Burns v R

● that the applicant had in his possession numerous mobile telephones, four of them active;

● that the applicant had in his possession a number of SIM cards;

● that the applicant had access to a number of rental properties;

● that the applicant had in his possession a quantity of resealable bags;

● that the applicant had in his possession a large quantity of elastic bands. 11 In a passage that, given that it gives rise to the first ground of appeal, ought to be set out in full, her Honour said: "The existence of the fifteen thousand is a completely separate matter, but it is certainly consistent with him being involved in the ongoing supply of drugs for profit."

She then concluded: "13. In my view, in terms of objective seriousness the matter lies somewhere in the mid range of objective seriousness. I would say that it was certainly middle of the mid range or more, except for the fact that the quantity is right at the very bottom of the range for a commercial quantity of cocaine."

Her Honour expressed doubt about the applicant's prospects of rehabilitation. 12 She then turned her attention to s 21A of the Sentencing Procedure Act. The aggravating factors that she took into account were that the applicant has a record of previous convictions for like matters, and that the offence of drug supply was planned and organised and was committed for financial gain. 13 She found little in the way of mitigating factors, repeating her earlier stated doubts about the applicant's prospects of rehabilitation. She said that the only mitigating factor upon which the applicant could rely was the plea of guilty, by reason of which she allowed a reduction of 25 percent on the sentence she would otherwise have imposed. 14 She dealt then with the first of the money laundering counts, involving the $2350 in the applicant's possession at the time of his arrest. By reason of the amount of money, she regarded this as "a relatively minor matter", and determined, in those circumstances, that it would be appropriate to impose a sentence to be served concurrently with that to be imposed in respect of the drug offence. 15 She regarded the second money laundering offence as "of greater seriousness", because of the amount of money involved. She noted that both parties had invited her to infer that the money was related to the supply of prohibited drugs. She also noted that that money "was packaged in a very professional way". She held it to be "a matter of significance" as distinct from "of grave seriousness". 16 She determined that the sentence imposed in respect of that offence would be partially cumulative upon the sentence for the drug offence. 17 She then proceeded to impose the sentences mentioned above. In sentencing in relation to the drug supply offence, she said that the starting point was of 9 years imprisonment, which she reduced by 25 percent to 6 years and 9 months, and which she then accumulated upon the second money laundering offence by 15 months. In the result, the accumulation she mentioned was of 15 months.

The grounds of appeal 18 Three grounds of appeal were pleaded. They are: "1. The sentence of two years fixed term for the offence against s.193B(2) of the Crimes Act ($15,000) was manifestly too severe.

2. The Learned Sentencing Judge erred in accumulating the sentence for the s.25(2) Drug Misuse and Trafficking Act by a factor of 15 months.

3. The starting point of a sentence of nine years for the s.25(2) Drug Misuse and Trafficking Act offence was disproportionate to the finding that the offence was below the middle of the mid range of objective seriousness."

Ground 1 19 The central point of the submissions made on behalf of the applicant in support of this ground was that: "… the $15,000 offence was taken into account by the … Judge when assessing the objective seriousness of … (the drug offence)." 20 Specific reference was made to the passage quoted above in which, in determining the objective seriousness of the drug offence, her Honour firstly said that the money laundering offence was "completely separate", but added that it was consistent with the applicant being involved in the ongoing supply of drugs. 21 The submission was then made that these references allowed "a strong inference" to be drawn that the "$15,000 offence" was taken into account in assessing the objective seriousness of the drug offence. It was therefore submitted that the money laundering offence had been taken into account twice, firstly as part of the objective seriousness of the drug offence, and secondly as a matter attracting its own discrete sentence. 22 I would reject these submissions. In assessing the objective gravity of the drug supply offence, Murrell DCJ referred to a number of indicia, of which his possession of $15,000 was one, of actual drug dealing as a business for profit. This was entirely unexceptionable. It was not only the possession of that sum of money; also relevant was the manner in which it was packaged in a "very professional" manner. Her Honour was entirely correct in taking this approach. Possession of $15,000 was not used to enhance the objective gravity of the drug supply offence, but rather to ascertain, correctly and inevitably, that the applicant was engaged in a business enterprise. A final submission was made, that, by comparison with the 6 month sentence imposed in respect of the first money laundering offence, the sentence of 2 years in respect of the second was manifestly excessive. 23 I would not accept this submission. It is not suggested that the sentence of 2 years itself bespoke manifest excess - merely that, when contrasted with the earlier sentence, the difference was not warranted. In my opinion this argument is not tenable. There was nothing excessive about the sentence imposed in respect of the second money laundering offence.

Ground 2 24 The next submission made was that the accumulation of 15 months was excessive. The primary submission put in support of this ground of appeal was that, since the sentence for the first money laundering offence was made concurrent with a sentence for the drug supply offence, the same approach should have been taken with respect to the second money laundering offence. Alternatively, it was put that the degree of accumulation was excessive. 25 I would reject both propositions. It was open to her Honour to find that the first money laundering offence was mostly associated with the drug supply offence, but that the second money laundering offence related to money obtained from a different episode of criminality. 26 It was conceded that the only reasonable inference open to her Honour was that the $15,000 represented the proceeds of the sale of drugs. As a matter of logic, had the applicant not been in possession of that amount of money, he would have been in possession of a significantly greater quantity of drugs, which would have projected the drug supply offence into a greater of level of objective gravity. 27 The offence of money laundering is intended to ensure that criminals do not retain the proceeds of their criminality, and are punished for criminality that is represented by the possession of those proceeds. It would be quite wrong for an offender to escape additional punishment in respect of possession of the proceeds of crime. 28 I would reject this ground of appeal.

Ground 3 29 Under this ground it was argued that the starting point of the sentence for the drug supply offence was "disproportionate" to the finding with respect to objective gravity. 30 What her Honour said about that, I repeat, was that the drug supply offence lay "somewhere in the mid range of objective seriousness"; she would have found that it was greater than mid-range, except for the fact that the quantity was right at the bottom of the range for a commercial quantity of cocaine. Her Honour did not say, as is suggested in the ground of appeal as formulated, and repeated in the written submissions, that the offence was "below the middle of the mid range of objective seriousness". 31 Her Honour correctly applied the provisions of Pt 4 Div 1A of the Sentencing Procedure Act, by which a standard non-parole period for the offence of 10 years is prescribed. It is well established that the standard non-parole period applies to sentencing after conviction following a trial. Her Honour's starting point of 9 years, before reduction in recognition of the plea of guilty, was 1 year less than the standard non-parole period. The only reason which appears for such a reduction (leaving aside the reduction for the plea of guilty, which came later) was the finding concerning the level of objective gravity. 32 Given that her Honour found that the offence lay "somewhere in the mid range of objective seriousness", it would have been open to her to begin with the standard non-parole period of 10 years, reduced by reason of the plea of guilty. 33 The submissions went on to raise the question of the principle of proportionality, as stated, inter alia, in R v Whyte [2002] NSWCCA 343; 55 NSWLR 252. Reference was also made to other cases. However, these cases, including Whyte, all pre-date the introduction of Pt 4 Div 1A. The principle of proportionality remains relevant and applicable, but must be applied in the light of the prescription, by the legislature, of standard non-parole periods. 34 I would reject this ground of appeal. It follows that, although I would grant leave to appeal, I would dismiss the appeal. 35 KIRBY J: I agree with Simpson J. 36 LATHAM J: I agree with Simpson J. **********

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