Greentree v R

Court of Criminal Appeal (NSW)|2018-09-05|Before: Hoeben CJ, McCallum J, Beech-Jones J, Callum J, Jones J

Solicitors: The Law Practice (Applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2014/152276 & 2015/11667 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 7 December 2016 Before: Buscombe DCJ File Number(s): 2014/152276 & 2015/11667

Facts

Tendered before the sentencing judge was a Statement of Agreed Facts. The statement revealed that on 4 March 2011 the applicant's brother, Craig Greentree, and his de facto wife leased a 25-acre rural property at Wiseman's Ferry. In May 2014, police conducted surveillance of the property.
On 15 May 2014 the applicant's brother was observed to attend the property and collect mail. On 16 May 2014, between 9.45am and noon, the applicant and his brother were observed at the property and were seen walking between a shed and the residence. The applicant's brother was wearing large rubber gloves. The applicant loaded items from a shed into the rear of his vehicle.
On 20 May 2014, the applicant was observed at the shed where he stayed for three hours. He was arrested as he left and was found in possession of keys for the shed and residence. The police executed a search warrant on that day and recovered footage from night vision security cameras which showed that at various times between "January and May 2014" the applicant and his brother had entered and exited the shed on various occasions carrying buckets and wearing gloves. The police also located large amounts of ingredient chemicals for the production of methylamphetamine ("precursors") as well as scientific glassware, reaction vessels and condensers as well as some trace amounts of methylamphetamine located within the manufacturing apparatus.
A forensic chemist confirmed that the precursors and equipment found on the property were sufficient to manufacture a quantity of methylamphetamine greater than 5 kilograms "if a suitable quantity of pseudoephedrine or ephedrine was obtained".
The applicant's DNA was located inside a number of gloves that were seized from the property and analysed.
The agreed facts recorded that, at the time the search warrant was executed, "the manufacturing process was not underway" but that a "manufacture [of] at least a commercial quantity had already taken place" and that "arrangements were being put in place for the manufacture of a further large commercial quantity of methylamphetamine". The agreed facts also record that "the [applicant] provided equipment and chemicals for the clandestine laboratory". This conduct was the basis of count 1 on the indictment.
During the search of the residence on the property, police located the bolt action rifle with a silencer which was the basis for count 2 and the second charge on the Form 1 as well as the 2.43 bolt action rifle which was the basis for the first charge on the Form 1.
On 18 July 2014, the applicant was granted bail. On 13 January 2015, the police stopped a vehicle he was driving. In the rear of the vehicle they found seven 20-litre drums, four of which contained a total of 157.9 grams of pseudoephedrine which constituted a 2-3.5% concentration. The police also located 120-litre tub which had a gross weight of 118 kilograms containing liquid pseudoephedrine at 1% concentration. The agreed facts recorded that "these concentrations are indicative of a liquid pseudoephedrine being a waste product for disposal after a manufacture operation" and that "the [applicant's] role was to dispose of the waste product for others". It was the applicant's role in disposing of this pseudoephedrine that was the basis of count 3 on the indictment, namely, accessory after the fact to the manufacture of a large commercial quantity of a prohibited drug.
The agreed facts also recorded that in the glove box of the car, police found $1,000 cash which the applicant stated was "money I was paid to get rid" of the waste product. His receipt of that cash was the conduct that formed the basis of the third charge on the Form 1, namely, dealing with the proceeds of crime.

The Sentencing Judgment

His Honour's sentencing judgment was clear and concise. After setting out the offences with which the applicant was charged, the sentencing judge summarised the agreed facts and then turned to assess the objective seriousness of the three offences on the indictment.
In relation to count 1, his Honour found that the offence was "well within the mid-range of objective seriousness for such offending". This finding, and the reasoning in support of it, is the subject of ground 1 to which I will return. In relation to count 2, his Honour noted that the firearm had a silencer affixed to it. His Honour stated that he suspected, but could not conclude beyond reasonable doubt, that the possession of the firearm was connected with the criminal activity being conducted on the property. Ultimately, his Honour found that the objective seriousness of count 2 was "just below the mid-range". No complaint is made in relation to that finding.
In relation to count 3, and given that the applicant's role was to dispose of waste product, his Honour assessed its objective seriousness as being "just below the mid-range level". Again, no complaint is made in relation to that finding.
Otherwise I note eight matters about the balance of the sentencing judgment. First his Honour addressed the applicant's subjective case. His Honour noted that the applicant was 32 years of age and had a "very limited criminal history". His Honour noted that the applicant had been placed on a bond under s 10 of the Sentencing Procedure Act in May 2011 for possession of an unregistered firearm and had an offence of low-range drink driving dismissed under s 10 in 2012. His Honour concluded that the applicant's criminal record was one that entitled him to some leniency.
Second, his Honour stated that he would allow a discount of 15 per cent on the applicant's sentence for the utilitarian value of the applicant's plea.
Third, his Honour noted that the applicant resided with his partner and an infant son in accommodation they shared with his parents and that he had a positive and supportive relationship with his family. His Honour also noted the applicant was employed as an automotive mechanic and had a management role in the family business. The sentencing judge referred to the applicant's history of alcohol use and that he had accumulated debts associated with drug use. The sentencing judge referred to a psychologist's report which recorded the applicant stating that he became involved in the offences because his family and their property and businesses had been threatened due to his accumulated drug debt and that he had been approached "and asked … to complete one task which resulted in the commission of the offences". However, as this material was untested his Honour stated that he gave it "little or no weight".
Fourth, his Honour concluded that there was "evidence of some genuine remorse" by the applicant.
Fifth, having regard to the applicant's subjective case, his strong family support and the testimonial material, as well as the finding of remorse, the sentencing judge concluded that the applicant had "good prospects of rehabilitation and it is unlikely he would reoffend".
Sixth, his Honour received two confidential exhibits said to contain material that "falls within" s 23 of the Sentencing Procedure Act. In respect of that material, his Honour stated that he "allowed a combined discount of thirty per cent" (ie, combined with the discount for the applicant's guilty plea). The manner in which the sentencing judge dealt with this is the subject of ground 2 on the appeal and is addressed below.
Seventh, his Honour noted the offences on the Form 1 and adverted to an aggravating factor for count 3, namely, that it was committed while the applicant was on bail.
Eighth, his Honour then noted the significance of the standard non-parole periods and addressed the period of pre-sentence custody that was served by the applicant. His Honour found "special circumstances" for the purpose of s 44(2B) of the Sentencing Procedure Act because it was the applicant's first time in custody and the necessity to ensure his drug rehabilitation was completed, although his Honour added that the finding was made "not without some hesitation".

Ground 1: Error in Assessment of Objective Seriousness of Count 1

As originally drafted ground 1 of the application contends that the sentencing judge erred in assessing the objective seriousness of count 1 in two respects, firstly, by "taking into account that the applicant had involved himself in the previous manufacturing process" (ground 1(a)) and secondly, by "not taking into account that the actual quantity of methylamphetamine able to be produced at a later time would be limited by the amount of pseudoephedrine or ephedrine able to be obtained" (ground 1(b)).
At the hearing of the appeal the applicant sought and was granted leave to add an additional ground, namely, that his Honour erred in the assessment of the objective seriousness of count 1 by "erroneously considering that the threshold for a large commercial quantity of methylamphetamine was 500 grams when the threshold at the time of the commission of the offence was one kilogram" (ground 1(c)).
As framed, this ground of appeal mounts a challenge to the sentencing judge's assessment of the objective seriousness of an offence. The principles governing such a challenge were addressed in the judgments of Spigelman CJ and Simpson J in Mulato v R [2006] NSWCCA 282. In Mulato, at [37] Spigelman CJ stated: "37. Characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts. This Court is very slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion. The question must be whether or not the particular characterisation which her Honour gave to the circumstances of the offence was open to her Honour. In my opinion it was open, although I have some hesitation in deciding so and find it to be at the lower end of the range which could reasonably be held to be so characterised."
In her judgment Simpson J stated (at [45] to [46]): "45 …I agree with the Chief Justice. I wish merely to underline my agreement in respect of one matter. Most emphatically, I agree with his Honour's observations at [37]. 46 The assessment of the objective seriousness of an offence is quintessentially for the sentencing judge. It is, if not a finding of fact, then the exercise of an evaluative process akin to fact finding or the exercise of a discretion. As such it is reviewable in this Court only on the principles stated in House v The King [1936] HCA 40; 55 CLR 499. The importance of respecting the role of a first instance judge should never be underestimated. It is not the function of this Court to substitute its own view of objective seriousness for that of the first instance judge. That is not because objective seriousness is something determined by reference to the evaluation of the credibility of witnesses, in respect of which it is conventionally held that the first instance judge is in a superior position. It is because it is a fundamental aspect of the appellate system. Each judicial officer in the hierarchy has his or her own function, and those at appellate level need to take care not to trespass upon the role of those at first instance." (emphasis added)
Although it was not intended, these two passages appear to provide slightly different formulations of the basis upon which a challenge to the characterisation of objective seriousness can be mounted. The first passage appears to only countenance a challenge on the basis that the finding was not "open" whereas the second appears to enable a challenge on all the bases stated in House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40 ("House") which can include a conclusion based "upon a wrong principle" or which is affected by "irrelevant matters", "mistake[n] … facts" or a failure to "take into account some material consideration".
In this case when making the finding that the objective seriousness of count 1 was "well within the mid-range of objective seriousness for such offending" his Honour reasoned as follows: "…. One aspect of the assessment of objective seriousness of offences involving manufacturing prohibited drugs is the quantity of drugs manufactured. Given no drug was actually produced the plea is, as I understand it, based on the extended definition of 'manufacture'. The agreed facts record that the precursors and equipment present on the property where count 1 was committed were sufficient to manufacture a quantity greater than 5 kilograms of methylamphetamine. The large commercial quantity for that drug under [Schedule 1 of the DMTA] is 500 grams. The amount capable of being manufactured in the clandestine laboratory was greater than ten times the commercial quantity. The other relevant factor to have regard to when assessing the objective seriousness of the drug manufacturing offence is the role of the offender. Here, the offender's role involved him providing equipment and chemicals to the laboratory. In doing so, he obviously attended the premises on a number of occasions and involved himself in the manufacturing process. His role was clearly a significant one. It is an overwhelming inference, especially when regard is had to the amount of the drug that could be produced and his explanations in the subjective material, that he engaged in the offence for financial gain. There was clearly considerable planning in the offence. I consider the offence is well within the mid-range of objective seriousness for such offending." (emphasis added)
In relation to ground 1(a) in his written submissions, counsel for the applicant accepted that, insofar as the sentencing judge referred to the applicant's role as being to provide equipment and chemicals to the laboratory, his Honour correctly stated the effect of the agreed facts concerning the applicant's conduct that gave rise to count 1 (see [15]). Nevertheless, it was submitted that it was "erroneous for his Honour to conclude that the applicant had 'involved himself in the manufacturing process'". This was so because, according to counsel's submissions, before the sentencing judge the "Crown Prosecutor had indicated the limited basis for the inclusion of [the] information [about the previous drug manufacture] in the agreed facts and had submitted that any alleged participation by the applicant in any earlier manufacture was not a relevant consideration in the proceedings".
The passage to which this submission refers is an exchange that occurred during the course of the sentencing hearing where the sentencing judge queried the relevance of the inclusion in the agreed facts of the fact that there had been a prior manufacture of methylamphetamine. The Crown Prosecutor answered the sentencing judge's query by confirming that the applicant was not to be sentenced for the prior manufacture, but that was merely material which went to rebut some of the subjective material that suggested that the applicant had "less knowledge or less understanding of what he was involving himself with". In oral submissions on this application, counsel for the applicant contended that by stating in the sentencing judgment that the applicant attended the property a "number of times" the sentencing judge was alluding to the applicant's attendance at the property prior to 1 May 2014 in connection with the earlier manufacture. Count 1 only concerned the applicant's conduct after that time (and before 21 May 2018).
Nothing in the above extract from the sentencing judgment reveals that his Honour dealt with the applicant on any basis other than what was set out in the agreed facts. The sentencing judge's reference to the applicant "having involved himself in the manufacturing process" was the sentencing judge's characterisation of that which would follow from the agreed fact that the applicant had knowingly provided equipment and chemicals to a laboratory seeking to manufacture large quantities of methylamphetamine ("in doing so"). The sentencing judge's references to the applicant attending the property a number of times were an accurate reflection of the recorded observations of his attendance. Overall, the sentencing judge's reference to the applicant having "involved himself in the manufacturing process" was a reference to the applicant having involved himself in the manufacturing process that was to be undertaken and not, as ground 1(a) states, to the manufacturing process that had previously been completed.
Accordingly, I reject ground 1 (a).
Ground 1(b) concerns his Honour's alleged failure in the above extract from the sentencing judgment to make any express reference to the caveat upon the forensic chemist's conclusion that the material at the property was sufficient to manufacture greater than five kilograms of methylamphetamine, namely, that a "suitable quantity of pseudoephedrine or ephedrine" had to be obtained. However, his Honour earlier noted that caveat in recounting the agreed facts. In assessing the objective seriousness of the applicant's offending his Honour was not obliged to (again) advert to the possibility that a sufficient quantity of pseudoephedrine or ephedrine might not become available to complete the set of precursors necessary to manufacture methylamphetamine. In any event, given that a manufacture had preceded count 1 and count 3 involved the applicant disposing of waste product after another manufacture, the sentencing judge was entitled to proceed on the basis that sufficient pseudoephedrine would have been found to complete the manufacturing process.
Accordingly, I reject ground 1(b).
In relation to ground 1(c) it was agreed that as at May 2014 the large commercial quantity of methylamphetamine specified in Schedule 1 to the DMTA was one kilogram. On 1 September 2015, that amount was reduced to 500 grams (Drug Misuse and Trafficking Amendment (Methylamphetamine) Regulation 2015).
Unfortunately, during the sentencing hearing on 2 December 2016, the Crown Prosecutor advised his Honour that the large commercial quantity was 500 grams whereas the relevant quantity to an assessment of the seriousness of the offence was that applicable at the time of the offence. In the extract from the sentencing judgment set out at [35], his Honour erroneously referred to the amount of methylamphetamine capable of being produced as being "greater than ten times the [large] commercial quantity" whereas it was only five times.
Having regard to this error, counsel for the applicant submitted that the assessment of the objective seriousness of count 1 was relevantly affected by error. The Crown accepted that his Honour acted on a misconception as the relevant amount of the large commercial quantity of methylamphetamine but contended that ground 1(c) was nevertheless not established because his Honour's finding that it was "well within the mid range of objective seriousness for such offending" was open.
This dispute reflects the two different formulations of the approach to challenging such findings articulated in Mulato (see [32] to [34]). However, at least in this case it is not necessary to ascertain whether there is truly any difference in approaches and, if so, determine which is correct. As the argument developed ground 1(c) broadened to encompass not just a focus on the finding of objective seriousness but on the sentencing judge's overall approach to count 1. There is no doubt that, overall, in addressing count 1 the sentencing judge acted on a misapprehension concerning the amount necessary to constitute a large commercial quantity of methylamphetamine was. To do so was to act on a "wrong principle" (House at 505) in the same or analogous way that a sentencing judge who identifies the wrong maximum sentence acts on a wrong principle. In those circumstances and subject to the consideration that his Honour imposed an aggregate sentence, it follows that the sentencing discretion miscarried (Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42]; "Kentwell"). Further, in circumstances where the indicative sentence for count 1 was a large proportion of the aggregate sentence, it follows that ground 1(c) must be upheld and the sentencing discretion must be re-exercised afresh (Kentwell id).
I would uphold ground 1(c).

Ground 2: Alleged Failure to Properly Consider the Factors Set Out in Section 23 of the Crimes (Sentencing Procedure) Act 1999

Even though it is necessary to re-exercise the sentencing discretion it is appropriate to address ground 2 as it is relevant to that process.
Ground 2 of the application is that the sentencing judge erred by failing to properly consider the factors set out in the s 23(2) of the Sentencing Procedure Act.
Section 23 of the Sentencing Procedure Act provides as follows: 23 Power to reduce penalties for assistance provided to law enforcement authorities (1) A court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence. (2) In deciding whether to impose a lesser penalty for an offence and the nature and extent of the penalty it imposes, the court must consider the following matters: (a) (Repealed) (b) the significance and usefulness of the offender's assistance to the authority or authorities concerned, taking into consideration any evaluation by the authority or authorities of the assistance rendered or undertaken to be rendered, (c) the truthfulness, completeness and reliability of any information or evidence provided by the offender, (d) the nature and extent of the offender's assistance or promised assistance, (e) the timeliness of the assistance or undertaking to assist, (f) any benefits that the offender has gained or may gain by reason of the assistance or undertaking to assist, (g) whether the offender will suffer harsher custodial conditions as a consequence of the assistance or undertaking to assist, (h) any injury suffered by the offender or the offender's family, or any danger or risk of injury to the offender or the offender's family, resulting from the assistance or undertaking to assist, (i) whether the assistance or promised assistance concerns the offence for which the offender is being sentenced or an unrelated offence, (j) (Repealed) (3) A lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence. (4) A court that imposes a lesser penalty under this section on an offender because the offender has assisted, or undertaken to assist, law enforcement authorities must: (a) indicate to the offender, and make a record of the fact, that the lesser penalty is being imposed for either or both of those reasons, and (b) state the penalty that it would otherwise have imposed, and (c) where the lesser penalty is being imposed for both reasons - state the amount by which the penalty has been reduced for each reason. (5) Subsection (4) does not limit any requirement that a court has, apart from that subsection, to record the reasons for its decisions. (6) The failure of a court to comply with the requirements of subsection (4) with respect to any sentence does not invalidate the sentence.
As noted, during the sentence hearing the Crown tendered two confidential exhibits, being exhibit 3 and exhibit 4, which were said to "fall within s 23", that is, relate to the assistance provided by the applicant to the authorities. Both the Crown Prosecutor and Senior Counsel for the applicant made submissions to the sentencing judge about the use that could be made of the material, although, as is to be expected, they were circumspect. In particular, in relation to count 4 the Crown Prosecutor submitted that, in effect, it should be given little weight because within that material no source was provided, it had not resulted in a criminal investigation or prosecution and "there isn't even any material in there that suggests that the material that can be lawfully available commercially was otherwise in the hands of … people who ought not have it".
His Honour addressed this material in the sentencing judgment as follows: "Exhibit 3 is a document containing material that falls within s 23 of the Crimes (Sentencing Procedure) Act. That document records that he has provided certain information which has led to certain actions with success occurring. I do not propose to discuss the document in any detail given its nature but it is a document that I have taken fully into consideration in the [applicant's] favour. Exhibit 4, in my view, contains some information of actions by the [applicant] which also fall within s 23 of the Crimes (Sentence Procedure) Act. I have had regard to the Crown's submissions in relation to that document and the lack of evidence as to where the items referred to in it were obtained from in assessing what weight I give to it. In light of the timing of the plea of guilty and the matters that fall within s 23 of the Crimes (Sentencing Procedure) Act, I propose to allow a combined discount of 30%." (emphasis added)
The applicant's written submissions in support of this ground referred to the statement in R v XX [2017] NSWCCA 90 at [30] ("R v XX") to the effect that provisions such as s 23(2) which require certain matters to be taken into account or regard to be had to them, usually require that weight be given to those considerations such that they are "at the forefront of the decision maker's consideration" (citing, inter alia R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 at 329; [1979] HCA 232). The submissions also contend that the sentencing judge "did not address any of the criteria set out in s 23(2) and simply observed that he had had regard "to the matters that fall within s 23" and that "a general statement of this effect is not sufficient to expose his Honour's process of evaluation of the various considerations relevant to an assessment of the appropriate level of discount to be provided for assistance". The submissions contrasted the sentencing judge's approach in this case with the obligation of a sentencing judge to have regard to the considerations in s 21A of the Sentencing Procedure Act. In relation to the latter, it was submitted that it is not sufficient for a sentencing judge to merely note that those considerations have been taken into account, but instead a sentencing judge must identify the factors and the weight to be given to them, and their role in the structuring of the sentencing (relying on R v Mills (2005) 154 A Crim R 40 at [49]).
The Crown Prosecutor's submissions correctly contended that this complaint is not directed to the extent of the discount that was afforded by his Honour on account of assistance, namely, 15 per cent, but instead complains that "because his Honour failed to expressly refer to each of those factors [in s 23(2)] his Honour fell into error".
Where a statutory provision, such as s 23(2) of the Sentencing Procedure Act, expressly requires a judge to take into account various factors, two related errors can sometimes be established from the failure of the relevant judge to expressly address in their reasons the individual factors that arise in a given case. The first possible error is that the failure to expressly address those factors may be a breach of the sentencing judge's obligation to give proper reasons and that, of itself, might justify this Court intervening. The second possible error is that it might be inferred from the failure of the sentencing judge to expressly identify the factors and weigh them up that the statutory requirement to consider those factors has not been complied with.
However, the purpose and object of the statutory provision governs what is required of the sentencing judge. Section 23 is addressed to assistance provided by offenders to law enforcement authorities (see R v XX at [42] and [54]). In some, perhaps many, cases if knowledge of the fact or detail of that assistance is revealed then the offender or his family may be put at risk and the benefits that the law enforcement authorities might otherwise obtain from that assistance may be undermined or even destroyed.
Thus, in some cases for the sentencing judge to embark upon a detailed exposition in a sentencing judgment of the factors in s 23(2) may defeat the very purpose of the statutory provision. In such cases as this there is an obvious tension between the achievement of the objectives of s 23 and the sentencing judge's obligation to provide reasons in open court. In this case, the sentencing judge was clearly conscious of this tension. In referring to exhibit 3 his Honour adverted to the "significance and the usefulness" of the assistance without elaborating what it was (s 23(2)(b)). With exhibit 4, his Honour was clearly not persuaded that the material was significant or useful. In doing so, his Honour sought to balance his obligation to provide reasons and comply with s 23(2) against the need to protect the confidentiality of exhibit 3 and exhibit 4. Any further discussion would have defeated the very point of keeping the material confidential.
In these circumstances, I do not consider that there was any breach of the sentencing judge's obligations to give reasons. Further, one cannot draw the inference from the sentencing judge's failure to expose the detailed consideration of those factors that s 23(2) was not complied with. To the contrary it clearly was. Generally, where confidential material of this kind is tendered before a sentencing judge, very careful consideration will need to be given before it can be concluded that a sentencing judge either failed to address the factors in s 23(2) or failed to provide proper reasons. I do not consider that any such conclusion is open in this case.
Accordingly, I would reject ground 2.

Re-sentencing

At the hearing of this application neither counsel for the applicant nor the Crown sought to reagitate the findings of the sentencing judge summarised at [22] to [29] or the findings by His Honour as to the objective seriousness of counts 2 and 3. In particular it was accepted by Counsel for the applicant that the assessment of a 15 per cent discount for the applicant's plea and 15 per cent for assistance was appropriate. Having read the material in the two confidential exhibits, and considered the factors in s 23(2) of the Sentencing Act, I agree with the sentencing judge's assessment and the reasons for that assessment as extracted at [51]. It follows from the above discussion that I do not consider that any further discussion of the factors in s 23(2) is required.
Only two matters of contention arose in relation to resentence.
The first concerns the objective seriousness of count 1. Even though I am satisfied that the sentencing judge acted on a wrong principle I agree overall with his Honour's assessment that the offence fell "within the mid-range of objective seriousness for such offending" (although I may not necessarily agree with the sentencing judge where it fell within that range). The manufacturing operation that was about to be embarked upon was of a substantial size and sophistication. Five kilograms of methylamphetamine is a substantial amount. Based on past experience it was likely to be successful and all the circumstances suggest that the requisite amount of pseudoephedrine was likely to be found.
The second area of disputation concerned the admissibility and relevance of an affidavit from the applicant's partner sworn 3 September 2018. In written submissions filed after the hearing of the appeal, Counsel for the applicant contended that the affidavit should be received as it demonstrates that "consistent with her affidavit at the time of sentence, she and her infant son have experienced very significant hardship following the imprisonment of the applicant and can be expected to do so for the duration of the period he is incarcerated".
Before the sentencing judge an affidavit was read from the applicant's partner which described the effect upon her of a significant medical condition and that she suffered a return of depression and anxiety after the applicant was arrested. She also referred to the birth of their son and the closeness of his relationship with his father, the applicant. She stated that she knew the applicant would be incarcerated and that she anticipated moving in with her elderly parents, after he was sentenced. She feared that would place a big strain on her relationship with her parents.
Before the sentencing judge, Senior Counsel for the applicant submitted that the applicant had a "strong relationship with his partner", referred to her medical condition and submitted that "incarceration will make her wellbeing and her future life relatively in the short term very, very difficult indeed". In his sentencing judgment the sentencing judge expressly referred to these matters.
In the affidavit sworn by the applicant's partner on 3 September 2018 for the purposes of this application, she describes the health and other problems faced by her and her son since the applicant's incarceration. She recounts the effects of her medical condition. She states that she can only cope by painkillers and sleeping pills and the condition often results in her being bedridden. She was due to have surgery in September 2018 which if successful may provide some relief for a temporary period.
As was foreshadowed in the material before the sentencing judge, the applicant's partner stated that she and her son, who is now three years old, moved in with her elderly parents after the applicant was sentenced. She states that this is causing financial hardship and personal strain as her parents wish to sell their house and move to smaller premises but cannot. She also stated that she continues to be treated for anxiety and depression.
The Applicant's partner also states that her son has been unwell since his birth particularly with ear infections and severe tonsillitis, although those conditions appear to have been addressed in an operation in February 2018. However, she also states that since the applicant was incarcerated their son has "suffer[ed], psychologically, with abandonment and separation anxiety issues".
The Crown contended that the receipt of evidence by this Court on the "usual basis" did not permit the receipt of the affidavit sworn by the applicant's partner on 3 September 2018. The Crown submitted that the receipt of further evidence when error is established was limited to material concerning the "appellant's progress in custody since the sentence hearing" especially his rehabilitation (citing DL v The Queen [2018] HCA 32 at [7]; "DL" and Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 at [2]; "Betts"). I do not accept that it is so limited. Betts (and DL) were directed to the circumstance that evidence received on the usual basis was sought to be relied on in an attempt to reagitate findings made by the sentencing judge. However, that was found to be contrary to principle because such evidence cannot be used to "run a new and different case on appeal" (Betts at [2]). I do not read the passages in Betts which refer to the use of such evidence (Betts at [2] and [22]) as inconsistent with the description of this Court's role in Kentwell to the effect that once error is established, it must "tak[e] into account all relevant matters, including evidence of events that have occurred since the sentence hearing" (at [43], see also [39] and [44]).
There remains to be considered the relevance of the applicant's partner's affidavit sworn 3 September 2018 to the resentencing process and the weight to be afforded it. The Crown submitted that the references in the affidavit to the applicant's son's mental state should be rejected as unqualified opinions. I do not accept them as diagnoses, but treat them as observations by a mother of her son's wellbeing. In substance the affidavit does no more than update the material that was before the sentencing judge and confirm that what was anticipated before his Honour has come to pass. His Honour treated that as material which did not amount to exceptional circumstances as discussed in the authorities (R v Edwards (1996) 90 A Crim R 510) but as material that was to be considered as part of the "general mix of subjective matters" (R v X [2004] NSWCCA 93 at [24]; R v Girard, Andrew John, R v Girard, Tessa Maree [2004] NSWCCA 170 at [22]; "Girard"). Although there is some debate as to whether that is permissible (see Carter v R [2018] NSWCCA 138 and Kremesis v The Queen [2016] NSWCCA 257), neither of the parties sought to agitate or resolve that debate on this application.
Instead Counsel for the applicant contended that the material was relevant to a finding of "special circumstances" and cited various cases where such a finding was made based on hardship to the family of the offender although in each such case the hardship was nevertheless described as "exceptional" (King v R [2010] NSWCCA 202 at [18] per Price J with whom Basten JA and Hall J agreed; R v Grbin [2004] NSWCCA 220 at [33] per Dunford J with whom Levine and Howie JJ agreed). However, in Delaney v R; R v Delaney [2013] NSWCCA 150 at [81] Hoeben CJ at CL (with whom Harrison and Beech-Jones JJ agreed; "Delaney") concluded that the family hardship could be considered as part of consideration of whether special circumstances arose even if it did not amount to "exceptional circumstances".
In this case the hardship identified by the Applicant's partner would not constitute exceptional circumstances as discussed in these authorities. However, at least having regard to Girard and Delaney, and without determining whether they are consistent with other authorities in this Court, I accept that this material is admissible both as part of the "subjective mix" of the applicant's case and as relevant to a finding of special circumstances. In relation to the latter, like the sentencing judge I will make a finding of special circumstances bearing in mind the factors pointed to by his Honour, namely, that it is the applicant's first time in custody and there is a need to ensure his drug rehabilitation is complete. Based on the finding of special circumstances the sentencing judge varied the ratio between the non-parole period and the total sentence from 75 per cent to 70 per cent. Even allowing for the material provided by the applicant's partner, I would not vary it lower as that would result in a disproportionately low sentence.

Disposition

The re-exercise of the sentencing discretion referred to in Kentwell requires that I consider afresh the indicative sentence for all the counts in the indictment.
In relation to count 1, the maximum penalty was life imprisonment and the standard non-parole period was 15 years' imprisonment. There were a number of offences on the Form 1 associated with this offence. Allowing for the 30 per cent discount I propose an indicative sentence of 6 years and 3 months with a non-parole period of 4 years and 5 months.
In relation to count 2, the maximum penalty was 14 years' imprisonment. However, the standard non-parole period was only 3 years (which would correspond with a total sentence of 4 years). After allowing the 30 per cent discount I propose an indicative sentence of 2 years and 5 months with a non-parole period of 1 year and 8 months.
In relation to count 3, the maximum penalty was 5 years' imprisonment but the offence involved the applicant assisting a manufacture of methylamphetamine while he was on bail for an offence of being involved in manufacturing amphetamine. After the 30 per cent discount, I propose an indicative sentence of 2 years and 1 month imprisonment.
The combined sentences for the three counts when added together amount to 10 years and 8 months. Allowing for considerations of totality, I propose that an aggregate sentence of 8 years be imposed with a non-parole period of 5 years and 6 months. If that sentence is imposed the applicant will be first eligible for release on parole on 7 October 2021 and his sentence will expire on 7 April 2024.
Accordingly, the orders I propose are: 1. The application for leave to appeal be granted; 2. The appeal be allowed; 3. Set aside the sentence imposed by Buscombe DCJ on 7 December 2016; 4. In lieu thereof: 1. impose an aggregate sentence of eight years' imprisonment to commence on 8 April 2016 and expire on 7 April 2024; 2. pursuant to s 44(2A) of the Crimes (Sentencing Procedure) Act 1999 set a non-parole period of 5 years and 6 months; 3. specify that the earliest date the applicant will be eligible to be released on parole is 7 October 2021; 1. pursuant to s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999, indicate to the applicant and record that an aggregate sentence is imposed and that the sentence that would have been imposed for count 1 on the indictment is imprisonment for 6 years and 3 months with a non-parole period of 4 years and 5 months, for count 2 on the indictment the sentence that would have been imposed is 2 years and 5 months with a non-parole period of 1 year and 8 months and for count 3 on the indictment the sentence that would have been imposed is 2 years and 1 month imprisonment.

Amendments 22 October 2018 - Minor typographical amendments in [45], [65], [68], [70], [77(4)(b) and (d)]. 22 October 2018 - 23 October 2018 - [4] - "... he knowingly took part in the manufacture of not less than the commercial quantity of methylamphetamine ..." amended to read: "... he knowingly took part in the manufacture of a large commercial quantity of methylamphetamine ..." 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: 23 October 2018

(Crimes (Sentencing Procedure) Act 1999(NSW)

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