Kandemir v R

Court of Criminal Appeal (NSW)|2018-06-20|Before: Beazley P, Price J, Hulme J

Judgment

BEAZLEY P: I have had the advantage of reading in draft the reasons of Price J. I agree with his Honour's reasons and proposed orders.
PRICE J: Tamer Kandemir ("the applicant") seeks leave to appeal against the sentences imposed on him by Gartelmann SC DCJ ("the judge") in the District Court at Parramatta on 20 December 2017. The applicant had been arraigned before the judge with Peter Murray, a co-offender, on a single indictment. The applicant pleaded guilty to two counts (counts 3 and 4 on the indictment) of knowingly take part in the supply of not less than the commercial quantity of a prohibited drug contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW).

The Notice of Appeal

The Notice of Appeal identifies two grounds: "Ground 1: His [H]onour's sentence miscarried in that his [H]onour considered the sentence against an incorrect maximum penalty and another sentence should be imposed. Ground 2: His [H]onour erred in the accumulation of the non-parole period of the sentences."

Factual background

A lengthy statement of agreed facts was tendered which the judge recounted in his remarks on sentence. [3] A summary of the agreed facts is as follows.
On 2 September 2015, Peter Murray and another (unidentified) male attended Pack & Send in Liverpool, each carrying a cardboard box. Pack & Send is a logistics company that deals in the packaging and freight of items, both domestically and internationally.
Peter Murray arranged to send the two boxes to Perth overnight on the pretence that they contained power tools. He provided his driver's licence as identification and paid $820 in cash for overnight freight.
The receiver of the boxes in Perth was labelled as "Dimi Kritsonis" (later identified as the applicant), with a mobile telephone (0435 XXX XXX), which was later identified as belonging to Matthew Murray.
An employee of Pack & Send was concerned about the packaging and became suspicious. He opened the first box. Inside he saw numerous pieces of clothing surrounding a white unlabelled paint container with a handle. The plastic container's lid was sealed with silicon. The employee then contacted Liverpool police.
The police attended and seized both boxes and the two plastic containers. In each container, police located a number of resealable bags containing the prohibited drugs methylamphetamine and MDMA tablets. In one container there was also a yellow singlet. Forensic examination of the singlet revealed that Matthew Murray's DNA was on it.
The prohibited drugs were analysed and the total quantity of methylamphetamine (from both containers) was found to be 4.96 kilograms. The total quantity of MDMA (from both containers) was found to be 8.66 kilograms.
Testing revealed that the purity level of one resealable bag of methylamphetamine (containing 996 grams) was 79%. One resealable bag of MDMA (containing 301 grams) was tested and revealed a purity of 21.5%.
On 3 September 2015, the applicant travelled from Sydney to Perth under the passenger name Dimi Kritsonis. He did so on the understanding that the packages were meant to arrive that day and that he would be collecting them.
The packages did not arrive at the West Perth Pack & Send store.
On 4 September 2015, police obtained warrants to intercept the telephone services used by Peter and Matthew Murray.
An undercover officer ("UCO") posing as an investigator for the freight company made contact with Peter Murray and told him there was a problem with the consignments. Police then intercepted a number of conversations between Peter and Matthew Murray regarding their concerns about the packages.
As it became clear that there was going to be a delay in the arrival of the packages, the applicant returned from Perth to Sydney on 5 September 2015. The next day, the applicant met with Matthew Murray in person in Sydney.
On 7 September 2015 at 2:52pm, the UCO phoned Peter Murray. He told Peter Murray that he believed the consignments sent by Peter may be travelling by road, which could take between five and seven days to arrive in Perth.
On 8 September 2015, phone intercepts of a conversation at 11:36am indicated that Matthew Murray believed the packages would arrive in Perth on that day. At 11:48am, Matthew Murray dropped the applicant at Sydney Airport. This was captured on CCTV footage. Western Australian Police saw the applicant attend a hire car company and hire a vehicle. He had minimal baggage on him, and he was seen to approach the vicinity of the West Perth Pack & Send store.
Later that day the UCO advised Peter Murray that the worst case was that the packages should arrive in Perth on 11 September 2015.
On 10 September 2015, the applicant was still in Western Australia awaiting the delivery of the packages. On that same day, $500 was deposited into a St George Bank account in the true name of the applicant at Seven Hills New South Wales. CCTV footage captured Matthew Murray making this deposit.
On 11 September 2015 at 1:45pm, the UCO phoned Matthew Murray and advised that the packages were located on the delivery truck and would be delivered to West Perth on that day. At 2:23pm, the UCO advised that the packages would arrive at the West Perth store within 15 to 20 minutes.
At 2:45pm, police arrested Matthew and Peter Murray in Sydney. The applicant was arrested shortly after whilst still in Perth.
At the time of the applicant's arrest he was in possession of: 1. One fraudulent driver's licence in the name of Dimi Kritsonis, the photograph affixed to the licence was that of the applicant; 2. Two mobile phones; 3. One Flight Centre itinerary in the name of Dimi Kritsonis; 4. Two Bayswater Car Rental agreements in the applicant's true name.
The following facts were agreed between the Crown and the applicant: 1. The applicant knowingly took part in the supply of MDMA and methylamphetamine by travelling to Perth, Western Australia, arranging accommodation and car hire, and maintaining communication with Matthew Murray in order to receive a package that contained prohibited drugs; 2. The applicant was to pass on the package to another person; 3. In knowingly taking part in the above, the applicant knew that the packages contained not less than the prescribed commercial quantities of each of the prohibited drugs; 4. The Crown could not prove beyond reasonable doubt that the applicant knew the weight of the drugs that were in fact concealed inside the consignment packages; 5. There was no evidence that the applicant knew of the activities or conversations of Peter Murray and Matthew Murray detailed in the tendered statement of facts where he was not named as a party to those conversations or activities; and 6. The Crown does not rely on the contents of the interview of Peter Murray in any way against the applicant.
In relation to Peter Murray it was agreed that: 1. When knowingly taking part in the supplies, Peter Murray knew that the packages contained in total not less than the prescribed large commercial quantity of each of the prohibited drugs; and 2. The Crown could not prove beyond reasonable doubt that Peter Murray knew the weight of the drugs that were in fact concealed inside the consignment packages.

The applicant's subjective circumstances

The applicant was 26 years old when the offences were committed and 28 years old when sentenced. He did not give evidence during the sentencing proceedings.
The written material tendered in his case included a report from Bradley Jones, a forensic psychologist; Bridges Recovery treatment notes; affidavits sworn by the applicant, by Fazilet Kandemir, his mother, by Ayca Kandemir, his sister, and by Samantha Wager, a friend. A number of character references were also placed before the judge.
The applicant's background is provided in the psychologist's report. In summary, he left school in Year 9 and attempted tertiary education as an apprentice boilermaker from which he withdrew after one year. The applicant told Mr Jones that he had held many jobs since that time.
Mr Jones reported that the applicant commenced drinking alcohol when he was 11 years of age and by the age of 16 was drinking to intoxication daily. He began smoking cannabis at the age of 13, was smoking daily for 3 years, and by the age of 24 was smoking a quarter of an ounce of cannabis per week. Mr Jones recounted that the applicant had recreationally used pharmaceutical substances, MDMA, cocaine and methylamphetamine by the age of 24.
The applicant began gambling at the age of 16. He had gambled up to fifteen hundred dollars ($1500) a week and made repeated unsuccessful attempts to stop. He recalled that his friend Matthew Murray would lend him money for gambling and basic necessities; that Mr Murray had asked him to collect a parcel from a courier company in Perth as a favour; and that he had felt obliged to assist, as Mr Murray had lent him money and was his friend.
The applicant told Mr Jones that he had ceased drinking alcohol, using illicit drugs and gambling since his arrest.
The applicant informed Mr Jones that he was diagnosed with Conduct Disorder and Attention Deficit/Hyperactivity Disorder ("ADHD") when in primary school. The applicant believed that he had experienced anxiety since his childhood and recalled experiencing panic when his father would return home, fearing violence would erupt.
The psychologist concluded that the applicant was suffering from the following (co-morbid) disorders:

Gambling Disorder, moderate severity in early remission, in a controlled environment;
Cannabis Use Disorder, moderate severity in early remission, in a controlled environment; and
Alcohol Use Disorder, severe, in early remission, in a controlled environment.

The applicant was assessed to be at moderate risk of re-offending.
In a letter to the judge, which was annexed to his affidavit, the applicant accepted "full responsibility" for his actions which was not to say that he was "a criminal mastermind". He referred to his drug abuse and gambling, and informed his Honour that upon release, he wanted help for his addictions. He explained that he was induced into the offending by his "friend", identified in the psychologist's report as Matthew Murray, as a way to get out of his gambling debt.
Ayca Kandemir confirmed in her affidavit that the psychologist's report was an accurate representation of the applicant's background. She did not become fully aware of her brother's gambling addiction until he was arrested. Ms Kandemir related how much the applicant regretted his offending and was willing to do anything "to change his life around".
Samantha Wager stated in her affidavit that the applicant had confided in her concerning his traumatic childhood and had been a target for bullying amongst his peers at school. As the applicant got older, he developed a severe gambling addiction and used drugs and alcohol "as a coping mechanism to deal with trauma of his past". He took full responsibility for his actions and had shown to her how sorry he was for them.
The applicant's criminal history as an adult reveals convictions for common assault, assault occasioning actual bodily harm and resist officer in execution of duty. In 2014, for the offence of assault occasioning actual bodily harm, the applicant was sentenced to 12 months imprisonment which was suspended under s 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW) upon his entering a supervised bond for 12 months. He was also sentenced to 6 months imprisonment which was suspended under s 12 upon his entering a bond for 6 months for the offence of resist officer in execution of duty.

The Remarks on Sentence

The judge said that the maximum penalty applicable to each offence for which the applicant was to be sentenced, was 25 years imprisonment with a standard non-parole period of 10 years. [4]
The judge observed that Peter Murray's role held a significant degree of responsibility for, and involvement in, the transaction. His Honour found that Peter Murray's involvement in the offences "…constituted an integral role in the planned supply of the drugs concerned". [5]
The judge noted that the applicant was to be sentenced on the basis that he had knowledge of an indeterminate quantity not less than the commercial quantity but less than the large commercial quantity applicable to the prohibited drugs.
The judge found the applicant's role "…was a significant one but nonetheless a lesser one than that of the offender Peter Murray, which was in turn less than that of the co-offender Matthew Murray". [6] The relevant evidence included the applicant's role in travelling to Perth, arranging accommodation and car hire, and maintaining communications with Matthew Murray in order to receive the consignment and pass it on to another. His Honour said that the extent of the applicant's involvement in planning the offences was difficult to ascertain on the evidence but comprised conduct over a period from 3 to 11 September 2015. His Honour found that the applicant's involvement would have gone on to include other conduct such as the receipt of the consignment and delivery of it to another person but for the intervention of authorities.
The judge also found the applicant had a level of awareness of the planning involved in the transactions, but that his involvement did not amount to an aggravating factor. [7] Ultimately, his Honour assessed the applicant's offences to be "…within the lower part of the range for offences of their kind". [8]
When referring to the applicant's prior criminal history, the judge said that these previous offences shared no characteristics in common with the present offences. His Honour went on to say that they "…may be viewed as an aberration and that leniency is warranted in the determination of the appropriate sentences". [9]
His Honour observed that there was no indication that the applicant offered to plead guilty before 24 April 2017, a period of two and a half weeks prior to the trial, and approximately one year and nine months after the applicant was charged. His Honour said that the utilitarian value of the pleas were diminished, notwithstanding that the negotiations resulted in an indictment containing the present counts. Having noted the agreement that the trial would have been lengthy and complex, his Honour allowed a 15% discount for the pleas of guilty.
As to the applicant's account to the psychologist, and in the letter annexed to his affidavit that suggested he was induced into the commission of the offences by Matthew Murray, his Honour said that he could not give any significant weight to these claims as the evidence was unsworn and untested.
The judge found that there was evidence tending to suggest that the applicant was remorseful. The judge noted that the applicant experienced a "dysfunctional upbringing", [10] a history indicating "persistent issues with alcohol consumption and use of prohibited drugs… [and] a significant gambling problem". [11]
His Honour concluded that the psychological report did not clearly establish that the mental condition of the applicant contributed to his offending, and was not satisfied that his mental condition lessened his moral culpability for the offences. However, his Honour said that "…the [applicant's] mental condition does warrant some amelioration of the weigh[t] for general deterrence. It is also such that it may be inferred the [applicant's] experience of custody will involve greater hardship than with other inmates". [12]
The judge found that with intervention to manage the applicant's problems, his prospects of rehabilitation were good, and the likelihood of his re-offending to be relatively low. [13]
In adverting to the parity principle, the judge cited the decision of this Court in Murray. His Honour remarked that due proportionality between the sentences in the cases before him, and those imposed in Murray, was required to "…avoid a justified sense of grievance on the part of the present offenders". [14]
His Honour observed that in re-sentencing Matthew Murray, this Court found that special circumstances existed principally because the sentences were partially accumulated and the proportion of the effective non-parole period to the overall term appeared to be approximately 70%. The judge said: "In my view, the proportion between the effective non-parole period and the period of supervision on parole resulting from the sentences imposed on the present offenders should be approximately the same in order to avoid a justified sense of grievance on their part." [15]
His Honour compared the subjective case of the co-offender Matthew Murray to the applicant and found a number of matters of distinction. The judge said: "Most significantly [the applicant] is to be sentenced for offences involving commercial rather than large commercial quantities. The offences therefore attract significantly lesser maximum penalties and standard non-parole periods. Further [the applicant] is to be sentenced on the basis that he had knowledge only that the quantities involved were not less than the commercial quantities applicable to the respective drugs. Also significant in my view is the finding I have previously indicated that the role of [the applicant] is less than that of the co-offender. Further the co-offender had previously been involved in trafficking drugs between Sydney and Perth for financial gain. There is no evidence of prior involvement of [the applicant] in trafficking drugs and [the applicant] has no significant record of prior convictions for present purposes. [The applicant's] subjective circumstances, including his mental condition, warrant, in my view, some greater mitigation than those of the co-offender." [16]
The judge went on to detail matters of distinction between the applicant and Peter Murray.
His Honour considered that the applicant's subjective circumstances indicated that some degree of reduction in the weight to be attributed to general deterrence was warranted but that it was not great. His Honour said that there was nothing in the circumstances of the applicant's case that indicated that specific deterrence was to be given additional weight and there was a need for his rehabilitation.
Special circumstances were found, so as to vary the statutory ratio between the balance of term and the non-parole period, being the partial accumulation of sentence and the need for an extended period of supervision on parole to facilitate the applicant's rehabilitation, particularly with his substance abuse and gambling issues.

Ground 1: his Honour's sentence miscarried in that his Honour considered the sentence against an incorrect maximum penalty and another sentence should be imposed.

Both parties accepted that the judge had misstated the maximum penalty for the offences for which the applicant was to be sentenced as 25 years imprisonment whereas the correct maximum penalty was imprisonment for 20 years. The applicant argued that his Honour's error was material and a lesser sentence should have been imposed.
The Crown submitted that the "Crown Sentence Summary" provided to the judge had identified the correct maximum penalty and his Honour's misstatement had occurred at the beginning of his sentencing remarks and was not repeated. The Crown submitted that his Honour may have not acted upon a wrong principle.
It is trite to observe that a sentencing judge's understanding of the maximum penalty for an offence is fundamental to the integrity of the sentencing process. In Andreata v R [2015] NSWCCA 239 Beech-Jones J (Ward JA and Adams J agreeing) said at [28]: "…Consistent with House v R [1936] HCA 40; 55 CLR 499 at 504-505 and the above passage from Kentwell this requires a determination as to whether the sentencing judge 'act[ed]' upon the wrong principle. As the latter part of the above passage from Kentwell makes clear there can be some misstatements of legal principle that are irrelevant or immaterial to the sentencing outcome and thus they do not establish that an error was acted upon in the sense discussed in House v R. It is in that context that Donaghey referred to an error as 'material'. Given the significance of the maximum penalty to the sentencing process (Markarian v R [2005] HCA 25; 228 CLR 357 at [31]) it is difficult to conceive of a circumstance in which the misstatement of the maximum sentence would not result in House v R error except perhaps, for example, if the balance of the reasons demonstrated that the sentencing judge in fact acted on the basis of the correct maximum penalty." (Emphasis added.)
It is true that the judge made reference to the incorrect maximum penalty on the one occasion which was at the commencement of his sentencing remarks. His Honour correctly identified the standard non-parole period as being 10 years and was plainly aware that the offences attracted significant lesser penalties than the offences for which Peter Murray was to be sentenced. However, this was a reserved sentencing judgment and the degree of latitude that is sometimes afforded to ex tempore sentencing remarks is not available in the present case.
His Honour's reference to the significant lesser maximum penalties that the applicant was facing is of limited assistance, as the maximum penalty applicable to the offences to which his co-offenders had pleaded guilty was life imprisonment. I am not persuaded that the balance of his Honour's sentencing remarks demonstrate that the judge had in mind the correct maximum penalty of 20 years.
In my respectful opinion this was a material error that may have infected his Honour's reasoning. [17]
It follows that ground 1 of the appeal is established. As it will be necessary for this Court to exercise the sentencing discretion afresh, the submissions made by the parties in ground 2 will be considered on re-sentence.
There is another matter that I feel obliged to mention. The lawyers representing the Crown and the applicant at the time of his Honour's sentencing remarks should not have remained mute, but respectfully told his Honour that the maximum penalty had been incorrectly stated. Where an obvious error has been made, it is in the interests of justice that the judge be so informed before the sentencing proceedings are finalised so that the error might be corrected.

Submissions on re-sentence

The arguments advanced by the applicant in respect of ground 2, which contended that the judge had erred in the accumulation of the non-parole period of the applicant's sentence are of relevance to the exercise of this Court's sentencing discretion. The applicant pointed out that his head sentence was accumulated by 12 months by the judge "…which was consistent with the proportionate sentence compared to Matthew Murray". However, the non-parole period was accumulated by 12 months, which rendered his non-parole period to be disproportionate to the sentences imposed on the co-offenders. The effect of the accumulation on the applicant's sentence was submitted to be double that of Matthew Murray and nearly 10% higher than that of Peter Murray.
It was also put to the Court that the applicant's overall criminality would infer a far more limited level of accumulation, if any accumulation at all was warranted.
A further submission was that this Court in making a finding of special circumstances could consider a larger departure from the statutory ratio than was found by the judge, even up to 60%.
The applicant submitted that a discount greater than 15% should be allowed for the utilitarian benefit of his guilty pleas. The applicant argued that the initial indictment contained an inappropriate charge, and that the change of the indictment to a charge that involved a significantly lesser maximum penalty, being life imprisonment and 20 years imprisonment respectively, represented "…the first opportunity that [the applicant] had in a practical sense to plead to the appropriate indictment". [18] The applicant acknowledged that the principles set out in R v Borkowski [2009] NSWCCA 102; 195 A Crim R 152 ("Borkowski") applied to this argument, but that as a discretionary finding, the circumstances of the present case would allow for a greater discount to be applied.
The Crown contended that Borkowski provides authority that this Court would not impose a greater discount as a consequence of the plea arising out of a negotiated charge. The Crown further argued that the utilitarian value of the plea was diminished on the basis that the plea offer was made two and a half weeks prior to trial, one year and nine months after the applicant had been charged; no negotiations had taken place at an early stage; and that the judge's discount of 15% was appropriate only because of the nature and complexity of the actual proceedings.
It was also submitted that parity considerations do not involve maintaining proportionality in terms of the level of partial accumulation between each of the co-offenders. The Crown argued that the focus must be on the overall non-parole period that applies to the applicant relative to the co-accused, and the proportion of the non-parole period relative to the total term.
A further matter that was raised was the judge's finding that the applicant's mental state warranted some amelioration of the weight to be given to general deterrence.

Re-sentence?

As specific error has been identified, it is this Court's duty to re-sentence, "…unless in the separate and independent exercise of its discretion it concludes that no different sentence should be passed". [19]
The maximum penalty for each count to which the applicant pleaded guilty is 20 years imprisonment with a standard non-parole period of 10 years. These legislative guideposts are to be borne in mind when considering the appropriate sentences, having regard to the objective circumstances of each offence and the applicant's subjective case. No evidence was placed before this Court of events that have occurred since the sentencing hearing before the judge. [20]
The applicant's task was to collect the consignment containing the prohibited drugs and to deliver them to another person. For this purpose, he travelled to Perth on two occasions, maintained communications with Matthew Murray, possessed a false driver's licence and adopted the fraudulent identity of "Dimi Kritsonis". The applicant did so with the knowledge that the consignment contained not less than the prescribed commercial quantities of each of the prohibited drugs. As the judge found, the applicant's involvement in the supply of the prohibited drugs would have continued but for the intervention of the authorities.
Although the applicant's role was less than that of his co-offenders, it was plainly of importance to the object of the criminal enterprise, which was to distribute substantial quantities of the prohibited drugs from New South Wales to Western Australia. The difficulties of detecting prohibited drugs being delivered by mail with the grave consequences that follow to our society have often been stated. This is a serious offence.
The applicant invites this Court to find that a discount greater than 15% should be allowed for the utilitarian benefit of his guilty pleas.
In the guideline judgment of R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309, the promulgated guideline included at [160]: "…(iii) The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10-25 per cent discount on sentence. The primary consideration determining where in the range a particular case should fall, is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge."
In Borkowski, the significance of the timing of the plea was further emphasised. Without re-stating the oft-quoted passage in Borkowski at [32], the following principles of general application are of particular relevance: "…8. Generally the reason for the delay in the plea is irrelevant because, if it is not forthcoming, the utilitarian value is reduced: Stambolis [2006] NSWCCA 56; Giac [2008] NSWCCA 280. 9. The utilitarian value of a delayed plea is less and consequently the discount is reduced even where there has been a plea bargain: Dib [2003] NSWCCA 117; Ahmad [2006] NSWCCA 177; or where the offender is waiting to see what charges are ultimately brought by the Crown: Sullivan and Skillin [2009] NSWCCA 296; or the offender has delayed the plea to obtain some forensic advantage: Stambolis [2006] NSWCCA 56; Saad [2007] NSWCCA 98, such as having matters put on a Form 1: Chiekh and Hoete [2004] NSWCCA 448."
The application of these general principles depends on the particular circumstances of the case. [21]
In the judge's careful consideration of the utilitarian discount, his Honour observed that the applicant's offer to plead guilty to the offences for which he came to be sentenced were made some two and a half weeks prior to trial, and approximately one year and nine months after he was charged. His Honour went on to say: "The utilitarian value of the pleas was diminished regardless of the fact that negotiations led to an indictment containing counts for the present offences that differed from those on which [the applicant] had previously been arraigned. Nevertheless it is agreed that the trial would have been lengthy and complex. In these circumstances a discount appropriate to reflect the utilitarian value of the pleas of guilty is 15%." [22]
The applicant was initially arraigned on the more serious charges of knowingly take part in the supply of not less than the large commercial quantity of the prohibited drugs. There is little before this Court that supports the applicant's argument that these were inappropriate charges. Without advancing into this issue in detail, it is hardly surprising that the trips to Western Australia, the use of the false identity, and communications with Matthew Murray resulted in the applicant being charged in the same terms as his co-offenders. In the exercise of my sentencing discretion, I agree with his Honour's reasons in the passage quoted at [87] above, that the discount for the utilitarian value of the pleas should be 15%.
I do find myself in respectful disagreement with the judge's conclusion that the applicant's mental state warranted some amelioration of the weight for general deterrence but that it was not great. The parties do not challenge the judge's findings that Mr Jones' report did not clearly establish that the applicant's mental condition contributed to his offending nor lessened his moral culpability for the offences.
It is well recognised that for the mental health problems of an offender to be relevant to sentencing it is neither necessary that they amount to a serious psychiatric illness nor that they be a cause of the crime. [23] The principles applicable to mental illness that were re-stated in De La Rosa by McClellan CJ at CL at [177] included: "…It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed: Engert at 71; R v Wright (1997) 93 A Crim R 48 at 50 - 51; Israil at [22]; Pearson at [42]; Henry at [28]."
However, as Simpson J observed in Aslan v R [2014] NSWCCA 114, none of the principles stated in De La Rosa are absolute. Her Honour said at [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."
The psychologist considered the applicant was suffering from a gambling disorder, cannabis use disorder, and alcohol use disorder. I am not satisfied on the balance of probabilities that these disorders render the applicant to any extent an inappropriate vehicle for general deterrence. [24] The need for money that arises from excessive gambling or alcohol or drug abuse provides a compelling incentive for involvement in the distribution of prohibited drugs. The high need for general deterrence for offences involving the supply of prohibited drugs has been emphasised by this Court. [25] In the circumstances of the applicant, I do not consider that there should be any moderation of the need for general deterrence on sentence.
The Crown did not challenge the judge's findings that the applicant's experience of custody will involve greater hardship than with other inmates; that he was remorseful; that with intervention his prospects of rehabilitation were good; the likelihood of re-offending was relatively low; and that his prior criminal history warranted leniency. Accordingly, I take into account all these matters as mitigating factors in determining the appropriate sentence. Furthermore, there was no challenge to his Honour's conclusion that specific deterrence did not warrant additional weight.
A central point in ground 2 of the appeal and submissions on re-sentence was the disparity that is said to have occurred between the total effective sentence imposed by the judge, and the total effective sentences imposed on the co-offenders, by the partial accumulation of one year of the sentence imposed for count 4 upon the sentence imposed on count 3.
It is evident from his Honour's earnest consideration of the need to preserve proper parity between the co-offenders that he considered that the effective non-parole period and the period on parole for the applicant and Peter Murray should be approximately 70%, which was consistent with the sentence imposed upon Matthew Murray by this Court (see [59] above).
It is not in dispute that the sentences imposed by the judge on the applicant and Peter Murray achieved what his Honour intended, but the applicant's complaint is that the proportion of the accumulation to the non-parole period in his case is 26%, whereas in the case of Peter Murray, it is 16.5% and Matthew Murray 12.5%.
The parity principle is an aspect of equal justice. [26] Its application is to be governed "…by consideration of substance rather than form". [27] The parity principle is not to be applied in a technical or pedantic way. [28] Nor is it dependent upon mathematical calculations or percentages. The practical difficulties in achieving consistency in sentencing are increased when the participants in the same criminal enterprise have been charged with different crimes. [29]
The judge assiduously detailed the differences in the subjective cases between the applicant and his co-offenders who had pleaded guilty to the more serious offences (see [60]-[61] above). The sentences that his Honour imposed are in my view justified by the differences between the co-offenders, including the part each of them played in the criminal enterprise. The difference in the percentage calculations of the proportion of the accumulation to the non-parole periods is an inevitable consequence of the significantly lesser sentence imposed upon the applicant. In my view, there is no marked disparity in the sentences imposed by the judge which gives rise to a justifiable sense of grievance. [30]
The applicant raised the question of accumulation and invited this Court to find that there should not be any accumulation. I would reject this submission as the sentence for the third count which concerned the supply of methylamphetamine could not adequately comprehend and reflect the criminality of the fourth count which concerned the supply of MDMA. [31] As McClellan CJ at CL observed in Collier v R [2012] NSWCCA 213 at [32]: "Each offence involved the supply of prohibited drugs and it was, in my opinion, appropriate that separate charges should be brought in relation to each type of drug. Although the offences were committed as part of the one sophisticated criminal enterprise, the legislature has marked out separate offences for different drug types. The total criminality of the applicant's offending could not be appropriately dealt with by imposing sentences that were wholly concurrent. Only sentences that in a real and significant manner marked out the criminality involved in the separate offences was appropriate in all the circumstances."
In the exercise of my sentencing discretion and applying the principle of totality, I agree with the judge's assessment that the appropriate degree of accumulation is one year.
The ultimate constraint on a finding of special circumstances is that the non-parole period must appropriately reflect the criminality involved in the offence. [32] I am of the view that the non-parole period of 3 years 10 months is the minimum period that the applicant should spend in custody to appropriately reflect the criminality of his offending.
Giving weight to all relevant factors and in the exercise of my individual discretion, I am satisfied that no different sentence than the sentence imposed by the judge should have been passed.
The orders I propose are: 1. Leave to appeal against sentence is granted. 2. The appeal is dismissed.
R A HULME J: I agree with Price J.

Endnotes

Drug Misuse and Trafficking Act 1985 (NSW) s 33.
Murray v R [2017] NSWCCA 262 ("Murray").
ROS, 2-14.
ROS, p 2.
ROS, p 16.
ROS, p 19.
ROS, p 20.
ROS, p 20.
ROS, p 25.
ROS, p 25.
ROS, p 25.
ROS, p 27.
ROS, p 27.
ROS, p 29.
ROS, p 29-30.
ROS, p 30-31.
Kentwell v R (2014) 252 CLR 601; [2014] HCA 37 at [41]-[42]; Baxter v R [2007] NSWCCA 237; (2007) 173 A Crim R 284 at [60] (Kirby J).
Tcpt, 20 June 2018, 4.
Kentwell v R (2014) 252 CLR 601; [2014] HCA 37 at [35].
Kentwell v R (2014) 252 CLR 601; [2014] HCA 37 at [43].
R v AB [2011] NSWCCA 229 at [3].
ROS, p 21.
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [178] ("De La Rosa"); Benitez v R (2006) 160 A Crim R 166; [2006] NSWCCA 21 at [36].
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [30].
Murray [2017] NSWCCA 262 at [74]; Jaafar v R [2017] NSWCCA 223 at [115].
Postiglione v The Queen (1997) 189 CLR 295 at 301; [1997] HCA 26.
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [30].
R v Kerr [2003] NSWCCA 234 at [19]; Bell v R; Jelisavac v R [2009] NSWCCA 206 at [46].
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [30].
Postiglione v The Queen (1997) 189 CLR 295 at 301; [1997] HCA 26.
Cayhadi v R (2007) 168 A Crim R 41.
R v Simpson (1992) 61 A Crim R 58 at [63].

Amendments 25 July 2018 - Formatting only 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: 25 July 2018

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