Battersby v R

Court of Criminal Appeal (NSW)|2018-05-04|Before: Hoeben CJ, Walton J, Button J

Introduction: the contentions directed to Ground 4

The applicant submitted that the indicative sentence with respect to the proceeds offence was unreasonable having regard to his very limited role with respect to those proceeds and his strong subjective case. It was submitted that the applicant's dealing with proceeds was objectively minimal as he was simply custodian of the money for a period of time prior to the owner reclaiming it from him.
In support of that submission, the applicant referred to some JIRS statistics which were to the effect that of 83 cases of offences under s 193B(2), only 47 (57%) resulted in terms of imprisonment. Of those 47 cases, it was submitted the highest term imposed except for one offender was 4 years imprisonment; most sentences falling within the range of 2 to 3 years in length. The exceptional case was one term of 5 years imposed in See v R [2017] NSWCCA 165 ("See") which the applicant sought to distinguish from the present matter, upon the basis that the offender in See stored about $5.5 million worth of stolen items (the product of 137 residential break, enter and steal offences in Sydney over the period of 2004 to 2011, six commercial break, enter and steal offences in Melbourne in 2010 and a commercial break, enter and steal offence in Victoria in 2011).
It was also submitted that the indicative sentence for the ecstasy drug supply offence of 12 years was unreasonable bearing in mind the very limited role of the applicant with respect to the offence and again his strong subjective case. The applicant pointed to what it said were comparable cases: Chong v R, Nguyen v R [2014] NSWCCA 16; Ayik v R [2013] NSWCCA 119; Coetzee v R [2007] NSWCCA 12 and R v Lao [2003] NSWCCA 315.

The applicant's reliance on comparable sentences and JIRS statistics

As mentioned earlier, it is useful to consider in resentencing the cases referred to by the applicant with respect to ground 4 while recognising the limited use to which they are to be put having regard to the differences in the offences, the nature of the offence and the subjective circumstances.
In Chong v R, Mr Chong had only been charged with, and pleaded guilty to, one count of supplying 923 grams of methylamphetamine with a purity of 78.5% contrary to s 25 of the Act. Mr Chong was on a working holiday in Australia when he agreed with a friend that he would deliver a bag to Perth. The bag was delivered to where he was staying, and the arrangement was that Mr Chong would be paid a handling fee in exchange for making the delivery. Basten JA found that it was not open to the sentencing judge to make a finding that the role of Mr Chong was "somewhat more than a courier" without a prior indication to the parties that such a finding would be made (at [14]). In the appeal proceedings, the prosecution conceded that it appeared Mr Chong's role was limited to that of a courier. Mr Chong was re-sentenced to 6 years imprisonment with a non-parole period of 4 years.
Mr Chong's case is not comparable to the applicant's case. Firstly, while the drugs were of a slightly higher purity, Mr Chong had been sentenced for just one count of supplying a prohibited drug. Secondly, the weight of the drugs Mr Chong was sentenced for supplying was significantly lower than that for which the applicant was sentenced. As counsel for the Crown correctly submitted, it was at the lower end of a large commercial quantity. Further, Basten JA (with whom Harrison J agreed) found that the appropriate finding was that Mr Chong was a courier who had agreed to transport the drugs (at [22]). As I have found, the applicant's role in this matter is greater.
In Nguyen v R [2014] NSWCCA 16, Mr Nguyen was convicted by a jury after pleading not guilty to knowingly supplying not less than a large commercial quantity of cocaine contrary to s 25(2) of the Act. It is not clear from the judgment of the exact quantity of the drug he was charged with supplying. However, it can be inferred that it was around 30 kg (see at [14]). He was sentenced to 11 years imprisonment with a non-parole period of 7 years and 6 months.
Mr Nguyen drove with the co-offender to a McDonald's where the co-offender said he was waiting for a friend. An undercover police officer arrived with a substance substituted for cocaine in two large plastic bags. Mr Nguyen had a conversation with the undercover police officer, then Mr Nguyen reached into the car driven by the undercover police officer to grab the bags when police intervened and arrested Mr Nguyen and the co-offender.
The sentencing judge in that case made a finding that Mr Nguyen had "very little knowledge of the whole of the operation" and "played a small part at the bottom of the hierarchy". Again Mr Nguyen had only been charged with one count of supply. In contrast with the applicant's case, the applicant knew that the money his friend showed him must have been from criminal activity and that those involved could have been dangerous criminals.
In Ayik v R, Mr Ayik was charged with one count of supplying a large commercial quantity of a prohibited drug, namely 28.75 kg of heroin contrary to s 25(2) of the Act. The amount of heroin involved was 28 times the large commercial quantity and was described as one of the highest non-border seizure recorded in New South Wales. Mr Ayik was sentenced to 9 years imprisonment with a non-parole period of 5 years and 6 months.
Mr Ayik appealed against the sentence on the basis of parity having regard to the sentences imposed on a co-offender. Mr Ayik's role was to store the heroin at his premises for a three day period, and the co-offender collected the heroin, drove off and was stopped by police and the heroin located. The sentencing judge who sentenced the co-offender found that the co-offender was acting under duress. The co-offender assisted authorities and was allowed a combined discount of 50% for the assistance and the guilty plea.
The Crown submitted that Mr Ayik's role was limited to storing the heroin and putting the suitcase in the car when the co-offender arrived (it should also be noted that Mr Ayik placed the heroin in the suitcase: see at [7]). In comparison to the applicant's case, the applicant was effecting the delivery of the drugs to the co-offender.
The case of Coetzee v R is barely comparable to the current case in question. Mr Coetzee pleaded guilty to supplying a prohibited drug, namely 24.4 kg of cocaine contrary to s 33(3)(a) of the Act. He was sentenced to 9 years and 3 months imprisonment with a non-parole period of 6 years and 9 months. Mr Coetzee was involved with setting up a company to facilitate the importation of flooring which allowed for the importation of the cocaine. The facts are too far removed from the current case. The Crown also submitted that this was a very lenient sentence from 2007 and it was somewhat anomalous.
In R v Lao, Mr Lao was convicted on his plea of guilty for supplying a prohibited drug greater than a large commercial quantity, namely 1.016 kg of ecstasy pursuant to s 25(2) of the Act. Mr Lao was sentenced to 5 years imprisonment with a non-parole period of 3 years. Mr Lao had a gambling problem and became a target for a criminal looking for a courier. Mr Lao initially thought he was transporting Chinese herbal medicine and assumed that there was some illegality concerning tax. On receipt of the 'medicine' he became aware that he was likely transporting drugs. It was accepted in this case that Mr Lao was a mere courier whose original intention had nothing to do with being a courier of illegal drugs.
Again this case is not comparable because Mr Lao was only charged with one offence. The quantity of the drugs (just 1 kg) was considerably lower than the amount currently in question, and the findings made about his role as a 'mere courier' differs to the findings made in the applicant's case.
As to the proceeds of crime offence, the applicant's reliance upon JIRS statistics are of limited value in the present case. I have earlier observed as to the limitations of such statistics in relation to aggregate sentences in Why v R (at [34]-[35]): [34] In R v Chidiac [2015] NSWCCA 241 at [57], Price J, with whom Bathurst CJ and Beech-Jones J agreed, explained that: Where aggregate sentences are imposed, the limited use of sentencing statistics becomes more apparent. The indicative sentences are not the actual sentence that is imposed. Moreover, the Judicial Commission statistics do not extend to a number of different sentences that overlap or to an aggregate sentence: Knight v R [2015] NSWCCA 222 at [8] and [87]. [35] As to the second limb, the applicant's allegation of manifest excess is not assisted by the identification of one other case in which a more lenient sentence was imposed. As Johnson J (with whom Allsop P and Price J agreed) explained in Huynh v The Queen (2008) 188 A Crim R 287; [2008] NSWCCA 216 at [61]: [61] …The practice of approaching sentencing appeals by a search for, and comparison with, sentences passed in other cases, is neither helpful nor supported by authority: R v Morgan (1993) 70 A Crim R 368 at 371; R v George (2004) 149 A Crim R 38 at 47 [48]-[49].
I acknowledge the remarks of R A Hulme J in that matter wherein his Honour stated "(t)he sentencing statistics can be a very valuable tool if properly understood and used appropriately" (at [64]). His Honour acknowledged (at [62]): [62] The Judicial Commission has provided enhancements to the statistics in recent times, partly in response to what the High Court has said in cases such as Hili v The Queen; Jones v The Queen [2010] HCA 45; 244 CLR 520 and The Queen v Pham [2015] HCA 39; 256 CLR 550. They include the provision of statistics for "Aggregate/Effective" terms of sentence and non-parole periods. But there are limitations on the utility of these.
It should be noted that the JIRS statistics had been updated since the applicant's submissions had been received (the applicant's submission as to the same was outlined at [59] above). The JIRS statistics currently indicate that of 86 cases sampled for offences under s 193B(2) of the Crimes Act (principal offences only), 56% (48 cases) resulted in a penalty type of "prison" (other penalty types included s 9 bonds, community service hours, suspended sentences, intensive correction orders and periodic detention).
Of the 48 cases which resulted in a prison sentence, further statistics revealed that 50% of the "aggregate/effective" terms of sentence ranged between 24 to 36 months in length. JIRS provides information about the cases upon which the statistics are based, including offender characteristics, the sentence for the principal offence, and the aggregate/effective sentence. However, this information is simply provided on a case-by-case basis without any comparative analysis. The statistics regarding the length of prison sentences do not differentiate between aggregate and effective terms of imprisonment. Further, the statistics do not reveal any information regarding the monetary sum of proceeds involved in the offences - there is no lower or upper threshold. Hence, the statistics are of limited utility.

Consideration: Resentencing

The maximum penalty for sequence 1 was life imprisonment with a standard non-parole period of 15 years.
The applicant was convicted of supplying 23.85 kg of MDMA with a purity of 73%. Accordingly there was a very substantial supply (47 times greater than a large commercial quantity). The wholesale value of the drugs was $835,200.
The offences were, therefore, patently serious. However, the applicant was correct to submit that the applicant's limited role needed to be taken into account in resentencing.
The applicant was not involved in the management, planning or funding of the drug supply. He held the drugs for only a short period of time before he delivered them, although he dealt with the drugs in the manner earlier described. He knew he was involved in the supply of drugs as part of an organised criminal activity.
His role was not that of a mere courier for reasons earlier given earlier in this judgment. Trust was reposed in him to store and deliver the drugs alone. The sentencing judge's conclusion that the applicant was well above the lowest rung were plainly available and correct.
I have accepted that there was an element of fear influencing the applicant's actions but the offending conduct was not affected by duress. That factor should receive, consistent with the findings of the sentencing judge, only modest weight in reducing the objective seriousness of the offence.
As to the proceeds of crime offence, the applicant submitted that he was a mere custodian. There was, however, no demur from the findings of the sentencing judge that, upon being shown the sum of money, the applicant knew that he was agreeing to store a large sum of money for a person engaged in "organised criminal activity". Nor was there any dispute that while there is no upper limit to the money value of the offence, the amount involved was significant and that the offence was "premeditated". There was clearly an element of trust reposed in the applicant.
There was no challenge to the finding of the sentencing judge that the proceeds of crime offence was a mid-range offence.
As to questions of deterrence and subjective features of the matter, there was no demur by either party as to the conclusions of the sentencing judge in that respect which, in my view, have significant merit.
General deterrence should play a significant role in the sentences imposed having regard to the nature of the offences and their significance for the community. However, I agree that little weight should be given to specific deterrence. The evidence of the applicant for the purposes of resentencing as to his role and conduct in custody would indicate that the applicant's prospects for re-offending are low. He has plainly adopted the view, as stated in his affidavit, that he is intent on rehabilitating himself (as well as other inmates) and "repaying for his mistakes".
As earlier mentioned, the applicant committed the offences shortly before his thirty first birthday. He was born in the United Kingdom and has one sister. His father left the relationship with his mother before the applicant was born and his mother then entered into a relationship with the applicant's step-father. The applicant has two half-siblings.
There is no evidence that the applicant suffered disadvantage in his upbringing but he started using cannabis at the age of 15 which then escalated to the use of amphetamines, ice, opiates and prescribed medication in later years. Drug use continued until the time of his arrest.
Associate Professor Woods found moderate symptoms of anxiety and moderate to severe symptoms of depression but there was no evidence, as previously mentioned, that the applicant suffered those conditions at the time of the offences.
The applicant came to Australia on a tourist visa. He has no family in Australia.
The applicant has no prior convictions and has not breached prison discipline. He has not used illicit drugs in custody.
The sentencing judge appropriately made a determination that the applicant was genuinely remorseful and extended him the benefit of "prior good character".
There was no dispute that an early plea of guilty justified a utilitarian discount of 25%.
In all, there are strong subjective features in favour of the applicant.
This is not a case where any other sentence than imprisonment is appropriate.
I consider that special circumstances should be found because custody experienced by the applicant will be more burdensome because his family does not live in Australia.
In the circumstances, I consider that it is appropriate to impose an aggregate term of imprisonment which reflects the objective seriousness of the respective sentences as described above and allows for modest accumulation between sequences 1 and 3 with greater accumulation in respect of sequence 2.
I propose the following orders:
Leave to appeal against sentence granted.
Appeal allowed.
Pursuant to s 53A(1) of the Sentencing Act, an aggregate term of imprisonment of 12 years is imposed which commences on 16 November 2015 and concludes on 15 November 2027 with a non-parole period of 8 years concluding on 15 November 2023.
Pursuant to s 53A(2)(b) of the Sentencing Act, the indicative sentences in that respect are as follows: 1. sequence 1: 10 years with a non-parole period of 6 years and 6 months; 2. sequence 2: 3 years; and 3. sequence 3: 5 years with a non-parole period of 3 years.
BUTTON J: I agree with Walton J.

Amendments 19 July 2018 - Order No.3 - errors in date calculations corrected on coversheet and pronouncement of orders. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 July 2018

Ground 1: The sentencing judge erred with respect to the maximum penalty for the offence of deal with proceeds of crime knowing that it was the proceeds of crime

The applicant submitted that the sentencing judge had erred in the maximum penalty he had to take into account for the proceeds of crime offence. The offence carried a maximum penalty of 15 years imprisonment and not 20 years as found by the sentencing judge. So much was conceded by the Crown.
The applicant correctly submitted that an error of that kind would vitiate the exercise of the sentencing discretion unless the Crown satisfied the Court that it was not a real possibility that it affected the exercise of that discretion: Lee v R [2016] NSWCCA 146 at [37]; Mooney v R [2016] NSWCCA 303 at [33]; Potts v R [2017] NSWCCA 10 at [37]; Nguyen v R [2017] NSWCCA 39 at [120]; Campbell v R [2018] NSWCCA 17 at [30]-[33].
There was no demur from that submission by the Crown which also made reference to the judgment of Beech-Jones J (with whom Ward JA and Adams J agreed) in Andreata v R [2015] NSWCCA 239. In that matter, his Honour stated at [28]: [28] The present issue concerns the process of identifying error not the matter identified in the above passage from Baxter which is directed to what happens once error is identified. Consistent with House v R [1936] HCA 40; 55 CLR 499 at 504-505 and the above passage from Kentwell this requires a determination as to whether the sentencing judge "act[ed]" upon the wrong principle. As the latter part of the above passage from Kentwell makes clear there can be some misstatements of legal principle that are irrelevant or immaterial to the sentencing outcome and thus they do not establish that an error was acted upon in the sense discussed in House v R. It is in that context that Donaghey referred to an error as "material". Given the significance of the maximum penalty to the sentencing process (Markarian v R [2005] HCA 25; 228 CLR 357 at [31]) it is difficult to conceive of a circumstance in which the misstatement of the maximum sentence would not result in House v R error except perhaps, for example, if the balance of the reasons demonstrated that the sentencing judge in fact acted on the basis of the correct maximum penalty.
The Crown conceded that there was nothing in the balance of the reasons of the sentencing judge to suggest his Honour acted on the correct maximum penalty. It was also accepted that "it [could] not be said that the incorrect statement of the maximum did not affect the indicative sentence of [sequence] 2 or that the error was a mistranscription or slip" (see Campbell v R at [29]). It was also conceded, correctly in my view, that this was not a case where the error could be regarded as an inadvertent misstatement which did not affect the sentence imposed: Zaky v R (Cth) [2017] NSWCCA 141 (per Hoeben CJ at CL with whom Garling J and Bellew J agreed) and Newtown v R [2009] NSWCCA 128.
The question which arises for determination under this ground is whether the error as to the assessment of the maximum penalty had a material bearing upon the assessment of the aggregate sentence: AB v R [2014] NSWCCA 31 at [68] (per R A Hulme J with whom Beazley P and Schmidt J agreed), Sutton v R [2016] NSWCCA 249 at [37] (per Gleeson JA with whom Fagan and N Adams JJ agreed) and Elchiekh v R [2016] NSWCCA 225 at [32]-[33] (per Price J with whom Button and Fagan JJ agreed) (see Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 ("Kentwell") at [42]).
The applicant submitted that the Crown had not discharged the burden of establishing there was no real possibility the error by the sentencing judge as to the maximum penalty for the proceeds of crime offence. The sentencing judge had determined an indicative sentence for the offence and then determined the aggregate sentence taking into account the principle of totality.
The Crown submitted that, as the sentence was an aggregate sentence, the issue was whether the error was acted upon when imposing the aggregate sentence. The Crown contended that the reference to the incorrect maximum penalty should be regarded in the present matter as having had relatively little effect on the aggregate sentence.
That was because, it was submitted, the sentence on sequence 1 was by far the more significant indicative sentence and the effect of the aggregate sentence was that sequences 2 and 3, which were both given an indicative sentence of 5 years (and a non-parole period of 3 years for sequence 3) were, in combination, accumulated only modestly on the sentence for sequence 1 and, thus, were substantially subsumed by the aggregate sentence. The incorrect maximum penalty was applied in respect of sequence 3 in a situation where the other two offences carried a significantly higher maximum penalty and standard non-parole period.
There was some substance in the Crown's submission as to the significance of the indicative sentence for the sequence 1 offence. However, it did not follow that the error in the maximum penalty did not have a material impact upon the aggregate sentence imposed by the sentencing judge.
There were two considerations which sustained that conclusion as to the error materially impacting upon the aggregate sentence.
First, the sentencing judge clearly identified the significance of sequence 2 by his statement that the offence was "very serious" and was at the level of a mid-range offence.
Secondly, whether or not the amount of accumulation between sequence 1 and sequences 2 and 3 was modest, sequence 2 was accumulated more in recognition of the different circumstances underpinning that offence.
Once that conclusion is reached then, it must follow that the error vitiated the exercise of the sentencing discretion and leave be granted to bring the appeal.
Having found error in the sentencing judgment, this Court must exercise the sentencing discretion afresh taking into account the purposes of sentencing and the factors, inter alia, the Sentencing Act requires to be considered: Kentwell at [42]-[43]; Lehn v R (2016) 78 MVR 353; [2016] NSWCCA 255 at [60], [86] and [128]. Such an exercise involves the exercise of an independent discretion with a sentence fixed which is appropriate having regard to the offender and the offence.
That said, the process of re-sentencing will be guided, firstly, by considering ground 2 of the appeal, and then, during the course of re-sentencing, considering the contentions of the parties under ground 4 (the manifestly excessive ground, particularly as to the reliance on 'comparable' cases and statistics from the Judicial Information Research System ("JIRS") produced by the Judicial Commission of New South Wales). One further observation needs to be made before proceeding down that path.
In ground 3, the applicant contended that, having regard to the sentence imposed upon the co-offender, he had a justifiable grievance from the sentence imposed on him that he was not given equal treatment.
However, as discussed with the parties during the course of the hearing, the resolution of that issue was necessarily connected to the outcome of the Crown appeal with respect to the co-offender.
The convictions against and sentences imposed upon the co-offender were quashed and the matter remitted to the District Court for trial.
It follows that this ground of appeal is not presently available as there is no capacity to determine whether there is any discrepancy by way of unequal treatment between sentences: Why v R [2017] NSWCCA 101 at [43]-[45].

Ground 2: The sentencing judge erred in finding that the applicant was "well above the lowest rung" of the drug trafficking hierarchy

The applicant submitted that this assessment by the sentencing judge was not reasonably open. The applicant took custody of the drugs for a short time and then delivered them to a co-offender in accordance with directions he received for no reward other than the benefit of rent-free accommodation. He was merely a custodian and courier. He was not involved in the management, planning or management or financing of the drug supply and did not have any more sophisticated or sinister responsibilities.
The applicant submitted that his role was only "a little higher than the lowest rung of the hierarchy".
The applicant placed reliance in that respect upon the judgment of Harrison J in Chong v R [2017] NSWCCA 185 at [37]. That passage of the judgment was as follows: [37] It is well established that the adoption of a description of a person's particular role in, for example, an enterprise involving the manufacture or acquisition of drugs, and their wider distribution and supply, must yield to the precise factual basis said to support the description that has been chosen. It would also appear to be well understood, in sentencing parlance, that "a courier" is generally regarded as an individual whose involvement among a range of other individuals is limited to the physical act of carrying or delivering the offending substance, unassociated with any more sophisticated or sinister responsibilities. The potential rewards for such assistance are also generally understood to be smaller, along with the corresponding level of criminality. It would generally seem to be the case that a courier in this context is to be regarded as someone on the bottom rung of the enterprise.
The starting point for the analysis of this ground is the recognition that the evaluation of the objective seriousness of an offence and the offenders role in that offence is a discretionary process involving a value judgment. There are no definitely correct answers, and opinions may reasonably differ: Salafia v R [2015] NSWCCA 141 at [76]-[78] (per Wilson J with whom Hoeben CJ at CL and Hall J agreed).
Further, in cases such as this where the full nature of the criminal enterprise is not known and the precise characterisation of the offender's roles is made more difficult, the offender bears the onus, on the balance of probabilities, to establish a lesser role in the offence: Koh v R [2013] NSWCCA 287 at [119]-[121]; Radi v R [2013] NSWCCA 278 at [25] quoting R v Niketic [2002] NSWCCA 425 at [4].
The application of these principles to the submission of the applicant as to this ground immediately demonstrates why it must fail. The submissions are predicated upon a distinction being drawn for the purposes of this appeal between a finding that the applicant was "well above the lowest rung of the drug trafficking hierarchy" and his role being only "a little higher" than the lowest rung of the hierarchy. The distinction sought to be drawn is obscure. Such fine gradations between the factors underpinning the assessment of the objective seriousness of the offence could never properly establish error in a discretionary sentencing judgment in the absence of a more precise definition of the applicant's role on the evidence.

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