DAB v R; NJB v R

Court of Criminal Appeal (NSW)|2010-08-31|Before: Macfarlan JA, Simpson J, Hall J, MacFarlan JA

The applicant be sentenced to a term of imprisonment made up of a non-parole period of 4 years and 6 months commencing on 21 November 2007 and expiring on 20 May 2012, with a balance of term of 3 years and 6 months expiring on 20 May 2015.

Count 1 (supply, taking into account the additional offence):

The applicant be sentenced to a term of imprisonment made up of a non-parole period of 6 years commencing on 21 November 2008 and expiring on 20 November 2014, with a balance of term of 3 years expiring on 20 November 2017;

(iii) in lieu thereof, the applicant be sentenced as follows: On each count

The applicant be sentenced to a term of imprisonment made up of a non-parole period of 5 years commencing on 21 November 2007 and expiring on 20 November 2012, with a balance of term of 2 years and 6 months expiring on 20 May 2015;

The applicant be sentenced to a fixed term of imprisonment of 4 years commencing on 21 November 2007 and expiring on 20 November 2011. 116 HALL J: I agree with the reasons and orders proposed by Simpson J in respect of DAB. 117 In relation to NJB, I agree with the orders proposed by Simpson J that leave to appeal be granted, that the appeal be allowed and the sentences quashed. However, I am unable to agree with the sentences proposed by her Honour. Accordingly, I proceed to state my reasons for orders which I propose in the proceedings concerning NJB.

The sentencing judge's findings 118 The sentencing judge made a number of findings and, whilst no specific criticism was directed at them, I make the following observations. In terms of the objective seriousness of the offences charged and the applicant's level of criminality in relation to them, certain of the findings made were, in fact, favourable to him. These were:-

(1) As to the respective levels of criminality of the applicant and his brother, it was the brother, not the applicant who was found to be the "instigator" of the criminal enterprise.

(2) The applicant's involvement in the three offences charged occurred over a comparatively short period of time.

(3) The applicant was not acting on a completely independent basis in his own interest in the sense that at the time of each offence (as found), "he stood in his brother's shoes" , his brother being absent for a short period. 119 On the other hand, the sentencing judge found that the applicant's offending activities involved a conscious and calculated decision. In addition, a finding was made that he knew that the enterprise was underway. 120 The sentencing judge stated that he "… had his own interest in it [referring to the enterprise] producing some financial return" (Remarks on Sentence, p.11). This latter finding, in my opinion, is not one that sits comfortably or consistently with the evidence. 121 The applicant swore an affidavit on 28 May 2009, which he relied upon for the purposes of the sentencing hearing. He attached to the affidavit a letter, Annexure A. The affidavit was tendered at the hearing without objection. Having sworn that its contents were "true and correct", no challenge was made at the hearing to the accuracy of its contents. 122 Simpson J has observed that neither the applicant nor his brother gave oral evidence. However, I consider it important to have regard to the course that was followed by the legal representatives of the Crown and the applicant at the sentencing hearing. 123 The proceedings were conducted upon the basis that it was effectively a combined sentencing hearing in respect of the applicant and his brother, DAB. 124 The legal representative for the applicant foreshadowed that he proposed to tender an affidavit sworn by his client but that the Crown had indicated that it had objections to certain parts of it. Accordingly, it was stated that it would be necessary for there to be a consultation between the legal representatives as to the passages that were the subject of objection. However, then the Crown's legal representative thereupon stated (transcript, 28 May 2009, p.14):- "… Well, perhaps your Honour, if I don't object to it but I accept it on the basis that I did with that psychiatric report and the evidence is not going in the form of evidence from the witness box but it's simply in the form of a document, then it's a question of what weight your Honour would give it. HIS HONOUR: Well that's an issue you are entitled to raise but as I understand it, the evidence can be given by affidavit, it's just a question of weight. MCPHERSON: Yes. HIS HONOUR: Alright, so do you want to tender the material?" 125 The affidavit of the applicant's brother was then tendered and it was marked as an exhibit (Exhibit 4). It was noted that it was tendered and admitted "without objection" (transcript, p.14). 126 The sentencing judge then discussed matters with the legal representative appearing for the applicant (who was not counsel appearing on the present appeal). There was no discussion of the basis upon which the affidavit sworn by the applicant was to be treated. The transcript simply records (at p.15):- "EXHIBIT #5: Affidavit and letter of offender [NJB] dated 28/05/09 tendered, admitted without objection." 127 In his report dated 18 May 2009, Mr Watson-Munro identified the documentation available to him at the time of his assessment. This included a statement by the applicant "with Attachments". 128 The history set out in Mr Watson-Munro's report is consistent with the history appearing in Annexure A to the applicant's affidavit sworn 28 May 2009. In other words, the sentencing hearing proceeded upon the basis that there was no objection or other challenge by the Crown to any paragraphs or statements in Annexure A to the applicant's affidavit. A number of statements in Annexure A were directly relevant to certain of the mitigating or subjective circumstances relied upon. In particular, Annexure A addressed the traumatic events in the applicant's personal life in 2005. These statements were directly relevant to the contextual issue concerning the applicant's offending as reported on by Mr Watson-Munro. 129 In circumstances attending the course that was adopted at the sentencing hearing, I do not consider that there can be any criticism directed to the fact that the applicant was not called to give oral evidence. The hearing was conducted upon the basis of his verified statement, Annexure A. 130 There have been a number of decisions of this Court that have warned of reliance being placed at the sentencing hearing stage upon statements made by an offender to psychologists or to the authors of pre-sentence reports. The criticism, in particular, has been directed to such "self-serving and untested" statements. Warnings have been sounded that judges at first instance ought to be cautious of the way in which such unverified statements are utilised: Regina v McGourty [2002] NSWCCA 335 per Wood CJ at CL at [24]; Regina v Elfar [2003] NSWCCA 358 and Monroe v Regina [2006] NSWCCA 350 per Beazley JA at [17]. 131 However, the applicant's statements contained in Annexure A to the affidavit were verified with the applicant having sworn on oath as to the truth of those statements. Further, as I have earlier stated, there was no challenge or objection made to the affidavit or to it being admitted and utilised as an exhibit in the proceedings. No submission was made on behalf of the Crown that the factual matters pertaining to the history of the applicant as recorded in it or in Mr Watson-Munro's report were in any inaccurate, incomplete or unreliable. 132 In those circumstances, it was unnecessary for the sentencing judge to observe the particular caution sounded in the abovementioned decisions of this Court. The same principle, of course, would equally apply to the tender by the Crown of a statement which is not objected to by counsel for an offender as was the position in Weininger v The Queen [2002] 77 ALJR 872 in which the High Court observed:- "7. At the sentencing hearing, counsel for the prosecution tendered, without objection, a statement of facts. There having been no objection to its receipt, the primary judge was entitled to act on the facts described in the statement …" 133 Finally, on this aspect, there have been observations made upon the subject of a court's reception of sentencing facts: see Regina v O'Neill (1979) 2 NSWLR 582, 588-589 per Moffitt ACJ and Chow v Director of Public Prosecutions (1992) 28 NSWLR 593 at 603-605 per Kirby J. It is unnecessary to refer to those observations in any detail here other than to record that Moffitt ACJ in the above case (at 588) noted that what is the acceptable procedure for establishing the facts for sentencing purposes may depend upon the particular procedures that precede and lead to the exercise of the jurisdiction to sentence and upon the course then adopted by the legal representatives of the Crown and the accused. 134 As to the applicant's involvement in the offences charged, in Annexure A to his affidavit, he said that earlier in 2007 he had lent his brother, DAB, some money as DAB was keen to renovate and expand the premises from which the oyster lease business was conducted. He provided a reasonably detailed account of the financial arrangements between them as follows:- "As my overseas trip was coming closer, I continually asked [DAB] for repayment of the monies he had loaned me [sic] and it was in one of these discussions that he revealed to me that he had lost all his money and was using the pill press to manufacture ecstasy. On two occasions, [DAB] had requested me to make and supply ecstasy to two of his contacts whilst he was away and unable to do so. I did not receive money from them as they were to pay [DAB] at a later date and the only reward I was to get was that [DAB] would get back on his feet and I would get the money I loaned him back." 135 The evidence, taken at its highest, reveals that, the applicant may have had the prospect of an indirect benefit at some unknown time in the sense of receiving repayment of the loan. However, it was not to the effect, as occurs in most drug trafficking cases, that the applicant was motivated in committing the offences by financial greed or by direct financial reward in the form of a share in the proceeds of a particular drug supply/sale transaction. 136 The finding made by the sentencing judge, in my respectful opinion, cannot be seen as suggesting that the applicant was supplying drugs for monetary gain to himself. If it is capable of being so read then, in my respectful opinion, it is clearly wrong. The judicial fact-finding task is, of course, a critical element in the sentencing process. Specific matters that reflect the activities and role of an offender are of central importance in it. 137 The sentencing judge made a number of findings as to mitigating factors favourable to the applicant pursuant to s.21A of the Crimes (Sentencing Procedure) Act 1999. The findings in this respect were in terms of s.21A(3)(e) - "the offender does not have any record, or any significant record, of previous convictions", s.21A(3)(f) - "the offender was a person of good character", s.21A(3)(g) - "the offender is unlikely to re-offend", s.21A(3)(h) - "the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise", s.21A(3)(i) - "the remorse shown by the offender for the offence …" and s.21A(3)(k) - "a plea of guilty by the offender, as provided by s.22". 138 The finding of "good character" was not a negative finding based on the absence of a relevant criminal record. The evidence established that the applicant had been a significant contributor to his local community and had represented his country with distinction at an international sporting level. 139 The sentencing judge said that he took into account the report of Mr Watson-Munro dated 25 May 2009. However, his Honour did not state how he did this nor did he identify precisely how the report was relevant to his sentencing discretion. 140 Mr Watson-Munro is an experienced consultant forensic psychologist. He examined the applicant on 23 February 2008 and 21 November 2008. He noted that the applicant professed "profound regret for his actions which I believe to be genuine". 141 Mr Watson-Munro obtained a reasonably detailed history from the applicant. It included events that occurred in 2005 when he was suspended from the Australian Institute of Sport. The evidence established that, although favourable findings had been made by the relevant tribunal that the applicant was not guilty of intentionally or negligently ingesting performance enhancing drugs, he nonetheless was suspended for a period of two years. This resulted in him being unable to compete in the Beijing Olympic Games, he having been an elite athlete who had won silver medals at the Athens Olympic Games. 142 Mr Watson-Munro referred to the "devastation" that attended his suspension. This, in turn, resulted in the applicant's previously disciplined life descending into one of low self-esteem, escalating depression and eventually drug-taking. 143 The highly unusual circumstances that led the applicant into decline were not put forward by Mr Watson-Munro as having a direct causal relationship to the applicant's subsequent offending. However, in his opinion, they did provide relevant context to an assessment of his offending. In other words, those events, whilst not providing evidence of causation or justification, provided the relevant contextual explanation. In that respect, Mr Watson-Munro concluded:- "I note a complex psychological history in recent years arising from a number of significant life events inclusive of … the devastation attendant to him being suspended from the Australian Institute of Sport when he tested positive for a performance enhancing drug. [NJB] categorically denied that he had ever been a drug cheat and the ingestion was totally an accident which arose from someone else using his drink bottle. It is apparent that the impact of this and the associated fall from grace which he experienced continues to cripple him at a psychological level to the present. Certainly, the confluence of these issues had a substantial and emotional impact upon this man and in association with this and in the absence of treatment, he then drifted into a pattern of substance abuse which further impacted upon his judgment. It was essentially in this context that he became involved in these offences." 144 The forensic psychologist's report also addressed another subjective factor. This related to the applicant's endeavours, before the offending conduct occurred, directed at turning his life around. Mr Munro-Watson noted that the applicant had, prior to the offending conduct, endeavoured to reform himself:- "To closer history taking, [NJB] stated that he had some insight to his deteriorating situation and in this context he then commenced seeing Michael Burgess, a Drug Counsellor at Byron Bay over a three to four month period. His treatment was supplemented by regular urinalysis on a weekly basis and, in this context, he reached a point of believing that he may be able to return to his sport. Against this background, [NJB] recommenced training, but then was arrested on these matters some six months prior to his suspension ending." 145 No express reference was made in the remarks on sentence to these contextual matters, notwithstanding their relevance as the terms of the report make plain.

Ground 1: The sentencing judge erred in failing separately and/or adequately and/or correctly to assess the objective seriousness of each of the offences to which a standard non-parole period applied 146 The applicant sought and was granted leave to amend Ground 1 by the inclusion of the words "and/or correctly" in Ground 1 in the Grounds of Appeal. 147 The primary approach taken by the sentencing judge in relation to Counts 2 and 5, commenced with a reference to the standard non-parole period of 10 years and the maximum sentences of 20 years in relation to Counts 2 and 5 and to the maximum sentence of 15 years in respect of Count 3. 148 In sentencing the applicant in respect of the three offences in question, it was incumbent upon the sentencing judge to apply the well-known principle enunciated in Pearce v The Queen (1998) 194 CLR 610 at 624; [1998] HCA 57, namely:- "… A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality." 149 As also observed by Gummow J in Pearce (supra), sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision. His Honour added (at 624):- "… It is, then, all the more important that proper principle be applied throughout the process." 150 Error has been established in relation to Ground 1 of the Notice of Appeal, namely, that the sentencing judge erred in failing separately and/or adequately to assess the objective seriousness of each of the offences to which a standard non-parole period applied. 151 In particular in this respect, I accept the submission made by Mr Hamill SC on behalf of the applicant in his written submissions (paragraph 30) to the effect that the remarks on sentence disclose that the sentencing judge globally assessed the objective seriousness of the two offences to which a standard non-period applied and that his Honour should have separately assessed the objective seriousness of each offence in question. As Mr Hamill submitted (paragraph 30):- "… A global assessment of the two offences was likely to have the effect that the significantly different matters relevant to the assessment of each of them were not properly taken into account." 152 In relation to the offence of supply commercial quantity of prohibited drug (Count 2), whilst certain findings were made in relation to the applicant's role, the findings were limited. The level of criminality involved in the offence was reflected in the evidence that clearly established that the applicant was not acting for the purpose of any direct financial reward. The findings that were made by the sentencing judge were founded on the underlying premise that, at the time of the supply offence, the applicant was acting on behalf of his brother ("he stood in his brother's shoes") who was absent at the time the offences were committed. Whilst it is clear that the applicant understood the nature of the illegal activity and he did, at some point, communicate with the person to whom the drugs were supplied concerning payment, it was his brother who took over the communications when he returned. The evidence was that the applicant did not receive any of the proceeds of the drug transaction and no arrangement existing beforehand envisaged that he would receive any of the proceeds. 153 When properly understood in light of all of the circumstances, I accept the submission made on behalf of the applicant that a proper analysis of his role in carrying out the transaction would have revealed an involvement of a limited nature in the various respects referred to in the submissions and which I have attempted to identify above. 154 It is clear, in my opinion, that, having regard to all relevant circumstances concerning the objective seriousness of the offence, the offence constituting Count 2 fell well below the middle of the range of objective seriousness for an offence of its kind. 155 In relation to Count 5 (the "manufacture" offence), the facts relating to the extent of the applicant's involvement were limited. It is clear from the agreed facts that the applicant was not involved in all of the intricate processing steps involved in drug manufacture. He was not involved in arranging for the procurement or the delivery of a binding agent to mix the drug in powder form in order to produce the drug in tablet form. Nor was he involved in the sourcing of precursors or the conversion of precursors into the drug MDMA. What he did was accurately described by Mr Hamill as the conversion of the final product into a saleable form. 156 I accept the submission made on behalf of the applicant that the only reasonable inference to be drawn from the statement of facts was that the conduct constituting "manufacture" was limited to the use of a pill press to convert the drug from the powdered form into tablets. Accordingly, a proper assessment of the evidence on "manufacture" by the sentencing judge would, in my opinion, have led to the conclusion that the objective seriousness of the offence constituting Count 5 was substantially below the mid-range of objective seriousness for an offence of its kind. 157 The sentencing judge's determination "… the best I can do is to say either it falls at the bottom of mid-range or towards the top of low-range", is, as Simpson J has observed in her Honour's judgment, a statement that clearly manifests an erroneous assessment of the objective seriousness of the offences.

Ground 2: The sentencing judge erred in increasing the sentences imposed in respect of each of Counts 2 and 5 in order to reflect the totality of the criminality involved in the offences the subject of those counts 158 In addressing "the question of accumulation", the sentencing judge said that he acknowledged, inter alia, that there was a significant difference between supply and manufacture, even if one leads to the other. His Honour went on to state that he regarded the overall sentence to be one of 12 years imprisonment partially accumulating the sentence on Counts 2 and 5. 159 It was observed on behalf of the applicant that the sentencing judge imposed "precisely the same" sentence of imprisonment, a non-parole period of 5 years commencing on 21 November 2007 and expiring on 20 November 2012 and a total term of 9 years expiring 20 November 2016 in respect of each of Counts 2 and 5. 160 The contention for the applicant was that the sentencing judge's approach had the consequence that the sentences imposed in respect of each of Counts 2 and 5 were greater than the facts and circumstances of each of the respective offences warranted: Written Submissions on behalf of the Applicant, paragraph 41. 161 Mr Hamill on behalf of the applicant contended that a lesser overall effective sentence was warranted. He contended that the error in relation to Ground 2 was compounded by the error asserted under Ground 1. 162 It was additionally argued that the manufacture and supply "were really part of the one transaction and the appropriate course was to impose concurrent sentences or to accumulate to a tiny degree (for example, one month or so)". The submission was that, whilst on its face, concurrent sentences were imposed, the sentences had, in fact, been accumulated by two years in arriving at the starting point (12 years). It was said that the present case provided a good example of what the High Court adverted to in Pearce (supra), namely, that a misapplication of principle was liable to "mask error". 163 The sentencing judge referred to the "significant difference between supply and manufacture". However, he did not, with respect, identify what were the matters that made such a difference on the facts in the present case. In particular, some regard, in my opinion, would have to be given to the limited nature of the "manufacture" to which I have earlier referred. This, his Honour did not do. Some regard, at least should have been given to the fact that the conversion of the powdered form of MDMA into tablet form was undertaken in relation to the drugs that were the subject of Count 2. Whilst I do not regard the two offences as part of the same course of conduct, the manufacture was ancillary to or in the nature of a preparation for the supply that became the subject matter of Count 2. 164 In summary, fundamental to the question of accumulation and totality, was the nature and the extent of the role of the applicant in relation to Count 2 and to the extent of his activities in the "manufacture" of the drugs the subject of Count 5. 165 Without having assessed the relevant factors in terms of each individual offence, his Honour's error in that regard, that is, in relation to the level of criminality involved in both offences, in my opinion, carried over into his Honour's approach on the question of accumulation of the sentences. 166 In those circumstances, it is necessary for this Court to intervene and re-sentence the applicant.

Re-sentencing 167 The following observations relate, in particular, to the approach to be taken in respect of the re-sentencing of the applicant in respect of Counts 2 and 5. Both offences are, as earlier noted, subject to prescribed standard non-parole periods of 10 years. 168 In her judgment, Simpson J has concluded that, whilst error has been made out, her Honour was unable to conclude that the errors produced sentences that were excessive. I have reached a different conclusion. I am of the opinion that the sentences imposed were both erroneous and excessive. 169 In relation to this aspect, I approach the question of re-sentencing as follows:-

(1) In respect of offences for which there is, by operation of s.54A of the Crimes (Sentencing Procedure) Act , a prescribed standard non-parole period (as is the case with Counts 2 and 5), where there are reasons for not imposing the standard non-parole period, it is essential that the sentencing discretion not be dominated by it though the standard non-parole period still operates as a reference point or benchmark. Alternatively put, the discretion should not be fettered by the standard non-parole period: Regina v Way (2004) 60 NSWLR 168 at [113]; [2004] NSWCCA 131.

(2) In respect of offences for which a standard non-parole period is prescribed but for which there are reasons for not imposing it, the sentencing process must proceed in accordance with accepted principle. In this respect, I note the following:- (a) The intuitive or instinctive synthesis approach to sentencing is to be applied, being a single stage approach, and one that takes into account relevant aggravating and mitigating factors as referred to in s.21A of the Crimes (Sentencing Procedure) Act . Such an approach avoids the risk of double counting: Way (supra) at [129]. (b) The sentence provisionally thereby reached accordingly is arrived at after an assessment has been made of the relative seriousness of the subject offence or offences and of the various aggravating factors and any other subjective factors. (c) It is only after and not before the provisional sentence is reached, that the standard non-parole period has a role. It takes its place as a reference point or as a guide post, but it is noted only in the sense that it is then available to be used for comparative purposes. In this respect it was observed in Way (supra) at [122]:- "In particular, it can have a direct relevance as a reference point to be compared with the sentence which is provisionally reached after an assessment has been made of the relative seriousness of the subject offence, and of the various aggravating and mitigating factors, as well as any other subjective factor that may be present including, in particular, the fact, if it be the case, that the offender entered a plea of guilty. In that regard, a sentencing judge will need to keep in mind that the standard non-parole periods were framed upon the assumption that the case was determined at trial and that s.22 of the Act contemplates that the fact of the plea will attract a discount." (emphasis added) 170 In her judgment, Simpson J has observed at [97] that the approach taken by the sentencing judge suggested that he first selected the sentences (10 years, that is, head sentences equal to the standard non-parole period) and that because his Honour regarded those as the appropriate sentences, determined that the sentences were either at the bottom of mid-range or towards the top of low range. Her Honour observed that the relevant passage in the remarks on sentence in that respect exposed error of logic. I, with respect, agree with that observation. 171 In dealing with Ground 2, accumulation, Simpson J states that she was unable to conclude that the errors of the sentencing judge produced sentences that were excessive. Her Honour proceeds upon the basis that the two offences (Counts 2 and 5) were of equal gravity calling for equal punishment and that each were somewhat below the mid-range of objective gravity. Her Honour then sets out in paragraphs [102] to [111] a number of mathematical ways to approach the sentencing exercise. The first and second approaches start or commence with a standard non-parole period of 10 years. Those approaches are analysed in the way set out in those paragraphs. 172 Her Honour then sets out three other approaches each beginning with the sentencing judge's starting point of 10 years for the head sentence. Each approach is then analysed as set out in paragraphs [108] to [111]. Her Honour then proposes that the applicant be sentenced, on each of Counts 2 and 5, to a term of imprisonment of 7½ years with a non-parole period of 5 years. Her Honour observed at [113]:- "Although there ought to have been some accumulation, it is not possible to achieve that. I would allow the appeal to the extent of reducing the head sentence, but not the non-parole period." 173 I, with respect, do not consider that it is appropriate to consider the sentences imposed by a series of analyses that take as their starting points either the standard non-parole periods of 10 years or by taking the 10 year head sentence approach of the sentencing judge in this case. 174 I acknowledge that her Honour does expressly refer to the fact that the applicant's plea of guilty means that the standard non-parole period is not strictly applicable, but that it remains relevant as a guidepost or indicator as stated in Way (supra). I further acknowledge that the various analyses set out by Simpson J at [106] to [109] are directed to the question as to whether the sentences imposed were excessive. 175 The results of the exercise I have undertaken are intended as providing a basis both for determining whether the sentences imposed are excessive and if they are what are appropriate sentences on any re-sentencing of the applicant. 176 In accordance with Way (supra), I proceed by, firstly, undertaking a provisional assessment of the sentence in respect of each of Counts 2 and 5 and then consider the standard non-parole periods for each of the offences as guide posts or indicators. 177 The provisional assessments of each of the offences constituting Counts 2 and 5 take into account the objective seriousness of the offences, having regard to the factors bearing upon the criminality involved. The particular factors concerning the role and the activities of the applicant and the aggravating and mitigating factors which I have earlier discussed are brought into account. The relevant subjective factors also include the contextual matters that emerge from the assessment and the opinion expressed by Mr Watson-Munro to which I have earlier referred. By any measure, the applicant's subjective case is a powerful one and must be given appropriate weight in the balance of matters to be considered. 178 In addition to the above, I also have regard to the comparative criminality involved in the offence in the commercial supply offence, Count 2, to that involved in the offence constituting Count 5. Taking all matters into account, I have assessed Count 2 as the more serious of the two offences, Count 2 and Count 5. 179 That assessment is to be reflected in the sentences to be imposed in the event of a re-sentencing in respect of Counts 2 and 5. 180 In the latter event, there should be a degree of accumulation between the sentences for Counts 2 and 5 to distinguish the discrete elements involved in each offence. However, that said, the offence in Count 5 was to a point ancillary and related to the supply offence in Count 2, the MDMA tables being the subject of both offences. That is a matter to be borne in mind though it is not a matter to be accorded undue weight in determining the extent of accumulation. 181 There is a considerable body of evidence to support a finding of special circumstances. The evidence in this respect, in particular, establishes the applicant's excellent rehabilitation prospects, genuine remorse and progress whilst in custody. In this latter respect, I have taken into account the applicant's affidavit sworn 31 August 2010. He has completed 12 months of a three year course of a diploma in accounting and has received at least four certificates in respect of educational and vocational courses completed. He has also undertaken courses directly relevant to his rehabilitation. 182 Finally, in arriving at the provisional sentences to which I have referred above, I have then considered each on a comparative basis to the standard non-parole periods for Counts 2 and 5 in accordance with established principle. That review has been made upon the basis that I have, in assessing both Counts, determined that the respective objective seriousness of each offence is substantially below the mid-range of seriousness for offences of the kind in question. 183 On the approach which I have outlined above, I have concluded that appropriate sentences of imprisonment in respect of Count 5 would be a non-parole period of 2 years and 6 months with a balance of term of 2 years and 6 months and, in respect of Count 2, a non-parole period of 3 years and 6 months with a balance of term of 2 years and 6 months. I consider that an appropriate accumulation of the sentence in respect of Count 2 on the sentence in respect of Count 5 would be a period of 6 months. 184 It follows from the conclusions set out above that:-

(1) The sentences imposed by the sentencing judge were derived by a sentencing process that was affected by sentencing error.

(2) The sentences imposed were excessive. 185 Accordingly, on the basis of the conclusions I have expressed, I propose the following orders be made:-

(2) The sentences imposed by the District Court at Lismore in respect of Counts 2 and 5 on 29 May 2009 be quashed.

(3) That in lieu thereof the applicant be re-sentenced as follows:- (a) In respect of Count 5, a non-parole period of 2 years and 6 months imprisonment to commence on 21 November 2007 and to expire on 20 May 2010 with a balance of term of 2 years and 6 months to expire on 20 November 2012. (b) In respect of Count 2, a non-parole period of 3 years and 6 months imprisonment to commence on 21 May 2008 and to expire on 20 November 2011 with a balance of term of 2 years and 6 months to expire on 20 May 2014. 186 I note that the sentence imposed by the District Court in respect of Count 3, namely, a fixed term of 4 years imprisonment to commence on 21 November 2007 and to expire on 20 November 2011 will be concurrent with the sentences which I now propose in respect of Counts 2 and 5. 187 The aggregate of the non-parole periods in respect of Counts 2 and 5 is a period of 4 years imprisonment and a total aggregate term of 6 years and 6 months imprisonment. 188 Accordingly, the first date on which the applicant will become eligible for release on parole will be 20 November 2011. ********** 189 THE COURT: After the reasons of the Court were published, the Court's attention was drawn to an error with respect to the expiration date of the total term for count 4 in the Orders of the Court made on 30 November 2010. This was a result of a simple calculation error. The balance of term for count 4 should expire on 20 November 2015, not 20 May 2015. Accordingly, the Order made on 30 November 2010 with respect to count 4 is vacated. The Order will now read: "Count 4 (manufacturing):

28/11/2013 - Paragraph inserted to correct order in respect of DAB - Paragraph(s) 189 28/11/2013 - Insert "THE COURT" - Paragraph(s) 189

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CITATION: DAB v R; NJB v R [2010] NSWCCA 275 This decision has been amended. Please see the end of the judgment for a list of the amendments.

Chow v Director of Public Prosecutions (1992) 28 NSWLR 593 Mirza v R [2007] NSWCCA 248 Monroe v R [2006] NSWCCA 350 Munro v R [2006] NSWCCA 350 Pearce v The Queen [1998] HCA 57; 194 CLR 610 R v Elfar [2003] NSWCCA 358 CASES CITED : R v McGourty [2002] NSWCCA 335 R v O'Neill (1979) 2 NSWLR 582 R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 R v Way [2004] NSWCCA 131; 60 NSWLR 168 Truong v R [2006] NSWCCA 318 Weininger v The Queen [2002] 77 ALJR 872 Wong v The Queen [2001] HCA 64; 207 CLR 584 Woodgate v R [2009] NSWCCA 137

Personal circumstances 18 NJB is the older of the two brothers. He was born in December 1975 and was 32 at the time of his offending. His criminal history consisted of an offence of driving with the prescribed concentration of alcohol in his bloodstream (low range), committed in 2003, and a break, enter and steal in 2007. 19 DAB was born in January 1982 and was 26 at the time of his offending. He, too, has a minor criminal record: offensive language in 2001, and larceny in 2006. 20 Evidence as to their personal circumstances was given in the form of Pre-Sentence Reports prepared by an officer of the Probation and Parole Service in respect of each applicant; psychological reports, in respect of each applicant, prepared by Mr Tim Watson-Munro, a consultant forensic psychologist; letters written by the applicants and annexed to affidavits sworn by them; letters in respect of each applicant signed by both parents; and a very large bundle of testimonials. 21 Remarkably, neither applicant gave oral evidence and neither was any oral evidence called. (In this respect, I note that it seems clear that the Crown representative was prepared to accept the evidence in documentary form, including the applicants' affidavits, without exercising the right to cross-examination.) Legal representatives of offenders standing for sentence ought to be aware, and ought to make their clients aware, that a sentencing judge is not obliged to, and often will not, accept supposedly mitigatory evidence given in hearsay form: see R v Elfar [2003] NSWCCA 358; Munro v R [2006] NSWCCA 350; Woodgate v R [2009] NSWCCA 137. 22 The personal case so made by each was powerful. Both applicants grew up in a devoted and loving family. They have one brother, younger than NJB and older than DAB. The family lived in Byron Bay. Their father owned an oyster farming business. Both parents were community, family, and sports minded. They encouraged their children to participate in a number of forms of sport, particularly, it seems, water sports. Their mother actively involved herself in the management and organisation of their sporting activities and associations. They have been significant community contributors, and encouraged their sons to be likewise. 23 Both applicants relied heavily upon evidence of good character and reputation. They are entitled to do so. But there are two sides to that coin. Unlike many who come before the courts charged with criminal offences, these are applicants who had every advantage in their lives - devoted parents, talent and skills, a secure environment. DAB in particular has squandered those opportunities. True it is that each suffered a setback in his life or career (to which I will come) and to which he reacted badly: DAB in a serious and possibly life threatening assault, NJB in what appears (on the limited evidence before this Court) to be a harsh decision of the governing body of his chosen sport. I accept that each of those circumstances has some relevance in explaining the applicants' descent into criminality, but the mitigatory weight that can be given to it is very limited. Each made a deliberate decision to embark upon a criminal enterprise, DAB far more so than NJB.

The remarks on sentence 45 The sentencing judge set out the offences. He did not state the facts, but referred to the Statement of Agreed Facts. 46 He began his analysis of the relevant sentencing considerations by referring to "discounts". He acknowledged that, although both applicants pleaded guilty on indictment, each had indicated, from the outset, an intention to plead guilty. He stated his intention of allowing each a reduction in sentence, in accordance with the principles stated in R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383, of 25 percent. 47 He then dealt, somewhat obliquely (as shall I), with a further reduction in sentence to which he found DAB was entitled. Pursuant to s 23 of the Sentencing Procedure Act he allowed DAB a further reduction of 25 percent, giving a combined reduction for that circumstance, and the plea of guilty, of 50 percent. I observe merely that the evidence establishes that a reduction of that magnitude was fully justified.

DAB 48 In respect specifically of DAB, his Honour then considered the various relevant aggravating and mitigating features itemised in s 21A(2) and (3) of the Sentencing Procedure Act. He held (correctly) that DAB's offences were part of a planned or organised criminal activity and were committed for financial gain. He disregarded the previous offences committed by DAB, and treated him as of prior good character. He found that DAB was unlikely to re-offend, and had good prospects of rehabilitation. He considered that the s 23 evidence was "the clearest possible demonstration of remorse". 49 He noted the impressive testimonial evidence, and concluded that, prior to the commission of the offences, DAB was "a significant contributor to the well-being of the community". He stated that, having regard to all the circumstances, the appropriate starting point for sentence for each offence was 20 years. 50 Although these were offences to which standard non-parole periods were applicable, in respect of DAB he made no finding as to where on the scale of objective gravity they lay. 51 His Honour then turned his attention to questions of concurrency and accumulation. He said: "The next question that arises is to whether, because of the case of PEARCE [ v The Queen [1998] HCA 57; 194 CLR 610] they should be accumulated partially or not. It would in my judgment be wholly inappropriate to contemplate total accumulation. Although it is all part of the same ongoing enterprise, I regard supplying very large quantities and manufacturing them to enable them to be supplied as significantly different and in my judgment there should be a partial accumulation so that as a result of that there would have been prior to any discounts an overall sentence of twenty-four years imprisonment. I then apply the discount of fifty percent, which I have mentioned, giving a net overall sentence of twelve years imprisonment. It can now be seen that the quantification of the assistance discount is six years. Of that I attribute two years to the assistance already given and I attribute four years in respect of the assistance still to be given."

Ground 1: identical starting points for the two offences 58 The basis for this ground of appeal is that significantly different quantities of drugs were involved in the offences of supply and manufacture, but that these were not reflected in the sentences imposed. 59 The extent to which the quantity of a drug involved in an offence is determinative of penalty has been the subject of consideration: see Wong v The Queen [2001] HCA 64; 207 CLR 584 at [31] and [67]-[70]. 60 Wong was a decision concerned with offences against Commonwealth law, where quantity is measured by the pure weight of the drug contained in any mixture: Criminal Code Act 1995, s 312.1. That may be contrasted with offences against State law, where the measure is the admixture in which the drug is contained: DMT Act, s 4: see the discussion by Howie J in Truong v R [2006] NSWCCA 318; Mirza v R [2007] NSWCCA 248. 61 Even in respect of Commonwealth offences, the quantity involved in an offence remains a matter of some significance. 62 In the case of DAB, the only circumstance that differentiates the two offences is the quantity of drug involved. The supply offence involved just over 8 kilograms of tablets, and 1 kilogram of MDMA powder, more than 9 kilograms altogether (against the cut off point for a large commercial quantity of 500 grams). The manufacturing offence involved just under 3 kilograms of tablets, against the same cut off point. 63 I have concluded that DAB's point is well made: the starting point of the sentences ought to have reflected the different level of criminality as indicated by these quantities. As I have said, there was no other basis of differentiation, in respect of the objective gravity of the offences, or DAB's personal circumstances, between the two offences. It is not to be overlooked, also, that the sentence imposed in respect of the supply offence included some component in recognition of the money laundering offence taken into account. The sentence in respect of the manufacturing count ought to have been less, if only for that reason. 64 Given that I have, on other grounds, also, concluded that the sentencing process miscarried, I will take that differentiation into account in proposing re-sentencing orders.

Ground 2: accumulation 102 The approach taken in respect of NJB with respect to accumulation was identical to that taken in respect of sentencing DAB, and is affected by the same error. 103 The starting point of each sentence in this case was 10 years; had the judge, rather than increasing that sentence by reason of "accumulation" deferred the commencement date of the second sentence, again, the same outcome would have been achieved, by the application of correct processing. 104 There are thus two errors exposed. I am, however, unable to conclude that the errors produced sentences that were excessive. 105 I start with the conclusion that the two offences were of equal gravity, calling for equal punishment, and that each was slightly below the mid-range of objective gravity. 106 I have examined a variety of mathematical ways to approach this sentencing exercise. 107 The first approach I take is this: the standard non-parole period is 10 years. The plea of guilty means that the standard non-parole period is not strictly applicable, but it remains relevant as a guidepost or indicator: R v Way [2004] NSWCCA 131; 60 NSWLR 168. Starting with the standard non-parole period, NJB is entitled to a reduction of 25 percent by reason of his plea of guilty. That gives a non-parole period of 7 years and 6 months. He is entitled to a further reduction because the offence is of less than mid-range gravity - say, 6 years. He is entitled to a further reduction in the non-parole period by reason of the finding of special circumstances - resulting in a non-parole period of 5 years. 108 The second approach is this: starting again with the standard non-parole period of 10 years: reduce that because the offence is of less than mid-range gravity - to, say, 8 years. Reduce that by 25 percent in recognition of the plea of guilty - 6 years. Reduce that for special circumstances - the resultant non-parole period is 5 years. That is the non-parole period that was imposed. Each of these approaches produces the very non-parole period that was imposed. (To this point, I have included no accumulation of the second sentence on the first.) 109 Thirdly, begin with the Judge's starting point of 10 years for the head sentence (having regard to the standard non-parole period, that was a very generous starting point). Applying the s 44 ratio, the non-parole period would be 7 years and 6 months. Applying the 25 percent reduction gives 5 years and 6 months. A further reduction of the non-parole period (special circumstances) gives 5 years. 110 Fourthly, start with a head sentence of 10 years. Reducing that by 25 percent gives 7 years and 6 months. The non-parole period, in accordance with s 44, would be a little over 5 years and 6 months. Make an allowance for special circumstances - 5 years. 111 Each of these also produces the very non-parole period that was imposed. And the question of accumulation has still not been considered. 112 I propose that NJB be sentenced, on each of counts 2 and 5, to imprisonment of 7 years and 6 months with a non-parole period of 5 years. 113 Although there ought to have been some accumulation, it is not possible to achieve that. I would allow the appeal to the extent of reducing the head sentence, but not the non-parole period. 114 I am unable to see that any non-parole period less than 5 years would adequately reflect the criminality. The various mathematical exercises I have set out above demonstrate that that impression is correct. 115 I propose the following orders:

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