Kahler v R

Court of Criminal Appeal (NSW)|2020-11-23|Before: Hoeben CJ, Bellew J, Wright J

Solicitors: Gregory Goold Solicitors - Applicant Commonwealth Director of Public Prosecutions - Respondent Crown File Number(s): 2016/265370; 2017/185896 Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 03 May 2019 Before: Girdham SC DCJ File Number(s): 2016/265370; 2017/185896

JUDGMENT

HOEBEN CJ at CL: Offence and sentence By notice of application for leave to appeal, filed 8 September 2020, the applicant seeks leave to appeal against the sentence of imprisonment imposed upon him on 3 May 2019 by her Honour Judge Girdham SC in the District Court at Sydney. Following pleas of guilty in the Local Court, the applicant was sentenced to a head sentence of 8 years and 9 months with a non-parole period of 6 years for two offences arising out of his involvement in the supply and importation of cocaine on 9 August 2016 and 1 September 2016.
The offences were: 1. supply a commercial quantity of a prohibited drug (cocaine, less than 1kg), contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (the supply charge); and 2. import a marketable quantity of a border controlled drug (cocaine, 808.6g pure cocaine) contrary to s 307.2(1) of the Criminal Code (Cth) (the importation charge).
The maximum penalty for each offence and the sentences imposed by her Honour are set out in the following table: Offence Maximum Penalty Sentence Supply commercial quantity of a prohibited drug: s 25(2) Drug Misuse and Trafficking Act 1985 Imprisonment for 20 years and a standard non parole period of 10 years 5 years 4 months with a non-parole period of 3 years 4 months to commence 1 September 2016 Import marketable quantity of a border controlled drug (808.6 grams of pure cocaine): s 307.2(1) Criminal Code 1995 Imprisonment for 25 years and/or 5,000 penalty units 7 years 9 months with a non-parole period of 5 years to commence 1 September 2017

The applicant's non-parole period expires on 31 August 2022. An offence of knowingly participate in a criminal group, contrary to s 93T(1) of the Crimes Act 1900 (NSW) was taken into account on a Form 1.
The applicant relies upon two grounds of appeal:

Ground 1 - her Honour failed to take into account the applicant's lack of prior relevant criminal antecedents/prior good character when sentencing the applicant

Ground 2 - the sentence imposed for the offence against s 307.2(1) Criminal Code was manifestly excessive

FACTUAL BACKGROUND

In November 2015, a Strike Force was established by the Organised Crime Squad, State Command to investigate a money laundering syndicate. As a result of that investigation, Mr David Redshaw was identified as laundering cash through the syndicate. Ongoing investigations established that Mr Redshaw was associated with a group of men, including Mr Fullagar and Mr Musgrove, involved in the importation of the prohibited drug cocaine into Sydney from Thailand using "drug mules". The investigation monitored the activities of the group between June 2016 to March 2017.
In July 2016, investigators became aware that the applicant was an associate of Mr Fullagar and Mr Musgrove. On 19 July 2016, the applicant arrived in Sydney from Thailand and checked into the Ibis Hotel at Mascot.
On 8 August 2016, the applicant arrived in Sydney from Thailand again checking into the Ibis Hotel at Mascot. Electronic surveillance of his hotel room established that the applicant was, after showering, throwing small cylindrical objects into his bathroom sink. Those objects contained cocaine that the applicant had ingested.
On 9 August 2016, the applicant was picked up in a car by Mr Redshaw in Mascot and dropped off about 10 minutes later. During that time, the applicant supplied Mr Redshaw with the pellets containing cocaine. It was agreed that the amount was less than 1kg.
On 11 August 2016, the applicant met with Mr Fullagar. At that time he was paid a large amount of cash for supplying drugs to the criminal group.
On 1 September 2016, the applicant arrived at Sydney International Airport from Thailand. Before boarding the flight, he had swallowed 111 sealed capsules that contained 1,198g of a white powder. That powder was analysed and contained 808.6g of pure cocaine and had a purity of 67.5 per cent.
On arrival, the applicant presented his incoming passenger card that denied bringing prohibited substances into the country. The applicant was selected for examination by Australian Border Force officers and body scan images identified anomalies. The applicant subsequently made admissions to officers to the effect that he had internally concealed items and that it would take six to eight hours to pass these. Over three days, while hospitalised, the applicant passed 111 hard cylindrical shaped pellets. The applicant refused to participate in a record of interview.
Travel records showed that the applicant, who resided in Thailand, had travelled between Thailand and Australia on 22 occasions between July 2014 and September 2016.

Sentence proceedings

The applicant's sentence proceedings were heard together with the sentence proceedings for three co-offenders, Messrs Redshaw, Fullagar and Musgrove. The applicant and his co-offenders were charged with a number of different offences. The sentence proceedings were conducted over three days. On the supply charge, the State Crown tendered an Agreed Facts on Sentence document as part of the Crown bundle on sentence. That bundle also included the applicant's criminal history.
On the importation charge, the Commonwealth Crown tendered an Agreed Statement of Facts as part of the Crown bundle. It also tendered two pre-sentence reports and the applicant's criminal history. A table of comparable cases was provided to the sentencing judge.
The applicant did not give evidence. A psychological report, seven character references and a record of attendance at remand addiction sessions were tendered on his behalf.

Factual findings on sentence

On the basis that these were joint sentence proceedings, the sentencing judge summarised the facts of the matter, expressly noting that there were agreed facts relevant to each offender. Her Honour also noted that no direct parity issues arose between the four co-offenders, given the different offences and the combination of offences with which they were charged.
Her Honour dealt first with the co-offender, Mr Redshaw, then Mr Musgrove, before sentencing the applicant and finally Mr Fullagar. This order was not based on any hierarchical arrangement between the offenders.
In relation to the applicant, her Honour dealt separately with the supply charge and the importation charge. In the course of her Honour's sentence judgment, her Honour noted and took into account matters relevant to the objective seriousness and nature and circumstances of both charges.
Her Honour assessed the objective seriousness and nature and circumstances of the supply offence, which included that: 1. the amount supplied was just under the large commercial amount of 1kg, and nearly four times the amount proscribed for a commercial quantity of 250 grams; 2. there was no evidence that the applicant was involved in any management role; 3. the cocaine was supplied for financial reward; 4. the applicant was aware of the wider activities of the criminal group; 5. there was planning involved; 6. there was an absence of any s 21A factors which would elevate the objective seriousness of the drug supply offence; and 7. the offence was below mid-range in seriousness, principally because he was on the front line and vulnerable to detection.
The sentencing judge took into account the following subjective features relating to the applicant, relying primarily on the psychological report from Dr Jonathon Adams: 1. the history of his mental health and in particular its deterioration since 2010 following the death of his mother, the loss of an unborn child, a relationship break down, increasing drug use and a misdiagnosis of a terminal illness; 2. his work history in both Australia and Thailand from 2006; 3. his return to Australia in 2016 when he became involved in drug importation; 4. his mounting debt to drug dealers; 5. the offending occurred in the context of a major depressive disorder, drug use and significant stressors; 6. the applicant's symptoms and the use of drugs, impacted the applicant's judgment, rational decision making and consequent thinking; 7. his risk of reoffending was assessed as medium; 8. his prospects of rehabilitation, which were good, would involve long term drug and alcohol rehabilitation; 9. the testimonials described him as a person of integrity, responsibility and ambition; 10. the absence of institutional misconduct charges, the improvement in his emotional state and mental health and the completion of drug and alcohol courses whilst in custody; and 11. his early pleas of guilty for which he received a discount of 25 per cent.
In relation to the supply charge, her Honour found that the applicant's strong subjective case was the basis of a finding of special circumstances.
Her Honour noted and took into account the following matters relevant to the objective seriousness and nature and circumstances of the applicant's importation charge: 1. that the offending was a significant and serious breach of s 307.2(1); 2. he departed Bangkok with the express purpose of importing 400 times the marketable quantity of drug into Australia; 3. he was well aware of the weight of the cocaine ingested, being 808.6g of pure cocaine; 4. the motivation for the importation was financial; 5. the offence involved planning on the applicant's part including making arrangements for his flight, accommodation and visa; 6. it was not an impulsive lapse; 7. his role was not that of a mere mule, but was integral; 8. in assessing objective seriousness, weight could be given to the fact that he was not thinking clearly and was affected by distorted thought processes; and 9. general deterrence remained of significance, although diminished due to his mental condition.
Her Honour found the following subjective circumstances associated with the importation offence: 1. pre-sentence reports repeated the history provided to Dr Adams, in particular, that his risk of re-offending had been assessed as medium; 2. his mental condition warranted a reduction in moral culpability and the need for general deterrence; and 3. he demonstrated contrition and remorse.

Ground 1 - her Honour failed to take into account the applicant's lack of prior relevant criminal antecedents/prior good character when sentencing the applicant

It was common ground that the applicant's criminal history showed no record of convictions in NSW and a previous drive while intoxicated charge committed in Queensland in 1986.
The Crown (Cth) set out in the Agreed Statement of Facts that "the offender has no relevant criminal history". The Crown (State) set out in its submissions that the applicant "has no criminal history that could be considered relevant to his sentence for this offence".
The applicant submitted that her Honour had erred in failing to take into account properly or at all as a mitigating factor, his lack of prior relevant criminal conduct and his previous good character.
In support of that proposition, the applicant submitted that when sentencing the other three co-offenders, her Honour did variously note a lack of criminal antecedents (in relation to Messrs Redshaw and Fullagar) and the presence of such criminal antecedents in the case of Mr Musgrove. The applicant submitted that in so treating the co-offenders, her Honour's failure to note the applicant's lack of previous convictions and prior good character can only be seen as indicating a failure on the part of the sentencing judge to take into account this mitigating factor.

Consideration

It is accepted that the sentencing judge made no express reference to the applicant's lack of prior convictions nor specifically stated that the applicant's good character was taken into account in the course of sentencing. It is not clear, however, that her Honour's failure to refer to the applicant's prior good character and absence of prior criminal conduct should lead to a conclusion that these factors were not given any weight. In that regard, the circumstances of this case and the content of her Honour's reasons, need to be more closely examined.
Importantly, there are a number of individual references in the sentence proceedings, that combined with her Honour's ultimate finding as to the strength of the applicant's subjective case, indicate that her Honour more likely than not, did have regard to these factors.
In relation to the supply offence, her Honour: 1. accepted and relied upon the psychiatric report of Dr Jonathon Adams, which included a reference to the applicant denying any criminal charges or convictions other than driving under the influence of alcohol; 2. accepted and repeated in some detail the numerous testimonials that noted the applicant's high degree of integrity, responsibility and ambition; and 3. made a finding that the subjective case of the applicant warranted a finding of special circumstances.
In relation to the importation offence her Honour: 1. noted that the matters listed in s 16A(2) of the Crimes Act 1914 (Cth) which are relevant and known to the court must specifically be taken into account; 2. specifically recited the wording of s 16A(2)(m), namely, "the offender's character, antecedents, age, means and physical or mental health"; and 3. referred back to the subjective features which she had summarised previously and which effectively included a reference to good character.
In those circumstances, there is no compelling basis to conclude that the judge did not have regard to the lack of criminal convictions and prior good character of the applicant. It can be inferred that the sentencing judge, when concluding that the applicant's subjective case formed the basis for the finding of special circumstances for the supply offence, took into account both the lack of prior criminal convictions and his good character at the time of that offence.
It follows that it is open to conclude that the sentencing judge was also conscious of these factors and took them into account when she was sentencing for the Commonwealth offence.
Given the extremely comprehensive nature of the judgment, involving as it did four co-offenders, and that in the case of three of them specific reference was made to good character and the presence or absence of a criminal record, it should not necessarily be concluded that these matters were ignored in the case of the applicant.
In that regard, what was said by Howie J (with whom Levine and Hidden JJ agreed) in R v Carr (2002) 135 A Crim R 171; [2002] NSWCCA 434 remains apposite: "34 The Court should be slow to attribute error to a sentencing judge simply on the basis that the judge has failed to refer to a matter during the course of giving remarks on sentence. This is particularly so where the judge is as senior and experienced as the sentencing judge in the present matter. But there are occasions when the matter is of such importance to the exercise of the sentencing discretion that a failure to mention it at all is indicative of error, particularly where it is a matter that has been addressed by at least one of the parties. ..."
As noted by the applicant, her Honour specifically had regard to the lack of any criminal convictions on the part of Messrs Redshaw and Fullagar, stating that the fact that they had no previous convictions was a mitigating factor. When her Honour came to sentence Mr Musgrove, who did have a criminal record, it was expressly noted that his criminal record consisted mainly of matters which were irrelevant to the sentence proceedings. It follows, therefore, that the absence to any reference to a criminal record as regards the applicant, cannot be relied upon to establish that her Honour did not have regard to the applicant's lack of a criminal record and his good character.
The strong likelihood is that her Honour did have regard to those matters but omitted to refer to it in the course of what was a complex sentencing exercise involving four co-offenders.
It is also necessary to keep in mind that the absence of an express reference to the applicant's lack of a criminal record and prior good character took place in relation to offending in circumstances where the fact of prior good character is of less weight in the sentencing exercise i.e., supply and importation offences. The Commonwealth Crown in its written submissions on sentence specifically noted this fact (AB 232-233).
It follows that this ground of appeal has not been made out.

Ground 2 - the sentence imposed for the offence against s 307.2(1) Criminal Code was manifestly excessive

The applicant did not assert that the sentence for the supply offence was manifestly excessive. Nor did he submit that the extent of the accumulation of the import charge on the supply charge was such as to give rise to manifest excess. The thrust of the applicant's submission was that the individual sentence imposed for the importation offence was itself manifestly excessive in circumstances where there was: 1. the limited role of the applicant in the enterprise; 2. the positive findings in relation to remorse, contrition and prospects of rehabilitation; 3. the applicant's lack of relevant criminal antecedents and previous good character; and 4. the early guilty plea.
The applicant submitted that by way of reliance on comparable cases, the decision in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 reviewed a large number of cases when setting out the principles which were relevant to the applicant's mental condition and were indicative of why the sentence for the importation charge was manifestly excessive.

Consideration

The relevant principles applicable to a ground of appeal raising manifest excess were comprehensively set out by R A Hulme J (with whom Bathurst CJ, Leeming JA, Hamill and N Adams JJ agreed) in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 where his Honour said: "443 When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]. • Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases. • Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error. • It is not to the point that this Court might have exercised the sentencing discretion differently. • There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle. • It is for the applicant to establish that the sentence was unreasonable or plainly unjust."
As set out in the above extract, there is no single correct sentence and sentencing is not a mathematical exercise. Sentencing judges are required to reach a sentence for each offence by balancing many different and conflicting features (Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [27]; Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [34]). As Hayne J stated in AB v The Queen (1999) 198 CLR 111; [1999] HCA 46 at [128]: "... there will be a range of possible sentences that could be imposed without error."
As has been explained by this Court on many occasions, the assessment of the objective seriousness of offences is an evaluative task which is classically within the discretion of a sentencing judge. This Court is very slow to intervene and determine such matters for itself (Mulato v Regina [2006] NSWCCA 282 at [37]). Here, the sentencing judge concluded that the objective seriousness of the importation offence gave rise to a significant breach of s 307.2(1), even taking into account the mental state of the applicant at the time. This finding reflected the Crown's written submissions that specifically characterised the applicant's conduct as involving a significant offence. Her Honour set out her specific findings as to objective seriousness which led to her sentence for the importation offence at [23] hereof.
In the course of oral submissions, the Crown emphasised the relevance of the weight of the drug, in circumstances where the applicant knew the amount that he was ingesting, which was over 1kg gross. The Crown stressed that the amount of cocaine imported, was 400 times the marketable quantity. Her Honour took into account that the conduct was not impulsive and had been repeated. Accordingly, a finding of significant breach of s 307.2(1) was well open to the sentencing judge. The applicant's strong subjective case was clearly taken into account by her Honour in the instinctive synthesis process.
As already indicated, the lack of criminal convictions prior to the supply charge was implicitly taken into account. What was also taken into account was that in an offence of this nature, prior good character was generally of less weight as a mitigating factor. It should be noted that at the time the import offence was committed, the applicant had already committed the supply offence.
In relation to comparable cases, and in particular the principles set out in Director of Public Prosecutions (Cth) v De La Rosa, the observations of Simpson J (with whom Adams and McCallum JJ agreed) in Aslan v R [2014] NSWCCA 114 need to be kept in mind. There, her Honour said: "34 It will be observed that none of these principles is stated as absolute. What is recognised is the potential effect, in any given case, of a mental disability. It does not follow that, because an offender suffers from some mental impairment or disability, his or her moral culpability is reduced (principle 1); nor that he or she is an inappropriate vehicle for general deterrence (principle 2); nor that a custodial sentence will weigh more heavily upon him or her (principle 3); nor that the significance of specific deterrence is reduced or eliminated (principle 4). Nor, on the other hand, does it follow that a person with mental impairment is a danger to the community, indicating a need for community protection (principle 5). Too often, the mere fact of mental illness is advanced to this Court as necessarily calling for a more lenient sentence. What the principles spelled out by McClellan CJ at CL do is direct attention to considerations that experience has shown commonly arise in such cases. There is, however, no presumption. It remains necessary for the sentencing court to examine the relevant facts in order to determine whether, in the specific case, the mental condition has the consequence contended for."
In relation to comparable cases generally, Ierace J (with whom Bathurst CJ and Price J agreed) stated in Wright v R [2019] NSWCCA 134: "52 ... there are limitations to the use of comparative cases; the Court must take a "careful approach" and needs to weigh the similarities and dissimilarities of the objective and subjective circumstances between each case: MLP v R [2014] NSWCCA 183 at [44]. Even so, a close alignment of such circumstances in comparative cases yielding lesser sentences is not determinative of manifest excess. Rather, it is inconsistency in the application of relevant legal principles that is significant: Vandeventer v R [2013] NSWCCA 33 at [43], [45]-[46]."
In Vandeventer v R [2013] NSWCCA 33 Adamson J said: "45 One cannot adjudge whether a sentence falls within an appropriate range by reasoning from particular instances. Applicants will always be able to find cases where offenders appear to have been dealt with more leniently. So, too, will the Crown be able to find cases where offenders have apparently been dealt with more severely than the applicant for leave to appeal on sentence. This is not, however, the way in which this Court determines whether a sentence is manifestly excessive."
Recent comments by this Court in Moodie v R [2020] NSWCCA 160 (in particular at [83]) and Smith v R [2020] NSWCCA 181 at [78] and [90]-[91] are to similar effect.
The High Court and this Court have warned on a number of occasions against using labels to determine the role or importance of the actions of an offender in relation to drug supply and drug importation. In this case, the part played by the applicant was significant. The amount of the cocaine imported was substantial and well in excess of the marketable quantity threshold. Further, as her Honour found, the applicant was well aware of the amount. This was not an impulsive or isolated offence on the part of the applicant but had been repeated on earlier occasions. This of itself distinguished this matter from many of the cases considered in Director of Public Prosecutions (Cth) v De La Rosa. Importantly, the part played by the applicant was fundamental to the importation. Without his physical actions to bring the drugs into Australia, there would be no importation or subsequent distribution.
While the sentence for the importation is stern, it is not of a level that would suggest a misapplication of principle. A sentence of 7 years and 9 months imprisonment with a non-parole period of 5 years was well within a sound exercise of the sentencing discretion in this case and has not been shown to be manifestly excessive. It follows that the applicant has failed to discharge the onus which he carried to establish that the sentence imposed by her Honour was unreasonable or plainly unjust.
Ground of Appeal 2 has not been made out.

Extension of time

Rule 3B(2) of the Criminal Appeal Rules (NSW) confers a discretion upon the Court to extend the three month period for an appeal against sentence. Whether such an extension should be granted is to be determined by a consideration of the interests of justice of the particular case: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37.
Relevant to the determination of the interests of justice is the prospect of success should the extension be granted: Kentwell v The Queen at [33]. The consideration of the merits must be assessed by reference to s 6(3) of the Criminal Appeal Act: Kentwell v The Queen at [34]. Ordinarily, it will be necessary to consider the nature of and reasons for any delay, the prospects of the proposed appeal and the significance to the parties of the granting or refusing of the application for an extension of time: Crump v R [2016] NSWCCA 2.
This appeal is in respect of the sentence imposed by the sentencing judge and reasons for the sentence which was imposed and pronounced on 3 May 2019. The application for extension of time was filed on 8 September 2020, some 1 year and 4 months after the applicant was sentenced. The reasons provided in that notice state that the applicant has been at all times desirous of pursuing a sentence appeal. However, counsel was not briefed until May 2020. No explanation has been provided for the delay in briefing counsel, other than by reference to the COVID-19 pandemic which only explains a small portion of the delay.
Finally, the appeal has been fully argued and the applicant has failed to establish the grounds of appeal relied upon. It follows that the interests of justice do not require an extension of time. Accordingly, I propose the following orders: 1. Leave to allow an extension of time within which to seek leave to appeal against sentence is refused. 2. It follows that, an extension of time within which to bring an application for leave to appeal against sentence having been refused, the application for leave to appeal against sentence is dismissed.
BELLEW J: I have had the advantage of reading in draft the judgment of Hoeben CJ at CL. I wish to add the following observations.
In the course of oral submissions in relation to ground 1, counsel for each party made reference to the decision of this Court in BG v R [2020] NSWCCA 295. In that case, the sentencing judge found that the applicant was a person of otherwise good character, but did not address the weight that he ascribed to that finding. I concluded (with the concurrence of Simpson AJA) that the sentencing judge had overlooked the observations of McHugh J in Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21 at [23] and following regarding the necessity to determine, if an offender is found to be of good character, what weight is to be given to that fact.
I am satisfied that the sentencing judge in the present case took into account the fact that the applicant was a person of prior good character, even though her Honour did not state such a finding in express terms. It was specifically submitted by the Crown who appeared on sentence that such a finding, if made, was one which was deserving of limited weight. Again, although not expressly stated, I am satisfied that her Honour accepted that submission and approached the matter accordingly. In my view, on a reading of her Honour's reasons as a whole, this was not a case in which the question of what weight was to be given to the applicant's good character was overlooked. In that respect, the circumstances of the present case are distinguishable from those in BG in which error was found.
In terms of ground 2, the Crown who appeared in the court below made the following submission to the sentencing judge (AB 61):
In terms of the role, it's not contended by the Crown that the offender was anything above a bare courier.
Couched in those terms, such a submission was unhelpful. Characterising an offender by reference to labels such as "courier" or a "principal" must not obscure the assessment of what the offender did: The Queen v Olbrich (1999) 199 CLR 270 279; [1999] HCA 54 at [19].
What the applicant did in the present case was import into Australia a significant quantity of a prohibited drug. In doing so, he helped to facilitate and promote large-scale international drug trafficking. Even if it is accepted that his place in a notional hierarchy was low, that does not mean that his role was insignificant. Without the applicant performing the role that he did, the importation could not have been effected: Gwardys v R [2019] NSWCCA 62 at [43]; Klomfar v R [2019] NSWCCA 61 at [40].
I agree with the orders proposed by Hoeben CJ at CL.
WRIGHT J: I agree with Hoeben CJ at CL and with the additional observations of Bellew J.

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