Campbell v R

Catchwords: CRIME — Appeals — Appeal against sentence — Where applicant pleaded guilty to two Commonwealth drug offences and two State offences involving unauthorised possession of firearms and identification-making material — Whether sentencing judge erred in setting commencement date of sentences by failing to consider and/or apply the principle of totality

Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 44(1), 44(2), 53A
Crimes Act 1900 (NSW), ss 192L, 556A (since repealed)
Crimes Act 1914 (Cth), ss 16A, 16F, 19AB(1), 19AH(1)
Criminal Appeal Act 1912 (NSW), s 5(1)(c)
Criminal Code (Cth), ss 302.2(1), 302.3, 302.3(1), 307.1, 307.1(1), 307.2(1)
Criminal Procedure Act 1986 (NSW), ss 166, 167(2)
Drug Court Act 1998 (NSW), s 5A
Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2)
Firearms Act 1996 (NSW), ss 7(1), 7A(1)

Cases Cited: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Hampton v R [2014] NSWCCA 131; (2014) 243 A Crim R 193
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
JT v R [2012] NSWCCA 133
McGregor v R (2024) 116 NSWLR 81; [2024] NSWCCA 200
Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70
R v Bui [2025] NSWCCA 114
R v Campbell [2024] NSWDC 413
R v Miller, R v Omar [2021] NSWDRGC 1

Texts Cited: D.A Thomas, Principles of sentencing (2nd ed,1979, Ashgate Publishing)

Category: Principal judgment

Parties: Joshua Michael Campbell (Applicant)
Rex (Respondent)

Representation: Counsel:
S Fraser SC (Applicant)
B Costello (Respondent)
Solicitors:
Aboriginal Legal Service (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2022/339380

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 16 August 2024, Joshua Campbell (the applicant) was sentenced by Neilson DCJ for two Commonwealth offences involving the aiding and abetting of the importation of, and trafficking in, border controlled drugs, contrary to ss 302.3 and 307.1 of the Criminal Code (Cth), following his plea of guilty to those offences. He also pleaded guilty and was sentenced for two State offences of the unauthorised possession of firearms and identification-making material, contrary to ss 7(1) and 7A(1) of the Firearms Act 1996 (NSW) and s 192L of the Crimes Act 1900 (NSW), respectively. The total effective sentence was 6 years and 7 months imprisonment, with a non-parole period of 5 years and 1 month.

The applicant sought leave to appeal against the sentence imposed pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) on two grounds:

Ground 1:

The Court erred when setting the sentence commencement dates by failing to consider and/or apply the principle of totality.

Ground 2:

The Court erred when determining the structure of the sentences by:

(a) Having regard to a “usual period of parole” when no such usual period applied, and/or

(b) By not giving effect to the sentencing judges stated intention to ‘fix a longer than usual parole period.

Held (Ierace J, Mitchelmore JA and Chen J agreeing), granting leave and allowing the appeal:

(1) The sentencing judge did not explain how the totality principle applied in circumstances where the first Commonwealth sentence was made wholly consecutive on the non-parole period of the State sentence and the second Commonwealth sentence was made wholly consecutive on the expiration of the first Commonwealth sentence: [73] (Ierace J) (Mitchelmore JA at [1] Chen J at [94] agreeing);

(2) It could not be assumed that the totality principle was reflected in the lenient sentences imposed by the sentencing judge. The sentences followed on favourable findings to the applicant with respect to the objective seriousness of the offending and his compelling subjective case: [74] (Ierace J) (Mitchelmore JA at [1] Chen J at [94] agreeing)

Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70; JT v R [2012] NSWCCA 133, applied.

(3) It was unnecessary to determine ground 2 of the appeal. The applicant is to be re-sentenced to a total effective term of imprisonment of 6 years and 6 months, with an overall non-parole period of 4 years and 8 months, reflecting a finding of special circumstances, the objective seriousness of the offending, the applicant’s moral culpability, his contrition, and commitment to rehabilitation: [86-93] (Ierace J) (Mitchelmore JA at [1] Chen J at [94] agreeing).

JUDGMENT

1. MITCHELMORE JA: I agree with Ierace J.

2. IERACE J: The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal a sentence imposed on him by his Honour Judge Neilson in the District Court on 16 August 2024, following his plea of guilty to two Commonwealth offences involving the aiding and abetting of the importation of, and trafficking in, border controlled drugs, and two State offences involving the unauthorised possession of firearms and identification-making material.

3. The applicant was arrested on 11 November 2022 and remanded in custody until his sentence. He entered pleas of guilty to all counts while the matters were in the Local Court. The offences, the maximum penalties of imprisonment, the standard non-parole periods (SNPPs) (where applicable for the State charges) and the sentences imposed, were set out in a table in the Crown’s written submissions, which it is convenient to reproduce with some modifications:

| Count | Offence | Maximum penalty (and SNPP) | Sentence and non-parole period (NPP) | | 1. | Between 12 and 21 September 2022 aid and abet importation of a commercial quantity of methamphetamine (53.467kg) s 307.1 Criminal Code (Cth) | Life imprisonment | Head sentence (HS) 3 years 6 months, NPP 2 years, to date from (‘TDF’) 11 December 2025 | | 2. | Between 12 and 21 September 2022 aid and abet trafficking of a marketable quantity of cocaine (492.7g) s 302.3 Criminal Code | 25 years imprisonment | HS 3 years, NPP 2 years, TDF 11 December 2023, followed by a recognizance release order | | 3. | Possess unauthorised prohibited firearm (gel ball air pistol) s 7(1) Firearms Act 1996 (NSW) (Taken into account on Form 16: Possess unauthorised firearm (pump action repeating gel ball air gun) (Count 4) s 7A(1) Firearms Act | 14 years imprisonment (SNPP 4 years) 5 years imprisonment | Aggregate for Count 3 and s 166: HS 18 months, NPP 13 months, TDF 11 November 2022 (Indicative: 12 months, NPP 9 months) | | s 166 [1] | Possess equipment/material to make identification documents to facilitate the commission of an indictable offence s 192L Crimes Act 1900 (NSW) | Imprisonment for 3 years (jurisdictional limit 2 years) | Aggregate sentence as set out for Count 3 above (Indicative 12 months) |

4. The aggregate sentence that was imposed for the State offences was backdated to commence on the date of the applicant’s arrest. The sentence for count 2 was wholly consecutive upon the expiration of the non-parole period of the aggregate sentence and the sentence for count 1, in turn, was wholly consecutive upon the expiration of the non-parole period of the sentence for count 2. The effective total sentence for all matters was thus 6 years and 7 months imprisonment, with a non-parole period of 5 years and 1 month.

5. The applicant has two grounds of appeal:

Ground 1:

The Court erred when setting the sentence commencement dates by failing to consider and/or apply the principle of totality.

Ground 2:

The Court erred when determining the structure of the sentences by:

(a) Having regard to a “usual period of parole” when no such usual period applied; and/or (b) By not giving effect to the sentencing judge’s stated intention to “fix a longer than usual parole period”.

6. I would uphold ground 1 and re-sentence the applicant. These are my reasons. The grounds are narrow in focus, although re-sentence requires a canvassing of the material that is relevant to that exercise.

The Crown material tendered at the sentence hearing

The agreed facts

7. The Commonwealth offences were committed with two co-offenders, Tung Huu Bui and Watcharaphong Aphichotnithithon. A statement of agreed facts was tendered by the Crown at the sentence hearing in which the relevant facts for sentence of the applicant were embedded in a broader account of the criminal activities of the co-offenders and two others, much of which was irrelevant to the sentencing of the applicant. The applicant’s adoption of the agreed facts was expressed to be insofar as they related to the offences he was charged with.

8. Mr Bui was involved with others in numerous importations of commercial quantities of methamphetamine and cocaine. Their syndicate transported prohibited drugs to Queensland and Perth, secreted in toolboxes. The applicant’s involvement, briefly stated, was that he leased two storage units using false identification; one at Petersham, which was used to store rolls of methamphetamine-infused plastic wrapping (the wrapping) (count 1); and one in Brisbane (in Coorparoo), which was used to store a quantity of cocaine (count 2). Count 1 also involved the applicant’s assistance to Mr Bui in coordinating the delivery of the wrapping.

The facts in relation to count 1

9. The facts in relation to count 1 were that the wrapping was imported on a ship that arrived in Sydney on 15 September 2022. On 14 September 2022 at 11.30pm, the applicant sent Mr Bui a link to track the ship and a screenshot of the relevant Sea Ship Arrival Notice.

10. Arrangements had been made for the wrapping to be delivered by a carrier company (the carrier) to Kennards Storage at Camperdown. At 12.38pm on 19 September 2022, Mr Bui texted the applicant:

“Can you call Camperdown see if they can accept side loader deliveries or drop deck deliveries?”

11. The applicant responded that they did. He then forwarded to Mr Bui a photograph of an International Trade Management (ITM) invoice displayed on a screen. It was dated 19 September 2022 and was addressed to “Cox Architecture”. It indicated an estimated time of arrival of 13 September 2022 and required payment for “Storage at wharf - 1 day”. The invoice stated:

“Container subject to X ray hold and not lifted until late Friday. One day storage at wharf applies. Urgent payment required.”

12. In the background of the invoice was a browser tab open for an email inbox with the logo “COX” and the username “Lauchlan Abercrombie”.

13. On 20 September 2022, the wrapping was collected from the port by the carrier for delivery. At 10.43am, the applicant sent Mr Bui a message saying:

“They couldn’t unload at Camperdown so it’s headed back to Sydenham, they will unpack it direct onto truck.”

14. At around 11.30am, the truck carrying the wrapping was captured on CCTV being unloaded at the carrier’s transport facility at an address in Sydenham. [2]

15. The applicant arranged a storage unit at Kennards Self Storage, Petersham, using fake identification documents provided by Mr Bui. Mr Bui provided the applicant with two licences in two different names, both of which contained a photograph of Mr Bui. Mr Bui was captured by CCTV later that day attending the Kennards Self Storage facility at Petersham. That afternoon a different truck picked up the wrapping from St Peters/Sydenham and, shortly before 2pm, drove with it to the Petersham storage facility. Shortly before then, Mr Bui was seen leaving that location.

16. Police recovered 20 rolls of the wrapping. The gross quantity of methamphetamine that was extracted from it was 67.7kg, which had an equivalent pure quantity of 53.467kg.

The facts in relation to count 2

17. By way of context, on 9 September 2022, Mr Bui was in Queensland to set up a “new branch” (appearing as a quote in the agreed facts) and rented a Kennards storage unit at Hillcrest, which is a suburb of Brisbane. That day, he told another person (not the applicant), referring to Queensland, that he “will be doing 10 there weekly”.

18. On 12 September 2022 at 6.46am, Mr Bui asked the applicant “Have you fixed the new storage place … He wanted a closer one to the city” and indicated he would be catching a flight soon. The applicant rented a storage unit at Kennards Self Storage facility at Coorparoo (which is also in Brisbane, closer to its centre than Hillcrest), using the same fake licence that Mr Bui had used to rent the unit at Hillcrest. Just before 10am, the applicant sent a message to Mr Bui with details of the storage facility that he arranged at Coorparoo.

19. On 21 and 22 September 2022, Queensland Police executed search warrants at the Coorparoo storage unit and located three blocks of white powder secreted in a toolbox. They were analysed and found to be an admixture of cocaine weighing 2.98kg, with an equivalent weight of pure cocaine of 492.7g.

The facts in relation to counts 3 and 4

20. Following the applicant’s arrest on 11 November 2022, during a search of his home, police located a gel ball air pistol, which satisfies the statutory definition of a pistol and a prohibited firearm, in working order, although with a flat battery (count 3). A magazine for the pistol was found as well. Police located a pump-action repeating gel ball air gun (count 4). The applicant could not be excluded from a mixed DNA profile that was lifted from its forestock.

The facts in relation to the s 166 charge

21. Police also located in the applicant’s residence an ID card printer, driver licence hologram stickers and blank driver licence cards.

The applicant’s criminal record

22. The applicant was aged 44 at the time of the offences. The first entries on his criminal record as an adult are for possessing a prohibited drug and equipment to administer a prohibited drug, committed when he was aged 18. Each charge was proved and dismissed, pursuant to s 556A of the Crimes Act. Thereafter, there are entries for the offences of possession of prohibited drugs or prescribed restricted substances, committed in 2012 (when he was aged 34) and in 2013, 2014, 2016 and 2017. He has entries for property, fraud or fraud-related offences over the same period. He has prior convictions for weapons-related offences in 2017 and 2019. He also has entries for driving offences that are relatively inconsequential to the current matter.

23. The applicant’s first sentence of imprisonment was in 2017 for a period of 3 months, on a call-up on a bond that was imposed for possessing a prohibited drug. He received concurrent sentences of imprisonment for 15 other offences, including possessing a prohibited drug, making or possessing equipment to make a false document, possessing a prohibited weapon and manufacturing a prohibited weapon without a permit. The overall total sentence was 12 months imprisonment, commencing on 17 May 2017 with a non-parole period of 6 months, expiring on 16 November 2017.

24. On 10 February 2020, the applicant received a 9 month Community Correction Order for four offences, including an offence of having goods in custody and possessing equipment to make identity information, and a 7 month Intensive Correction Order for a firearm and a prohibited weapon offence. A condition of both orders was that he be supervised by Community Corrections and partake in treatment programs, noting that he had a history of treatment at Odyssey House. All six offences were committed on 5 February 2019. The applicant was remanded in custody for 5 months from that date, which presumably was taken into account in that sentencing exercise.

25. The applicant’s custodial record includes a disciplinary entry for failing a prescribed drug test on 24 February 2024, for which he received a relatively heavy penalty of 42 days off contact visits and buy-ups.

Witness evidence at the sentence hearing

26. The officer-in-charge of the investigation gave evidence to the effect that when the applicant was arrested on 11 November 2022, he declined to be interviewed, citing legal advice to that effect. However, when shown a fact sheet that included the charges on which he was sentenced, he told police they were “pretty accurate”, thus freely admitting to the offences. He also told police on that occasion that he was a “drug user”.

The evidence tendered by the defence

A report by a Forensic Psychologist

27. Tendered on the applicant’s behalf was a report by a Forensic Psychologist, Kris North, dated 7 August 2024, which canvassed his personal background and circumstances, to the following effect.

28. The applicant identified as an Aboriginal man who was the youngest of three children to his parents. He described a sense of fear and neglect from his father throughout his youth, consequent to his father being abusive towards the applicant’s mother and physically abusive towards himself and two older siblings. This included, from the age of 9, being struck with a belt, lifted by the ears, hit with pots and pans and being nearly drowned in a fishpond. His mother struggled with mental health issues, including emotional lability and episodes of mania, which improved upon receiving later treatment.

29. The applicant’s parents separated in 2020 when it was discovered that his father had a second family. He reported having no recent contact with his father or siblings but he has continued to have regular contact with his mother (I note that the sentencing judge acknowledged the presence of the applicant’s mother and sister-in-law in court during the hearing and delivery of sentence).

30. The applicant described being sexually assaulted from the age of 11 and 12 by a male teacher at his school. The abuse progressed from cuddling and kissing to oral sex and anal penetration. The applicant stated that he would be threatened by the perpetrator when he tried to end the abuse. He changed schools at the end of Year 6 to avoid further abuse and subsequently developed a negative attitude to authority figures. Prior to the sexual abuse, the applicant described himself as an above-average student who was engaged in school and had a lot of friends.

31. The applicant moved out of the family home when he was 16 and maintained part-time employment at cafes and restaurants to support himself whilst completing his schooling. He completed Year 12 in 1995 and pursued an acting career thereafter, hosting dance parties in 2000 and being a licensee for bars and clubs until 2011 or 2012.

32. The applicant described symptoms of depression and anxiety since his adolescence and reported commencing drug use to manage these symptoms. He first used cannabis when he was 13 and then daily throughout high school, stating that it reduced anxiety and unwanted thoughts. He used ecstasy and lysergic acid diethylamide (LSD) during his adolescence, using LSD on a daily basis throughout high school. Between the ages of 21 and 26, he used cocaine habitually, and benzodiazepines daily. He used methamphetamine and GHB on a daily basis from the age of 27 until his arrest. He said he did so to block unwanted thoughts and emotions stemming from his abusive home environment and the sexual abuse.

33. The applicant reported completing two episodes of drug use treatment at the Sydney Clinic in 2006 and 2010 and a residential treatment program at Odyssey House in 2019, which was motivated by a desire to have contact with his children rather than to achieve long-term abstinence. He disclosed his childhood abuse to Odyssey House staff, absent the sexual abuse.

34. The applicant was married from 2005 to 2011 and has two children, aged 13 and 16 (at the time of assessment). He described his life as having “spiralled out of control” from around 2011 and 2012. His work in the hospitality industry led to an escalation in his drug use and he resorted to stealing money from his business to finance his drug and gambling habits. Around this time, he and his wife separated. He was declared bankrupt and experienced homelessness over the following five years.

35. As to the circumstances of the offences, the applicant told Ms North that he:

“… became involved with his co-offenders as a means of obtaining ‘free drugs’ [and that] at the time of his involvement he had not been aware of the operation and acknowledged he had been naïve.”

36. The applicant described difficulties in custody, with:

“… managing his emotions, difficulties sleeping, nightmares, generalized fears, increased levels of physical tension, difficulties experiencing positive emotions, and reduced motivation …”

37. His scores on a self-report scale, known as the DASS-42, placed him in the “extremely severe” range for anxiety, in the “severe” range for depression and in the “moderate” range for stress.

38. Ms North noted the applicant expressed regret and embarrassment for his behaviour. Ms North considered that the applicant’s symptoms directly stemmed from his history of childhood trauma and represented symptoms of posttraumatic stress, and that his experiences of sexual abuse directly contributed to his onset of drug use. She was of the opinion that the applicant displayed insight into that link and accepted responsibility for his conduct. Ms North identified a provisional diagnosis of a Post Traumatic Stress Disorder, a Stimulant Use Disorder and a Sedative, Hypnotic or Anxiolytic Use Disorder.

39. Ms North said that, given that the applicant’s “substance use issues were identified as his main criminogenic risk factor”, his risk of re-offending could be reduced if he engaged in appropriate treatment. She noted that the applicant reported that he had not previously engaged with a psychologist to deal with all of his childhood trauma issues.

Excerpts of Justice Health and prison records

40. The record of the assessment by Justice Health of the applicant, two days after his arrest and entry into custody, was tendered. The applicant told the assessors that he had used methamphetamine, benzodiazepine, suboxone strips (buprenorphine) and cannabis oil within a week of entering custody.

41. Excerpts of the applicant’s prison records included his application to be accommodated on protection due to threats and standovers by fellow prisoners and to continue that status for the same reasons. He was placed on protection in July 2023 and remained there at the time of his sentence.

Other documentation

42. The defence bundle included a letter from a housing support worker at a homeless persons’ drop-in and resource centre (“The Station”) that was addressed to the Department of Housing, dated January 2020, which sought public housing for the applicant. It noted that the applicant had been “sleeping rough” since he left prison (presumably on the expiration of his non-parole period in November 2017). A letter from a private law firm dated 11 July 2024, addressed to the Court, confirmed that it had instructions from the applicant to investigate a possible claim for institutional child abuse, stating:

“[The applicant] says he has a willingness and desire to receive treatments such as mental health support to address the trauma suffered, and this treatment is generally more readily available and effective when accessed within the community.”

43. Excerpts from the Bugmy Bar Book were included in the defence bundle. They were the executive summaries of chapters on childhood sexual abuse, child abuse and neglect, homelessness, impacts of imprisonment and remand in custody, and unemployment.

44. Counsel for the defence orally requested that consideration be given to a referral to the Drug Court compulsory drug treatment program, if the sentence fell in the relevant sentence range.

Submissions by the parties as to special circumstances

45. Counsel for the defence submitted for “a significant finding of special circumstances” since it was the applicant’s first lengthy custodial sentence and on the basis of his need for rehabilitation and reintegration into the community with supervised supports. The Crown accepted that in the circumstances of the case, it was open to the Court to make a finding of special circumstances.

The remarks on sentence

46. The sentencing judge handed down the sentences two days after the sentence hearing: R v Campbell [2024] NSWDC 413. His Honour identified the offences and their maximum penalties, canvassed the agreed facts and made findings as to the objective seriousness of each offence. As to count 2, his Honour found that the applicant’s involvement in the trafficking of the cocaine was:

“… minimal and therefore … his conduct was at the lower end of the range of objective seriousness.”

47. The applicant’s conduct in count 1 was “somewhat greater”, such that the offending fell “below the mid-range of objective seriousness for offences of this kind”. In so finding, his Honour found that there was no evidence that the applicant recruited anyone or of him being superior in the syndicate to any other person, and that his motive for committing the two Commonwealth offences was the expectation of “free drugs”.

48. As to counts 3 and 4, the sentencing judge noted that such weapons were “at the bottom of the range for firearms”, so much so that possession of such items in Queensland was lawful. His Honour said:

“I find it understandable that a man who was for a number of years homeless, as I shall discuss later, may have obtained them to deter others who might steal from him.”

49. The s 166 matter was “below mid-range” but nevertheless of concern, since it was not the applicant’s first such offence.

50. His Honour turned to the Forensic Psychologist’s report, summarising it in detail. His Honour accepted the truth of the applicant’s personal history and, by inference, Ms North’s diagnoses and opinions, although his Honour observed that it would be unnatural for a person facing such serious charges to not feel a degree of depression and anxiety.

51. His Honour considered the applicant’s criminal history, noting that it was “largely what one comes to expect from a person who turns to drugs as a form of self‑medication, especially at the age of 13 years”.

52. His Honour found that the applicant was genuinely contrite and “truly remorseful”, as evidenced by his early pleas of guilty and his expressions of remorse to Ms North. His Honour took particular note of the applicant’s agreement with arresting police that the facts of the charges were “pretty accurate”, and stated that the applicant displays a prosocial attitude to life and a positive attitude to those in authority, such as the police.

53. As to the applicant’s prospects of rehabilitation and his risk of reoffending, the sentencing judge accepted Ms North’s opinion that the applicant’s substance use was his most significant criminogenic factor and that his engagement in appropriate treatment would reduce his risk of re-offending. His Honour noted that the applicant was now aged 46 and that his mother was prepared to accommodate him on his release from prison. His Honour also noted positive signs in the applicant’s post-arrest behaviour: he was employed in the prison system, unlike during his previous period of imprisonment, which pointed in a “positive direction towards rehabilitation”. His Honour referred to the letter from the applicant’s lawyers who are investigating an institutional child abuse claim and concluded:

“Not only does [the applicant] realise his drug use is or has been a form of self medication for his prior abuse, he has also resolved to avoid further offending and is prepared to seek appropriate treatment. That also augurs well for the future … Ms North’s report … clearly shows the disadvantage suffered by [the applicant] in his childhood, the reason he sought a male role model other than that of his father, which led to even worse abuse.

Those disadvantages and abuse led to the commencement of illicit drug use as a 13-year-old, leading to addiction, leading to a broken marriage, unemployment, homelessness and then crime.”

54. His Honour referred to submissions of defence counsel to the effect that the applicant’s childhood abuse, the maladaptive coping mechanism of his drug abuse and its link to the offending reduced his moral culpability, in line with what was said by the majority in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [43]-[44]. His Honour said:

“I accede to that submission. [Counsel] submitted that this is a case calling for a finding of special circumstances. That would only be necessary if the relevant sentence to be imposed was a State sentence, but that is not what I intend to do. I agree that the longer [the applicant] has on parole in the community under the supervision of Community Corrections, the greater will be his opportunity to resume a normal social life. I intend to fix a longer than usual parole period for the last Commonwealth sentence to be imposed to allow for that. I believe that this is permitted under the Crimes Act 1914 (Cth) s 16A(2)(n).” (emphasis added)

The sentences imposed

55. As noted, his Honour imposed an aggregate sentence for the two State offences, that is, count 3 (taking into account count 4) and the s 166 offence, of 1 year and 6 months imprisonment commencing on 11 November 2022, with a non-parole period of 1 year and 1 month, expiring on 10 December 2023. The indicative sentences for both offences, after the statutory 25 per cent reduction for the early guilty pleas, was imprisonment for 1 year. His Honour gave an indicative non-parole period for count 3 (which had a SNPP) of 9 months imprisonment. His Honour explained that: “I do not find special circumstances”.

56. For the two Commonwealth offences, his Honour also reduced the head sentences by 25 per cent for the pleas of guilty. For count 2, his Honour imposed a head sentence, after the reduction, of 3 years imprisonment, and a non-parole period of 2 years, to commence on 11 December 2023 and expire on 10 December 2025, on which date the applicant would be released to a Recognizance Release Order “subject to the next sentence”.

57. For count 1, his Honour imposed a head sentence, allowing for the 25 per cent reduction, of 3 years and 6 months imprisonment. As to the non-parole period, his Honour said:

“I have determined that the non-parole period, in order to aid in the rehabilitation of [the applicant] pursuant to the Crimes Act 1914 (Cth) s 16A(2)(n), to be two years. This sentence will commence on 11 December 2025. It will expire on 10 June 2029. The non parole period expires on 10 December 2027.

The overall effect of those sentences is that [the applicant] will be in custody from 11 November 2022 to 10 December 2027, a period of five years and one month, and will be released on parole for a further period of one year and six months, expiring on 10 June 2029.”

58. When handing down sentence, his Honour added:

“I find that you are an ‘eligible convicted offender’ under s 5A of the Drug Court Act 1998. Pursuant to s 18B of that Act, I refer you to the Drug Court to determine whether you should be the subject of a compulsory drug treatment order. Pursuant to s 18B(4), I direct the Registrar to send to the Registrar of the Drug Court the material required by that subsection.”

The appeal to this Court

59. I note three anomalies in the sentences imposed.

60. First, although his Honour stated that he did not find special circumstances in respect of the State offences, the ratio of the non-parole period to the total sentence (72 per cent) of the aggregate sentence is less than the statutory ratio and is thus contrary to s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Procedure Act), which effectively provides that that ratio must not be less than 75 per cent unless there is a finding of special circumstances.

61. Second, the sentences imposed for the two Commonwealth offences did not comply with s 19AB(1) of the Crimes Act 1914 (Cth) (the Crimes Act (Cth)), which requires that a Court must fix a single non-parole period in respect of two or more Commonwealth offences where the aggregate exceeds 3 years. The error is traceable to misinformation in an oral submission by the Crown Prosecutor. The error may be corrected pursuant to s 19AH(1) of the Crimes Act (Cth) by the setting aside of the non-parole period for count 2 and the recognizance release order for count 1 and fixing a single non-parole period in accordance with the Act; therefore, this error is not determinative of the issue of whether a lesser sentence is warranted.

62. Third, the sentencing judge miscalculated the non-parole period for count 1. His Honour nominated a starting-point sentence of 5 years, so that after the 25 per cent reduction for the early plea, the head sentence should have been 3 years and 9 months, not 3 years and 6 months.

63. Further, I note the sentencing judge’s finding that the applicant was an “eligible convicted offender” pursuant to s 5A of the Drug Court Act 1998 (NSW) and referred to the Drug Court. Neither party has referred to this aspect of the sentence. The applicant does not seek a similar order if the Court finds merit in this appeal and re-sentences the applicant. I disregard that aspect of the sentence for the purposes of this judgment, although, lest my so doing is understood to be an approval of that type of order in the circumstances of this case, I note that there may be an issue as to whether the jurisdiction of the Drug Court extends to Commonwealth offences: see for example R v Miller, R v Omar [2021] NSWDRGC 1 at [29].

Ground 1: The Court erred when setting the sentence commencement dates by failing to consider and/or apply the principle of totality

64. The applicant submitted that although the individual sentences were within range, by failing to apply the principle of totality, the overall sentence was excessive in all the circumstances. The failure to apply the totality principle was demonstrated by the absence of any mention of the principle in the remarks and the absence of accumulation of the non-parole periods. The failure to partially accumulate the Commonwealth offences was contrary to an express indication given by his Honour in the course of the sentence hearing, when he noted controversy as to whether an aggregate sentence could be imposed for the two Commonwealth offences [3] and said:

“Well, it’s safer for everybody if I just do two Commonwealth sentences, and make them partially concurrent.”

65. The applicant accepted that it is not essential for a sentencing judge to acknowledge that the principle of totality has been applied, but it must be apparent from the remarks as a whole that it was. The applicant submitted that one could not so conclude from a fair reading of the remarks in this case, in view of the close nexus between the two Commonwealth offences and the sentencing judge’s indication during the sentence hearing that the Commonwealth offences would be partly accumulated.

66. The respondent submitted that there could be no complaint as to the application of the totality principle to the State offences, which were accumulated in an orthodox fashion. The individual sentences imposed for the Commonwealth offences were, in all the circumstances, so lenient that the ultimate overall sentence, which was plainly intended by the sentencing judge, accurately reflected the applicant’s criminality, even though the sentences for the Commonwealth offences “were cumulative on each other and cumulative on the State offence”. That submission was succinctly developed orally, as follows:

“The position the respondent takes is that his Honour must have, on a final look back in terms of totality, come to the conclusion that because the sentences his Honour had imposed for each of the Commonwealth sentences were comparatively lenient ones, then on an overall look back the obligation to reflect the gravity of the overall offending required that wholly cumulative sentences were imposed, allowing for the fact that there was a degree of concurrency in the State sentence by way of the aggregate sentence.”

67. The respondent cautioned against reliance on what was said by the sentencing judge in the course of the sentence hearing in view of authority to the effect that error disclosed in interchanges between the Bench and counsel during submissions that is not repeated in the remarks on sentence, “strains the limits of permissible grounds of appeal”: Hampton v R [2014] NSWCCA 131; (2014) 243 A Crim R 193 per Johnson and Bellew JJ at [23].

Ground 2: The Court erred when determining the structure of the sentences by:

Having regard to a “usual period of parole’” when no such usual period applied, and/or;

By not giving effect to the sentencing judge’s stated intention to “fix a longer than usual parole period”

68. This ground refers to a phrase in the passage of the sentence judgment extracted at [54] above. The applicant submits that the sentencing judge’s intention as stated in that paragraph, although unclear, is apparently based on false assumptions.

69. It is likely that “the relevant sentence” in that passage referred to the sentence for count 1, since that was the last sentence in the sequence and thus the one that stipulated when the applicant would become eligible for release. However, unlike the statutory ratio that applies to sentences for State offences pursuant to s 44(1) of the Sentencing Procedure Act, there is no norm nor “usual parole period” for Commonwealth offences of the type that were committed by the applicant: Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [36]-[37], [44]. Accordingly, it is not apparent what his Honour meant by his stated intention to “fix a longer than usual parole period”. The applicant submitted that perhaps his Honour had in mind the non-parole period ratio of 75 per cent that applies to State sentences of imprisonment. However, if that was so, the overall non-parole period ratio for the total sentence was 77.2 per cent, which is contrary to that assumption.

70. The respondent submits that the sentencing judge’s intention in the passage in question is discernible, if not clear, namely: his Honour correctly noted that a finding of special circumstances did not apply to the Commonwealth sentencing regime; his Honour accepted that the applicant would benefit from a reasonably lengthy parole period and corresponding supervision to facilitate his rehabilitation; and his Honour intended to provide that parole period when sentencing for the most serious Commonwealth offence. The respondent continued:

“It was therefore a considered decision by the sentencing judge to impose the final sentence for the most serious of all the offences, even though it was the first count on the indictment. Accordingly, the respondent submits that the sentencing judge’s reasoning process is sufficiently clear that ground 2 should not be upheld on the basis of any lack of clarity in his Honour’s reasons.”

Consideration

71. In Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, the Court, at 63, approved the following succinct statement of the totality principle in D A Thomas, Principles of sentencing (2nd ed,1979, Ashgate Publishing):

“The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is ‘just and appropriate’. The principle has been stated many times in various forms: ‘when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong[’]; ‘when … cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences’.”

72. In JT v R [2012] NSWCCA 133, Rothman J (Whealy JA and Davies J agreeing) said at [73] that the application of the totality principle is:

“… at the essence of the intuitive or instinctive synthesis. As a consequence, once a sentencing judge notes that the principle is being applied (or plainly, by an examination of the process involved, has applied the principle), assuming the facts are correctly stated, in order for an appeal court to intervene, the result must manifest an incorrect application of the principle. Otherwise, interference with the result is impermissible.”

73. Although the State sentences were aggregated, the first Commonwealth sentence imposed was made wholly consecutive on the non-parole period of the State sentence and the second Commonwealth sentence was made wholly consecutive on the expiration of the first Commonwealth sentence. In those circumstances, it would be expected that the sentencing judge would explain how the totality principle has been applied, since (the two State offences aside) it has not been applied by aggregation.

74. The respondent submitted that it is open to this Court to infer that the sentencing judge applied the principle by imposing lenient sentences for each offence; but again, if that was so, one would expect the sentencing judge to have said as much. Although the sentences were lenient, they followed on findings that were very favourable to the applicant and well within the sentencing judge’s discretion in view of the material grounding them; as to the objective seriousness of the offences, his level of moral culpability, contrition, remorse and his commitment to rehabilitation. In those circumstances, it could not be assumed that the sentences were reduced from what they otherwise would have been to reflect the principle of totality.

75. Accordingly, I would uphold ground 1.

76. It is unnecessary to determine ground 2 and I decline to make a finding as to what the sentencing judge may have intended. I move to re-sentence.

Re-sentence

The sentences imposed on the applicant’s co-offenders

77. The parties tendered an agreed summary of the roles and the subjective cases of three of the applicant’s four co-offenders and the sentences imposed on them, to assist the Court in the event that the applicant is to be re-sentenced. I understand that the fourth co-offender is yet to be sentenced. I have regard to that summary and, as well, the other sentencing material that has been provided to the Court in respect of the three co-offenders who have been sentenced.

78. The charges against Mr Bui were consistent with his broader and longer involvement in the criminal group. His role was to track the importations, arrange interstate transport of the drugs and purchase the toolboxes within which the drugs were secreted. He was sentenced for two Commonwealth offences and one State offence.

79. The first Commonwealth offence was the same offence as count 1 of the charges against the applicant, namely, that he imported a commercial quantity of a border controlled drug (53.467kg of methamphetamine) between 12 and 21 September 2022, contrary to s 307.1(1) of the Criminal Code. Two other offences were taken into account. Both were counts of trafficking in a commercial quantity of a controlled drug (one being methamphetamine and the other cocaine), contrary to s 302.2(1) of the Criminal Code (maximum penalty life imprisonment).

80. The second Commonwealth offence was importing a marketable quantity of a border controlled drug (cocaine), contrary to s 307.2(1) of the Criminal Code (maximum penalty 25 years imprisonment). Two matters were taken into account. One was trafficking in a marketable quantity of a controlled drug (492.7g of cocaine), contrary to s 302.3(1) of the Criminal Code and importing a marketable quantity of a border controlled drug (cocaine), contrary to s 307.2(1) of the Criminal Code.

81. The State offence was supplying a large commercial quantity of a prohibited drug (98.111kg of 1,4-Butanediol), contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (maximum penalty of life imprisonment). The offence has a SNPP of 15 years imprisonment. Taken into account was an offence of supplying a prohibited drug (99.42g of methylamphetamine), contrary to s 25(1) of the Drug Misuse and Trafficking Act.

82. Following a successful Crown appeal against leniency of sentence (R v Bui [2025] NSWCCA 114), Mr Bui was re-sentenced as follows. For the State offence, after a discount of 25 per cent for an early plea of guilty, he received a sentence of 4 years and 6 months imprisonment, with a non-parole period of 3 years. For the two Commonwealth offences, after a 25 per cent discount for early pleas of guilty, he received an aggregate sentence of 7 years and 6 months imprisonment, with a non-parole period of 4 years. The indicative sentences were, for the first Commonwealth offence, 5 years and 3 months imprisonment and for the second, 3 years imprisonment. The aggregate sentence for the Commonwealth offences was backdated to commence a year after the commencement of the sentence for the State offence, so that the total effective sentence was 8 years and 6 months imprisonment with an effective non-parole period of 5 years. The ratio between the effective non-parole period and the effective head sentence is about 59 per cent.

83. Mr Bui’s subjective case included the following. He was born in Vietnam and in 1987, when he was aged 2, his family fled by boat, eventually being accepted into Australia. He was diagnosed with epilepsy in 2002 and, for that reason, was bullied at school. His home environment was difficult; his parents separating in the same year and divorcing four years later. He began using methamphetamine from Year 10 and developed a drug addiction, finding work as a cannabis crop sitter. I note that in 2017, he was convicted of cultivating a large commercial quantity of cannabis and supplying a prohibited drug (not cannabis). He received an aggregate sentence of imprisonment of 3 years and 6 months.

84. Mr Aphichotnithithon was also sentenced for the same Commonwealth offence as the applicant, and as well, four State offences. For the Commonwealth offence, he received a sentence of 3 years imprisonment, to be released after 18 months. He was involved in moving the drugs, including interstate. He was found to have a lower level of involvement than the applicant or Mr Bui. As to his subjective case, he was born in Thailand and had no prior convictions. As a child he was sexually abused. He had no drug, alcohol or gambling issues.

85. The third co-offender (Joseph Barber-Battese) was sentenced for a single State charge of aiding and abetting the trafficking of a marketable quantity of cocaine (492.7g). Following a plea of guilty in the Local Court, for which he received a 25 per cent discount, an Intensive Correction Order for a period of 2 years was imposed. His role was confined to taking the cocaine, which was inside a toolbox and already in Brisbane, moving it into the storage facility at Coorparoo, ensuring it was received, and checking its contents.

Determination

86. Pursuant to s 5 of the Sentencing Procedure Act and s 17A(1) of the Crimes Act (Cth), I am satisfied that no sentence other than a sentence of imprisonment is appropriate for the State and Commonwealth offences respectively. In fixing the sentences, I take into account the matters identified in s 3A of the Sentencing Procedure Act and s 16A of the Crimes Act (Cth) in relation to the State and Commonwealth offences respectively.

87. As to the Commonwealth offences, I allow a 25 per cent discount for the early pleas of guilty. I note the mandatory statutory 25 per cent discount for the applicant’s early plea to the State offences. I adopt the sentencing judge’s findings as to the objective seriousness of the offences, the applicant’s level of moral culpability, his contrition and remorse and the applicant’s commitment to rehabilitation. I note that no alternative findings were sought by the applicant. I find that special circumstances are made out on the basis of the applicant’s need for an extended period of supervision in order to reinforce his commitment to abstain from the use of prohibited drugs, although the variation of the ratio of the overall sentence and the non-parole period will be modest.

88. For the State offences, I would impose an aggregate sentence of 18 months imprisonment with a non-parole period of 12 months. For the offence of possessing an unauthorised prohibited firearm, taking into account the offence of possessing an unauthorised firearm, I would indicate a sentence of 12 months imprisonment with a non-parole period of 7 months. For the offence of possessing equipment/material to make identification documents, I would indicate a sentence of 12 months imprisonment.

89. As to the two Commonwealth offences, I would impose sentences of imprisonment of 3 years for count 2 and 3 years and 6 months for count 1. I would impose a single non-parole period, pursuant to s 19AB(1) of the Crimes Act (Cth), of 3 years and 8 months.

90. As to parity, I am conscious of the similarities and dissimilarities between the instant sentencing exercise and, in particular, the sentences of Messrs Bui and Aphichotnithithon, including that all three offenders were convicted of the same s 307.1 count.

91. The principle of totality will be reflected in the structure of the sentence, taking into account that although there is disconnection between the nature and circumstances of the Commonwealth and State offences, they were all committed around the same time. The effective total sentence would be 6 years and 6 months imprisonment with an effective non-parole period of 4 years and 8 months, which is a ratio of 72 per cent, reflecting my finding of special circumstances.

92. Pursuant to s 16F of the Crimes Act (Cth), I would request that the applicant’s legal representatives explain the purpose and consequences of fixing the non-parole period for the Commonwealth offences to the applicant.

Orders

93. Accordingly, I would propose the following orders:

94. Grant leave to appeal;

95. Allow the appeal;

96. Quash the sentences imposed in the District Court on 16 August 2024 and in lieu thereof, sentence the applicant as follows:

(a) For count 3 and the s 166 offence, the applicant is sentenced to an aggregate sentence of 18 months imprisonment to date from 11 November 2022 and expire on 10 May 2024, with a non-parole period of 12 months, to expire on 10 November 2023;

(b) For count 2, the applicant is sentenced to imprisonment for 3 years, to date from 11 November 2023 and expire on 10 November 2026;

(c) For count 1, the applicant is sentenced to imprisonment for 3 years and 6 months, to date from 11 November 2025 and expire on 10 May 2029.

(d) For counts 1 and 2, a single non-parole period of 3 years and 8 months is fixed, to commence on 11 November 2023 and expire on 10 July 2027.

94. CHEN J: I agree with Ierace J.

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Endnotes

Sections 166 and 167(2) of the Criminal Procedure Act 1986 (NSW); a related offence that may be dealt with in the District Court, subject to the Local Court jurisdictional limit.

The location borders on Sydenham and St Peters, and is variously referred to in the agreed facts as being in both suburbs.

At the time of the sentence hearing this Court was reserved in McGregor v R (2024) 116 NSWLR 81; [2024] NSWCCA 200, in which an issue to be determined was whether aggregate sentencing under s 53A of the Sentencing Procedure Act can be applied to Commonwealth offences.