Carter (a pseudonym) v R

Court of Criminal Appeal (NSW)|2021-08-18|Before: Bathurst CJ, Bellew J

tation: N/A Date of Decision: 16 December 2019 Before: His Honour Judge Buscombe File Number(s): 2018/350639

Judgment

BATHURST CJ: I agree with the orders proposed by Bellew J and with his reasons.
SIMPSON AJA: I agree with Bellew J.
BELLEW J: The applicant pleaded guilty in the Local Court to the following offences: 1. supplying a prohibited drug on 23 October 2018, namely 859.8g of 3, 4 - methylenedioxyamphetamine, being an amount which was not less than the large commercial quantity applicable to that prohibited drug, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (the DMT Act) (count 1); 2. supplying a prohibited drug on 23 October 2018, namely 365.4g of 3, 4 - methylenedioxyamphetamine, being an amount which was not less than the commercial quantity applicable to that prohibited drug, contrary to s 25(2) of the DMT Act (count 2); and 3. supplying a prohibited drug between 18 September 2018 and 10 October 2018, namely 425g of heroin, being an amount not less than the commercial quantity applicable to that prohibited drug, contrary to s 25(2) of the DMT Act (count 3).

THE FACTS OF THE OFFENDING

An agreed statement of facts [1] was tendered before the sentencing judge from which I draw the following summary.

Background

In 2018, a strike force was formed by the State Crime Command Drug and Firearms Squad to investigate the supply of prohibited drugs and firearms by the applicant's co-offender (the co-offender).
On 16 August 2018, an operation was authorised allowing undercover police to make controlled purchases of prohibited drugs. In the course of that operation it became apparent that the applicant and the co-offender were engaged in a joint criminal enterprise in which they supplied large quantities of prohibited drugs in the western suburbs of Sydney.

Count 1

On 23 October 2018, the co-offender met an undercover officer in St Marys. At the co-offender's direction, the officer drove to a nearby unit block where the applicant was waiting. The applicant gave the co-offender a plastic bag from which the co-offender removed a number of other plastic bags containing approximately 3,000 pills, which he gave to the undercover officer in exchange for a sum of $18,000.00. The pills weighed 859.8g and were found to be 3, 4 - methylenedioxyamphetamine with an average purity of 8%.

Count 2

On 23 October 2018, the co-offender met the undercover officer in St Marys. At the co-offender's direction, the officer drove to a nearby unit block where the applicant was waiting. The applicant gave the co-offender a shopping bag from which the co-offender removed a number of plastic resealable bags containing 1,360 pills, which he gave the undercover officer in exchange for a sum of $9,750.00. The pills weighed 365.4g and were found to be 3, 4 - methylenedioxyamphetamine with a purity of 6%.

Count 3

The offending in count 3 encompassed three separate instances of supplying heroin.
On 18 September 2018 the co-offender met the undercover officer in St Marys. At the co-offender's direction, the officer drove to a nearby unit block where they met with the applicant, who handed the co-offender a jacket from which the co-offender removed a plastic bag containing two resealable bags. The co-offender gave both bags to the undercover officer, one of which contained 6.9g of heroin, in exchange for which the co-offender was given $1,700.00. The heroin was found to have a purity of 81%.
On 25 September 2018 the co-offender met the undercover officer in Prestons. At the co-offender's direction the officer drove to a nominated location nearby where they met the applicant who handed the co-offender a paper bag containing 139.4g of heroin which the co-offender gave the undercover officer in exchange for a sum of $26,200.00. The heroin was found have a purity of 77%.
On 2 October 2018, the co-offender met the undercover officer in Prestons. At the co-offender's direction the officer drove to a nominated location nearby where they met with the applicant who handed the co-offender a paper bag containing 139.4g of heroin which the co-offender gave to the undercover officer in exchange for a sum of $27,500.00. The heroin had a purity of 76.5%.

The s 166 Certificate - offence (i)

The second bag given by the co-offender to the undercover officer at the time of the supply of heroin on 18 September 2018 [2] contained 27.4g of cocaine which was found to have a purity of 59%. The co-offender gave that bag to the undercover officer in exchange for a sum of $7,300.00.

The s 166 Certificate - offence (ii)

On 24 September 2018 the applicant met the undercover officer in St Marys and supplied her with 27.9g of cocaine in exchange for a sum of $7,300.00. That transaction had been arranged between the undercover officer and the co-offender. The cocaine was found have a purity of 59%.

The applicant's arrest

The co-offender and the applicant were arrested on 14 November 2018. In the course of the execution of a search warrant on the applicant's premises three small cannabis plants, an amount of dry cannabis, an amount of cannabis resin, a quantity of fraudulent $100.00 notes, and a small amount of cocaine, were located. Those prohibited drugs were the subject of charges (iii), (iv) and (v) in the s 166 Certificate. A sum of $1,515.00 in cash was located in the applicant's vehicle.
The applicant was interviewed by police and made admissions in relation to his involvement and that of [REDACTED], in the various transactions. He said that [REDACTED] had paid him about $5,000.00 for his involvement. The applicant admitted that the sum of $1,515.00 located in his vehicle, and the counterfeit notes, were the proceeds of the sale of the drugs which were the subject of the offending. He also admitted ownership of the remaining items found in the course of the search.

Ground 1 - His Honour erred in his assessment of the objective seriousness of the offending in Count 1

The sentence proceedings

In addressing the objective seriousness of the offending in count 1, the Crown's written submissions to the sentencing judge included the following: [3] In the Crown's view and assessment, the overall criminality of the substantive offences are at mid-level.
That position was confirmed by the Crown (who was not the Crown before this Court) in oral submissions. [4]
The written submissions of counsel for the applicant (who was not counsel before this Court) included the following: [5] It is conceded that the offences, involving the ongoing supply of reasonably large amounts of prohibited drugs to an undercover police officer, are objectively serious.
In oral submissions, the following exchange took place between the sentencing judge and counsel then appearing for the applicant: [6] HIS HONOUR: … I don't think you, specifically, and I may be wrong as well with you, but do you proffer an opinion as to the level of objective seriousness of the three .. (not transcribable) .. COUNSEL: Your Honour, I can't stand here before you and argue that anything other than the mid-range that the Crown puts to you, your Honour. And, that's take [sic] into account the amounts involved and then, of course, the purity of the substances that were, ultimately, delivered to the UCOs.The findings of the sentencing judge
In addressing the objective seriousness of the offending in count 1, his Honour said: [7] I turn then to my assessment of the objective seriousness of the offences. The quantity of prohibited drug supplied is always a relevant but not determinative factor when sentencing for drug supply offences. In relation to [Count 1] the amount concerned was more than one and a half times the minimum amount of the drug which constitutes the large commercial quantity.
His Honour then went on to address other factors which were common to the offending in each of counts 1 to 3: [8] The role of an offender is another important matter to have regard to when assessing the objective seriousness of drug supply offences. It is seldom an easy task to determine a definitive role of an offender. Clearly the transactions [the applicant] involved himself in was substantial. It does appear that [the co-offender] was the person who negotiated the substantial drug transactions that are involved here. [The applicant] is someone who was entrusted to have the care of the drugs on a number of occasions when he gave them to [the co-offender] to complete the drug transactions. It appears that the [applicant] and [the co-offender] were involved together in the business of significant drug dealing. The Crown accepted that [the applicant's] involvement was "[s]omewhat less" than that of [the co-offender] although not to a significant extent. The facts here are consistent in my view with that assessment by the Crown. It is clear that [the applicant] engaged in the drug supplies for financial gain which in my opinion is inherent in large commercial and commercial drug supply offences and not an aggravating factor under s 21A of the Crimes (Sentencing Procedure) Act. Obviously there was planning involved in these offences but not at a level which is an aggravating factor under the relevant statute.…… All of the supplies were to undercover police so fortunately the drugs did not enter the user market but it is trite to say that the [applicant] did not know that that was the case.
His Honour concluded: [9] Counsel for the [applicant] accepted that the three principal supply offences fell within the mid-range of objective seriousness for those offences. Given the level of planning, the amounts involved, the purity of the drugs concerned and [the applicant's] role I consider that the concession made by counsel for [the applicant] was an appropriate one and find that each of those three offences were within the midrange of objective seriousness.

Submissions of the applicant

Counsel for the applicant acknowledged that his Honour's finding as to the objective seriousness of the offending in count 1 was consistent with the concession made by counsel who appeared on sentence. However, it was submitted that such a concession should not have been made because it was plainly wrong, and that the conclusion reached by the sentencing judge was not reasonably open on the evidence.
Counsel for the applicant submitted that it was evident that the sentencing judge had reached his conclusion by reference to four primary factors, namely: 1. the applicant's role in the enterprise; 2. the level of planning involved; 3. the weight of the drug; and 4. the purity of the drug.
It was submitted that irrespective of whether those matters were considered individually or collectively, they did not support a conclusion that the offending in count 1 fell within the midrange of objective seriousness, and in fact supported a conclusion that the offending was in the lower range.
Whilst accepting that the offending in count 1 involved some planning on the part of the applicant, counsel submitted that the precise nature and extent of such planning was unclear. It was further submitted that on any view of the evidence, the enterprise in which the applicant and the co-offender engaged did not reflect any significant degree of sophistication or complexity. Counsel described it as a "two man operation" which had been conducted on a "pretty small scale", and emphasised that there was no evidence that it had involved, for example, the use of encrypted means of communication or the transfer of large amounts of money.
In terms of the applicant's role, counsel for the applicant submitted that there was no evidence that the applicant had played any part in negotiating the quantity of drug which was to be supplied, or the price which was to be paid for it. It was further submitted that on the evidence, the applicant's role was barely above that performed by a person who acts as a custodian of prohibited drugs which are then supplied to others.
Counsel for the applicant acknowledged that the weight of the drug in count 1 was more than one and half times the large commercial quantity of .5 kg. However, he pointed out that there was no prescribed ceiling, or upper limit, in terms of such quantity. It was submitted that when viewed in this way, the weight of the drug was of reduced significance in an assessment of objective seriousness. In developing this submission, counsel pointed out that this offence can be, and often is, committed by offenders who engage in sophisticated trafficking operations involving hundreds, if not thousands, of kilograms of prohibited drugs. It was submitted that in these circumstances, the amount of the drug in count 1 supported a conclusion that the offending fell towards the lower end of the scale, rather than within the mid-range. Counsel further submitted that the purity of the drug, which was found to be 8%, was consistent with what he described as "street level supply", and did not serve to increase the applicant's criminality above a low level.

Submissions of the Crown

The Crown submitted that it was incumbent upon the applicant to establish exceptional circumstances before he could be permitted to resile from the concession which had been made to the sentencing judge regarding the objective seriousness of the offence. It was submitted that no such circumstances had been demonstrated, and that the finding made by his Honour was open on the evidence.
The Crown submitted that it was necessary to consider and determine this ground by reference to the entirety of the conclusions reached by the sentencing judge, and not by limiting consideration to the four particular factors identified by counsel for the applicant. It was submitted that when the reasons of the sentencing judge were viewed as a whole, it was clear that his Honour's assessment was the result of his having engaged in a process of instinctive synthesis, and that the finding he had reached was open. The Crown submitted that the applicant's approach in concentrating upon four particular factors had ignored the entirety of his Honour's reasons.
The Crown further submitted that the sentencing judge had properly found that the applicant and the co-offender had been involved in significant drug dealing, and that this was a finding which was open on the evidence. Specifically, in terms of the applicant's role, the Crown pointed to what was said to have been an admission made by the applicant in the agreed facts that he and the co-offender "were operating a drug supply business together". [10] The Crown submitted that the use of the word "together" was indicative of the applicant and the co-offender having an equal role in the enterprise.

Consideration

The concession which was made by counsel who appeared for the applicant on sentence gives rise to two particular issues.
The first issue stems from the fact that because the hearing of an application for leave to appeal against sentence is not an occasion for the revision and reformulation of the case, this Court will be reluctant to entertain arguments which attempt to resile from concessions made at first instance. In such cases, there is a need to establish exceptional circumstances which demonstrate that there has been a miscarriage of justice. [11]
The second issue stems from the fact that because the determination of the objective seriousness of an offence is a matter classically within the role of a sentencing judge, this Court will be slow to set such a determination aside and undertake the assessment itself. When the Court is asked to do so, the question will be whether or not the conclusion reached by the sentencing judge was one that was reasonably open. [12]
For the reasons that follow, I am satisfied that a miscarriage of justice has been established and that the applicant ought be permitted to resile from the concession which was made to the sentencing judge. In reaching that conclusion, I do not suggest, in any way, that the sentencing judge simply accepted the concession without scrutiny. However in my view, when the evidence is viewed as a whole, a finding that the offending in count 1 was within the mid-range of objective seriousness was not one which was reasonably open on the evidence.
I accept the Crown's submission that a reading of the reasons as a whole reflects his Honour having engaged in a process of instinctive synthesis. Equally, it is evident that in so doing, his Honour had primary regard to the four factors which were identified by counsel for the applicant. In those circumstances, it is appropriate to examine those factors in order to determine whether the finding reached by his Honour was reasonably open.
I am unable to accept the submission of the Crown the evidence supported a conclusion that the roles of the applicant and the co-offender were equal. That submission was founded on what was said to have been an admission by the applicant that he and the co-offender were operating a drug supply business "together". [13] The Crown placed considerable emphasis on the use of the word "together", the effect of the submission being that the use of such a term connoted an equal partnership. However, whilst the agreed facts made reference to the applicant's interview with police on 11 February 2019 in which he made admissions to the offending, [14] there does not appear to have been any reference to any admission by the applicant in the terms suggested by the Crown. Even if such an admission was made, it would be difficult, in my view, to treat the use of the word "together" as evidence establishing that the applicant and the co-offender had equivalent roles. Two people can work together in any enterprise, yet have different roles, and different levels of responsibility. The Crown's submission simply highlights the fact that in assessing a person's role in an enterprise involving drug supply, the focus must be firmly upon what he or she did. [15]
In terms of count 1, what the applicant did was attend an obviously predetermined location, in possession of the drug which he provided to the co-offender, thus facilitating the supply of the drug by the co-offender to the undercover officer. The applicant's attendance at that location was obviously not a coincidence. As a matter of common sense it must have come about as a result of some previous communication with the co-offender. Whilst that obviously reflects some planning, the nature and extent of that planning cannot be determined. The evidence establishes nothing more than the fact that some communication must have taken place.
The applicant's role was obviously significant, in the sense that without it, the conduct of the enterprise would have been made more difficult. However, there is no evidence which elevates his role beyond that which is reflected by his presence at a predetermined location in possession of the drug which was then supplied by the co-offender to the undercover officer. In particular, there is no evidence to suggest that the applicant was responsible for any part of the negotiations, in terms of either quantity or price, which must obviously have taken place with the undercover officer prior to the actual supply. Although it is difficult to determine, the fact that the co-offender was responsible for meeting the undercover officer and directing her to the location where the applicant was waiting may suggest that his role was the greater. In any event, the limited extent of the applicant's role was not, in my view, consistent with mid-range offending.
The sentencing judge acknowledged that although the weight of the drug was relevant, it was not determinative. [16] Whilst that was entirely correct, the conclusion ultimately reached by his Honour as to the objective seriousness of count 1 suggests that the significance he attached to that factor was greater than what was warranted. To illustrate why that is so, it is necessary to make reference to the structure of this type of offending which is created by the DMT Act.
Section 25(2) of the DMT Act is in the following terms: (2) 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.
Schedule 1 prescribes that in respect of 3,4 - methylenedioxyamphetamine (which was the prohibited drug in count 1): 1. the commercial quantity is 0.125kg; 2. the large commercial quantity is 0.5 kg.
If an offence of supply contrary to s 25(2) of the DMT Act involves not less than the commercial quantity of a prohibited drug, the maximum custodial penalty is imprisonment for 20 years. [17] If such an offence involves not less than the large commercial quantity, the maximum custodial penalty is imprisonment for life. [18]
The weight of the prohibited drug in count 1 was 859.8g. That was, as the sentencing judge correctly pointed out, more than one and a half times the large commercial quantity. It was obviously a relevant factor. However, it is important to assess that factor in the general context of the statutory regime that I have outlined, and in the particular context of the commercial, and large commercial, quantities which are prescribed in Schedule 1. If, for example, a person is charged with an offence of supplying a commercial quantity of this particular drug, the significance of its weight may be assessed by reference to the fact that Schedule 1 effectively establishes that the commercial quantity ranges from .125 kg to .5 kg. If, however, a person is charged with an offence of supplying a large commercial quantity of this particular drug, the Schedule does not establish any range at all. It simply provides that the large commercial quantity will be any amount of .5 kg or more, absent any upper limit. In my view, the submission advanced by counsel for the applicant in this respect was one well made. Although the amount of the drug in count 1 was obviously well in excess of the large commercial quantity, offending of this nature often involves large scale enterprises involving the trafficking of substantially greater amounts.
It follows that in assessing the objective seriousness of the offending in count 1, it was necessary to consider the weight of the drug in the in the context I have outlined. When viewed in that way, the weight of the drug was at the lower end of an undefined range. Although this was not the only relevant factor, it was one which, in my view, tended against a finding that the offending was in the within the mid-range. The low purity of the drug similarly tended against that finding.
In all of these circumstances, the characteristics of the offending in count 1 which his Honour identified were inconsistent with the concession made on the applicant's behalf, and did not support the conclusion reached in respect of the objective seriousness of that offending. In my view, the conclusion reached was not one that was reasonably open. I am therefore satisfied that ground 1 is made out.
The applicant's notice of appeal contained two other grounds, one of which asserted that the sentence imposed was manifestly excessive, and the other of which asserted that there was an unjustified disparity in the sentence imposed on the applicant when compared with that imposed on the co-offender. Given that I have found that ground 1 has been made out, it is not necessary to consider the remaining grounds as the Court, having found error, must re-sentence the applicant in the fresh exercise of the sentencing discretion. However, I have taken into account the submissions of the parties in respect of those grounds on the question of re-sentence. I have also taken into account the applicant's affidavit of 9 August 2021. [19]

The objective seriousness of the offending

Although doing so does not amount to error, a sentencing court is not obliged to assess the objective seriousness of offending by reference to a scale. [20] What is required is that the facts, matters and circumstances which bear upon that assessment be identified. [21]
I have identified all of those factors, as they pertain to count 1, when addressing ground 1. The role played by the applicant was essentially the same across each of counts 1 to 3. Leaving aside the differing amounts of the drug (as between counts 1 and 2), and the different type of drug (as between counts 1 and 2 on the one hand and count 3 on the other) there is little to distinguish between the objective seriousness of each count.
It follows from the conclusion I have reached in respect of ground 1 that my assessment of the objective seriousness of the offending in count 1, and thus the offending overall, is somewhat lower than that determined by the sentencing judge.

The applicant's subjective case

The applicant is 31 years of age. He has no criminal history and there is no issue that he pleaded guilty to all charges at the first available opportunity.
A Sentencing Assessment Report dated 10 December 2019 was before the sentencing judge. [22] It recorded that the applicant sought to minimise his responsibility for the offending, that he denied that he carried or delivered drugs, but that he agreed that he was involved in the offending in "other ways" for which he admitted responsibility. He told the author of the report that his period in custody had provided him with an opportunity to reflect, that it would be a constant reminder of his offending, and that it would motivate him to maintain a prosocial lifestyle. He also said that he had become involved in the offending because he had found it difficult to say no to the co-offender, in light of what he described as the co-offender's intimidating and controlling behaviour. [23]
The applicant told the author of the report that since the age of 19 he had been using 1g of cannabis per day, and that he had been under the influence of cannabis at the time of the offending. He said that he had not used any illicit substances since being taken into custody, and acknowledged the importance of addressing his drug use. He said that the offending had been predominantly committed for financial gain. [24]
The report also noted that the applicant had previously been diagnosed with depression and generalised anxiety disorder, and had been taking prescribed anti-depressant medication since March 2016. The author of the report expressed the view that the applicant had insight into his offending, and that he had "conveyed shame and embarrassment regarding his actions, and the negative impact his behaviour has also had on his family and fiancée". [25] He was assessed as being at a low risk of re-offending. [26]
A report of the applicant's treating general practitioner, Dr Shinwari, was tendered before the sentencing judge [27] which confirmed that the applicant had presented in March 2016 with symptoms of anxiety and depression, and had been commenced on anti-depressant medication. The applicant came under the care of Professor Greenwood, Psychiatrist, in December 2017 and had undergone psychotherapy.
Testimonials were tendered from the applicant's parents, as well as from his fiancée. His parents confirmed his history of anxiety and depression, and made reference to the fact that he had expressed remorse for his offending. They expressed their continuing support for him, as did the applicant's fiancée, who emphasised that the offending was out of character. She also confirmed the applicant's expressions of remorse. Testimonials tendered from the applicant's father-in-law, uncle and sister-in-law were all to a similar effect. [28]
Since entering custody, the applicant has been employed as a laundry clerk, in the engineering section, and most recently as a sweeper. He has also completed a Certificate III in Cleaning Operations. He has not used illegal drugs since his arrest. [29]

Assessment of the applicant's subjective case

Whilst the applicant's subjective case is strong in some respects, it is important to bear in mind that a subjective case, no matter how strong, cannot result in the imposition of a sentence which does not reflect the objective seriousness of the offending. [30]
The applicant is entitled to a discount of 25% to reflect the utilitarian value of his early pleas of guilty. Although there are references in the Sentencing Assessment Report which suggest a tendency on the part of the applicant to minimise his role, there is also a reference to the fact that he is ashamed, and conscious of the effect that his offending has had on his family. I am satisfied on the whole of the evidence, and particularly the testimonial material, that he is genuinely remorseful for his offending. Such a conclusion is consistent with his pleas of guilty.
I have taken into account the fact that the applicant is a person of prior good character, with no criminal history. Given those factors, and the conclusion expressed in the Sentencing Assessment Report as to his low level of risk, I am satisfied that the applicant is unlikely to reoffend.
It is evident from the unchallenged evidence in the applicant's affidavit that he has used his time in custody productively. He has been employed, he has furthered his education, and he has abstained from using prohibited drugs. In these circumstances, and particularly in view of the support he obviously has from his family, his prospects of rehabilitation are excellent.
Given his history of anxiety and depression, as well is his history of illicit drug use, I am satisfied that a longer period on parole will assist in his rehabilitation and reintegration into the community. I therefore find special circumstances and will adjust the ratio between head sentence and the non-parole period.

[REDACTED]

[REDACTED]
[REDACTED]
[REDACTED]
[REDACTED]
[REDACTED]
[REDACTED]

The sentence imposed on the co-offender

The co-offender entered pleas of guilty to charges in terms identical to counts 1, 2 and 3 against the applicant. He also pleaded guilty to a fourth count contrary to 25A(1) of the DMT Act alleging that between 10 September 2018 and 24 September 2018 he engaged in the ongoing supply of cocaine. The maximum penalty for that offence is 20 years imprisonment and/or a fine of $385,000.00.
The co-offender also asked the sentencing judge to take into account a further six matters on a Form 1 when sentencing him for the offending in count 1, namely: 1. supplying 5.4g of 3, 4 - methylenedioxyamphetamine; 2. possessing a small amount of cannabis; 3. possessing a small amount of 3, 4 -methylenedioxyamphetamine; 4. possessing a small amount of testosterone; 5. possessing a small amount of lysergic acid; and 6. offering to supply 141.7g of cocaine.
The co-offender was sentenced by the same sentencing judge who sentenced the applicant and who gave the following indicative sentences: 1. count 1 - 5 years and 8 months imprisonment with a non-parole period of 3 years and 8 months; 2. count 2 - 3 years and 6 months imprisonment with a non-parole of 2 years and 2 months imprisonment; 3. count 3 - 3 years and 6 months imprisonment with a non-parole period 2 years and 2 months; and 4. count 4 - 1 year and 10 months imprisonment
His Honour imposed an aggregate sentence of 8 years and 8 months imprisonment with a non-parole of 5 years and 4 months imprisonment.
The co-offender faced different, and a greater number of, charges, compared with the applicant. Unlike the applicant, he also asked the sentencing judge to take into account a series of matters on a Form 1. In assessing the objective seriousness of the co-offender's offending, the sentencing judge observed that the co-offender involved himself in meeting with the undercover officer, directing where the actual exchange was to take place, providing the drugs and receiving payment. [31] To the extent that those factors apply to the co-offender's role in the offending in counts 1, 2 and 3 against the applicant, his Honour's observations accord with my own assessment.
There was evidence in the co-offender's sentence proceedings that he had been diagnosed with an intellectual disability in 2017, [32] that he had associated learning difficulties, [33] and that he satisfied the further diagnoses of substance use disorder, attention deficit hyperactivity disorder and borderline intellectual disability. [34] As a consequence of these matters, the sentencing judge found that the co-offender's moral culpability was reduced. [35] His Honour also found that these factors rendered the co-offender an inappropriate vehicle for general deterrence, and meant that his conditions of custody were more arduous. [36] None of those factors have any role to play in the applicant's case. Like the applicant, the co-offender had a history of substance abuse and had been attending drug rehabilitation courses whilst in custody. [37]
In respect of other subjective considerations, the co-offender: 1. was of a similar age to the applicant; 2. had a limited criminal record, in comparison with the applicant who had no record; 3. was entitled to a discount of 25% on account of his early pleas of guilty, [REDACTED]; and 4. was assessed as having excellent prospects of rehabilitation, in circumstances where I have made the same assessment in the case of the applicant.
I am mindful of parity considerations and have taken all of these factors into account in determining an appropriate sentence.

ORDERS

I propose the following orders: 1. Grant leave to appeal against sentence. 2. Allow the appeal. 3. Quash the aggregate sentence imposed on the applicant in the District Court. 4. Give the following indicative sentences: 1. count 1 - 4 years and 9 months imprisonment; 2. count 2 - 3 years imprisonment; 3. count 3 - 3 years imprisonment; 4. offence (i) on the s 166 Certificate - 6 months imprisonment; and 5. offence (ii) on the s 166 Certificate - 6 months imprisonment. 1. In lieu of the aggregate sentence imposed in the District Court, impose an aggregate sentence of 6 years and 9 months imprisonment commencing on 14 November 2018 and expiring on 13 August 2025. 2. Specify a non-parole period of 4 years and 2 months imprisonment commencing on 14 November 2018 and expiring on 13 January 2023.

Endnotes

Commencing at AB 27.
At [14] above.
AB 112.
AB 124.47 - 124.48.
AB 114.
AB 127.14 - AB 127.21.
AB 8.
AB 9.
AB 9 - AB 10.
T13.44 - 13.48.
See Zreika v R (2012) 223 A Crim R, 460; [2012] NSWCCA 44 per Johnson J at [81] citing Romero v R (2011) 32 VR 486; [2011] VSCA 45 at [11]; Keane v R [2011] VSCA 156 at [13]; [18]; Bayram v R [2012] VSCA 6 at [28] - [29].
Mulato v R [2006] NSWCCA 282 at [37].
T 13.44 - 45.
At [14]; AB 30.
Olbrich v The Queen (1999) 199 CLR 270; [1999] HCA 54.
See generally Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [67] - [70].
DMT Act s 33(2)(a).
DMT Act s 33(3)(a).
The applicant did not read the second sentence in paragraph 7 of that affidavit which asserted that since been taken into custody he had not had any internal disciplinary charges.
Sharma v R [2017] NSWCCA 85 at [63] as per R A Hulme J (Beazley P and Walton J agreeing), cited in McDowall v R [2019] NSWCCA 29 at [35] per Adamson J Hoeben CJ at CL and Schmidt J agreeing).
FL v R [2020] NSWCCA 114 at [59] - [60] per Wilson J (R A Hulme and Hamill JJ agreeing).
AB 83 - AB 86.
AB 84.
AB 84 - AB 85.
AB 85.
AB 86.
AB 89.
AB 96 - AB 101.
Applicant's affidavit at [6] - [7].
R v Amati [2019] NSWCCA 193 at [120] and the authorities cited therein.
AB 142.
AB 146
AB 146.
AB 147.
AB 149 - AB 150.
AB 150.
AB 145. 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: 16 December 2022

At a glance

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Judgment (22 paragraphs)

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Legislation Cited (3)

Cases Cited (14)

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