Jackson v R

1. The overall effective sentence imposed was 9 years' imprisonment, with a non-parole period of 5 years and 6 months. The applicant will be eligible to be released on parole on 21 June 2021 and the balance of the term will expire on 21 December 2024.

Grounds of appeal

1. The applicant relied upon the following four grounds of appeal: "i) His Honour erred in concluding that the offences were aggravated within the meaning of s. 21A(2)(m) Crimes (Sentencing Procedure) Act 1999, on the basis that each offence constituted a series of criminal acts; ii) Alternatively, his Honour denied the applicant procedural fairness, when concluding that the offences were aggravated within the meaning of s. 21A(2)(m) Crimes (Sentencing Procedure) Act 1999, on the basis that each offence constituted a series of criminal act; iii) His Honour erred in concluding that the offences were aggravated within the meaning of s. 21A(2)(n) Crimes (Sentencing Procedure) Act 1999, on the basis that each offence was part of a planned or organised criminal activity; and iv) His Honour erred in concluding that the offences were aggravated, within the meaning of s. 21A(2)(o) Crimes (Sentencing Procedure) Act 1999, on the basis that each offence was committed for financial gain."
2. Relevantly, pars (m), (n) and (o) of s 21A(2) of the Sentencing Procedure Act provide as follows: "(2) Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows: … (m) the offence involved multiple victims or a series of criminal acts, (n) the offence was part of a planned or organised criminal activity, (o) the offence was committed for financial gain, …"
3. Each of these grounds is premised upon the learned sentencing judge having concluded that each of the three offences was aggravated within the meaning of pars (m), (n) or (o) of s 21A(2) of the Sentencing Procedure Act. If, in fact, he did not so conclude, this application for leave to appeal can be disposed of relatively shortly.

Did the sentencing judge conclude that the offences were aggravated within s 21A(2)(m), (n) and (o)?

1. The judge's remarks on sentence were delivered on the afternoon of 28 September 2017, after his Honour had heard submissions in the morning and dealt with another matter. They were, in effect, ex tempore. Nonetheless, they were quite extensive, occupying 19½ pages of transcript, and included a number of headings.
2. After identifying the offences to which the applicant had pleaded guilty, and the applicable maximum penalties and standard non-parole periods for those offences, as well as the Form 1 offences, the sentencing judge referred to the agreed facts and how the investigation had been conducted.
3. Then, under the heading "Sequence 1 supply prohibited drug large commercial quantity", his Honour set out the details of the supply offence.
4. Under the heading "Sequence 2 offer to supply a prohibited drug large commercial quantity", the facts relating to the offer to supply offence were detailed. Under this same heading, however, his Honour went on to record the facts concerning the arrest of the applicant, his participation in an electronically recorded interview, and the execution of a search warrant at the applicant's residence and of another search warrant in respect of a post office box. In the post office box and at the residence, the police located the MDMA, anabolic and androgenic steroidal agents, and other prescribed restricted substances, which were the subject of the Form 1 offences. In addition and under the same heading, it was recorded that the cash the subject of the proceeds of crime offence was located in a safe at the applicant's premises. There was no separate heading relating to the proceeds of crime offence or the Form 1 offences. Further, and without any new heading, his Honour then went on to consider the pre-sentence report.
5. Next, under the heading "The offender's case on sentence", the sentencing judge considered the report of Dr Furst, a forensic psychiatrist, as well as a letter from the applicant's daughter and a number of character references.
6. Scotting DCJ then went on to consider the objective seriousness of the offences, under the heading "Consideration of objective seriousness". In relation to the supply offence, his Honour noted the applicant's involvement in discussions leading to the supply and exchange of drugs for cash, his participation in the transaction for the advantage of clearing a drug debt incurred in respect of prescription medication and steroids, his retention of $1000 for his own benefit, and that the transaction involved some planning and premeditation.
7. As to the offer to supply offence, the sentencing judge noted that the applicant had conducted the negotiations for the offer by telephone and in person, and had referred to an up the line supplier, and that the discussion had included the supply being the first of a series of ongoing supplies. It was also noted that no supply in fact occurred.
8. His Honour concluded by saying that the parties' view that the supply offences fell slightly below the mid-range of objective seriousness corresponded with his own.
9. The judge then turned to consider the objective seriousness of the proceeds of crime offence. He noted the amount involved and that the offender knew that the money was the proceeds of crime. While his Honour could not infer how many transactions were involved, he held that it could not be said to be a case of isolated offending. The maximum penalty was also noted. His Honour found that the receipt of the money from the sale of the prohibited drugs involved some planning.
10. His Honour concluded that the proceeds of crime offence was in the low range of objective seriousness.
11. In the context of this appeal, it is significant that the sentencing judge's assessments of objective seriousness were not challenged as erroneous.
12. Under the heading "General deterrence", his Honour considered that the applicant's circumstances, mental condition and his addiction to opioid medication had the effect of reducing his moral culpability and, therefore, the matters of general deterrence, retribution and denunciation should be afforded less weight. Under this same heading, specific deterrence was also considered.
13. There next occurs in the transcript a heading "Aggravating factors" and the following text: "The offences involved a series of criminal acts. The offences were part of a planned or organised criminal activity. The offences were committed for financial gain."
14. There is no further consideration of any of those issues under the "Aggravating factors" heading.
15. The next heading is "Mitigating factors", under which the sentencing Judge considers the applicant's record of previous convictions, his risk of reoffending, his prospects of rehabilitation, his demonstration of remorse, his plea of guilty, and his dysfunctional upbringing in which he was exposed to the abuse of alcohol and drugs as well as physical violence so that his deprived background was a matter that should be considered as a mitigating factor.
16. The next heading is "Totality" and under this heading his Honour states that this is a case where there must be some accumulation to reflect the different criminality involved, and he notes that he has had regard to the principle of totality in the context of the objective seriousness of the offences, the maximum penalties, the standard non-parole periods and the subjective matters.
17. Finally, under the heading "Penalty", and after noting other relevant matters going to sentencing, his Honour imposed the sentences set out above.
18. Having regard to the length and detail of his remarks, there can be no doubt in the present case that the sentencing judge was well aware of his obligation to give reasons identifying which matters have been taken into account in determining the sentences imposed, in accordance with authorities such as DBW v R [2007] NSWCCA 236 (DBW) at [33] (Spigelman CJ, Simpson and Harrison JJ agreeing) where it was held: "The obligation to give reasons requires a sentencing judge to identify which matters have been taken into account. However, a general reference of the character made by his Honour to the effect that he had generally taken into account s21A may indicate no more than that he had considered the whole list of aggravating and mitigating factors but had given weight to those identified in his remarks on sentence."
19. His Honour's findings, reasoning, and conclusions, in the section headed "Objective seriousness", together with his other relevant findings, explain the factual circumstances and principles that he actually took into account in reaching his conclusions as to objective seriousness. The total absence of any elaboration or consideration of the potential aggravating factors identified under the later heading "Aggravating factors" indicates that his Honour was not reaching any conclusions in relation to those factors in addition to what had already been said in relation to objective seriousness.
20. What appears to have occurred is that, in delivering his remarks, the sentencing judge articulated, by mistake and unnecessarily, a checklist of potentially relevant aggravating factors for the matter before him. This was in addition to his actual consideration of whether and to what extent those factors were relevant, which he had set out elsewhere in his reasons, principally under the heading "Objective seriousness".
21. Including the checklist in this way was unfortunate and is not to be encouraged. Nonetheless, it is understandable that such mistakes occur, given the number of sentencing matters that judges in the District Court are required to hear and determine and the fact that reasons are given ex tempore.
22. In all the circumstances, I am satisfied that the learned sentencing judge appropriately took into account the relevant factual matters that might relate to the objective seriousness of the offences and did not conclude, in addition, that each of the offences was aggravated within pars (m), (n) and (o) of s 21A(2) of the Sentencing Procedure Act.

Conclusion on leave to appeal and the appeal

1. Thus, the premise underlying each of the grounds of appeal, namely that the sentencing judge concluded that each of the three offences was aggravated within the meaning of pars (m), (n) and (o), has not been made out. Accordingly, the appeal based on these grounds should be dismissed.

Alternative consideration

1. In case I am wrong and the sentencing judge did conclude that each of the offences was aggravated within pars (m), (n) and (o) of s 21A(2) of the Sentencing Procedure Act, I shall address briefly whether the grounds of appeal have otherwise been made out so that leave to appeal should be granted and the appeal allowed.

Grounds of appeal 1 and 2

1. Grounds 1 and 2 relevantly concerned the aggravating factor, in s 21A(2)(m) of the Sentencing Procedure Act, that "the offence involved … a series of criminal acts".
2. A factor that is an aggravating factor under s 21A(2) cannot generally be taken into account to increase a penalty where the factor is an element of the offence for which the offender is being sentenced or an inherent characteristic of that kind of offence: Mansour v R [2011] NSWCCA 28 at [46] (Price J, James and Hall JJ agreeing); 209 A Crim R 275. If, however, a factor that is an inherent characteristic of the kind of offence for which the offender is being sentenced is unusual in its nature or extent so that it exceeds the norm, it may be taken into account as an aggravating factor: R v Yildiz [2006] NSWCCA 97 at [37] (Simpson J, Hoeben J agreeing); (2006) 160 A Crim R 218.
3. The Crown's written submissions concerning grounds 1 and 2 included a concession in the following terms at par 21: "[The offer to supply offence] and [the proceeds of crime offence] therefore each encompassed a series of acts in the context of the applicant's ongoing involvement in drug supply. [The supply offence] involved a single criminal act, but none of the offences was an isolated episode. These are characteristics of the offences but not matters that aggravate their objective seriousness. His Honour was not entitled to regard the objective seriousness of any offence as increased by the fact that multiple offences had been committed…"
4. I accept that this concession was properly made. The agreed facts before the sentencing judge and his findings in his remarks on sentence did not disclose that the offences involved a series of criminal acts that was outside the norm for those kinds of offences.
5. Accordingly if, contrary to my conclusion reached above, the sentencing judge did find that the offences were aggravated because they involved a series of criminal acts, within s 21A(2)(m) of the Sentencing Procedure Act: 1. he fell into error as contended under the first ground of appeal; and 2. since the Crown did not submit on sentence that the offences were aggravated on the basis that they involved a series of criminal acts and his Honour did not raise that issue with the parties during the sentence hearing, there was also a denial of procedural fairness to the applicant as contended under the second ground of appeal: Stokes v R [2008] NSWCCA 123 at [13]-[15] (Barr J, Giles JA and Hall J agreeing); 185 A Crim R 74.
6. Having found, on the alternative basis, that grounds 1 and 2 would have been made out, it is not necessary to consider the remaining grounds of appeal.
7. Since, for the purposes of considering the alternative, I have found that the sentencing judge's discretion would have miscarried in the ways referred to in grounds 1 and 2, this Court's power to re-sentence would be enlivened unless, in the exercise of its discretion, the Court was satisfied that no other sentence was warranted in law: s 6(3) of the Criminal Appeal Act and DL v The Queen [2018] HCA 32 (DL) at [9].

Should the Court be satisfied that no other lesser sentence is warranted?

1. When considering whether another, generally a lesser, sentence is warranted, the Court is required to exercise an independent sentencing discretion, in that it is required to form its own view of the appropriate sentence, rather than confining itself to the determination of whether the identified error infected the sentence imposed below. Exceptional cases apart, the Court determines the appropriate sentence on the basis of the material that was before the sentencing judge, the sentencing judge's unchallenged factual findings, and any relevant evidence of the offender's post‑sentence conduct: DL at [9].
2. In determining whether, in this case, no lesser sentence than the sentences imposed was warranted in law, I have had regard to all the unchallenged findings made by the sentencing judge in his remarks on sentence and the material before him. Some of the relevant matters included, without being exhaustive: 1. The maximum penalty for both the supply and the offer to supply offences is life imprisonment with a standard non-parole period of 15 years. 2. The supply offence involved 539.6g of MDMA with a purity of 75% supplied for $25,000. 3. The eight offences taken into account in relation to the sentence for the supply offence included the deemed supply of 289.4g, a commercial quantity, of MDMA with a purity of 75.5% which, by itself, would attract a maximum penalty of 20 years' imprisonment and a standard non-parole period of 10 years. 4. The offer to supply offence involved 1kg of MDMA, double the large commercial quantity threshold, for a negotiated price of $45,000. 5. The objective seriousness of the supply offence and the offer to supply offence was, in both cases, slightly below the midrange. 6. The proceeds of crime offence, for which the maximum penalty is 15 years' imprisonment, involved $67,550 and fell within the low range of objective seriousness. 7. The offences were committed as a direct result of the applicant's addiction to prescription opioid-based pain killers and, in addition, the applicant's dysfunctional family background and personal circumstances weigh substantially in his favour for the reasons given by the sentencing judge. 8. The applicant does not have any substantial criminal history. He is unlikely to reoffend. His prospects of rehabilitation are good. He has demonstrated remorse and entered an early guilty plea. 9. Each of the offences involved different criminality, at least to some extent, and so a measure of partial accumulation is appropriate.
3. The sentencing judge accepted that there must be some accumulation of the penalties to reflect the different criminality involved in the offences and, in doing so, provided the applicant with the benefit of having the non-parole period for the supply offence entirely subsumed by the non-parole period for the offer to supply offence.
4. In the light of the matters referred to above, and the sentencing judge's unchallenged findings and the material before him, I am of the view that no lesser sentence than that imposed by the sentencing judge, and commencing on the date specified by his Honour in respect of each of the offences, is warranted in this case.
5. Thus if, contrary to my primary conclusion, the sentencing judge did err in the exercise of his sentencing discretion, I am not of the opinion that some other sentence is warranted in law. As a consequence, even on the alternative basis, the appeal should be dismissed in accordance with s 6(3) of the Criminal Appeal Act.

Conclusion

1. In my view, the appeal should be dismissed, both on the primary basis that the sentencing judge did not conclude that each of the three offences was aggravated within the meaning of pars (m), (n) and (o) of s 21A(2) of the Sentencing Procedure Act, and, on the alternative basis, that, even if there was an error in the exercise of the sentencing discretion, no lesser sentence is warranted.
2. As the grounds were arguable, leave to appeal should be granted.
3. I propose that the Court should order: 1. The applicant is granted leave to appeal. 2. The appeal is dismissed.

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