Jadron v R

Court of Criminal Appeal (NSW)|2015-07-17|Before: Leeming JA, Hamill J, Fagan J

Judgment

LEEMING JA: I agree with Fagan J.
HAMILL J: I agree with Fagan J.
FAGAN J: Sabaoon Jadron applies to this Court for leave to appeal against the following sentences imposed in the District Court at Parramatta. The statutory maximum penalty for each offence is as shown in brackets.

Count 1: Between 1 March 2012 and 30 August 2012, supply a prohibited drug, methylamphetamine, 157.9g, contrary to s 25(1), Drug Misuse and Trafficking Act 1985 (NSW): 3 years 4 months comprising a non-parole period of 1 year 9 months and a balance term of 1 year 7 months. [Maximum: 15 years].
Count 3: In the same period, supply a prohibited drug, cannabis, 90.5g contrary to s 25(1): 1 year 10 months comprising a non-parole period of 1 year and a balance term of 10 months. [Maximum: 10 years].
Count 4: In the same period, dealing with proceeds of crime, $5,580, knowing it was the proceeds of crime, contrary to s 193B(2), Crimes Act 1900 (NSW): 2 years 11 months comprising a non-parole period of 1 year 6 months and balance term of 1 year 5 months. [Maximum: 15 years].

The dates for each of those sentences were fixed in such a way that the sentence on Count 4 (dealing with proceeds of crime) would commence first, the sentence for Count 3 (supply cannabis) would commence 3 months later and the sentence for Count 1 (supply methylamphetamine) would commence 6 months later again. This degree of accumulation resulted in an effective total sentence of 4 years 1 month with an effective total non-parole period of 2 years 6 months.
The commencement of each sentence was backdated to allow for time spent in custody, the number of days and the resulting commencement date being agreed between the Crown and defence counsel.
The grounds of the appeal for which leave is now sought are: "(1) The learned judge erred in her application of the principle of totality by making the sentences for Count 1 and Count 3 cumulative on the sentence imposed on Count 4. (2) The learned sentencing judge erred by breaching the principle in The Queen v De Simoni (1981) 147 CLR 383 in passing sentence with respect to Count 1."

The Agreed Facts

Her Honour was provided with a document entitled Agreed Facts bearing a heading which related the facts to the three charges against the Appellant and two charges against a female associate, Roberta Mafi. So far as Mafi was concerned the Agreed Facts were directed to charges pursuant to s 25(1), Drug Misuse and Trafficking Act, one concerning supply of 120.7g methylamphetamine and a second concerning supply of 90.5g of cannabis.
According to the introductory paragraphs of the Agreed Facts, police commenced in December 2011 an investigation of the supply of prohibited drugs by the Appellant and Mafi. They obtained warrants for telephone intercepts and implemented physical and electronic surveillance. These methods produced evidence of the following: "4. Jadron and Mafi were identified as supplying prohibited drugs, namely methylamphetamine (ice) and cannabis, from their unit and the garage area of the unit complex at 9 Elizabeth Street, Berala. 5. [The Appellant] and Roberta Mafi negotiated their drug transactions solely via text messages predominantly using [two mobile telephone services]. 6. During the course of the investigation, police established that [the Appellant] and Roberta Mafi systemically supplied amounts of methylamphetamine (ice). 7. They had set prices for the various quantities in which they sold the prohibited drugs and their regular customers used certain commonly used codes for the prohibited drugs and quantities they sought to purchase."
The Agreed Facts set out the prices at which quantities between 0.1g and 3.5g were sold and the codes used to refer to these quantities respectively. The Agreed Facts provided this overview of the drug selling activity: "9. Between 1 March 2012 and 31 August 2012 [the Appellant] and Mafi took part in a joint criminal enterprise supplying methylamphetamine (ice) and cannabis. 10. [The Appellant] supplied 159.7g (sic, this should read 157.9g) of methylamphetamine and 90g of cannabis during the period. 11. Mafi supplied 120g of methylamphetamine and 90g of cannabis during the period (Mafi was out of Australia between 31 July 2012 and 17 August 2012). 12. [The Appellant] and Mafi received approximately $78,950 as a result of supplying methylamphetamine. 13. [The Appellant] and Mafi had a 'customer base', with many regular customers. 14. During the period 1 March 2012 and 31 August 2012 [the Appellant] and Mafi conducted or agreed to conduct in excess of 1,000 supplies of prohibited drugs. … 36. The offenders were involved in the supply of methylamphetamine on an almost daily basis. The intercepted text messages show that on each day there were anywhere between 5 and 25 text message conversations between different customers relating to the purchase of methylamphetamine. … 38. Police identified the names and/or nicknames of a number of 'regular customers' but were not able to identify the names and/or nicknames of in excess of 40 other telephone numbers used by customers who were in regular text message contact with [a mobile phone service used by the Appellant and Mafi to arrange supplies of drugs, which had been intercepted by police]. 39. Between 1 March 2012 and 30 August 2012 there were in excess of 1,000 transactions, including agreements to supply, exchanged between the two [phones used by the Appellant and Mafi] and customer phones."
According to the Agreed Facts, the Appellant was arrested on 30 August 2012. Police immediately executed a search warrant at Unit 7, 9 Elizabeth Street, Berala being the unit occupied by the Appellant. Quantities of cash were found in three separate locations within the unit, totalling $5,580. Police located an additional 112g of cannabis in the garage assigned to Unit 2 in the same unit block (leased by Mafi). Another 126g of cannabis were found in a storage compartment beneath the handlebars of a motorcycle in the underground carpark of the building. This cannabis was packaged in 83 small resealable plastic bags. 1.22g of methylamphetamine was found in three separate smaller quantities in various concealed places in the common areas of the unit building. These additional quantities of drugs were not the subject of any charges.
The Agreed Facts were tendered without objection although the Appellant's counsel expressed a reservation that some of the matters set out therein may be inadmissible as not relating to the three offences to which pleas of guilty were being entered. Counsel said (at T 2): "However there are matters in the Agreed Facts that I will take your Honour to in due course. They are more a matter of a question of admissibility than facts that relate to the actual three offences before your Honour." [This and all subsequent transcript references relate to the sentence hearing on 12 September 2014].
It became apparent that counsel's reservation was with respect to pars 30-35 of the Agreed Facts which concerned the additional quantities of cannabis and methylamphetamine found in the garage of Unit 2 and in common areas of the unit complex. The Crown submitted that this material was appropriately before the Court "simply to show the nature and the scope of the operation that was involved in the two supply charges before your Honour but those amounts do not make up the quantities subject to the supply charge of 90g" (T 4).
In support of his relevance objection the Appellant's counsel submitted: "It was not necessary in my submission to put that material before your Honour because the scale of the operation or the nature of the operation is set out in the previous Agreed Facts" (T 32). In her Remarks on Sentence ("RoS") her Honour accepted the Crown submission that the facts regarding additional drug seizures under the search warrants were relevant to show "the scope of the operation, including the way the drugs were secreted…even though it is conceded by [the Appellant], as it must be, that there were ongoing acts of supply" (RoS 4).
It was common ground between the Crown and the Appellant that the 157.9g of methylamphetamine and the 90.5g of cannabis which were the subject of Counts 1 and 3 were quantities calculated by the police from the individual sales of which they had evidence from telephone intercepts and other surveillance carried out during the six month charge period. There was no evidence that the quantities sold or any part of them had been recovered or seized by police.

Size and number of transactions constituting the supply

It was a prominent part of the Appellant's case before the learned sentencing judge that all of the sales which made up the 157.9g were at the level of one or at most a few individual usage units of 0.1g. The written submissions on behalf of the Appellant included the following: "6. It is submitted that the accused's offending never rose above street level dealing and it is a relevant matter in assessing the objective seriousness (R v Haidar [2004] NSWCCA 350). 7. The police were aware of the accused's offending conduct from March 2012 through telephone intercepts, surveillance, information from other users who had purchased from the accused and purchasers [who were] undercover police. …"
In oral submissions, when arguing against the relevance of the additional quantities of drugs seized under warrant at the unit block following the Appellant's arrest, counsel put the following submissions (at T 34-36): "…I agree that if I had sought to run a matter on sentence that, for example in the period of the indictment… there are only isolated transactions, the Crown would be entitled to lead evidence to show that that was not the case to put it in its proper context but I haven't of course sought to advance that submission at all, so there is no necessity in my submission to go to those additional matters [the post arrest seizures] to support the Crown contention which is accepted that these were ongoing [acts] of individual supply during the period covered by the counts in the indictment… I am not putting and I have never put a submission that during the period of the indictment there were only… isolated acts of supply… I accept that there were ongoing acts of supply by the accused and by Roberta Mafi."
Her Honour then pointed out that the Agreed Facts disclosed 1,000 transactions over a period of six months and made a rough calculation that this approximated five sales a day "on average" (T 35). The Appellant's counsel did not dispute that this calculation followed from the Agreed Facts. He merely reiterated that the post arrest seizures: "…are not necessary to be taken into account to understand the nature of what the Crown alleges my client was doing, that he's admitted to and your Honour there's nothing remarkable in my submission about Roberta Mafi and my client on average say doing five street deals a day, it's entirely consistent with a low-level street dealer and nothing more."
At T 35 her Honour suggested that some of the sales must have been for more than a single usage unit of 0.1g. The Appellant's counsel responded: "Even if there was it doesn't mean that that's not street dealing… a user can buy a quantity of methylamphetamine to be used over a period of time… its still a street deal."
The Appellant's counsel put similar submissions with respect to the 90.5g of cannabis the subject of Count 3. At T 40 the Crown confirmed that the 90.5g of cannabis "were the actual supplies". The Crown was not able to suggest or prove a breakdown of the 90.5g into a number of transactions or into individual quantities sold. The 90.5g was described by the Crown as "an aggregation". At T 41 the Appellant's counsel submitted, with respect to the cannabis: "and they are all street level … amounts". He submitted that "dealing in 90g of cannabis street level would not normally attract a full-time sentence of imprisonment in the Local Court". He was asked whether he accepted that "there were multiple acts" and he said that he did.
With respect to the $78,950 which the Appellant had received "as a result of supplying methylamphetamine" and the $5,580 in cash which was seized in the Appellant's unit, it was submitted on his behalf that these amounts were "entirely consistent with low-level street dealing" (T 36). Counsel submitted to her Honour that what was described in the Agreed Statement of Facts "is that my client was undertaking street deals to support his own habit and almost all of the money went in supplying himself as a user of methylamphetamine and cannabis on a regular and daily basis as set out in the pre-sentence report and in the report from the psychologist" (T 36). He said "it was a business for the purposes of feeding addiction" (T 37).
The Appellant's counsel pointed out that the amount of $78,950 was calculated by the police as the proceeds of sales in which Mafi was engaged in a joint enterprise. It was submitted that Mafi would have been jointly entitled to the $78,950 and that if their activity "was being run solely for the purposes of profit and not to support a habit … by the end of six months there would have been a lot more than $5,580" (T 38).

Negotiations with respect to charges

Information placed before her Honour and recorded at T 23-30 shows that while committal proceedings against the Appellant were pending in the Local Court, in April and May 2013 negotiations took place between the Crown and representatives of the Appellant as to whether the Crown would accept a plea of guilty to a charge under s 25(1), Drug Misuse and Trafficking Act of supplying a quantity of methylamphetamine not greater than 100g. The indictable quantity is 5g, the commercial quantity (which may be charged under s 25(2)) is 250g. These negotiations came to an end when a direction was issued by the Director of Public Prosecutions that the proceedings were to continue against the Appellant on a charge of supplying not less than the commercial quantity.
On about 4 September 2013 the Appellant was committed for trial on one count of supplying a commercial quantity of methylamphetamine contrary to s 25(2) and one count of ongoing supply contrary to s 25A(1). Section 25A(1) is in the following terms: "25A Offence of supplying prohibited drugs on an ongoing basis (1) Offence provision A person who, on 3 or more separate occasions during any period of 30 consecutive days, supplies a prohibited drug (other than cannabis) for financial or material reward is guilty of an offence. Maximum penalty: 3,500 penalty units or imprisonment for 20 years, or both."
The Appellant's case was listed for trial at Parramatta District Court on 26 May 2014 but the date was vacated. Following further negotiations between the Crown and the Appellant's representatives that week the Crown agreed on 29 May 2014 to accept pleas of guilty to the three counts described at the beginning of these reasons. Count 3 (supply of cannabis) and Count 4 (dealing with proceeds of crime) were added ex officio when the Crown agreed not to proceed on the charge under s 25A(1) in relation to the 157.9g methylamphetamine. As the Crown and the Appellant's counsel jointly submitted to her Honour (T 29) the addition of the two ex officio charges was "part of the negotiations" and it took place in conjunction with the Crown's acceptance of a plea to a charge under s 25(1) in respect of the most serious matter - supply of 157.9g methylamphetamine over 6 months.
In the RoS, her Honour recited the Agreed Facts in full. At pp 9-10 it was noted that the quantity of methylamphetamine involved was over half of the commercial quantity according to Schedule 1 of the Drug Misuse and Trafficking Act. Her Honour observed that considerable planning was involved in the selling of the drug although she expressly did not treat this as a "feature of aggravation" but as part of the description of the manner in which the offence was committed. It was accepted by her Honour that the Appellant was a drug addict but her Honour went on to say: "He had, though, in my view, clearly gone into the business of supplying drugs. This was a successful operation with a customer base and regulars. The quantities ranged from 0.1 gram for $50 to 3.5 grams at $1,400 for a "ball". There were over 1,000 supplies in the 6 month period, that is an estimated average of slightly more than five supplies each and every day."
All of these findings were justified upon the basis of the Agreed Facts. With respect to the large number of supplies and the number of them per day over the six month charge period, the findings were precisely what the Appellant's counsel had urged upon her Honour.
It had been submitted for the Appellant that he sold drugs solely to fund his own consumption as an addict. Hearsay evidence to that effect was received through the pre-sentence report and a report of the Appellant's psychologist. The Crown did not contest the proposition nor put the Appellant to proof of it. The Appellant did not give evidence. Her Honour appeared to accept that the Appellant's business of drug selling was, at least predominantly, driven by the need to fund his own consumption. Certainly her Honour made no finding that he had been able to accumulate wealth from the exercise or that he lived a life of high spending and extravagance during the charge period, in any respect other than his outlay on drugs for his own use.
Overall her Honour's conclusion on Count 1 was that it was "well into the upper middle range" of seriousness for an offence against s 25(1).

Ground 2 - the principle in De Simoni (1981) 147 CLR 383

Ground 2 is directed only to Count 1 (supply of methylamphetamine). The Crown's concession on Ground 1 will require reconsideration of accumulation of the sentences on all counts and reconsideration of the principle of totality. Attention to these matters must be deferred until a conclusion has been reached with respect to the sentence for Count 1.
As developed in submissions the Appellant's complaint under Ground 2 is that when determining the objective seriousness of Count 1 her Honour had regard to the frequency of individual sales which made up the total supply as charged, in circumstances where that frequency would have been sufficient to have sustained a charge for the more serious offence under s 25A(1). The frequency found by her Honour would have satisfied the threshold of "3 or more separate occasions during any period of 30 consecutive days", as provided for in s 25A(1). It was submitted for the Appellant that by taking into account the frequency of sales in these circumstances her Honour had infringed the principle in R v De Simoni (supra) and that this constituted a sentencing error.
In De Simoni, Gibbs CJ said (at 147 CLR 389): "However the general principle that the sentence imposed on an offender should take account of all the circumstances of the offence is subject to a more fundamental and important principle that no one should be punished for an offence of which he had not been convicted. Section 582 [of the Criminal Code (WA)] reflects this principle. The combined effect of the two principles, so far as that is relevant for present purposes, is that a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence."
His Honour continued (at 389) to cite a number of instances in which courts have recognised the principle at common law "that circumstances of aggravation not alleged in the indictment could not be relied upon for the purposes of sentence if those circumstances could have been made the subject of a distinct charge".
It is notable that in all of the cases cited by the Chief Justice (whose judgment was the only full statement of reasons for the majority) the aggravating circumstance which was held to have been wrongly taken into account on sentence was something distinct from and additional to the elements of the offence. For example in R v Bright [1916] 2 KB 441 the charge to which the prisoner pleaded guilty was one of attempting to elicit information regarding the manufacture of war material. The Court of Criminal Appeal held that the sentencing judge had erred in taking into account that the prisoner had acted with an intention to assist the enemy. Such intention had not been charged in the indictment. If it had been charged and proved to the satisfaction of the jury the prisoner would have been liable to a more severe penalty (although no separate offence was created by the relevant regulation).
This aggravating circumstance was quite extraneous to the elements of the offence as charged. It may be contrasted, hypothetically, with circumstances which would constitute the way in which the elements of the offence charged were perpetrated. Examples would be the making of multiple attempts to elicit information as part of a single course of conduct or the making of a very devious or elaborate or persistent attempt. Any of these would add to the objective seriousness of the infringement, whilst not being an aggravating feature additional to the elements.
Similarly, in R v Toomey, a decision of the United Kingdom Court of Criminal Appeal noted at [1964] Criminal Law Review 419, the prisoner's plea of not guilty to robbery with violence but guilty to simple robbery was accepted. He had injured an elderly woman when snatching her handbag. It was held that the sentencing judge had erroneously taken account of the violence toward the victim in sentencing. Although the note of the decision is brief the analysis seems to have been that the aggravating matter was extraneous to the elements of the offence of simple robbery. It may be said to have gone beyond merely a more culpable or serious manner of acting out the elements of the offence. It was additional to them.
Gibbs CJ cited three further examples from the cases. In all of them the aggravating circumstance which it was held should not have been taken into account was something additional to the elements of the offence charged and something which, if it had been alleged and proved, would have exposed the offender to liability for a more serious offence and a higher penalty. The causing of a wound to the victim in the case of De Simoni (supra) itself was a circumstance of the same type. In none of these instances was the wrongly considered aggravating circumstance capable of being characterised as merely an aspect or a particular of the manner of carrying out the elements as charged.
The alleged aggravating features of Count 1, now said to have been wrongly considered by her Honour, were the frequency of the sales which constituted the supply and the fact that they were for reward. Unlike De Simoni (supra) and the cases there considered, these were simply particulars of how the physical elements of the offence were carried out by the Appellant, not additional or extraneous matters of aggravation.
It is well settled that a single count under s 25(1) may charge a course of selling which involves multiple acts, each of which may amount to an offence: R v Locchi (1991) 22 NSWLR 309; Hamzy v R (1994) 74 A Crim R 341; R v F (1996) 90 A Crim R 356. That was the basis upon which Count 1 was laid in this case. R v Locchi (supra) and Hamzy v R (supra) were cited and applied in R v Whalen; R v Willer [2003] NSWCCA 59; 56 NSWLR 454 (a case of multiple cultivations in one count) at [59].
When more than one transaction is alleged to constitute a "supply" charged in a single count, the transactions must be "connected with one another, in the time and place of their commission or by their common purpose, in such a way that they could fairly be regarded as forming part of the same transaction or criminal enterprise": Director of Public Prosecutions v Merriman [1973] AC 584 at 607. The Crown contended that there was a unifying common purpose here and the Appellant agreed.
It is also clear that "supply includes sell": see the definition of "supply" in s 3(1), Drug Misuse and Trafficking Act. A sale may involve payment, or reward, according to ordinary usage. Therefore facts found by the learned Judge on sentence regarding the receipt of payment for individual transactions of supply may be taken into account as defining the manner in which the central physical element of the offence occurred. Facts regarding payment for the drugs supplied are not additional aggravating features in the sense considered in De Simoni (supra).
Her Honour was bound to make findings about the manner in which the 157.9g of methylamphetamine had been supplied and to take those findings into account in determining the objective seriousness of the offence. A charge under s 25(1) founded upon multiple sales over a period has much in common with a charge of conspiracy to import or to distribute drugs, in the respect that a sentencing judge is required to find and take into account the details of the offender's conduct. In Savvas v The Queen (1995) 183 CLR 1 the High Court found no error in a sentencing judge having made detailed findings about the prisoner's activities in performance of conspiracies to import and to supply heroin, notwithstanding that those findings necessarily involved that the prisoner had committed a number of substantive offences which had not been charged or tried.
At 183 CLR 5 the Court approved the following statement of Gowans J in R v Kane [1975] VR 658 at 661: "In my opinion, any considerations which advert to the content and duration and reality of the conspiracy are proper to be taken into account."
At 183 CLR 7 the Court said: "…it is artificial to ignore what the judgment in Kane describes as 'considerations which advert to the content and duration and reality of the conspiracy'. And this can hardly be avoided if the actions of the accused are excluded from consideration. That is particularly true in the present case where the conspiracy was of an ongoing nature to import heroin on a large scale…"
At 183 CLR 5 the Court quoted from the judgment of Gibbs CJ in De Simoni (supra) the passage set out at [32] above. It is clear that the Court perceived no conflict with De Simoni (supra) where a sentencing judge found facts which defined the manner of perpetrating the elements of an offence of an ongoing nature, in that case conspiracy, albeit that the facts as found disclosed other offences with which the prisoner had not been charged.
The High Court's approval of the fact finding undertaken in Savvas (supra) is applicable by analogy to a composite charge of supply under s 25(1), as laid in Count 1 in the present case. The primary judge in the present case was obliged to find the facts bearing upon the degree of culpability of the Appellant following a plea of guilty, whereas in Savvas (supra) this task followed a verdict after trial. By whatever course the conviction is arrived at, the role of the sentencing judge, in this respect, is the same. The principle to be taken from the High Court's decision in Savvas (supra) applies here.
Upon a plea of guilty to a charge under s 25(1), the Crown does not prove any circumstance additional or extraneous to the elements of offence merely by particularising the frequency of transactions which comprised the composite supply and the fact that they were sales rather than gifts. The principle in De Simoni (supra) is not attracted here because the particulars relied upon by the Crown (and agreed by the Appellant) as constituting the supply did not go beyond the elements of s 25(1). Nothing said in the judgment of Gibbs CJ dictates that in such a case the manner in which the actus reus of the offence has been played out may not be particularised or proved on sentence because to do so would reveal features, albeit inherent to the case under s 25(1), which might alternatively have founded a charge under s 25A(1).
Further, even if De Simoni (supra) would otherwise have a bearing on this case, subs (8) of s 25A would exclude its application. The parties did not refer to or make submissions regarding that subsection. For context, the relevant provisions are all of subss (4)-(8) and (10) of s 25A, as follows: "(4) Alternative verdict - relevant supply offences If, on the trial of a person for an offence under this section, the jury is not satisfied that the offence is proven but is satisfied that the person has, in respect of any of the occasions relied on as evidence of commission of the offence under this section, committed a relevant supply offence, the jury may acquit the person of the offence charged and find the person guilty of the relevant supply offence, and the person is liable to punishment accordingly. (5) Double jeopardy provisions A person who has been convicted of an offence under this section is not liable to be convicted: (a) of a relevant supply offence, or (b) of a separate offence under this section, on the same, or substantially the same, facts as those relied on as evidence of commission of the offence in respect of which the person has been convicted. (6) A person who has been acquitted of an offence under this section is not liable to be convicted: (a) except as provided by subsection (4) - of a relevant supply offence, or (b) of a separate offence under this section, on the same, or substantially the same, facts as those relied on as evidence of commission of the offence in respect of which the person has been acquitted. (7) A person who has been: (a) convicted of a relevant supply offence, or (b) acquitted of a relevant supply offence, is not liable to be convicted for an offence under this section on the same, or substantially the same, facts as those relied on as evidence of commission of the relevant supply offence. (8) Liability for relevant supply offences not affected by offence under this section Subject to subsections (5) and (6), this section does not: (a) remove the liability of any person to be convicted of a relevant supply offence, or (b) affect the punishment that may be imposed for any such offence. … (10) Definitions In this section: cannabis means cannabis leaf, cannabis oil, cannabis plant and cannabis resin. relevant supply offence means any offence under this Act (other than under this section) relating to the supply of a prohibited drug."
Count 1 under s 25(1) is a "relevant supply offence" within the meaning of s 25A. The double jeopardy provisions in subs (5) and (6) of s 25A have no application here. Aside from them, the effect of subs (8) is that s 25A does not "remove" the Appellant's liability on Count 1 or "affect the punishment that may be imposed" for that count. Upon the Appellant's plea of guilty and conviction for the s 25(1) "relevant supply offence", the punishment to which he is subject is to be determined having regard to, inter alia, the particulars of the transactions which constituted the offence. If the Court were bound to disregard those particulars, upon application of the De Simoni principle as the Appellant seeks to deploy it, then the Appellant's punishment would be "affected". By force of subs (8) that is not to occur.
The reality that the Appellant's small quantity, high frequency sales were merely particulars of the core element of his composite supply offence, rather than an aggravating feature to which the De Simoni principle might apply, is brought home by considering the position taken by the Appellant's former counsel in the sentence proceedings. As referred to at [16]-[22], before her Honour a virtue was made of the small quantities and high frequency in order to characterise the Appellant as a street dealer, said to be less seriously culpable than someone who might sell fewer but larger amounts for pure profit. Reliance was placed upon R v Haidar [2004] NSWCCA 350 at [38]-[52] and cases cited therein. Those submissions recognised that the manner of offending had a bearing upon the Applicant's degree of culpability and therefore had to be determined by the learned Judge. They recognised that no question of introducing an impermissible point of aggravation would arise from this course.
In this Court the Appellant's counsel presented the argument on Ground 2 as posing an insoluble conundrum. Whilst it was put that the sentencing judge was not permitted to have regard to the frequency of sales and the fact that they were for reward because, on those facts, the Appellant could have been charged under s 25A(1), it was not suggested that any alternative manner of distributing the drug could have been assumed by her Honour for the purpose of discharging her function. Her Honour had to have some description of how the offence had been committed, and any description other than that agreed upon in the Facts would have been fictional. It was submitted that "whilst those facts [ie, the Agreed Facts] were before [her Honour] she simply could not proceed to sentence on the basis of the facts as they stood". Counsel contended in support of Ground 2 that the Crown could only proceed with sentencing the Appellant under s 25(1) if it "dropped" from its statement of the facts of the case either the circumstance of the sales having been repetitive and frequent or the circumstance of them having been for reward. Counsel accepted that this would result in "an exercise of sentencing on a very artificial basis".
These are particularly unattractive contentions. At sentence, the Appellant negotiated for and obtained the Crown's agreement to withdraw the s 25A(1) charge upon terms that he would plead to the lesser s 25(1) count on the basis of the Agreed Facts. Now, on appeal, it is said that he cannot be sentenced for the s 25(1) offence at all upon the Agreed Facts. It would be very unsatisfactory if the Appellant, by changing his position from the sentence hearing to the appeal, could drive the Court to such a bind. But he cannot. De Simoni (supra) is inapplicable and s 25A(8) has, in any event, foreclosed the Appellant's argument.
For these reasons, it was not necessary for the Crown to "drop" or for her Honour to disregard agreed features of the manner in which the s 25(1) offence was committed, such as the frequency of sales and the receipt of payment. The absurdity of attempting to sentence the Appellant whilst disregarding the Facts which he accepted, concerning the way in which he committed the offence, did not and does not arise.

Reconsideration of accumulation following the concession of Ground 1

The Crown's concession that her Honour should not have accumulated the sentences in such a way as to impose any additional time to be served for Count 4 (dealing with proceeds) was properly made having regard to such decisions as Thorn v R [2009] NSWCCA 294; 198 A Crim R 135 at [26]-[35] and Nahlous v R [2010] NSWCCA 58; 77 NSWLR 463 at [13]-[21]. The present was a case where the admitted proceeds of crime were an accumulation from the sales of drugs as charged in Counts 1 and 3. The Appellant's dealing in the proceeds occurred as part of his commission of the two offences against s 25(1). It took place in the same period. The sentence for it should be concurrent with the sentences for the supply charges.
Her Honour's error in partly accumulating the sentence for the proceeds charge, by 3 months, requires that this Court must reconsider the sentencing of the Appellant as a whole in order to apply correctly the principle of totality.

Objective seriousness

The Appellant conducted an effective retail distribution operation over the course of six months, supplying a quantity of methylamphetamine equivalent to over 1,500 individual usage units, or "points", of 0.1g. The Crown appears to have accepted that the Appellant's application of the profits of this activity was largely directed to the purchase of quantities of the drug for his own use. Although the evidence was unsatisfactory on that aspect the Court should proceed upon the basis that the Crown's acquiescence was well informed. The Appellant's assertion about spending the profits to supply his own addiction should be accepted. This really does not detract from the very serious level of infringement of s 25(1).
The submission of his counsel to her Honour that he was not carrying on the trade for greed and was not living "a high life" attempts to create a spurious distinction. He told his psychologist that "at the height of his crystal methamphetamine usage, … this cost him between $2,500 and $3,000 per week. … he used the money that he made through selling drugs to fund his own usage". On this basis, he has lived an extravagant lifestyle in the sense of large-scale spending but has directed it to the consumption of intoxicants rather than the acquisition of possessions. It is not apparent why that should be regarded as diminishing his criminality in this case. He could not be said to have lacked control over his actions with respect to drug use: he informed his psychologist that he abstains from alcohol as a religious observance.
He chose to fund his need for the drug by spreading it to others. Notwithstanding his own usage the Appellant remained clear thinking enough to be able to carry on his trade in a rational, clandestine and efficient manner. The seriousness of retail distribution such as that by the Appellant lies, in part, in its contribution to servicing and maintaining the market for methylamphetamine. This maintained market in turn provides the economic incentive for manufacture, importation and distribution at the bulk and wholesale levels.
The cannabis supply charge was obviously less serious than Count 1 from the point of view of the law, because this drug is treated so differently from methylamphetamine in terms of traffickable and commercial quantities and applicable penalties in the Drug Misuse and Trafficking Act itself. However the cannabis supply which was charged under Count 3 had a significance to the overall criminality. The Appellant's supply of this drug enabled him to offer choice which, it may be inferred, would have enabled him to attract custom. The business potential of selling cannabis as an adjunct to the sale of the methylamphetamine may be seen from the Appellant's own experience, recounted to his psychologist. He said that he commenced using cannabis at the age of 25 years (the year before these offences): "He identified [to his psychologist] that initially he smoked cannabis once every three days or so, but that his usage increased, and within six months he was smoking cannabis daily, up to 1 ounce per week. … During the period of a few months when he was smoking cannabis daily, Mr Jadron opined that he also commenced smoking crystal methamphetamine (or ice). He noted that initially he smoked 3 points per week, but that over time this increased to 7g per week."
Although Count 3 could have been prosecuted in the Local Court, where the maximum penalty would have been 2 years, the Director of Public Prosecutions was not obliged to take that course. It was a justifiable decision, having regard to the circumstances mentioned in the three preceding paragraphs, that the charge be dealt with on indictment so that the significance of this count could be considered in conjunction with the methylamphetamine aspect of the Appellant's activities. As mentioned at [3], the maximum penalty for this offence, prosecuted on indictment, was 10 years: s 32(1)(h).

Subjective circumstances

The Appellant was born in Afghanistan on 4 March 1986. He is the youngest of four children. His father was killed in fighting in Afghanistan when he was two months old. At the age of 10 years his mother took him and his siblings to Pakistan where they lived in a refugee camp for 12 months. At the age of 11 years, in 1997, the family migrated to Australia as refugees. They lived initially in Auburn and moved to Berala in 2000. The Appellant did not speak English until he commenced to learn the language in this country. He completed school at 18 years of age (2004) and thereafter operated an Internet cafe with his two older brothers for three years. This business was closed in 2007 because it was not profitable. Since then the Appellant has been in receipt of Centrelink benefits on the basis that he is a carer for his mother. The evidence before her Honour did not indicate that he had ever held any employment.
The Appellant's criminal record showed the following convictions and penalties: 1. February 2009 - offences committed on 28 March 2007 (at age 21 years): possession of an unauthorised firearm (sentenced to 6 months imprisonment) and possession of a loaded firearm in a public place (9 months, concurrent). 2. 2 May 2008 - offences committed on 19 December 2007: common assault, behave in offensive manner and intimidate police officer in the execution of his duty. In each case a bond was imposed, the longest being for 18 months. 3. 3 July 2012 - offence committed on 31 January 2012: affray. A 20 month bond was imposed, under supervision.
Obviously these offences were not of like kind with those which were before her Honour. But this record would not attract any consideration of lenience for the Appellant. In particular, it is material that the bond for the offence of affray, committed on 31 January 2012, was imposed on 3 July. For nearly 2 months thereafter until his arrest on 30 August 2012 the Appellant carried on the course of drug supply which is the subject of the current charges whilst under this supervised bond.

Conclusion on accumulation and totality

Upon making its concession with respect to Ground 1 the Crown did not also concede that the total effective sentence should be reduced as a result of eliminating the impermissible accumulation. Nor did the Crown argue that either of the individual sentences for the two supply counts should be increased. Those individual sentences are lenient in view of the objective and subjective considerations summarised above. However, in the particular circumstances of this case, where the Crown has conceded an accumulation error but has not argued that any individual sentence was manifestly inadequate, I do not consider that the Court should alter any individual sentence in order to maintain the effective total sentence.
The backdated commencement date for the sentences, as agreed upon before her Honour, is 22 May 2013. As mentioned at [4], her Honour fixed the sentence for Count 1 (supply methylamphetamine) to commence 6 months after the commencement of the sentence for Count 3 (supply cannabis). In my view the relationship between the commencement dates of the two supply counts should be maintained. This has the effect that, of the time actually served, the period attributable to the supply cannabis count is 6 months. That is an appropriate duration in the circumstances; any greater accumulation would be disproportionate to the part played by the cannabis offence in the overall criminality of the Appellant's conduct.
In order to maintain the degree of accumulation between the sentences for the two supply counts, whilst correcting their commencement dates to achieve concurrence with the sentence for the proceeds of crime charge, it would be necessary to bring forward by 3 months the commencement dates in respect of both Count 1 and Count 3. This would result in the total sentence being reduced to 3 years 10 months, with an effective non-parole period reduced from 2 years 6 months to 2 years 3 months. The balance term would remain at 1 year 7 months. Those are the only adjustments which I consider should be made to the sentences imposed in the District Court.
I propose that the orders of the court should be: 1. Leave to appeal is granted. 2. The appeal is allowed in part. 3. Order that the sentence imposed in the District Court for Count 3 be amended to the effect that the non-parole period of 12 months commence 22 May 2013 and expire 21 May 2014 and the balance term of the said sentence commence 22 May 2014 and expire 21 March 2015. 4. Order that the sentence imposed in the District Court for Count 1 be amended to the effect that the non-parole period of 1 year 9 months commence 22 November 2013 and expire 21 August 2015 and the balance term of the said sentence commence 22 August 2015 and expire 21 March 2017. 5. The Appellant will be eligible for release on parole upon the expiration of the non-parole period fixed by Order (4).

Amendments 18 August 2015 - Typographical error on cover page 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: 18 August 2015

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