195 CLR 665
R v Cahill [2015] NSWCCA 53
R v Cidan [2014] NSWCCA 66
R v Hatzisavvas v R
R v Lopez-Rios [2016] NSWCCA 147
R v Nykolyn [2012] NSWCCA 219
R v Zerafa (2013) 235 A Crim R 265
[2013] NSWCCA 222
R v Zolfonoon [2016] NSWCCA 250
Subramaniam v R [2013] NSWCCA 159
The Queen v Pham [2015] HCA 39
Source
Original judgment source is linked above.
Catchwords
169 CLR 525
Dinsdale v The Queen [2000] HCA 54195 CLR 665
R v Cahill [2015] NSWCCA 53
R v Cidan [2014] NSWCCA 66
R v Hatzisavvas v RR v Lopez-Rios [2016] NSWCCA 147
R v Nykolyn [2012] NSWCCA 219
R v Zerafa (2013) 235 A Crim R 265[2013] NSWCCA 222
R v Zolfonoon [2016] NSWCCA 250
Subramaniam v R [2013] NSWCCA 159
The Queen v Pham [2015] HCA 39
Judgment (3 paragraphs)
[1]
Solicitors:
A Bannister - Applicant
Solicitor for Public Prosecutions - Respondent Crown
File Number(s): 2014/342474; 2015/98883
Decision under appeal Court or tribunal: District Court of NSW
Jurisdiction: Criminal
Date of Decision: 07 September 2016
Before: Sides QC DCJ
File Number(s): 2014/342474; 2015/98883
[2]
Judgment
BATHURST CJ: I have had the advantage of reading the judgment of Hoeben CJ at CL in draft. For the reasons given by his Honour, leave to appeal should be granted but the appeal be dismissed.
HOEBEN CJ at CL:
Offences and sentence
The applicant seeks leave, pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed on him by Sides QC DCJ in the Parramatta District Court on 7 September 2016 in relation to the following offences:
Count 1 - supply a commercial quantity of ecstasy (489.49 grams) contrary to s 25(2) Drug Misuse and Trafficking Act 1985 (NSW) for which the maximum penalty is imprisonment for 20 years and which has a standard non-parole period of 10 years.
Count 2 - supply a commercial quantity of cocaine (999.5 grams) contrary to s 25(2) Drug Misuse and Trafficking Act for which the maximum penalty is imprisonment for 20 years and which has a standard non-parole period of 10 years.
Count 3 - supply indictable quantity of cocaine (45.8 grams) contrary to ss 25(1) and 29 Drug Misuse and Trafficking Act for which the maximum penalty is imprisonment for 15 years.
Count 4 - possess proceeds of crime ($113,145) contrary to s 193B(2) Crimes Act 1900 (NSW) for which the maximum penalty is imprisonment for 15 years.
Count 5 - posses proceeds of crime ($52,000) contrary to s 193B(2) Crimes Act for which the maximum penalty is imprisonment for 15 years.
There were matters on a Form 1 schedule as follows:
Form 1 attached to Count 2 - possession of:
1. 157.5 grams of cannabis leaf;
2. 1.97 grams MDA;
3. Testosterone.
Form 1 attached to Count 3 -
1. Supplying 448.9 grams of cannabis leaf;
2. Possession of Nandrolone;
3. Possession of Testosterone.
The applicant was sentenced to an aggregate term of imprisonment of 16 years and 6 months, commencing on 20 January 2015 and concluding on 19 July 2031, with a non-parole period of 11 years and 6 months concluding on 19 July 2026.
In accordance with s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW), his Honour set out the following indicative sentences:
Count 1 - imprisonment for 9 years and 9 months with a non-parole period 6 years and 6 months.
Count 2 - taking into account three matters on the Form 1 - imprisonment for 10 years with a non-parole period 6 years and 9 months.
Count 3 - taking into account three matters on the Form 1 - imprisonment for 3 years and 6 months.
Count 4 - imprisonment for 5 years and 6 months.
Count 5 - imprisonment for 2 years and 6 months.
The applicant relied upon one ground of appeal:
Ground 1 - The aggregate sentence imposed was manifestly excessive.
FACTUAL BACKGROUND
Police established Strike Force AGDEN to investigate the supply of ecstasy in Western Sydney by one Franco Grabovac (Grabovac). That Strike Force subsequently identified the involvement of three other offenders, including the applicant. A controlled operation was authorised which included the use of specified undercover operatives (UCO) as part of the Strike Force's investigative tools.
Count 1
In the case of each offender, Count 1 was an offence involving the supply of ecstasy in the period August to October 2014. During that period each offender was involved in one or more transactions when ecstasy was involved. The facts relating to the applicant in chronological order were as follows.
On 16 August 2014 Grabovac spoke to the applicant telling him that he needed 150 ecstasy tablets. After a number of communications between Grabovac, Blake Grant and the applicant, with Grabovac as the go-between, the applicant supplied him with 150 tablets. Grabovac supplied those tablets to Grant. They weighed approximately 35.55 grams.
On 20 August 2014 Grabovac agreed to supply an UCO with 300 ecstasy tablets. Later that day, he contacted the applicant who agreed to supply the tablets to him. At 2.10pm on 22 August the applicant supplied Grabovac with 300 tablets. Grabovac supplied the 300 tablets to the UCO and received $6,000 for them. The 300 tablets weighed 71.2 grams of which 4.5% was pure ecstasy. The tablets also contained 6% amphetamine.
On 23 August 2014 Grabovac contacted the applicant who agreed to supply him with 260 ecstasy tablets. At about 4.20pm the applicant and Grabovac met and the applicant supplied him with 260 tablets. Grabovac supplied the tablets to Grant. They weighed approximately 61.62 grams.
Later on 23 August 2014 Grabovac agreed to supply 100 ecstasy tablets to Grant. Grabovac then spoke to the applicant about the supply of 100 tablets. Not long afterwards, the applicant supplied Grabovac with 100 tablets which Grabovac then supplied to Grant. These tablets weighed approximately 23.7 grams.
On 30 August 2014 Grabovac contacted the applicant and made arrangements to receive 200 ecstasy tablets from him. The applicant supplied 200 tablets to Grabovac approximately 20 minutes later. Grabovac supplied the 200 ecstasy tablets to Grant. These tablets weighed approximately 47.4 grams.
On 5 September 2014 Grant asked Grabovac to supply him with 200 ecstasy tablets. Later that day, Grabovac met the applicant and received 200 tablets from him. He supplied those tablets to Grant early on 6 September. The 200 tablets weighed approximately 47.4 grams.
On 13 September 2014, after a series of telephone calls, the applicant supplied Grabovac with 250 ecstasy tablets. Grabovac supplied the 250 tablets to Grant. The tablets weighed approximately 59.25 grams.
On 17 September 2014 Grabovac and Grant agreed that Grabovac would supply him with 500 ecstasy tablets. Later that day, the applicant supplied Grabovac with the 500 tablets. Grabovac supplied the tablets to Grant. The tablets weighed approximately 118.5 grams. The purchase price was $5,000.
On 14 October Grabovac and an UCO had a conversation during which Grabovac agreed to supply the UCO with 100 ecstasy tablets. Early on 15 October, Grabovac ordered 100 tablets from the applicant. Shortly afterwards the applicant supplied Grabovac with 100 tablets, which Grabovac supplied to the UCO for $2,000. The tablets weighed 24.87 grams.
Counts 2 and 4
Police arrested the applicant on 20 November while he was driving his motor vehicle. When they searched him, police found $4,560 in his pocket. He told them that he had the money to pay off his mortgage. Police found a further $2,800 in his wallet. After the applicant arrived at the police station, he exercised his right to silence.
When police executed a search warrant at the applicant's home later that day, they found large sums of money as follows:
$750 in a wallet belonging to the applicant on a kitchen bench.
$90,000 in a bag in the laundry.
$500 in a bedside drawer.
$14,000 on a shelf in the garage.
$535 in a Lexus motor vehicle.
In total police found $113,145 when they arrested the applicant and executed the search warrant. This gave rise to the offence in Count 4.
In the backyard of the applicant's house, police found 998.5 grams of a compressed substance in a vacuum sealed bag of which 63% was pure cocaine. The cocaine was buried in the garden. This gave rise to the offence in Count 2.
During their search of the applicant's home, police found the following which gave rise to the three matters on the Form 1 which were attached to Count 2:
250mg Testosterone in refrigerator in the garage.
1.97 grams of MDA.
157.5 grams of cannabis leaf which was located in a white bucket in a passage at the side of the house.
Counts 3 and 5
On 21 January 2015 the Local Court at Campbelltown granted the applicant conditional bail. On 2 April 2015, while he was on bail, police executed a search warrant at his home after they observed him leaving the premises. During the search, police found the following which gave rise to the three matters on the Form 1 schedule attached to Count 3.
448.8 grams of cannabis leaf.
3.5 grams of Nandrolone in the refrigerator in the garage.
250 mgs of Testosterone Ethanate.
During their search, police found a can of Red Bull in a back refrigerator. Inside the can they discovered 45.8 grams of white powder of which 75% was pure cocaine. This gave rise to the offence in Count 3.
During their search of the garage, the police also found $52,000 in a metal cabinet. This gave rise to the offence in Count 5.
PROCEEDINGS ON SENTENCE
The applicant pleaded guilty at the earliest opportunity. As a result, the sentencing judge applied a discount of 25% to the indicative sentences.
The applicant did not give evidence. Information about the applicant's subjective background came from the report of a psychiatrist, Dr Furst of 30 July 2016, and the affidavit of the applicant's former wife, sworn 8 August 2016.
The applicant was born in 1974 and was aged 40 at the time of the events set out in Count 2 and was aged 42 when sentence was imposed. He was the youngest of 12 children, was born in Lebanon and came to Australia at the age of 14. Because his mother had one arm, an older sister raised him from infancy until he was four. His father died of leukaemia when he was aged 10 and on the same day, one brother was kidnapped and shot. Another brother was also kidnapped and the family believed he was dead until he was found four years later in a Syrian gaol.
Dr Furst reported that from the age of seven or eight the applicant was exposed to the atrocities of the civil war in Lebanon, including bombings, seeing dead bodies and witnessing fighting. The applicant reported that these matters had a significant impact on his emotional development and mental health. His Honour noted that the Crown did not dispute that proposition.
The applicant married his former wife in 1995. He has five children, aged from twenty to seven. Dr Furst reported that the relationship was conflicted and turbulent and from time to time the applicant would withdraw to the garage because of those conflicts. They separated when he was aged 28 as a result of him having an affair with another woman. The length of that separation was unclear. The applicant and his wife finally separated in February 2015 and the applicant reported that he had not seen or had access to his children since then.
Dr Furst reported that because of the civil war the applicant did not go to school in Lebanon and attended four different high schools after his arrival in Australia. He left school in year eight at the age of sixteen. Dr Furst was not told why he attended four different high schools but apparently he truanted often. Dr Furst was told that the applicant had been gainfully employed for most of his adult life.
The sentencing judge concluded that it was likely that the applicant would return to work when released and noted that he had worked in gaol whenever work was available.
Dr Furst reported that the applicant started using cocaine when he was aged 32 in order to improve his relationship with his wife. He became dependent on cocaine, using up to 2.5 grams per week. He continued to use it after being released on bail in January 2015. He had used ecstasy at parties and amphetamines every two or three months. He used cannabis for a period of four or five years during his early thirties. He had never used alcohol.
Substance abuse disorder (cocaine).
Adjustment disorder with depressed and anxious mood.
Dr Furst's opinion was:
"In my opinion, his primary psychiatric/psychological problems relate to long-term marital discord, stress in relation to marital conflict and the use of cocaine in a habitual manner in increasing quantities in efforts to deal with his negative emotional state and relationship difficulties …
The available facts suggest that his offending behaviour in question was related to financial difficulties and his own drug use; however, those factors are unlikely to have accounted for the quantity of drugs involved, level of organisation of the supply offences or the financial gains he appears to have made. His marital difficulties and symptoms of stress, depression and anxiety are indirectly related to his offending, contributing to some degree to his own use of cocaine over the last several years."
His Honour accepted that the applicant's adjustment disorder with anxious mood would continue to make his time in custody more burdensome.
His Honour assessed the objective seriousness of the offending. While his Honour accepted that the applicant's depression and anxiety indirectly contributed to his offending because of its link to his substance abuse, he was not persuaded that the applicant did not know what he was doing and did not appreciate the consequences of his offending conduct. His Honour did not accept that the applicant's moral culpability was thereby reduced. His Honour was satisfied beyond reasonable doubt that each of the applicant's offences was premeditated and motivated by greed. His Honour was also satisfied that, at the time of the offences, the applicant appreciated that he was enmeshing himself in organised criminal activity.
Count 1 comprised nine transactions over two months. Each of the nine transactions was wholesale in nature. The weight of ecstasy changing hands ranged from 23 grams to just over 118 grams. By weight the amount of ecstasy was slightly over 3.9 times the commercial quantity and almost 89% of a large commercial quantity.
While his Honour did not know how much money the applicant received from Grabovac for the ecstasy, his Honour found that the applicant was making substantial sums of money. His Honour regarded the speed with which the applicant was able to fill orders received from Grabovac as important and demonstrated that he had ready access to ecstasy. His Honour noted that although some of the ecstasy so supplied was intercepted by police, approximately 393.33 grams was not and was distributed into the community.
His Honour set out his conclusions in relation to Count 1:
"Clearly, in connection with these nine transactions this Offender was higher up the drug trafficking hierarchy than the Offenders Grabovac and Grant. The amount of money and drugs the police found in his possession on 20 November and 2 April 2015, combined with his involvement in count 1, satisfied the Court that he is well up the drug trafficking hierarchy, although it is not satisfied he is in the very upper echelons of it.
Taking into account only the objective factors affecting the relative seriousness of count 1, the Court is of the view that this offence is somewhat above or a little above the middle of the range of seriousness as connoted by the standard non parole period of ten years prescribed for offences within this provision." (Sentence judgment, 28.1)
The finding that the applicant's prospects of rehabilitation and not re-offending were poor.
The maximum penalties and standard non-parole periods.
The findings as to the objective seriousness of the offences.
That the offences were not isolated incidents.
The commission of the 2015 offences while on bail for the 2014 offences.
That the applicant was able to fill the orders of Grabovac relatively quickly, placing him well up the drug trafficking hierarchy.
The applicant's ability to finance his return to serious crime so soon after his release on bail.
The finding that the applicant was not a person of prior good character.
The finding that the offences were premeditated and motivated by greed.
The need for general and specific deterrence.
With those factors in mind, together with the fact that his Honour clearly imposed an aggregate sentence which reflected partial accumulation to take account of continuing offending conduct over time, the end result cannot be described as "plainly unjust" or "manifestly wrong".
The orders which I propose are that leave to appeal be granted but that the appeal be dismissed.
McCALLUM J: I agree with the orders proposed by the Chief Judge at Common Law, for the reasons his Honour has stated. I wish only to add one remark.
The evidence at the proceedings on sentence included an affidavit sworn by the applicant's wife as to their children's circumstances and the impact on them of the applicant's incarceration. That evidence provided a proper basis for submitting that hardship to third parties was a relevant factor in the sentencing task, even if the circumstances described did not amount to "exceptional circumstances" as that term has been comprehended in the authorities. The relevant authorities in the case of State offences are considered, with his Honour's usual thoughtful analysis, in the separate judgment of Beech-Jones J in R v Zerafa (2013) 235 A Crim R 265; [2013] NSWCCA 222 at [113] to [118]. As his Honour noted at [118], if nothing else, hardship to an offender's family can justify a finding of "special circumstances" for the purposes of s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW). However, counsel appearing for the applicant at the proceedings on sentence in the present case (not Ms Francis) did not make that submission. The submissions on appeal, and this Court's consideration of that evidence, were constrained accordingly.
[3]
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: 06 April 2018
His former wife reported that his mother died in 2014. Following that event, the applicant completely changed becoming socially isolated and his drug use increased. His Honour noted that there was no reference to his mother's death in the report of Dr Furst. Because the applicant did not give evidence, and because Dr Furst did not give oral evidence, there was no explanation before his Honour for the absence of any reference to his mother's death and its impact upon him, in Dr Furst's report.
His Honour noted that the applicant had never undertaken a drug and alcohol program. The applicant told Dr Furst that he was motivated to attend the compulsory drug and alcohol treatment program at Parklea Gaol.
The sentencing judge noted that the applicant's former wife referred to three of their children having a condition known as "Sickle-Cell Anaemia Disease". This is a medical condition requiring hospitalisation and other treatment. According to her affidavit, their eldest son's condition had deteriorated since the applicant's imprisonment resulting in more frequent hospital admissions. These were as frequent as once a month. That son had discontinued his university studies.
In that regard, the sentencing judge said:
"No medical evidence concerning any of the three children with this disease was placed before the Court. Whilst these matters are subjective features that the Court took into account in the Offender's favour, they do not support a finding of hardship to third parties that justifies a reduction in sentence on the discrete basis of hardship to third parties. In this context, the Court notes there is no mention of his children's medical condition in Dr Furst's report." (Sentence judgment, 24.9)
His Honour found that although the applicant did not have any previous convictions for drug supply, he did not have the benefit of a finding of prior good character. This was because of other criminal offences. These comprised - stealing and malicious damage (1993), carrying a cutting weapon and possession of implements capable of entering a conveyance (1994), two counts of assault police and two counts of trespass (1999), theft and possession and use of cannabis and going equipped to steal (1999), take and drive a conveyance (2003), receiving (2005), shoplifting (2008) and intimidation (2009).
Following his arrest on 20 November 2015 the applicant remained in custody until 30 January 2015. He was again taken into custody on 2 April 2015 and has been in custody ever since. His Honour found that it was an aggravating feature that he committed Counts 3 and 5 while on bail for the other three counts. While in custody, he was disciplined in August 2015 for possession of drugs.
Dr Furst diagnosed the applicant as suffering from the following:
His Honour noted that the quantity of cocaine in Count 2 was only 1.5 grams less than a large commercial quantity and that its purity was quite high. Even though police had seized it, the potential for harm was substantial and it was clearly a wholesale amount. His Honour found that the offence in Count 2, when combined with the offence in Count 3, marked a significant expansion of the applicant's drug trafficking business and as a result in his criminal behaviour. His Honour assessed the objective seriousness of the offending in Count 2 as "somewhat or a little above the middle of the range of seriousness" for that offence.
His Honour concluded that the amount of money found by the police in respect of Count 4 exceeded what the applicant could have received from Grabovac in connection with Count 1. In those circumstances his Honour was satisfied beyond reasonable doubt that a considerable portion of that money related to offending not covered by Counts 1 or 2, or the matters on the Form 1 schedule attached to Count 2. His Honour considered that the large sum of money reflected substantial harm having been done to the community. His Honour assessed the objective seriousness of that offence as "about the middle of the range".
His Honour noted that the applicant's offending did not end with his arrest. In just over two months after being released on bail, he was again found in possession of a large sum of money and was clearly again operating his drug supply business. His Honour found that this demonstrated links to individuals and/or corporations at the upper echelon of the drug trafficking hierarchy and perhaps other criminal behaviour. While his Honour was not able to say what criminal activity had allowed the applicant to amass $52,000, it reflected considerable harm having been done to the community. His Honour assessed the criminality in Count 5 as being in about the "middle of the low range".
In relation to Count 3 his Honour noted that the quantity of cocaine was over nine times the indictable quantity and over fifteen times the trafficable quantity and that at 75% the purity was very high. His Honour regarded it as part of a wholesale transaction and although no actual harm was done because the police seized the drug, the potential for harm was significant. His Honour assessed the offence as "in the middle of low range" for offences of this kind.
His Honour found that the applicant's breach of conditional liberty and return to serious criminal behaviour so soon after his release on bail impacted on his prospects of rehabilitation. His Honour also took into account the breach of prison discipline which the possession of drugs in August 2015 gave rise to. His Honour concluded that the applicant's prospects of rehabilitation and of not re-offending were poor. His Honour did, however, find that the applicant was remorseful.
His Honour took into account delay, in particular the amount of time the applicant spent in custody before sentencing, his Honour found that the delay was not the fault of the applicant and that it should be taken into account in his favour.
His Honour found special circumstances.
THE APPEAL
The applicant relied upon the following statement of principle by the plurality (French CJ, Keane and Nettle JJ) in The Queen v Pham [2015] HCA 39; 256 CLR 550 at [28]:
"Previous decisions of this Court have laid down in detail the way in which the assessment of sentences in other cases is to be approached. It is neither necessary, therefore, nor of assistance to repeat all of what has previously been said. But, in view of the way in which the Court of Appeal approached the task in this case, it is appropriate to re-emphasise the following:
(1) Consistency in sentencing means that like cases are to be treated alike and different cases are to be treated differently.
(2) The consistency that is sought is consistency in the application of the relevant legal principles.
(3) Consistency in sentencing for federal offenders is to be achieved through the work of intermediate appellate courts.
(4) Such consistency is not synonymous with numerical equivalence and it is incapable of mathematical expression or expression in tabular form.
(5) For that and other reasons, presentation in the form of numerical tables, bar charts and graphs of sentences passed on federal offenders in other cases is unhelpful and should be avoided.
(6) When considering the sufficiency of a sentence imposed on a federal offender at first instance, an intermediate appellate court should follow the decisions of other intermediate appellate courts unless convinced that there is a compelling reason not to do so.
(7) Appellate intervention on the ground of manifest excessiveness or inadequacy is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle."
The applicant submitted that a starting point of 22 years imprisonment was manifestly excessive in this case because of the following factors:
1. The applicant had a criminal record but he had not had the benefit of the punitive and rehabilitative regime of a full time custodial sentence in the past.
2. This was not a case where the applicant had shown recidivism in the face of the imposition of such regimes calling for the severe application of specific deterrence and related criteria.
3. The risk that the applicant might re-offend was a relevant factor in fixing a minimum term but a minimum period in custody of 11 years and representing a first time in custody was "of such length as to take the prospects of re-offending in this case beyond even speculation" - Bugmy v The Queen [1990] HCA 18; 169 CLR 525.
4. The applicant's subjective case otherwise called for leniency on account of the findings of the sentencing judge.
5. The degree to which the impugned sentence differed from sentences that have been imposed in comparable cases including R v Cidan [2014] NSWCCA 66, Baquiran v R [2014] NSWCCA 221, Efstanthiadis v R [2009] NSWCCA 319, R v Hatzisavvas v R; R v Lopez-Rios [2016] NSWCCA 147, R v Zolfonoon [2016] NSWCCA 250, Wang, Dong Pei v R [2016] NSWCCA 161 and Kremisis v R [2016] NSWCCA 257.
Consideration
The opening proposition of the applicant to the effect that "a starting point of 22 years imprisonment is manifestly excessive in this case" is wrong and unhelpful. Section 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) makes it clear that discounts for a guilty plea are to be applied to the indicative sentences, not the aggregate sentence. To the extent that there is any doubt on that issue, it has been resolved by such cases as R v Nykolyn [2012] NSWCCA 219, Subramaniam v R [2013] NSWCCA 159, JM v R [2014] NSWCCA 297 and R v Cahill [2015] NSWCCA 53. There is in fact no "starting point" in respect of the aggregate sentence imposed in this case, either notionally or otherwise. The aggregate sentence represents the result of the instinctive synthesis of sentencing principles by the sentencing judge having regard to the particular facts of this case and the indicative sentences. The indicative sentences are those which he would have imposed had the aggregate sentencing procedure not been available.
Another problem for the applicant is that his reliance upon seven cases which are said to be similar to or to involve more serious offending than this case is not demonstrative of any error on the part of the sentencing judge. There has been no attempt to identify what are the relevant principles which have not been followed by his Honour and how it is said that there has been a lack of consistency in his Honour's application of relevant legal principles. It is trite to observe that there are considerable limitations in relying upon a small number of cases to establish a sentencing range. This is particularly so when the focus is upon seven individual cases, each with its own very particular facts. When reliance is placed upon what are said to be comparable cases, it is necessary to articulate the unifying principle which they reveal. The applicant's submissions wholly fail to address that issue.
The High Court and this Court have said on many occasions that comparison with other cases, even quite similar cases, and references to statistics will rarely, without more, justify a finding that a sentence is "manifestly excessive". What must be considered is whether the sentence is "plainly unjust" or "manifestly wrong": Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at [22] (Gaudron and Gummow JJ). In Lowndes v R [1999] HCA 29; 195 CLR 665 at 671 - 672 the High Court (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ) emphasised that:
"15 … Of particular importance in the present case is the principle that a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic. The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice."
In any event, the seven cases on which the applicant relies are all very much dependent upon their own facts and provide no assistance to him in establishing that the sentence imposed was manifestly excessive.
R v Cidan [2014] NSWCCA 66
This was a Crown appeal where the offender was charged with importing and possessing opium, pursuant to ss 307.2 and 307.9 of the Criminal Code 1995 (Cth), two counts of dealing with the proceeds of crime, pursuant to s 400.4 of the Code and two counts of deemed supply of a large commercial quantity of methylamphetamine, pursuant to s 25(2) of the Drug Misuse and Trafficking Act.
In allowing the Crown appeal, the Court increased the offender's sentence from imprisonment for 12 years with a non-parole period of 8 years to imprisonment for 15 years with a non-parole period of 10 years. In the course of doing so, the Court (Adamson J with whom Fullerton J and I agreed) said:
"44 If this Court considers it appropriate to re-sentence a respondent to a Crown appeal, it is obliged to exercise restraint and re-sentence at the lower end of the acceptable range to overcome the manifest inadequacy of the sentence imposed."
As can be seen from that qualification, the applicant's reliance upon this case is misplaced in that the sentence imposed was the lowest sentence within the acceptable range that the court in that case was able to impose.
Baquiran v R [2014] NSWCCA 221
The offender was sentenced in the District Court to a term of imprisonment of 12 years with an 8 year non-parole period on one count of supplying a large commercial quantity of methylamphetamine and one count of supplying a commercial quantity of methylamphetamine, contrary to s 25(2) of the Drug Misuse and Trafficking Act.
The offender's subjective case was very different to that of the applicant in this case. He was diagnosed with a "chronic psychotic illness, probably schizophrenia" and had presented to the reporting doctor "with a long history of psychotic symptoms including paranoia and auditory hallucinations".
One of the grounds of appeal was parity in that he was part of a criminal group who were supplying methylamphetamine. A number of co-offenders had been sentenced by other District Court judges.
The offender succeeded in making out his parity ground and it was necessary for the court to resentence. In doing so, the court was constrained by the sentences imposed by other District Court judges on the co-offenders. As a result, the offender's sentence was reduced to one of imprisonment for 10 years with a non-parole period of 6 years and 8 months. Accordingly, this case provides no assistance to the applicant in these proceedings.
Efstanthiadis v R [2009] NSWCCA 319
The offender was sentenced in respect of one count of supplying a large commercial quantity of methylamphetamine (1.9 kilograms), contrary to s 25(2) of the Drug Misuse and Trafficking Act. He was sentenced to imprisonment for 14 years with a non-parole period of 10 years. The offender appealed to this Court on the basis that the sentence was manifestly excessive. The Court (McClellan CJ at CL, with whom Howie and Fullerton JJ agreed) dismissed the appeal.
The case is significantly different to that of the applicant in these proceedings. In any event, the dismissal of the appeal means no more than that the court was of the opinion that the sentence imposed was not excessive, it does not indicate a range or unifying principle which is relevant to the present matter.
R v Hatzisavvas v R; R v Lopez-Rios [2016] NSWCCA 147
This was a Crown appeal. The two offenders were sentenced for two counts of supplying a large commercial quantity of methylamphetamine, contrary to s 25(2) of the Drug Misuse and Trafficking Act. Hatzisavvas received an aggregate sentence of imprisonment for 8 years and 3 months with a non-parole period of 5 years. Lopez-Rios received an aggregate sentence of imprisonment for 9 years with a non-parole period of 5 years and 6 months. Hatzisavvas received a combined discount of 33% for his plea of guilty and his assistance to authorities. Both were found to have positive prospects of rehabilitation.
The Crown appeals were successful and the offenders were resentenced. In carrying out the resentencing exercise, the Court was constrained by concessions made by the Crown when the offenders were originally sentenced. The Crown had accepted the sentencing judge's assessment of objective seriousness as being towards the lower end of the range, and had agreed to the indicative sentences suggested by the sentencing judge (at [79]). The only basis on which the Crown appeal succeeded was that there had been a failure to properly accumulate the indicative sentences so that the offenders were resentenced as follows. Hatzisavvas - imprisonment for 11 years with a non-parole period of 7 years and Lopez-Rios - imprisonment for 11 years and 9 months with a non-parole period of 7 years and 6 months.
This case provides no guidance as to a sentencing range for drug supply offences in that the resentencing exercise was constrained by the concessions made by the Crown during the sentence hearing.
R v Zolfonoon [2016] NSWCCA 250
This was a Crown appeal. The offender was charged with two counts of supplying a large commercial quantity of methylamphetamine, contrary to s 25(2) of the Drug Misuse and Trafficking Act. He received an aggregate sentence of imprisonment for 10 years and 9 months with a non-parole period of 4 years. The objective seriousness of the offending was assessed by the sentencing judge as falling below the midrange of objective seriousness. The sentencing judge also found that there was a minimal risk of re-offending.
The Crown appeal was successful. On resentence, the offender received a sentence of imprisonment for 15 years with a non-parole period of 10 years. In the resentencing exercise the Court was constrained by the concession made by the Crown in the sentence proceedings that the offending fell below the midrange of objective seriousness (at [94]).
No assistance is provided to the applicant by this case given the constraints applying to the resentencing exercise.
Wang, Dong Pei v R [2016] NSWCCA 161
The offender pleaded guilty to two counts of supplying a prohibited drug being one count of supplying a commercial quantity and one count of supplying a large commercial quantity. The large commercial quantity was one kilogram. The sole ground of appeal was parity with the sentence imposed on a co-offender by another judge.
The ground of appeal was successful. The aggregate sentence originally imposed of imprisonment for 12 years with a non-parole period of 8 years and 6 months was reduced to imprisonment for 11 years and 6 months with a non-parole period of 7 years and 9 months in line with the sentence imposed on the co-offender.
As with Baquiran v R the resentence exercise in this matter was constrained by the sentence imposed on the co-offender.
Kremisis v R [2016] NSWCCA 257
The offender was charged with three counts of supplying a commercial quantity of methylamphetamine contrary to s 25(2) of the Drug Misuse and Trafficking Act. He was sentenced to imprisonment for 13 years and 6 months with a non-parole period of 8 years and 5 months. One of the grounds of appeal relied upon by the offender was parity with the sentence imposed on a co-offender by another judge.
That ground of appeal was upheld and the offender was resentenced. The offender was sentenced to imprisonment for 10 years and 9 months with a non-parole period of 6 years and 8 months. The resentence was constrained by the sentence imposed on the co-offender. This was the same difficulty as arose in R v Baquiran and Wang, Dong Pei v R.
In summary, the seven cases relied upon by the applicant did not demonstrate such similarity as to persuade the Court that the sentence imposed on the applicant was manifestly excessive. On the contrary, except in one case, the sentences imposed in six cases were either constrained by concessions made by the Crown in the sentence proceedings or were constrained by the sentences imposed on co-offenders so as to ensure that there was no justifiable sense of grievance created as between the applicant and the co-offenders. The one exception was a sentence appeal where the appeal was dismissed which of itself says nothing about an appropriate range for offences of this kind, other than that the particular sentence was held to be not manifestly excessive.
The applicant has failed to establish that the aggregate sentence in this matter was "plainly unjust" or "manifestly wrong". The aggregate sentence was well within the available range when proper regard is had to: