Abbas, Bodiotis, Taleb and Amoun v R

Judgment 1JOHNSON J: The Applicant, Joy Lorraine Knight, seeks an inquiry into sentence under s.78(1) Crimes (Appeal and Review) Act 2001 ("Appeal and Review Act"). The Applicant submits that her matter ought be referred to the Court of Criminal Appeal as an appeal under the Criminal Appeal Act 1912. 2The Applicant contends that there is a doubt or question as to a mitigating circumstance in her case, namely that the Applicant's sentence was infected by error in that undue weight was accorded to the standard non-parole period, contrary to the decision of the High Court of Australia in Muldrock v The Queen [2011] HCA 39; 244 CLR 120. 3It is not necessary for the purposes of this application to canvass the nature of the process under s.78 Appeal and Review Act. It is sufficient to observe that the function I am exercising is administrative in nature, and it is not necessary to determine whether there is merit in the grounds of the application that might warrant interference in the sentence. Provided a doubt or question arises, it is appropriate that the application be granted. 4The Applicant pleaded guilty on the day fixed for trial to an offence of supplying a large commercial quantity of a prohibited drug (ecstasy) contrary to s.25(2) Drug Misuse and Trafficking Act 1985. The maximum penalty for this offence is life imprisonment and a standard non-parole period of 15 years applies. 5The primary offence arose from the arrest of the Applicant on 29 September 2005, when police located 961 grams of MDMA (ecstasy) in premises used by her. This amount is almost double the large commercial quantity of 500 grams. 6The Applicant requested the sentencing court to take into account on a Form 1, four further offences of supplying various prohibited drugs, being: (a) 440 grams of ketamine (where the indictable quantity is 12.5 grams and the commercial quantity is 1.25 kilograms); (b) 139 grams of methylamphetamine (where the indictable quantity is five grams and the commercial quantity is 250 grams); (c) 66 grams of cocaine (where the indictable quantity is five grams and the commercial quantity is 250 grams); and (d) a quantity of cannabis. 7At first instance, the Applicant was sentenced on 24 May 2007 by her Honour Judge Murrell SC to a head sentence of 10 years' imprisonment, with a non-parole of six years commencing on 29 September 2005 and expiring on 28 September 2011. 8The Crown appealed against sentence and, on 24 September 2007, the Court of Criminal Appeal allowed the Crown appeal and sentenced the Applicant to a term of 14 years and four months' imprisonment, with a non-parole period of 10 years expiring on 28 September 2015: R v Knight; R v Biuvanua [2007] NSWCCA 283; 176 A Crim R 338. 9The Applicant contends that a doubt or question as to a mitigating circumstance arises from Muldrock error which is said to be discernible in the decision of the Court of Criminal Appeal. The leading judgment of the Court was given by Howie J, with McClellan CJ at CL and Hidden J agreeing with additional comments. 10The nature and circumstances of the Applicant's offending behaviour was described by Howie J at 342-343 [14]-[17]: "14 The dates specified on the charge brought against Ms Knight represented the period over which police were monitoring her telephone calls. The date of 29 September 2005 was the date upon which police raided premises used by Ms Knight and referred to by her and others as the 'office' from where she carried out her drug business. The amount of drugs referred to in the charges of both respondents represented the amount of ecstasy found in those premises at the time of the raid. It was 961 grams, about twice the large commercial quantity specified for that drug. The charges referred to in the Form 1 related to other drugs found in the 'office' at the time of the raid and of a kind that Ms Knight was supplying over the period of surveillance. 15 The agreed facts described Ms Knight as 'the head of a drug syndicate which involved a number of men who acted as runners' and who sold drugs on her behalf returning the profits to her. She supplied quantities of various drugs and was even prepared to arrange special mixtures depending on a particular customer's needs. She used persons, including Mr Biuvanua, to help sort, weigh and package the drugs. It is clear from the phone calls that she was prepared to supply very significant amounts of drugs that were obviously going to be on-supplied. Some of her customers were buying for personal use. The 'office' was open at night to allow the distribution of drugs by runners although persons also attended the premises to purchase drugs for themselves. Ms Knight maintained a ledger in which she recorded her transactions and this indicates that at times she supplied significant amounts of drugs to particular customers. 16 The transcripts of the telephone calls are illuminating as to the nature of Ms Knight's enterprise. They contain references to the hours when the 'office' was open for business: it was not open on Mondays. Ms Knight told her partner in one of the calls that she was 'going to work now' at the 'office'. It appears that she employed a cousin to work for her who, according to Ms Knight, loved being back at work. Employees enquire when she would be requiring them to work and others report to her on the amounts of drugs they packaged on particular shifts and she comments on their performances. She chats to many of her customers as personal friends and offers discounts and assurances as to the quality of the drugs. She indicates to one customer that she is prepared to make up a particular combination of drugs, a 'party pack', for use and supply by him on a particular occasion. She is so self-assured that she indicates to one customer that she does not like talking in code. 17 The statement of facts tendered before the judge stated, accurately: 'Knight was in complete control of this syndicate and (demonstrated) a flagrant disregard for the law. It is clear from the telephone intercepts that Knight (considered) herself beyond the reach of the police'." 11In support of the present application, the Applicant points to a number of passages in the judgment of the Court of Criminal Appeal. Howie J stated at 346 [39]: "The Judge described the objective seriousness of the offence committed by Ms Knight as 'at least in the mid-range of objective seriousness'. The Crown on this appeal conceded that 'her Honour correctly assessed the objective seriousness of the offending'. With respect to both the Judge and the Crown Prosecutor, it is impossible to understand how such an assessment fulfils the obligation on a trial judge in applying the standard non-parole provisions to assess the objective seriousness of the offence committed. Presumably the Judge thought that the offence was somewhere above midrange but believed that she did not have to assess the exact level of seriousness because it was sufficient that she found it was 'at least mid-range'. But with respect, if that is how her Honour approached the matter, she was clearly in error. Although such an assessment cannot be made with absolute precision, it must at least indicate whether the offence is assessed as below, of, or above midrange of seriousness with some indication as to the degree to which it departs from the midrange if that is the finding." 12Reference was made to the judgment of Howie J at 346-347 [41]-[42]: "41 On this summary of the criminal activity in which Ms Knight was involved, it is difficult to see how it could be assessed as other than above midrange. When also is added the following facts: that the conduct occurred over a month and was not an isolated episode of offending; that Ms Knight employed other persons to pack and prepare the drugs for supply; and that the amount of ecstasy found in the office on her arrest was almost twice the commercial quantity, it was in my opinion an offence that was objectively well over the midrange of seriousness although not at the upper range. A determination that it was 'at least in the mid-range of seriousness' was in my opinion not a sufficient assessment of the objective seriousness of the offence and was an error in the exercise of the sentencing discretion. 42 However, as the Crown did not take issue with the Judge's assessment but to the contrary accepted its correctness, this Court should give the benefit of the finding made by the Judge to Ms Knight and accordingly act on the basis that it was within the midrange of seriousness." 13The Applicant relied, in particular, upon observations of Howie J at 347 [45]-[47]: "45 In my opinion the sentence imposed upon Ms Knight is manifestly inadequate to a very significant degree. This is so even if the Court accepts in the respondent's favour that the objective seriousness of the offence was in the midrange of seriousness. There were a number of aggravating factors, as her Honour noted, and little but the discount for the plea of guilty of about 10 per cent and some prospect of rehabilitation in mitigation. Yet as against the guidepost of a standard non-parole period of 15 years, the respondent is required to serve only 6 years before being eligible for release to parole. 46 The Judge failed to give adequate reasons for departing from the standard non-parole period notwithstanding the requirements of s 54B(4). It is necessary to remind sentencing judges once again that the section requires the court to 'identify in the record of its reasons each factor that it took into account' (my underlining). This Court has repeatedly noted that it is insufficient compliance with the section merely to state that the offender has pleaded guilty: R v Mills (2005) 154 A Crim R 230; R v Zegura [2006] NSWCCA 230. Had the Judge attempted to fulfil the task required of her, she might have found it difficult to indicate those factors that permitted her to reduce the standard non-parole period to the degree she did for an offence that was 'at least within the midrange of seriousness'. 47 In my opinion it is clear that the Judge failed to give sufficient weight to the standard non-parole period even though it provided only a guidepost or indicator of the appropriate sentence. Even after a plea of guilty there must be an appropriate relationship between the standard non-parole period and the objective criminality of the offence regardless of the other matters that may be taken into account by way of mitigation. When the objective criminality is above midrange then, of course, the maximum penalty prescribed for the offence becomes of more significance." 14Finally, the Applicant pointed to the judgment of Howie J at 348 [50]: "In my opinion, had there been a proper evaluation of her criminality as being well above midrange in seriousness, an appropriate discount for her plea of guilty of 10 per cent and even with a finding of special circumstances, the appropriate non-parole period should have been at least twice that imposed by her Honour. The courts must treat the standard non-parole provisions seriously, as Parliament intended, and bring them to bear in a meaningful way upon the sentence to be imposed even after a plea of guilty. If the Judge had approached the sentencing of Ms Knight in that way she could not have imposed a sentence anywhere near that which she did." 15The Applicant submits that a relevant doubt or question has arisen in this case because the leading judgment in the Court of Criminal Appeal has given primary or determinative significance to the standard non-parole period. Had the Crown appeal been considered in accordance with the decision in Muldrock, it was submitted that a different and lesser sentence would have resulted. 16The NSW Attorney General submitted, firstly, that a doubt or question as to a mitigating circumstance on sentence cannot arise from an error of law in sentencing and that, in any event, there is insufficient evidence of Muldrock error to warrant referral to the Court of Criminal Appeal. 17The first submission cannot be sustained in light of the decision of the Court of Appeal in Sinkovich v Attorney General of NSW [2013] NSWCA 383. 18The Attorney General submitted that, when considering a Part 7 application based upon a claim of Muldrock error, careful consideration must be given to the role that the standard non-parole period played in the sentencing process. It was accepted that, in allowing the Crown appeal, the Court of Criminal Appeal accorded significance to the standard non-parole period. It was acknowledged, as well, that the Court of Criminal Appeal placed more weight on the significance of the standard non-parole period than the sentencing Judge. However, it was submitted that the High Court in Muldrock observed that the standard non-parole period was to be taken into account as a legislative guidepost. The Attorney General relied upon Butler v R [2012] NSWCCA 172 at [26]-[28] in support of the contention that no doubt or question concerning sentence arose in this case. 19The Applicant was sentenced following her plea of guilty. Unlike many other matters which have given rise to Part 7 applications, this is not a case where the Applicant was sentenced after trial with the principles in R v Way [2004] NSWCCA 131; 60 NSWLR 168 having full application. Even after Muldrock, the standard non-parole period may play a very significant role on sentence in a particular case: R v Nguyen [2013] NSWCCA 195 at [63]. This is such a case. 20The passages from the judgment of Howie J relied upon by the Applicant demonstrate that the Court of Criminal Appeal placed significant emphasis upon the standard non-parole period as a factor on sentence with respect to the Applicant. As the extract from the judgment (at [13] above) makes clear, his Honour used the standard non-parole period as a "guidepost", and an important one, an approach which is not inconsistent with Muldrock. This was understandable given the gravity of her offending conduct, involving her as a head of a drug syndicate engaged in the organised supply of different drugs for substantial gain. 21The Form 1 offences added a feature to the case, demonstrating the multi-faceted nature of the Applicant's drug supply business. The Form 1 offences were significant matters to be taken into account on sentence for the primary offence, in accordance with the principles in Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115. 22This is not a case where a two-stage approach to sentencing has been taken. Rather, the application relates to a decision where the Court of Criminal Appeal formed the view that the standard non-parole period played a most significant part on sentence, having regard to all the circumstances of the case and, in particular, the objective gravity of the offence. 23I bear in mind that my function on this application is not to determine the merits of any appeal and the question whether the Applicant's sentence ought be reduced. The question on this application is whether there is a sense of unease or disquiet giving rise to a doubt or question as to a mitigating circumstance in the case, being alleged Muldrock error. 24Having considered the matters raised on the application, I am not satisfied that a doubt or question arises for the purpose of s.79(2) Appeal and Review Act. 25The application is refused.