Daher v R

Court of Criminal Appeal (NSW)|2018-09-28|Before: Payne JA, Johnson J

Solicitors: Daniel Wakim (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2013/274399 Publication restriction: None Decision under appeal Court or tribunal: District Court Jurisdiction: Crime Date of Decision: 21 February 2017 Before: Culver DCJ File Number(s): 2013/274399

HEADNOTE [This headnote is not to be read as part of the judgment] In 2017 Mr Daher, the applicant, was sentenced following a plea of guilty to three counts contrary to sections 25(1) and 25A(1) of the Drug Misuse and Trafficking Act 1985 (NSW) and section 16(1) of the Poisons and Therapeutic Goods Act 1966 (NSW). The applicant received an aggregate sentence of 5 years and 6 months imprisonment with an aggregate non-parole period of 3 years and 4 months. The applicant sought leave to appeal the sentence imposed by the sentencing judge. The issues on appeal were: (1) Whether the sentencing judge failed to make any, or any proper, assessment of the objective seriousness of the applicant's offending; (2) Whether the sentencing judge erred in her Honour's assessment of the applicant's conditional liberty; and (3) Whether the sentence imposed was manifestly excessive. The Court (Payne JA, Simpson AJA and Johnson J) held, granting leave to appeal and allowing the appeal against sentence: In relation to issue 1, per Payne JA (Simpson AJA and Johnson J agreeing), It is not possible properly to make an assessment about the objective gravity of drug supply offences under ss 25 and 25A of the Drug Misuse and Trafficking Act without giving at least some consideration to the quantity of the prohibited drug involved. The sentencing judge failed specifically to refer to the factors which bore upon objective seriousness, including the quantity of drugs involved: [54]. Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 25A; Tepania v R [2018] NSWCCA 247; R v Campbell [2014] NSWCCA 102; R v Van Ryn [2016] NSWCCA 1; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64; R v MRN [2006] NSWCCA 155; R v Younan [2018] NSWCCA 180; Sponberg v R [2017] NSWCCA 120 applied. In relation to issue 2, per Payne JA (Simpson AJA and Johnson J agreeing), The sentencing judge treated the fact of the offence having been committed whilst the applicant was on conditional liberty as a relevant factor related to moral culpability as part of the relevant subjective circumstances. That was not an error: [60]. Sharma v R [2017] NSWCCA 85 considered. In relation to issue 3, per Payne JA (Simpson AJA and Johnson J agreeing), In light of the Court's conclusion in relation to issue 1, it is unnecessary to separately consider this issue: [62]. On re-sentencing the applicant, per Payne JA (Simpson AJA and Johnson J agreeing), The objective seriousness of the applicant's offending is at the lower end of the scale. The quantity of drugs involved in the offences was relatively small, the applicant's drug supply enterprise was amateurish, the recipients were within a relatively small circle and the supply was conducted to facilitate the applicant's own use of drugs: [66]-[68]. It is appropriate in this case for the same 15 per cent discount as granted by the sentencing judge to take into account the guilty plea to be given. The sentencing judge's finding of special circumstances should not be disturbed; the approximately 60 per cent ratio is appropriate: [69]. The applicant is re-sentenced to an aggregate head sentence of 4 years and 6 months imprisonment with an aggregate non-parole period of 2 years and 9 months: [75]. Remington v R [2018] NSWCCA 98 considered.

Judgment

PAYNE JA: The applicant, Mr Elle Daher, seeks leave to appeal a sentence imposed on him on 21 February 2017 by Culver DCJ following a plea of guilty to an indictment containing three counts.
Count one on the indictment alleged a supply on three or more occasions during a period of 30 consecutive days in March 2013 of a prohibited drug, namely cocaine, for financial reward contrary to the Drug Misuse and Trafficking Act 1985 (NSW), s 25A(1). The maximum penalty was 20 years imprisonment and/or a fine of 3,500 penalty units.
Count two on the indictment alleged supply of a prohibited drug between 12 April 2013 and 26 April 2013, namely cocaine, contrary to the Drug Misuse and Trafficking Act, s 25(1). The maximum penalty was 15 years imprisonment and/or a fine of 2,000 penalty units.
Two offences were attached to this count on a Form 1. The first offence was supply of a prohibited drug on 19 February 2013, namely cocaine, contrary to the Drug Misuse and Trafficking Act, s 25(1). The second was knowingly take part in supplying a prohibited drug on 17 July 2013, namely cocaine, contrary to the Drug Misuse and Trafficking Act, s 25(1).
Count three on the indictment alleged that the applicant knowingly took part in the supply of a prohibited drug on 12 July 2013, namely cocaine, contrary to the Drug Misuse and Trafficking Act, s 25(1).
Three offences were attached to this count on a Form 1. The first was supply of a prohibited drug on 17 May 2013, contrary to the Drug Misuse and Trafficking Act, s 25(1). The second was possession of an anabolic steroidal agent, namely Deca Durabolin, contrary to the Poisons and Therapeutic Goods Act 1966 (NSW), s 16(1). The maximum penalty was 2 years imprisonment and/or a fine of 20 penalty units. The third was possession of a restricted substance, namely Sustanol, contrary to the Poisons and Therapeutic Goods Act, s 16(1).
The sentencing judge applied a 15 per cent discount to take into account the guilty pleas. The sentencing judge imposed an aggregate sentence of 5 years and 6 months imprisonment with an aggregate non-parole period of 3 years and 4 months, commencing from 4 February 2017. The applicant's earliest release date is 3 June 2020. A finding of special circumstances was made and the aggregate non-parole period was fixed to be 60.6 per cent of the total aggregate sentence.
The indicative sentences were identified by the sentencing judge as being: 1. count one: 4 years and 3 months; 2. count two: 2 years and 6 months; and 3. count three: 2 years and 1 month.

Facts

The facts were put before the sentencing judge by way of an agreed statement. Those facts were in some respects unclear.
On 19 February 2013, the applicant met with a Ms Vidal and supplied her with three grams of cocaine at a price of $300 per gram. This is the subject of the first Form 1 offence referred to at [4].
On 25 February 2013, the applicant sent Ms Borton, someone with whom he regularly communicated, a text message regarding a $1,600 debt owing to him. On each of 14, 15 and 23 March 2013, he supplied a quantity of cocaine to Ms Borton. The sentencing judge made no finding about the quantity involved. This is the subject of count one in the indictment.
On 13 April 2013, the applicant arranged for a Mr Henshaw to meet with his brother, Mr Simon Daher, for the supply of cocaine. On 19 April 2013, Simon Daher and the applicant had a disagreement about an earlier supply of drugs. Later, the applicant arranged for Mr Henshaw to meet Simon Daher. Simon Daher called the applicant and said that "he" was there and that it was "plenty short". Later still, the applicant arranged for Mr Henshaw to meet his friend "Paul" in order to "work it out by eyesight" and spoke to "Ray", who told him that he needed "2". At 8.30pm Mr Henshaw told the applicant that he had "sorted it out". On 25 April 2013, the applicant exchanged text messages with a phone number in relation to "girls" and "dates". Later, the applicant arranged to bring Mr Ronny Chia "a couple of girls". The events of 13, 19 and 25 April are the subject of count 2 in the indictment. The agreed facts do not contain any allegation of a physical supply of drugs on these dates, but rather an agreement to supply cocaine on those 3 dates. Of course the definition of "supply" in s 3 of the Drug Misuse and Trafficking Act includes "agreeing to supply" or "offering to supply".
On 17 May 2013, the applicant made arrangements via text with Ms Borton to provide her with "2 more sandwich platters by this afternoon". Ms Borton met the applicant at 5:21pm at the café owned by the applicant. Upon leaving, Ms Borton was stopped by the police who found 2.3 grams of cocaine with a purity of 48 per cent in her possession. This is the subject of the first Form 1 offence referred to at [6].
From June 2013, the police began a controlled operation using an undercover operative known as "Samir". On 10 July 2013, Samir called the applicant and asked about obtaining "a ball". On 11 July 2013, the applicant contacted Mr Henshaw and Samir. Mr Henshaw was directed to meet Samir. On 12 July 2013, Mr Henshaw gave Samir 3.55 grams of cocaine with a purity of 58 per cent and received payment of $1,100. This is the subject of count 3 on the indictment.
On 13 July 2013, the applicant called Mr Eric Aryans informing him that he was taking a break and Mr Henshaw was taking over, explaining that "I had people knock on my door last night in blue and I can't talk anymore. What I'm saying is deal with him. That's it. Leave it at that".
On 17 July 2013, the applicant met Mr Henshaw at his café. Mr Henshaw left carrying a plastic container. Mr Henshaw then met with Samir, giving him the plastic container which was found to contain 3.48 grams of cocaine with a purity of 44.5 per cent. This is the subject of the second Form 1 offence referred to at [4].
On 10 September 2013, police executed search warrants at the applicant's café and house. They found 30 vials of Deca Durabolin and 34 vials of Sustanol inside the kitchen pantry. These are the subject of the second and third Form 1 offences referred to at [6].

Sentencing remarks

In lengthy ex tempore remarks on sentence her Honour first addressed the question of an assessment of objective seriousness. Her Honour remarked that "the seriousness of supplying prohibited drugs generally is very grave indeed and the reasons for that are obvious". Her Honour said "[t]he community all too often sees that networks of organised crime form to supply these drugs in a distribution pattern which only serves to create in many instances more demand for drugs and in many instances secondary crimes surrounding the organised criminal network".
The sentencing judge recognised early in her remarks that "[i]t is incumbent on the Court to look at the particular circumstances of these offences to see where the seriousness falls within the range of offending contemplated by these charge categories".
The sentencing judge then referred to EF v R [2015] NSWCCA 36 and R v Gu [2006] NSWCCA 104 and recited the now rejected principle, derived from R v Clark (Court of Criminal Appeal (NSW), 15 March 1990, unrep) that "unless there are truly exceptional circumstances present, a full time custodial sentence ought to be imposed whenever the offender has been substantially involved in the supply of prohibited drugs." The sentencing judge then addressed the question posed by Clark, namely whether "the offender has been substantially involved in the supply of prohibited drugs".
Her Honour recorded that "it is fundamental to the sentencing exercise that the Court must look at the very particular circumstances of the offending conduct in order to glean the seriousness of the offences themselves".
Her Honour found that the applicant "clearly operates as a wholesaler, not the retailer. He is supplying cocaine with a frequency and a quantity and a purity and in a structured distribution pattern involving Mr Henshaw that strongly suggests he is acting as a wholesaler, particularly where it is contemplated that the drugs are being supplied for on-sale in the matters [the subject of the indictment and the Form 1s]". Her Honour found that the period of offending was for six months between February and July 2013.
Her Honour concluded that "[t]he offender appears to be at the apex of his drug network. The circumstances lead to only one available conclusion and that is that the offender has trafficked in the drug cocaine to a significant extent over a considerable period of time, a matter of months".
The sentencing judge then addressed matters under the heading "subjective features". The sentencing judge accepted the applicant's sworn evidence of genuine remorse and acceptance of responsibility for his offending conduct.
After discussing the applicant's employment background, including his unfortunate relationship with the failed mobile telephone business One.Tel, her Honour accepted that the applicant was at the time of the offending an addict and that the offences were committed to support his own drug habit.
As to mental condition, her Honour accepted that the applicant suffered from ADHD, but found that condition "is not as strongly causative, as suggested by [counsel for the applicant] Mr Hughes, but that causal connection between that condition and his offending was nonetheless present".
The sentencing judge found that the applicant committed these offences whilst subject to a s 10 bond for possession of a prohibited drug. Her Honour found that was a circumstance which could be taken into account when considering the sentencing purposes of specific deterrence and retribution. Her Honour found that this was "a serious elevation of his criminal conduct".
The sentencing judge found that the absence of any prior serious offending by the applicant (who is now 52 years old and who was 50 at the time of the sentencing hearing) was a circumstance that contributed favourably to his prospects of rehabilitation. Her Honour concluded that the applicant had good prospects of rehabilitation. The sentencing judge took into account that the applicant demonstrated in the period between 2013 and 2017 that he had taken steps towards rehabilitation. The sentencing judge made a finding of special circumstances, essentially on the basis that the applicant had demonstrated a need for ongoing rehabilitation which would be enhanced by a longer than usual period of supervision.
At the conclusion of her remarks on sentence her Honour returned to the Form 1 matters. Her Honour reminded herself that the point of the process may be to impose a longer sentence for the offence for which the Form 1 is to be taken into account or to alter the nature of the sentence that would be imposed if the primary sentence stood alone. Her Honour found that "the criminality of the matters on the Form 1s are relatively serious" and that they "inform an overall picture of criminality that the offender was immersed in during that period of time between February and July 2013".

Grounds of appeal

The applicant raised three grounds of appeal: 1. The sentencing judge erred in failing to make any, or any proper, assessment of the objective seriousness of the offending, or alternatively erred in the manner in which she addressed this subject. 2. The sentencing judge erred in her assessment of the applicant's conditional liberty. 3. The sentence imposed was, in all of the circumstances, manifestly excessive.
Leave was given to the applicant to file affidavit evidence within 7 days on the basis that it was admissible only in the event of re-sentencing. The evidence which was filed was an affidavit of the applicant sworn 10 October 2018 and affidavits of Mr Daniel Wakim, solicitor, dated 5 and 10 October 2018.

Ground 1

The failure of the sentencing judge to give any consideration to the quantity of drugs being trafficked both in the individual amounts and overall was at the heart of the applicant's complaints about the assessment of objective gravity.
The applicant submitted that the sentencing judge erred in failing to make any, or any proper, assessment of the objective seriousness of the offending. The applicant submitted that the sentencing judge's consideration of matters relevant to objective seriousness was erroneously limited to the question of whether the applicant was involved in "trafficking to a substantial degree" with no explicit consideration or assessment of the objective seriousness of each offence.
The applicant submitted that the sentencing judge's assessment of the objective gravity of the particular offences was limited to an observation that: "The offender appears to be at the apex of his drug network. The circumstances lead to only one available conclusion and that is that the offender has trafficked in the drug cocaine to a significant extent over a considerable period of time, a matter of months."
The applicant accepted in this Court that this was a case where a full-time custodial sentence was appropriate. It was submitted, however, that the sentencing judge's focus on whether the trafficking was "to a substantial degree" addressed only the question raised below of whether a full-time custodial sentence ought be imposed and not the objective gravity of the offending. That is demonstrated by her Honour's references to EF v R, R v Gu and R v Clark. The applicant pointed out that in Robertson v R [2017] NSWCCA 205, handed down after the sentencing proceedings, Simpson JA explained that the formula in Clark, picked up in the cases that have followed Clark, was inconsistent with the requirements of the Crimes (Sentencing Procedure) Act 1999 (NSW). As Simpson JA put it, the options prescribed by that statute "cannot be airbrushed out of consideration by judicial prescription". That her Honour was correct so to conclude was established in Parente v R [2017] NSWCCA 284.
The applicant's attention to this issue in the present case, however, is for a different purpose. It was submitted that the sentencing judge's focus on whether there was trafficking "to a substantial degree" addressed, and only addressed, the Clark formula and did not involve any finding about the objective seriousness of the offending or the individual offences.
The applicant submitted that the only finding in addition to that set out at [33] that might be thought to address objective gravity addressed the Form 1 offences (quoted at [29]) which was insufficient to constitute an assessment of objective gravity of the offending.
It was submitted that a proper assessment of the objective seriousness of these offences (including the Form 1 matters) would have taken into account the small scale of the applicant's activities and the small amounts of drugs being trafficked both in the individual amounts and overall. The applicant accepted that the quantity of the drug could not be determinative in sentencing, but submitted that it was nonetheless an important factor in the assessment of the objective seriousness of the offences here engaged. In oral address, it was also submitted that the sentencing judge erred in the way she addressed the question of the moral culpability of the offender.
The Crown submitted that this case should be understood as one like Delaney v R; R v Delaney [2013] NSWCCA 150; (2013) 230 A Crim R 581, where Hoeben CJ at CL said (Harrison and Beech-Jones JJ agreeing): "[56] While it is true that his Honour did not in terms assess the objective gravity of the offending, he did specifically refer to the factors which bore upon its objective seriousness. His Honour took account of the amount involved, the role of the appellant, the nature of the conduct and the period over which it took place. While it may have been preferable for his Honour to have made a specific assessment of the objective seriousness of the offending, he did implicitly do so. I am satisfied that the factors to which his Honour referred were relevant and important and were given proper weight in the sentencing process. While his Honour may not have expressly determined the objective criminality of the offences, he clearly took that into account."
The Crown submitted that a charge under s 25A of the Drug Misuse and Trafficking Act, involving ongoing supply, is more serious than an offence under s 25 concerning a single offence of supply. Section 25A is directed to the business operation of supply, meaning that the objective criminality of a contravention of the provision is determined by reference to repetition, systems and organisation, not merely the frequency of supply or quantity supplied: R v Giang [2005] NSWCCA 387 at [18]-[19]; R v Hoon [2000] NSWCCA 137 at [16]. While the quantity of supply is relevant, it does not necessarily diminish the objective seriousness of the offence: Mirza v R [2007] NSWCCA 248.
The Crown submitted that, while the amount and purity of a drug supplied is relevant to the assessment of the objective seriousness of an offence under s 25(1) or 25(2) of the Drug Misuse and Trafficking Act, it is not decisive: R v Dang [2005] NSWCCA 430. Rather, the offender's role in a drug syndicate, the level of criminality involved, the motivation for the supply and the planning involved are also relevant: Melekian v R [2008] NSWCCA 156 at [42]; R v MacDonnell [2002] NSWCCA 34; (2002) 128 A Crim R 44 at [33]; R v Dang at [24].
The Crown submitted that the sentencing judge gave detailed consideration to and made relevant findings in relation to the factors which were relevant to the assessment of the objective seriousness, despite not adopting a particular form of words for the assessment of objective seriousness. The offences did not attract a standard non-parole period and it was not necessary to place them on a notional scale: Harris v R [2015] NSWCCA 81; (2015) 70 MVR 412 at [57]. Detailed reference to all the relevant factors sufficiently indicates the finding in relation to objective seriousness: Hurst v R [2017] NSWCCA 114 at [98]-[110].

Consideration of ground 1

The issue at the heart of this ground of appeal is whether her Honour made an assessment, as she was bound to do, of the objective gravity of the offending? As recently discussed in Tepania v R [2018] NSWCCA 247, the assessment of the objective gravity of an offence forms a significant part of the sentencing process with respect to all offences, even those such as the present where a standard non-parole period did not apply. In R v Campbell [2014] NSWCCA 102, Simpson J (Hall J agreeing) found, in relation to objective seriousness: "[27] …the assessment of objective seriousness is, and has always been, a critical component of the sentencing process: R v Geddes (1936) 36 SR (NSW) 554; R v Dodd (1991) 57 A Crim R 349; Markarian v The Queen [2005] HCA 25; 228 CLR 357; Khoury v R [2011] NSWCCA 118; 209 A Crim R 509 at [71]-[72]. These cases were all decided before judgment was given in Muldrock v The Queen [2011] HCA 39; 240 CLR 120. There is nothing in that judgment that cuts across the principle stated. Muldrock exposed error in this Court in over emphasising the assessment of objective gravity in offences to which Pt 4 Div 1A of the Sentencing Procedure Act applies, of notional offences in the mid-range of objective seriousness. It does not preclude proper attention being paid to the objective seriousness of the particular offence under consideration: see, for example, R v Koloamatangi [2011] NSWCCA 288 per Basten JA. In respect of offences to which Pt 4 Div 1A of the Sentencing Procedure Act applies, two "legislative guide posts" are to be observed - the maximum sentence prescribed, and the standard non-parole period."
In R v Van Ryn [2016] NSWCCA 1, R A Hulme J (with whom Leeming JA and Johnson J agreed) observed: "[133] From the summary of the sentencing judgment set out above it is clear that apart from reciting the facts of the offences the judge made no assessment of their objective seriousness or, if he did, he said nothing about it. Latham J observed in R v Cage [2006] NSWCCA 304 at [17] that: 'A bare recitation of the facts constituting the offences and a reference to the 'objective features of the offences' does not satisfy the requirements of sentencing'."
I respectfully agree that a bare recitation of the facts constituting the offences and a reference to the "objective features of the offences" does not satisfy the requirements of sentencing. That principal applies equally in the present case as it does in a Crown appeal such as Van Ryn.
It is clear that the sentencing judge did not, in terms, make an assessment of the objective gravity of the offending or of the individual offences. The real question in this case is whether her Honour implicitly did so in the way identified by Hoeben CJ at CL in Delaney v R. That is, did her Honour specifically refer in sufficient detail to the factors which bore upon the objective gravity of the offending such that it may be concluded that an assessment of the objective seriousness of the offending was carried out.
In my view her Honour failed, even implicitly, to make an assessment of the objective gravity of the offending. This is a case where, after reciting the facts at some length, and identifying at a level of generality that trafficking in prohibited drugs is a serious offence, her Honour essentially addressed the question posed by Clark of whether the applicant was involved in "trafficking to a substantial degree". Her Honour's conclusion on this topic, which the Crown submitted was the implicit assessment of objective seriousness referred to in Delaney was: "The offender appears to be at the apex of his drug network. The circumstances lead to only one available conclusion and that is that the offender has trafficked in the drug cocaine to a significant extent over a considerable period of time, a matter of months."
Of the relevant factors described in Delaney, her Honour took into account the role of the appellant in "his drug network" and the period over which it took place. The finding that the applicant had "trafficked in the drug cocaine to a significant extent", however, was not an implicit assessment of the objective seriousness of the offending.
In assessing the objective seriousness of an offence, the weight of the drug involved is not the only, or even chief, consideration, however, it is clearly a relevant factor which must be taken into account: Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [67]-[70] per Gaudron, Gummow and Hayne JJ. Nothing in the cases relied upon by the Crown such as R v Dang and Mirza v R provides to the contrary.
In a case such as the present, involving the supply of prohibited drugs and the supply on three or more occasions during a period in March 2013 of 30 consecutive days of a prohibited drug, it was incumbent on the sentencing judge to make some assessment of the objective seriousness of the offending, including the quantity of drugs involved.
It is true, as the Crown submitted, that the sentencing judge made findings about the applicant's "network" and the fact he was acting as a "wholesaler", by which her Honour apparently meant that the applicant knew that the drugs he supplied were on occasions being on-supplied. The word "quantity" was also used by her Honour when finding the applicant was a wholesaler. Nowhere, however, was an assessment undertaken, explicitly or implicitly, of the objective gravity of the offending including as part of that assessment the quantity of drugs supplied.
It is well established that s 25A of the Drug Misuse and Trafficking Act is directed to the business operation of drug supply, meaning that the objective criminality of a contravention of the provision is determined by reference to repetition, systems and organisation, not merely the frequency of supply or quantity supplied. It must be remembered, however, that the quantity of the drug is not irrelevant, nor are repetition, system and organisation of greater importance. They take their place beside the number and quantities of individual incidences of supply: R v MRN [2006] NSWCCA 155 at [142]-[145] per Simpson J (with whom McClellan CJ at CL and James J agreed); R v Younan [2018] NSWCCA 180.
This is a case of the kind described by Macfarlan JA (with whom Latham and Campbell JJ agreed) in Sponberg v R [2017] NSWCCA 120. There His Honour said: "[26] It is to be expected that there will be infelicities of expression in judgments given by judges who are subject to the demands and pressures of busy lists, and the focus of this Court should be on substance rather than form (as to the latter proposition see Delaney v R (2013) 230 A Crim R 581; [2013] NSWCCA 150 at [56]). Nonetheless, the inescapable conclusion in the present case is that his Honour's sentencing judgment does not contain an assessment of the objective seriousness of the Count 1 offence, either relative to other offences of its type or at all."
I accept the applicant's submission that it is not possible properly to make an assessment about the objective gravity of drug supply offences under ss 25 and 25A of the Drug Misuse and Trafficking Act without giving at least some consideration to the quantity of the prohibited drug involved. I am not persuaded that in the sentencing judgment, including in the passages relied upon by the Crown, her Honour impliedly made an assessment of the objective gravity of the offending. That is, her Honour failed specifically to refer to the factors which bore upon objective seriousness, including the quantity of drugs involved.
It follows that I would uphold ground 1 of the appeal.
Given this conclusion, it is strictly unnecessary to deal with the assessment of moral culpability which was dealt with by the sentencing judge as part of the relevant subjective circumstances. Many cases describe moral culpability in the context of considering subjective factors: for example, Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 at 477; R v Clark [2009] QCA 361, per Keane JA at [27] (Holmes JA and Atkinson J agreeing); Muldrock v The Queen (2011) 240 CLR 120; [2011] HCA 39 (at 140 [58]); Munda v State of Western Australia (2013) 249 CLR 600; [2013] HCA 38 (at 621 [57]); and Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37, per French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ at [44].
It was not an error for the sentencing judge to make an assessment of moral culpability as part of the relevant subjective circumstances when conducting the instinctive synthesis required in sentencing.

Ground 2

Given my conclusion in relation to ground 1 it is strictly unnecessary to address ground 2. It was submitted that by treating conditional liberty as a matter increasing the applicant's moral culpability her Honour fell into error. In Sharma v R [2017] NSWCCA 85, R A Hulme J (Beazley P and Walton J agreeing) said: "[66]…Taking into account a matter personal to the offender, such as that the offending occurred while he or she was subject to conditional liberty (e.g. Boney v R [2015] NSWCCA 291 at [18]-[20]) or had a criminal history (e.g. McCabe v R [2016] NSWCCA 7 at [15]-[23]) is erroneous in light of R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566 at [24] per Spigelman CJ and at [81] per Barr and Bell JJ and Muldrock v The Queen at [27]."
What the sentencing judge said here was: "It is a serious matter than an offender would not only commit further offences whilst subject to the trust of the court in the community, but that he would do so in a way that amounts to a serious elevation of his criminal conduct. His bond was imposed for possessing a prohibited drug, a matter which carries the potential of two years imprisonment. The matters he committed whilst subject to that bond also involve prohibited drugs, but his criminality was far worse as it involved supplying prohibited drugs. That brings an emphasis to specific deterrence, despite the mental health position. It is also a feature recognised under the Crimes (Sentencing Procedure) Act as making more serious the moral culpability. This is because the offender ought to have honoured the trust placed on him by the Court in being released to the community without conviction and then placed on a bond, but instead he escalated his criminal conduct."
What her Honour did was treat the fact of the offence having been committed whist the applicant was on conditional liberty as a relevant factor related to moral culpability. This was treated by the sentencing judge as part of the relevant subjective circumstances. That was not an error.
Ground 2 should be dismissed.

Ground 3

Given my conclusion in relation to ground 1 it will be necessary to consider re-sentencing the applicant: Kentwell v The Queen 252 CLR 601; [2014] HCA 37. Whilst I would not have upheld this ground, it is unnecessary separately to consider it.

Resentencing and proposed orders

On re-sentencing after error has been found, an appellate court "does not assess whether and to what degree the error influenced the outcome": Kentwell at [42]. Rather, the Court's obligation is to exercise the discretion afresh. The re-sentencing court must make its own assessment of the appropriate sentence, without allowing the original sentence to dictate or guide the exercise of its discretion: Thammavongsa v R (2015) 251 A Crim R 342; [2015] NSWCCA 107 at [4]-[7], [21]-[25] and [44]. When it has done this, this Court must compare the appropriate sentence with that originally imposed and, if it is less than the latter, substitute it for the latter (Criminal Appeal Act 1912 (NSW), s 6(3)). If findings of fact made when a sentence was first imposed are not challenged on appeal, there is no reason why the court should not adopt them for the purposes of re-sentencing.
Whilst the sentence imposed by the sentencing judge was within a legitimate range, it is necessary that this Court exercise its own sentencing discretion.
The starting point is the statutory guideposts of the maximum sentences involved. I take those into account. There are no standard non-parole periods for those offences. The seriousness of supplying prohibited drugs generally is grave. There is no doubt that these offences warranted a significant period of imprisonment.
The three offences, taken together, undoubtedly disclosed a pattern of offending that involved a business operation. Such operations come frequently before the District Court and this Court, and experience shows that there is a wide range of circumstances that go into the assessment of objective gravity - eg the frequency of supplies, the quantities supplied (or agreed to be supplied), the sophistication of the supply organisation, the motive for participation, the number of recipients and the identity of the recipients (supply to juveniles would be more serious than supplies to adults, for example). On each of these criteria, the applicant's enterprise can be seen to be at the lower end. It was amateurish, the quantities supplied were small, the recipients were within a relatively small circle and the supply was conducted to facilitate the applicant's own use of drugs. Overall, this was drug supply on a small scale, well below the kind of offending that would qualify for mid-range offending. Of course, each offence must be assessed for its own objective gravity, but these observations are equally apt to each offence. This characterisation is based on the following matters: 1. in relation to count 1, three supplies is the smallest number to engage the section. The system and organisation demonstrated by the facts relevant to the offending must be understood in light of the unchallenged finding that the applicant was a user/dealer who sold drugs to feed his drug habit and that he did not otherwise profit from the dealing. The relative degree of sophistication of the system was fairly crude. Coded language was used in text messages and Mr Henshaw operated as a runner for the applicant. The applicant had a number of customers. The applicant knew that the drugs were in many cases being on-supplied. The small scale of the operation is properly reflected in a finding that the s 25A offence is very much at the lower end of the scale for offences of this type. The "organisation" of drug distribution exemplified by this count was one where the applicant was at the apex, however, that organisation was small and the ongoing supply demonstrated by count 1 was to a single purchaser and consisted of three transactions of relatively small amounts of cocaine; 2. the two Form 1 offences attached to this count were each individual supplies of cocaine of about 3 grams; 3. in relation to count 2, three offers or agreements to supply are engaged, but the objective gravity of the offence is at the lower end of the scale. The number of people to whom drugs were offered for supply by the applicant was small; 4. in relation to count 3, this involved a single supply to an undercover police officer of slightly more than 3 grams of cocaine. It is at the low level of objective seriousness for offences of this type; 5. the three Form 1 offences attached to count 3 were an individual supply of cocaine of about 3 grams and two relatively minor Poisons and Therapeutic Goods Act offences.
The quantity of drugs involved in the offences charged (including the Form 1 matters) was relatively small. In respect of count 1, whilst the gravamen of the offence was the ongoing supply of prohibited drugs, the count related to three separate supplies in one month of what I infer to be the same or similar quantity of cocaine as was involved in the first Form 1 offence, approximately 3 grams. I draw this inference because the circumstances of the supply were otherwise very similar. In respect of count 2, which also involved three transactions, the transaction on 13 April 2013 with Simon Daher was also likely to involve approximately 3 grams of cocaine. The transaction on 19 April 2013 with Simon Daher does not have sufficient information to infer the weight of the drug supplied. The transaction on 25 April 2013 with Ronny Chia was likely to involve 3 grams. I draw this conclusion because the underlying facts are very similar to the facts involving Ms Borton. The third count involved 3.55 grams of cocaine. Each of the Form 1 Drug Misuse and Trafficking Act offences involved approximately 3 grams of cocaine. The two Poisons and Therapeutic Goods Act offences related to materially different substances. Supply of those substances involves much lower maximum penalties.
The quantity of the drugs involved tends in favour of the overall assessment of the objective seriousness of this offending as at the lower end of the scale.
As to subjective circumstances, no reason has been shown to doubt the sentencing judge's acceptance of the evidence of the applicant's genuine remorse and expression of contrition. It is a significant mitigating factor that prior to his sentencing the applicant had taken significant steps towards rehabilitation. While on bail between 26 September 2013 and February 2017 the applicant essentially withdrew from drug use, provided random urine samples, saw a psychologist, had positive support from family members and was employed. He committed one offence of possessing a prohibited drug in 2014. The affidavit material relied upon for re-sentence shows that the applicant's drug free period has continued to the present. I have taken into account the breach of the s 10 bond and the Form 1 offences, both of which must in this case increase the sentence which would otherwise be imposed.
It is appropriate in this case for the same 15 per cent discount as granted by the primary judge to take into account the guilty plea to be given. The sentencing judge's finding of special circumstances should not be disturbed. The approximately 60 per cent ratio is appropriate.
In Remington v R [2018] NSWCCA 98, this Court dealt with an offender with a strong subjective case who had pleaded guilty to three offences of supply pursuant to s 25(1) of the Drug Misuse and Trafficking Act involving 12.94 grams of methamphetamine, 1.62 grams of methamphetamine and 1.86 grams of buprenorphine. This Court imposed wholly concurrent sentences of 12 months with a non-parole period of 6 months on the first count; 2 months on the second count and 2 months on the third count. I regard Remington as providing some very limited assistance in terms of a comparable sentence, although of course the s 25A offence, count 1 here, makes this a considerably more serious case. Nevertheless, for three serious offences committed to feed a drug habit the offender in that case received a sentence of 12 months with a 6 month non-parole period and two periods of 2 months, to be served concurrently.
The JIRS statistics also provide some very limited guidance. The sentences imposed for s 25A offences, principal offences only, show a range of sentences between 18 months and 7 years with the majority being sentences of between 2 and 4 years. Non-parole periods for s 25A offences, principal offences only, ranged between 6 months and 54 months with the clear majority being clustered between 12 and 30 months. The sentences imposed for s 25 offences, principal offences only, show a range of sentences between 6 months and 6 years with the majority being sentences of between 18 months and 3 years. Non-parole periods for s 25 offences, principal offences only, ranged between 6 months and 48 months with the clear majority being clustered between 12 and 2 years. I am conscious that these figures are a very blunt tool in a case like this, but they also provide some very limited guidance.
I have also taken into account the sentence imposed on Mr Henshaw who pleaded guilty to ongoing supply of cocaine between July and August 2013 and to supply of 14g of cocaine and received a 25 per cent discount. A Form 1 with three drug supply offences was attached to this count. An aggregate sentence of imprisonment of 3 years and 9 months was imposed with an aggregate non-parole period of 1 year and 9 months.
Taking all of these matters into account the indicative sentences I would impose for each of the counts are as follows: 1. count one: 3 years and 9 months; 2. count two: 2 years; and 3. count three: 1 year and 6 months.
A very modest degree of notional accumulation is appropriate. In accordance with the above, I propose the following orders: 1. Leave to appeal granted. 2. Appeal against sentence allowed. 3. The aggregate head sentence and aggregate non-parole period imposed by Judge Culver on 21 February 2017 are quashed. 4. In substitution, the applicant is sentenced to an aggregate head sentence of 4 years and 6 months imprisonment with an aggregate non-parole period of 2 years and 9 months, each to commence on 4 February 2017, and the aggregate head sentence to expire on 3 August 2021. 5. The first date upon which the applicant will be eligible for release to parole is 3 November 2019.
SIMPSON AJA: I agree with Payne JA.
JOHNSON J: I agree with Payne JA.

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(Criminal Appeal Act 1912(NSW)

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