
149. The essence of the complaint under this ground of appeal was that the sentencing judge’s reasons for effectively rejecting the submission advanced by the applicant’s legal representative, in writing, that the applicant be permitted to serve any sentence of imprisonment in the community by way of an intensive corrections order, were limited to a passage in the sentencing remarks to the effect that the dealing in prohibited drugs calls for considerations of general deterrence to dominate such that a custodial sentence was called for.
150. The particular passage to which the applicant makes reference is as follows:
This matter does require consideration of general deterrence, and that is that if persons want to deal with the drug culture, implementing [sic] and providing dangerous substances such as methamphetamine, then a custodial sentence is appropriate.
151. It was only as an afterthought when the applicant’s legal representative reminded the sentencing judge that he had raised the possibility of an intensive corrections order that the following remarks were made in the exchange with counsel:
HIS HONOUR: Is there any submission or anything else that you can think of? GALLOWAY: I must have been somewhat mistaken, I got the impression at the end of the trial and last time we were [here] your Honour was talking about getting an ICO. HIS HONOUR: Having gone through it all I don’t think this is appropriate. GALLOWAY: I probably would have addressed you further if I’d known that, that’s all. HIS HONOUR: That was thinking aloud at the time, but having sat down with the papers and gone through it and having considered it, including the parity issues, I think that I was unable to extend that leniency, I think I would have fallen into appealable error. I hadn’t read Mr Niazy’s. GALLOWAY: I’m so sure the parity issue is important given the - put it this way, loosely, the change in-- HIS HONOUR: I think it’s very important here because-- GALLOWAY: --the change addressed by the Court of Criminal Appeal applies I think, having regard to that it becomes less important. HIS HONOUR: But it has to be considered where people are in the batting order, and based upon the finding of Niazy, counts 1 and 2, and then partly 3-- GALLOWAY: It’s just the way I see it, that’s all. HIS HONOUR: --he got a gaol sentence. And as I understood your submissions, could I have got the matter under two years, well, I don’t-- GALLOWAY: Three years, your Honour. HIS HONOUR: I beg your pardon? GALLOWAY: Three years, your Honour. HIS HONOUR: Under three, well, I couldn’t do it now. But thank you for your help, and your assistance, Mr Crown.
152. The applicant submitted that the sentencing remarks reveal a failure to apply the decision of this Court in Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284. That decision overturned the pre-existing sentencing principle that drug trafficking to any substantial degree ordinarily requires a sentence of full-time imprisonment (colloquially referred to as the “Clark principle”) and instead imposed an obligation on sentencing courts to approach the task of sentencing offenders charged with drug supply offences in accordance with ordinary sentencing principles (see [93]-[103] and [107]-[115]).
153. Importantly, the Court at [113] emphasised that an offender must not be sentenced to imprisonment unless the sentencing judge is satisfied that, having considered all possible alternatives, no other penalty is appropriate. That approach is consistent with the fundamental sentencing principle in s 5(1) of the Crimes (Sentencing Procedure) Act that full-time custody is the sentencing option of last resort.
154. On the appeal, there was no challenge to the fact that a sentence of imprisonment was warranted. That is, it was not suggested that the statutory threshold in s 5(1) had not been crossed. Rather, it was suggested that given that the sentencing judge must at one time have been taken to be considering a sentence of other than full-time imprisonment, having directly raised the possibility of an intensive corrections order, albeit as an aside after the verdict of the jury was returned, in his sentencing reasons he neither referred to other sentencing alternatives nor to the considerations which might warrant a sentencing order that did not involve a sentence of imprisonment expressly in s 66 of the Crimes (Sentencing Procedure) Act. The applicant submitted that the sentencing reasons are again defective for failing to disclose, expressly or by implication, that the sentencing judge paid any regard at all to the issue of community safety which the applicant submitted the Parliament had made clear was the paramount consideration when a sentencing court is deciding whether to make an intensive corrections order.
155. The Crown submitted that his Honour was under no obligation to consider the issue of community safety in s 66 of the Crimes (Sentencing Procedure) Act, or other considerations relevant to the question whether an intensive corrections order ought be made, since that sentencing option was effectively overtaken by the sentencing judge having determined that the length of the sentence would exceed 3 years. The Crown submitted that there is nothing in Parente that qualifies the principle of long-standing that the length of a sentence of imprisonment should not be influenced by a sentencing court giving consideration to what modes might be available under which that sentence might be served. To the contrary. At [115] the Court said:
As to the appropriateness of imposing a sentence of imprisonment to be served in some alternative way, it is important to have regard to the following from the judgment of Howie J in R v Zamagias at [28] (and see similarly in the judgment of Johnson J in Douar v R at [72]):
[T]he appropriateness of an alternative to full time custody will depend on a number of factors, one of importance being whether such an alternative would result in a sentence that reflects the objective seriousness of the offence and fulfils the manifold purposes of punishment. The court in choosing an alternative to full time custody cannot lose sight of the fact that the more lenient the alternative the less likely it is to fulfil all the purposes of punishment. (Citation of authority omitted)
156. In this case the Crown submitted that the objective seriousness of the applicant’s offending as a wholesale drug supplier, coupled with the need for the sentence to reflect the need for general deterrence, was such that the sentencing judge should be taken to have determined that a sentence of imprisonment was justified notwithstanding the positive findings he made concerning the applicant’s established rehabilitation and limited risk of reoffending.
157. The sentencing reasons on this question (as with the issue raised by the third ground of appeal) are also inadequate. Further, while there might have been a complaint that the applicant was denied procedural fairness given that the sentencing judge first raised the issue of an intensive corrections order but then, when the applicant’s legal representative embraced the suggestion in his written submissions, did not seek the assistance of counsel before apparently resolving against that as a sentencing option, I am not ultimately persuaded that the fifth ground of appeal, as framed, is made out. To be clear, I am not persuaded that his Honour was in error as a matter of law in failing to apply s 66 of the Crimes (Sentencing Procedure) Act in the way in which that argument was advanced on the appeal. Having regard to what I said in Karout v R [2019] NSWCCA 253 at [86]- [91] (with which Hoeben CJ at CL expressed his agreement), community safety is not to be treated by sentencing courts as the paramount or even a mandatory consideration when a submission is advanced that a sentence of imprisonment of less than 3 years should be served in the community. On the appeal, Mr James submitted to the contrary. Those submissions are no longer supported by authority.
Resentence
158. After taking into consideration the materials tendered on sentence in November 2018 (as set out in the judgment of
Walton J), supplemented by a further compendium of materials tendered in the event of resentence at the hearing of the appeal in November 2019 (also set out in his Honour’s judgment) I am satisfied that the applicant is entitled to the benefit of the full weight of that material in the assessment, at this time, of his very favourable subjective circumstances.
159. I am satisfied that he is not only remorseful but that he has effectively rehabilitated. That conclusion is open and available given that almost seven years have passed since he offended as a dealer of drugs in wholesale amounts. He has not reoffended since that time.
160. After taking into account the objective gravity of the applicant’s offending for each of a succession of supplies of methylamphetamine as a wholesale dealer of that drug, and for commercial reward, and in incrementally increased quantities, but also taking into consideration the interplay of very favourable subjective factors in mitigation, and after applying a discount of 10 per cent for each count, I propose the following indicative sentences in accordance with s 54(2) of the Crimes (Sentencing Procedure) Act:
Count 1: 9 months’ imprisonment;
Count 2: 12 months’ imprisonment;
Count 3: 18 months’ imprisonment.
161. After applying the totality principle and after endorsing the sentencing judge’s finding of special circumstances, in large part, at this time, because of the delay in the delivery of the Court’s reasons which I am satisfied must have been productive of a sense of apprehension as to the ultimate outcome of the appeal, I propose an aggregate sentence of 2 years and 6 months with a non-parole period of 15 months.
162. I am also satisfied, having regard to the applicant’s successful resolve to stay drug-free and to distance himself from the drug milieu in which he at one time operated, that considerations of community safety, together with other sentencing considerations are such that an order that the applicant serve the aggregate sentence of imprisonment in the community is warranted.
163. I propose the following orders:
(1) Grant leave to appeal and allow the appeal against sentence.
(2) Quash the sentence imposed in the District Court on 9 November 2018.
(3) In lieu thereof, the applicant is sentenced to an aggregate term of imprisonment of 2 years and 6 months to date from 7 January 2020 with a non-parole period of 15 months to date from 7 January 2020.
(4) Direct that the sentence be served by way of an intensive corrections order.