Resolution of appeal - ground 1
58Despite counsel for all parties disowning any challenge to Attorney General's Application No 1 of 2002, it is difficult to avoid the conclusion that such was the substantive effect of the submissions. Thus, if the further offences required greater personal deterrence, that followed from the need for punishment for those offences, the additional punishment being only notionally applied to the principal offence. Similarly, if the community was entitled to exact retribution on account of the further offences, again the increased penalty was only nominally attributable to the principal offence.
59The tension within the reasoning in Attorney General's Application No 1 of 2002 requires resolution in order to dispose of the appeal. The tension, however, does not require the Court to revisit the correctness of the judgment. The tension arises from the following passages:
"22 The choice between a 'top down' approach and a 'bottom up' approach, raises an important issue of principle with respect to which there is uncertain and perhaps conflicting guidance in previous decisions of this Court.
23 The Court must, of course, give effect to the statutory regime. However, it does so in a context in which the basic principle of the common law is that no-one should be punished for an offence of which he or she has not been convicted. (R v De Simoni ... at 389, 395-396; R v Olbrich ... at [18].) The offences on a Form 1 constitute an admission of guilt, but there is no conviction.
24 The 'top down' approach which, notionally, identifies an appropriate penalty for the full gamut of offences, appears to me to be inconsistent with this principle. No doubt it can be said that even the 'bottom up' approach involves, in a sense, punishment 'for' the Form 1 offences, because the penalty for the primary offence is increased."
60Although Spigelman CJ referred to a person not being punished for an offence for which he or she "has not been convicted", the references to De Simoni suggest the bar should not be placed so high. True it is that Gibbs CJ at 389 referred to an offence for which the person "has not been convicted", as did Wilson J at 395. Wilson J was in dissent, but he elaborated on the basic principle in terms which are not in doubt.
"The primary rule is that the judge must sentence the prisoner for the offence of which he has been convicted. He must not, even though the actual sentence may be within the range allowed for that offence, sentence for some other more serious offence which he is satisfied has been committed .... On the other hand, the judge is not only entitled but bound to take into consideration the circumstances surrounding the offence of which the prisoner has been convicted, so long as those circumstances are not inconsistent with the plea or verdict .... But he must not punish the prisoner for additional offences with which he has not been charged ...."
61De Simoni was not concerned with the kind of issue raised in the present case; it concerned a person convicted on a charge of robbery with actual violence, but without reference to wounding, which constituted a "circumstance of aggravation". Section 582 of the Criminal Code (WA) stated that "if any circumstance of aggravation is intended to be relied upon, it must be charged in the indictment". Thus the majority concluded that the offender could only be sentenced on the basis of an assault resulting in wounding if the charge of which he had been convicted included wounding as the circumstance of aggravation.
62As this Court noted in Einfeld v R [2010] NSWCCA 87; 200 A Crim R 1; 266 ALR 598:
"144 There are various ways in which conduct constituting an uncharged offence may properly be taken into account. In De Simoni, Gibbs CJ referred to the decision of the English Court of Criminal Appeal in R v Huchison [1972] 1 WLR 398, in support of the principle his Honour was stating: at 390. Huchison involved a charge of a single count of incest between father and daughter, to which the appellant had pleaded guilty. However, the daughter's statement referred to repeated courses of intercourse over a significant period. This material was relied upon by the sentencing judge. That was held to be inadmissible, but Phillimore LJ, in delivering the judgment of the Court, stated at 399:
"Of course there are cases where the prosecution puts forward a count as a sample count, and in those cases it is well-understood that if that course is taken and the defence are notified, a judge is entitled to deal with the whole matter on the basis that the offence in fact was repeated more than once, or there were some other similar incidents. But that is not this case; this was put forward as a single offence ...."
...
146 To read the principle established by De Simoni beyond its immediate context would give rise to consequences which were not addressed and which would involve an extrapolation of the principle beyond that which is necessary to give effect to its purpose. For example, a course of unlawful conduct may well give rise to a number of possible charges. If the prosecution proceeds on one count only, it does not follow that the surrounding conduct cannot be taken into account in sentencing. The surrounding conduct cannot give rise to a more serious offence, but it can demonstrate the degree of seriousness with which the charged offence should be viewed.
147 The purpose underlying the principle is to avoid unfairness to the accused who may be faced (on the sentencing hearing) with complaints about his conduct which did not form part of the charge and which he did not expect to meet when he pleaded guilty. However, the fact that such conduct may be relevant often leads an offender to seek to establish the factual basis upon which the matter will proceed if he or she pleads to a particular count. Further, the elements identified in the present case as false, although not the subject of separate charges, were conceded by the plea in respect of the particular false statement. The applicant did not deny making the statements, nor could he deny their falsity. However, it was not the moral culpability flowing from their falsity which was taken into account; it was the characteristic attaching to the charged false statement, for which they provided the evidential basis."
63In The Queen v Olbrich [1999] HCA 54; 199 CLR 270 at [18], the Court noted that it would be "quite wrong to sentence an offender for crimes with which that offender is not charged" (Gleeson CJ, Gaudron, Hayne and Callinan JJ). That was said in a context where the precise role of the offender in a drug importation was unclear. The question of charge or conviction was not directly relevant: whether or not the offender was a courier, a principal or occupied some other role in the criminal enterprise was not revealed by the plea or by the statement of agreed facts upon which the sentencing was based. The offender had claimed that he was a courier but had been disbelieved. The case is important because it illustrates the difficulties which can arise in identifying the correct basis for sentencing an offender where a statement of agreed facts is incomplete, where the offender or other witnesses are called on sentence and give evidence inconsistent with the agreed facts and where the plea or verdict does not clearly reveal circumstances of the offending which might be relevant on sentence.
64Importantly, the Chief Justice in Attorney General's Application No 1 of 2002 noted that the court must give effect to the statutory regime. He expressly envisaged that taking into account further offences might increase the sentence imposed for the principal offence in a way which could be said to punish "for" the further offences. In this respect, the logical analysis undertaken by Adams J in Calcutt was inappropriate. What was clearly rejected in Attorney General's Application No 1 of 2002 was an approach which sought to assess possible sentences with respect to the further offences, discount them and then impose an appropriate additional penalty in respect of the principal offence: [34]. It did not reject an effective increase in the sentence for the principal offence on account of the additional criminality revealed in the admitted further offences.
65In the present case the approach explained by Judge Zahra was not that rejected in the guideline judgment: nor, despite the substantially greater sentence imposed on count 1, was there any reason to suppose that the sentencing judge in fact did what he had expressly eschewed. Accordingly, no error has been demonstrated. Ground 1 should be rejected.
66In respect of the other matters raised in these applications for leave to appeal, orders should be made as proposed by Garling J, for the reasons he gives.
67HOEBEN CJ at CL: On 14 February 2013 these four matters came before this Court by way of applications for leave to appeal against sentence. The appeal of Abbas raised the approach by this Court to offences on a Form 1, in accordance with ss31-35 of the Crimes (Sentencing Procedure) Act 1999 (the Act). When these matters came before the Court, counsel for Messrs Amoun and Bodiotis advised that they wished to take the same point. The issue did not arise in the case of Taleb.
68Counsel for those applicants raising the issue, submitted that they did not challenge the correctness of the guideline judgment in Attorney-General's Application under Section 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146 (the guideline judgment). The decisions they challenged in various respects, were R v Grube [2005] NSWCCA 140, Dionys v R [2011] NSWCCA 272 and R v Calcutt [2012] NSWCCA 40. As a result, the applications were heard by a five judge bench. Another reason for a bench of five was that a special leave application in Calcutt was before the High Court (Calcutt v The Queen [2012] HCA Trans 221) and had been adjourned to enable the issue to be argued in this Court.
69In Abbas the issue was raised by the following ground of appeal:
Ground 1: His Honour erred in increasing the sentence in respect of Count 1 in order to reflect the additional criminality of the Form 1 offences.
70In Amoun the relevant ground of appeal was:
Ground 3: His Honour erred in the manner in which he took into account in sentencing for the offence on count 1, the offences on the Form 1 schedule.
71Mr Bodiotis relied upon the same ground of appeal as Amoun.
72These reasons relate only to the Form 1 issue raised by these grounds of appeal. I have had the opportunity of reading the reasons of the Chief Justice on this issue. I respectfully adopt the reasons of the Chief Justice and his conclusion. I wish, however, to make the following additional observations.
Factual background
73The factual background to each application for leave to appeal has been set out by Garling J and I adopt that summary. In these reasons, I have focused on the application for leave to appeal by Mr Abbas because his was the application in which written submissions were filed. Moreover, the approach of the sentencing judge to the Form 1 offences was the same in each matter.
74Mr Abbas pleaded guilty to the following counts:
Count 1 - That he between 7 May 2008 and 10 May 2008 at Auburn in the State of New South Wales did knowingly take part in the supply of an amount of a prohibited drug to wit, 500 grams of Methylamphetamine, being an amount not less than the commercial quantity applicable to that prohibited drug.
Count 2 - That he between 17 May 2008 and 18 May 2008 at Auburn in the State of New South Wales did knowingly take part in the supply of an amount of a prohibited drug to wit, 372 of Methylamphetamine, being an amount not less than the commercial quantity applicable to that prohibited drug.
75Both those counts involved offences contrary to s25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) and each carried a maximum penalty of imprisonment for 20 years and/or a fine of 3,500 penalty units. An offence under s25(2) also carried a standard non-parole period of 10 years.
76The sentencing judge was asked to take into account the following matters on a Form 1.
(i) Between about 11 and 12 May 2008 at Auburn in the state of NSW did knowingly take part in the supply of the commercial quantity of Methylamphetamine (284 g).
(ii) Between about 11 and 12 May 2008 at Auburn in the State of NSW did knowingly take part in the supply of the commercial quantity of 3,4 Methylendioxymethamphetamine (400 g).
(iii) On 21 May 2008 at Auburn in the State of NSW did participate in a criminal group knowing that his participation contributed to criminal activity, contrary to s93T(1) Crimes Act 1900.
(iv) Between 30 and 31 May 2008 at Holbrook in the State of NSW did agree to supply 56 g cocaine contrary to s25(1) of the Drug Misuse and Trafficking Act 1985.
Matters 1 and 2 on the Form 1 carried the same penalty structure as the primary counts, matter 3 carried a maximum penalty of 5 years imprisonment and matter 4 carried a maximum penalty of 15 years imprisonment.
77The sentencing judge dealt with the Form 1 matters as follows:
"Form 1
The proper treatment of Form 1 matters was considered by the Court of Criminal Appeal in the guideline judgment in Attorney-General's Application No 1/2002 [2002] 56 NSWLR 147.
The fact that there are matters to be taken into account on the Form 1 means that in an appropriate case, greater weight should be given to the needs of personal deterrence and the community's entitlement to exact retribution. The point of the process may be to impose a longer sentence or alter the nature of the sentence that would be imposed if the primary sentence stood alone.
Here the criminality in the matters on the Form 1 is substantial. The offender acted as a conduit between the supplier and the purchaser. Significant quantities of prohibited drugs were involved.
There are two further counts involving the commercial quantities of prohibited drugs together with an additional supply offence of some significance. The offender is also charged with participating in a criminal group. Whilst the drugs, the subject of the counts of commercial supply were not ultimately supplied to the first intended recipient they were procured for the purposes of supply to the first intended recipient and ultimately disseminated. The additional criminality in the Form 1 offences needs to be reflected in the sentence imposed for the primary offence.
I will not be specifying a separate sentence for all the matters on the Form 1 but rather take them into account in accordance with s32 Crimes (Sentencing Procedure) Act 1999 (NSW) and I do not impose a separate sentence in that respect." (ROS 36.3 - 37.2)
78Mr Abbas was allowed a discount of 25 percent to reflect the utilitarian value of his pleas of guilty and was sentenced as follows:
(a) In relation to count 1, and taking into account the matters on the Form 1, a term of imprisonment of 7 years with a non-parole period of 4 years.
(b) In relation to count 2, a term of imprisonment of 4 years and 6 months with a non-parole period of 2 years and 6 months.
The two sentences were partially accumulated with the second sentence commencing 1 year after the commencement of the first sentence. Accordingly, the overall sentence was a term of imprisonment with a non-parole period of 5 years and a balance of term of 3 years.
79Counsel for Mr Abbas submitted that the sentencing judge had erred in his treatment of the Form 1 offences when he said:
"The additional criminality in the Form 1 offences needs to be reflected in the sentence imposed for the primary offence."
80He submitted that by "reflecting" the additional criminality of the Form 1 offences in the sentence for count 1, the sentencing judge was in fact punishing Abbas for the Form 1 offences and that this gave rise to error.
81Counsel for Mr Abbas submitted that the correct approach was to treat the Form 1 offences in the same way as courts treat previous convictions, as set out by the plurality (Mason CJ, Brennan, Dawson and Toohey JJ) in Veen v R (No 2) [1988] HCA 14; 164 CLR 465 at 477.
"The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind."
82In support of that submission, counsel for Mr Abbas relied upon the statement by the majority (Gleeson CJ, McHugh, Gummow and Hayne JJ) in Weininger v The Queen [2003] HCA 14; 212 CLR 629 at [32]:
"32 ... A person who has been convicted of, or admits to, the commission of other offences will, all other things being equal, ordinarily receive a heavier sentence than a person who has previously led a blameless life. Imposing a sentence heavier than otherwise would have been passed is not to sentence the first person again for offences of which he or she was earlier convicted or to sentence that offender for the offences admitted but not charged. It is to do no more than give effect to the well-established principle (in this case established by statute) that the character and antecedents of the offender are, to the extent that they are relevant and known to the sentencing court, to be taken into account in fixing the sentence to be passed. Taking all aspects, both positive and negative, of an offender's known character and antecedents into account in sentencing for an offence is not to punish the offender again for those earlier matters; it is to take proper account of matters which are relevant to fixing the sentence under consideration."
83Counsel for Mr Abbas relied upon the statement by Sir Igor Judge (as his Lordship then was) in R v Miles [2006] EWCA Crim 256 at [11] where his Honour said:
"As in so many aspects of sentencing, of course, the way in which the court deals with offences to be taken into consideration depends on context. In some cases the offences taken into consideration will end up by adding nothing or nothing very much to the sentence, which the court would otherwise impose. On the other hand, offences taken into consideration may aggravate the sentence and lead to a substantial increase in it. For example, the offences may show a pattern of criminal activity, which suggests careful planning, or deliberate rather than casual involvement in a crime. They may show an offence or offences committed on bail, after an earlier arrest. They may show a return to crime immediately after the offender has been before the court and given a chance that, by committing the crime, he has immediately rejected. There are many situations where similar issues may arise."
84Counsel for Mr Abbas also relied upon statements concerning offences on a Form 1 by Adams J in Dionys and Calcutt (which were not endorsed by the other two judges in each of those cases). In Dionys Adams J set out the following two paragraphs from Grube:
"36 Many of the 42 offences on the Form 1 involved invasions of residential premises and property stolen was of considerable value. When the court is required to take into account a multiplicity of serious offences, as in this case, it is required to allow for the total criminality revealed by the whole course of the offender's conduct as appropriately reflected in the sentence. If there was, as argued in the present application, a requirement to apply a proportionality or relativity concept, then in some circumstances, including those that arise in the present matter, there would be a risk of the imposition of a penalty that did not adequately reflect the total criminality. The seriousness of such an outcome is apparent for it would potentially, if not actually, tend to bring the administration of justice into disrepute in certain cases by mandating a process or approach that produced a manifestly inadequate sentence determined on an unduly narrow or artificial basis.
37 The number and magnitude of the offences in the Form 1 in the present matter, in my opinion, justified the sentence imposed ... which increased the sentence that was appropriate for the principal offence to reflect the total criminality that took place over a considerable period of time arising from so many offences committed over a widespread geographical area in Sydney and beyond. ..." (R v Grube, Hall J with whom Grove and Howie JJ agreed).
85In relation to that statement in Grube, Adams J said in Dionys:
"10 If the italicised phrase is taken to suggest that, in punishing for the substantive charges, the court can punish additionally for the Form 1 charges, in my respectful opinion it is inconsistent with the principle for which AG's Reference No 1 of 2002 stands. The "total criminality revealed by the offender's conduct" of course includes all the offences including those on the Form 1. It was necessary, as Hall J explained, for the primary judge to have regard to the "elements of personal deterrence and retribution in relation to the Form 1 offences". In my respectful opinion, it is simply not open to punish for the criminality involved in the Form 1 offences, nor to increase the sentence otherwise necessary in respect of the substantive offence to deter the offender from committing offences such as the substantive offence nor to exact retribution for the Form 1 offences. The Form 1 offences inform both the objective nature of the criminality involved in the substantive offence and the subjective features such as remorse and the prospects for rehabilitation and may therefore justify or even require a heavier penalty than would have been imposed had that offence stood alone. But, with respect, that sentence cannot in any sense exact retribution, that is to say, punish, for the Form 1 offences."
86In Calcutt Adams J said:
"41 I have had the advantage of reading the judgment of Latham J in draft. As I understand her Honour, she regards the cocaine charge on the Form 1 as significantly increasing the applicant's criminality and thus as one of the features of the case leading to the conclusion that no lesser sentence is warranted. In Dionys v R [2011] NSWCCA 272 I discussed Re Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146. It is unnecessary to repeat here what I there said but I wish to make some additional comments about this issue.
42 Firstly, it is not in issue, of course, that the Form 1 offence must be taken into account. The crucial question concerns the way in which this is to be done. In my respectful view, the sentence for the primary offence can only be increased to take account of a Form 1 offence to the extent that the commission of that offence indicates that
"the need for personal deterrence ... ought to be given greater weight by reason of the course of conduct in which the accused has engaged ... [and] the community's entitlement to exact retribution for serious offences when there are other offences for which no punishment has in fact been imposed": Re Attorney General's Application No 1 of 2002 per Spigelman CJ at [42].
The first consideration is easily appreciated; so far as the second is concerned it must be understood as subject to the fundamental principle that "the focus throughout must be on sentencing for the primary offence" (ibid at [43]) and the approach that "in some senses [semble, in any sense] sentences were being imposed for the Form 1 offences ...[must be] rejected" (ibid at [45]). The extent to which the second consideration is "always material in the sentencing process" gives some guidance as to the way in which it is to be understood. It is, with respect, clear that his Honour was not suggesting that the offender can be punished for uncharged (though admitted) crimes. Rather, the criminality of the primary crime is to be assessed in light of those other offences. The significance of the other offences will vary from case to case but committing an offence in the course of other criminality is, to a greater or lesser degree, more inherently serious than committing that offence in isolation and the measure of retribution is accordingly greater. The other offences may well also be material to the offender's subjective case. Thus, the Form 1 procedure is no more than a convenient and transparent process that allows the uncharged offences to be taken into account to the extent that they reflect on the seriousness of the primary offence and the other factors relevant to assessing the appropriate sentence for that offence and also giving the offender the certainty that he or she will not be further or separately punished for them.
43 Put somewhat differently, I do not accept that the Court intended in Re Attorney General's Application No 1 of 2002 to qualify in the slightest degree the fundamental principle that a person cannot be punished for offences for which he or she has not been convicted, as the passages to which I have referred demonstrate. Thus, the significance of the Form 1 offences can never be considered in isolation but always and only by assessing their impact on the relevant issues which fall to be considered in sentencing for the primary offence and for that offence alone. Those issues are not expanded, though of course they might well be informed, by the commission of the Form 1 offence. I therefore respectfully disagree with interpretations of Re Attorney General's Application No 1 of 2002 that give to the reference to retribution the effect, in substance if not in form, that directly or indirectly subverts the fundamental principle to which I have referred.
44 In the present case, therefore, I formed the view that, although the cocaine offence is a serious one, it does not significantly increase the need for personal deterrence to a greater degree that otherwise is the case considering the criminality involved in the primary offence. Nor does it seem to me to add any significant weight to the measure of criminality involved in that offence."
87Counsel for Mr Abbas submitted that not only were those statements of principle, particularly by Adams J, consistent with the Act but they were also fully consistent with the analysis by Spigelman CJ in the guideline judgment.
88Senior counsel for Mr Amoun did not go so far in his submissions. He submitted that the error in the sentencing judge's approach was that the words "the additional criminality in the Form 1 needs to be reflected in the sentence imposed for the primary offence", were inconsistent with the preceding paragraphs which were consistent with the guideline judgment. The error in the sentencing judge's approach, he submitted, was that the words "reflected in the sentence" indicated that he was sentencing for the Form 1 offences. He submitted that if the words used by the sentencing judge meant that the additional criminality in relation to the Form 1 offences needed to be reflected in itself in the sentence being imposed, that constituted error and was inconsistent with the guideline judgment. Senior counsel for Mr Amoun, however, was prepared to accept that in par [42] of the guideline judgment the reference to "the community's entitlement to expect retribution for serious offences" was a reference to "serious offences" on the Form 1. In that respect, he differed from the submissions put on behalf of Mr Abbas.
89Senior counsel for Mr Amoun submitted that the reference to the "principle of totality" at the end of [42] of the guideline judgment, should be read as a reference to the principle of proportionality. He submitted that this meant that the sentencing judge could not impose a sentence that was longer than that which was capable of being proportional to the criminality in the principal offence. He accepted that such an approach was inconsistent with the decision in Grube.
Consideration
90The start point for the issue raised by these grounds of appeal is the statute. It applies to proceedings for an offence where the Prosecutor files in court a document which specifies other offences with which the offender has been charged, but not convicted (s32). Section 33 relevantly provides:
"33(1) When dealing with the offender for the principal offence, the Court is to ask the offender whether the offender wants the court to take any further offences into account in dealing with the offender for the principal offence.
(2) The court may take a further offence into account in dealing with the offender for the principal offence:
(a) If the offender:
(i) admits guilt to the further offence, and
(ii) indicates that the offender wants the court to take the further offence into account in dealing with the offender for the principal offence; and
...
(3) If the court takes a further offence into account, the penalty imposed on the offender for the principal offence must not exceed the maximum penalty that the court could have imposed for the principal offence had the further offence not been taken into account."
91The phrase "take into account" is used in the statute in a way which leaves open a wide range of factors, including the weight to be given to a particular matter, and how it may be taken into account in a particular case. What the statute makes clear is that Parliament has imposed little constraint on how the court will take the Form 1 offence or offences, into account. It follows, therefore, that the statutory construction is not to be read down by glosses and language from particular cases. What the guideline judgment makes clear is that the court was unwilling to impose the sort of restrictions which were sought by the Attorney-General, but otherwise left at large how the offences on the Form 1 were to be treated.
92Support for that approach can be found in Weininger, where the majority considered the phrase in s16A(2) of the Crimes Act 1914 (C'th) which obliged a court sentencing a federal offender "to take into account" such matters "as are relevant and known to the court". At [20] the majority said:
"20 ... Although s16A(2)(a) requires a sentencing judge to take account of the nature and circumstances of the offence, that requirement is not absolute. They are to be taken into account only to the extent that they are relevant and known to the court."
93It is clear from other passages in the majority judgment, including [32] upon which counsel for Mr Abbas relied, that the phrase "to take into account" in s16A(2) was applied in a very broad way without significant qualification.
94At the very least, a statutory requirement or permission to "take [a matter] into account" requires that "attention [be paid to it] in the course of [the] intellectual process" (Metropolitan Water Board v Assessment Committee of the Metropolitan Burrough of St Marylebone (1923) 1 KB 86 at 99). Once s33 of the Act is engaged, it operates upon the court in "dealing with the offender". In this case the relevant "dealing" was the imposition of a sentence.
95As indicated, nothing in the express text of the statute purports to limit, in the manner contended for by the applicants, the way in which the sentencing judge was able to "take into account" the Form 1 offences. That is not the end of the analysis as consideration also needs to be given to established principles concerning the imposition of sentences. It is in that context that the guideline judgment becomes important. The guideline judgment did not purport to, nor did it exhaustively analyse the phrase "to take into account", as used in the Act. It did, however, by reference to sentencing principles, establish a number of propositions which are helpful when seeking to apply that phrase.
96In general terms, it approved an approach which focused on the principal offence (the one on the indictment) and sentenced for that offence on the basis of an "instinctive synthesis" of factors, including the amount of increase in penalty due because a Form 1 was involved. In other words, it held that sentencing for matters involving a Form 1 called for a principal offence based approach in which the penalty is increased because of the use of the Form 1 procedure.
97The guideline judgment made the following points:
"18 A number of propositions with respect to the process of taking into account matters on a Form 1 are well established and are uncontroversial. First, the entire point of the process is to impose a longer sentence (or to alter the nature of the sentence) than would have been imposed if the primary offence had stood alone. Secondly, it is wrong to suggest that the additional penalty should be small. Sometimes it will be substantial.
...
23 The Court must, of course, give effect to the statutory regime. However, it does so in a context in which the basic principle of the common law is that no-one should be punished for an offence of which he or she has not been convicted. (R v De Simoni (1981) 147 CLR 383 at 389, 395-396; R v Olbrich (1999) 199 CLR 270 at [18].) The offences on a Form 1 constitute an admission of guilt, but there is no conviction.
24 The 'top down' approach which, notionally, identifies an appropriate penalty for the full gamut of offences, appears to me to be inconsistent with this principle. No doubt it can be said that even the 'bottom up" approach involves, in a sense, punishment 'for' the Form 1 offences, because the penalty for the primary offence is increased.
...
29 I do not understand Wood CJ at CL's reference in Bavadra to the "totality of criminality" to suggest that a sentencing judge should determine sentences for all the offences before the judge, whether on the indictment or on the Form 1. I understand his Honour to have intended no more than the proposition for which Simpson J referred to Bavadra as authority in R v Harris (2001) 125 A Crim R 27 at 31 [23] that a sentencing judge "... should give due recognition to the gravity of those offences". If, contrary to my understanding, the reference in Bavadra was intended to suggest that a sentencing judge was imposing punishment for the Form 1 offences, I would respectfully disagree that this is permissible under the statute. The focus, as I will show below, must be on "the principal offence" alone.
...
35 The starting point of the analysis must be the terms of the statutory power. In my opinion, the power is inconsistent with the 'top down' approach proposed in the Attorney's submissions, as quoted above. The statutory scheme, like its common law predecessor (analysed most comprehensively by Neasey J in R v Jones (esp at 131-133)) emphasises that the court is concerned and concerned only with imposing a sentence for "the principal offence".
...
· By s33(3) the fact that the Court is only sentencing for the principal offence is confirmed by the restriction that the court cannot impose a sentence greater than the maximum penalty for the principal offence.
...
42 The position, in my opinion, is that, although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The Court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community's entitlement to extract retribution for serious offences which there are offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence. There are matters which limit the extent to which this is so. The express provision in s33(3) referring to the maximum penalty for the primary offence is one. The principle of totality is another.
43 I did not intend these observations to be exhaustive of the elements upon which the fact of other offences may impinge. However, no additional elements for which that could be so have been identified in submissions to this Court. The important point is that the focus throughout must be on sentencing for the primary offence.
44 The manner and degree to which the Form 1 offences can impinge upon elements relevant to sentencing for the principal offence will depend on a range of other factors pertinent to those elements and the weight to be given to them in the overall sentencing task. For that reason it will rarely be appropriate for a sentencing judge to attempt to quantify the effect on the sentence of taking into account Form 1 offences."
98It follows from the final dot point in [35] and second last sentence in [42] of the guideline judgment that the proportionality argument put forward by senior counsel for Mr Amoun is contrary to the guideline judgment. In that respect, the ultimate conclusion in Grube, when rejecting the proportionality submission raised in that case, is fully consistent with the guideline judgment. Since senior counsel for Mr Amoun did not challenge the correctness of the guideline judgment that part of his submissions should be rejected.
99It is then necessary to consider the primary submission by counsel for Messrs Abbas, Amoun and Bodiotis that it is an error to take into account the criminality of the Form 1 offences when sentencing for the principal offence. The effect of their submissions is that to do so, is to "punish" for the Form 1 offences, which is contrary to sentencing principles, i.e. to punish for offences of which a person has not been convicted. In accordance with that approach and in order to give the Form 1 procedure some substance, counsel for Mr Abbas submitted that Form 1 offences should be treated in an analogous way to previous offences, as discussed in Veen No 2.
100That submission should be rejected. As a start point, there is no authorisation for such a restriction in the statute. Such an approach is inconsistent with [42] - [44] of the guideline judgment. Apart from the express reference therein to personal deterrence, the reference to the extraction of "retribution for serious offences" can only be a reference to the offences on the Form 1 being offences "for which no punishment has in fact been imposed".
101The attempt to support the submission by reference to what was said by the majority in Weininger at [32] is misconceived. As already indicated, the approach of the majority to the phrase "take into account" is broad with little by way of qualification. At [32] the majority was not seeking to state a principle with general application, but was doing no more than providing an illustration of how the particular statement of facts in that case could be used by reference to sentencing principles. Weininger does not assist, other than by confirming the broad application of the phrase "take into account".
102This leaves for consideration the point relied upon by all three applicants that to take into account the criminality of the Form 1 offences and as a result, to increase the sentence for the principal offence, is to punish for the Form 1 offences. This, so the submission proceeds, cannot be correct because a fundamental consideration when applying sentencing principles, is that "no one should be punished for an offence of which he or she has not been convicted" (R v Olbrich [1999] HCA 54; 199 CLR 270).
103The difficulty with the submission is that it is largely based on semantics, i.e. the use of the word "punish", and it fails to have regard to the words of the statute, the effect of the guideline judgment and the purpose of the statute.
104As Spigelman CJ noted in the guideline judgment at [24], as a matter of semantics it can be said that any increase in the sentence imposed for the principal offence by reference to Form 1 offences, could be characterised as punishment "for" the Form 1 offences. Such an approach, however, gives too broad a meaning to the concept of "punish" and would apply to any increase in the sentence for the principal offence based on the Form 1 offences. To follow such an approach, would defeat "the entire point of the [Form 1] process" (guideline judgment [18]).
105What the guideline judgment makes clear is that no analysis of each offence on the Form 1 is to be carried out for the purpose of sentencing for that offence as one would if the offence was included on the indictment. That is what would occur on the "top-down" approach, which was expressly rejected. As the guideline judgment made clear, however, regard can be had in a general way to factors associated with the Form 1 offences, including their criminality when sentencing for the primary offence.
106As the statute and the guideline judgment make clear, the point of the Form 1 process is to increase the sentence for the primary offence by taking into account the offences on the Form 1. The advantage for the State is that offences are finalised, but the fact that their commission has been admitted by the offender is taken account of when he or she is sentenced for the principal offence. The advantage for the offender is that he or she is not sentenced for the Form 1 offences, nor "punished" for them, even though they are "taken into account" in relation to the primary offence for which he or she is sentenced. The end result for the offender is a sentence which is less than if he or she were sentenced for all of the offences and the offender emerges from the process with a "clean slate". The guideline judgment provided direction for how that process was to be implemented.
107It follows from the above analysis that the sentencing judge did not err in the way in which he approached the offences on the Form 1 in relation to Mr Abbas. Having summarised the effect of par [42] of the guideline judgment, his Honour "took into account" the Form 1 offences and increased the sentence for the principal offence accordingly.
108The grounds of appeal relating to the Form 1 in the applications of Messrs Abbas, Amoun and Bodiotis should be dismissed.
109Otherwise I agree with the reasons and orders proposed by Garling J with respect to the other Grounds of Appeal of Messrs Abbas, Amoun and Bodiotis and Taleb.
110GARLING J: Four applicants, Mohammad Abbas, Khaled Taleb, Con Bodiotis and Ghassan Amoun each seek leave to appeal against the sentences imposed on them in the District Court of NSW by Zahra SC DCJ between October 2011 and March 2012.
111Each of the applicants relies upon separate grounds for their application. It will be necessary to consider their applications separately. However, each of the applications raises some common issues of fact and, importantly, except for Taleb, each application raises a common ground dealing with the proper application of the Form 1 scheme described in Part 3, Division 3 of the Crimes (Sentencing Procedure) Act 1999. It was because of the commonality of these issues of fact and law that the applications were heard together.
112Each of the applicants pleaded guilty to one or more offences relating to dealing in drugs. Except for Taleb, each of the applicants also asked the sentencing Judge to take into account other offences on a Form 1, pursuant to s 32(1) of the Sentencing Procedure Act.
113As will become apparent, the drug offences all occurred at the direction, and under the control, of Bassam Hamzy, an individual who, at the relevant time, was a prisoner in Lithgow Correctional Centre, who conducted his criminal activities whilst in custody.
114Hamzy's activities, which involved each of the applicants, relevantly consisted of six transactions of the sale and supply of drugs. It is convenient to summarise each transaction, and identify the applicants involved, and their roles.