Kochai v R

Court of Criminal Appeal (NSW)|2023-02-15|Before: Button J, Wilson J, Adams J

trict Court of New South Wales Jurisdiction: Criminal Citation: R v Kochai [2022] NSWDC 230 Date of Decision: 24 June 2022 Before: Scotting DCJ File Number(s): 2019/238276

JUDGMENT

BUTTON J: I agree with N Adams J.
WILSON J: I agree with N Adams J for the reasons given.
N ADAMS J: The applicant, Khalid Kochai, seeks leave under ss 5(1)(c) and 6(3) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed on him by his Honour Judge Scotting in the District Court on 24 June 2022.
The applicant initially pleaded not guilty to the charges in the Local Court, and they were committed for trial. He pleaded guilty to the following charges in the District Court and received a discount of 10%: 1. Deal with property intending that the property become an instrument of crime, contrary to s 193D(1) of the Crimes Act 1900 (NSW); and 2. Supply prohibited drug not less than a large commercial quantity, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW).
The first count pertained to the purchase of illegal cigarettes and the second count pertained to numerous supplies of significant quantities of cocaine, totalling over 3 kilograms. The maximum penalty for the first count was 15 years' imprisonment and the maximum penalty for the second count was life imprisonment.
When dealing with the supply charge, the applicant also asked the court to take into account one count of possess prohibited drug, being 1 gram of cannabis, contrary to s 10(1) of the Drug Misuse and Trafficking Act.
The applicant was sentenced to an aggregate sentence of 10 years' imprisonment with a non-parole period of 6 years, dating from 31 July 2019. The head sentence will expire on 30 July 2029 and the non-parole period will expire on 30 July 2025. The indicative sentence for the supply count was 9 years' imprisonment with a non-parole period of 5 years (taking into account the matter on the Form 1 and the indicative sentence for the instrument of crime offence was 5 years' imprisonment).
The applicant now seeks leave to appeal against his aggregate sentence on the following two grounds: Ground 1: The sentencing judge erred in not expressing an assessment of the objective seriousness of the offending conduct. Ground 2: The sentence is manifestly excessive.

Factual background

The reasons of the sentencing judge are available online: R v Kochai [2022] NSWDC 230. They can be found at [6]-[49] of the reported judgment and are very detailed. I do not propose to set them out as fully as the sentencing judge did. I consider that the following summary, when read in conjunction with the sentencing reasons available online, will suffice for the purpose of these reasons.

Overview

On 26 September 2018, the applicant and his associate Mohammad Junaid met with an undercover operative ("UCO") in a café in Parramatta. He went on to meet with the UCO on a further 24 occasions after that until 4 July 2019 (a period of about 10 months).
At the first meeting, the UCO agreed to sell the applicant unlawfully obtained cigarettes. Although initially the applicant paid for the cigarettes with large sums of cash, he offered to pay in cocaine instead and did so on some occasions.
The applicant and the UCO agreed on a price structure for the cigarettes. A packet of cigarettes was $5. One box contained 500 packets of cigarettes.
On nine occasions, the applicant purchased cigarettes and paid the UCO a total of $262,500. On six occasions, the applicant supplied the UCO cocaine in exchange for cash and cigarettes.
In total, the applicant supplied the UCO with 3.0227 kilograms of cocaine.
During 18 of these meetings, the importation of heroin was discussed. The applicant made telephone calls from a public telephone on three occasions to his associate in Pakistan to discuss sourcing and dispatching heroin to Australia. These calls were recorded but no arrangements were ever finalised.
On the final occasion the applicant met with the UCO, he offered to supply him with half a kilogram of cocaine in exchange for $110,000 worth of cigarettes. He was arrested before that sale took place and was found with 367.1 grams of cocaine, which he had intended to supply to the UCO. When he was arrested, an additional gram of cannabis leaf was found in his car, which was the Form 1 offence.
The applicant and the UCO communicated using code via phone and text messages to avoid detection. The applicant had five different phones that he used to contact people, including one phone that was only used to contact the UCO.
Of the 25 occasions that the applicant met with the UCO, the following meetings are relevant to the supply charge: 1. At a meeting on 5 November 2018, it was the applicant who told the UCO that he had an ounce of cocaine that had been "cut" but was still of good quality. He told him it would usually sell for $6,500 an ounce but that he would supply it to the UCO for $5,500 in exchange for the cigarettes. The applicant claimed that he could supply cocaine of 94% purity in the future; 2. At a meeting on 9 November 2018, the applicant told the UCO that he could supply as much cocaine as the UCO wanted and that he had five separate phones that he used to communicate with different people, including one phone that was only used to contact the UCO; 3. At a meeting on 26 November 2018, the applicant agreed to meet later in the day and provide the UCO with an ounce of high-quality cocaine (98% purity) to account for the remaining $6,500 owed for the purchase of $75,000 of cigarettes that day. The applicant was carrying a bag containing $200,000 in cash and he told the UCO that was for a large purchase of cocaine he was about to make. He said that he had changed cars since he saw him earlier that day to avoid detection; 4. At a meeting on 4 December 2018, the applicant told the UCO that he had recently purchased 500 grams of cocaine for $117,000 and that it was a "beautiful one". He stated that he would have it ready for the UCO at the next meeting; 5. At a meeting on 18 December 2018, the applicant took a package out of his backpack, placed it on the driver's seat of the UCO's vehicle and told him that it was 5 ounces of the "best quality" cocaine. He said he had taken out 1-2 grams for himself. The applicant handed the UCO 136.3 grams of cocaine as payment for the 8,500 packets of cigarettes exchanged that day; 6. At a meeting on 20 February 2019, the applicant told the UCO that he would supply him with a kilogram of cocaine in exchange for a quantity of illegal tobacco; 7. At a meeting on 28 February 2019, the applicant produced a Coles brand plastic shopping bag which contained approximately 1 kilogram of cocaine and exchanged this for 10,000 packets of cigarettes; 8. A further supply of half a kilogram of cocaine was made on 21 March 2019 in exchange for cigarettes; 9. At a meeting on 26 March 2019, the applicant produced a Woolworths plastic shopping bag containing 1 kilogram of cocaine in exchange for 22,000 packets of cigarettes; 10. At a subsequent meeting on 15 May 2019, the applicant told the UCO that he could supply him with as much cocaine as he wanted to purchase; 11. At a meeting on 30 May 2019, the applicant placed a grey plastic shopping bag behind the front seat of the UCO's vehicle. It contained approximately half a kilogram of cocaine as previously arranged and was exchanged for 15,000 packets of cigarettes; 12. At a meeting on 4 July 2019, the applicant offered to supply further quantities of cocaine to the UCO; 13. Between 12 July 2019 and 29 July 2019, the UCO arranged for the applicant to supply a kilogram of cocaine in exchange for 44 boxes of cigarettes (valued at $110,000).

Proceedings on sentence

The applicant was 52 years old at the time of sentence on 24 June 2022. He was one of seven children born in Afghanistan. He came to Australia as a refugee by boat in 2000. He was married with five children. He had an employment history of being an interstate truck driver. He had been in custody since his arrest on 31 July 2019. Whilst in custody, he had a heart attack on 25 March 2021.
Proceedings on sentence were conducted on 20 June 2022. The Crown tendered a sentence summary bundle; three reports of Dr Olav Nielssen dated 18 August 2019, 18 November 2020 and 5 May 2021; and provided written submissions.
Counsel for the applicant tendered reports of psychologist Chafic Awit dated 3 May 2022 and 17 June 2022; personal references from the applicant's children, Najia and Aminullah, both dated 12 May 2022; bundles from Prince of Wales Hospital relating to the applicant's medical conditions; and provided written submissions.
The focus of the evidence and submissions on sentence was whether the applicant had any mental disorders, including a drug and alcohol addiction, at the time of the offending that may have contributed to his offending. The difficulty for the sentencing judge in this regard is that the applicant had given conflicting accounts to the experts Dr Nielssen and Mr Awit.
In his first report, Dr Nielssen said that he did not detect that the applicant had a mental condition and did not believe his substance use was sufficient to meet the criteria for a diagnosis of substance use disorder. He maintained this opinion in his second report. In his third report, Dr Nielssen said that the applicant was suffering from an adjustment disorder with anxious and depressed mood following his heart attack.
Mr Awit, on the other hand, believed that the applicant met the diagnostic criteria for Generalised Anxiety Disorder, Major Depressive Disorder, Substance Use Disorder and Alcohol Use Disorder. He said that the applicant's decision-making was impaired at the time of the offending conduct as a result of his mental condition but could not state to what extent. He also noted that the applicant's experience of the trauma of war and his refugee status were particularly important.
In relation to the discrepancies in what the applicant told Dr Nielssen and Mr Awit about his drug and alcohol use, Mr Awit said that he thought the histories given by the applicant to both practitioners had strong similarities. He said that when he questioned the applicant about the discrepancies, the applicant told him that he was concerned that if he told Dr Nielssen the true position about his drug and alcohol use, he would be refused bail.
It was submitted on behalf of the applicant that Mr Awit took Dr Nielssen's reports into account properly in making his report. It was submitted that the discrepancies in the history the applicant gave to Dr Nielssen and Mr Awit were not such that the two cannot sit together.
The Crown submitted that the sentencing judge would not accept Mr Awit's opinion in relation to the offender's state of mind and mental health leading up to and during the offending. It was submitted that the applicant is prepared to over or under play his experience to secure a more favourable court outcome. In the event his Honour did accept Mr Awit's diagnoses of generalised anxiety and major depressive disorders, the Crown submitted that it should not be given much, if any, weight in reducing the applicant's moral culpability or the relevance of specific deterrence because the symptoms outlined in Mr Awit's report have little, if any, correlation with the sustained and organised offending over a period of ten months.
On the question of the objective seriousness of the supply offence, the applicant contended that it fell below the mid-range of objective seriousness whereas the Crown submitted that it was at the mid-range of objective seriousness. Neither party submitted where on any scale of gravity the instrument of crime offence lay.

Remarks on sentence

After setting out the facts (at [6]-[49]), the sentencing judge summarised Dr Neilssen's reports (at [50]- [67]) and Mr Awit's evidence (at [68]-[87]). He then summarised the letters from the applicant's children (at [88]-[90]) and the medical documents (at [91]-[93]). He then made his findings under a heading, "Findings as to the offender's mental condition and subjective circumstances" (at [94]-[98]).
His Honour preferred the opinions of Dr Nielssen on the basis that the applicant was more forthcoming with Dr Nielsen and provided information to him which was against his own interest. Dr Nielssen also independently assessed the applicant's mental state over an extended period of time and at a time more contemporaneous to the offending, and independently verified the information provided.
In relation to Mr Awit's evidence, the sentencing judge said at [95]: "In this case, many of the features of the competing histories as to the offender's background are irreconcilable. Mr Awit's evidence was that the offender told him that he did not tell Dr Nielssen the whole truth as to his drug and alcohol use, because he thought it would adversely impact his application for bail. In other words, the offender tailored what he told Dr Nielssen to serve his own interests in procuring what he thought would be a favourable report for the purpose of obtaining bail. I am satisfied that he has also tailored what he told Mr Awit to obtain what he thought would be a favourable report for the sentence proceedings, and I should not accept what he told Mr Awit as truthful unless it is independently verified or adverse to his own interest."
His Honour accepted that the impact of growing up in Afghanistan during the relevant period would have been challenging but held that because of the applicant's inconsistent statements he could not determine the impact of that on the applicant or whether it should lead to a reduction in moral culpability. His Honour was satisfied that the offender developed a mental condition in custody related to his physical health conditions and likely exacerbated by the circumstances of his incarceration during the pandemic.
His Honour next considered the factors relevant to the objective seriousness of the offending under a heading "Objective Seriousness" (at [99]-[101]) where he said this: "[99] The supply offence involved supplying significant quantities of cocaine on seven separate occasions, amounting to three times the large commercial quantity. Each supply involved some planning through negotiations, the making of arrangements, meetings, telephone conversations and text messages in code. The offender used a number of mobile telephones, code and changed vehicles to avoid detection. The offender had access to substantial quantities of cocaine through others. The purity of the drug varied, but the offender was able to supply some drugs of a higher purity. The offender was an active participant in the criminal organisation. The offender stated that he could arrange imports of heroin and participated in discussions with the UCO and others about doing so. The total value of the cocaine supplied was $587,500. There was a further agreement in place to supply 0.5kg of cocaine for $110,000 in place at the time of the offender's arrest. If the cocaine was disseminated to end users that would have been an aggravating factor, but the fact that it was not, is not a mitigating factor. The offence was committed over an extended period of 10 about months. [100] The instrument of crime offence is capable of broad application. The value of the cigarettes dealt with was $860,000. It was intended to facilitate the serious drug supply offence. The offender knew that the tobacco was illegal and being traded for an illegal substance. The offender's dealings with the illegal tobacco included receiving it, possessing it and disposing of it. The offence was committed over an extended period of about 10 months. [101] I have had regard to the maximum penalty for the offences."
The sentencing judge went on to consider deterrence (at [102]-[103]), noted that there were no aggravating features (at [104]), and then noted the mitigating factors (at [105]-[107]) of the lack of significant record of prior conviction, good prospects of rehabilitation and some limited remorse. The letters from the applicant's children supported the applicant's contention that he was sorry for what he had done to his family but there was no insight into the damage his offending conduct had caused to the community.
Finally, his Honour had regard to comparable cases and the effects of the COVID-19 pandemic. Special circumstances were found on the basis that it was the offender's first time in custody, and he has health conditions that will be better treated in the community.

Applicant's submissions

The applicant submitted that the sentencing judge erred by omitting to express an assessment of the objective seriousness of both offences and that it is unclear whether his Honour made any assessment of objective seriousness at all.
In relation to the supply offence, it was accepted that his Honour noted the factors relevant to such a finding, but it was submitted that there was no assessment as to where the applicant lay in any supply chain or his motive to commit the offence.
Complaint was made that his Honour did not state how he was taking into account the applicant's discussions about importing heroin. The applicant also contended that his Honour appeared to consider that the further agreement to supply 0.5 kilograms for $110,000 (which was already part of the rolled-up offence) extended the applicant's criminality (at [99]). It was submitted that it is unclear whether his Honour accepted the Crown or applicant's submission about the gravity of the offending conduct.
The applicant conceded that the fact that the cocaine was exchanged for cigarettes does not make it less objectively serious; the value is the relevant factor.
In relation to the instrument of crime offence, it was also accepted that his Honour identified the factors relevant to the finding, but it was contended that his Honour's finding that the applicant's "dealings" included "disposing of" the illegal tobacco did not appear to relate to using the cigarettes to facilitate the supply offences and appear to be based on what the applicant originally told Dr Nielssen. It was also submitted that there is no indication whether the sentencing judge accepted other assertions by the applicant in relation to the commission of the offences.
The applicant submitted that it may not always be necessary for a sentencing judge to express where on the scale of objective seriousness an offence falls, but it must be clear that an assessment has been made: R v Van Ryn [2016] NSWCCA 1, R A Hulme J (Leeming JA and Johnson J agreeing) at [133]-[135]. The applicant also noted that in Naberezhnov v R [2021] NSWCCA 142 this Court held that where parties join issue, the requirement to give reasons means that the judge must engage with and analyse the competing submissions and explain why those advanced by one party have been accepted. It was submitted that in the present case it is not clear whether the sentencing judge made any assessment as to objective seriousness of the offending conduct and if he did, what it was and why.
It was submitted that the circumstances of the case are unusual which makes it difficult to understand whether the sentence is warranted or excessive without an indication of how the factors were taken into account. The case was said to be unusual for two reasons: first, because of the exchange of cigarettes for drugs; and second, because there was no evidence of many of the usual characteristics that are often present in supply offences, such as evidence as to the surrounding syndicate that the applicant was in.

Crown's submissions

The Crown relied upon the decisions of Yeung v R [2018] NSWCCA 52 at [30] and Naberezhnov v R. It was submitted that the sentencing judge identified and considered all factors relevant to an assessment of the objective seriousness of both offences at [99]-[100]. It was submitted that there is no requirement to place the objective seriousness on a scale: McLean v R [2020] NSWCCA 344 at [51].
As for motive, it was noted that his Honour accepted the assertions made by the applicant (to Dr Nielssen and Mr Awit) as to the circumstances of his offending: the sentencing judge clearly stated that he only accepted what the applicant told Mr Awit as being truthful if it was "independently verified or adverse to his own interest". It was not in dispute that the applicant supplied the drugs to fund a lucrative illegal cigarette "business".
Nor, it was submitted, did the sentencing judge err by failing to explicitly state how the applicant's discussions with the undercover operative arranging the importation of heroin bore upon the assessment of objective seriousness of the supply offence. It was submitted that these discussions formed part of the context and circumstances of the supply offence and the sentencing judge was entitled to have regard to this fact as part of the assessment, citing Irmak v R; Dagdanasar v R [2021] NSWCCA 178 at [269].

Consideration

The complaint made under this ground was a narrow one. During the hearing of the appeal, it was conceded that under a heading "Objective Seriousness" the sentencing judge listed all of the matters relevant to the objective seriousness of the offending. It was also conceded during the hearing that there is no obligation upon a sentencing judge to place offending at a particular point on a scale. It seems to me that the nub of the complaint under this ground is that after listing all of the factors relevant to the objective seriousness of the supply offence, his Honour did not go on to use an adjective to describe the seriousness of the offending.
There can be no doubt that the assessment of objective seriousness is a critical component of the sentencing process whether the offence carries a standard non-parole period ("SNPP") or not: R v Campbell [2014] NSWCCA 102 at [27] per Simpson J (as her Honour then was) (with whom Hall J agreed).
In Delaney v R; R v Delaney [2013] NSWCCA 150, the Crown contended that the sentencing judge had failed to determine the objective criminality of the offences. Hoeben CJ at CL (with whom the other members of the court agreed) dismissed that ground and in doing so observed the following at [56]: "While it is true that his Honour did not in terms assess the objective gravity of the offending, he did specifically refer to the factors which bore upon its objective seriousness. His Honour took account of the amount involved, the role of the appellant, the nature of the conduct and the period over which it took place. While it may have been preferable for his Honour to have made a specific assessment of the objective seriousness of the offending, he did implicitly do so. I am satisfied that the factors to which his Honour referred were relevant and important and were given proper weight in the sentencing process. While his Honour may not have expressly determined the objective criminality of the offences, he clearly took that into account."
In Yeung v R [2018] NSWCCA 52, McCallum J (as her Honour then was), with whom Hoeben CJ at CL and Simpson JA agreed, observed the following regarding the task required to be undertaken by a sentencing judge at [30]: "While it may be accepted that a bare recitation of the facts and the objective features of the offence may not, of itself, demonstrate adherence to the requirements of the sentencing task, it must equally be accepted, in my respectful opinion, that the failure to attach a specific label to the objective seriousness of the offence will not necessarily demonstrate a failure to undertake the necessary task of making an assessment of objective seriousness as one of the factors relevant to the value judgment as to what is the appropriate sentence in all the circumstances. The task for the appellate Court is to consider whether, reading the sentencing judgment fairly as a whole, there has been a failure to make that essential assessment."
In Naberezhnov v R, Adamson J (as her Honour then was), with whom Harrison and Bellew JJ agreed, rejected an argument that the sentencing judge had failed to properly assess the objective seriousness of two counts. In doing so, her Honour observed the following at [63]-[65] (footnotes omitted): "[63] In considering this ground, it is necessary to emphasise two matters at the outset. [64] The first, is that the assessment of the objective seriousness of an offence is a critical requirement of the sentencing process. The importance of satisfying that requirement stems from a number of factors. They include the fact that one of the purposes of sentencing is to ensure that the offender is adequately punished for the offending, as well as the fact that a sentence should not exceed, or be less than, what is proportionate to the gravity of the crime. Such a requirement is not satisfied by a bare recitation of the facts constituting the offence(s), and a reference to the objective circumstances. [65] The second, is that the giving of reasons is an incident of the judicial process. In a case where the parties join issue (as they did in this case as to the objective seriousness of the offending) the requirement to give reasons means that the judge must engage with, and analyse, the competing submissions, and explain why those advanced by one party have been accepted over those advanced by the other. In doing so, it is incumbent upon the judge to expose the process of reasoning in which he or she engaged in order to reach that conclusion."
The relevant principles were recently restated in DH v R [2022] NSWCCA 200 by Yehia J at [58]-[60] as follows: "[58] Some degree of confusion remains as to whether a sentencing judge is obliged to indicate 'where on the scale of seriousness each offence falls' when dealing with an offence which carries a standard non-parole period. The applicant submitted that the sentencing judge was obliged to utilise the concept of mid-range offending [emphasis added] and assess where on the scale of seriousness the offending for the offences which carried a standard non-parole period lay. [59] To be clear, there is no such obligation or requirement. In Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 (Muldrock) at [29] the High Court said that the standard non-parole period legislation: '[I]s not to be understood as suggesting either the need to attribute particular mathematical values to matters regarded as significant to the formulation of a sentence that differs from the standard non-parole period, or the need to classify the objective seriousness of the offending. It does require the judge to identify fully the facts, matters and circumstances which the judge concludes bear upon the judgment that is reached about the appropriate sentence to be imposed'. [60] The assessment of objective seriousness of an offence is an essential element of the process of instinctive synthesis, a purpose of which is the imposition of a proportionate sentence: Zreika v R [2012] NSWCCA 44 at [46]; R v Dodd (1991) 57 A Crim R 349 at 354; Khoury v R [2011] NSWCCA 118. A sentencing judge is required to identify all the factors relevant to the objective seriousness of an offence but is not required to nominate a point on the scale of seriousness by reference to a notional mid-point. The use of descriptors such as 'low end of the middle of the range', 'upper end of the middle of the range' or, 'just below or above the midpoint' add nothing of value to the process of instinctive synthesis and the determination of a proportionate sentence." (Emphasis in original.)
Although counsel for the applicant accepted all of these principles were applicable, it was contended that more was required in the present matter because there was a dispute between the parties that needed to be resolved: the Crown had contended that a finding of "mid-range" seriousness should be made in relation to the supply charge whereas it was contended on behalf of the applicant that a finding of "below mid-range" seriousness should be made. The difficulty with this contention is that there was no dispute between the parties as to the factors which were relevant to that finding; only as to where on the "scale" of objective seriousness the combination of those factors landed. Given that there is no requirement to make such a finding, the fact that the sentencing judge identified all the (uncontested) factors relevant to the objective seriousness of an offence meant that there was transparency in his Honour's reasons as to the basis upon which the applicant was sentenced.
The Crown had provided written submissions to the sentencing judge on sentence and under the heading "Objective seriousness of the drug supply offences" listed the factors relied upon as supporting a finding of mid-range seriousness as being role and participation; quantity and purity; number of supplies and planning involved; and relevance of controlled operation - moral culpability and harm caused. When one has regard to the matters relevant to the objective seriousness itemised by his Honour at [99] it can be seen that his Honour set out matters establishing that this was an objectively serious example of the supply of a large commercial quantity of cocaine.
It is significant that all of the matters enumerated by his Honour at [99] were matters which made the offending objectively serious. None of them were matters capable of reducing the objective seriousness of that offending. Those features of the applicant's offending in supplying the large commercial quantity of cocaine to the UCO were identified by his Honour: 1. It involved supplying significant quantities of cocaine on seven separate occasions; 2. The amount supplied was three times the large commercial quantity; 3. Each supply involved some planning through negotiations, the making of arrangements, meetings, telephone conversations and text messages in code; 4. The applicant used a number of mobile telephones, code and changed vehicles to avoid detection; 5. The applicant had access to substantial quantities of cocaine through others; 6. The purity of the drug varied, but the applicant was able to supply some drugs of a higher purity; 7. The applicant was an active participant in the criminal organisation; 8. The applicant stated that he could arrange imports of heroin and participated in discussions with the UCO and others about doing so; 9. The total value of the cocaine supplied was $587,500; 10. There was a further agreement in place to supply 0.5 kilograms of cocaine for $110,000 in place at the time of the offender's arrest. If the cocaine was disseminated to end users that would have been an aggravating factor, but the fact that it was not, is not a mitigating factor; and 11. The offence was committed over an extended period of 10 about months.
As stated above, there was no factual dispute between the parties as to any of these matters. There is nothing to suggest that his Honour did not accept all of the Crown submissions on this issue, and it is tolerably clear that his Honour was satisfied that the offending was objectively serious based on the factors identified by his Honour at [99].
A similar complaint was made in Bektasovski v R [2022] NSWCCA 246 where Beech-Jones CJ at CL (with whom Kirk JA and Yehia J agreed) observed the following at [11]: "… Numerous High Court authorities refer to an assessment of the 'objective seriousness' or the 'gravity' of the offending (eg, Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [70]; Director of Public Prosecutions (Vic) v Dalgliesh (A Pseudonym) (2017) 262 CLR 428; [2017] HCA 41 at [53]; Minogue v Victoria (2018) 264 CLR 252; [2018] HCA 27 at [39]). However, there is no prescribed set of descriptors that must accompany any such assessment. Where a standard non-parole period is prescribed under s 54A of the Sentencing Act, it is common for sentencing judges to locate the objective seriousness of an offence on a hypothetical range of seriousness for such offences. However, that is not obligatory for such offences (s 54B(6); Tepania v R [2018] NSWCCA 247 at [110] per Johnson J). That is even more so with offences that do not carry standard non-parole periods. In some cases an attempt to locate the objective seriousness offence on a hypothetical range of seriousness can be unhelpful (Paterson v R [2021] NSWCCA 273 at [32] to [33])."
In turning to consider the findings of the sentencing judge in Bektasovski v R, his Honour went on the observe the following at [12]: "The essence of the complaint in this case is that, even though the sentencing judge described numerous factors affecting the assessment of the objective seriousness of the offences, his Honour did not actually undertake or record the assessment itself. I reject that contention. The complaint accurately describes the effect of [12] to [16] of the sentencing judgment set out above. However, [42] of the sentencing judgment records his Honour's overall assessment that 'objectively serious offences' were committed. This suffices. Although, it may not be elegant to assess objective seriousness by using the description 'objectively serious' it is nevertheless informative. It stands in contrast to an assessment that offences are relatively minor, insignificant or, to use the hypothetical range, at the lower end of the scale. In Simpson v R [2014] NSWCCA 23 ('Simpson'), Hoeben CJ at CL (with whom Adams and R A Hulme JJ agreed) concluded, in relation to the sentencing judgment in that case, that '[h]is Honour did all that was required of him by assessing both offences as being 'objectively very serious offences'.' The assessment of objective seriousness in this case was accompanied by a far more detailed analysis of the relevant factors than occurred in Simpson."
The only difference between that case and the present case is that the sentencing judge in Bektasovski v R described the offences collectively as being "objectively serious" offences" whereas the judge in the applicant's case did not. Despite this, the sentencing judge in the present case listed all of the factors relevant to the assessment of objective seriousness under a heading of "Objective Seriousness".
Given the detailed list of factors which went to the assessment of the objective seriousness of the offending identified by his Honour at [99] of his reasons, I am not satisfied that he failed to discharge his duty to consider the objective seriousness of the offending.
In relation to the submission that the sentencing judge considered that the agreement in place to supply 0.5 kilograms of cocaine extended the applicant's criminality, his Honour clearly stated that if the cocaine was disseminated to end users that would have been an aggravating factor, but the fact that it was not was not a mitigating factor: at [99].
As for the objective seriousness of the instrument of crime offence, neither party made any submission to his Honour that he was required to assess its objective seriousness by reference to any notional scale. Despite this, the Crown did, as with the supply offence, identify the factors relevant to the assessment of the seriousness of that offence in written submissions which were adopted by his Honour. His Honour noted that the value of the cigarettes was $860,000; they were intended to facilitate the "serious drug supply offence"; the applicant knew that the tobacco was illegal and being traded for an illegal substance; and with that knowledge he received the cigarettes, possessed them and disposed of them; and the offending was committed over an extended period of about 10 months.
The applicant complained that the sentencing judge failed to specifically assess "where the applicant lay in any supply chain". Again, as the Crown submitted in response to this argument, there is no such requirement. Furthermore, as Wright J, with whom Leeming JA and Bellew J agreed, observed in McLean v R [2020] NSWCCA 344 at [51], there is a risk that labelling offending by reference to a supply chain distracts from the task at hand of examining what the offender did or did not do. In any event, the sentencing judge did have regard to the applicant's "active" involvement, his access to large quantities of cocaine, ability to access drugs of a higher purity, and his assertions that he could arrange the importation of heroin.
A further complaint made under this ground, but which overlaps with ground 2, is that the failure by the sentencing judge to make an assessment of objective seriousness made it difficult to compare this sentence with other sentences in order to ascertain whether it was manifestly excessive. I do not accept this submission. A comparison with other cases could easily be made given all the factors are numerate and identified by his Honour at [99] of his reasons. I shall address that argument further under ground 2.
I would dismiss this ground.

Applicant's submissions

The applicant submitted that the aggregate sentence is manifestly excessive having regard to the objective seriousness of the offences and the applicant's subjective circumstances. It was noted that the degree of notional accumulation for the two offences was one year of imprisonment.
The applicant accepted that it is difficult to discern a specific error in relation to the length of the indicative sentences and the degree of notional accumulation, but submitted that their combination resulted in a sentence that was excessive. The applicant repeated the submission made under ground one that the question of manifest excess is difficult to judge without an assessment of the objective seriousness of the offences.
The applicant submitted that statistics could assist in identifying sentencing patterns. The applicant relied on Judicial Information Research System ("JIRS") statistics that show that of 315 offenders sentenced between 24 September 2018 and 30 June 2020, 95.2% (300) received a sentence of full-time custody ranging between 2 years and 16 years. Sentences of 9 years were imposed in 5.7% of cases and sentences of more than 9 years were imposed in 6.3% of cases.
The applicant also relied on cases that were said to be comparable, including decisions in which offenders received a term of 9 years' imprisonment for an offence of supply large commercial quantity drug and decisions said to be similar in terms of the applicant's offending.
The applicant contended that the sentencing judge may have taken an erroneous approach to the notional accumulation of the indicative sentences and did not properly consider the principle of totality. It was submitted that the facts and circumstances of the two offences involve considerable overlap as they were committed within the same course of conduct, and the motive for the instrument of crime offence was the commission of the supply offence. It was thus submitted that the duration of the indicative sentences and the extent of their accumulation resulted in a head sentence that may not have properly accounted for that overlap, resulting in an aggregate sentence that reflected a greater criminality than the offender's conduct: Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1 at [27].

Crown submissions

The Crown set out the principles governing the use of comparable cases, which I have considered below. In addition to recognising the limitations of the comparable cases in establishing a range of sentences, the Crown submitted that the decisions relied upon by the applicant as being "comparable" in fact all had several factors that distinguished them and thus they provide little assistance.
The Crown also submitted that the aggregate sentence imposed needed to reflect, by way of notional accumulation, the fact that the instrument of crime offence was not insignificant and involved "different criminality" to the supply offence. This was because the applicant knew that the cigarettes he received as payment for supplying the drugs were themselves illegal.
The Crown submitted that the aggregate sentence imposed on the applicant is not unreasonable or plainly unjust, having regard to a number of factors which I have considered below.

Consideration

The applicant contends that his aggregate sentence is manifestly excessive. In Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 R A Hulme J (with whom Bathurst CJ, Leeming JA, Hamill J and I agreed) provided the following summary of the relevant principles to apply when considering a ground of appeal asserting manifest excess at [443]: "When it is contended that a sentence is manifestly excessive it is necessary 1to have regard to the following principles derived from House v The King 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 (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."
It is well established that only the aggregate sentence can be appealed, although error in relation to an indicative sentence may be a guide as to whether there was an error in the aggregate sentence. As Wright J observed in Merheb v R [2021] NSWCCA 224 at [77] (Payne JA and Price J agreeing): "… [W]hen an aggregate sentence is challenged on the ground of manifest excess the following principles are also applicable: (1) an indicative sentence is not itself amenable to appeal, although error in relation to an indicative sentence may be a guide as to whether there is error in the aggregate sentence; and (2) where an indicative sentence is assessed as being manifestly excessive, it does not necessarily follow that an aggregate sentence is manifestly excessive- the relevant question in that circumstance will be whether the aggregate sentence reflects the totality of the criminality involved: Jackson v R [2021] NSWCCA 15 at [116] (Price J, Hoeben CJ at CL and Fagan J agreeing); JM v R [2014] NSWCCA 297; 246 A Crim R 528 at [39] and [40] (RA Hulme J, Hoeben CJ at CL and Adamson J agreeing)."
The applicant's complaint under this ground was, in effect, a complaint as to the application of the totality principle. But the question is whether the aggregate sentence imposed on the applicant for the two counts is unreasonable and plainly unjust. One basis upon which such a conclusion may be reached is when there has been such a significant degree of accumulation that a conclusion can be drawn that the aggregate sentence is manifestly excessive. But in this case the applicant will only serve one more year for the instrument of crime offence in circumstances where the indicative sentence for that offence was 5 years' imprisonment.
The applicant accepted that some notional accumulation was appropriate but contended that one year was too much given the overlap in criminality between the two offences. But the fact remains that the applicant effectively traded one illegal substance for another: on any view that will very often be more significant criminality than trading one illegal substance for money, and the aggregate sentence appropriately reflected that additional criminality. I am not satisfied that the accumulation of one year leads to the conclusion that the sentence imposed was unreasonable or plainly unjust.
Overall, in considering whether the aggregate sentence imposed is unreasonable and plainly unjust I have had regard to the following factors: 1. The maximum penalty for supplying the large commercial quantity of cocaine is life imprisonment. It carries a standard non-parole period of 15 years' imprisonment; 2. The quantity of drug supplied was three times the threshold for a large commercial quantity of cocaine; 3. The applicant supplied the undercover operative with cocaine on seven occasions (including the agreement to supply) over an extensive period; 4. Five out of the seven supplies were of high purity and in large quantities; 5. The applicant was able to source substantial quantities of cocaine at short notice; 6. The applicant was an integral and significant part of the supply chain. The applicant negotiated price, supplied the drugs, demonstrated awareness of the purity of the drugs and was able to provide advice as to availability and quantity; 7. The value of the drugs supplied was significant ($708,000 comprised of $11,000 cash, $587,000 worth of cigarettes and $110,000 for the cocaine agreed to be supplied); 8. The applicant used methods to avoid detection such as communicating in code, utilising multiple phones, changing cars, and removing the battery from his phone prior to meetings; 9. In respect of the offence of dealing with property intending that it become an instrument of crime, the objective seriousness was elevated by the significant value of the property and the extended period over which the applicant dealt with it. The applicant knew the cigarettes were illegal and had facilitated the commission of illegal drug supply. The applicant dealt with the cigarettes by receiving, possessing and disposing of the cigarettes; 10. The applicant did not enjoy the benefit of a finding of remorse as a mitigating factor pursuant to s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999 (NSW). Rather, he was found to have tailored what he told Mr Awit to procure a favourable report for the sentence proceedings; 11. A finding of special circumstances was made in the applicant's favour which allowed a 4 year period on parole (40% of the full term) which was ample time for the applicant to rehabilitate into the community; and 12. General deterrence assumed significance in determining the appropriate sentence.
As for the reliance upon the sentencing statistics published by the Judicial Commission, it is often said that they are a "blunt tool" for assessing whether or not a sentence is manifestly excessive. In Hili v the Queen (2010) 242 CLR 520; [2010] HCA 45, the plurality citing what was said by Simpson J (as her Honour then was) in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 19, made the following remarks at [54]-[55]: "[54] In Director of Public Prosecutions (Cth) v De La Rosa, Simpson J accurately identified the proper use of information about sentences that have been passed in other cases. As her Honour pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said: 'Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts.' But the range of sentences that have been imposed in the past does not fix 'the boundaries within which future judges must, or even ought, to sentence'. Past sentences 'are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence' (emphasis added). When considering past sentences, 'it is only by examination of the whole of the circumstances that have given rise to the sentence that 'unifying principles' may be discerned'. [55] As the plurality said in Wong: '[R]ecording what sentences have been imposed in other cases is useful if, but only if, it is accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal. The production of bare statistics about sentences that have been passed tells the judge who is about to pass sentence on an offender very little that is useful if the sentencing judge is not also told why those sentences were fixed as they were.'"
This is not a case when any particular assistance can be gained from the Judicial Commission statistics.
Finally, I turn to the comparable cases relied upon by the applicant in support of this ground. The applicant annexed the case details for 18 decisions involving offenders that received a term of 9 years' imprisonment for an offence of supply of large commercial quantity of a prohibited drug. The applicant summarised six of those cases as their citations were on JIRS. This included Faraj v R [2022] NSWCCA 31; Naberezhnov v R [2021] NSWCCA 142; R v Chami; R v Hassoun; R v Halloum [2021] NSWDC 519; A v R [2020] NSWCCA 145; Huang v R [2019] NSWCCA 144; R v Andrew Lee Black; R v Rowan Alistair Connell [2019] NSWDC 756. The applicant also summarised the following four cases that were considered to be comparable: R v Andrew Lee Black; R v Rowan Alistair Connell: Newman (a pseudonym) v R [2019] NSWCCA 157; Lee v R [2019] NSWCCA 106; Nye v The Queen [2018] NSWCCA 244; Briouzguine v R [2014] NSWCCA 264.
The applicant also annexed a schedule of seven cases that were said to bear more similarities to the applicant's offending, particularly as to conduct and relative quantity of drug. This included Pham v R [2014] NSWCCA 115; Naberezhnov v R [2021] NSWCCA 142; Rodgers v R [2018] NSWCCA 47; Rodriego (a Pseudonym) v The Queen (2021) 293 A Crim R 308; [2021] NSWCCA 237; Hadler v R [2020] NSWCCA 305; Parkinson v The Queen [2021] NSWCCA 98; and Khoury v R [2020] NSWCCA 190. The applicant submitted that these cases show that the indicative sentences imposed on the applicant for the supply offence are comparatively high, although it was accepted that similar offences have been imposed for offences involving broadly similar roles and quantities of drugs.
I do not propose to go through all of them but an examination of some of them will suffice.
In Rodgers v R [2018] NSWCCA 47, this Court (Hoeben CJ at CL, Johnson J and I) held that a total sentence of 9 years and 6 months' imprisonment with a non-parole period of 7 years was not manifestly excessive for the supply of 1 kilogram of cocaine (and the offer to supply another 1 kilogram). That applicant had pleaded guilty in the Local Court and was afforded a 25% discount. That means that the starting point was higher even though it involved a lesser quantity. The applicant in that matter had acted as a "middle man", facilitating the offer and supply of two kilograms of cocaine.
In Rodriego (a Pseudonym) v The Queen (2021) 293 A Crim R 308; [2021] NSWCCA 237, this Court (Brereton JA, Bellew and Campbell JJ) upheld an appeal by an offender who had been sentenced for the ongoing supply of firearms and the supply of between 3 to 4 kilograms of cocaine. The significant difference in that matter was that the applicant had provided assistance and pleaded guilty at an early opportunity. He was afforded a discount of 45%, reducing his sentence such that he received an aggregate sentence of 8 years with a non-parole period of 6 years for these two offences.
In Naberezhnov v R [2021] NSWCCA 142, this Court dismissed an appeal against an aggregate sentence of 12 years' imprisonment with a non-parole period of 8 years for the ongoing supply of cocaine (193.8 grams), the supply of a large commercial quantity of MDMA (2.2835 kilograms) and the supply of MDMA (95.5 grams). The applicant had pleaded guilty at the first available opportunity and was found to be exhibiting symptoms consistent with a depressive disorder. He was genuinely remorseful with good prospects of rehabilitation. He had a criminal history. Although the court was satisfied that the sentencing judge had erred, the appeal was dismissed on the basis that the court was not satisfied that any lesser sentence was warranted having regard to the significant maximum penalties prescribed for the offending and the need for any sentence to reflect general and personal deterrence.
None of the cases said to be comparable suggest that the aggregate sentence imposed on the applicant was unreasonable or plainly unjust. Each of them can be distinguished in some way. Some of them received a greater discount, some of them had stronger subjective cases, some of them sold higher and lower quantities of drugs, some had criminal histories, and some did not. Some received higher sentences than the applicant did.
The applicant has not established that his aggregate sentence is unreasonable and plainly unjust.
I would dismiss this ground as well.
Accordingly, the orders I would propose are: 1. Leave to appeal is granted. 2. The appeal is dismissed.

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: 24 May 2023

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (14 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (56)

Cited By (4)