Can v R

Court of Criminal Appeal (NSW)|2023-05-22|Before: Beech-Jones CJ, Rothman J, Chen J

J Styles (respondent) Solicitors: Solicitor for Public Prosecutions (NSW) (respondent) File Number(s): 2020/296867 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 14 December 2021 Before: Neilson DCJ File Number(s): 2020/296867

HEADNOTE [This headnote is not to be read as part of the judgment] On 14 December 2021, Vural Can ('the applicant') pleaded guilty to two charges: first, that he did possess, for the purpose of supply, a prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW) ('the DMTA'); and, secondly, that he did possess, for the purpose of supply, a prohibited drug, being an amount which was not less than the commercial quantity applicable to that prohibited drug, contrary to s 25(2) of the DMTA. The circumstances of the offending were not in dispute. On 15 October 2020, the applicant left the Meriton Suites in Sydney, where he had been staying the day prior with his friend Zekki Saffo, carrying two bags. The applicant travelled in a taxi, driven by Mehmet Dundodar, to his home address. Upon arriving at his address, the applicant indicated to Dundodar that he was going upstairs to collect something from his apartment, and left the two bags on the backseat of the taxi. The applicant was stopped and searched by police at the entrance of his apartment complex, and the taxi was subsequently searched. In the two bags, the police located 59.74 grams of methylamphetamine, and 3,356.5 grams of GBL, as well as a pipe for smoking, a number of unpacked syringes, and a small set of electronic scales. On 24 August 2021 the applicant, who at this time was represented by a solicitor, appeared by AVL in the Local Court and his solicitor advised the Court that the applicant entered pleas of guilty to the majority of the sequences. The applicant was sentenced by Neilson DCJ on 14 December 2021 to 4 years, with a non-parole period of 3 years. Notwithstanding his guilty pleas, the applicant sought leave to appeal his conviction, and the sentence imposed. In the conviction appeal, the applicant advanced two grounds: first, that he was wrongfully convicted for the offences that he "clearly disputed and denied"; and, secondly, that the sentencing judge took into account phone records which had been inaccurately translated from Turkish to English. In the sentence appeal, the applicant advanced four grounds: first, that the sentencing judge erred by not taking into account evidence regarding the applicant's mental health; secondly, that that the sentence imposed was manifestly excessive; thirdly, that the applicant had not received a sentencing discount for the impact of COVID-19 on his custodial sentence; and, fourthly that the sentencing judge failed to take into account the applicant's age. The Court held (Chen J, Beech-Jones CJ at CL and Rothman J agreeing): As to the conviction appeal: 1. The applicant was rightly convicted of the two drug supply offences: those offences were established beyond reasonable doubt. Further, at no point during the sentencing hearing, did the applicant seek to change his pleas of guilty. To the contrary, the applicant gave evidence admitting the offences offences such that there can be no challenge to the integrity of his plea of guilty, or a real question about his guilt: [29]-[44]. Sabathy v R [2008] NSWCCA 82; Thafer v The Queen [2019] NSWCCA 143; Layt v The Queen [2020] NSWCCA 231 R v Davies (1993) 19 MVR 481; R v Toro-Martinez (2000) 114 A Crim R 533; [2000] NSWCCA 216 applied. 1. To the extent that the sentencing judge relied upon the telephone calls between the applicant and others in Turkish, the telephone calls between the applicant and Saffo (which were alleged to be incorrectly translated) were used only to demonstrate the existence of the relationship between them - a fact that was established on other evidence, including the applicant's. The text messages between the applicant and Mira were in English, and thus no error of translation could be said to arise: [45]-[50]. As to the sentence appeal: 1. The sentencing judge accepted and acknowledged that the applicant had been diagnosed with several mental illnesses while in custody. If, and to what extent, the applicant's mental illnesses reduced the moral culpability of his offending was a matter for the sentencing judge. While it is accepted that mental illness may mitigate the type and length of a sentence imposed no evidence was put before the sentencing judge that the applicant's imprisonment would prove more onerous by reason of his mental health conditions: no error can therefore arise: [57],[62]. Geraghty v The Queen [2023] NSWCCA 47 applied. 1. There is no inherent sentencing 'discount' for COVID-19. Further, the applicant did not advance any submissions before the sentencing judge that the conditions of his imprisonment would prove more onerous due to the impact of the pandemic. The Court has no authority to resentence the applicant on the basis of the possible impact on prisoners of the COVID-19 pandemic: [68]-[69]. Borg v The Queen; Gray v The Queen [2020] NSWCCA 67; Toller v The Queen [2021] NSWCCA 204 considered. 1. The applicant, at his sentencing hearing, did not advance any submissions on the basis of his age. The present circumstances are not of an exceptional kind which warrant the intervention of the Court: [76]. Zreika v R (2012) A Crim R 460; [2012] NSWCCA 44 considered. 1. The sentence imposed on the applicant was not unreasonable or plainly unjust. Notwithstanding that the offending fell below the mid-range of objective seriousness, it was open to the sentencing judge to impose the sentence that he did considering the quantity of the drug, the applicant's criminal history and that the offending occurred whilst the applicant was on parole. Geraghty v The Queen [2023] NSWCCA 47 applied.

JUDGMENT

BEECH-JONES CJ at CL: I agree with Chen J.
ROTHMAN J: I agree with Chen J.
CHEN J: On 15 October 2020, Vural Can ('the applicant') was charged with four drug supply offences contrary to ss 25(1) and (2) of the Drug Misuse and Trafficking Act 1985 (NSW) ('the DMTA').
On 24 August 2021, when the matter was before the Local Court, the applicant (through his solicitor) pleaded guilty to two substantive charges (sequences 1 and 2) - being: 1. That between 8pm and 8.08pm on 15 October 2020, at Eastlakes, he did possess, for the purpose of supply, a prohibited drug, namely 59.74 grams of methylamphetamine, contrary to s 25(1) of the DMTA; and 2. That between 8.08pm and 8.50pm, on 15 October 2020, at Eastlakes, he did possess, for the purpose of supply, a prohibited drug, namely 3.356 kilograms of gamma butyrolactone ('GBL'), being an amount which was not less than the commercial quantity applicable to that prohibited drug, contrary to s 25(2) of the DMTA.
At the same time, sequence 3 was withdrawn, and sequence 4 was placed on a Form 1 to be taken into account when sentencing for sequence 2.
Following the entry of pleas of guilty in the Local Court, the applicant was committed to the District Court for sentence. On 14 December 2021 the applicant was sentenced by Neilson DCJ: an aggregate sentence was imposed for the two principal counts of four years, with a three-year non-parole period commencing 1 January 2021. [1]
Notwithstanding the pleas of guilty, the applicant by notice of appeal filed 3 October 2022, challenges his conviction, and the sentence imposed. By that notice of appeal, six grounds are advanced: 1. That he was "wrongfully convicted and sentenced for the offences that [he] clearly disputed". 2. That the "Judge erred by not taken into account expert evidence regarding mental condition". 3. That the "sentence imposed was manifestly excessive". 4. That the "Judge erred by taken into account wrongly translated phone record which was not relevant to actual charges". 5. That the applicant "was denied discount for COVID-19". 6. That the judge "fail to take into account my age".
The Crown noted in its written submissions that the applicant's notice of appeal was filed out of time - but did not oppose an order extending the time for the filing of it. Given the Crown's position, that extension of time should be granted.

The circumstances of the offending

The background facts relating to offending are drawn from the statement of Agreed Facts dated 24 August 2021 - which were in evidence before the sentencing judge, were signed by the applicant and not disavowed by him (except as covered by ground 4).
The applicant was a long-time friend of Zeki Saffo ('Saffo'), a drug dealer and co-offender.
The conduct giving rise to each of the drug supply offences occurred on 15 October 2020. On that day, and for a day prior, the applicant visited, and was present at, a unit (7305) in the Meriton Suites in Liverpool Street, Sydney. Saffo was also present during that time, carrying out his drug dealing business and the room was registered in his name.
On 15 October 2020, the applicant was observed on CCTV footage at the Meriton Suites at 7:42pm, walking towards the lifts carrying two bags - a Woolworths shopping bag, and a black laptop bag.
Upon exiting the premises, the applicant walked along Liverpool Street and entered a taxi that was parked in the taxi rank on that street. The driver of the taxi was Mehmet Dundodar - a person who the applicant described in evidence to have a "serious" criminal record, and "deal with drugs daily". The applicant placed the shopping bag and laptop bag on the back seat of the taxi, and then entered the front passenger seat. The applicant directed the taxi driver to take him to an address in Eastlakes where the applicant lived.
The taxi did not make any stops after leaving Liverpool Street, nor did it pick up any other passengers en route to the applicant's address.
The taxi arrived at the applicant's address around 8:05pm. When it did, the applicant indicated to the driver that he was going upstairs to collect something, and he left the two bags on the backseat of the taxi. At the entrance to his apartment complex, the applicant was stopped and searched by police.
Police searched the taxi, and located the black laptop bag and the Woolworths shopping bag. The applicant denied ownership or knowledge of the bags when questioned about them by police. The sentencing judge found that what the applicant told police as to these, and other related, matters was a "blatant lie" (ROS at [7]).
Upon searching the bags, the police located in the laptop bag two resealable plastic bags containing a total of 8.67 grams of methylamphetamine, another 0.77 grams of methylamphetamine, a plastic bottle labelled "Swiss Women's Multivitamins" containing 51.07 grams of methylamphetamine, and one plastic bottle with a green lid containing 39 grams of GBL. Also within the laptop bag, amongst a range of items, was a pipe for smoking, a number of unpacked syringes and a small set of electronic scales. In the Woolworths bag, the police found one plastic bottle labelled "Icelandic Glacial" containing 1.616 grams of GBL, another plastic bottle labelled "NU" and one brown bottle labelled "V Rich Chocolate" containing 968.3 grams of GBL, and two plastic bottles containing 733.2 grams of GBL.
In total, 59.74 grams of methylamphetamine was located (solely in the black laptop bag), and a total of 3,356.5 grams of GBL.
The applicant's DNA was found on items within the black laptop bag and the Woolworths shopping bag.

The procedural history

On 24 August 2021 the applicant, who was represented by a solicitor, appeared by AVL in the Local Court.
At that time, the solicitor representing the applicant advised the Court that the applicant entered pleas of guilty to sequences 1 and 2, that sequence 3 was to be withdrawn and sequence 4 was to be placed on a Form 1 at sentence. At that time it was noted that an amended charge certificate, case conference certificate and Agreed Facts (signed by the applicant) had been filed.
The applicant was committed for sentence to the District Court on 24 September 2021. The Magistrate noted that bail was not sought, and it was formally refused. The Magistrate also advised the applicant that he would appear by "AVL on the next occasion", to which the applicant responded: "Thank you, your Honour".
At the listing in the District Court on 24 September 2021, the applicant was again represented by his solicitor. A sentence assessment report was ordered, and the sentence hearing was fixed for 14 December 2021.
The sentence hearing was listed before Neilson DCJ on 14 December 2021. The applicant was represented by counsel, instructed by his solicitor. The applicant was called to give evidence. Although it will be necessary to return to some of the detail of this evidence when considering the specific grounds advanced by the applicant, it is sufficient to presently note that when giving evidence, the applicant accepted his guilt in connection with those offences. Unsurprisingly, the written submissions that were filed on the applicant's behalf confirmed this as well.

The conviction appeal

The applicant raises two grounds of appeal - grounds 1 and 4 - in connection with his conviction.

Ground 1: wrongful conviction

Ground 1 of the applicant's notice of appeal complains that he was "wrongfully convicted and sentenced for the offences that [he] clearly disputed and denied". From the written submissions filed, there are four sub-grounds - being (applicant's submissions, p 2): 1. First, he did not enter a guilty plea formally and disputed the charges, meaning that he was wrongfully convicted and sentenced. 2. Secondly, the Crown case against him was "consistent with feeble, insufficient misleading evidence" to prove the case. 3. Thirdly, the Crown "fabricated evidence in order to convict [the applicant], therefore it was a miscarriage of Justice". 4. Fourthly, the "Judge made clear errors by mistakenly taking into account unfounded facts, irrelevant considerations".
From the applicant's written submissions, and the oral submissions put to this Court, the applicant's argument in relation to this ground can be divided into two parts. The first relates to the applicant's contentions that, in effect, he "was not selling drugs": that is, he had no "knowledge" of the drugs, and he did not financially (or materially) gain from any supply - with the consequence, it was argued, that he should not have been convicted. The second relates to the entry of the guilty pleas, and the circumstances surrounding the entry of those pleas - the applicant argues that the circumstances are such that he should be given leave to withdraw those pleas.
In my view, as I explain below, given the evidence at the sentencing hearing (including the evidence given by the applicant), the applicant was rightly convicted of the two drug supply offences: those offences were established beyond reasonable doubt. It follows, therefore, that the applicant should be refused leave to withdraw his pleas.

The "limited" role of the applicant in the drug supply

The applicant's argument in this Court was that although he took the bags containing the drugs from "Zeki" (viz., Saffo) - who had asked him to pass the bag to Mehmet Dundodar (the taxi driver) - he was unaware that they contained drugs. The applicant also emphasised that he did not gain, financially or otherwise, from what occurred. The applicant thus argued that he was not supplying or selling drugs as the Crown alleged, and accordingly should not have been convicted of the offences notwithstanding his pleas of guilty. A variant to the broad thrust of these submissions was the applicant's submission that what he pleaded guilty to was the commission of these discrete acts - and not more, and certainly not drug supply offences - and that those that represented him failed to appreciate this.
In my view, the matters advanced by the applicant create no reason to doubt the correctness of the conviction. On the evidence at his sentencing hearing, including that which the applicant gave, the applicant was undoubtedly guilty of the drug offences under ss 25(1) and (2) of the DMTA. [2]
The applicant was prosecuted on the basis of deemed supply under s 29 and Schedule 1 of the DMTA - that is, by reason of the quantity of each drug (GBL and methylamphetamine) being above the traffickable quantity prescribed in Column 1 of Schedule 1 of the DTMA. [3] There are three elements to supply offences based on s 29 of the DMTA: first, that there was a substance which was a prohibited drug; secondly, the applicant possessed that substance; and, thirdly, the applicant possessed that substance for the purposes of supply: Huynh v The Queen [2020] NSWCCA 202 at [19].
There is no issue about the first element, and it was clearly established: Agreed Facts 18 and 19.
In relation to the second element, the applicant admitted, and the Agreed Facts otherwise demonstrate, that the applicant had the substance in his physical custody and control to the exclusion of any other person: see [12]-[19], above. The sentencing judge also found that based upon what the applicant admitted, and in particular from the "log of the CCTV comings and goings from room 7035 of the Meriton Suites in Liverpool Street, Sydney between 14 and 15 October 2020 that the [applicant] was engaged in assisting Saffo in his obvious drug trafficking": ROS at [29]. The sentencing judge further found that the applicant "was still actively involved in drug trafficking, albeit that there is no suggestion that he was doing so for any serious financial gain": ROS at [29]. Those findings significantly inform the assessment of the applicant's knowledge of what was in the bags. The applicant's knowledge is also significantly informed by the following matters: 1. First, by what the applicant admitted, including his admission in his evidence in chief, that he was "absolutely not trying to shift the blame or guilt to someone else, or deny the charges against me. I take full responsibility too for my action. 15 October 2020, I did supply drugs to taxi driver, Mehmet Dundodar …". 2. Secondly, the applicant's evidence about the activities being conducted in the apartment: HIS HONOUR Q. Mr Can, you concede that Zeki Saffo is a drug dealer. Correct? A. Yes, your Honour. For 30 years. Q. And he's a friend of yours? A. 35 years, your Honour. Q. And you were there at this apartment at the Meriton Suites in Liverpool Street in the city, not very far from this courthouse? A. That's correct. Q. And you were going down and bringing up to the unit, customers for Mr-- A. Zeki Saffo. Q. For Zeki? A. Zeki Saffo. Q. For Mr Saffo; and you did that regularly over a period of days, did you not? A. Two days, your Honour. Q. So you are helping him carrying out his drug dealing business. Correct? A. He was - he was asking me can you go and pick it up, someone downstairs. I said, okay, I'll just go down and pick him up. And he does what he does in a separate room. I don't - sometime, in front of my eyes, does it in the bench, sometimes he take in the room. So I don't exactly how much it was given to them or dealing them. Sometime I see; sometime I don't. Q. You knew that they were coming to see Zeki Saffo in order to buy drugs, weren't they? A. That's correct, your Honour … Q. But you were helping Zeki Saffo sell drugs, weren't you? A. Yes, I was - yes. You know why? Yes, your Honour. I wasn't getting the profit of it though, you know, that was his.
And, later, following on from this evidence, the applicant was further cross-examined as follows: Q. … You confirmed that today in your responses to his Honour, that you were present at the hotel room over those two days, and assisting him with the drug supplying. Is that right? A. Yes … And I know there's going to be drug there. I know he is going to sell drugs for on me, and asked me to do say, you know, call people. 1. Thirdly, the applicant's DNA was on the bottles with the drugs (Agreed Facts 23 and 24); the laptop bag was his and the laptop bag contained items that were indicative of supply - including two bags of resealable plastic bags, uncapped syringes and electronic scales. The sentencing judge considered (and found) that the plastic resealable bags and electronic scales were "indicia of drug supply": ROS at [9]. 2. Fourthly, when approached by police on 15 October 2020, and questioned in relation to the two bags, the applicant denied the bags were his, and told police a number of things, many of which the sentencing judge found "were patent lies": ROS at [7].
In my view the evidence demonstrated that the applicant knew or believed that what he had custody or control of were drugs, or was aware that there was a significant or real chance that it was.
In relation to the third element (viz., possessing the substance for supply), as the amounts of each drug exceeded the "traffickable quantity" of the drugs listed in Schedule 1, [4] the applicant was "deemed to have the prohibited drug in his … possession for supply": s 29(1) of the DMTA. The sentencing judge found as much: ROS at [27]. Further, and separate to the operation of s 29 of the DTMA, based on what the applicant told the sentencing judge, the applicant was in possession of the drugs for the purposes of supply: ss 3 (definition of supply) and 25(1) and (2) of the DMTA. [5]
The evidence referred to amply supports findings that each of the elements of the offence had been established beyond reasonable doubt.
Separately, there is no substance to the applicant's complaint that his arguments about why he had not committed any drug supply offences had not been appreciated: the essence of that argument was clearly set out in the letter of apology that the applicant addressed to the sentencing judge dated 26 November 2021. That letter that was tendered during the course of the sentencing hearing, and was clearly read and understood by the sentencing judge: the content of it formed the very basis of the Crown's cross-examination of the applicant and the sentencing judge's questioning of the applicant during the course of him giving evidence. Further, the sentencing judge identified the essence of the matters raised by the applicant in the sentencing judgment: ROS at [28]-[29].

The entry of the guilty plea

The applicant argues that, notwithstanding his pleas of guilty, he was "wrongfully convicted and sentenced" (applicant's submissions, p 2).
In relation to this argument, the following matters of context should first be noted: (a) the applicant was represented by a solicitor on 24 August 2021, when the plea was entered; (b) the applicant also appeared in court on that day, via AVL, and, following the plea of guilty to sequences 1 and 2, the Magistrate committed the applicant to the District Court for sentencing and refused the applicant bail: no matter was raised by the applicant at that time about his plea; (c) the applicant was represented by counsel, and his solicitor, at the sentencing hearing on 14 December 2021; (d) the applicant's counsel had prepared written submissions for the applicant's sentence hearing, dated 9 December 2021, where it was confirmed that the applicant had "pleaded guilty" to the two "supply prohibited drug" offences; and (e) when before the sentencing judge, the applicant raised no issue about his pleas: indeed, his evidence expressly - and repeatedly - admitted the offences: see the evidence at [33(1)], above.
Where, following a plea of guilty, an applicant seeks to appeal their conviction, the appeal is not ordinarily "an investigation of the appellant's guilt or innocence, but an examination of the integrity of his plea of guilty": Sabapathy v R [2008] NSWCCA 82 at [14] ('Sabapathy'); Thafer v The Queen [2019] NSWCCA 143 at [287]; Layt v The Queen [2020] NSWCCA 231 at [24] ('Layt'). Nevertheless, that broad principle is delimited in at least one presently relevant respect - viz., the Court will only permit an appeal against a conviction after a plea of guilty where the material before this Court "shows that there is a real question about the guilt of the accused": R v Davies (1993) 19 MVR 481, 485; R v Toro-Martinez (2000) 114 A Crim R 533; [2000] NSWCCA 216 at [27]; Layt at [28]. The ultimate question, in the circumstances raised here, is whether, within s 6 of the Criminal Appeal Act 1912 (NSW), a miscarriage of justice will occur if the applicant is not permitted to withdraw his plea: R v Rae (No 2) (2005) 157 A Crim R 182; [2005] NSWCCA 380 at [20]; Bobbe v The Queen (No 2) [2021] NSWCCA 150 at 70 ('Bobbe'); White v The Queen [2022] NSWCCA 241 at [58].
The applicant did not challenge any of these principles.
For this ground of appeal, leave is required because the ground raises a question of fact alone, or a question of mixed law and fact: s 5(1)(b) of the Criminal Appeal Act; Layt at [29]; Bobbe at [20].
In my view, leave should be refused because, as I have explained in [29]-[38], above, there is no "real question" about the guilt of the applicant: the evidence given at the sentence hearing only reinforced the applicant's guilt. It follows that no miscarriage of justice arises.
Nor, it should be added, and contrary to what the applicant argued, was there any form of irregularity in connection with entry of the plea because the charges were not read out to him before the plea was entered. There is no requirement for a represented accused to have charges read or explained to them by the Court before they enter a plea of guilty. As to this, two matters should be noted. First, under s 72 of the Criminal Procedure Act 1986 (NSW), the consequences of a guilty plea are required to be explained by an accused person's legal representative before the case conference certificate is completed. In this case, that certificate was noted to have been filed when before the Magistrate on 24 August 2021. Secondly, where an accused who wishes to change their plea to not guilty to the offence on which the accused person was committed, "the judge must direct that the accused person be put on trial for the offence": s 103(1) of the Criminal Procedure Act. At no point, however, when the matter was before the sentencing judge, did the applicant seek to change his plea; rather, he maintained it.

Ground 4: error relating to the translated phone records

By this ground, the applicant contends that the sentencing judge "erred by [taking] into account wrongly translated phone records which was not relevant to actual charges" (applicant's submissions, p 70).
The Agreed Facts contained transcripts of telephone conversations had between the applicant and Saffo on 6, 10 and 15 October 2020 (Agreed Facts, pars 3, 4, 5 and 21), as well as a transcript of text messages between the applicant and "Mira" on 15 October 2020 (Agreed Facts, par 26). Although not apparent from the Agreed Facts, it appears that the conversations that the applicant had with Saffo were conducted in Turkish, and translated into English. The text messages between the applicant and Mira were, it is accepted, in English: thus, the applicant's complaint is confined to the inaccuracy of the translation of the conversations with Saffo.
In my view there is no substance to this ground of appeal because, contrary to what has been argued by the applicant, the sentencing judge relied only upon the telephone calls between the applicant and Saffo as demonstrative of the relationship between them - a fact that was otherwise established by the evidence before the sentencing judge. So much is apparent from the reasons of the sentencing judge (ROS at [3]): There is a statement of agreed facts … Mr Zeki Saffo is referred to [as] a co-offender. Paragraphs [3] to [5] recite certain conversations that occurred between the offender and Saffo on 6, 10 and 15 October 2020. However, there is some conjecture about the accuracy of the telephone calls, because I have been told by the Crown that they were, indeed, conducted in Turkish and what has been provided to me is a translation into English and according to the [applicant's] oral evidence today there were some problems with the translation of some of the entries that are recorded in the statement of facts. Nevertheless, the phone calls as recorded do suggest a strong familiarity between the offender and Saffo, which the [applicant] freely acknowledged in his oral evidence, and of the [applicant's] knowledge of Saffo's role as a drug dealer with whom the [applicant] had been associated for many years.
Thus, as the Crown submitted, the sentencing judge used the contested transcriptions in a confined way; they were not, contrary to what was argued by the applicant, given "significant weight". There is no error in the approach of the sentencing judge in those circumstances even if errors occurred, as alleged, in the translation of those conversations.
Further, to the extent that the sentencing judge in ROS [15] relied upon, and had regard to, the text message exchange between the applicant and Mira, as I have earlier noted, that conversation was in English, not Turkish. Moreover, the applicant took no issue with the agreed fact that "police located other messages related to drug supply on the [applicant's] phone": Agreed Fact 27. Again, that agreed fact did not depend upon any translation.
In my view, for these reasons, this ground of appeal should be rejected.

The sentence appeal

Grounds 2, 3, 5 and 6 concern the applicant's sentence. Grounds 2, 5 and 6 allege specific errors, whereas ground 3 - which concerns whether the sentence is manifestly excessive - is not dependent upon identification of error of that kind. It has been said that as "the identification of specific error may assist to explain why, if it be so, a sentence is manifestly" inadequate or excessive, it is appropriate to deal first with the grounds alleging patent error: R v Harris (2015) 70 MVR 412; [2015] NSWCCA 81 at [46]; Taitoko v R [2020] NSWCCA 43 at [64]. I have adopted that approach when dealing with the grounds of appeal relating to the applicant's sentence.

Ground 2: the expert evidence regarding the applicant's 'mental condition'

By this ground, the applicant contends that the sentencing judge "erred by not taking into account cogent expert evidence regarding mental condition" (sic). In furtherance of this ground, the applicant also argued that: (a) the sentencing judge was in error "to state that there was nothing in the expert evidence to support a link between mental impairment and the offending"; (b) the sentencing judge was "required to consider the significance of cogent evidence as to the [applicant's] mental condition"; and (c) the fact that the applicant had diagnosed mental illnesses meant that his sentence was more onerous (applicant's submissions, pp 55-56).
The sentencing judge noted that the applicant had been diagnosed, whilst in custody, with schizophrenia, bipolar disorder and depression, and gave consideration to the psychological report from Chafic Awit (the psychologist who was retained by the applicant's solicitor to provide a report for the sentencing hearing): ROS at [30]. The sentencing judge found that the report "tells me what is common ground" - namely, that whilst in custody the applicant had been diagnosed by Corrective Services health personnel as suffering from the conditions identified above: ROS at [30]. The sentencing judge also found that "the cause of the psychotic illness is unknown. It may well have been caused by the offender's drug use": ROS at [30].
To the extent that the applicant challenges these findings, I do not accept the submission. In my view, not only was it open to the sentencing judge to make those findings, but they are plainly correct: the first reflected what the sentencing judge described as "common ground"; the second recognised that the only material in evidence in connection with this issue was the report from Mr Awit - which did not suggest a cause for the psychotic illness; nor, it should be pointed out, was a cause advocated in the applicant's sentencing submissions.
The applicant challenges a suggested factual error by the sentencing judge - a finding said to be to the effect that "there was nothing in the expert evidence to support a link between mental impairment and the offending". However, contrary to what was argued by the applicant, the sentencing judge did not make such a finding, and nor (as the applicant submitted) did the sentencing judge 'state' this. In any event, as I next explain, the evidence did not establish, such a connection.
There is no doubt that the existence of a mental illness or disorder can be relevant to the sentencing exercise: where that illness or disorder "contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence": DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177] ('De La Rosa'). Furthermore, in that situation, it may have the consequence "that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed" and it "may reduce or eliminate the significance of specific deterrence": De La Rosa at [177]. Consistent with these principles, before the sentencing judge it was argued that the evidence relied upon by the applicant "suggests that he was suffering from a mental illness at the time of offending" which was relevant to the applicant's "ability to reason and form a value judgment" and that elements of personal deterrence and general deterrence "carry less weight" (applicant's sentencing submissions at [29]). The 'evidence' referred to was confined to an 'opinion' from Mr Awit that the applicant "somewhat suffers from a reduced moral culpability due to his underlying conditions" and that the conditions from which the applicant suffered "have been well documented to impact decision-making ability".
In my view, the 'opinion' from Mr Awit to the effect that the applicant "somewhat suffers from a reduced moral culpability" is of doubtful utility. The reduced moral culpability of an offender is a normative assessment for the Court, or - as was submitted by the Crown - a "juristic finding for the sentencing court". Even if that were not so, the evidence had no weight. It was, therefore, open, in my view, for the sentencing judge to ignore the 'evidence', such as it was. The applicant, it should be observed, said nothing in his evidence (including his 'apology letter') about him labouring under the effects of his mental illness at the time of offending; in fact, in his 'apology letter' to the sentencing judge he only stated that, at the time of offending, he was "very tired".
Further, in relation to the evidence from Mr Awit that the applicant suffered from conditions that "have been well documented to impact decision-making ability", the generality of that evidence may be accepted. But it said nothing about whether, in the particular circumstances of the offending in this case, there was such an impact and, if so, in what way. Again, in my view, it was open to the sentencing judge to ignore this 'evidence'.
In those circumstances, I do not consider that there is any error in the failure of the sentencing judge to make a finding that at the time of the offending the applicant was suffering from a mental illness that contributed in a material way to his offending.
The applicant next argued that imprisonment would be more onerous upon him by reason of his mental health conditions.
It is not in doubt that illness or poor health can mitigate the type and length of a sentence. As recently explained in Geraghty v The Queen [2023] NSWCCA 47 at [108] ('Geraghty'), when illness or poor health are relied upon: … there are two relevant principles in play. The first is that the weight to be given to illness or poor health is to be assessed in light of "all the circumstances of the case, and an appropriate balance has to be maintained between the criminality of the offender and any damage to health or shortening of life": R v Achurch. [6] The second was identified by King CJ in R v Smith: [7] The state of health of an offender is always relevant to the consideration of the appropriate sentence for the offender. The courts, however, must be cautious as to the influence which they allow this factor to have upon the sentencing process. Ill-health cannot be allowed to become a licence to commit crime, nor can offenders generally expect to escape punishment because of the condition of their health. It is the responsibility of the Correctional Services authorities to provide appropriate care and treatment for sick prisoners. Generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his [or her] state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender's health.
Nevertheless, I do not accept the applicant's argument that the sentencing judge erred in failing to make allowance for the applicant's mental health conditions. That is because there was no evidence before the sentencing judge to support a finding, in line with the above authorities, that imprisonment would be a greater burden on the applicant by reason of his mental health conditions, nor was there evidence that there was a "serious risk of imprisonment having a gravely adverse effect" on the applicant's health. Again, this issue was simply not addressed at all by the applicant in his letter to the sentencing judge, and nor was it addressed in his oral evidence - or any other evidence - at the sentencing hearing.
The absence of evidence has been, if not expressly then at least implicitly, acknowledged by the applicant: in his submissions, he seeks to set out his history of suffering from mental illness (for example, applicant's submissions pp 57-58). However, it is not open for the applicant to now advance a different sentencing case on appeal. As was pointed out in Zreika v R (2012) A Crim R 460; [2012] NSWCCA 44 at [81] ('Zreika'), "the Court is reviewing the exercise of a discretionary judgment and not rehearing a plea of mitigation. It is not the occasion for the revision and reformulation of the case presented below".
To the extent the applicant argued (under this ground of appeal, or others) that the sentencing judge did not have regard to his mental illness, I do not accept that submission. As to this, it should be noted that the applicant's "mental health issues" formed the basis of a submission to the sentencing judge that, together with the applicant's early guilty pleas and a submission that the objective seriousness of the offending was at a lower level, the Court should not impose the standard non-parole period (being 10 years) in relation to sequence 2: applicant's sentencing submissions at [31]. That submission was accepted by the sentencing judge: the sentencing judge did not impose the standard non-parole period; the non-parole period fixed was three years.
In my view this ground of appeal should be rejected.

Ground 5: no discount for COVID-19

By this ground, the applicant contends that the sentencing judge denied him "a discount for COVID-19" (applicant's submissions, p 72).
It may be accepted that, in a given case, a court is entitled to consider, as part of the sentencing of an offender, the impact of the COVID-19 pandemic and the additional burden that an offender may suffer - including by reason of additional custodial restrictions that may occur in the future: Toller v The Queen [2021] NSWCCA 204 at [25]. Whether a court should do so - and what effect (if any) it might have on any sentence imposed - is a question of fact in each sentencing case. Nevertheless, there is no sentencing "discount for COVID", as the applicant's submission assumed.
Separately, although the applicant's written submissions before the sentencing judge made reference to the above authority, nothing further was said about this matter during submissions. Furthermore, and importantly, no attempt was made, despite the applicant being called to give evidence, to adduce evidence from him about the potential impact of the COVID-19 pandemic and any difficulties or hardships occasioned in consequence. The position, put simply, is that there was no evidence directed to this issue at all that required the sentencing judge to consider.
To the extent the applicant sought, in submissions filed on appeal, to suggest there had been a measure of hardship in custody in consequence of the COVID-19 pandemic, it should simply be noted that, given no error has been demonstrated, it is impermissible on appeal for the applicant to advance a different sentencing case to the one advanced below: absent error, this Court has no authority to resentence the applicant on the basis of the possible (or actual) impact on prisoners of the COVID-19 pandemic: Borg v The Queen; Gray v The Queen [2020] NSWCCA 67 at [7] and [45]-[48]; Toller at [23]-[24].
In my view there is no substance to this ground of appeal, and I would reject it.

Ground 6: the sentencing judge failed to take into account the applicant's age

By this ground of appeal, the applicant contends that the sentencing judge failed to take into account his age. The applicant also argued that, because he had 'witnessed' other "inmates getting discount for their advanced age even inmates younger than me, I am entitled to get discount for my age as well as other inmates" (sic) (applicant's submissions, p 73).
The sentencing judge was alive to the applicant's age - being 59 years at the time of sentencing. Indeed, it was the sentencing judge that corrected the error in the applicant's sentencing submissions, which erroneously stated that the applicant's age at the time of offending was 51 - rather than 58 - years. The sentencing judge was, thus, clearly cognisant of the applicant's age, and made reference to it in the sentencing judgment: ROS at [16].
Unexceptionally, the age of an offender is relevant to the sentencing exercise Geraghty at [109]ff. As was pointed out in Geraghty at [114], the extent to which, based upon the age of an offender, leniency is called for depends upon the circumstances of each case. There is not, contrary to what the applicant submitted, a sentencing discount for an offender of advanced years, less still one for someone of the applicant's age.
In any event, there is no basis to find that the sentencing judge made any error in connection with the applicant's age. That is because no attention was given to the applicant's age before the sentencing judge. To the extent it was raised, it was in a single sentence contained within the applicant's written submissions relied upon before the sentencing judge (at [15]) - as follows: Age: The offender was 51 years old at the time of the offending.
Beyond this, neither the written submissions, nor the oral ones made to the sentencing judge, made any other reference to the applicant's age. Furthermore, despite the applicant being called to give evidence at the sentencing hearing, no evidence was adduced from him about this topic. Nor was there any other evidence adduced: the psychologist's report tendered on behalf of the applicant did not relevantly address the question of the applicant's "age".
In those circumstances, given the discretionary nature of the sentencing exercise, the failure to advance and develop any submissions on whether - and, if so, in what way - the applicant's age should be considered mitigatory, is in my view fatal to this ground of appeal: Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42 at [120]; Zreika at [75]-[83]. A finding that the circumstances associated with the applicant's age would make imprisonment more arduous for him than would otherwise be the case is neither "fundamental" nor "obvious" (nor was it submitted to be so), such that the failure to make a finding about it discloses error. Nor are the present circumstances of an exceptional kind, described in Zreika at [81], to warrant the intervention of this Court and the consideration of the revised sentencing case now advanced by the applicant.
In my view this ground of appeal should be rejected.

Ground 3: the sentence was manifestly excessive

By this ground of appeal, the applicant contends that the sentence was manifestly excessive (applicant's submissions, p 64).
The principles relating to a ground alleging that a sentence is manifestly excessive were recently summarised in Geraghty, in these terms: [96] As explained in Dinsdale v The Queen, [8] manifest excess is a conclusion that "does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification". The ultimate question, determinative of whether a sentence is manifestly excessive, is whether the sentence is "unreasonable or plainly unjust", this being the language of the second category of error formulated in House v The King. [9] In this category of appeal, the specific error is not shown in the reasons of the sentencing court, but it may be inferred from the result that there was "a failure properly to exercise the discretion which the law reposes in the court of first instance". [10] [97] Where an appeal raises a ground that the sentence imposed is manifestly excessive, the following principles are relevant. First, "judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies": Markarian at [27]. Secondly, as "sentencing is a discretionary judgment that does not yield a single correct result, it follows that a range of sentences in a given case may be said to be 'warranted in law'", [11] so that "there will be a range of possible sentences that could be imposed without error". [12] Thirdly, it is for the appellant to demonstrate that there is a disproportion manifest on the face of the sentence "so as to be indicative of substantive error". [13] Fourthly, an alleged error as to the weight to be given to particular factors does not enliven any "of the forms of error identified in House v the King other than the last category". [14] [98] Thus, in connection with the complaint that insufficient weight was given to two matters, the sufficiency attached to those matters by the sentencing judge is to be assessed by examining the sentence ultimately imposed. [15] In SB v R, [16] Wilson J explained that the process to be followed to determine whether a sentence imposed was manifestly excessive, "… must be, to a degree, an instinctive one, as is the procedure for determining sentence at first instance. Just as there is no single or mathematically correct sentence that should be imposed by a sentencing court, there is no mathematical equation by which an intermediate appellate court can conclude that a sentence is manifestly excessive or inadequate … questions of the excessive … nature of a sentence are matters for evaluative judgment. Considering all of the facts and circumstances that apply in a particular case, and having regard to the applicable principles of law, is the sentence imposed so far outside the acceptable range of sentence that it is erroneous?" [99] It follows that a conclusion of manifest excess is not reached because an appeal court might have imposed a different sentence; nor are differences between the sentence imposed, and sentences imposed in other cases, necessarily a basis for intervention.
To the extent that the applicant called in aid sentences imposed in other cases as illustrative of why the sentence imposed in this case was manifestly excessive, then, as explained in Geraghty at [99], that is not a basis for this Court to intervene.
As I have earlier noted, the applicant was sentenced to imprisonment for 4 years, with a non-parole period of 3 years, to commence on 1 January 2021. The non-parole period expires on 31 January 2024.
In relation to the first offence (s 25(1) of the DMTA), the maximum penalty is a fine of 2000 penalty units or imprisonment for a term of 15 years (with no standard non-parole period), or both; in relation to the second offence (s 25(2) of the DMTA), the maximum penalty was a fine of 3,500 penalty units or imprisonment for a term of 20 years (with a standard non-parole period of 10 years), or both.
In my view, given the maximum penalty available, and notwithstanding that the offending fell below the mid-range of objective seriousness (a fact conceded by the applicant before the sentencing judge: applicant's sentencing submissions at [43]), the quantity of drug, particularly in relation to the second sequence, was significant. Further, the applicant's criminal record extended to significant drug related offending (in 2004 the applicant had been sentenced to 9 years imprisonment, with a non-parole period of 6 years, for the importation of a prohibited narcotic), and the offending here occurred whilst the applicant was on parole - having been convicted and sentenced for supplying a commercial quantity of a prohibited drug in late 2017: ROS at [26].
In those circumstances, I consider that it was open to the sentencing judge to impose the sentence that he did. Neither as a matter of impression, nor "instinct" (SB at [55]), do I consider that error is otherwise to be inferred from the sentence imposed, suggestive of a failure of the sentencing judge to properly exercise the sentencing discretion. In my view, the sentence was not unreasonable nor was it plainly unjust.

Orders

For the above reasons, I propose the following orders: 1. Order that the time for filing the Notice of Appeal be extended to 4 October 2022. 2. Refuse the applicant leave to appeal against his conviction. 3. Grant the applicant leave to appeal against the sentence imposed on 14 December 2021. 4. Dismiss the appeal against the sentence.

Endnotes

Hereafter the sentencing judge's remarks on sentence will be referred to as 'ROS'.
Section 25(1) provides: "A person who supplies, or who knowingly takes part in the supply of, a prohibited drug is guilty of an offence". Section 25(2) provides: "A person who supplies, or who knowingly takes part in the supply of, an amount of a prohibited drug which is not less than the commercial quantity applicable to the prohibited drug is guilty of an offence".
Section 29 relevantly provides: "A person who has in his … possession an amount of a prohibited drug which is not less than the traffickable quantity of the prohibited drug shall, for the purposes of this division, be deemed to have the prohibited drug in his…possession for supply …". In relation to a prohibited drug, a "traffickable quantity" means the "number or amount, if any, specified opposite the prohibited…drug in Column 1 of Schedule 1": s 3(1) of the DMTA. In relation to GBL the amount in Column 1 of Schedule 1 is 30.0 g; and for methylamphetamine, the amount in Column 1 of Schedule 1 is 3.0 g.
In relation to GBL the amount in Column 1 of Schedule 1 is 30.0 g; and for methylamphetamine, the amount in Column 1 of Schedule 1 is 3.0 g.
Section 3 defines 'supply', and relevantly provides: "supply includes sell and distribute, and also includes agreeing to supply, or offering to supply, or keeping or having in possession for supply, or sending, forwarding, delivering or receiving for supply …". Section 6(a) of the DTMA provides (relevantly) that a person 'takes part in' the supply of a prohibited drug if "the person takes, or participates in, any step, or causes any step to be taken, in the … supply".
(2011) 216 A Crim R 152; [2011] NSWCCA 186 at [117] ("Achurch").
(1987) 44 SASR 587, 589 (Cox and O'Loughlin JJ agreeing), followed in R v Badanjak [2004] NSWCCA 395 at [9]-[11] and Achurch at [118].
(2000) 202 CLR 321; [2000] HCA 54 at [6].
(1936) 55 CLR 499, 505; [1936] HCA 40; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25].
House v King at 505; Dinsdale at [59].
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42].
AB v The Queen (1999) 198 CLR 111; [1999] HCA 46 at [128].
R v Newman [2022] NSWCCA 218 at [54].
Carroll v The Queen (2009) 83 ALJR 579; [2009] HCA 13 at [9].
Hanania v R [2012] NSWCCA 220 at [33]; Nguyen v R [2019] NSWCCA 87 at [49].
[2022] NSWCCA 164 at [55] (Beech-Jones CJ at CL and Garling J agreeing). 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 2023

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