Labban v R

Court of Criminal Appeal (NSW)|2022-08-05|Before: Bell CJ, Mitchelmore JA, Hamill J

HEADNOTE [This headnote is not to be read as part of the judgment] The applicant, Paul Labban, sought leave to appeal against the sentence of imprisonment imposed by Colefax SC DCJ sitting in the District Court at Campbelltown on 19 February 2021, following his pleas of guilty to two offences of supply commercial quantity of a prohibited drug contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) ("DMT Act"), namely, 366.14 grams of cocaine (Count 1) and 284.89 grams of methylamphetamine (Count 2). The sentencing judge took three further offences into account on a Form 1 attaching to Count 1, pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW), namely: resist officer in the execution of duty, possess prohibited drug, and supply prohibited drug (deemed). The offending conduct involved the applicant supplying the drugs the subject of the charges to an undercover police officer, in the context of a controlled operation, in seven transactions between 6 November 2018 and 18 December 2018. Four of the seven transactions involved the supply of cocaine, one transaction involved methylamphetamine, and two of the transactions involved the supply of both cocaine and methylamphetamine. The applicant was sentenced to an aggregate term of imprisonment of 7 years with a non-parole period of 5 years and 3 months. Two co-offenders, Billy Maskaleh and Ali Elkobaitri, were involved in some of the same transactions, and stood for sentence at the same time as the applicant, having also entered pleas of guilty. They were sentenced to terms of imprisonment of 5 years and 6 months (with a non-parole period of 3 years and 3 months) and 3 years and 4 months (with a non-parole period of 2 years) respectively. The applicant advanced four grounds of appeal: (1) The sentencing judge failed to give adequate reasons for the differences in the sentences imposed on each of the applicant's co-offenders, Mr Maskaleh and Mr Elkobaitri (Ground 1). (2) The applicant had a justifiable sense of grievance in light of the sentence imposed on Mr Maskaleh (Ground 2). (3) The sentencing judge failed to apply the principle of totality and/or failed to give adequate reasons for the extent of notional accumulation inherent in the aggregate sentence imposed (Ground 3). (4) The degree of notional accumulation inherent in the aggregate sentence imposed is excessive (Ground 4). The Court (Mitchelmore JA, Bell CJ and Hamill J agreeing), granting leave to appeal, but dismissing the appeal, held: In relation to Grounds 1 and 2: (1) Although the sentencing judge did not refer expressly to parity, his Honour's awareness of the principle and the need to apply it was sufficiently apparent from his reasons. His Honour was dealing with a series of transactions in which at least two of the offenders, and sometimes all three, were involved. After addressing the common set of agreed facts, his Honour assessed the relative objective seriousness of their offending conduct and their relative subjective cases: [1], [27], [40]. Huckstadt v R [2016] NSWCCA 22; Chamon v R [2020] NSWCCA 112 applied. (2) Notwithstanding that his Honour found that there was no hierarchy in terms of the supply transactions which took place, differences remained which his Honour drew out in the course of his remarks on sentence, including: the different charges to which the applicant and Mr Maskaleh pleaded guilty; the fact that the applicant dealt directly with the undercover officer; the applicant supplied larger quantities of cocaine and methylamphetamine; the applicant was on an Intensive Corrections Order at the time of the offending and had a criminal record; and his prospects of rehabilitation were poor: [1], [28], [40]. In relation to Grounds 3 and 4: (3) There is no particular degree of specificity required of a sentencing judge in applying the totality principle in reasons, beyond giving an indication that sentences might be concurrent or accumulated, partly or wholly. In circumstances where it was clear from the reasons that his Honour applied the principle of totality, the absence of an express reference to the principle from his Honour's reasons did not give rise to any error of the nature for which the applicant contended: [1], [33]-[34], [40]. Hall v R [2021] NSWCCA 220; JT v R [2012] NSWCCA 133 applied. (4) The methylamphetamine supplies, in particular the sixth transaction, involved additional criminality on the part of the applicant. It was open to the sentencing judge to consider that the additional criminality warranted a degree of accumulation. The accumulation on which his Honour settled for the applicant was not unreasonable nor was it plainly unfair, having regard to the totality of the criminality comprehended by the sentence: [1], [37], [40].

Judgment

BELL CJ: I agree with Mitchelmore JA.
MITCHELMORE JA: The applicant, Paul Labban, seeks leave to appeal against the sentence of imprisonment imposed by Colefax SC DCJ sitting in the District Court at Campbelltown on 19 February 2021, following his pleas of guilty to two offences of supply commercial quantity of a prohibited drug contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) ("DMT Act"), namely, 366.14 grams of cocaine (Count 1) and 284.89 grams of methylamphetamine (Count 2). The sentencing judge took three further offences into account on a Form 1 attaching to Count 1, pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW), namely: resist officer in the execution of duty, possess prohibited drug, and supply prohibited drug (deemed).
The applicant was sentenced to an aggregate term of imprisonment of 7 years with a non-parole period of 5 years and 3 months. The sentencing judge backdated the sentence to commence on 18 December 2018, being the date the applicant was arrested. His Honour declined to make a finding of special circumstances.
The applicant advanced four grounds of appeal: 1. The sentencing judge failed to give adequate reasons for the differences in the sentences imposed on each of the applicant's co-offenders, Billy Maskaleh and Ali Elkobaitri. 2. The applicant has a justifiable sense of grievance in light of the sentence imposed on one of his co-offenders, being Mr Maskaleh. 3. The sentencing judge failed to apply the principle of totality and/or failed to give adequate reasons for the extent of notional accumulation inherent in the aggregate sentence imposed. 4. The degree of notional accumulation inherent in the aggregate sentence imposed is excessive.
The applicant addressed Grounds 1 and 2 together in the written submissions, and counsel for the applicant confirmed at the hearing that they were essentially a combined complaint as to parity. As the applicant also addressed Grounds 3 and 4 together in the written submissions, I will address them as a combined complaint regarding totality and the degree of notional accumulation.
For the reasons set out below, I would grant leave to appeal and dismiss the appeal.

The offending conduct

The applicant supplied the drugs the subject of the charges to an undercover police officer, in the context of a controlled operation, in seven transactions between 6 November 2018 and 18 December 2018. Four of the seven transactions involved the supply of cocaine, one transaction involved methylamphetamine, and two of the transactions involved the supply of both cocaine and methylamphetamine.
Two other persons were involved in some of these transactions, and stood for sentence at the same time as the applicant, having also entered pleas of guilty: 1. Mr Maskaleh was charged with the following offences: 1. supply commercial quantity of a prohibited drug (302.07 grams of cocaine), contrary to s 25(2) of the DMT Act; 2. ongoing supply of a prohibited drug (206.5 grams of methylamphetamine), contrary to s 25A(1) of the DMT Act; and 3. possess prohibited weapon (a taser), contrary to s 7(1) of the Weapons Prohibition Act 1998 (NSW) ("WP Act"). Further charges of possess prohibited weapon (an extendable baton), contrary to s 7(1) of the WP Act, and possessing proceeds of crime ($12,230), contrary to s 193B(2) of the Crimes Act 1900 (NSW), were taken into account on a Form 1. Mr Maskaleh was sentenced to imprisonment for an aggregate term of 5 years and 6 months, with a non-parole period fixed at 3 years and 3 months (upon a finding of special circumstances). 1. Mr Elkobaitri was charged with ongoing supply of a prohibited drug (203 grams of cocaine), contrary to s 25A(1) of the DMT Act, in relation to three of the transactions. Two further charges, deemed supply prohibited drug (2227.2 grams of cannabis leaf), contrary to ss 25(1) and 29 of the DMT Act, and possess proceeds of crime ($2,500) contrary to s 193B(2) of the Crimes Act, were taken into account on a Form 1. Mr Elkobaitri was sentenced to imprisonment for 3 years and 4 months with a non-parole period of 2 years (upon a finding of special circumstances).
The sentencing judge proceeded by reference to his own set of "redrafted" facts, in which he detailed the seven transactions and the involvement of each of the applicant, Mr Maskaleh and Mr Elkobaitri. His Honour noted on the final day of the hearing that all parties had been given an opportunity to comment on the redraft at an earlier hearing and to submit written comments. Looking at the transcript of the last occasion on which the matter was before his Honour, it is not clear that the parties necessarily understood that this was how his Honour proposed to proceed. Nonetheless, no offender took any objection to the facts as his Honour found them, and no ground of denial of procedural fairness is raised in this Court on that basis.
The transactions were as follows: 1. On 5 November 2018, the undercover officer contacted the applicant, who agreed to supply her with an amount of cocaine. The applicant sourced the cocaine from Mr Maskaleh in exchange for $800. On 6 November 2018, the applicant met the officer and provided her with a bag containing 3.48 grams of cocaine in exchange for $1,000. 2. On 12 November 2018, the undercover officer contacted the applicant requesting 2 ounces of cocaine (one ounce being 28.35 g). On 13 November 2018, the applicant contacted Mr Maskaleh who indicated that he could supply the requested cocaine. Following negotiations as to price, Mr Maskaleh provided the applicant with two ounces of cocaine at $7,000 per ounce. On 20 November 2018, the applicant met the undercover officer and gave her two bags, one containing 27.8 grams of cocaine and the other 27.9 grams, in exchange for $15,200. 3. On the same day that they engaged in the second transaction, the applicant and the undercover officer made an agreement for the supply of a further ounce of cocaine. Mr Maskaleh agreed to provide the applicant with one quarter of an ounce (7 grams) for $1,900. Later that same day, the applicant met with the undercover officer and provided her with 27.7 grams of cocaine for $7,600. 4. On 25 November 2018, the undercover officer contacted the applicant and he agreed to supply her with 2 ounces of cocaine. On 26 November 2018, after agreeing the price with the undercover officer, the applicant contacted Mr Maskaleh and ordered 1.5 ounces of cocaine. Mr Maskaleh contacted Mr Elkobaitri and asked him to obtain the 1.5 ounces. Mr Elkobaitri supplied Mr Maskaleh with that amount later that day, and Mr Maskaleh supplied it to the applicant that evening. On 27 November 2018, the applicant supplied the officer with 2 ounces of cocaine in two bags, one containing 28 grams and the other 27.9 grams, in exchange for $15,200. 5. On 9 December 2018, the undercover officer contacted the applicant and they agreed that the applicant would supply her with 4 ounces of cocaine and 1 ounce of methylamphetamine. On 10 December 2018, the applicant contacted Mr Maskaleh and requested 2.5 ounces of cocaine. Mr Maskaleh, in turn, contacted Mr Elkobaitri and asked for that quantity of cocaine. Later that day, the applicant additionally requested 1 ounce of methylamphetamine. Mr Elkobaitri provided Mr Maskaleh with the requested cocaine, which Mr Maskaleh in turn gave to the applicant. On 11 December 2018, the applicant asked Mr Maskaleh for a further 0.25 ounces of cocaine, and revised his request of methylamphetamine from 1 ounce to 0.75 ounces. Mr Maskaleh provided the requested methylamphetamine to the applicant in exchange for $2,700; and later that day he provided the applicant with the further 0.25 ounces of cocaine, which he sourced from Mr Elkobaitri. That same day, the applicant provided the undercover officer with five bags in exchange for $34,400. Four of the bags contained cocaine (in respective amounts of 26.4 grams, 27.8 grams, 28 grams and 26.8 grams); and the fifth bag contained 28 grams of methylamphetamine. 6. On 12 December 2018, the undercover officer requested 4 ounces of methylamphetamine from the applicant. A few hours later, the applicant discussed the order with Mr Maskaleh, who said he would need to source an additional 2 ounces. Following negotiations, and as agreed, on 13 December 2018 Mr Maskaleh provided the applicant with 2 and 7/8 ounces of methylamphetamine in exchange for $10,000. Later that day, the applicant met the undercover officer who gave him $16,000 in exchange for two bags, one containing 55.2 grams of methylamphetamine and the second containing 55.5 grams. 7. On 16 December 2018, the undercover officer placed an order with the applicant for 5 ounces of methylamphetamine and 4 ounces of cocaine. Later that day, the applicant contacted Mr Maskaleh and told him he needed both drugs. On 17 December 2018, the applicant ordered 3 ounces of cocaine from Mr Maskaleh who, in turn, placed that order with Mr Elkobaitri, which was filled the same evening. On the evening of 18 December 2018, after the applicant had, earlier in the day, confirmed the order for cocaine and placed an order for 3.75 ounces of methylamphetamine, Mr Maskaleh supplied him with the requested amounts of both drugs. Shortly thereafter, the applicant met the undercover officer, who gave him $50,400 in exchange for a number of bags found to contain 112.4 grams of cocaine and 137.6 grams of methylamphetamine.
Shortly after the seventh transaction, police approached the applicant and ordered him to get out of the undercover officer's vehicle. When he did not comply, police opened the door, took hold of the applicant and removed him from the vehicle. The applicant grabbed the arresting officer's hand; police struck him with two hammer strikes, causing him to let go. The applicant kept his right arm underneath his stomach before eventually giving police access to it so that he could be handcuffed. These matters constituted the resist arrest offence which was taken into account on the Form 1.
Police also found further drugs when they executed a search warrant at the applicant's home, namely methylamphetamine, which was taken into account as part of Count 2 on the indictment. Police also found cannabis leaf and MDA, which were taken into account on the Form 1.
It is apparent from the above summary that the applicant was involved in each of the transactions with the undercover officer. Mr Maskaleh was also involved in relation to each transaction, supplying the applicant with some portion of the cocaine and methylamphetamine that he required to fill the orders that the undercover officer placed with him. Mr Elkobaitri's involvement was limited to supplying cocaine for the fourth, fifth, and seventh transactions. He was not involved in the supply of any methylamphetamine.

Sentencing of the applicant, Mr Maskaleh, and Mr Elkobaitri

Each offender entered pleas of guilty at the first available opportunity in the Local Court, entitling them to the utilitarian discount on their sentences. The proceedings on sentence were heard in the District Court over three days between June and November 2020. Only Mr Maskaleh gave evidence.
In addition to the Agreed Facts which were superseded by his Honour's redraft, the Crown tendered the applicant's criminal and custodial histories, a sentencing assessment report ("SAR"), and documents relating to the revocation of an intensive corrections order ("ICO") that the applicant was subject to at the time of the offending (a s 166 certificate was also tendered but was ultimately dismissed). The applicant tendered a report from a forensic psychologist, various references, TAFE certificates showing vocational achievements in custody, and custodial case notes reporting positive progress. The materials showed that the applicant was 33 years old at the time of the offences. He told the forensic psychologist, Ms Megan Godbee, that he began a relationship in his late 20s in which he and his girlfriend used cocaine five times a week. He told the author of the SAR that this led him to commit the offences "as a way to make quick money and fund his own drug habit".
The applicant's solicitor submitted to the sentencing judge that his client's role was at "the bottom of a notional hierarchy or at least at a lower level than his co accused". Further, he argued that the applicant's role was "at the bottom, Maskaleh is in the middle and Elkobaitri at the top". The Crown's submission was that there was "[not] a great disparity between the three on the basis of the agreed facts …" but that Mr Elkobaitri appeared "to have exercised some level of authority over his co-offenders". The applicant submitted that his sentences should be wholly concurrent, whereas the Crown submitted "some degree of accumulation" was "warranted between the two commercial quantity supply offences", relying on Noufl v R [2020] NSWCCA 10 at [59]-[60].
In terms of the objective seriousness of the applicant's offending, his Honour found that there was no "hierarchy of role or responsibility" between the three offenders: at [77]. Each offender, his Honour said, bore "equal criminal and moral responsibility with his co-offender or co-offenders": at [78]. However, the applicant was on an ICO at the time of the offending, which his Honour found was "a significant additional aggravating factor": at [93]. His Honour found that each of the offences for which the applicant was to be sentenced was in the "mid-range" and that general and specific deterrence were both "fully engaged": at [95]. As to the applicant's Form 1 offences, his Honour considered that the resist officer and deemed supply of MDA charges would not result in a meaningful increase in the sentence, while the cannabis possession would result in a "slight increase" on Count 1: [92].
In terms of the applicant's subjective circumstances, his Honour referred to the applicant having told the psychologist that he had a "dysfunctional upbringing", which was in contradistinction to the SAR which reported a close relationship between the applicant and his parents: [130]. His Honour noted that the applicant's work history had not been stable because of his long-term issues with drugs, which he started using when he was 17 years old: [131]-[133]. His Honour found that the applicant had "little insight into the impact of his offending on the broader community" and had been selling drugs both to support his habit and for profit. Apart from the applicant having offended when subject to an ICO, the ICO related to a previous supply offence, and he also had previous drug-related convictions: [137]. His Honour was of the view that the applicant had "not expressed meaningful remorse" and that his prospects of rehabilitation were "poor": [138]-[139].
In relation to Mr Maskaleh, his Honour found that his offence contrary to s 25(2) of the DMT Act was slightly below the mid-range, and his offence contrary to s 25A(1) of the DMT Act was in the mid-range. The charge in relation to the taser was found to be toward, but not at, the bottom of the range. He had no additional aggravating features. Specific and general deterrence were, again, "fully engaged".
In terms of Mr Maskaleh's subjective circumstances, he was 35 years old and had a poor work history since leaving school in Year 10 as a below average student: [116]. He had been using cannabis and cocaine since he was 16 years old until his arrest; he also had a significant gambling habit and a generalised anxiety disorder: [117], [120], [126]. His Honour found that Mr Maskaleh was dealing drugs in part to support his habit and in part for profit: [121]. His Honour was "guarded" as to his prospects of rehabilitation, finding that he was "just going through the motions" in his expressions of remorse and assessing his support in the community as "very limited": [122]-[124], [127]. However, unlike the applicant (and Mr Elkobaitri), Mr Maskaleh was entitled to some leniency because of his lack of criminal history: [125].
In relation to Mr Elkobaitri, the sentencing judge assessed his offending as above the mid-range. In relation to the two offences on the Form 1, possession of the cannabis leaf would result in a meaningful increase in the sentence, while possession of $2,500 would not: [85]-[87]. There were no additional aggravating factors: [93]. Again, both specific and general deterrence were "fully engaged".
As to Mr Elkobaitri's subjective circumstances, he was 35 years old at the time of sentencing and had endured domestic violence in his early years that was sufficiently significant to characterise it as dysfunctional and reduce his moral culpability: [100]. He left school in Year 10 and ran his own business until 2019. As with the applicant and Mr Maskaleh, he had long used illegal drugs, starting with cannabis and moving on to cocaine, and his attempts at rehabilitation were unsuccessful: [103]-[104]. His Honour described Mr Elkobaitri's expressions of remorse as second hand and "of the most minimalistic kind": [106]. He had a limited criminal history which disentitled him to leniency, although the current offending was the most serious he had engaged in: [108]-[109]. His Honour considered that his prospects of rehabilitation were reasonable, as he had support from his immediate and extended family: [110]-[111].
Counsel for the applicant pointed out that his Honour's finding of special circumstances in relation to Mr Elkobaitri was erroneous in so far as his Honour found it would be his first period of imprisonment, but the error was of no significance on the present application.

Grounds 1 and 2: The sentencing judge failed to give adequate reasons for the differences in the sentences imposed on each of the applicant's co-offenders, Mr Maskaleh and Mr Elkobaitri; and the applicant has a justifiable sense of grievance in light of the sentence imposed on Mr Maskaleh

As N Adams J (Basten AJA and Price J agreeing) observed in Jackson v R [2022] NSWCCA 148 at [72]-[74], the principles as to parity are well known, and it is unnecessary to canvass them in detail. It is sufficient to refer to what Leeming JA said in Miles v R [2017] NSWCCA 266 at [9], that as there will always be differences in the objective and subjective elements in a case involving multiple offenders, the question "is whether the sentence imposed on a co-offender is reasonably justified in light of those differences, bearing in mind the qualitative and discretionary judgments required of the sentencing judge". See also at [39]-[40] per Rothman J; [67] per Hamill J.
The applicant noted that the sentencing judge did not refer to the principles of parity or totality in his remarks on sentence in relation to any of the co-offenders. His Honour also stated the maximum penalties and standard non-parole periods (if any) applicable to each offence but did not otherwise indicate how they had been taken into account. These points fed into the applicant's submissions on Grounds 1 and 2, with counsel for the applicant submitting that his Honour's reasons fell short of enabling the applicant to understand how his case was differentiated from that of his co-offenders, which was compounded by the lack of detail his Honour provided in relation to the objective seriousness of the offending in each case. Although the applicant accepted that there were some aspects of the sentences where it could be discerned that parity principles had been applied, his central argument was that there were a number of factors that frustrated attempts to discern the reasoning behind the sentence.
Counsel submitted that the finding that there was no hierarchy and/or equal moral responsibility between the offenders elevated the need for his Honour to expose his reasoning as to the differences in the sentences. This was particularly important in relation to Mr Maskaleh, whose aggregate sentence was 18 months shorter than the applicant's and whose non-parole period was 2 years shorter. The applicant submitted that this difference was not reasonably justified, in circumstances where: 1. Mr Maskaleh was sentenced for a further substantive offence (possess prohibited weapon) which was a serious offence even if the offending conduct was of low objective seriousness; and 2. the subjective cases of Mr Maskaleh and the applicant were "comparable".
Counsel for the applicant emphasised in this regard the significant difference in the indicative sentences imposed for the count concerning supply of methylamphetamine (3 years for Mr Maskaleh and 4 years and 6 months for the applicant), in circumstances where the objective seriousness of the offence was assessed as in the mid-range for both offenders, and the Form 1 offences had no material bearing on the sentence.
The sentencing judge sentenced the three co-offenders at the same time, which put his Honour in a position to consider the interrelationship between the objective and subjective features of the offenders "in an overarching way": Huckstadt v R [2016] NSWCCA 22 at [90] per Button J (Johnson and Fagan JJ agreeing); see also Chamon v R [2020] NSWCCA 112 at [35]-[37] per RA Hulme J (Hamill and Wilson JJ agreeing). Although his Honour did not refer expressly to parity, his Honour's awareness of the principle and the need to apply it was sufficiently apparent from his reasons. His Honour was dealing with a series of transactions in which at least two of the offenders, and sometimes all three, were involved. After addressing the common set of agreed facts, his Honour assessed the relative objective seriousness of their offending conduct and their relative subjective cases.
His Honour's conclusion at [77] that he was not persuaded that there was any hierarchy of role or responsibility as between the three offenders was directly responsive to the principal submission that the applicant and Mr Maskaleh advanced on parity. Notwithstanding that his Honour found that there was no hierarchy in terms of the supply transactions which took place, differences remained which his Honour drew out in the course of his remarks on sentence. Focusing on the applicant and Mr Maskaleh, those differences included: 1. The applicant pleaded guilty to two offences pursuant to s 25(2) of the DMT Act, with his offending assessed as being in the mid-range for both; Mr Maskaleh pleaded guilty to one such offence (assessed as slightly below the mid-range) and an offence contrary to s 25A(1) of the DMT Act (in the mid-range). The latter had the same maximum penalty as the s 25(2) offence (20 years imprisonment), but no standard non-parole period (which was 10 years for the s 25(2) offence). 2. The applicant was the only offender who dealt directly with the undercover officer, negotiating the terms and sourcing the requisite quantity of the requested drug(s). 3. The applicant supplied the undercover officer with a larger quantity of cocaine (366.14 grams versus 302.7 grams) and methylamphetamine (284.89 grams versus 206.5 grams) than was supplied to him by Mr Maskaleh. 4. At the time of his offending, the applicant was serving a sentence by way of an ICO, which aggravated his offending. This aggravating factor did not apply to Mr Maskaleh. 5. The applicant had a criminal record which included previous convictions for drug offences (including the offence for which he was serving the ICO). Mr Maskaleh did not have a criminal record. 6. The applicant also had a possess cannabis charge taken into account on a Form 1, which his Honour considered would result in a slight increase for the supply cocaine offence. 7. His Honour assessed the applicant's prospects of rehabilitation as "poor": [139]. As to Mr Maskaleh, the sentencing judge said only that he regarded his prospects of rehabilitation as being "guarded", and was prepared to make an adjustment for special circumstances: [127].
The applicant also relied on the fact that Mr Maskaleh was sentenced for an additional substantive offence, being the possess weapon offence. However, given his Honour's assessment of the objective seriousness of that offending conduct as low, the additional offence does not give rise to an unjustifiable disparity as between the sentences for the applicant and Mr Maskaleh.
Having regard to the above differences, and bearing in mind the qualitative and discretionary judgments required of the sentencing judge, the difference in the sentence imposed on the applicant as compared with the sentence imposed on Mr Maskaleh was reasonably justified. Grounds 1 and 2 should be dismissed.

Grounds 3 and 4: The sentencing judge failed to apply the principle of totality and/or failed to give adequate reasons for the extent of notional accumulation in the aggregate sentence imposed; and the degree of notional accumulation inherent in the aggregate sentence imposed was excessive.

The applicant first submitted that the sentencing judge did not refer to the parties' submissions as to the questions of accumulation and concurrency (to which I have referred in [16] above), nor did his Honour explain his approach to the same or refer to the principle of totality. Accepting that there was "no degree of specificity" required of a sentencing judge in applying the totality principle, the applicant contended that the lack of any reference to that principle in the present case, or to the submissions, was suggestive of it not being applied or (at a minimum) inadequacy of reasons.
The Crown accepted that his Honour did not expressly address the issue of totality, but submitted that the issue was the subject of competing submissions. In circumstances where there were only two sentences, as to which his Honour needed to consider whether they should be concurrent or aggregated, it was apparent from the reasons that his Honour accepted the Crown's submission. The degree of accumulation on which his Honour ultimately settled was open in the exercise of the sentencing discretion.
I accept the Crown's submissions. In Hall v R [2021] NSWCCA 220 at [75], RA Hulme J (Leeming JA and Campbell J agreeing) observed that "as a general proposition there is no 'degree of specificity' required of a sentencing judge in the application of the totality principle beyond giving an indication that sentences might be concurrent or accumulated, partly or wholly" (emphasis in original). His Honour considered that Rothman J had alluded to this in JT v R [2012] NSWCCA 133, where his Honour stated at [73]: "Generally, in the application of the principle of totality, it is difficult, if not impossible, for a sentencing judge to do more than state and apply the principle on the facts as found. Greater transparency is extremely difficult. The process is at the essence of the intuitive or instinctive synthesis. As a consequence, once a sentencing judge notes that the principle is being applied (or plainly, by an examination of the process involved, has applied the principle), assuming the facts are correctly stated, in order for an appeal court to intervene, the result must manifest an incorrect application of the principle."
In circumstances where it is clear from the reasons that his Honour applied the principle of totality, the absence of an express reference to the principle from his Honour's reasons does not give rise to any error of the nature for which the applicant contended by Ground 3, and the ground should be dismissed.
By Ground 4, the applicant took issue with the notional accumulation of 2 years and 4 months between Counts 1 and 2. The applicant submitted that the offending could readily be characterised as a single course of conduct, which was required (as he submitted at first instance) for the commercial quantity threshold to be crossed for each substance. The only real difference between the charges was the substance involved, noting that on two occasions methylamphetamine was supplied at the same time as cocaine. Otherwise, the offences were part of a single episode of criminality with common factors; and the sentence for one could comprehend the criminality of the other to a greater extent than was reflected in the notional accumulation inherent in the aggregate sentence. Counsel for the applicant submitted that in all of the circumstances, the degree of notional accumulation was excessive.
The Crown submitted that the relevant question was whether the sentence for one offence is capable of comprehending and reflecting the criminality of another, regardless of whether the offences "represent two discrete acts of criminality or can be regarded as part of a single episode of criminality": Cahyadi v R (2007) 168 A Crim R 41 at [27]; Franklin v R [2013] NSWCCA 122 at [44]. Answering that question in the circumstances of this case, the Crown emphasised that the additional supply of methylamphetamine came about after a month of the applicant supplying cocaine to the undercover officer. The Crown submitted that the methylamphetamine supply involved separate criminality, by virtue of the sourcing of the different drug, and the additional profit made. The degree of accumulation was, in its submission, open to the sentencing judge in his discretion.
I accept the Crown's submissions. The methylamphetamine supplies, in particular the sixth transaction, involved additional criminality on the part of the applicant. It was open to the sentencing judge to consider that the additional criminality warranted a degree of accumulation. The accumulation on which his Honour settled for the applicant was not unreasonable nor was it plainly unfair, having regard to the totality of the criminality comprehended by the sentence. Ground 4 should be dismissed.

Conclusion

I propose the following orders. 1. Grant leave to appeal. 2. Dismiss the appeal.
HAMILL J: I agree with Mitchelmore JA.

Amendments 15 December 2022 - Correction to paragraph numbers on coversheet and headnote. 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: 15 December 2022

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