Abel v R

Introduction

1. On 29 May 2019, Mr Jacob Abel (the applicant) was sentenced by his Honour Acting Judge Delaney in the District Court sitting at Parramatta. He seeks leave to appeal against the aggregate sentence imposed on that day.
2. The applicant pleaded guilty to the offence of supplying a prohibited drug, namely cocaine ("the drug offence"), and to the offence of dealing with the proceeds of crime ("the proceeds offence"). The maximum penalty for the drug offence, pursuant to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW), is imprisonment for 15 years, and there is no standard non-parole period. As for the proceeds offence contrary to s 193(C)(2) of the Crimes Act 1900 (NSW), there is a maximum penalty of imprisonment for 3 years.
3. The applicant received an aggregate term of imprisonment of 2 years 5 months (29 months), to be served by way of an intensive correction order, and subject to a home detention condition. The indicative sentences provided by the learned sentencing judge were as follows: a term of imprisonment of 1 year 10 months (or 22 months) for the drug offence, and a term of imprisonment of 12 months for the proceeds offence. Each of those indicative sentences had had a 25% utilitarian discount applied to it, with the result that their starting points were 2 years 6 months (30 months) and 1 year 4 months (16 months) respectively.

Background

1. The matter had a most unusual procedural history. On 18 February 2019 (that is, three months before sentence was ultimately imposed), after having conducted orthodox proceedings on sentence, the sentencing judge came close to the conclusion of his remarks on sentence ("ROS 1"). In the course of those remarks, his Honour noted that, at that stage, the proceeds offence was to be taken into account on sentence by way of a Form 1 "attached" to the drug offence at the request of the applicant. The sentencing judge also reviewed in ROS 1, concisely but sufficiently, the charges, the maximum penalties, the timing of the pleas of guilty, the agreed facts, the "extent of criminality", the subjective features, the submissions made on behalf of both parties, the seriousness of offences of supplying prohibited drugs, the importance of deterrence, and an assessment of the drug offence being "below mid-range of objective criminality".
2. His Honour remarked that he proposed to impose a head sentence of imprisonment of 2 years 5 months (or 29 months), with a non-parole period of 1 year 4 months (or 16 months), a significant variation in the statutory ratio having been granted.
3. That foreshadowed head sentence exceeded the maximum period of 2 years with regard to which an ICO could be imposed for a single offence: see s 68 of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("CSPA"), as it was as at February 2019, and as it remains. However, that particular provision entitled and entitles a sentencing judge to order that a sentence of a duration of up to and including 3 years be served by way of an ICO, if either an aggregate sentence is imposed, or if a total head sentence pertaining to two or more offences is imposed: see s 68(2) and s 68(3)(b). In the latter case, the duration of each individual sentence cannot be longer than 2 years: see s 68(3)(a) of the CSPA.
4. Near the conclusion of the proceedings on sentence ("POS") on 18 February 2019, but before the imposition of the foreshadowed sentence, the sentencing judge asked the parties whether there was "anything further" (POS 18.2.19, 2.43). His Honour then went on to state that, as he had decided that the single head sentence was to be of 29 months, submissions made by defence counsel about alternatives to full-time custody could not be "considered because it is not a sentence of two years or less" (POS 18.2.19, 3.1).
5. Defence counsel responded that "your Honour is sentencing for two separate offences" (POS 18.2.19, 3.4). That was said even though, to repeat, in truth one offence was being taken into account on sentence for the other. The prosecutor disagreed with the proposition. Shortly thereafter, defence counsel submitted that the applicant could "withdraw his request to the Court to take an offence into account on the Form 1 and seek to have that offence dealt with on a separate indictment" (POS 18.2.19, 3.21). He also sought to have the matter adjourned for the purpose of obtaining a sentencing assessment report to consider the applicant's suitability for an ICO with a home detention condition, as against the possibility that that alternative to full-time imprisonment became open in terms of quantum. Eventually, the application was granted with the consent of the Crown. The matter was adjourned until 27 March 2019.
6. On that latter occasion, the applicant was represented by Queen's Counsel. In the absence of a transcript of the events of February 2019, defence counsel recounted what had happened in the past. The Crown presented a fresh indictment, containing the two counts detailed by me in the early part of this judgment. Senior counsel assured the sentencing judge that the procedure adopted was not irregular, because judgment had not been entered with regard to the earlier proposed sentence of full-time imprisonment (POS 27.3.19, 3.1). The applicant was thereafter rearraigned, and pleaded guilty to both counts. The original "Crown bundle", which had been returned to the prosecutor then appearing, was returned to the sentencing judge, with the now superfluous Form 1 removed by the prosecutor (POS 27.3.19, 3.34).
7. The prosecutor maintained the position that a full-time custodial sentence should be imposed. As for the proceeds offence, the prosecutor said that "it's not a trivial offence, though, in the Crown's submission, this offending would fall on the lower end of the range of objective seriousness" (POS 27.3.19, 4.20). In response, senior counsel said that "the proceeds of crime offence simply relates to the reasonable grounds to suspect. The surrounding circumstances gave those grounds. Secondly, he has the benefit of - these matters have all been put before your Honour, anyway" (POS 27.3.19, 4.29). Nothing more was said by senior counsel about the objective seriousness of the proceeds offence, even though it had "moved" from being an offence on a Form 1, with regard to which no sentence would be imposed, to being an offence that was to be dealt with substantively.
8. The applicant was found to be suitable to serve his term of imprisonment by way of an ICO with a condition of home detention. On 29 May 2019, the sentencing judge imposed an aggregate term of 29 months to be served in that way.
9. As one might expect, the second set of remarks on sentence ("ROS 2") adopted much of the contents of the first, in order to reduce fruitless repetition (ROS 2, 2.2).
10. It is the aggregate head sentence of 2 years 5 months, to be served by way of an ICO, that is subject of the application for leave to appeal.

Objective features

1. I turn now to recount the objective features of the matter, in accordance with the conclusions arrived at in both remarks on sentence, which themselves adopt the documentary agreed facts.
2. On the afternoon of 27 October 2017, the applicant was driving a Toyota Hilux in Revesby, a suburb in the south-western region of Sydney. He was doing so in an erratic manner.
3. The police stopped the vehicle and had a conversation with the applicant, who was its sole occupant.
4. The applicant appeared to be "nervous and agitated". He informed the police that it was not his car, after they told him that he and his vehicle would be searched. The police noted that the vehicle was, in fact, registered to another man, and the registration had been cancelled earlier that month.
5. The police located $1,515 in cash inside a wallet. The police questioned the applicant about the money. He replied that the amount was a combination of money that he had received from work and some of his own personal cash. He indicated that he did not receive payslips from his workplace.
6. Upon searching the vehicle, the police located a small cavity containing a clear plastic bag, inside of which there were six smaller bags containing 3.89 grams of cocaine. The cavity was under the panelling of the window control in the driver's side door. The applicant was placed under arrest. When questioned about the bags, he said that "I don't know anything about it."
7. The police then went on to find two further clear, small plastic bags containing 1.36 grams of cocaine in a further hidden cavity in the centre console of the vehicle.
8. There was also a blue Nokia mobile phone found in the pocket in the rear of the front passenger seat. The police noted that it was receiving a number of messages. An analysis of the text messages of the mobile phone revealed that an identical text message had been sent from that phone to a number of different phone numbers. It was recounted in ROS 1 as follows: "Hi guys. We had some high‑tech service line issues. It's all been fixed up. Back on, ready for your services. Ring through to check your device is working correctly. LOL" (ROS 1, 2.9).
9. The applicant was subsequently taken to Bankstown Police station and charged.

Subjective features

1. Again, the following summary is derived from both sets of remarks on sentence.
2. At the time of sentencing, the applicant was aged 36 years old.
3. Besides some driving matters, he had no criminal record and was affirmatively of good character.
4. The sentencing judge relied upon a psychologist's report and a Community Corrections report to establish the following matters.
5. The applicant grew up in Lurnea, in the south-western suburbs of Sydney. He experienced no particular problems in his childhood. He was a married man and a father of two children, and played an active role in his community.
6. He attended school up until Year 11, at which stage he left to become an apprentice in one of his father's businesses, pursuing shop-fitting and detailed joinery. He had also been employed as a courier for Bonds Express and Toll Fast for several years, and was working as a contractor for Sweeds Construction Services at the time of the offending.
7. Although the applicant had experimented with alcohol and cocaine, he was not found to be experiencing any substance or alcohol abuse problems.
8. The sentencing judge acknowledged that the documentation revealed that there was some evidence of a genuine sense of remorse, and that the applicant was at a low risk of reoffending.
9. As I have said, a 25% discount was afforded for the utilitarian value of the early pleas of guilty. GROUNDS In support of the application for leave to appeal against sentence, the following grounds were notified and pressed at the hearing: GROUND 1 His Honour erred in failing to find that the applicant had good prospects of rehabilitation and was unlikely to reoffend, in accordance with s 21A(3)(g) and (h) Crimes (Sentencing Procedure) Act 1999; GROUND 2 His Honour erred in failing to assess the objectivity to assess the objective gravity of the two offences [sic]; GROUND 3 His Honour's assessment of the objective gravity of the supply offence was not open; GROUND 4 The sentence imposed was manifestly excessive. GROUND 1 His Honour erred in failing to find that the applicant had good prospects of rehabilitation and was unlikely to reoffend, in accordance with s 21A(3)(g) and (h) Crimes (Sentencing Procedure) Act 1999;
10. With regard to all grounds, counsel for the applicant accepted that both sets of remarks on sentence were open to consideration in this Court, even though only one of them led to the imposition of sentence.
11. In written submissions, he asserted that the sentencing judge only briefly dealt with the material put forth at first instance that demonstrated the applicant's good prospects of rehabilitation and unlikelihood of reoffending. It was said that the sentencing judge did not explicitly indicate whether he accepted the opinions of the authors of the report, nor set out the impact the material had upon the sentencing exercise.
12. Counsel submitted that the substantial sentence imposed, combined with the absence of any explicit findings pertaining to the applicant's prospects of rehabilitation and unlikelihood of reoffending, is indicative of the failure of the sentencing judge to address those two mitigating factors.
13. At the hearing before this Court, counsel for the applicant emphasised that there is no unequivocal statement of acceptance or rejection of contrition and remorse, nor of the lesser risk of recidivism that the applicant posed. Despite the absence of any adverse comments made by the sentencing judge when the two mitigating factors were discussed in ROS 1, counsel argued that his Honour should have explicitly expressed approval or disapproval of the evidence provided in relation to those factors.
14. In my opinion, this ground has no merit. On a sensible reading, the sentencing judge did make positive findings about the applicant's prospects of rehabilitation and his unlikelihood of reoffending. The sentencing judge noted that there was some evidence of the assertion that the applicant was "contrite and remorseful" (ROS 1, 6.3). With respect to recidivism, he stated that "the reports of the psychologist and the sentencing assessment report say that he is at low risk of reoffending" (ROS 1, 6.7). While counsel pointed to the absence of explicit acceptance of these factors, the failure of the sentencing judge to use words to the effect of "I accept those propositions" is of no moment: one can very readily infer that, in recounting those positive submissions without demurrer, the sentencing judge was accepting them.
15. The lack of any adverse or even querying comment by his Honour when recounting the applicant's favourable prospects of rehabilitation and reduced risk of reoffending, combined with the imposition of an ICO for offences that carry maximum penalties of 15 and 3 years, each of which was dealt with substantively, permits one readily to infer that his Honour took the factors into consideration when imposing the aggregate sentence.
16. I would not uphold ground 1. GROUND 2 His Honour erred in failing to assess the objectivity to assess the objective gravity of the two offences [sic];
17. In order to permit understanding of this ground, I first set out the relevant portion of ROS 1 that deals with the drug supply offence (at that stage, of course, that was the only offence that was before the sentencing judge substantively): "The first question for consideration is the extent of criminality of this offence. Quite clearly from the agreed facts, there is evidence of activity related to him from mobile phones in his possession, which might, potentially, suggest activity greater than what appears in the agreed facts, but I am not sentencing him for that, merely for the matters which appear in the agreed facts. What was found in the agreed facts was the fact that he was driving a car which had in it a capacity to be able to hide various items in various cavities therein, and bags of drugs were found therein, the subject of a plea of guilty to supply. There were mobile phones also and he had cash, for which he did not give any explanation. I am satisfied that the offence of supply to which he has pleaded guilty, based on those facts, is below midrange for objective criminality." [ROS 1, 3.16] (Emphasis added)
18. The topic was returned to towards the conclusion of ROS 1: "The Court is required to have regard to s 3A of the Crimes (Sentencing Procedure) Act, and also other sections which have been more recently enacted. It is trite to say that the supply of prohibited drugs is a serious offence for which condign punishment must be imposed where it is clear that the effect of supply has the potential, as all supplies have, of reaching members of the public for the purpose of their consumption. Deterrence for these matters is paramount. True it is, unfortunately, that the question of deterrence, whilst important, leads one to comment that every attempt to push back the supply of drugs in our community seems like standing on the shore, trying to push back the waves. In my opinion, as I have already said, this is a matter where the offence is below midrange of objective criminality. The maximum penalty is 15 years' imprisonment." [ROS 1, 7.3] (Emphasis added)
19. In ROS 2, the sentencing judge remarked:
20. "This was, as I said in the reasons for judgment in this matter, a very serious offence, for which condign punishment was required. I made it clear that, despite the fact that I have referred the offender to a home detention assessment, I would determine ultimately whether or not, in all the circumstances, that should be the course that I will ultimately take." [ROS 2, 2.1] (Emphasis added)
21. In written submissions, counsel for the applicant pointed to an asserted difference in the assessment of the objective gravity for the offence of supply in the two sets of remarks on sentence. It was said, in accordance with the extracted passages above, that in ROS 1 the offence of supply was characterised as "below midrange of objective criminality", but later as a "very serious offence" in ROS 1 and 2.
22. The complaint of the applicant focused on this alleged variation in the characterisation of the offence, in order to submit that the sentencing judge failed to come to a settled conclusion about the objective gravity of the drug offence.
23. Counsel for the applicant further pointed to variations in the sentence itself; that is, the first proposed sentence for the drug offence, and the latter indicative one. In ROS 1, the sentencing judge expressed the view that a sentence of 2 years 5 months, taking into account the proceeds of crime offence on the Form 1, was appropriate. In ROS 2, however, the sentencing judge provided an indicative sentence of 1 year 10 months for the drug offence. It was submitted that the disparity of 7 months in the sentences cannot be explained by the tendering of the additional sentencing assessment report for ROS 2, nor by the removal of the proceeds offence from the Form 1, because the proceeds of crime offence, it was said, was comparatively trivial.
24. Separately, with respect to the assessment of the objective gravity of the proceeds offence, counsel stated there was no discussion of it in either of the two sets of remarks on sentence, besides the mere recitation of its facts.
25. The arguments summarised above were pressed in oral submissions. In addition, while it was acknowledged that the absence of the assessment of the objective seriousness of the proceeds matter in ROS 1 was understandable, bearing in mind that at that stage it was on a Form 1 at the request of the applicant, counsel for the applicant submitted that his Honour should have addressed the objective gravity of the offence in ROS 2, when it was before the Court substantively. And it was maintained that that was the case, notwithstanding the absence of any submissions made by senior counsel with respect to this aspect in the proceedings on sentence immediately preceding ROS 2.
26. In my opinion, this ground has no merit either, for the following reasons.
27. First, as for the assertion of inconsistency with regard to the assessment of objective seriousness of the drug offence, the straightforward reading of both sets of remarks on sentence is that the judge spoke generally of the seriousness of offences of supplying prohibited drugs, and spoke specifically of the objective seriousness of this particular example of such an offence. There is no contradiction once that approach of the sentencing judge is understood.
28. Secondly, it was the applicant who forestalled the imposition of sentence on the first occasion, and applied to have the process begin again. ROS 1 was superseded, and fresh consideration brought to the whole matter by the sentencing judge, three months later. At that stage there was a new sentencing assessment report. In those circumstances, arithmetical analysis of the sentence that was to be originally imposed for the drug offence is inapposite; indeed, one might think, unavailable. And in any event, the first sentence, never actually imposed, included reflection of an offence on a Form 1, but of course the latter indicative sentence for the drug offence did not.
29. Thirdly, with respect to the objective aspects and assessment of objective gravity of the proceeds offence, his Honour did acknowledge some objective features of the offending in ROS 1. They included the amount involved, the cash being in the wallet of the applicant, and a reasonable suspicion that it was connected with the drug supply. That was done even though at that stage it was placed on a Form 1. Certainly, the obligation to make an assessment of the objective seriousness of an offence that is not to be the subject of substantive sentence is far less than that which applies to an offence that is to be so subject.
30. Fourthly, as I have shown in paragraph [16] above, in the second proceedings on sentence, senior counsel for the applicant began to address the objective seriousness of the proceeds offence, but stated that it had already been put before the sentencing judge in any event. The sentencing judge replied "I know but I need you to deal with anything that has changed from the last occasion" (POS 27.3.19, 4.34). There was no further submission by senior counsel about the need to make an assessment of the objective seriousness of the proceeds offence, the Form 1 having been dispensed with, nor any submission as to what such as assessment should be.
31. In those circumstances, and bearing in mind the extraordinary state of affairs that had, in truth, been brought about by the applicant and his legal team, it sits ill in his mouth for the applicant now to complain about an allegedly missing assessment of the objective seriousness of the proceeds offence in ROS 2.
32. I would not uphold this ground. GROUND 3 His Honour's assessment of the objective gravity of the supply offence was not open;
33. Ground 3 was relied upon as an alternative to ground 2, if this Court concluded that the description of the supply offence being "a serious offence" was, in fact, the settled assessment by the sentencing judge of the objective gravity of the offence. It was asserted that such a finding was simply not open.
34. In written submissions, it was said that, in considering the objective seriousness of the offence, the role of the offender must be taken into consideration. Counsel pointed to two factors: the applicant's role appeared to have been no more than a "street level dealer", and the quantity involved was well towards the lower end of the range for indictable supply offences. Specifically, it was 5.25 grams; the indictable quantity for that particular drug is 5 grams.
35. Counsel for the applicant relied upon his written submissions at the hearing before this Court.
36. In my opinion, this alternative ground is a further misreading of the assessment of objective seriousness made of the drug offence. To recap: the sentencing judge was "satisfied that the offence of supply to which he has pleaded guilty, based on those facts, is below midrange for objective criminality" (ROS 18.2.19, 3). It was not found to be a very serious offence; in speaking in that way, I am confident that the sentencing judge was referring to the supply of prohibited drugs generally.
37. Ground 3 should not be upheld. GROUND 4 The sentence imposed was manifestly excessive.
38. A number of points were made by counsel for the applicant in support of this ground.
39. First, it was said that the conclusion of the sentencing judge that a term of imprisonment of 29 months was called for was simply unreasonable.
40. Secondly, counsel asserted that the length of the indicative sentences for both offences was excessive, particularly when the starting point of 1 year 4 months for the proceeds offence was almost half the maximum penalty for that particular offence. He further submitted that, with respect to the proceeds offence, the applicant merely possessed the cash and that it pertained to a single transaction, as opposed to an ongoing series of transactions.
41. Thirdly, the point was made that the ICO has attached to it a home detention condition, which adds to its interference with the liberty of the applicant. Relatedly, it was said that, if the ICO were breached, the applicant would be liable to spend a significant period in custody.
42. Fourthly, it was said that the "notional accumulation" between the two indicative sentences of 8 months was excessive and not reflective of the relatively trivial nature of the proceeds offence.
43. At the hearing before this Court, counsel for the applicant emphasised the staged approach that should have been adhered to when determining the aggregate sentence in ROS 2, in accordance with R v Zamagias [2002] NSWCCA 17.
44. In my opinion, this ground can be dealt with concisely.
45. The ground must focus by its nature not on the steps by which the aggregate sentence was arrived at, but rather the sentence itself.
46. At the insistence of the applicant, he was to be sentenced for two substantive offences. They were dealt with in the District Court, in which forum the statutory maximum penalties were applicable. One of them was imprisonment for 15 years.
47. In the result, he will not spend any time in prison as a sentenced prisoner (I appreciate that he spent 13 days in custody after charge and before being granted bail). Rather, he will spend an extended period confined to home and receiving rehabilitative help. Whilst it is true that an ICO is a not insignificant imposition on one's liberty, it cannot be remotely compared to the experience of being incarcerated in prison. And if the ICO is breached and converted into a more weighty imposition, that is an outcome that is within the power of the applicant. The potentiality of the ICO to be converted into something more onerous does not render it excessive.
48. Whilst it is also true that the amount of the prohibited drug involved was not large, and the proceeds offence was not of the greatest seriousness, there was a degree of sophistication and preparation in the drugs being secreted into separate hidden cavities in the motor vehicle. The mobile phone group message - recounted in the agreed facts - hardly assisted the case for the applicant.
49. Finally, it is true that, if one considers the length of the sentence in isolation, it must be seen as stern. And it is also true that, since the decision of this Court in R v Zamagias, the "three stage process" mandated by Parliament has been quite clear. But it is an error to consider in isolation only the length of an ICO - or indeed, any other alternative to full-time imprisonment - in order to determine whether a sentence is manifestly excessive, without considering the mode of service of the sentence. As for the three stages spoken of in R v Zamagias, the objective reality is that this Court is called upon to assess in hindsight the combined effect of all three stages, not just the second of them.
50. In short, the submission that an ICO of 2 years and 5 months' duration was beyond the discretion reposed in the sentencing judge with regard to these two offences is untenable.
51. I would not uphold ground 4.

Adverse aspects at first instance

1. Before concluding my analysis, it must be said that this matter possesses some aspects that, in my respectful opinion, require comment.
2. First, it will very rarely be the case that a sentencing judge, at the conclusion of his or her remarks on sentence, should accede to an application simply to adjourn the matter and "start again" months later. What happened here was not only, with respect, a waste of time, money, and effort. It was also unseemly.
3. Secondly, without having had the benefit of any analysis from either counsel of the question, it is to be doubted that an application to have an offence taken into account on a Form 1 can simply be "withdrawn" after (at the latest) the closure of the evidence in the proceedings on sentence. And it is seriously to be doubted that it can be withdrawn right at the conclusion of the remarks on sentence.
4. Thirdly, the misunderstanding of defence counsel first appearing as to whether a sentence is imposed for an offence on a Form 1 was, with respect, a very basic one. At the latest, since the promulgation of the guideline judgment in Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146, it has been well established in New South Wales that dealing with an offence in that way does not lead to imposition of a sentence for it. The offence is merely taken into account when sentencing for another offence.
5. Fourthly, the current structure of s 68 of the CSPA leads to the highly counter-intuitive result that, in some cases, offenders will believe that it is not in their interests to have an offence placed upon a Form 1. That is directly contrary to the philosophy behind Part 3, Division 3 of the CSPA. Those provisions permit the Crown and an offender to have less serious matters disposed of conveniently and consensually in a way that is fair to both parties, and in the interests of the administration of criminal justice. Other examples of the problem have arisen in this Court: R v Qi [2019] NSWCCA 73 and Cross v R [2019] NSWCCA 280. In my respectful opinion, Parliament should reconsider the mechanics of the current structure whereby the circumstances in which an ICO may be imposed are restricted, because they are leading to anomalous outcomes.

Proposed orders

1. Regrettably, none of the grounds has any merit. I propose the following order: 1. Leave to appeal against sentence refused.

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